Greens Give EPA ‘a Swift Kick in the Butt’

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     SAN FRANCISCO (CN) – The Environmental Protection Agency endangers public health by refusing to require disclosure of falsely characterized “inert” ingredients in pesticides, environmentalist claim in court.
     The Center for Environmental Health, Beyond Pesticides and Physicians for Social Responsibility sued the EPA and its Administrator Gina McCarthy in Federal Court on Wednesday, under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
     “What we’re challenging is EPA’s inaction despite a body of evidence” that inert pesticide ingredients can be just as harmful as active ones, plaintiffs’ attorney Yana Garcia told Courthouse News.
     “Chemicals listed as inert are not inert,” she said. “Consumers think the inert ingredients are water or other benign substances used to mix the chemicals, but many are carcinogenic and others have acute impacts and still others have impacts that are currently unknown.”
     Though FIFRA includes provisions to protect pesticide manufacturers’ trade secrets, it gives the EPA the authority to disclose ingredients it considers hazardous, Garcia said.
     “It remains clear that FIFRA doesn’t let trade secrets trump health. But the EPA is kind of hiding behind this provision in the statute to shirk its responsibility to protect people and the environment” from pesticides, Garcia said.
     Many pesticides are extremely toxic but are used every day in personal gardens and agricultural cropland, according to the complaint.
     Federal law tasks the EPA with minimizing the risk of exposure to the toxic chemicals in pesticides by, among other things, listing the names and percentages of each active ingredient on the label.
     “Inert ingredients, however, are required to be identified only by their total combined percentage quantity, unless EPA finds that disclosure of their name and individual percentage quantities is ‘necessary to protect against unreasonable risk’ to humans or to the environment,” the complaint states.
     The environmentalists say this is problematic because inert ingredients may be no less toxic than the active ones, and may not truly be inert, “depending on the particular formula” of the pesticide.
     A chemical is called inert if it does not react, or reacts only with great difficulty, with other chemicals.
     Pesticide manufacturers and the EPA have identified more than 370 commonly used hazardous inert ingredients, including several known and suspected carcinogens, chemicals that cause reproductive and neurological disorders, and 96 potentially toxic chemicals classified as “high priority for testing,” according to the complaint.
     Worse still, the groups say, many of these hazardous ingredients enhance the absorption and inhalation rates of active ingredients, render protective gear such as gloves less effective, and make it difficult to remove pesticides from clothing.
     Failing to list each inert ingredient and its concentration on pesticide labels gives people a “false sense of safety” and prevents them from choosing less harmful products, according to the complaint.
     It also prevents medical professionals from accurately diagnosing and treating patients exposed to certain inert chemicals, the groups say.
     “We are also concerned about pesticide drift, and the effects on bees and other pollinators,” Garcia said.
     The EPA initiated rulemaking on labeling of hazardous pesticide ingredients in 1984. But in 1987, it abandoned its draft rule in favor of what Garcia called “a complex, wonkier list development system.”
     The system categorized around 200 inert ingredients into three lists, or tiers, based on relative toxicity.
     List one included more than 50 ingredients that had to be disclosed. The other two lists included ingredients that more further testing to assess their toxicity, the complaint states. None of the ingredients on list one are on the market anymore.
     “It matters that people are given the choice to buy less hazardous substances substances,” Garcia said.
     But after adding three ingredients to list one in 1989, the EPA “dropped the ball” on labeling inert ingredients, Garcia said.
     In 2006, the plaintiffs along with attorneys general of 14 states, including California and New York, petitioned the EPA to reinitiate the disclosure rulemaking.
     When the EPA had not taken action three years later, the Center for Environmental Health sued it to force it to perform its duties.
     The EPA reinitiated rulemaking in December 2009 and issued a statement acknowledging the importance of educating the public about hazardous inert ingredients in pesticides – but it didn’t do anything to implement label disclosures, the plaintiffs say.
     “It reinitiated rulemaking in 2009 but didn’t complete it, so we filed another lawsuit,” Garcia said. “At that time the EPA reversed course and claimed that people don’t read the labels and don’t care what is in pesticides, so why bother labeling?”
     The EPA insisted that the process would be a “very complex, lengthy and resources intensive activity” that could take years to complete, but it has no evidence to support that, the environmentalists say in the lawsuit.
     “Plaintiffs and the public have waited for over 10 years, and continue to wait today, for some form of action on the part of EPA to address the serious risks of exposure to hazardous chemical ingredients contained in pesticide products,” the complaint states.
     Garcia said she is “confident” that her clients’ “legal hook is strong and clear.”
     “At its core, the EPA is falling down on the job. We want to give it a swift kick in the butt,” she said.
     An EPA spokeswoman told Courthouse News in an email that the agency “will review and respond appropriately” to the lawsuit.
     The groups seek declaratory judgment that the EPA abandoned its rulemaking process in violation of FIFRA, and want the court to remand the issue to the EPA and retain jurisdiction over the matter until the agency does its job.
     They also want court costs and attorneys fees.
     Attorney Garcia is with Earthjustice in San Francisco.