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District Court Ruling Challenges EPA’s Enforcement Process on Pesticides

(Beyond Pesticides, September 13, 2011) A recent federal district court ruling is the latest in the series of setbacks against the U.S. Environmental Protection Agency (EPA’s) ability to enforce the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA). The decision could affect at least five Stop Sale, Use or Removal Orders (SSUROs) issued to pesticide manufacturers since 2006. Even though the case hinged on a procedural issue, the ruling is another hindrance for the agency’s struggle to take action on registered pesticides that it believes are in violation of FIFRA without launching a formal cancellation process, a process that EPA has historically sought to avoid because it views it as lengthy and costly. While this case may hinge on the narrow need for rulemaking to delegate proper enforement authority under FIFRA, advocates have urged the agency’s broader use of its cancellation authority in an effort to bring the chemical industry in line with public health and environmental standards and sound science. With more rigorous use of its cancellation authority, pesticide manufacturers will have a difficult time with its challenges in the face of administrative findings by the agency. and over time ensure a higher degree of compliance.

The case, American Vanguard Corporation (AMVAC) v. Jackson was filed by the company American Vanguard, which claims that it lost $20 million in annual business when its pesticide product, pentachloronitrobenzene (PCNB) was issued a stop order. EPA signed the order on August 12, 2010 after it became aware of an impurity in the golf course pesticide. PCNB exposure is associated with thyroid hypertrophy and hepatocellular hypertrophy and hyperplasia in rats, and these are the primary effects used to evaluate human health risks. Because of its effects on the thyroid gland, specifically in enhancing secretion of thyroid hormone, PCNB is suspected of being an endocrine disruptor. PCNB is also classified as a possible human carcinogen.

Under Section 13(a) of FIFRA, EPA may issue a SSURO to any person who owns, controls, or has custody of a pesticide or device that the agency has reason to believe is in violation of any FIFRA provision or has been or is intended to be distributed or sold in violation of the act. EPA may issue such orders based on only a reasonable belief of a FIFRA violation.

However, U.S. District Court for the District of Columbia Chief Judge Royce Lamberth of the AMVAC case ruled that the division of EPA’s Office of Enforcement and Compliance Assurance (OECA) waste and chemical division that has routinely issued SSUROs for the agency since 2006 has done so without delegated authority under the pesticide law, rendering such orders invalid.

The judge in his Aug. 17 order determined that the waste and chemical had never received delegated authority by the assistant administrator of OECA. The ruling said EPA must go through a formal rulemaking process to re-delegate the authority to the director of the waste and chemical decision.

The ruling would affect orders issued through the office at EPA headquarters but not those issued by the EPA regions, including the most recent order to stop the sale and use of the herbicide Imprelis, which is responsible for a rash of tree deaths across the Midwest, amounting to millions of dollars’ worth of damage. Because EPA Region III issued the order, it is unaffected by the AMVAC ruling, which only impacts orders issued by EPA headquarters’ waste and chemical division of OECA.

In a 2009 FIFRA Enforcement Response Policy document issued by OECA’s waste and chemical enforcement division, the agency says, “A SSURO is among the most expedient and effective remedies available to EPA in its efforts to prevent illegal sale, distribution and use of pesticides,” because it does not require the agency to go through the courts and is generally an easier enforcement channel to go through than seizure of a product.

Source: Inside EPA


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