Imminent Hazards from Pesticides: EPA Administrator Suspends Major Uses of Heptachlor and Chlordane

In an action reminiscent of his predecessor's handling of the DDT cancellation case,¹ EPA Administrator Russell Train recently declined to follow an administrative law judge's recommendation and suspended registrations for the major uses of the pesticides chlordane and heptachlor.² The ruling is expected to result in a drop of 70 and 85 percent, respectively, in the use of the chemicals.

The Administrator's analysis of the "imminent hazard" standard which governs suspension proceedings under § 6 of the Federal Environmental Pesticide Control Act of 1972, still referred to as the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA),³ adds to the growing body of judicial and administrative law dealing with the latent health risks associated with environmental dispersion of various toxic industrial and agricultural chemicals. The decision also ventures into the thicket of weighing the risks presented by the continued use of chlordane and heptachlor against the economic benefits of such use.

The basic facts concerning the two pesticides are not in dispute. They are chlorinated hydrocarbons, chemically related to DDT. Both individually and as constituents in hundreds of brand name products, they have been widely used for crop protection and home, garden and lawn pest control. In 1974 Velsicol Chemical Corp. of Chicago, Illinois, their sole manufacturer, produced approximately 21 million pound of chlordane and heptachlor. More than 7.5 million pounds of chlordane were used for home, lawn and garden purposes that year, and much of this was applied by individual homeowners.

Like DDT and aldrin/dieldrin, chlordane and heptachlor are highly persistent in the environment and bioaccumulate, i.e., become more concentrated in the food chain. Their residues are found lin human tissue, milk and fetuses, in air, soil and water, in dairy products, meat, fish, shellfish and poultry, and to a lesser extent, in raw agricultural products destined for human consumption. A number of scientific studies, including some conducted by Velsicol, have shown that chlordane and heptachlor are carcinogenic in laboratory animals.

Initially — in November 1974 — the Administrator began action⁴ against these pesticides under FIFRA's cumbersome, time consuming "cancellation"⁵ process. It was not until July 30, 1975⁶ that Administrator Train announced his intention to suspend⁷ the manufacture and sale of chlordane and heptachlor for agricultural and household uses under the summary procedure established by § 6(c)(2).⁸

Suspension hearings began on August 12, 1975.⁹ On December 12, Administrative Law Judge Herbert Perlman issued his recommended decision, in which he took the position that the proposed suspension order should be dismissed.

In reviewing the recommended decision, the Administrator agreed with all 95 of Judge Perlman's factual findings. It was in drawing conclusions as to carcinogenicity that the Administrator departed from the Administrative Law Judge's view. On this crucial issue, Judge Perlman found that chlordane and heptachlor "appear to be" carcinogens in the laboratory mouse, but he was "hesitantly unwilling" to find that they are "conclusively carcinogens in laboratory animals" or "a potential carcinogenic risk to man." The Administrative Law Judge concluded that these facts do not constitute the requisite "imminent hazard" to justify suspension.

The Administrator rejected this holding as a misapplication of both the pertinent statutory provisions and the controlling judicial decisions. FIFRA defines "imminent hazard" as "a situation which exists when the continued use of a pesticide during the time required for cancellation proceeding would be likely to result in unreasonable adverse effects on the environment."¹⁰ Such an unreasonable adverse effect is defined as "any unreasonable risk to man or the environment, taking into account the economic, social and environmental [6 ELR 10030] costs and benefits of the use of any pesticide."¹¹ In Train's view, this means suspension depends on a finding that continued use during the cancellation proceeding would be likely (emphasis Train's) to result in any unreasonable risk to man or the environment. Such a finding must, however, include a determination that the potential human harm outweighs the benefits of continued use.

The Administrator also observed that the burden of proof of the safety of a pesticide lies at all times with the registrant. Thus insofar as the showing of risk of harm from chlordane and heptachlor is not yet conclusive, it is not the agency's burden to establish that risk, but rather Velsicol's task to disprove it once its safety has been made suspect by a sufficient showing of probable risk.

This principle is nowhere explicitly stated in FIFRA. Instead it has developed from EPA's consistent imposition of this burden on proponents of registration and the courts' (notably the D.C. Circuit's) acceptance of this view as a proper allocation of responsibilities under that statutory scheme.¹²

In other words, Judge Perlman was mistaken in thinking it necessary to find "conclusively" that continued use will cause actual harm to man inthe form of cancer. The statutory standard, in the Administrator's view, was in fact met by Judge Perlman's findings that chlordane and heptachlor "appear to be" carcinogenic in laboratory animals.

Since it is generally impossible to determine empirically which particular trace contaminants in the environment are responsible for various human cancers, pesticides and other toxic substances must be laboratory tested for carcinogenicity. Frequently mice and rats are used as test animals; these two are broadly accepted by the scientific community as appropriate for this purpose because their response to many carcinogens is similar to that of humans. There is, moreover, no evidence carcinogens have a safe threshold level, i.e., that there is any dose level below which they do not have some carcinogenic effect. According to the Administrator, therefore, the Administrative Law Judge's finding of apparent carcinogenicity in rats and mice means that chlordane and heptachlor are, at the very least, potentially carcinogenic in man, and thus clearly present the requisite "significant likelihood" of harm to justify suspension.

Velsicol had argued that, in view of the existing en vironmental presence and persistence of the two chemicals, and considering the long latency period of cancer, no appreciable human health benefit would accrue from suspending their use during the 12 to 18 month-long cancellation proceeding. The Administrator countered this assertion by noting that the absence of harm during the cancellation process is not significant if the use of heptachlor and chlordane during that period would create an irreversible risk of harm at a later time. The carcinogenicity evidence, the varying susceptibility of individuals to cancer, and the presence of the two pesticides in the environment for the last 18 years indicate a substantial likelihood that serious harm would result from continued use during the cancellation proceeding.

Judge Perlman had also engaged in an analysis of the benefits of continued use of chlordane and heptachlor. The Administrator held this analysis inadequate, however, because it failed to weigh the risks of such use during the cancellation process against those benefits as required by the statute and by agency policy. Mr. Train therefore undertook a de novo weighing of risks and benefits, again noting that the proponents of continued registration bear the responsibility of demonstrating that the benefits outweigh the risks.

In making this balance, the Administrator looked at specific heptachlor and chlordane uses. The most widespread of these are home, garden and lawn applications (7.5 million pounds in 1974), and agricultural use on corn (5.5 million pounds in 1974). In the case of residential uses, the Administrator had little trouble concluding that the risks posed to homeowners, their families and their neighbors, by absorption through the skin and by inhalation or ingestion, considerably outweigh the benefits, particularly in light of the availability of effective alternative pesticides.

For agricultural uses on corn, however, this balancing of risks and benefits became more complicated. Chlordane and heptachlor were applied to roughly 3.5 percent of total United States corn acreage in 1975, largely for cutworm control. However, the Administrator concluded, much of this application was prophylactic. He therefore professed difficulty in projecting economic losses which might result from the absence of the two pesticides. Expert testimony adduced by the registrant suggested that the economic impact would be substantial. But evidence presented by the EPA staff was sufficient to convince the Administrator that the registrant had failed to establish any significant macroeconomic effect from suspension of chlordane and heptachlor use on corn. Still, the Administrator was also persuaded that, at least with respect to the 1976 growing season, a significant number of individual corn farmers in high cutworm risk areas will not be able to make a satisfactory transition to effective alternative treatment programs. Because of the overall reduction in the amount of heptachlor and chlordane which will enter the environment in 1976 and the consequent lessening of the risk to man and the environment, the Administrator allowed continued use on corn through the 1976 growing season, a compromise which he claimed represents a reasonable balancing of the relative risks and benefits.

In sum, chlordane and heptachlor were suspended for application in homes, gardens and lawns, against ticks and chiggers, as a constituent in shelf paper, and on corn (effective August 1, 1976 rather than immediately). On the other hand, the Administrator allowed continued use for control of the narcissus bulb fly, pineapple mealybug, Japanese beetle, imported fire ant, black vine weevil, harvester ant, white fringed beetle, Fuller Rose Beetle, white grubs, other root weevils, and for seed and strawberry treatment, in view of the unavailability and cost of alternative treatment methods and the relatively small amount of heptachlor and chlordane used for these purposes.

[6 ELR 10031]

The aggregate effect of the Administrator's decision is, as he contends, to restrict greatly the amount of the two pesticides which will be introduced into the environment during the cancellation proceeding. But his specific estimates of an 85 percent reduction for heptachlor and a 70 percent decrease for chlordane (90 percent after August 1) are necessarily uncertain, since he made no effort to curtail use of stocks manufactured before July 29, 1975 and still on hand.

Predictably, the mixed decision satisfied neither Velsicol nor the environmentalist-intervenors, led by the Environmental Defense Fund. The latter have consistently attacked use of the two pesticides as unreasonably dangerous. Rerunning the "race to the courthouse" which occurred after the Administrator's 1974 decision to suspend aldrin/dieldrin,¹³ Velsicol immediately filed a petition for review of the suspension order with the Sixth Circuit Court of Appeals in Cincinnati, and the Environmental Defense Fund just as quickly asked the D.C. Circuit Court of Appeals in Washington to overrule the Administrator and order the immediate suspension of all uses. In the aldrin/dieldrin case, EDF won the race and had its venue preference vindicated when it obtained a ruling from the D.C. Circuit which upheld the suspension and even went so far as to remand the Administrator's decision to exempt existing stocks from the suspension order.¹⁴

Building as it does on the administrative and judicial decisions cancelling uses of DDT and suspending uses of aldrin/dieldrin, the Administrator's heptachlor and chlordane suspension ruling completes the construction of a solid legal foundation for EPA action under FIFRA aimed at protecting public health and the environment from the harms presented by widespread use of dangerous pesticides. On the other hand, the ubiquitous presence of DDT, aldrin/dieldrin, heptachlor and chlordane residues in human and animal tissue has led some to argue that EPA's cancellation and suspension actions over the past several years have in effect done little more than close the barn door after the horse has gone. Ominous recent reports¹⁵ of a sharp increase in the cancer rate in 1975 tend to support those who say that we are only now seeing the start of a cancer epidemic caused in part by massive use of synthetic chemical pesticides since World War II.

And while we now realize that the laws of chemistry and biology may exact a cruel price for past environmental transgressions, those mistakes cannot easily be undone. The only constructive course is to learn from them and guard carefully against allowing release of such unjustified hazards to human health and the environment in the future. Seen in this light, the Administrator's heptachlor-chlordane ruling takes on added significance. The decision reinforces the principle of placing the burden of proving no risk of harm to public health and environmental integrity on the proponent of FIFRA registration for a suspect pesticide, rather than asking EPA or an environmentalist intervenor to prove conclusively the existence of such harm before use of the chemical may be halted.

A parallel but more explicit burden of proof requirement lies at the heart of the more ambitious versions¹⁶ of the Toxic Substances Control Act now being considered by Congress. In giving added evidence of the administrative and judicial acceptability of this pre-testing requirement, as well as in demonstrating once again the perils of doing without it, the heptachlor-chlordane decision provides further support for speedy enactment of a strong version of that long-overdue legislation.

1. In re Stevens Industries, 2 ELR 30011 (EPA Administrator, June 14, 1972), aff'd Environmental Defense Fund v. Environmental Protection Agency, 489 F.2d 1247, 4 ELR 20031 (D.C. Cir. 1973).

2. In re Velsicol Chemical Corp., FIFRA Docket No. 384 (EPA Administrator, Dec. 24, 1975). A copy of the Administrator's decision is available from ELR (79 pp. $9.90, ELR Order No. A-1001).

3. 7 U.S.C. §§ 136-136y (Supp. 1975), ELR 41301.

4. See Environmental Protection Agency — Recent Developments, 5 ELR 10015 (Jan. 1975).

5. 7 U.S.C. § 136d(b).

6. See Environmental Protection Agency — Recent Developments, 5 ELR 10163 (Sept. 1975).

7. Section 6(c)(1) of FIFRA, 7 U.S.C. § 136d(c)(1), provides that the Administrator may suspend the registration of pesticides when he determines "that such action is necessary to prevent an imminent hazard during the time required for cancellation … proceedings" to run their course. Suspension thus resembles a preliminary injunction and is designed to prevent environmental harm which would otherwise occur pending final resolution of the cancellation question.

8. 7 U.S.C. § 136d(c)(2) (Supp. 1975).

9. 40 Fed. Reg. 33503 (Aug. 8, 1975).

10. 7 U.S.C. § 136(1).

11. 7 U.S.C. § 136(bb).

12. See, e.g., Environmental Defense Fund v. Environmental Protection Agency, 510 F.2d 1292, 5 ELR 20243 (D.C. Cir. 1975).

13. In re Shell Chemical Co., 4 ELR 30017 (EPA Administrator, Oct. 1, 1974). See also, Comment, Aldrin/Dieldrin Suspension Upheld, 4 ELR 10177 (Nov. 1974), for a description of the race.

14. Environmental Defense Fund v. Environmental Protection Agency, supra, n. 12.

15. See, e.g., The Washington Post, Dec. 10, 1975, § G, at 2, col. 1.

16. See, e.g., H.R. 10318, 94th Cong., 1st Sess. (1975), and S. 776, 94th Cong., 1st Sess. (1975).