On October 30, 2015, the U.S. Environmental Protection Agency (EPA) announced that it is requesting comments on a proposal to revoke all tolerances for the insecticide chlorpyrifos in response to a U.S. Court of Appeals for the Ninth Circuit opinion issued on August 10, 2015. This opinion granted a writ of mandamus requested by the Pesticide Action Network North America (PANNA) and the Natural Resources Defense Council (NRDC) (together, Petitioners) to require that EPA act in response to Petitioners’ 2007 administrative petition, specifically to do one of the following by October 31, 2015: (a) cancel the registrations of all pesticides containing chlorpyrifos; (b) issue a proposed or final rule to revoke chlorpyrifos tolerances; or (c) issue a full and final response to the administrative petition to cancel chlorpyrifos. PANNA and NRDC petitioned EPA to revoke all chlorpyrifos food residue tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA) and to cancel all registrations of products containing chlorpyrifos under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). More information on the opinion is available in our blog item Circuit Court Grants Writ of Mandamus Requiring EPA to Act on Petition to Ban Chlorpyrifos.
In its announcement, EPA states that it “is not denying the petition because we are unable to make a safety finding based on the science as it stands currently. EPA is not issuing a final revocation rule because we have not proposed it and have not completed our refined drinking water assessment, leaving certain science issues unresolved.” EPA is, however, proposing to revoke all chlorpyrifos tolerances based on the science as it stands. As the court also required EPA to provide the timeline for a final rule should EPA issue a proposed revocation by October 31, EPA notified the court of an anticipated release date of the final rule for December 2016. EPA will release a completed hazard assessment and a completed drinking water analysis for comment prior to issuance of a final rule. The non-completion of the hazard assessment and drinking water analysis opens the possibility that EPA could resolve the “science issues” without the need for tolerance revocation or limited revocations, particularly as the drinking water assessments of concern are in very specific and limited watersheds. EPA is currently performing additional analysis related to its hazard assessment in order to make certain that any final decision protects infants and children. Once completed, if warranted, it would inform a final tolerance revocation rule.
EPA further states that based on its current analysis, there do not appear to be risks from exposure to chlorpyrifos in food, but, when those exposures are combined with estimated exposure from drinking water in certain watersheds, it cannot conclude that the risk from aggregate exposure meets the FFDCA safety standard. EPA has determined that safe levels of chlorpyrifos may be exceeded in parts of the United States for people whose drinking water is derived from some small vulnerable watersheds where chlorpyrifos is heavily used. If the tolerances are revoked, EPA would cancel the associated food uses of chlorpyrifos.
Industry does not agree with the analyses and proposal to revoke the tolerances. Many questions have been raised regarding the use of a 10X Food Quality Protection Act (FQPA) safety factor based on epidemiology studies. If the 10X FQPA safety factor were reduced to one (the value used in previous chlorpyrifos assessments) or three, the results of the risk assessment would be very different.
Additional information, including the pre-publication version of the proposed rule, is available here.
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