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Federal agencies disagree on buffers

Capital Press

Posted 10/30/2012

Regulatory “buffers” that restrict spraying of certain pesticides near waterways are in limbo due to disagreements between federal agencies about the chemicals’ impact on fish.

The U.S. Environmental Protection Agency, which regulates pesticides, appears to be withholding action on the buffers until legal controversies are resolved by the 4th U.S. Circuit Court of Appeals, experts say.

“It would be premature for them to jump in,” said Doug Nelson, senior vice president and general counsel for CropLife America, a pesticide industry group.

Environmental groups believe that EPA hasn’t implemented the buffers even though it’s required to by law, and are pressing a federal judge to compel the agency to take action.

The National Marine Fisheries Service issued a biological opinion that found chlorpyrifos, diazinon and malathion jeopardize federally protected salmon species and should not be sprayed within 500 to 1,000 feet of waterways.

By not implementing those measures, the EPA is responsible for fish dying from exposure to those chemicals under the Endangered Species Act, said Stephen Mashuda, attorney for the Earthjustice environmental law firm.

“EPA is liable for that take,” he said.

The agency had asked pesticide manufacturers Dow AgroSciences, Makhteshim Agan and Cheminova to voluntarily change their pesticide labels to include buffer requirements, but the companies refused because they think the findings from NMFS are invalid, said Nelson.

The EPA can force the manufacturers to recognize the buffers by canceling their existing labels and then issuing new ones, but the agency has been reluctant to do so, he said.

The agency has expressed grave disagreements with the “biological opinion” issued by NMFS that calls for buffer requirements, Nelson said.

To cancel the existing pesticide labels, however, EPA would have to prove that those conclusions were correct before an administrative judge and potentially a federal court, he said.

“It’s a major court battle, so to speak,” he said.

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