By Helen Christophi, Courthouse News Service

SAN FRANCISCO (CN) — Agriculture officials broke the law when they let organic farmers use compost treated with synthetic pesticides, a federal magistrate judge has ruled (pdf).

The Center for Food Safety and other environmental groups accused the U.S. Department of Agriculture last year of violating the Administrative Procedures Act by issuing a rule change to its organic standard that allowed organic farmers to use compost containing synthetic chemicals, without notifying the public or soliciting comment first.

Before the 2010 rule change NOP 5016 (pdf) was issued, national organic food regulations banned synthetic substances in compost unless the substances were on an approved list.

U.S. Magistrate Judge Jacqueline Scott Corley vacated NOP 5016 this past week and ordered the USDA to issue revised guidance that complies with the APA.

"It was more than a slap on the wrist to have [NOP 5016] remanded," Amy Van Saun, a legal fellow at the Center for Food Safety who worked on the case, said. "Now it remains to be seen what USDA will do with this."

The rule change came after the California Department of Food and Agriculture barred organic farmers from using certain organic compost products after inspectors found bifenthrin in them, which is not on the list. The department administers the USDA's National Organic Program, an organic certification program.

Bifenthrin, an insecticide used to control red imported fire ants, is highly toxic to fish and aquatic organisms, according to Cornell University's Pesticide Management Education Program. The Environmental Protection Agency classifies it as moderately toxic to mammals.

According to Corley's order, Nortech Waste, which produces one of the banned composts, asked an official at the National Organic Program if it was going to "back the action of the California Department of Food and Agriculture," saying that "bifenthrin in compost is going to become a nationwide problem and just saying that contaminated compost cannot be used in organic agriculture is not the answer."

The USDA responded a few months later with NOP 5016 to "clarify" what is allowed in compost used in organic farming, Corley said. The rule allowed organic farmers to use compost containing banned chemicals as long as the compost was composed of "green waste" like lawn clippings and the chemicals weren't applied directly to it and wouldn't contaminate crops, soil or water.

The environmental groups contended that NOP 5016 amended existing regulations and that the USDA broke the law by not seeking public comment before changing them. But the USDA argued that NOP 5016 only clarified the law, thereby exempting the agency from providing a comment period.

Specifically, the USDA said that NOP 5016 clarified the meaning of the word "contains" in the regulation to state that compost only "contains" a banned substance if it existed in the green waste prior to composting and if it doesn't cause contamination. Otherwise, the compost doesn't contain the banned chemical even if it is present.

But Corley rejected the USDA's logic, saying she was unconvinced it hadn't changed its organic standard.

"The regulation prohibits any compost, not just green waste compost, from 'containing' a non-listed synthetic substance," Corley wrote. "If defendants were actually clarifying the meaning of 'contains' as used in the regulation, as they now claim, then NOP 5016 should apply to all compost, not just green waste compost. That NOP 5016 is limited to green waste compost is consistent with defendants making an exception, that is, an amendment, to [the organic standard], rather than clarifying it."

George Kimbrell of the Center for Food Safety in San Francisco represents the plaintiffs.

The USDA did not return phone and email requests for comment on Monday morning.

To Learn More:

Center for Environmental Health, et al, v. Tom Vilsack, et al (U.S. District Court, Northern District of California) (pdf)

Organic Farmers Sue USDA over Corporate Appointments to Food Board (by Rose Bouboushian, Courthouse News Service)

Organic Food Groups Sue Dept. of Agriculture for Lowering Standard for Including Non-Organic Materials in Foods Labeled Organic (by Steve Straehley, AllGov)

Federal Government Allows more than 250 Nonorganic Substances to be Added to “Organic” Foods (by Noel Brinkerhoff and David Wallechinsky, AllGov)