A federal judge in California has ruled that the US Environmental Protection Agency (EPA) has no duty under federal pesticide law to complete rulemaking on the disclosure of hazardous ingredients in pesticide products.

If the decision stands the EPA will therefore be allowed to keep the public in the dark on the full list of toxic ingredients in pesticides registered by the agency.

The judgment came last week in response to a lawsuit filed by the Center for Environmental Health, Beyond Pesticides, and Physicians for Social Responsibility, arguing that EPA is failing in its legal duty to protect consumers from supposedly ‘inert’ but often harmful pesticide ingredients.

US District Judge William Orrick stated in his ruling: “The EPA has no mandatory duty to require disclosure of ‘inert’ ingredients in pesticides, even if those ingredients qualify as hazardous chemicals under separate statutes.”

Instead, he ruled, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) states that EPA “may require” disclosure of inert ingredients, and so enjoys broad discretion on whether to force manufacturers to divulge the ingredients.

But Yana Garcia, attorney for the plaintiffs, insisted that the EPA’s effort to encourage voluntary disclosures has “simply not worked”, and that the toxic ingredients clearly meet the standard for ‘unreasonable risk’ – which the EPA is tasked with combating under FIFRA.

The litigants are now considering whether to appeal the judgment. “It defies logic that chemicals EPA finds to cause cancer and permanent neurological conditions would not meet this standard”, Garcia stated. “EPA has been dragging its feet for decades. We don’t want to be back here in 10 years. We hope EPA can solve this problem now.”

The 200 ‘inert’ ingredients that poison and kill

The ligants in the case have argued for decades that people and communities cannot make informed decisions on pesticide products without full disclosure of all product ingredients.

The claimed ‘proprietary interests’ of chemical manufacturers are also “bogus”, they maintain, “given the burgeoning market of pesticide products exempt from registration under the FIFRA 25(b) provision, which are required to disclose all ingredients.”

An inert ingredient is defined as any ingredient that is ‘not active’, or specifically targeted to kill a pest. According to a 2000 report produced by the New York State Attorney General, The Secret Ingredients in Pesticides: Reducing the Risk, 72% of pesticide products available to consumers contain over 95% inert ingredients and fewer than 10% of pesticide products list any inert ingredients on their labels.

The report also found that more than 200 chemicals used as inert ingredients are hazardous pollutants in federal environmental statutes governing air and water quality, and, from 1995 list of inert ingredients, 394 chemicals were listed as active ingredients in other pesticide products. For example, naphthalene is an inert ingredient in some products and listed as an active ingredient in others.

Some ‘inert’ ingredients are even more toxic than the active ingredients. One of the most hazardous ingredients in the commonly used herbicide Roundup, POEA, is a surfactant, which is classified as an inert and therefore not listed on the label. Researchers have found that POEA can kill human cells, particularly embryonic, placental and umbilical cord cells.

A long story of delay and prevarication

A decision in this case has been long awaited, as the dispute began back in 2006 when Beyond Pesticides and other groups petitioned the EPA to require pesticide manufacturers to disclose 371 inert ingredienton their pesticide product labels.

After an extended period of time, in 2009 EPA finally responded to the petition asking it to require that inert ingredients be identified on the labels of products that include them in their formulations.

Then, on December 23, 2009, EPA took another promising step forward with an Advanced Notice of Proposed Rulemaking (ANPR), announcing its intention to seek public input on developing an inert ingredient disclosure rule. Putting forth two alternative proposals: the first would require listing of all ingredients already identified as hazardous; the second would simply require listing of all ingredients.

Unfortunately, EPA has taken no further action since then. As a result, some of the original petitioners filed an ‘undue delay’ complaint against EPA in 2014 for failing to complete rulemaking that would require pesticide manufacturers to disclose the inert ingredients on their pesticide product labels.

In response to that lawsuit, EPA retracted its previous ANPR and intention to move forward with rulemaking. Instead, EPA issued a letter to the original 2006 petitioners describing its intentions to seek non-rulemaking regulatory programs and voluntary disclosure standards, stating:

“In sum, we believe we have identified a more effective and timely way to achieve our common objective; but, because this approach would no longer pursue the rulemaking the EPA initiated via the ANPRM seeking to mandate the disclosure of potentially hazardous inert ingredients on pesticide labels, as requested in the 2006 petitions, this amended response constitutes a denial of the petitions.”

EPA then used its change of position and denial of the 2006 petition as a basis to have the undue delay lawsuit thrown out because it would no longer be issuing a rulemaking.

Lawsuit claims ‘unreasonable risk’

In response to this, plaintiffs filed this current lawsuit, advocating against EPA’s current policy to encourage voluntary disclosure by manufacturers, given that it has not been effective to-date in making people aware of what inert ingredients are found in pesticides.

They also continue to argue that the toxic ingredients in question clearly meet the standard for ‘unreasonable risk’ which the EPA is tasked with combating under FIFRA. The failure of EPA to require the disclosure of inert ingredients therefore poses many problems for those trying to protect human health, according to Beyond Pesticides:

“Failure to disclose the ingredients not only prevents consumers and decision makers from making informed decisions and comparing hazards. Local and state governments also run into roadblocks in their efforts to protect citizens, as they cannot readily evaluate what is in the pesticides products (formulations) that they are spraying in their communities to make independent judgments on safety, putting their citizens at risk.

“Under the prevailing laws, it is EPA’s duty to assess these risks and disclose the necessary information, through pesticide labels, as to what harmful ingredients pesticides contain.”

Beyond Pesticides has long advocated a regulatory approach that prohibits hazardous chemical use and requires alternative assessments to identify less toxic practices and products under the ‘unreasonable adverse effects’ clause of FIFRA.

Oliver Tickell is Contributing Editor at The Ecologist.

Sources: Beyond Pesticides; Courthouse News Service.