The EPA issued an order on April 5, 2017, denying a 2007 petition (the “Cancellation Petition”) by the Pesticide Action Network and the Natural Resources Defense Council that sought to revoke all tolerances under section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA) and to cancel all registrations under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) for pesticide products containing the active ingredient chlorpyrifos. Chlorpyrifos is a broad-spectrum, chlorinated organophosphate insecticide that has been registered for use in the United States since 1965. By pounds of active ingredient, it is the most widely used conventional insecticide in the country.

The 2007 Cancellation Petition alleged that the EPA ignored evidence regarding potential dangers from the use of chlorpyrifos and that the EPA over-relied on data provided by registrants of chlorpyrifos products. The Cancellation Petition caused lengthy court proceedings between the EPA, the Pesticide Action Network and the Natural Resources Defense Council regarding whether the EPA had adequately assessed the safety of pesticide products containing chlorpyrifos. Despite the EPA providing partial interim responses to the Cancellation Petition in 2012 and 2014, the 9th Circuit Court of Appeals ultimately ordered the EPA to issue a “final” response to the Cancellation Petition by no later than March 31, 2017.

In response, the EPA issued its order denying the Cancellation Petition in full. According to the EPA, it ultimately premised its order on its conclusion that more time is needed to study the effects of chlorpyrifos. Because the EPA is not required by FIFRA to complete its registration review of chlorpyrifos products until Oct. 1, 2022 (despite the EPA’s prior policy decision to complete the registration review sooner), the EPA simply denied the Cancellation Petition and claimed it will reach a final decision on the safety of chlorpyrifos sometime before its Oct. 1, 2022, deadline under FIFRA. The EPA’s order stated that while the 9th Circuit could (and did) require the EPA to provide a “final” response granting or denying the Cancellation Petition, the 9th Circuit lacked the authority to force the EPA to complete its registration review for chlorpyrifos prior to the 2022 deadline imposed by FIFRA.

The Bottom Line

The EPA’s order, which potentially leaves open the registration status of chlorpyrifos products for another five years, has not gone over well with the Pesticide Action Network or Natural Resources Defense Council. Since the EPA issued its order, both entities have sought further relief with the 9th Circuit Court of Appeals, arguing that the EPA’s order fails to comply with the 9th Circuit’s requirement that the EPA provide a “final response” to the Cancellation Petition. Given the significant use of chlorpyrifos products in the U.S. (both historically and currently), this ongoing dispute will continue to garner attention in the pesticide industry.

The Federal Register Notice containing the EPA’s order can be accessed here. Objections or requests for a hearing on the EPA’s notice must be received by the EPA on or before June 5, 2017.