On February 25, 2022, the US Environmental Protection Agency (EPA) announced it has issued a response denying the objections filed against its final rule revoking all chlorpyrifos tolerances (Response). EPA issued the August 18, 2021, final rule in response to the Ninth Circuit Court’s Order directing EPA to issue a final rule in response to Pesticide Action Network North America and Natural Resources Defense Council’s 2007 petition, which requested EPA to revoke all chlorpyrifos tolerances.

After issuing the August 2021 final rule, and consistent with the Federal Food, Drug, and Cosmetic Act (FFDCA), EPA provided an opportunity for any interested party to file an objection to any aspect of the final rule and request a hearing on those objections . Several objections were filed, with concerns ranging from the scope of the revocation of tolerances, the economic and environmental impacts of the revocation, and the implementation timeframe. EPA stated that after careful consideration, it denied all objections, hearing requests, and requests to stay the final rule filed during the period for submitting responses to the final rule.

In addition to its Response, EPA issued letters to the registrants of chlorpyrifos products with food uses confirming revocation of the tolerances and providing options for cancellation and label amendments. In particular, these options include the ability for registrants to submit registration amendments to remove food uses from product labels or submit a voluntary cancellation for products where all uses are subject to the tolerance revocation. For registrations not voluntarily canceled, EPA stated it intends to issue a Notice of Intent to Cancel under the Federal Insecticide, Fungicide, and Rodenticide Act to cancel registered food uses of chlorpyrifos associated with the revoked tolerances. A copy of its Response and the accompanying order in the chlorpyrifos final rule docket is available at EPA-HQ-OPP-2021-0523.

EPA states that this action will be incorporated into the ongoing registration review of chlorpyrifos and it will continue to review the comments submitted on the chlorpyrifos Proposed Interim Decision, draft Revised Human Health Risk Assessment, and draft Ecological Risk Assessment. These documents are available in the chlorpyrifos registration review docket at EPA-HQ-OPP-2008-0850. After considering public comments, EPA will proceed with registration review for the remaining non-food uses.

Additional information on chlorpyrifos is available on our blog and on EPA’s website.

Commentary

It is not surprising that EPA denied all objections to its tolerance revocation decision. Since the earlier decision in 2009 to revoke the tolerances for the insecticide carbofuran, EPA, along with advocates of greater restrictions on pesticide exposures, have found a pathway for terminating pesticide uses while avoiding the significant procedural requirements of FIFRA’s cancellation provisions. The elaborate legal niceties of either approach will likely not quiet those grower groups and others who challenged EPA’s decision in this case.

Of note, in its lengthy Response (51 pages in the Federal Register, 87 Fed. Reg. 11222 (Feb. 28, 2022)), EPA again admits that some uses of chlorpyrifos on certain crops in certain areas are “high benefit” uses that can meet the required safety standards even when using EPA’s most conservative assumptions. Those eleven crop uses were among the many additional uses of the insecticide, and here EPA is explaining its case that as part of its decision, all of the uses on the current label are to be assessed together. At the point in time when EPA most recently assessed chlorpyrifos uses (the 2020 registration review Pesticide Interim Decision), some uses may have been able to meet the standard, but as explained in this notice: “In the final rule, EPA assessed aggregate exposure based on all currently registered uses of chlorpyrifos as required by the FFDCA and consistent with its guidance. “

This will likely be of little satisfaction to growers who produce those crops identified by EPA as meeting the standard.

To affected growers, the revocation of tolerances for the identified crop uses that nonetheless could meet the standard, along with the long-winded denial of objections citing the fine points of the legal procedures, amount – to them – as what Justice Scalia once described as “pure applesauce.” (Ironically, according to EPA’s 2020 assessment, applesauce sourced from New York and Michigan apples would have met the required standards according to EPA’s 2020 risk assessment.) Those groups may decide to continue the legal back-and-forth process for further review of the original decision and now the objection denials.

But the larger question for all registrants and pesticide users, not just chlorpyrifos, is what longer term issues are raised by EPA’s approach.

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