October 21, 2008
Agencies Clash Over Risks Pesticides Pose To Endangered Species
Risk Policy Report, Vol. 15, No. 43
Copyright © 2008, Inside Washington Publishers. All rights reserved.
EPA and the National Marine Fisheries Service (NMFS) are clashing over a draft risk assessment describing three pesticides' threats to endangered fish species, the first produced as part of EPA's revised Endangered Species Protection Program, amid fresh criticisms from industry that the program is "broken" and resource-intensive.
NMFS is slated to issue by Oct. 31 its first final "biological opinion" on an EPA endangered species risk assessment for three commonly used pesticides -- chlorpyrifos, diazinon and malathion. But a draft version of the document is prompting disagreement between the two federal agencies because it does not include suggestions for how EPA could mitigate the risks the pesticides pose to some 28 endangered salmon species, an EPA official says. Further, NMFS is issuing the opinion on a truncated schedule after activists successfully sued to force its speedy release, the source says.
The EPA source sees the upcoming final biological opinion as a warning that the agencies are unable to complete the ecological risk assessments of pesticides in limited amounts of time and that the agencies need to work together earlier in the risk assessment process.
Under the Endangered Species Act, EPA must ensure that its registration of pesticides is not likely to jeopardize the existence of species listed as endangered or threatened. EPA's retooled endangered species program determines whether a pesticide's use will present unreasonable risks to endangered species, consulting with other wildlife agencies on those risks and then changing or canceling pesticide registrations to reduce those risks.
As part of the process for reviewing the three pesticides' risks, NMFS must draft a biological opinion. EPA typically would give the service 135 days to complete the opinion, but NMFS instead had to follow a shorter time line created in a settlement agreement. Activists sued because NMFS did not complete consultations EPA sought on a score of pesticides for endangered west coast salmon species, according to a source with the activist group Earthjustice.
An EPA official said at an Oct. 7 EPA advisory Pesticide Program Dialogue Committee (PPDC) meeting in Arlington, VA, that the short settlement deadline for issuing the opinion meant there "was not time to engage the agency" and the pesticides' manufacturer to include risk management measures in the draft biological opinion, prompting concern from EPA about the lack of such measures in the NMFS opinion.
"There's no bottom line on what NMFS believes we should be doing with these registrations," the EPA official said. "NMFS . . . didn't identify how to mitigate harm. They haven't said 'We can't,' they didn't. The lack of it is not a statement in itself."
But the Earthjustice source says it is "difficult to find adequate mitigation to make sure [the pesticide] doesn't end up in the water," and adds, "It will be interesting to see how the dialogue with EPA affects the biological opinions and how the risks to salmon will be addressed. I think the draft biological opinion was pretty thorough."
EPA's Sept. 15 written comments on the draft opinion also fault it for lacking "a level of transparency necessary for EPA to understand NMFS' rationale for its opinion that the use of any of these pesticides will jeopardize the continued existence of any of the species at issue." Relevant documents are available on InsideEPA.com.
That lack of transparency is also a concern of Dow Chemical Co., which produces chlorpyrifos. The company is "very concerned" with NMFS' draft biological opinion because "instead of using EPA's risk assessment, NMFS has chosen to start from scratch using their own unvalidated modeling and outdated information," a Dow spokesman says. The biological opinion assumes in part that species will be exposed because the pesticides are used illegally and it relies in part on outdated label information, the spokesman adds.
It's a "big problem when two federal agencies are working at cross-purposes," the spokesman says, because the court has determined they must consult and no one knows what happens when they disagree.
EPA and NMFS staff met recently, and EPA provided examples of ways to reduce risks that it could require growers to comply with, such as reducing the amount of a pesticide used, or restricting when a pesticide can be used, or how it can be applied to crops. NMFS staff did not give any indication of what they might suggest in the final biological opinion, the EPA official says.
Once NMFS completes its biological opinion, it is up to EPA to determine how it will use the information. It is ultimately EPA's decision whether and how to re-register a pesticide, the official says.
The Dow spokesman predicts further litigation following the agencies' decisions on pesticides, either from industry if it disagrees with the final biological opinion or environmentalists if EPA does not follow NMFS' final biological opinion in its re-registration decisions. The EPA official concurs, saying the agency will be open to further legal action if it ignores NMFS advice.
Nevertheless, the EPA source is hopeful the agency will be able to perform later endangered species risk assessments more systematically through a 15-year pesticide registration review cycle, "rather than through litigation, which takes an equal amount of time but you're not getting the whole picture."
EPA's intention is to operate the endangered species protection program as part of its 15-year pesticide registration review cycle, the source says. EPA this year began performing the reviews on the new schedule, including risk assessments for all endangered species nationwide. Forty chemicals are in the beginning stages of review and assessment, the source says. The agency plans to perform the reviews and risk assessments for 70 to 75 pesticides each year starting in 2009, the source says.
"It's better to do [risk assessments on] all chemicals, for all species for the whole country," the source continues. "The problem is the lawsuits drain resources." EPA has enough resources to do the risk assessments as part of the cyclical reviews if it isn't forced to "expend resources on special litigation," the source says.
But the environmentalists who sued EPA and NMFS over the endangered species assessments have concerns about EPA's plans. A source with Earthjustice says they are "for the most part still in design stages." Earthjustice is also concerned with the pace of the risk assessments, the source says, noting that the ESA "requires consultation before an agency action and the [endangered species program] defers it for 15 years."
The endangered species program started in 1988 as a voluntary program. Three years ago, EPA published the process of the new, enforceable program. It starts with EPA making an "effects determination" of the risks the pesticide presents to endangered species and their environments. If EPA determines that a pesticide's registered use may affect a species, EPA will consult with NMFS or the U.S. Fish and Wildlife Service (FWS).
Critics, including several members of the agency's advisory PPDC, question the program's feasibility, arguing it has accomplished little beyond taxing the resources of the three agencies involved.
"This program is really old. When will we get something on the ground?" asked Carolyn Brickey of the Center for American Progress during the PPDC's most recent meeting. "These species are probably dying out."
An industry official also questions the program, calling it "broken." "The process is huge, and it's using up tremendous resources for the all three agencies," said Cindy Baker, president of the Exigent Company. "If anything is screaming for [reform], this is it. This issue isn't going to go away. It's only going to get worse."
But the EPA official argues that new technology and data make it possible for EPA to implement the program in a way the agency was unable to twenty years ago. Because of limited data and mapping capabilities when the program started, the agency suggested risk mitigation efforts that growers complained were too severe, and Congress told EPA to reconsider its approach, the source says. With new mapping capabilities and county-specific data, EPA can perform the ecological risk assessments needed and suggest more targeted local management measures, the source says. -- Maria Hegstad
