Federal Pesticide Control Law: The Need for Reform

Jay Feldman

Mr. Feldman is the National Coordinator of the National Coalition Against the Misuse of Pesticides.

Just as surely as the cropdusters appear on the spring horizon to spray their mist of pesticides on the nation's agricultural lands, helicopters hover over forest lands to drop their mix of insect and weed killers, and lawn care services douse the suburbs with chemical agents, the Agriculture Committees in the United States Congress approach their seasonal task of reauthorizing the federal law intended to control those deadly sprays. Neither the start of the spray season, nor the seasonal legislative consideration of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is without controversy.

One of the most controversial and distressing aspects of the nation's 2.7 billion pounds of annual pesticide use is the alarming extent to which these toxic chemicals — which, unlike most toxics, are intentionally and legally disseminated into the human environment — remain untested for carcinogenic, mutagenic, and teratogenic effects. A report published in 1982 by the staff of a congressional subcommittee confirmed a decade of similar investigations, finding that 79 to 84 percent of pesticides lacked adequate carcinogenicity testing, 90 to 93 percent lacked adequate mutagenicity testing, and 60 to 70 percent lacked adequate testing for their tendency to cause birth defects.¹ More recently, in 1984, the National Academy of Science found that complete health hazards assessments for pesticides and inert ingredients of pesticide formulations are possible for only 10 percent of pesticides in use.² Many other problems exist, including a poor EPA enforcement record, extensive use of special exemptions from product registration requirements, drawn out administrative safety reviews, inadequate applicator training and certification, and major use problems that result in food, groundwater, and living and working space contamination.

These inadequacies in FIFRA and its implementation have led to documented human hardship in certain groups and increased exposure of the general population to untested poisons. A January 1981 report issued by the Council on Environmental Quality, Chemical Hazards to Human Reproduction³ cites various studies of male and female workers exposed to pesticides. These studies report impotence, chromosome aberrations, infertility, miscarriages and other adverse effects on reproduction. A University of Iowa study in 1982 found that Iowa farmers faced greater risks of six types of cancer than city dwellers.⁴ According to the researchers, the cancer rate is an occupational hazard of farming not related top smoking and is confirmed by other studies around the world.

Despite these problems and unknowns, exposure to pesticides is widespread and growing. The public is routinely exposed to pesticides through the food supply. A 1983 study by the Natural Resources Defense Council found that 44 percent of the fresh fruit and vegetables they sampled contained residues of one or more of 19 different pesticides. Forty-two percent of the samples with detectable pesticide residues contained residues of more than one pesticide; several samples had four different pesticides present.⁵ A study on Long Island, New York found that of the 1,100 homes surveyed 33 percent were contaminated with chlordane, which is used for termite control.⁶ Ground-water contamination has been detected by EPA in 22 states.⁷ Community spray programs for mosquito control and other pests are widespread as is forestry and right-of-way spraying. Chemical lawn services have been growing. One such company, Chemlawn, according to news reports, has increased annual sales from $87 million in 1979 to $227.7 million in 1984 with 1.3 million customers in 42 states and Canada.⁸ This, on top of normal household use of inadequately tested pesticide products, suggests astoundingly high rates of pesticide exposure.

A Legislative Proposal for Reform

The congressional agriculture committees, never sympathetic to the public interest view on the reform of FIFRA, have consistently failed to come up with amendments that address these problems.⁹ In response, a coalition of public interest groups has drafted and promoted reform legislation, known as the Harper's Ferry Bill after the historic location where it was drafted.¹⁰ The original bill was introduced in the 98th Congress as H.R. 3818 and S. 1774, and has been redrafted and streamlined for [15 ELR 10133] introduction by Senator William Proxmire (D-Wis.) and Representative George Brown (D-Cal.) in the 99th Congress.

The House committee, at least, appears ready to take up FIFRA issues again. Both Representative Berkley Bedell, Chairman of the Department Operations, Research, and Foreign Agriculture Subcommittee, and Representative Pat Roberts, ranking Republican on that subcommittee, have expressed interest in moving ahead with legislation this session. Following are eight goals that the coalition legislation seeks to accomplish.

Establish a Community Right-to-Know

Given the dangers associated with production and use — dramatically illustrated in Bhopal, India — people have a right to know what is being produced in their communities, and what the risks to health and environment and potential for harmful exposure are. In addition, information is needed on the distribution of pesticides in commerce according to agricultural, household, and other use so that hazards can be monitored. Finally, while the Supreme Court in Ruckelshaus v. Monsanto Company¹¹ resolved the constitutionality of releasing pesticide health and safety data to the public, the present procedures do not facilitate open discussion of the released material.

Reform legislation would: (i) establish a federal right to know, requiring pesticide manufacturers to provide information on identity and amount of pesticides produced, including intermediate products used in production; (ii) provide public access to underlying health and safety test information on pesticides prior to EPA registration or food tolerance decisions, with adequate time for public comment; (iii) require disclosure on pesticide labels of the identification of "inerts" or secret ingredients that may be chemically active and require full evaluation of whether inerts cause unreasonable adverse effects; (iv) allow free and widespread disclosure and dissemination of pesticide acute and chronic health studies, while protecting proprietary interests of pesticide manufacturers through civil and criminal penalties for improper use of disclosed data; and (v) require the maintenance of basic spray records by commercial applicators for a period of time established by the Administrator.

Require Complete Scientific Health and Safety Testing of All Pesticides on the Market Within a Date Certain

Incomplete pesticide health and safety reviews have plagued EPA since the 1972 amendments to FIFRA introduced requirements for a full battery of acute and chronic tests for product registration. At the time, a 1975 deadline was imposed on the reregistration or reevaluation of the safety of all pesticide products. The deadline was extended to 1977 and then repealed. Complete and prompt reevaluation of pesticides to assure compliance with modern safety standards is in the interest of users, consumers and the chemical industry. Of the 600 basic active ingredients that require reregistration, for only 98 has EPA even assessed its file information and issued reregistration standards, which identify additional tests required to complete a reevaluation. At a projected rate of 25 registration standards a year, final safety assessments are decades off. Meanwhile, FIFRA allows products with inadequate data bases to get into commerce or remain on the market.

Reform legislation would: (i) require EPA to identify all existing data gaps for 300 pesticide active ingredients by July 1, 1986 and for all remaining actives by July 1, 1987; (ii) require industry to fill data gaps within a reasonable time, not to exceed four years and, if manufacturers fail to withdraw products or commit to the generation of studies, provide EPA with authority to generate necessary studies and charge registrants to cover the costs; (iii) authorize the cancellation of registrations or the revocation of tolerances that are based on false, misleading or inaccurate health and safety test data; and (iv) eliminate the use of conditional registrations for new uses of existing chemicals or for the registration of new chemicals, thus insuring full evaluation of potential hazards prior to the introduction of most new registrations.

Prevent Pesticide-Induced Birth Defects

Pesticide-caused birth defects, although often detected in laboratory studies, do not trigger quick regulatory action. In fact, even though laboratory animal data strongly indicates the teratogenic potential of some chemicals, EPA too often waits to take action until there is evidence of human effects. For instance, laboratory studies of 2,4,5-T indicated the teratogenic potential of this phenoxy herbicide years prior to regulatory action being taken.

Reform legislation would prevent the registration of pesticides shown to cause a statistically significant adverse effect on parental reproductive performance and the growth and development of offspring, thus releasing EPA from responsibility to determine a safe exposure level.

Increase Protection for Workers and the Public Generally

EPA has historically lacked the general ability to protect workers and the public from dangerous use of pesticides. For instance, the drifting of pesticides has never been adequately controlled by product labels and those handling the most dangerous class of pesticides are not adequately trained and supervised. The issuance of special local need permits for pesticides not fully tested increases the risk of exposure to pesticides that are not in compliance with modern safety standards. Similarly, standards for indoor exposure to pesticides have never been developed by the Agency, and thus the effects of low level chronic exposure to products used around the home have not been adequately assessed. Finally, unlike most federal environmental [15 ELR 10134] statutes, FIFRA contains no citizen suit provision. This lack of redress is particularly problematic since EPA and state enforcement efforts are widely known to be inadequate.¹²

Reform legislation would: (i) establish a worker protection program at EPA, with authority to adopt worker safety regulations and establish a cooperative enforcement agreement with the Occupational Safety and Health Administration; (ii) control proliferating "special local need" registrations by denying those that have been granted special status in five or more states, authorizing denial on the basis of lack of essentiality, and enabling suspension of state authority in this area if state does not exercise adequate controls; (iii) require commercial applicators to utilize the best available technology to avoid drift; (iv) authorize EPA to establish indoor exposure standards for pesticides; and (v) establish a citizen suit provision to allow individuals to sue for damages or equitable relief in the United States District Courts for violations of FIFRA.

Streamline EPA Review Procedures to Assure a Timely Regulatory Response to Identified Problems

The ability of EPA to respond to identified pesticide problems is hampered by requirements for drawn-out proceedings that unnecessarily extend risk to human health and the environment. Furthermore, existing "unreasonable adverse effects" language and a duty to consider product benefits appear to preclude safety review determinations, which should be based on a "substantial question of safety." Meanwhile, public participation in cancellation decisions is not allowed.

Reform legislation would: (i) establish a "substantial question of safety" threshold for EPA's initiation of cancellation proceedings; (ii) repeal the so-called 1978 "Grassley-Allen" amendment to FIFRA to enable EPA to initiate a special review of pesticides after considering the pesticide's risks alone; (iii) provide standing for citizens to challenge cancellation decisions along with others "adversely affected by the notice;" (iv) establish informal cancellation hearings with restrictive time limitations in order to speed up the review process; (v) close registration loopholes for pesticides which have been cancelled, suspended or voluntarily withdrawn because of health or environmental concerns; and (vi) repeal taxpayer indemnification of pesticide companies for losses incurred as a result of emergency suspensions in order to retain already limited Agency resources and remove a powerful disincentive to recall dangerous products.

Prevent Pesticide Contamination of Groundwater

According to EPA, 16 different pesticides have been detected in the groundwater of 23 states. For instance, Ethylene dibromide (EDB) has been found in the groundwater of nine states, and the chemical aldicarb (Temik), used to kill root worms or nematodes, has been found in the groundwaters of over a dozen states after assurances were provided to EPA that the compound would not leach. The California Assembly Office of Research, with a more intensive monitoring program, has detected 57 different pesticides in the groundwater of 28 counties.¹³

Reform legislation would require that upon determining the presence of pesticide contamination of groundwater due to agricultural use, the Administrator issue a notice of intent to cancel the use of that pesticide unless (a) the affected state has developed and implemented a plan to prevent additional groundwater contamination, or (b) the registrant has amended the pesticide label to prevent additional groundwater contamination.

Strengthen Provisions Governing Residues on Imported Food and the Exportation of Pesticides

U.S.-produced pesticides severely restricted in the United States or not registered and fully tested for health and environmental effects are routinely exported. Current United States pesticide policy allows for a double standard of protection — one for domestic use and a weaker one for export. According to 1981 Oxfam figures, developing countries sustain at least half of the estimated 750,000 pesticide annual poisonings and two-thirds of the 13,800 deaths. This occurs despite the fact that these countries use only one-sixth of the pesticide produced worldwide. In addition, food products sprayed in foreign countries with pesticides not registered for use in the United States routinely are imported.

Reform legislation would: (i) improve control of residues on food crops by prohibiting the importation of food crops with pesticide residues exceeding tolerance levels for cancelled, suspended or voluntarily withdrawn pesticides; (ii) establish uniform registration and labeling requirements, by requiring that pesticides manufactured solely for export be subjected to domestic registration requirements; and (iii) improve communication between the United States and importing countries.

Increase EPA Revenues

Inadequate funding levels have plagued the EPA for many years and hampered its ability to carry out its function.

Reform legislation would authorize EPA to charge pesticide companies a fee for the registration or reregistration of pesticides in order to establish and maintain a fully self-supporting review process under FIFRA.

Conclusion

The state of the pesticide registration program at the United States Environmental Protection Agency is most disturbing to those concerned about the future health of our nation. In fact, people are angry to learn that they have been misled about a product's safety, whether they are farmers, pesticide applicators or consumers. The public is more aware today than ever before that the current state of pesticide safety is inadequate. As more people become aware, they too join the ranks of those calling for reform of the nation's pesticide control law.

1. EPA Regulatory Program Study, Hearings before the Subcommittee on Department Operations, Research, and Foreign Agriculture of the House Comm. on Agriculture, 97th Cong., 2d Sess. 77 (1982) (staff report).

2. NATIONAL RESEARCH COUNCIL, NATIONAL ACADEMY OF SCIENCES, TOXICITY TESTING: STRATEGIES TO DETERMINE NEEDS AND PRIORITIES 118 (1984).

3. COUNCIL ON ENVIRONMENTAL QUALITY, CHEMICAL HAZARDS TO HUMAN REPRODUCTION (1981).

4. Burmeister, Cancer Mortality in Iowa Farmers, 1971-78, 66 J. OF NAT'L CANCER INST. 461 (1981).

5. L. MOTT, PESTICIDES IN FOOD: WHAT THE PUBLIC NEEDS TO KNOW 9, 13 (1984).

6. Dr. Nancy Kim, Director, Bureau of Toxic Substance Assessment, N.Y. State Dept. of Health, Testimony before the Dept. of Envt'l Conservation 3 (Albany, N.Y. Apr. 4, 1984).

7. S. Cohen, Ground-Water Monitoring of Pesticides in the U.S.A., Abstract No. TEST-34, presented at the 189th Nat'l Mtg. of the American Chemical Society (Miami Beach, Fla. Apr. 30, 1985). See also Cohen, Creeger, Carsel & Enfield, Potential for Pesticide Contamination of Ground Water Resulting from Agricultural Uses, in TREATMENT AND DISPOSAL OF PESTICIDE WASTES 297 (R. Krueger & J. Seiber eds., A.C.S. Symposium Series No. 259, 1984).

8. Brooks, Dispute Erupts Lawn-Spray Dangers, Wall St. J., Oct. 11, 1984, at 35; Gram, Growing Lawn-Care Field Scares Environmentalists, Cleveland Plain Dealer, Feb. 19, 1984.

9. The most recent House Agriculture Committee action to amend FIFRA was in 1982, and resulted in Committee passage of a bill (H.R. 5302) endorsed by the chemical industry and uniformly opposed by the public interest community. It was overwhelmingly rejected by the full House and rewritten in line with public sentiment on the House floor. Senate Agriculture Committee bills — S. 2620 and S. 2621, using industry language — remained logjammed in Committee.

10. The following groups supported the coalition bills in the 98th Congress, and are expected to continue their support, though formal support has not yet been solicited:

American Federation of State, County and Municipal Employees (AFSCME); American Public Health Association; Bakery, Confectionery and Tobacco Workers International Union; Center for Science in the Public Interest; Clean Water Action Project; Congress Watch; Conference on Alternative State and Local Policies; Consumer Federation of America; Defenders of Wildlife; Environmental Action; Environmental Defense Fund; Environmental Policy Institute; Environmental Task Force; Farmworker Justice Fund; Food and Allied Service Trades Department, AFL-CIO; Friends of the Earth; Garden Club of America; International Brotherhood of Teamsters; League of Conservation Voters; National Audubon Society; National Coalition Against the Misuse of Pesticides; National Demonstration Water Project; National Wildlife Federation; National Women's Health Network; Natural Resources Defense Council; Public Voice for Food and Health Policy; Rachel Carson Council; Rural Advancement Fund; Rural America; Rural American Women; Rural Coalition; Service Employees International Union, AFL-CIO; Sierra Club; Urban Environmental Conference; and United Farmworkers of America, AFL-CIO.

11. 104 S. Ct. 2862, 14 ELR 20539 (1984).

12. GENERAL ACCOUNTING OFFICE, U.S. CONGRESS, STRONGER ENFORCEMENT NEEDED AGAINST MISUSE OF PESTICIDES (1981).

13. OFFICE OF RESEARCH, CALIFORNIA ASSEMBLY, THE LEACHING FIELDS, A NON-POINT THREAT TO GROUNDWATER iii (Apr. 3, 1985).