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Lorsban strolls to the regulatory gallows (place public comment here)

Were public comments enough to save Lorsban? Can new political shift stop a decision, or should it even try?

By March 31, the EPA has been court-ordered to make a final decision on whether to revoke all food use tolerances for chlorpyrifos, commonly sold as Lorsban. Were public comments enough to sway the decision? Can new political shift stop the decision, or should it even try?

The 60-day public comment period for EPA’s move to revoke all food use tolerances for chlorpyrifos ended Jan. 17. Did you send EPA a comment on your thoughts on the matter?

Speaking at the Southeast Fruit and Vegetable Conference in Savannah in Jan. 6, Rick Keigwin, deputy director of programs for EPA’s Pesticide Program office, said public comments matter, and the agency considers public comments before rules are finalized, citing the pending decision for chlorpyrifos as an example.

But not all comments carry the same weight when it comes to rule-making time. Generic comments, such as “I like to use this product. Please don’t get rid of it,” are fine but don’t move the needle either way.

But a public comment to EPA from a farmer explaining in detail how much of a product in question the farmer uses, why it is used, when it is used and for what important reason it is used does carry weight, Keigwin said, especially if the comment also explains that if the product was taken away, said farmer would have no alternative or said farmer explains what alternative product he might have to go with to protect a crop.

Though it is not used as much for major row crops today as it once was, Lorsban remains an important insecticide tool for many Southeast farmers. But without enough powerful public persuasion from someplace or someone, though, it seems chlorpyrifos’ march to the regulatory chopping block is likely.

EPA’s final human health risk assessment says ‘based on current labeled uses, the revised analysis indicates that expected residues of chlorpyrifos on food crops exceed the safety standard under the Federal Food, Drug, and Cosmetic Act. In addition, the majority of estimated drinking water exposures from currently registered uses, including water exposures from non-food uses, continue to exceed safe levels even taking into account more refined drinking water exposures.”

That’s a big Strike 1 for Lorsban.

The human health assessment also shows risks to the workers who mix, load or apply chlorpyrifos, but this risk will be addressed by EPA through the chlorpyrifos registration process, which is also under review now.

There’s strike 2.

EPA is also assessing the ecological risks from chlorpyrifos in conjunction with the agency’s Endangered Species Protection Program.

There’s Strike 3. But wait, the batter claims the ball was foul-tipped before it went into the catcher’s mitt. Waiting on the umpire to make the final call.

Rules matter big on the federal level. A law’s language (often vague) puts the real, boots-on-the-ground power or velvet-glove treatment of a law into the hands of departmental procedure, which departments or agencies enforce or not through the rules they establish for a law.

To be fair, EPA didn’t go after Lorsban, per se.

In June 2015, the agency said it wanted to propose a rule to revoke chlorpyrifos tolerances by April 15, 2016, “to address previously identified drinking water concerns and in response to a petition from the Natural Resources Defense Council and Pesticide Action Network North America.”

The agency says this timeframe would’ve have given it time “to complete its additional analysis, taking into consideration the public comments received on its December 2014 human health risk assessment,” which EPA revised later to be the current assessment that points to revoking the pesticide.

But on Aug. 10, 2015 the good ol’ 9th Circuit Court of Appeals in California rejected EPA’s timeline for its chlorpyrifos decision and ordered the EPA to deny the petition, issue a proposed revocation or issue a final revocation rule by Oct. 31, 2015.

EPA didn’t make that Oct. 31 deadline, arguing it didn’t issue a final revocation rule “because we had not completed our revised human health assessment and refined drinking water assessment, so certain science issues were still unresolved.”

So activists and an activist court greased the wheels and worked to clear the pesticide’s path to the regulatory gallows. Can a new administration or shift in political ethos steer things differently? Maybe.

In an address at the annual American Farm Bureau Federation conference, Zippy Duvall, AFBF president, said rural, farming United States should enjoy renewed political clout in Washington with election of President Donald Trump, who has stated he wants to drastically limit ‘overreaching’ federal regulations.

We’ll see what the new administration can do about staunching aggressive federal regulatory actions, especially as they concern agriculture. I’d like to think good science and hard-boiled facts will lead the way either way the wind blows. My beard's now gray enough to know solid science and fortified facts are not the preferred tools of politics. But executive orders have become very fashionable weapons.

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