EPA announced a plan to pull chlorpyrifos off the market this summer, ending a decades-long legal saga over the insecticide's effects on human health.
Chlorpyrifos is an organophosphate insecticide better known to farmers and pesticide applicators by various brand names such as Lorsban and Vulcan. Its use has waned in the past decade, but it remained an option for growers fighting aphids and two-spotted spider mites in soybeans, rootworm in corn, aphids in wheat and cutworms and plant bugs in cotton. It's also used in alfalfa and several fruit and vegetable crops.
On Aug. 30, 2021, EPA published a new rule revoking all food residue tolerances for the insecticide, essentially making it illegal to use on food and feed crops. This new EPA rule will take full effect on Feb. 28, 2022, meaning farmers can still use chlorpyrifos through this growing season, but next year, it won't be an option.
1. WHAT PRODUCTS ARE AFFECTED?
One of the most common chlorpyrifos insecticides in use in agriculture was Lorsban, owned by Corteva Agriscience. The product was already discontinued last year, after Corteva announced it was voluntarily ending its production of this insecticide in February 2020, citing low demand.
But, many generic insecticides using chlorpyrifos remained legal to use and available in 2021.
Here's a list of products that will no longer be available as a result of the EPA's decision, compiled by the University of Minnesota:
-- Stand-alone products: Chlorpyrifos, Govern, Hatchet, Vulcan, Warhawk, Whirlwind and Yuma
-- Premixes that contain chlorpyrifos: Bolton, Cobalt Advanced, Match-Up and Stallion.
The new EPA rule does not affect nonfood-crop uses of chlorpyrifos, such as mosquito- and roach-control products. EPA has said it will review those uses in 2022 as part of its ongoing registration review of chlorpyrifos.
2. DO I HAVE TO STOP USING THESE IMMEDIATELY?
Farmers and applicators will be able to finish out the 2021 season with any chlorpyrifos products they have in hand.
On Feb. 28, 2022, the new rule will go into effect, and food residue tolerances for chlorpyrifos will be formally revoked, ending legal use of the insecticide on food or feed crops.
EPA must also formally modify or cancel the registrations of chlorpyrifos products labeled for use in food or feed crops in the year ahead. Companies could voluntarily cancel these insecticides, or EPA will issue a "Notice of Intent to Cancel" to them. However, even if those cancellations don't occur before the next spraying season, farmers should not use any of these products after the residue tolerances are revoked on Feb. 28.
3. WHAT INSECTICIDES CAN I USE INSTEAD?
Although chlorpyrifos use has declined significantly in the past decade, it's still in use on agricultural crops, particularly against soybean aphids. It's also used to treat cutworms and plant bugs in cotton, aphids in wheat, rootworm in corn and maggots in sugar beets.
Growers looking for alternatives once chlorpyrifos products are off the market should consult the first appendix of this University of California chart, which lists alternative insecticides for all major crops and pests: https://www.cdpr.ca.gov/….
4. HOW DID THIS HAPPEN?
This decision by EPA is unusual in that it did not originate from the agency's own pesticide registration protocols. In fact, the agency greenlighted an interim reregistration decision for chlorpyrifos in December 2020 and was prepared to keep it on the market.
Instead, this action was prompted by a ruling by a panel of judges on U.S. Court of Appeals for the Ninth Circuit, which ordered EPA to either ban chlorpyrifos or write new rules that eliminated the human health risks raised in lawsuits against the agency.
Faced with this order and a deadline of Aug. 20, 2021, EPA opted to revoke all food residue tolerances for the insecticide, which effectively bans all agricultural uses of it.
This situation -- a federal regulatory agency pulling a product off the market in response to an order from a federal court -- is unusual but becoming increasingly more common recently, says Brook Duer, staff attorney at Penn State's Center for Agricultural and Shale Law. A similar order was handed down by the Ninth Circuit Court of Appeals in June 2020, when it ordered EPA to vacate the registrations of three dicamba herbicides, and the agency complied.
"I think we're living in somewhat unprecedented times," Duer says of these court-ordered pesticide removals. "Just like with dicamba, we're having exceedingly rare procedural moves happening, ordered by a court. I'm not sure how much of a precedent it sets for EPA's normal procedures, but it was an aggressive action by the court."
5. COULD ANYTHING HAPPEN TO CHANGE THIS?
People or organizations could intervene legally before the Feb. 28 deadline, Duer notes. It's possible a group or company could file a lawsuit in a federal court appealing the final rule and asking for a stay of the rule's implementation.
Another appealable action will occur when EPA finally issues notice to cancel chlorpyrifos product registrations, he adds.
Filing an appeal and asking for a stay doesn't guarantee that it would be issued, however. "To get a stay, you have to prove to a judge that you have a reasonable likelihood of success on the merits of your case," Duer explains.
That could be a long shot, given chlorpyrifos's decades-long history of legal battles over human health concerns, which have culminated in EPA's decision here.
Individuals could also file objections to the rule and ask for a hearing before Oct. 29, 2021.
-- For more information on this and other aspects of the rule, visit EPA's FAQ webpage at https://www.epa.gov/…
-- Follow Emily on Twitter @Emily_Unglesbee
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