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May 10 — An administrative law judge handed the international chemical company Bayer a setback in its legal fight over a pesticide cancellation with the Environmental Protection Agency.
Bayer is challenging the EPA's ban on flubendiamide, the active ingredient in its bug killer Belt, by arguing that the agency relied on faulty science when it determined the chemical harms the environment (40 CRR 276, 3/7/16).
But Susan Biro, the EPA's chief administrative law judge, ruled that any evidence about the safety of flubendiamide would be inadmissible in the proceedings, according to her May 3 order (In re: Bayer Crop Science, EPA, FIFRA-HQ-2016-0001, order on motion to limit scope of testimony, 5/3/16).
As a result, a legal hearing in the case that began May 10 at EPA headquarters in Washington is centered on the narrow issue of what should be done with existing stocks of flubendiamide—not, as Bayer had hoped, on the broader issue of whether the EPA had the right to take the chemical off the market.
The EPA originally granted Bayer a conditional registration to sell flubendiamide products in 2008. One of the conditions of the registration, according to the EPA, was that if new scientific information materialized on the risks posed by the chemical, Bayer would voluntarily pull its flubendiamide products from the shelves.
Then, earlier this year, the EPA asked Bayer to do just that, citing new data showing the product harmed certain aquatic invertebrates. The company refused and said the EPA was using faulty scientific models that exaggerated flubendiamide's ecological effects.
The EPA then unilaterally enacted a ban on flubendiamide, arguing that Bayer violated one of the conditions of its registration by refusing to voluntarily remove it from the marketplace.
Bayer had hoped to wage a legal challenge against this action by the EPA, which could have set a precedent for how the agency handles conditional registrations, but Biro's order effectively blocks the company from doing so—at least for the time being.
Jeffrey Donald, a Bayer spokesman, told Bloomberg BNA that his company will almost definitely elect to challenge Biro's order before the EPA's Environmental Appeals Board. If Bayer loses before the EAB, it will then have the option of taking its case directly to a U.S. Court of Appeals.
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Judge Biro's May 3 order limiting the scope of Bayer's legal challenge is available at http://src.bna.com/eRa.
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