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U.S. Appeals Court supports EPA chlorpyrifos use

Environmental groups were hoping to destroy a crop protection product used by hundreds of thousands of farmers.

Commentary

The U.S. Court of Appeals for the 9th Circuit handed farmers another win on July 18, 2017. The Natural Resources Defense Council (NRDC) and the Pesticide Action Network North America (PANNA) challenged EPA’s decision not to restrict or eliminate the use of the pesticide chlorpyrifos, used to kill a number of pests, including insects and worms.

NRDC and PANNA had attempted to revoke pesticide tolerances and cancel the pesticide registrations for chlorpyrifos.

By pounds of active ingredient, chlorpyrifos is the most widely used insecticide in the country. Environmental groups were hoping to destroy a crop protection product used by hundreds of thousands of farmers. Chlorpyrifos is used on tree fruits, nuts, small fruits and vegetables, grain/oilseed crops, cotton, ornamental and agricultural seed production, non-residential turf, industrial sites/rights of way, greenhouse and nursery production, sod farms, plywood production, pulpwood production, wood protection, and public health.

Cost-effective choice

“For some of these crops, chlorpyrifos is currently the only cost-effective choice for control of certain insect pests,” said EPA in its decision denying the environmental groups’ petition to destroy all uses of the pesticide.

EPA Administrator Scott Pruitt signed the Order on March 29, 2017 (Chlorpyrifos: Order Denying PANNA and NRDC’s Petition to Revoke Tolerances). He issued a 45-page decision which lays out EPA’s reasons for denying PANNA and NRDC’s petition to eliminate the use of chlorpyrifos.

If one wants to understand “fake news,” I suggest reading the New York Times and Los Angeles Times accounts of this decision. Then read Administrator Pruitt’s decision. I think you will conclude, as I have, that not only is there “fake news” but one could also argue there is deliberate misleading of readers of what is happening on issues such as chlorpyrifos.

The New York Times wrote a story suggesting EPA was merely protecting the health of young children and farm workers. It also suggested EPA science had been rejected. In a section of the Order entitled “Genetic Evidence of Vulnerable Populations”, environmental groups claimed EPA failed to calculate “…an appropriate intra-species uncertainty factor (i.e., within human variability) for chlorpyrifos in both its aggregate and cumulative risk assessments (CRA).” Environmental petitioners wanted EPA to apply “…at least 150X in the aggregate and cumulative assessments rather than the 10X factor EPA applied.” Had EPA used the higher safety factor, EPA would have been required to revoke all EPA chlorpyrifos tolerances. EPA explained the 150X safety factor is “…not consistent with well-established international risk assessment practices.” EPA went on to say using the safety factor suggested by the environmental groups “is not an appropriate approach for developing a data-driven uncertainty factor.”

Facts, not models

USDA used facts to advise EPA, not models. USDA was very specific in its comments to EPA. It found after testing ground water and drinking water for chlorpyrifos at school and daycare wells for 15 years “No chlorpyrifos was detected in hundreds of water samples in 2010-13 at the parts per trillion level.” USDA went even further in advising EPA not to use modeling estimates but use actual water data. USDA told EPA “… actual monitoring results should at least call into question the validity and reliability of the model estimates…”

PANNA and NRDC claimed EPA ignored genetic evidence chlorpyrifos had on vulnerable populations; ignored data regarding cancer issues; over-relied on registrant data; did not incorporate early life exposure to chlorpyrifos in children; and failed to incorporate inhalation routes of exposure. EPA’s Order is worth reading. EPA’s response to each of Petitioners’ claims is enlightening in laying out the facts as to why EPA decided not to revoke chlorpyrifos tolerances or cancel chlorpyrifos registrations. EPA’s Order was challenged in the San Francisco U.S. Court of Appeals. NRDC and PANNA sought to force the Agency to revoke the uses of chlorpyrifos. The U.S. Court of Appeals in San Francisco found that EPA had issued an appropriate denial and further objections by the environmental groups must be made through the administrative process, not at the court.

A solid victory for agriculture.        

The opinions of the author are not necessarily those of Farm Futures or Farm Progress.

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