1.4 Federal vs. State Jurisdictions (FIFRA, MDAR, EPA)

Section 1.4: Federal vs. State Jurisdictions (FIFRA, MDAR, EPA)

Pesticide regulation in the United States operates under a dual-jurisdictional system. Federal agencies establish baseline laws and registrations that apply nationwide, while state agencies enforce these federal standards and implement their own, often more stringent, regulations. For pesticide applicators in Massachusetts, understanding the division of authority between the federal government (under FIFRA and the EPA) and the state government (under MDAR) is essential for legal compliance and passing the state licensing exam.

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1. Federal Regulation: FIFRA and the EPA

The primary federal law governing pesticides is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which was originally enacted in 1947 and substantially amended in 1972. The federal agency responsible for administering and enforcing FIFRA is the Environmental Protection Agency (EPA).

The Role of the EPA under FIFRA

Under FIFRA, the EPA has several key mandates:

• Pesticide Registration: No pesticide can be legally sold or distributed in the United States unless it has been reviewed and registered by the EPA. During this registration process, the EPA evaluates scientific data on the product's chemistry, efficacy, and environmental/human health impacts.
• Label Approval: The EPA must approve all pesticide labels. Under FIFRA, the label is a legal document. FIFRA Section 12(a)(2)(G) makes it a federal crime to use any registered pesticide in a manner inconsistent with its labeling.
• Classification of Pesticides: The EPA classifies registered pesticides into two broad categories:
  • General Use Pesticides (GUP): Products that present low toxicity and minimal environmental risk when used according to label directions. These are available to the general public without special licensing.
  • Restricted Use Pesticides (RUP): Products that pose a higher risk of adverse effects on human health, non-target organisms, or the environment. RUPs are marked with a prominent 'Restricted Use Pesticide' block at the top of the label and can only be purchased and applied by certified applicators or individuals under their direct supervision.
• Establishment of Tolerances: The EPA sets limits on the amount of pesticide residue that can safely remain on food crops.

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2. State Regulation: MDAR as the State Lead Agency (SLA)

While the EPA sets the federal baseline, FIFRA explicitly grants states the authority to regulate pesticides within their own borders. Under the Massachusetts Pesticide Control Act (M.G.L. c. 132B) and the regulations in 333 CMR, the Massachusetts Department of Agricultural Resources (MDAR) is designated as the State Lead Agency (SLA).

The More Stringent Rule

A fundamental principle of pesticide jurisdiction is that state laws can be more restrictive than federal laws, but they can never be less restrictive.

• MDAR must enforce all EPA regulations, but it has the authority to add state-specific restrictions, bans, or licensing requirements.
• For example, if the EPA classifies a chemical as a General Use Pesticide, MDAR can choose to classify it as a Restricted Use or State Limited Use pesticide in Massachusetts due to local environmental concerns. However, if the EPA classifies a product as Restricted Use, Massachusetts cannot downgrade it to General Use.

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3. Restricted Use Pesticides (RUP) vs. State Limited Use (SLU)

In Massachusetts, restricted pesticides are divided into federal RUPs and state-specific SLUs:

1. Restricted Use Pesticides (RUP)

These are chemical products that carry the federal EPA Restricted Use classification. In Massachusetts, only certified applicators (Private or Commercial) are allowed to purchase and apply RUPs. Basic licensed applicators (Core) cannot use them unless under the direct, physical supervision of a certified applicator.

2. State Limited Use (SLU) Pesticides

Massachusetts has established a unique state classification known as State Limited Use (SLU) under 333 CMR 10.00.

• Definition: SLUs are pesticides that MDAR determines pose a unique hazard to the environment, public health, or agriculture of the Commonwealth, even if the federal EPA has classified them as General Use.
• Triggers for SLU Status: MDAR typically classifies pesticides as SLU due to local geographic conditions, such as:
  • High water tables and sandy soils (prone to groundwater contamination).
  • High population density (increasing the risk of residential exposure).
  • Specific threats to local non-target species or waterways.
• Restrictions: The sale and use of SLU pesticides are restricted. They can only be sold by licensed Massachusetts pesticide dealers to certified applicators, and their application may require special state permits or be subject to specific timing and geographic restrictions.

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4. Special State Registrations: Section 24(c) and Section 18

Under FIFRA, states can request deviations from standard federal registrations under two specific sections:

Section 24(c): Special Local Need (SLN) Registrations

Under Section 24(c) of FIFRA, MDAR can issue a Special Local Need (SLN) registration for a pesticide.

• This allows MDAR to register additional uses or application methods for an existing EPA-registered pesticide to address a specific local pest problem.
• For example, if Massachusetts cranberry growers face a unique weed infestation that is not listed on a herbicide's standard federal label, MDAR can issue a 24(c) SLN registration to allow that specific application in Massachusetts.
• Applicators must possess the specific 24(c) supplemental label at the time of application.

Section 18: Emergency Exemptions

Under Section 18 of FIFRA, MDAR can apply to the EPA for a temporary Emergency Exemption to allow the use of an unregistered pesticide.

• This is reserved for severe, unexpected pest emergencies (such as a sudden outbreak of an invasive insect destroying a critical crop, or a public health crisis like Eastern Equine Encephalitis carried by mosquitoes) where no registered pesticide is effective.
• If approved, the EPA allows MDAR to authorize the controlled use of the unregistered chemical for a limited time under strict state oversight.

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Comparison of Federal vs. State Pesticide Jurisdictions