Commodity groups with members depending on chlorpyrifos are pushing to overturn an EPA decision resulting in the loss of the long-used insecticide deemed unsafe for food crops.
The groups want a federal appeals court to vacate EPA's action to revoke use tolerances and send the issue back to the agency. From there, the groups hope the courts would give EPA instructions “to enter the safety finding for the safe uses that it had announced” in an earlier proposed interim decision, their lawyer told the 8th U.S. Circuit Court of Appeals last month.
Nineteen state and national ag groups — including the American Soybean Association, American Farm Bureau Federation, National Association of Wheat Growers, and others — sent a frustrated letter to EPA Administrator Michael Regan earlier this month. In it, the groups called the timing of EPA's notice of intent to cancel the registrations “highly questionable,” especially as it came just before arguments in a case filed by the groups in February 2022.
“Published the day before oral argument in the Eighth Circuit in the lawsuit and coupled with an inflammatory press release issued by EPA, the NOIC (notice of intent to cancel) appears to be an effort to interfere with the jurisdiction of the Eighth Circuit with respect to the safe uses,” the groups argued in the letter.
“The issuance of the NOIC also appears to be an attempt to signal urgency when … none exists except for American growers’ desperate need of the safe uses of chlorpyrifos for the 2023 growing season commencing in March,” the letter adds.
The agency revoked tolerances for all foods last year in response to a 9th Circuit Court of Appeals order in 2021 that gave the agency 60 days to decide. The court said EPA had “spent more than a decade assembling a record of chlorpyrifos’s ill effects and has repeatedly determined, based on that record, that it cannot conclude, to the statutorily required standard of reasonable certainty, that the present tolerances are causing no harm.”
Ordered to revoke or modify the tolerances, EPA revoked them. In considering aggregate exposures to the insecticide, EPA said it could not determine that the food tolerances were safe.
Environmental and farmworker groups have been trying for years to get the product off the market, citing research into its neurotoxic effects, especially on infants and children. Chlorpyrifos has increasingly been the subject of state bans, including in California, in the absence of federal action. Major manufacturer Corteva Agriscience stopped making the insecticide at the end of 2020, and except for Gharda Chemicals International, all other registrants have voluntarily canceled their registrations.
EPA issued a notice of intent to cancel Gharda’s three registrations for food uses last month and noted it had received voluntary requests from registrants to cancel 14 other registrations, but grower groups have sought a hearing on the matter.
They previously sought a stay or withdrawal of the cancellation order until after the 8th Circuit Court of Appeals rules in the case, which was argued last month.
The groups and Gharda maintain that EPA had concluded in a December 2020 proposed interim decision, or PID, that 11 high-benefit food uses were safe - alfalfa, apples, asparagus, tart cherries, citrus, cotton, peach, soybean, strawberry, sugar beets and spring and winter wheat.
Referring to those crops, EPA said in a brief in the 8th Circuit case that it “never formally concluded that the 11 uses are safe,” but that it had proposed continuing to allow those uses “under a different statute,” the Federal Insecticide, Fungicide, and Rodenticide Act, known as FIFRA. Tolerances are implemented under the Federal Food, Drug and Cosmetic Act.
Environmental groups that have sought a ban on the chemical point to a 2016 human health assessment from EPA showing “there are no safe uses for this pesticide.” The League of United Latin American Citizens, Pesticide Action Network, and Natural Resources Defense Council are among the groups that are supporting EPA in the litigation. CropLife America and the states of North Dakota and Missouri are backing the grower groups.
But in arguments before the 8th Circuit, Nash Long, the attorney representing Gharda and the grower groups, said EPA has continued to maintain that chlorpyrifos could be used safely on the 11 crops. Justice Department attorney Laura Glickman, however, representing EPA, said the agency “has not made a final safety finding with regard to the 11 uses proposed in the PID. It was a proposed document under a different statute,” FIFRA.
But according to EPA, when the agency issued its final rule to revoke the tolerances in 2021, no registrants had submitted voluntary cancellation requests or agreed to label amendments requiring mitigation.
At the arguments, Glickman said, “EPA still doesn't have in hand labels that would effectuate the changes as they were proposed in the PID.”
“EPA doesn't dispute that there might be some tolerance, or combination of tolerances that could potentially meet the safety standard,” Glickman said. However, “even if it were true that EPA could have, perhaps, modified the tolerances, that doesn't render the decision to revoke unreasonable.”
Growers have argued that the loss of chlorpyrifos has been devastating. “The decision has inflicted enormous costs on thousands of farmers across the country and undermined their ability to protect their crops from devastating insect pests,” ASA said after the arguments.
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