06
Jan
EPA’s Failure to Regulate Endocrine-Disrupting Pesticides before a Federal Court. . . Again
(Beyond Pesticides, January 6, 2023) Plaintiffs in a recent pesticide lawsuit against the U.S. Environmental Protection Agency (EPA) reprise, in their arguments, a critique proffered repeatedly by Beyond Pesticides: the agency has failed, for many years, to evaluate and regulate endocrine-disrupting pesticides adequately. The suit, according to Progressive Farmer, argues that the 1996 Food Quality Protection Act (FQPA) — legislation that mandated that EPA establish “tolerances” for pesticides in foods and regulate on those bases — required EPA to develop an endocrine disruptor screening program (EDSP) and to implement it by 1999. The litigation goes on to note that “more than twenty-five years after the passage of the FQPA, EPA has yet to implement the EDSP it created and further, has failed to even initiate endocrine testing for approximately 96% of registered pesticides.” Plaintiffs are asking the court, among other requests (see below) to order “EPA to complete all actions required under the FQPA at issue in this case as soon as reasonably practicable, according to a Court-ordered timeline.”
Endocrine disruptors are chemicals that can, even at low exposure levels, disrupt normal hormonal (endocrine) function. Endocrine disruptors function by: (1) mimicking the action of a naturally produced hormone, such as estrogen or testosterone, thereby setting off similar chemical reactions in the body; (2) blocking hormone receptors in cells, thereby preventing the action of natural hormones; or (3) affecting the synthesis, transport, metabolism, and excretion of hormones, thus altering the concentrations of natural hormones.
ED compounds include many pesticides, exposures to which have been linked to infertility and other reproductive disorders, diabetes, cardiovascular disease, obesity, and early puberty, as well as attention deficit hyperactivity disorder (ADHD), Parkinson’s, Alzheimer’s, and childhood and adult cancers. ED chemicals can wreak havoc not only in humans, but also, in wildlife and their ecosystems.
The subject litigation was filed on December 20, in the U.S. District Court for the Northern District of California, by the Center for Food Safety (CFS), the Center for Environmental Health, Pesticide Action Network of North America, Organizacion en California de Lideres Campesinas, Alianza Nacional de Campesinas, and the Rural Coalition. A press release from plaintiff CFS asserts: “In the 26 years since [FQPA], EPA has tested fewer than 50 of more than 1,315 registered pesticides for endocrine-disruption effects and completed only 34 of those tests.”
Although an EDSP was created by EPA in 1998, the agency was sued by the Natural Resources Defense Council in 1999 after failing to implement the program by the court-ordered August 3, 1999 deadline. That litigation resulted in the agency’s 2001 agreement to prioritize chemicals for screening “based on both effect and exposure data.” Progressive Farmer reports, “‘EPA committed to publishing a list of initial chemicals to evaluate by 2002. . . . Instead, EPA released a draft list of chemicals for evaluation in 2007 and a final list of 67 chemicals in 2009, seven years after their original promise.’ . . . EPA created a second list of 109 additional chemicals in need of testing. ‘At the same time as EPA only managed to complete . . . testing for 52 pesticides, EPA completed registration for 425 new pesticides without consideration of their potential endocrine effects, flouting the whole point of Congress’s FQPA mandates — bringing the total number of registered pesticides from 890 in 1990 to 1,315 in 2020. . . . There is little doubt that EPA’s failure to complete screening of all pesticide chemicals for possible endocrine effects has caused damage to plaintiffs’ members’ health.’”
That 2009 list was recommended for so-called “Tier 1” screening, based only on their pesticide registration status and/or exposure potential through drinking water. As Beyond Pesticides has written, “Tier 1 Screening is not sufficient to implicate a chemical as an endocrine disrupting chemical (EDC). In other words, Tier 1 findings do not hold much weight on their own. Rather, they are a tool for defining which chemicals must undergo Tier 2 testing. Tier 2 testing is intended to confirm and characterize endocrine effects, establishing dose-response relationships and other metrics typically used in conducting EPA risk assessments. EPA holds that only Tier 2, and not Tier 1 testing, can ‘provide definitive proof of a substance’s ability to interact adversely with these hormone systems in the intact organism.’ Therefore, Tier 2 testing is the only stage that can influence regulatory decision making.”
Progressive Farmer notes that the EPA Office of the Inspector General (OIG) found, in both 2011 and 2021, that the agency had failed to make any progress on implementing an endocrine disruptor screen program (the EDSP). That OIG report asserted, “As of early 2021, the OCSPP has not issued any List 1–Tier 2 test orders for wildlife studies and has only issued test orders for two pesticides for human health studies. Likewise, although the EPA developed and published List 2 with 109 chemicals, the EPA did not issue any List 2–Tier 1 test orders. As a result, the EPA has not made meaningful progress in meeting its statutory obligation to test all pesticide chemicals for endocrine-disruption activity.”
As Beyond Pesticides wrote in 2019, EPA’s “Endocrine Disruptor Screening Program (EDSP) began, then virtually stopped, its review and regulation of endocrine disrupting pesticides, despite a mandate in the 1996 Food Quality Protection Act (FQPA) to develop a screening program within two years and then begin regulating.” (See p. 13 for a detailed chronicle of EPA’s EDSP failures.) A CFS news release provides this additional outrage: “The 2021 [OIG] report included the shocking revelation that some EPA staff were instructed to function as if the screening program had been eliminated from EPA’s budget, despite a $7.5 million allocation that same year — raising the prospect of EPA’s intentional violation of its statutory duty.”
Beyond Pesticides has weighed in on EPA’s lack of action on endocrine-disrupting (ED) pesticides many times, often in letters or testimony about the agency’s failures in the face of scientific evidence of their harms. In 2019, Beyond Pesticides wrote comprehensively about ED pesticides, and EPA’s shortcomings in evaluating and regulating them, in the journal, Pesticides and You (p. 9). Beyond Pesticides recently wrote to EPA’s Office of Pesticide Programs (OPP) about the inadequacy of the agency’s review, and draft assessment, of the ED pesticide inpyrfluxam, particularly as it relates to the mandates of the Endangered Species Act. In 2022, the organization commented on EPA’s failures to meet its statutory responsibility to protect people and wildlife from the dire consequences of exposure to ED chemicals, including the agency’s interim decision on atrazine. In 2021, Beyond Pesticides wrote to OPP about pentachlorophenol; in 2022, EPA finally, after years of outcry, cancelled the registration of the toxic and endocrine-disrupting wood preservative.
The introduction to the plaintiff’s brief, after chronicling EPA’s failures in regard to ED evaluation and regulation, includes this pointed comment: “All these failings are indications of EPA’s lack of commitment to implement the EDSP and to achieve its congressional purpose of safeguarding public health, in violation of Congress’s commands.” Plaintiffs in the California case cite multiple requests in their complaint, chief among which is “ordering EPA to complete all actions required under the FQPA at issue in this case as soon as reasonably practicable, according to a Court-ordered timeline.” They also request that the court:
- declare that EPA has violated the FQPA and the APA by failing to implement the EDSP by August 3, 1999
- declare that EPA continues to be in violation of the FQPA and the APA by failing to implement the EDSP
- declare that EPA has violated the FQPA and the APA [Administrative Procedure Act] by failing to timely complete the testing of all pesticide chemicals for possible endocrine effects
- declare that EPA continues to be in violation of the FQPA and the APA by failing to complete the testing of all pesticide chemicals for possible endocrine effects
- retain jurisdiction of this action to ensure compliance with its decree
The California litigation is more evidence that health, farmworker, food system, and environmental advocates are frustrated with EPA’s functional ignoring of its mandates. In addition, there is the issue of just what impact an OIG report has “on the ground.” Beyond Pesticides points out that, when an OIG report identifies a problem, such as an issue of noncompliance (as this litigation maintains), the agency would theoretically correct the noncompliance problem. Had that been the case, EPA would have taken action on the 2011, never mind the 2021, findings.
The Inspectors General that are assigned to 74 federal agencies exist to prevent and detect fraud, waste, abuse, misconduct, and mismanagement in the government, and to promote economy, efficiency, and effectiveness in operations and programs. Though they are located within federal agencies, OIGs are designed to conduct their audits, investigations, evaluations, and special reviews independently from those agencies, resulting in relatively objective evaluations. That said, although OIG reports often make recommendations, Inspectors General have no authority to enforce changes in the agencies they oversee. And therein lies the “crapshoot” nature of outcomes from such reports — sometimes agencies will adopt recommendations or redress issues of noncompliance, but they may well not, as evidenced by EPA behavior on ED chemicals. (Learn more about OIGs here; see reports here.)
Beyond Pesticides Executive Director notes that such OIG reports do, however, provide substantive, if unfortunate, bases for lawsuits such as the CFS, et al. action in California. He goes on to lay out the landscape of EPA’s regulatory behavior and what is needed: “The problem with many of the laws is that they give agencies a tremendous amount of discretionary authority to meet a statutory goal or requirement. The thing with FQPA was just that: EPA under FIFRA did not use its statutory authority to protect children, and evaluate aggregate risk and common mechanisms of toxicity, endocrine disruptors, etc., so Congress indicated that EPA must act in these areas with a level of specificity that should not need to be required of a science-based agency. But because of corporate capture, this EPA has politicized science, so the specific requirements in the statute have been corrupted. OIG should help correct that, but it has not in too many cases. This demonstrates that relying on an agency to establish acceptable levels of harm from ED chemicals has not had acceptable public health and environmental protection outcomes. This unfortunate reality calls for a reorientation in law toward precautionary approaches that embrace alternative analyses that identify real solutions, such as nontoxic/organic approaches to food production, and land and building management.”
CFS attorney and counsel for the plaintiffs Peggy Mosavi has commented, “EPA’s failure to follow its duties to protect the public from the harmful endocrine effects of pesticides is as deplorable as it is unlawful. It’s been a quarter century since Congress recognized the risks of pesticides acting as endocrine disruptors to human and environmental health and directed EPA to test all pesticides for endocrine effects and take protective steps. Yet EPA has made only nominal progress toward that goal.”
The complaint document includes this: “There is little doubt that EPA’s failure to complete screening of all pesticide chemicals for possible endocrine effects has caused damage to Plaintiffs’ members health. A wealth of scientific studies conclude that many chemicals in use today are endocrine disruptors capable of devasting adverse health impacts. Plaintiffs’ members are routinely exposed to a myriad of pesticides, including the five EPA has flagged as possible endocrine disruptors, via their livelihoods and food consumption. EPA’s continued failure to implement the EDSP and complete testing of all pesticides for possible endocrine effects compounds Plaintiffs’ members’ exposure. Plaintiffs’ members are deeply concerned that EPA’s failure to complete testing for all pesticides, but particularly those EPA has already acknowledged as being possible endocrine disruptors, will result in their continued exposure to chemicals at levels that are causing harm to their health and that of their children and future children.”
The broad impacts of endocrine disruption, particularly on human health, comprise ample reason for EPA to meet its statutory responsibility to protect people and wildlife from the dire consequences of exposure to ED chemicals. Please consider reaching out to EPA and to your federal Senator and Representative to demand action on these toxic contaminants, as Beyond Pesticides recommended in 2021.
Source: https://www.dtnpf.com/agriculture/web/ag/crops/article/2022/12/21/lawsuit-epa-fails-test-pesticides
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
