EPA Denies Request for Emergency Use of DDT in Louisiana

On January 24, the State of Louisiana formally petitioned the Environmental Protection Agency to reconsider its 1972 order cancelling the use of DDT on cotton. Cancellation of the pesticide, one of William Ruckelshaus' last acts as EPA Administrator, was upheld in December, 1973, by the D.C. Circuit Court of Appeals.¹ That decision was the culmination of ten years of legal action by environmentalists, particularly the Environmental Defense Fund, to convince the government that a ban on the chemical was necessary to protect both the environment and human health.

Louisiana's petition alleged that substantial new evidence, developed since the 1972 order, justified reopening the issue. According to the state, the tobacco budworm, a caterpillar that feeds on cotton plants, has become resistant to the organophosphate pesticides which EPA had said were acceptable alternatives to DDT and is now infesting Louisiana's cotton fields in epidemic proportions. The petition warned of major crop losses and substantial unemployment in the state's cotton-related industries unless the Administrator allowed the emergency use of DDT pursuant to §§ 3 and 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)² The state asserted that pound per acre yield of cotton has dropped substantially since the 1972 order took effect, although its only evidence in support of this contention was the testimony of a single cotton farmer that his per acre yield of cotton in 1974 was half that of 1972, when he used DDT.

The petition went on the declare that the Administrator's 1972 finding that DDT was a possible carcinogen was unwarranted, as the purported risk had failed to materialize in the intervening three years. It cited the testimony of Dr. Leonard Axelrod of the EPA Office of Pesticide Programs when he appeared last summer before Rep. Jamie Whitten's (D.-Miss.) Agriculture, Environmental and Consumer Protection Subcommittee of the House Appropriations Committee.³ At the time, the Whitten Subcommittee was pressing for reconsideration of the decision to ban DDT. Axelrod informed the subcommittee that there was no evidence that DDT is carcinogenic when administered to animals at levels less than one hundred times the maximum dose to which workers in DDT plants are exposed, or that the chemical causes birth defects or mutations.

Louisiana further claimed that monitoring of DDT residues in the state during the past three years has shown that EPA erred in finding that DDT can have adverse environmental effects. The petition noted that whereas in 1972, 6.5 million pounds of DDT had been applied to cotton, the current request called for the use of at most 2.25 million pounds. The state promised stringent regulation to minimize contamination of the environment if the petition were granted.

EPA responded by scheduling informal hearings, in Louisiana and the District of Columbia. Testimony in support of the request was received from the Louisiana congressional delegation, Louisiana State University, and the U.S. Department of Agriculture. A variety of environmental groups, the U.S. Fish and Wildlife Service, and representatives of the state's shrimping industry, which feared contamination of the estuaries in which young shrimp hatch and develop, presented opposing views. A seven-man panel of EPA experts was appointed to hear the testimony, review the evidence, and make a preliminary report to Administrator Train as to whether the petitioners were raising new issues or reopening old ones. The hearings ended March 5.

On March 12, EPA announced new procedures⁴ for dealing with applications for pesticide registration under § 3 of FIFRA, and for emergency use permits under § 18, where the chemical has already been banned, through the cancellation or suspension process, for the particular use sought. The agency observed that while the cancellation and suspension process is adversary, the grant of a § 3 registration or a § 18 emergency use permit is a unilateral decision of the Administrator. In the case of Louisiana's request, for example, the rights of the environmental groups which spent years in court fighting the use of DDT on cotton would be severely prejudiced if the results of that protracted litigation could be overturned by administrative fiat.

The agency therefore amended Title 40, Part 164 of the Code of Federal Regulations to cover such situations, which it termed to be in substance petitions for review of the earlier cancellation or suspension. Henceforth, the Administrator will review such petitions [5 ELR 10066] to ascertain whether they present substantial new evidence which was not available to the Administrator when he made his earlier decision and which the petitioner could not by due diligence have discovered in advance of that decision. If the Administrator agrees that such new evidence has been adduced, formal hearings will be scheduled, but otherwise the application will be denied without a formal hearing. The burden will be upon the applicant in all cases to establish the existence of new evidence warranting a reopening of the issue.

On the following day, March 31, the seven-man panel made its report to Administrator Train. The panel found that though cotton yields did decline in 1973 and 1974, the tobacco budworm was only one of many factors affecting yields, and there were no valid conclusions to be drawn regarding the effect of DDT cancellation on the cotton corp. The panel was also highly critical of Louisiana's estimates of probable economic loss, and its unsubstantiated assertions that other pesticides would be ineffective against the budworm. The report concluded that there was insufficient evidence to believe that DDT would be effective against another tobacco budworm outbreak, if one were to occur in 1975, and that improved production methods, rather than permission to use DDT, were what the state's cotton crop required.

Administrator Train adopted the report of the panel in ruling, on March 14, that EPA would not hold formal hearings on Louisiana's request. Three days later, he issued a lengthy opinion amplifying the reasons for his action.⁵ He recognized that in two previous cases, the pea leaf weevil in Idaho and Washington and the Douglas-fir tussock moth in Oregon, Idaho, and Washington, the agency had granted § 18 emergency use permits for applications of DDT, but noted that in the former, the risk of environmental contamination was small, while in the latter, the danger of serious losses of mature trees was severe. In the tussock moth case, moreover, the requested use was not one authorized at the time of the Administrator's 1972 order, so that the use of DDT on the Douglas fir was never litigated in an adversary context, whereas the cotton-growing industry was the principal user of DDT prior to the 1972 cancellation proceedings.

Train recited longstanding evidence relating to DDT's persistence, dispersal through the environment, concentration up the food chain, average residue levels in human tissue, and carcinogenicity in mice, and concluded that the requested use posed an unacceptable cancer risk to man. The Administrator also stated that permitting the use of 2.25 million pounds of DDT would seriously jeopardize the fish and wildlife of Louisiana and surrounding areas. At a minimum, he found that no substantial new evidence exists which materially affects the 1972 cancellation order, and that in fact there are indications that the environmental and human risks enunciated in the 1972 order may be of even greater magnitude than was believed at that time.

In addition to the seven-man panel, a five-man Ad Hoc Study Group of the Hazardous Materials Advisory Committee (HMAC), a non-governmental scientific advisory board attached to EPA, was designated to consult with the Administrator concerning the preliminary scientific questions which the requested use presented. Train met informally with the Ad Hoc Group on March 14, after it had had only one day to review Louisiana's petition. The Administrator mentioned this brief meeting in his written opinion denying the request, and noted that the group "did not reach any conclusions or make any recommendations with respect to whether there was any substantial new evidence which may materially affect the 1972 order."⁶

On March 19, however, the Ad Hoc Group did issue a report to HMAC which tended to undermine the Administrator's decision. Without specifically referring to Train's opinion, the report predicted that under high population pressures the requested mixture of DDT and Toxaphene would be more successful in controling the tobacco budworm for 1975 than any of the alternative pesticides suggested by the seven-man EPA panel. The report also stated that the minimal adverse environmental effects of the requested use would be limited to Louisiana, and that, while no new significant health effects data has been developed, the Ad Hoc Group did discuss a possible change in the evaluation of the potential cancer risk to man based on Dr. Axelrod's 1974 testimony before the Whitten committee.

Observers had expected the Ad Hoc Group to advance a pro-DDT viewpoint given its membership, which included a Mississippi entomologist, a South Carolina biologist, a toxicologist from California, a medical doctor from Miami, and as Chairman the Washington state official who fought successfully for use of DDT on the Tussock Moth. On March 21, Louisiana and the U.S. Department of Agriculture petitioned for reconsideration of the Administrator's denial of the emergency use request largely on the basis of this report. According to the petition, the Ad Hoc Group report confirmed that an emergency condition exists within the meaning of § 18 of FIFRA, that "substantial new evidence" has developed since 1972, and that petitioners had made a strong prima facie showing to this effect. For these reasons, the petitioners urged the Administrator to reconsider his March 14 order and to grant an expedited public hearing on the request for emergency use. The Group's surprise submission of a report undercutting the Administrator's opinion thus looked to some like an attempt by DDT's proponents to construct the basis for a judicial challenge to the Administrator's ruling as being arbitrary for failing to take into account certain recommendations and points of view voiced within the administrative process.

[5 ELR 10067]

On April 1, the Administrator responded to both the petition for reconsideration of his earlier ruling and the Ad Hoc Group's report by denying the request for an expedited public hearing on the proposed emergency use.⁷ The Administrator reiterated and reaffirmed the reasons set forth in his previous opinion accompanying the earlier order denying reconsideration. Train also pointed out that the Ad Hoc Group did not hear the testimony at the five days of public hearings, and had not been able, in the single day it spent reviewing the Louisiana petition, to read the 1080 pages of exhibits submitted of the written comments received from federal agencies, environmental groups, and the general public. In the process of restating his position that there is no substantial new evidence warranting reconsideration, the Administrator went through a point by point refutation of the Ad Hoc Group's report, concluding that it presented no additional evidence and therefore no basis for changing his prior decision.

Thus for the moment it seems that last year's massive spraying of DDT to control the Tussock Moth in the Pacific Northwest will not be repeated on an even larger scale over the cotton fields of Louisiana. EPA's new procedures for treating requests for emergency exemptions for the use of cancelled or suspended pesticides as requests for the modification of the cancellation or suspension are a reasonable approach to the problem of handling requests such as Louisiana's. The state's petition for reconsideration of the Administrator's March 14 order contended, however, that there was no justification for the abrupt publication and retroactive application of these new rules. The petitioner may therefore decide to challenge the regulations as being illegally adopted and applied, or it might instead choose to attack the Administrator's denial directly as being arbitrary and capricious. Train's supplemental opinion denying the request for rehearing and painstakingly rejecting, point by point, the oblique conclusions in the Ad Hoc Group report diminishes the state's chances of succeeding through the latter course.

Since the denial did not come after a formal hearing, however, the decision is reviewable in U.S. district court rather than in the court of appeals, and cotton farmers' pleas of economic hardship are likely to carry great weight with a district court in Louisiana. In addition, any appeal in such as suit would go to the Fifth Circuit, a court whose past rulings have not shown great deference to federal agency decisions regarding the dangers of pesticides.⁸

Louisiana's petition illustrates that with DDT, as with the supersonic transport, closing the door on an environmental hazard is one thing, while keeping it shut is quite another. Those who thought the DDT question was settled by the 1972 cancellation have found themselves mistaken; the struggle over the chemical's use will apparently go on as long as there are insects and differences in scientific opinion as to the need to control them and the means by which such control should be accomplished. DDT's proponents will undoubtedly continue their attempts to chip away the 1972 ban on its use, if not by taking this case to court then by further requests for § 18 exemptions in future "emergencies." It can come as some comfort to its opponents, however, that DDT has lost the latest skirmish.

1. Environmental Defense Fund, Inc. v. Environmental Protection Agency, 4 ELR 20031 (D.C. Cir. 1973).

2. 7 U.S.C. § 135 et seq., ELR 41301.

3. Hearings Before the Subcommittee on Agriculture — Environmental and Consumer Protection of the House Committee on Appropriations, 93rd Cong., 2d Sess., pt. 5 at 555 (1974).

4. 40 Fed. Reg. 12261 (Mar. 18, 1975).

5. 40 Fed. Reg. 15934 (Apr. 8, 1975).

6. 40 Fed. Reg. 15939 (Apr. 8, 1975).

7. 40 Fed. Reg. 15949 (Apr. 8, 1975).

8. See eg., Florida Peach Growers Association v. U.S. Department of Labor, 4 ELR 20170 (5th Cir. 1974).