On May 17, the Environmental Protection Agency (EPA) issued a proposed order registering the pesticide sulfoxaflor, using authority under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). This proposal is the latest action in a long-running and controversial review of that potential pesticide, and continues to consider how toxic this active ingredient is to bees, and therefore how and if it can be used. Coming after a recent court decision vacating EPA’s previous attempt to register sulfoxaflor, the answer is not clear (I provided a basic discussion of FIFRA registration here).
What Data Did EPA Collect?
Dow AgroSciences applied in 2010 to EPA to register three new pesticide products containing the active ingredient sulfoxaflor, for use to control piercing and sucking insects (e.g., aphids) on a wide variety of crops. These applications included scientific and use studies regarding the effect of the proposed pesticides, which are systemic insecticides that can kill an insect that contacts them and can also kill after ingestion of smaller quantities. Dow identified sulfoxaflor as a new sub-class of neonicitinoid pesticides – which are increasingly considered to be harmful to bees -- and argued that this new sub-class is less harmful.
EPA applied its recently developed Pollinator Risk Assessment Framework, to consider risks and protections for bees. The preliminary Tier I screening led EPA to determine that the chemical could be “very highly toxic” to bees at the concentrations Dow proposed to use. EPA therefore proceeded to Tier II, requiring “semi-field studies” of bees in laboratory tubes, intended to reflect how individual bees exposed to materials might interact with their home hives. Dow submitted six tunnel studies, all of which involved exposures at concentrations substantially below the levels for which Dow sought registration; EPA’s review noted methodological problems and concluded that more data were necessary. EPA therefore proposed in January 2013 to grant a “conditional registration” under restrictive use conditions, in part to support the development of additional data to inform a subsequent final registration decision.
I cannot find anything in public records acknowledging that any additional data have been produced since January 2013.
What Happened Then?
In May 2013, EPA finalized its proposal, not by granting the conditional registration it proposed, but instead by granting an unconditional (i.e., final) registration for a narrow range of uses with lower permissible application amounts (intended to produce lower residues that might harm bees). Several advocacy groups, led by the Pollinator Stewardship Council, sued EPA in federal court, claiming the decision was not “supported by substantial evidence in the record as a whole” (to recite the necessary language).
In September 2015, the Ninth Circuit Court of Appeals found EPA’s decision to have been “arbitrary and capricious”, since the agency followed a finding that more data were necessary before an unconditional registration could be granted, with a grant of unconditional registration allowing narrower uses EPA found appropriate through exercise of its professional judgment to reinterpret and reapply pre-existing data. The Court took the extreme route of vacating the registration altogether rather than staying its effect:
“We therefore vacate the EPA's unconditional registration of sulfoxaflor and remand for the EPA to obtain further studies and data regarding the effects of sulfoxaflor on bees, as required by EPA regulations.”
In November 2015 EPA cancelled its registration of sulfoxaflor.
What Has EPA Done Now?
On May 17, EPA announced a new proposal, to grant unconditional registration to sulfoxaflor for a narrower range of uses, intended to provide more protections to bees. For bee-attractive crops, sulfoxaflor would be prohibited before and during bloom. Applications would also be prohibited on crops grown for seed production, and additional measures would reduce spray drift that might spread residues. The proposal offers 60 days for public comments – I’ve submitted my comments, asking how a new unconditional permit not based on any additional data complies with the Ninth Circuit’s order.
Self-Assessment Checklist
Does the organization use or apply pesticides?
Do any of these pesticides include neonicitinoids as active ingredients?
- If so, is the organization following the controversy involving sulfoxaflor?
Where Can I Go For More Information?
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EPA 5/17/16 announcement of proposed registration order (with links to other documents and site for submission of comments)
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Pollinator Stewardship Council website
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About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 12 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com.