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From January 3, 2005

EPA Upholds Phase-Out of Dursban New Home Use, Continues Discussion with Dow on Lifting Ban
(Beyond Pesticides, January 3, 2005)
An EPA official notified Beyond Pesticides on December 22, 2004 that it would not lift the December 31, 2004 ban on production of chlorpyrifos (dursban) for use in the construction of new homes, as had been expected. The Washington Post confirmed the action on December 29 in a page two story, Dow Chemical Is Told to Curtail Pesticide Sales. While production will stop, pending further discussion on whether continued use represents an "acceptable risk," use is allowed to continue until the end of 2005 under a June 2000 agreement with the manufacturer, Dow AgroSciences.

EPA told Beyond Pesticides that it would be writing a letter to Dow, indicating that it would not lift the ban, established under a negotiated agreement that phased out residential uses in June 2000. EPA said Dow was welcome to continue to make the case that the pre-construction use represents an acceptable risk and EPA would continue its review, and that if any action moves forward that would reverse the ban, it would be subject to a public review and comment period.

An EPA official told Beyond Pesticides that there were "some emails" that "could have led some to believe, even some within Dow," that there was an agreement to lift the ban pending more studies, but that these "emails/verbal agreements" did not constitute an "official agreement." Beyond Pesticides was told by a number of independent sources in EPA and industry that Dow had reached an agreement with EPA to lift the ban for a three-year period and released a press release on December 20 disclosing the agreement. Dow confirmed the agreement in an article in the Washington Post on December 21, EPA May Lift Ban on Dow's Termite Killer.

EPA told Beyond Pesticides it is not extending the phase out "at this point" and that the agency will be issuing the registrant a letter to that effect. The agency expressed a commitment to open up this process to public review and comment.

Almost immediately after the deal was exposed, Natural Resources Defense Council (NRDC) together with Beyond Pesticides and numerous others, issued a letter to the agency requesting the agency make public Dow’s petition and background data that would support the agency’s turnaround on the phase-out and that it promptly halt all backroom negotiations with the corporation. (Read the letter.)

The focus now seems to turn on a probabilistic risk assessment (PRA) of indoor air exposure and varying interpretations of the data. EPA told Beyond Pesticides that because it does not have a lot of experience with PRA models, it needs more time to look at Dow's conclusions. Beyond Pesticides' understanding is that Dow submitted its probabilistic risk assessment and has submitted no actual indoor air monitoring data for pre-construction use. Dow has concluded, according to EPA, that the new risk assessment shows risks associated with pre-construction chlorpyrifos use to be within the acceptable margin of exposure. EPA said it is not certain that it will require actual air monitoring data.

Beyond Pesticides views this situation with chlorpyrifos as very odd because these discussions have been going on 4½ years after the agreement was announced and right up against the deadline for phase-out. In any event, it is still not clear what, if anything, the original 2000 agreement said about continuing review of this residential use. The original press materials on the chlorpyrifos phase-out do not contain any reference to an ongoing review or risk assessment of the pre-construction use. Two years after the June 2000, with the publication of the IRED (interim reregistration eligibility document), it is certainly clear that Dow was given the option of continuing review.

When this story broke in December, one news service quoted an "EPA spokeswoman as saying the agency is 'still in talks with Dow' and 'nothing has been finalized.'"

That EPA was moving to undermine its June 2000 agreement to allow Dow continued access to this large market of over ½ billion gallons of chemicals used for new home construction seems clear. The fact that EPA has for the moment put the brakes on this agreement is also clear. As the agency moves forward with its discussions with Dow, Beyond Pesticides intends to shine a spotlight on the deliberations.