EPA plans to cancel all remaining food uses of chlorpyrifos
Several chlorpyrifos registrants have requested that the EPA cancel certain uses of the insecticide as well as certain product registrations wholesale. In addition, the EPA has stated its intent to cancel all registrations of chlorpyrifos for food uses, targeting the one company that did not voluntarily cancel its registration.
BY WALKER LIVINGSTON, ESQ DEC 15, 2022 11:31 AM EST
Regulatory background
- Chlorpyrifos is an organophosphate insecticide utilized to control certain pests on foliage and in soil. Chlorpyrifos use dates back to 1965 and has been reviewed several times by the EPA. In 2000, certain chlorpyrifos producers voluntarily entered into an agreement with the EPA to phase out or modify certain uses of chlorpyrifos, including most homeowner uses and all uses of the insecticide on tomatoes.
- In 2020, the EPA released several draft risk assessments for chlorpyrifos, including the draft ecological risk assessment, the third revised human health risk assessment, and an updated chlorpyrifos refined drinking water assessment.
- On April 29, 2021, the Ninth Circuit Court of Appeals ruled that the EPA’s denial of 2007 petition asking the EPA to prohibit foods that contain residue of the insecticide chlorpyrifos was arbitrary and capricious, and that the EPA could not leave tolerances in effect without a new safety finding after it became aware of “genuine concerns of safety” of an existing tolerance. Although the EPA had recognized that when pregnant mothers are exposed to chlorpyrifos residue, this likely harms infants in utero, the EPA declined to take final action on the 2007 Petition for more than a decade.
- The EPA revoked all tolerances for chlorpyrifos on food on February 28, 2022, meaning that there are no allowable residues of chlorpyrifos on food where the insecticide was applied on or after February 28, 2022.
- The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) governs the registration, distribution, sale, and use of pesticides and herbicides in the U.S. Under FIFRA section 3(g), each pesticide is re-reviewed every 15 years.
- FIFRA section 6(f)(1) provides that a pesticide registrant may request at any time that its registration be cancelled or amended to terminate specific registered uses. The EPA must publish notice of this receipt in the Federal Register and must also provide the public a 30-day comment period on the request for voluntary cancellation. The EPA must normally also provide a 180-day comment period for voluntary cancellation or termination requests unless the registrants waive the comment period, which they have done here.
Federal register notice on request to voluntarily cancel certain chlorpyrifos uses
- On December 13, 2022, the Environmental Protection Agency (EPA) published that ADAMA US, Corteva Agriscience, and Winfield Solutions, LLC requested that certain product registrations and uses of chlorpyrifos be cancelled. The requests for cancellation of various products include Lorsban Advanced (and many other Lorsban-derived products), Tundra Supreme, and CPF 15G.
- The registrants requested that specific uses for chlorpyrifos in Pyrinex Chlorpyrifos Insecticide, Chlorpyrifos 4E AG, and Vulcan be terminated. Registrants requested that the Pyrinex registration terminate specific uses for the insecticide on agricultural crops such as apples, leafy greens in the Brassica genus, and strawberries as well as commercial livestock housing and tobacco. Chlorpyrifos 4E AG and Vulcan have similar long lists of requests to terminate uses.
- The federal register notice also discusses the EPA’s provisions for disposing of existing stocks of the registered pesticide. The EPA proposed several provisions in its final rule if it follows through with the requests for voluntary cancellation. Most importantly, the EPA proposes prohibiting the use of all existing stocks of chlorpyrifos products identified in the Federal Register notice on foods, but still allowing the use on non-food uses. As the EPA let all chlorpyrifos tolerances for residues on food expire, it would be “inconsistent with the purposes of FIFRA” to allow the use after the registrations are cancelled.
EPA notice of intent to cancel registrations
- On December 14, 2022, the EPA published a notice of intent to cancel the remaining registrations for chlorpyrifos registrations for food. In early March 2022, the EPA sent letters to chlorpyrifos registrants confirming that the Agency had revoked the tolerances and recommending that the registrants either voluntarily cancel the registration or seek to amend the label. Of the chlorpyrifos registrants who received the letter, all submitted a voluntary cancellation notice except for Gharda. The EPA noted that Gharda had submitted certain requests for voluntary cancellation, but the requests did not “fully align with the revocation of chlorpyrifos tolerances” and it was therefore issuing the notice of intent to cancel.
- Gharda may choose to voluntarily cancel its registrations within 30 days of the EPA issuing the notice of intent, as the current registrations include labeling for use on food. The EPA may also choose to cancel only those uses related to food in its final order.
Comment period and future final rule
- The EPA has opened a comment period on the proposed cancellations until January 12, 2023. Comments may be submitted via the chlorpyrifos docket linked here (the docket for the Gharda notice of intent will be live at EPA-HQ-OPP-2022-0417) It is unlikely that the EPA will see substantive comments on the proposed cancellations, and the Agency will likely process those cancellations relatively quickly after the close of the comment period. When the EPA processes the cancellation, it will post a final cancellation order in the Federal Register.
- Gharda may request a hearing on the notice of intent by January 13, 2023, which must be filed with the Hearing Clerk in the EPA’s Office of Administrative Law Judges.
Contains previous research by Walker Livingston.
To contact the author of this analysis, please email Walker Livingston ( [email protected])
To contact the editor of this analysis, please email Patricia Iscaro ( [email protected])
Key Documents and Dates
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