Judge Hits EPA Pesticide Ban Delays, Sets Oct. Date

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By David Schultz

Aug. 10 — A federal appeals court judge harshly criticized the Environmental Protection Agency for using stall tactics to avoid making a decision on whether to ban the insecticide chlorpyrifos, originally developed by Dow AgroSciences and now used in products made by dozens of agrochemical companies.

In an Aug. 10 opinion, Judge M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit said the EPA's promise to possibly make a final determination on the pesticide by April 15 is “too little, too late.”

Instead, the court is now ordering that the agency must decide whether or not to ban chlorpyrifos by Oct. 31.

Via e-mail, the EPA said it is reviewing the court's decision and that it “fully intend[s] to comply with the court deadline.” 

‘Filibustering.'

The EPA has been considering for nearly eight years a petition from several environmental activist groups asking it to ban chlorpyrifos out of concerns about its potential toxicity to humans. In December, the EPA completed a risk assessment that found new hazards posed by chlorpyrifos to workers who handle it and to drinking water when used in small watersheds.

McKeown took note of these latest findings and said they provided her with justification for not allowing the EPA to again postpone a decision on chlorpyrifos. The court needs to step in “to end this cycle of incomplete responses, missed deadlines and unreasonable delay,” she said.

“Although filibustering may be a venerable tradition in the United States Senate,” McKeown said, “it is frowned upon in administrative agencies tasked with protecting human health.”

Road Map for Delay 

The activist groups that petitioned the EPA in 2007 to ban the pesticide eventually sued the agency in 2010, asking the court to force it to respond. McKeown said her court had allowed the EPA numerous times to avoid doing so based on promises from the agency of “concrete timelines” for addressing the issue.

The latest of these promises came in June when the agency proposed a deadline for itself of April 15. However, the EPA also included a caveat in its deadline proposal, saying it might not impose a ban on the chemical if it can reach a voluntary agreement before then with the companies that make chlorpyrifos.

In her opinion, McKeown strongly rejected this proposal. It “isn't a ‘concrete timeline' for resolving the petition—it's a roadmap for further delay,” she said.

In addition to forcing the EPA to make a final decision by Oct. 31, the court is also requiring that, if the agency does decide to ban chlorpyrifos, it must also submit a timeline for its rulemaking process that would lead to a ban.

Garry Hamlin, a Dow AgroSciences spokesman, told Bloomberg BNA that, while the company hasn't fully reviewed McKeown's opinion, it “remains confident in the extensive health, safety and environmental data supporting chlorpyrifos products.”

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

The opinion by the U.S. Court of Appeals for the Ninth Circuit in Pesticide Action Network N. Am. v. EPA is available at http://www.bloomberglaw.com/public/document/Pesticide_Action_Network_et_al_v_USEPA_Docket_No_1472794_9th_Cir_/2.