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Ninth Circuit slams EPA over delayed action on flea and tick pesticide

In addition to dragging its feet, the EPA used substandard scientific studies with incomplete data to deny a request to ban a flea and tick pesticide.

(CN) — A three-judge Ninth Circuit panel on Wednesday ruled the U.S. Environmental Protection Agency erred when it denied a petition to remove tetrachlorvinphos, a pesticide ingredient used to kill fleas and ticks commonly found on pet collars, from the market. 

Furthermore, the judges castigated the agency for failing to perform scientific due diligence when responding to a petition filed by the Natural Resources Defense Council asking the agency to determine whether tetrachlorvinphos poses a threat to human health. 

“At times, NRDC’s efforts to receive a reasoned response from EPA have seemed Sisyphean as the agency consistently delayed its decision,” U.S. Circuit Judge Ronald Gould wrote for the unanimous panel

The nonprofit pursued the matter for 12 years and was well within its rights to expect a reasonable response from the agency that regulates pesticides, the Bill Clinton appointee wrote. “EPA, though, did not provide a well-reasoned or reasonable decision. Instead, its stated reasons were cursory and often at odds with EPA’s own prior assumptions and statements.”

Gould also said the agency used scientific statements and studies not in the record to justify its decision to the court. In other words, the agency told a different story to the court about why it denied the petition than it told to the NRDC and the general public. 

“Because EPA’s denial of NRDC’s petition is not supported by substantial evidence, we vacate EPA’s denial of NRDC’s petition and remand to EPA to issue a revised response to NRDC’s petition within 120 days,” Gould wrote for the panel. 

At issue, were studies that found pet collars with tetrachlorvinphos relied on incorrect information to conclude they did not pose a threat to human health, particularly a torsion study that found less than 15% of the material on the collar released as tetrachlorvinphos dust. 

In fact, about 97% of the dust released from the collar contains elements of the noxious pesticide. This fundamental error changed the agency’s risk calculation and prevented it from giving the public a true picture of the threat, the panel found. 

“The law is clear that we can only uphold agency action based on the reasons the agency gave for its decision,” Gould wrote. 

Tetrachlorvinphos or TCVP is commonly used in pet collars designed to kill ticks and fleas but is otherwise banned for residential use. The pesticide belongs to a family of chemicals called organophosphates, which are chemically similar to sarin gas developed by German scientists in World War II. 

While the chemical is not suspected to have carcinogenic properties for humans, studies have shown it can have dangerous effects on childhood development. Specifically, exposure to the chemical has been shown to cause delays in mental development in infants and a range of issues in early childhood development, including autism. 

“Children and infants are particularly at risk from exposure to pesticides because their normal activities, such as crawling on the floor and putting their hands in their mouths, can result in increased exposures,” said Miriam Rotkin-Ellman, a scientist with the Natural Resources Defense Council. 

Rotkin-Ellman conducted a study that looked at the amount of TCVP residue in dog and cat fur as a result of flea collars and found that in many instances children were exposed to levels of the pesticide that exceeded EPA safety thresholds. 

Chief U.S. Circuit Judge Mary Murguia, a Barack Obama appointee, and U.S. Circuit Judge R. Guy Cole Jr., a Clinton appointee sitting by designation from the Sixth Circuit, rounded out the panel.

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