Under Court Order, EPA Proposes Ban on Dow Pesticide

By David Schultz

Oct. 30 — Under the threat of a court order, the Environmental Protection Agency is proposing a ban on all agricultural uses of the Dow AgroSciences insecticide chlorpyrifos.

The proposal comes in response to a study the agency released on the insecticide late last year that found chlorpyrifos may be causing unreasonable health risks to workers and to people who get their drinking water from small watersheds (39 CRR 41, 1/12/15).

First developed by Dow AgroSciences in the 1960s, chlorpyrifos has since come off of patent and is now used as the active ingredient in dozens of pesticide products made by companies ranging from Bayer and BASF to smaller chemical producers. It is one of the most widely used in a class of insecticides called organophosphates, which have the potential to cause severe neurotoxic symptoms in humans when used incorrectly.

Officially, the EPA's proposal would revoke all residue tolerances for chlorpyrifos, which would mean no amount of this insecticide would be legal to apply to any food crop. This leaves open the possibility that the chemical could continue to be used on ornamental plants or on golf course turf.

December 2016 Ban?

The EPA said it expects to finalize its proposal in December 2016.

Patti Goldman, a lawyer with the firm Earthjustice who is the lead attorney representing the Pesticide Action Network of North America, which had petitioned the EPA for the ban, said the agency will need to submit this timeline to the court and justify why it won't be able to implement a ban sooner.

“This piece of litigation moves chlorpyrifos up to the front of the line” in the EPA's pesticide review process, Goldman told Bloomberg BNA.

Before the agency can finalize and implement a ban, the proposal needs to go through a 60-day public comment period that won't begin until it is officially published in the Federal Register. The EPA will then need to review and respond to all of the comments it receives.

In a statement, Dow spokesman Garry Hamlin said the company disagrees with the proposed ban and that all of the issues raised in the 2014 EPA study can be resolved by completing the additional research.

Group Petitioned, Sued for Ban

The environmental group Pesticide Action Network North America had submitted a petition to the EPA in 2007 calling on it to ban chlorpyrifos and then, three years later, sued the agency in the U.S. Court of Appeals for the Ninth Circuit to force the agency to respond to its petition (Pesticide Action Network N. Am. v. EPA, 9th Cir., No. 14-72794, 9/10/14).

This summer, the EPA told the court it would be ready to make a final decision on the petition by April 2016 (39 CRR 810, 7/6/15).

This would have allowed the agency to complete additional research based on comments it received on its 2014 health effects study. It also would give the agency more time to potentially work out a voluntary risk mitigation agreement with Dow and the other companies that make and sell chlorpyrifos.

Court Rejects EPA's Timeline

However, a panel of Ninth Circuit judges sternly rejected the EPA's proposed timeline, accusing the agency of engaging in a “cycle of incomplete responses, missed deadlines and unreasonable delay” (39 CRR 989, 8/17/15).

Instead, the judges imposed an Oct. 31 deadline on the EPA to make a decision on chlorpyrifos' future.

In a statement, the EPA said it is now proposing this ban despite the fact that “certain science issues [are] unresolved. Therefore … we have proposed to revoke all chlorpyrifos tolerances based on the science as it stands.”

The Department of Justice's Jon Lipshultz is the lead attorney representing the EPA in the Ninth Circuit lawsuit.

To contact the reporter on this story: David Schultz in Washington at dschultz@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

A pre-publication copy of the EPA's proposed ban on chlorpyrifos is available at http://www2.epa.gov/sites/production/files/2015-10/documents/chlorpyrifos_nprm_prepublicationcopy_2015-10-28.pdf.

A copy of the EPA's 2014 health effects study on chlorpyrifos is available at http://src.bna.com/QW.