EPA Proposal for Chlorpyrifos Use, After Court Decision, Backtracks on Safety and Protection of Children

10
Oct

EPA Proposal for Chlorpyrifos Use, After Court Decision, Backtracks on Safety and Protection of Children

(Beyond Pesticides, October 10, 2024) On September 16, 2024, the U.S. Environmental Protection Agency (EPA) announced an order allowing Kaizen Technologies LLC to sell off its chlorpyrifos-based insecticide product—Bifenchlor, a known neurotoxicant. This reverses an existing stocks agreement that Kaizen voluntarily negotiated with EPA in August 2022 when the company withdrew Bifenchlor from use. The agency attributes this new order to a November 2023 Eighth Circuit Court of Appeals decision, which vacated EPA’s prior 2021 chlorpyrifos ban on food crops (see here). EPA’s practice of permitting the sale and use of existing stocks of canceled pesticides has been a longstanding concern for public health and environmental advocates, as it enables the continued use of petrochemical pesticides that the agency has found to be dangerous. Chlorpyrifos, an organophosphate with adverse health effects on children (see here and here), is now the latest example.

In reporting on the almost unprecedented decision on August 7, 2024, to use its emergency authority to ban Dacthal/DCPA, Beyond Pesticides argues that the “Dacthal Standard” is a positive precedent, a step forward in modern regulatory history; however, EPA’s continued approval of chlorpyrifos’s existing stock, complicated by the 2023 court decision, may suggest otherwise.

As demonstrated historically with chlordane, dicamba, methyl iodide, atrazine, and other pesticides, EPA’s decision making, delay tactics, and contradictory policies are not confined to chlorpyrifos. In fact, when EPA negotiated in 2000 a withdrawal from the market residential uses of chlorpyrifos, based on the neurotoxic impacts on children, it allowed Dow Chemical to sell off all its existing stocks over a one-year period. “Chlorpyrifos, glyphosate, 2,4-D, atrazine, and many others are poster children for a failed regulatory system that props up chemical-intensive agriculture despite the availability of alternative organic practices not reliant on these toxic chemicals,” says Jay Feldman, executive director of Beyond Pesticides.

Ironically, as in the short interval between EPA’s rule banning agricultural uses of chlorpyrifos and the Eighth Circuit’s intervention, “the need for any use of chlorpyrifos has been refuted,” as Earthjustice Senior Attorney Patti Goldman noted in a press release. “Crops have been successfully grown in the two years since chlorpyrifos has been banned,” Ms. Goldman said. Despite the growth of the $70 billion organic industry, organic agricultural methods and materials are still not considered by EPA to be a legitimate alternative to chemicals when determining the “reasonableness” or “acceptability” of adverse pesticide effects under federal pesticide law.

This most recent “chlorpyrifos existing stock order notice” by the agency is another footnote in an ongoing chapter of what environmental and health advocates see as regulatory failure by EPA under a weak federal statute, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The current 2024 growing season allowed the use of chlorpyrifos pesticides on most food crops [except for five states that have stepped up, independent of EPA, to ban the insecticide to protect children: Hawaii, Maryland, New York, Oregon, and California]. (See here and here.) In 2000, EPA discontinued all uses of chlorpyrifos on tomatoes, restricting use on apples, and lowering the grape tolerances.

Background

In 2021, EPA issued a rule that revoked food tolerances for chlorpyrifos, effectively banning its use on food crops. This decision, however, faced legal challenges from a chlorpyrifos manufacturer and several agricultural groups, which filed a lawsuit in the U.S. Court of Appeals for the Eighth Circuit. On November 2, 2023, the Eighth Circuit vacated EPA’s 2021 rule revoking all tolerances in Red River Valley Sugarbeet Growers Associations, et al. v. Regan, 85 F.4th 881 (8th Cir. 2023) and directed the agency to reconsider.

In response to this legal development, EPA published a notice in the Federal Register on February 5, 2024. This notice served as a technical correction to the Code of Federal Regulations, formally acknowledging the Eighth Circuit’s reinstatement of chlorpyrifos tolerances, and allowing its use for the 2024 growing season on all crops effective February 5, 2024. The Eighth Circuit’s decision also referenced EPA’s 2020 Proposed Interim Registration (PID) Review Decision for chlorpyrifos, which identified eleven specific crops for potential continued use of the pesticide. The crops include alfalfa, apples, asparagus, cherries, citrus, cotton, peaches, soybeans, strawberries, sugar beets, and wheat. As discussed below, EPA is now in discussions with chlorpyrifos registrants to cancel its use on all food crops, except for the eleven identified in the 2020 Proposed Interim Registration Review Decision (PID).

Door opens to chlorpyrifos’ expanded use and toxic exposure—‘Existing stocks’ orders

“Since the Final Rule has been vacated—and the tolerances are again in effect—growers can use currently registered chlorpyrifos products on crops consistent with label directions. Products that were cancelled or amended may be able to be used if use is consistent with the existing stocks provisions…”—Chlorpyrifos; Amendment to Existing Stocks Provisions in Kaizen Product Cancellation Orders, A Notice by the U.S. Environmental Protection Agency on September 16, 2024.

When courts defer to EPA’s interpretation of the existing stock provision in the federal pesticide law, a pattern of “existing stock” allowances permit hazards to continue well after a finding of harm or noncompliance. This process contrasts with the issuance of a product recall, which is typically done when pharmaceuticals are found to violate safety standards. In addition to chlorpyrifos, Beyond Pesticides has previously objected to the agency’s expansion of existing stock use for dicamba, dacthal, and paraquat. As this latest example shows, manufacturers have found a short-term workaround to quickly return to selling and distributing chlorpyrifos. Their solution—petitioning EPA for new or amended existing stock orders.

As of September 16, chlorpyrifos can be used on all food crops that were previously subject to the formal revocation of tolerances. According to EPA’s Frequently Asked Questions about the Current Status of Chlorpyrifos and Anticipated Path Forward, the agency intends to issue a new rule to revoke the tolerances for all food commodities except for the 11 uses cited in the December 2020 PID. After providing an opportunity for public comments on PID-referenced crops——anticipated updates are tentatively proposed for 2025. However, this will only apply to specific states under agency review with limits on application rates and methods.

Meanwhile, in an analogous decision despite the finding of harm and EPA’s violation of law in allowing harm associated with the herbicide dicamba’s registration, the continued use of the weed killer through the 2024 growing season is also effectively authorized by the U.S. District Court of Arizona (which vacates EPA’s 2021 authorization for three over-the-top uses of dicamba-based herbicide products). In response, EPA issued an existing stocks order, which means that dicamba will continue to be sold and used through 2024—although it has been linked to environmental and health adverse effects.

As the agency continues to prioritize commercial interests and agricultural continuity over public safety and environmental protection by expanding existing stocks, Beyond Pesticides advocates for immediate discontinuation of pesticide use when risks are identified and emphasizes the availability of safer, profitable alternatives, such as USDA-certified organic farming practices. They advocate for these organic principles to be adopted more broadly to replace the reliance on harmful chemical pesticides like dicamba and chlorpyrifos.

As clearly indicated by the evidence at hand, individual chemical bans are not the strategy for systemic change, nor are they an effective methodology for cultivating a livable future for ourselves and future generations. Given the proven viability and profitability of cost-effective organic production practices, the solution must be the urgent adoption of organic agriculture and land care that eliminates not just chlorpyrifos, but the pesticide treadmill that chemical manufacturers and chemical-intensive agriculture fuels.

Organic management practices build soil health, cycle nutrients naturally, enhance plant resiliency, reduce water use, and do not use petrochemical pesticides or fertilizers. The organic alternative is central to a commitment to both the elimination of practices and products that are petrochemical-based and the ability of organically managed soils to draw down (sequester) atmospheric carbon, which contributes to mitigating global warming and erratic temperatures.

For a detailed analysis, see Beyond Pesticides’ article “Abandoning Science: A look back at the failure to regulate the neurotoxic insecticide chlorpyrifos,” featured in a special edition of Pesticides and You, where the clarion call to action notes that “… states should ban chlorpyrifos compounds . . . should undertake organic management on state-owned lands, and should support producers in transitioning away from chemical agriculture and to organic, regenerative, and sustainable practices.”

As we emerge from a celebration of National Organic Month in September, please continue to take action to strengthen organic locally! >> Tell your governor and mayor to adopt policies that support organic land management.

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

Sources:

EPA’s Momentous Decision to Ban the Weed Killer Dacthal/DCPA: An Anomaly or a Precedent? Beyond Pesticides Daily News, August 8, 2024

EPA and Court Allow Violations and Hazards of Weed Killer Dicamba Under Existing Stock Order, Beyond Pesticides Daily News, March 5, 2024

Oregon Is the Latest State to Step In and Ban Widely Used Neurotoxic Pesticide, Chlorpyrifos, as EPA Stalls, Beyond Pesticides Daily News, February 29, 2024

Celebrated 2021 Ag Ban of Deadly Pesticide, Chlorpyrifos, Reversed by Court Despite Decades of Review and Litigation, Beyond Pesticides Daily News, November 14, 2023

Commentary: Are Children, Agricultural Workers, and the Food Supply Safe with EPA’s Chlorpyrifos Decision? Beyond Pesticides Daily News, August 19, 2021

Abandoning Science: A look back at the failure to regulate the neurotoxic insecticide chlorpyrifos, Beyond Pesticides, Pesticides and You, Special Edition 2020

Widely Used Pesticide in Food Production Damages Children’s Brains—EPA Science on Chlorpyrifos Ignored as Agency Reverses Decision to Stop Insecticide’s Agricultural Use, Beyond Pesticides, Pesticides and You, Winter 2017-2018

What You Need To Know About Chlorpyrifos, Earthjustice, April 9, 2024

Frequently Asked Questions about the Current Status of Chlorpyrifos and Anticipated Path Forward, EPA website