On November 18, 2021, the United Farm Workers and several other non-governmental organizations (NGO) filed a petition with the U.S. Environmental Protection Agency (EPA) to revoke all food tolerances and cancel registrations for organophosphate (OP) pesticides (Petition). The Petition was filed pursuant to the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. Section 346a(d), the Administrative Procedure Act (APA), 5 U.S.C. Section 551, and the First Amendment Constitutional Right to Petition.

The Petition seeks final EPA actions to revoke tolerances and cancel registrations for 15 OPs by the registration review deadline of October 1, 2022.

The Petition also states that EPA must take the following actions:

• Update EPA’s human health risk assessments (HHRA) for OP pesticides to use a regulatory endpoint that the Petition claims will protect children from learning disabilities and other neurodevelopmental harm.

• Complete Endangered Species Act (ESA) consultations and ensure its registrations comply with the ESA;

• Conduct endocrine disruptor screening of all pesticides.

• Complete a cumulative risk assessment for all the OPs to address their cumulative acute poisoning and neurodevelopmental effects.

The Petition focuses on 15 OPs that are currently going through registration review:

• Acephate (EPA-HQ-OPP-2008-0915);

• Bensulide (EPA-HQ-OPP-2008-0022);

• Chlorethoxyfos (EPA-HQ-OPP-2008-0843);

• Chlorpyrifos-methyl (EPA-HQ-OPP-2010-0119);

• Diazinon (EPA-HQ-OPP-2008-0351);

• Dichlorvos (EPA-HQ-OPP-2009-0209);

• Dicrotophos (EPA-HQ-OPP-2008-0440);

• Dimethoate (EPA-HQ-OPP-2009-0059);

• Ethoprop (EPA-HQ-OPP-2008-0560);

• Malathion (EPA-HQ-OPP-2009-0317);

• Naled (EPA-HQ-OPP-2009-0053);

• Phorate (EPA-HQ-OPP-2007-0674);

• Phosmet (EPA-HQ-OPP-2009-0316);

• Terbufos (EPA-HQ-OPP-2008-0119); and

• Tribufos (EPA-HQ-OPP-2008-0883).

Commentary

Now that EPA is in receipt of the Petition, it must determine that it has received a “complete” petition to revoke a tolerance based on criteria set forth in EPA’s regulations (40. C.F.R. § 180.7). If EPA determines the Petition is complete, it will publish in the Federal Register within 30 days a notice of filing for the Petition, which must include the informative summary of the Petition submitted by the petitioner. FFDCA Section 408(d)(3). A public comment period follows.

Generally, the Petition is an important signaling document that the petitioners use to outline how EPA should approach the 2022 registration review deadline for these OP products. It signals that unless EPA completes all elements of a registration review, including a complete ESA assessment and an endocrine disruptor review -- which may be impossible for EPA to complete -- then EPA should act now to revoke OP tolerances in light of arguments contained in the Petition. It stresses the environmental justice commitments announced by the Biden Administration, arguing that evidence is clear, in their view, of the need to take immediate action to end OP use across virtually all of the members of the class. It seems to anticipate that even if EPA rolls out registration reviews of the individual OP pesticides before the deadline, there will likely be comment and debate about the specific analyses and evaluation of each member of the category. This would additionally delay the completion of any revised cumulative risk assessment for the OPs.

From the view of the petitioners, not only will EPA miss the 2022 deadline, but they also argue the evidence is sufficient now for EPA to take action to revoke tolerances for these compounds based on evidence already before EPA. Other stakeholders and EPA’s eventual analyses will dispute such conclusions, but completing registration review (as defined in the Petition) will likely be impossible to complete before next October. As a result, the Petition here suggests the template these advocacy groups will use to challenge continued registration of OP products past the 2022 deadline.