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Sept. 28 — The German chemical maker Bayer AG announced it won’t appeal an Environmental Protection Agency decision to place a ban on the use of flubendiamide, a bug killer the company had been selling under the trade name Belt.
The decision ends a legal fight against the EPA that began early this year when the agency revoked the company’s license to sell flubendiamide products after Bayer refused to voluntarily remove them from the marketplace. Pesticides containing the chemical were approved for use on more than 200 crops, including corn and cotton.
Bayer twice challenged the EPA’s revocation in administrative law courts, arguing that the agency used faulty science to determine that the chemical harms some aquatic animals. It lost both challenges ( In re Bayer CropScience LP , EPA, No. FIFRA-HQ-2016-0001, final decision and order 7/29/16 ).
Bayer ultimately decided elevating the case to an appeals court was too risky, especially since the administrative law judges had granted the company some minor victories.
Charlotte Sanson, a director in Bayer’s crop science division, said in a Sept. 28 blog post that continuing the fight held “the potential that some of the gains we made with the [administrative law court] would be lost... Ultimately, we are accepting the gains ... and will not engage in further legal dispute over this matter.”
Bayer’s legal challenge focused on the EPA’s practice of granting conditional pesticide licenses, in which companies are allowed to sell pesticides that haven’t undergone a full risk review if they agree to certain conditions.
When the EPA granted Bayer a license to sell flubendiamide or “Belt” in 2008, the EPA included a condition that required Bayer to voluntarily cancel the license if new science arose showing environmental harm. However, when the EPA presented this science to Bayer eight years later, the company argued that the agency’s data were flawed and that it didn’t give Bayer an opportunity to do an independent review.
Ultimately, administrative law judges in both cases ruled that the quality of the EPA’s data was irrelevant, because the terms of the license that Bayer agreed to in 2008 required it to pull its products from the shelves at the EPA’s discretion.
“We had hoped that the process ... would focus on the science,” Sanson said. “Unfortunately, it did not.”
However, Sanson said that while her company hadn’t prevailed overall, Bayer had scored some key victories.
For example, the administrative law judges reversed an EPA decision that would have prevented Bayer from selling its remaining stocks of Belt. Also, Sanson said the EPA had promised the court that it wouldn’t impose provisions in future conditional pesticide licenses that require companies to voluntarily take their products off the market.
However, EPA spokesman Nick Conger said the agency didn’t actually make this commitment. Rather, the EPA told the judges it likely won’t impose voluntary cancellation provisions in the future, Conger said in an e-mail to Bloomberg BNA, because it would be simpler to instead use a time-limited license that expires on a specific date, regardless of what pesticide companies choose to do or not do.
In the end, Sanson said Bayer’s legal fight sent a message to the agency’s pesticide regulators, even though it was ultimately unsuccessful: “Our decision to pursue this administrative challenge ... demonstrates to EPA that the industry will oppose Agency efforts to pursue a quick and easy cancellation process.”
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 firstname.lastname@example.org
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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