US Environmental Protection Agency Opens Criminal Investigation into Herbicide Spraying

Government Enforcement Update

Client Alert

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According to articles in Missouri newspapers and other news outlets, federal agents recently executed search warrants in several counties in Missouri to probe possible criminal violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the federal law governing the approval and use of pesticides, and other federal crimes. See, e.g., “EPA Executes Search Warrants Related to Dicamba,” The Daily Dunklin Democrat, October 22, 2016. At issue is the alleged misuse of the herbicide dicamba, which purportedly resulted in spray drift and volatilization (movement of vapors) that adversely impacted neighboring crops. The apparent criminal probe comes on the heels of allegations during the 2016 growing season of dicamba misuse and associated crop damage in states other than Missouri, including Arkansas, Tennessee, Alabama, Illinois, Kentucky, Minnesota, Mississippi, North Carolina, and Texas. See EPA Compliance Advisory, August 2016 (detailing a “high number of complaints related to alleged misuse of dicamba”); see also Farmers’ Illegal Use of Herbicide Takes Toll on Neighboring Crops ,” The Wall Street Journal, August 2, 2016 (reporting claims that illegal spraying “is damaging hundreds of thousands of crop acres in Arkansas, Missouri, and Tennessee”).

The Wall Street Journal reported in August 2016 that regulators, farmers, and academics have linked the allegations of misuse to cultivation of a genetically engineered soybean that is resistant to multiple herbicides, including dicamba and glyphosate. This crop trait allows farmers to spray the herbicides “over the top” of the soybean plant – thereby eliminating weeds while not adversely impacting the plant. The soybean seed at issue (along with a related cotton seed product) were approved for use and cultivation by the U.S. Department of Agriculture in 2015. However, the U.S. Environmental Protection Agency – which regulates the registration and use of herbicides – has not yet approved the “over the top” use of dicamba on the genetically engineered soybeans or cotton. Furthermore, the dicamba product that the EPA is considering for registration is designed to drift less and to volatilize less than dicamba products on the market. Accordingly, it is currently unlawful to use existing dicamba products “over the top,” although they may be lawfully purchased and used in a variety of other ways. It is against this regulatory backdrop that the allegedly more drift-prone dicamba products are said to have been purchased and subsequently used in an “off label” manner. Dozens, if not hundreds, of complaints involving alleged dicamba misuse are reported to have emerged in recent months.

News reports suggest that the current probe is ongoing and may include states besides Missouri. Under FIFRA, prosecutors may seek criminal penalties of up to $50,000 per violation and imprisonment for up to one year (or both). Other potentially applicable federal laws provide for imprisonment and fines above and beyond those set forth in FIFRA.