Pesiticide Foes Will Try to Reach EPA Deal

SEATTLE (CN) - A 9th Circuit hearing over a pesticide that allegedly poisons farm workers and children ended with environmentalists agreeing to mediation.

Chlorpyrifos is an insecticide used on various crops and golf courses, and as a wood treatment or mosquito hunter.

Concerned about its allegedly harmful health effects to humans, the Pesticide Action Network North America and Natural Resources Defense Council sued the Environmental Protection Agency in 2007 to force a ban on the chemical.

That federal case is currently stayed in New York pending a writ of mandamus that the groups are seeking in the 9th Circuit. Mandamus relief compels a public agency or governmental body to act on a usually neglected legal requirement.

The environmentalists told a three-judge panel of the federal appeals court last week that mandamus relief is necessary because the EPA has taken five years to respond to their petition asking for the ban.

Earthjustice attorney Kristen Boyles said the EPA had missed two previous deadlines for answering claims about the pesticide. The agency made a commitment to respond by November 2011, then changed the date to February 2012 but also missed that deadline.

Without a court-mandated deadline, the case would "languish and slip even further," Boyles said.

When Judge Richard Paez asked for a possible timeframe, Boyles said: "The most important thing is you give them a date."

"We believe that the evidence in the petition of 2007 was sufficient to support the ban of chlorpyrifos," she added.

Paez then asked if the EPA could just ban the pesticide outright, leading Boyles to suggest three possible actions.

It could immediately issue a ruling that bans some or all usage; it could put out a proposed rule for comment; or it could deny the petition to ban chlorpyrifos, she said.

Until the EPA does one of those things, the case was "entirely in limbo," Boyles added.

The FDA has a "tentative date" to respond by February 2014, but she urged the court to order a final ruling on any of the three options by that date.

EPA attorney David Carson called mandamus an "extreme remedy" and said this was not an extreme case. He said the EPA had dealt with "most" of the issues raised in the complaint, and had implemented "buffer zones" and "reduced application rates" to prevent spray drift of the pesticide.

The EPA needs more time to complete epidemiological studies before deciding whether to ban chlorpyrifos, he added.

Judge Ronald Gould said that it would be ideal if the EPA could complete the studies, but "it can't go on forever."

With prompting from Judge Raymond Fisher, who participated in the hearing through a remote video feed, both sides agreed to attempt resolution in mediation.

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