State AGs Object to Chlorpyrifos Order

Seven state attorneys general (AGs) have filed a formal objection to EPA’s refusal to ban the use of the pesticide chlorpyrifos on food crops.

The objection responds to an order (April 5, 2017, FR), in which the Agency denied the ban, which had been requested by environmental groups in 2007. The EPA said that science has not yet determined with the requisite level of confidence that the pesticide impairs the neurological development of human fetuses and children, as the groups contended. The Agency added that it would attempt to address claims questioning the safety of chlorpyrifos before the October 1, 2022, deadline for completing the reregistration of the product. Until that time, says the EPA, the tolerances (maximum allowable residues on food) for chlorpyrifos will remain in place.

The AGs argue that the Federal Food, Drug, and Cosmetic Act (FFDCA) does not allow the EPA to leave a tolerance for a pesticide in place if the Agency has not made a safety finding for that tolerance.

6 Million lb Applied in the United States                    

Manufactured by Dow AgroSciences, chlorpyrifos was introduced into commerce more than 45 years ago and is now the active ingredient in the company’s specialty insecticide Dursban® 50W. According to Dow, chlorpyrifos is registered for use in nearly 100 countries, is applied to approximately 8.5 million crop acres each year, and controls more than 280 insect pests found on crops that include cotton, corn, almonds, and fruit trees. U.S. farms use more than 6 million pounds (lb) of the chemical annually—about 25 percent in California.

EPA Reverses

The chlorpyrifos petition was submitted by the Natural Resources Defense Council and the Pesticide Action Network of North America. After years of nonresponse from the EPA, the petitioners went to court. In August 2016, the U.S. Court of Appeals for the 9th Circuit ordered the EPA to complete a final petition response—either deny or grant it—by March 31, 2017. In November 2015 and November 2016, the Obama EPA issued two proposals to revoke all chlorpyrifos food tolerances because the product did not meet the FFDCA safety standard. But that view changed once the Trump administration took over.

“Despite several years of study, the science addressing neurodevelopmental effects remains unresolved, and further evaluation of the science during the remaining time for completion of registration review is warranted to achieve greater certainty as to whether the potential exists for adverse neurodevelopmental effects to occur from current human exposures to chlorpyrifos,” the EPA now states.

“We need to provide regulatory certainty to the thousands of American farms that rely on chlorpyrifos, while still protecting human health and the environment,” added EPA Administrator Scott Pruitt. “By reversing the previous Administration’s steps to ban one of the most widely used pesticides in the world, we are returning to using sound science in decision-making—rather than predetermined results.”

Safety Finding Cannot Be Avoided

This explanation did not persuade the AGs.

“The coalition contends that the [FFDCA] does not give EPA the authority to leave tolerances in place in the absence of a finding of safety,” state the AGs. “Their filing argues that the Act requires the Agency to either find tolerances on food safe or it must revoke or modify the current tolerances; there is no provision in the [FFDCA] allowing the EPA to do what it has done by leaving tolerances in effect but not making a safety finding.”

The seven AGs represent California, Maine, Maryland, Massachusetts, New York, Washington, and Vermont. Their objection to EPA’s chlorpyrifos order is here.