Pubdate: Sun, 04 Oct 2015
Source: Denver Post (CO)
Copyright: 2015 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Authors: David Migoya and Ricardo Baca

FACTORS MUDDIED THE POT

Industry Pressure and Feds' Lack of Guidance Had Regulators Be Less 
Strict on Pesticides

State regulators have known since 2012 that marijuana was grown with 
potentially dangerous pesticides, but pressure from the industry and 
lack of guidance from federal authorities delayed their efforts to 
enact regulations, and they ultimately landed on a less restrictive 
approach than originally envisioned.

Three years of e-mails and records obtained by The Denver Post and 
dozens of interviews show state regulators struggled with the issue 
while the cannabis industry protested that proposed limits on 
pesticides would leave their valuable crops vulnerable to devastating disease.

Last year, as the state was preparing a list of allowable substances 
that would have restricted pesticides on marijuana to the least toxic 
chemicals, Colorado Department of Agriculture officials stopped the 
process under pressure from the industry, The Post found.

"This list has been circulated among marijuana producers and has been 
met with considerable opposition because of its restrictive nature," 
wrote Mitch Yergert, the CDA's plant industry director, shortly after 
the April 2014 decision. "There is an inherent conflict with the 
marijuana growers' desire to use pesticides other than those" that 
are least restrictive.

Another year passed before regulators publicly released a draft list 
of pesticides allowed on marijuana plants - a broader, less 
restrictive list than initially proposed. That only occurred after 
the city of Denver began quarantining plants over concerns that 
pesticides posed a health hazard.

The marijuana industry "was the biggest obstacle we had" in devising 
any effective pesticide regulation, said former Colorado agriculture 
commissioner John Salazar.

"We were caught between a rock and a hard spot," he said. "Anything 
we wanted to allow simply was not enough for that industry."

The U.S. Environmental Protection Agency, which regulates pesticides, 
offered the state little advice about what to do because marijuana is 
an illegal crop under federal law.

"We tried to work with the EPA, to figure out what to do, but we got 
nothing," Salazar said.

With little federal guidance and no science to know which pesticides 
might be safe for consumers, the department made pesticide 
inspections a low priority, records show.

"Our current policy is to investigate complaints related to MJ 
(marijuana), otherwise focus on higher priorities," Laura Quakenbush, 
the CDA's pesticide registration coordinator, wrote to a colleague in 
a December 2012 e-mail.

Critics say the state bowed to industry's influence.

"Colorado has given the marijuana industry way too much power, way 
too much control over the political process," said Kevin Sabet, 
co-founder of Smart Approaches to Marijuana, a group that opposed 
legalizing marijuana.

"Regulators are trusting the industry and saying, 'Show us how to 
regulate you.' They're putting their trust in the industry," said 
Samantha Walsh, a lobbyist who has represented marijuana-testing labs 
and the unions representing workers at cannabis cultivation facilities.

"There's been foot-dragging in much of the industry," she said. "It's 
a failure of the government to step in and institute these practices."

State officials say it was important to take into account industry concerns.

"CDA felt there was a need to further explore all possibilities of 
how best to regulate and identify what pesticides could be legally 
used on marijuana. During this process, we believe we have identified 
a better way forward than what we originally proposed in April of 
2014," Yergert told The Post.

The agency is just now preparing for regular inspections of marijuana 
growers using pesticides, Yergert said, something it already does for 
other commercial users such as crop-dusting businesses. In July, the 
CDA began visiting marijuana businesses for "compliance assistance" 
that focuses on education and training.

And last week, Yergert said, the agency began a new rule-making 
process to formalize the list of pesticides growers can use.

Heavy-hitting pesticides

Marijuana and pesticides hit CDA's radar in 2012 when a former 
employee of the Kine Mine, then a medical marijuana dispensary in 
Idaho Springs, complained to the state of not being given protective 
clothing to spray growing plants.

CDA inspectors found two heavy-hitting pesticides - Floramite and 
Avid - were used on dozens of cannabis plants.

The CDA cited the business with violating a pesticide's label 
restrictions. The state was unable to do more because it had not yet 
determined which pesticides could and could not be used on cannabis 
in Colorado.

As commercial grow operations spread after recreational pot sale 
became legal in 2014, complaints continued to flow. Sales of 
recreational and medical marijuana reached nearly $700 million last 
year and topped $540 million through July. There are 600 pot-growing 
licenses in Denver alone.

"I think everyone thought marijuana growers were a bunch of organic 
growers who would never use pesticides on pot, but that's definitely 
not the case," said Mowgli Holmes, a molecular geneticist at Phylos 
Bioscience and board member of the Cannabis Safety Institute in 
Oregon. "A lot of this pesticide use is new and driven by commercial 
pressures."

When large numbers of cannabis plants are grown indoors and in close 
proximity, they are vulnerable to mites and powdery mildews, which 
can destroy a crop quickly.

To date, there have been 24 inquiries into pesticide complaints 
involving marijuana businesses, CDA officials said.

Another early complaint came in 2012 when a consumer said a popular 
cannabis leaf wash for killing bugs claimed to be "99.9999%" water 
that worked because of an ionic charge.

A state lab found it actually contained high levels of "pyrethrin, a 
plant-based insecticide that requires EPA registration," wrote 
Quakenbush, the CDA's pesticide registration coordinator.

Officials determined that because the product label did not say that 
it contained a pesticide, they lacked authority over its use, 
according to e-mails. The state referred the mislabeling problem to 
the EPA for investigation, and the state did not look further into the issue.

But the case led state inspectors to send several e-mails to the EPA 
seeking guidance on how to handle the emerging pesticide problem. 
Officials also asked whether pesticides allowed on tobacco would 
suffice. The state received no response, according to e-mails the 
state provided.

The federal agency responded in an e-mail to The Post that "over the 
past several years, the U.S. EPA has had interactions with 
representatives from the Colorado Department of Agriculture on this 
issue" but provided no details.

Health impact

Colorado initially wanted to do as New Hampshire did, allowing only 
the least harmful pesticides to be used in marijuana cultivation.

Those included neem, cinnamon and peppermint oils - products so 
nontoxic that federal registration is not required and no tolerance 
level is necessary for their residues.

By restricting cannabis growers to those products, Colorado could 
adapt its rules over time as more information became known about the 
health impact of chemical residues from pesticides.

Before the sale of recreational pot became legal in 2014, "a majority 
in the industry's underground didn't have very sophisticated 
practices and were using lots of toxic things they shouldn't have on 
a regular basis," said Devin Liles, who runs The Farm cultivation 
facility in Boulder.

In April 2014, the CDA laid out the issue: "For food crops, a 
tolerance (of pesticide residues) must be established. No tolerances 
have been established for marijuana because they are not recognized 
as a legal 'agricultural crop.' "

Put simply, many pesticides that the marijuana industry was already 
using - some of them allowed by the EPA on food crops - were to be 
off the table.

Small, informal working group meetings were held in March and April. 
Liles said other members of a group on which he participated 
immediately were worried.

"Some operations were really concerned because what they were using 
was now on the chopping block," he said, "and they didn't know if it 
would become more restrictive later."

The proposed rule was published, and a meeting during which 
stakeholders could speak was scheduled for that May.

"The Colorado Department of Agriculture does not recommend the use of 
any pesticide not specifically tested, labeled and assigned a set 
tolerance for use on marijuana because the health effects on 
consumers are unknown," the proposed rule said.

Then in late April 2014, soon after CDA issued the proposed rule - 
and following two meetings where officials heard the industry's 
reaction - the agency pulled the plug on its rule-making process.

"The termination will allow the agency more time to meet with the 
representative group of stakeholders and further review the impacts 
of the proposed rule," according to the portion of the Colorado 
secretary of state's website where the hearings are tracked.

"We continued to have conversations without having any resolution," 
Ron Carle ton, CDA's former deputy commissioner, said in an 
interview. "The industry was of the opinion they needed the same kind 
of access to pesticides that other growers were using, that this 
low-level stuff wouldn't do it."

CDA and the marijuana industry continued to wrangle. That June, CDA 
shared copies of an early, broadened draft list of approved 
pesticides with at least one industry group.

"The list never meant much because it was always in draft form, never 
formalized or finalized, and rule-making never occurred," Michael 
Elliott, executive director of the Marijuana Industry Group, told The 
Post in an e-mail.

At a CDA meeting with businesses in December, Elliott said growers 
were frustrated because they did not believe the state was giving 
them the tools necessary to fight the problems they faced.

"We need clean product, and we have a huge list of things to test for 
and failure could literally shut down a business," he said.

Meanwhile, CDA continued its policy of not checking to see what 
pesticides marijuana growers were using unless someone complained.

"To date, CDA has not actively sought to inspect and enforce the 
provisions of the (Colorado) Pesticide Applicator's Act on marijuana 
producers," Yergert, CDA's plant industry director, wrote in a memo 
for a meeting in December. The Pesticide Applicator's Act is the 
state's authority to enforce EPA pesticide laws.

The delays had Yergert worried that CDA's inaction could be problematic.

"The last thing that I want is somebody to get sick and they say it 
was due to pesticide use" and that the state knew about it, he said 
at the December meeting with industry representatives. "None of us 
wants to be in front of that train."

Turning up the heat

While state regulators and the industry debated how pesticides should 
be regulated, Denver was about to turn up the heat.

Denver firefighters conducting routine safety inspections of 
marijuana growhouses in early 2014 discovered some growers were 
burning sulphur as a fumigant to kill mites. Firefighters say that's 
a fire hazard.

Once stopped from using the dangerous substance, the growers turned 
to pesticides, and firefighters noticed cabinets full of odd-sounding 
chemicals.

"They will do something to protect these million-dollars worth of 
plants," said Lt. Tom Pastorius. "We stopped one issue with the 
sulphur. But that just led to a whole different issue."

The city's environmental health department responded by quarantining 
about 100,000 plants in March after application logs showed 
pesticides they knew little about. City health officials met with CDA 
and learned of the agency's draft list of pesticides it said were OK to use.

The meeting prompted the state to release the list publicly. It was 
the first time growers say they were fully aware of what they could 
and could not use.

"At that time, we didn't want to put the list out," said John Scott, 
CDA's pesticide program manager. "We were still working on the rule itself."

But once Denver had quarantined the plants, "we felt like it couldn't 
wait," Scott said.

Pesticides on the list have labels so broadly written that the state 
determined their use on marijuana is permissible. However, CDA also 
says it does not recommend their use because no one knows whether the 
pesticides are safe when used on marijuana.

Three of the growers whose plants were quarantined fought back in 
court, suing the city for allegedly overextending its authority. 
Pesticides, the businesses argued, were the purview of CDA, not the city.

The industry also turned to the Colorado legislature and had a 
last-minute amendment designed to stop Denver's enforcement added to 
a bill about marijuana tax revenues, according to documents and interviews.

It's not the only example of marijuana growers looking toward the 
Capitol for help. Also during the last session, several legislators 
tried but failed to pass a law that would have removed pesticides 
entirely from the list of ingredients on marijuana product packages.

The enforcement amendment, which ensured that pesticide oversight of 
marijuana growers would stay with the state, was tacked on from the 
Senate floor on the day before it adjourned.

"The worry was that communities could basically ban the use of some 
pesticides based on emotional responses rather than factual ones," 
said Sen. Jerry Sonnenberg, R-Sterling, the amendment's sponsor. "It 
was to codify that the state was in charge, not Denver, not any city."

The impetus for his amendment, Sonnenberg said, came primarily from 
conversations with three lobbyists who records show are with the 
Marijuana Industry Group.

Sonnenberg's re-election committee had accepted about $1,000 in 
contributions from the three since 2010, according to state campaign 
finance records. In that time, he's accepted about $1,800 from all 
marijuana-related contributors, records show. All contributions 
Sonnenberg received since 2010 totaled $49,900, according to state filings.

More broadly, the industry has spent at least $421,000 on lobbying on 
various cannabis-related issues this year, state reports show. In 
contrast, utility giant Xcel Energy has spent $230,640, according to 
the company. The city eventually won in court, but the amendment 
passed as well. Subsequent enforcement actions by Denver occurred at 
the retail level, far from where plants are actually covered in 
pesticides and where CDA's pesticide authority extended.

The city declined to comment on the legislature's action.

"What was most frustrating about what happened in Denver is that the 
city went from not participating in the statewide conversation and 
doing absolutely nothing to placing holds on businesses," Elliott at 
MIG said in an interview. "We would have appreciated having them 
involved in the state process and perhaps having worked out more 
local solutions instead of coming down quickly with holds."

Elliott paused, then offered: "That said, I understand why they 
reacted the way they did. They identified a safety issue and took 
action. Very little has been going on on this issue on a statewide level."
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MAP posted-by: Jay Bergstrom