Although a federal judge has made some favorable rulings on the National Resources Defense Council-EPA Consent Agreement, Congress may need to provide oversight and perhaps legislation to make sure EPA uses sound science in reassessing tolerances of registered pesticides.
That was the message the board of directors of the Southern Crop Production Association gave to members of Congress and their staffs during the SCPA's annual day of Capitol Hill visits in Washington May 10.
Farm organizations and industry members were pleased when Federal Judge Charles Legge of the Northern District of California ruled that the NRDC-EPA Consent Agreement must be published on the Internet and that EPA must receive comments on the agreement through May 21.
Judge Legge has scheduled a June 14 hearing on the Consent Agreement, which was signed by former EPA Administrator Carol Browner on the last day of the Clinton administration. Opponents of the agreement are hopeful the judge will overturn it.
“The most egregious element of the agreement is that it sets short time lines not visualized in the Food Quality Protection Act and would force EPA to take actions not based on good science simply to comply with the deadlines,” said Ed Duskin, executive director of the Southern Crop Production Association in Dawson, Ga.
“This would mean utilizing worst case scenarios even when not justified. There would be no time for data call-ins or validation of test protocols necessitated under the FQPA regulatory requirements.”
The consent agreement is the result of a lawsuit filed by the National Resources Defense Council and other environmental groups on Aug. 3, 1999. In it, the environmental organizations accused EPA of failing to meet the pesticide tolerance reassessment schedules laid out in the Food Quality Protection Act of 1996.
The Consent Agreement requires EPA to issue a preliminary risk assessment for the cumulative effects of all 39 organophosphate pesticides by Dec. 1. The 39 include many compounds commonly used in cotton and other row crops.
By Aug. 3, 2002, according to the agreement, EPA must issue a revised cumulative risk assessment, which could become the basis for eliminating some or all of the tolerances for many of those pesticides.
Although the American Crop Protection Association, which represents the farm chemical industry, the National Cotton Council, American Farm Bureau Federation and other groups had filed petitions seeking to be heard on the lawsuit, Ms. Browner decided to enter into the consent agreement solely with the NRDC.
“The ACPA and the other pro-industry organizations have asked the judge not to approve the agreement because we feel we did not receive a hearing,” said Duskin. “Hopefully, the judge will take this into consideration.”
ACPA and the other groups had also been hopeful that new EPA Administrator Christine Todd Whitman would significantly amend the consent agreement after she took office, but the EPA legal staff advised her that she had little flexibility to change or withdraw from the consent agreement.
Many of the congressional staff members visited by SCPA board members expressed concerns about the new timetable and voiced support for legislation that would force EPA to follow more realistic timetables for reassessing pesticide tolerances.
“We stressed that the Food Quality Protection Act calls for several tests heretofore not required — tests so new in concept that there was no previous base of scientific information, which could be used directly or extrapolated to establish the tests,” said Duskin.
He said the farm chemical industry has worked diligently to develop accepted protocols, but on a different track from EPA. “We are trying to explore and reconcile differences and to shore up weak points,” he noted.
“All of this is extremely time consuming. If the EPA-NRDC deadlines are to be met, approval of these test protocols and subsequent tests conducted under them will be impossible. This would force EPA to establish default worst case assumptions, which we believe, would result in a lot of good, efficient safe products being denied use by the grower.”
One decision does not an administration make, according to a congressional staff member visited by the SCPA teams.
“That decision (on the NRDC-EPA Consent Agreement) was early in this administration,” said Brent Gaddis, staff director of the House Agriculture Subcommittee on Operations, Oversight, Nutrition and Forestry. “We want to give them time before we start pushing new legislation at them.”