08
Aug
EPA’s Momentous Decision to Ban the Weed Killer Dacthal/DCPA: An Anomaly or a Precedent?
(Beyond Pesticides, August 8, 2024) With the use of its emergency authority—not used in nearly 40 years, the U.S. Environmental Protection Agency (EPA) on August 7 banned a pesticide (the weed killer Dacthal or DCPA-Dimethyl Tetrachloroterephthalate) under the “imminent hazard” clause of the federal pesticide law. At the same time, the agency is exercising its authority to prohibit the continued use of Dacthal’s existing stocks, a provision that EPA rarely uses. EPA identified serious concerns about fetal hormone disruption and resulting “low birth weight and irreversible and life-long impacts to children [impaired brain development, decreased IQ, and impaired motor skills] exposed in-utero” and finds that there are no “practicable mitigation measures” to protect against these hazards. The last time EPA issued an emergency action like this was in 1979 when the agency acknowledged miscarriages associated with the forestry use of the herbicide 2,4,5-T—one-half of the chemical weed killer Agent Orange, sprayed over people to defoliate the landscape of Vietnam in the war there—with the most potent form of dioxin, TCDD (2,3,7,8-Tetrachlorodibenzo-p-dioxin).
While EPA has been congratulated for using its emergency authority, which it is obviously reluctant to use, and health and environmental activists say could be used broadly, the timeline for review and action on individual pesticides have taken decades since the nation’s pesticide law, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), was overhauled in 1972. The law has been criticized for creating a risk-benefit standard that allows for high levels of harm, especially to farmworkers and those handling pesticides, and public exposure through residues in food, water, and air. EPA’s decisions are subject to agency risk assessments that have been criticized by Beyond Pesticides as adopting flawed assumptions and ignoring vulnerable populations like children and those with preexisting health conditions, like cancer, endocrine system disruption, neurological illness, and other health effects that are exacerbated by exposure. Amendments to the law in 1996, in the Food Quality Protection Act, have done little to reduce the ongoing reliance on toxic chemicals in food production and land management, despite the growth of the $70 billion organic industry—still not considered by EPA to be a legitimate alternative to be evaluated when determining the “reasonableness” or “acceptability” of risk under pesticide law. Instead, EPA calculates acceptability of risk in the context of available alternative chemicals. In its press release on the Dacthal decision, EPA said, “In deciding whether to issue today’s Emergency Order, EPA consulted with the U.S. Department of Agriculture to understand how growers use DCPA and alternatives to this pesticide.” The agency’s consultation with USDA evaluated alternative chemicals, not alternative organic management systems and organic compatible substances.
The chemical manufacturer of Dacthal, AMVAC Chemical Corporation, can under FIFRA challenge the agency’s findings and seek court review, but EPA’s action takes effect immediately while any appeal is considered. Meanwhile, EPA has stopped use under 7 U.S.C. 136 et seq., pursuant to section 6(c)(3) (7 U.S.C. 136d(c)(3)). See Unit IV. The prohibition on the use of existing stocks is mandated under Section 6(a)(1).
EPA explains DCPA uses as follows:
DCPA is a benzoic acid herbicide (Herbicide Resistance Action Committee/Weed Science Society of America Group 3) which inhibits cell division of root tips in target plants. It controls annual grasses and broadleaf weeds before they emerge in a variety of agricultural crops. DCPA is registered for agricultural uses, including on Allium species, Brassica species, cucurbits, root vegetables, fruiting vegetables, strawberry, sod and nursery ornamental production. Non-agricultural uses of DCPA include non-residential grass/turf including golf courses and athletic fields. While these turf uses are considered non-residential because the treated turf is not a home lawn, there is still the potential for residential post-application exposures as a result of application to these use sites. The registered end-use product may be applied by handheld, ground, aerial, and chemigation equipment.
In making its decision, EPA states that it considered:
(1) The seriousness of the threatened harm;
(2) The immediacy of the threatened harm;
(3) The probability that the threatened harm will occur;
(4) The benefits to the public of the continued use of the pesticide; and
(5) The nature and extent of the information before the Agency at the time it makes a decision.
Beyond Pesticides points out that these criteria could be met for most of the pesticides for which EPA has negotiated settlements with pesticide manufacturers, resulting in partial withdrawals of pesticides from the market and compromises that threaten health and the environment.
The current system that EPA uses—negotiated settlements instead of regulatory action—compromises the health of people and the environment, often disproportionately for people of color and workers, who are the first to be exposed as applicators or agricultural workers. When EPA in June, 2000 reached an agreement to stop the sale of most home, lawn, and garden uses for the insecticide chlorpyrifos because of its health risks to children, it left most agricultural uses on the market. It should be noted that EPA’s negotiated regulation allowed Dow Chemical and all the users and sellers of the chemical to use up all their existing stocks for a full year, until the end of 2000—allowing the continued known threat to children in their homes, schools, parks, and playgrounds. Similar to the language in the Dacthal decision, children were identified by the agency as being at very high risk. Chlorpyrifos is a neurological toxicant that damages the brains of young children. However, the agency chose to use a lengthy and incomplete regulatory process. Exposures lead to decreased cognitive function, lower IQs, attention deficit disorder, developmental delays, and a host of other pervasive developmental and learning disorders in children. Because of this, it was evident to scientists and regulators at the time that this chemical must be taken off the market. Yet, the best the agency could achieve through the negotiations and settlement were restrictions that protected children from residential exposure, indoor and outdoor. See The LowDown on Dursban: MOEd Down by EPA: Do EPA Negotiations with Pesticide Manufacturers Compromise Public Health?
After over two decades since its original negotiated settlement on chlorpyrifos, with the EPA announcement that it was removing the chemical from the market, the frustration of the resource- and time-intensive effort associated with this decision on this one chemical bubbled up. Beyond Pesticides in a commentary wrote the following:
Does a science-based, public health-oriented, occupational safety focused, children-concerned, ecologically protective society allow the use of toxic pesticides that are unnecessary to achieve land management, quality of life, and food productivity goals? Should victims of poisoning have to plead with regulators to protect them? Should organizations have to fight chemical-by-chemical to achieve basic levels of protection from individual neurotoxic, cancer causing, endocrine disrupting pesticides? Of course not. But, the EPA announcement that it is stopping food uses of the insecticide chlorpyrifos after being registered 65 years ago provides us with an important opportunity for reflection, not just celebration. The collective effort to remove this one chemical is a tremendous feat in eliminating one exposure to a hazardous material for children. That is the point. The action we’re celebrating required an amazingly resource-intensive effort at a time in history when we are running against the clock in an urgent race to transition our society and global community away from the use of petroleum-based, toxic pesticides—to move to meaningful practices that sustain, nurture, and regenerate life. In this context, let’s put chlorpyrifos in perspective. EPA was forced into its decision by a court order that was precipitated by an agency decision to reverse course after proposing to stop food uses of chlorpyrifos in 2017. Despite a mountain of scientific data challenging chlorpyrifos’s safety, it was embraced by industrial agriculture, the golf industry, and others, and deemed too valuable to the bottom line of its manufacturer, Corteva (formerly Dow AgroSciences).
Then in November 2023, after over two decades of reviews, mountains of science, litigation, advocacy, Congressional debate, that severe harm to farmworker children, the 8th Circuit Court of Appeals reversed EPA’s decision. Decisions to cancel uses of chlorpyrifos products are still trickling out of EPA, including those uses announced today.
The Dacthal decision may be an anomaly because EPA does not expect a fight from the manufacturer. However, the normal course of events under FIFRA is a drawn-out process that incentivizes delay. Even with Dacthal, the most recent round of requirements, review, and probably negotiations were drawn out over 11 years, while children’s exposure continued unabated.
Here is how EPA describes it truncated process:
In 2013, the agency issued a Data Call-In (DCI) to AMVAC Chemical Corporation, the sole manufacturer of DCPA, requiring it to submit more than 20 studies to support the existing registrations of DCPA. The required data included a comprehensive study of the effects of DCPA on thyroid development and function in adults and in developing young before and after birth, that was due by January 2016. Several of the studies that AMVAC submitted from 2013-2021 were considered insufficient to address the DCI, while the thyroid study and other studies were not submitted at all.
In April 2022, EPA issued a very rarely used Notice of Intent to Suspend the DCPA technical-grade product (used to manufacture end-use products) based on AMVAC’s failure to submit the complete set of required data for almost 10 years, including the thyroid study. While AMVAC submitted the required thyroid study in August 2022, EPA suspended the registration based solely on AMVAC’s continued failure to submit other outstanding data on Aug. 22, 2023, following an administrative hearing. In November 2023, the data submission suspension was lifted after AMVAC submitted sufficient data. Most DCPA use on turf was voluntarily canceled by AMVAC in December 2023, but unacceptable risks from other uses remained.
The need for reform is an understatement according to most familiar with the failed regulatory system. As society and the global community struggle with petrochemical pesticides and the contribution to health threats, biodiversity collapse, and the climate emergency, and the fact that Dacthal is one active ingredient among over 1,000 in 56,000 pesticide products, Beyond Pesticides is calling for a phase out by 2032 of petrochemical pesticides, which can be replaced by organic systems and substances compatible with the protection of health and the environment and a livable future.
