Chlorpyrifos Registrant Announces Production to End

             Corteva, the agricultural chemicals producer spun off in 2019 from DowDuPont, the entity formed by the merger of Dow Chemical and DuPont, announced on February 6, 2020 that it will cease producing chlorpyrifos by the end of the year.

            The continued registration of and scientific defense of chlorpyrifos by the U.S. Environmental Protection Agency (“EPA”) has been under challenge by a wide range of environmental interests, state regulatory agencies and state attorneys general. Use of the insecticide in California in fact became illegal today as a result of action the the California Department of Pesticide Regulation.  Governor Cuomo of New York recently vetoed legislation that would have banned chlorpyrifos, instead directing the Department of Environmental Conservation to promulgate an emergency rule accomplishing the same end. It remains to be seen whether the Department still acts to prohibit use of existing stocks. State attorneys general and environmental organization are pursuing an action in the 9th Circuit Court of Appeals seeking to overturn EPA’s registration.  That litigation is now likely moot.

            This decision marks the end of a 35+ year run for the chemical which ironically at one point was promoted as an alternative termiticide safer than the persistent chlordane which had the termiticide of choice for many years.

 

New York Announces Administrative Elimination of Chlorpyrifos [Updated]

Despite its registration having been upheld by the U.S. Environmental Protection Agency (“EPA”), the insecticide chlorpyrifos continues to face multiple challenges to its continued use. The continued EPA registration continues to be challenged in Court by a collection of states, while California has secured the agreement of major registrants to administratively cancel all registration. Now the New York Governor has directed the Department of Environmental Conservation (“NYSDEC”) to administratively phase out most uses of the ingredient.

In New York, the legislature passed a bill which would in three stages eliminate all uses of chlorpyrifos by December 1, 2021. See S. 5343; A-2477B. Aerial application would be prohibited as of January 1, 2020, following which all uses except applications to apple tree trunks would end as of January 1, 2021. The apple tree use would then end December 1, 2021. In a somewhat contradictory move, rather than signing the legislation, the Governor vetoed it but has directed the NYSDEC to promulgate rules largely mirroring the vetoed legislation. The Governor’s Veto Message stated that pesticides should not be regulated by legislative mandate, but instead by NYSDEC on the basis of science. The Veto Message stated that NYSDEC will act to immediately ban aerial application; most remaining uses are to be eliminated by July 1, 2021.

New York has a procedurally complex rulemaking process. To propose a rule, the moving agency must first secure approval of the State Division of the Budget. A proposed rule is then published, which must be accompanied by a series of documents assessing the impacts of the proposed rule, including a Regulatory Flexibility Analysis, a Rural Area Flexibility Analysis and a Job Impact Statement. If not finalized within a year of publication, a proposed rule expires. In fact, it often consumes most of that year to arrive and publish a final rule.  To achieve the objective of immediately eliminating aerial application, NYSDEC will need to promulgate an emergency regulation, followed by a proposed permanent rule.  The emergency rule will need to be supported by a statement justifying the need for an emergency rule.

Section 24(a) of the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7 USC §136v(a), expressly authorizes states to regulate pesticides more strictly than EPA. That said, a state must still follow its own procedures and meet its own legal standards to support a rulemaking. Although EPA has concluded that chlorpyrifos does not present an unacceptable risk, that decision was arrived at in part by excluding epidemiological data developed by the Columbia University’s Center for Children’s Environmental Health and Mt. Sinai Hospital.  EPA asserts that the data is not valid, complete and reliable data unless EPA is granted access to the underlying raw data.  The study sponsors have refused to supply such information, claiming that to do so would violated subject confidentiality. New York will be free to include that study as a basis for its action without demanding the underlying data and is likely to do so.  Bottom line: even if challenged, done correctly New York’s anticipated rule is likely to be upheld.

With chlorpyrifos on its way out in two major states, it remains to be seen whether chlorpyrifos remains on the market, regardless of the outcome of the litigation.

 

EPA Denies Chlorpyrifos Cancellation Petition; Six States File Challenge in 9thCircuit  

Despite its registration having been upheld by the U.S. Environmental Protection Agency (“EPA”), the insecticide chlorpyrifos continues to face multiple challenges to its continued use. The continued EPA registration is again being challenged in Court by a collection of states, while California is moving ahead to administratively cancel all registration and New York awaits the Governor’s decision on whether to sign legislation phasing out all use.

Petition to Cancel EPA Registrations

A Petition to Cancel the registration of chlorpyrifos was filed in 2007. Its history and related litigation is recounted in the prior blog entry EPA Obtains Stay of Execution for Chlorpyrifos from 9thCircuit Court of Appeals.On March 29, 22017 EPA denied the Petition (See 82 Fed. Reg. 16581) although it expressly reserved decision on several issues. EPA stated that those issues would be addressed in registration review, due to be completed by 2022. Petitioners sought to overturn the denial by filing a Petition for Review in the 9thCircuit U.S. Court of Appeals. On April 19, 2019, the Court had ordered EPA to respond to the merits of the Petition within 90 days.

On July 24 EPA published its final order denying all aspects of the Petition.  EPA contends that the science addressing the risks of chlorpyrifos remains uncertain, and thus there is no legal basis for canceling the registrations and revoking the tolerances. One particular point of contention is epidemiological data developed by the Columbia University’s Center for Children’s Environmental Health and Mt. Sinai Hospital.  EPA asserts that the data is not valid, complete and reliable data unless EPA is granted access to the underlying raw data.  The study sponsors have refused to supply such information, claiming that to do so would violated subject confidentiality.

In response to the Petition denial, six states – California, Maryland, Massachusetts, New York, Vermont and Washington – have again filed a Petition for Review in the 9th Circuit U.S. Court of Appeals.

California and New York Direct Actions

Following up on its earlier announcement, the California Department of Pesticide Regulation (“CDPR”) on August 14, 2019 issued cancellation notices to all California chlorpyrifos registrants. CDPR expressly states that its decision is based upon data from five animal studies. It remains to be seen whether registrants or agricultural interests challenge the proposed cancellations.  On the same day CDPR also appointed an Alternatives to Chlorpyrifos Workgroup to address the ramifications of the withdrawal of chlorpyrifos from the market.

In New York, the legislature has passed a bill which would in three stages eliminate all uses of chlorpyrifos by December 1, 2021. See S. 5343; A-2477B. Aerial application would be prohibited as of January 1, 2020, following which all uses except applications to apple tree trunks would end as of January 1, 2021. The apple tree use would then end December 1, 2021.

The Legislature has yet to send the passed bill to the Governor. Once the bill is transmitted to the Governor, the bill must be signed within thirty days, or it will automatically lapse in a so-called “pocket veto.” While the New York Farm Bureau is on record opposing the legislation, the Governor has given no indication of whether he will sign the bill. If he does so, opponents would likely have no recourse. Section 24(a) of the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7 USC §136v(a), expressly authorizes states to regulate pesticides more strictly than EPA. That authority leaves opponents with little ground upon which to mount any challenge to a legislative action.

 

Challenges to Chlorpyrifos Grow

             In the ongoing saga of the organophosphate insecticide chlorpyrifos, its registration is facing multiple new challenges on a variety of fronts. On the Federal level, attention is focused on the years-long pending Petition to Cancel filed with the U. S. Environmental Protection Agency (“EPA”) by the Natural Resource Defense Council (“NRDC”) and the Pesticide Action Network of North America (“PANNA”). On the state level, the California Department of Pesticide Regulation (“CDPR”) has announced its intention to cancel all registrations of chlorpyrifos, and the state of New York appears headed to enacting a legislative ban on its registration in New York.

Petition to Cancel EPA Registrations

            The Petition to Cancel was filed in 2007.  Its history and related litigation is recounted in the prior blog entry EPA Obtains Stay of Execution for Chlorpyrifos from 9thCircuit Court of Appeals. On 2017 EPA had announced that, contrary to staff recommendation to cancel the registrations of chlorpyrifos, it was denying the Petition. See 82 Fed. Reg. 16581 (April 5, 2017).  EPA announced that more data was required to make a decision and therefore a final determination on the safety of chlorpyrifos the review would not be completed until 2022.

            Petitioners, joined by five states and the District of Columbia, sought to have the 9thCircuit Court of Appeals compel EPA to grant the Petition and cancel the registration. Initially a three-judge panel of the 9thCircuit ordered EPA to cancel the registrations and tolerances for chlorpyrifos. See League of United Latin American Citizens et al v. Wheeler, 899 F. 3d 814 (9thCir.). EPA then sought rehearing by the full 9thCircuit. Following argument before the full panel, the Court on April 19, 2019 revoked the prior opinion and issued a Writ of Mandamus ordering EPA to respond to the Petition within 90 days, making the deadline approximately July 19.

           Given that EPA determined in its Revised Human Health Hazard Assessment and Drinking Water Exposure Assessment for Chlorpyrifos [November 2016] to revoke all food residue tolerances for chlorpyrifos, EPA will face an uphill challenge if it wishes to maintain the chlorpyrifos registrations. It is certain that anything short of a full cancellation will bring this matter back before the 9thCircuit.

California and New York Actions

            California and New York have determined that they will not await the outcome of EPA determination on the Petition and through different channels are both moving to terminate chlorpyrifos in their respective states. 

           In California, CDPR announced on May 8, 2019 that it intends to initiate cancellation proceedings for all chlorpyrifos registrations. It remains to be seen whether registrants or agricultural interests challenge the proposed cancellations.

           In New York, which is one of the intervenor states in the LULAC matter, as of April 30, 2019, both houses of the legislature have passed a bill which would in three stages eliminate all uses of chlorpyrifos by December 1, 2021. See S. 5343; A-2477B. Aerial application would be prohibited as of January 1, 2020, following which all uses except applications to apple tree trunks would end as of January 1, 2021. The apple tree use would then end December 1, 2021. While the New York Farm Bureau is on record opposing the legislation, the governor has given no indication of whether he will sign the bill. If he does so, opponents would likely have no recourse. Section 24(a) of the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7 USC §136v(a), expressly authorizes states to regulate pesticides more strictly than EPA. That authority leaves opponents with little ground upon which to mount any challenge.

May 10, 2019