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Pesticide Makers ask Court to Overturn Restrictions by Mateusz Perkowski Capital Press, November 1, 2012

Dow attorney says EPA exaggerated effects of chemicals

Pesticide manufacturers recently tried to persuade a federal appeals court to overturn restrictions against spraying several common pesticides near waterways.

The controversy relates to a 2008 finding by the National Marine Fisheries Service that chlorpyrifos, diazinon and malathion jeopardize West Coast salmon species that are protected under the Endangered Species Act.

The biological opinion, or BiOp, instructed the U.S. Environmental Protection Agency to require buffers of 500 to 1,000 feet where the pesticides can't be sprayed around waterways, depending on whether they're applied from the ground or the air.

Attorneys for the pesticide companies -- Dow AgroSciences, Makhteshim Agan and Cheminova -- recently asked the 4th U.S. Circuit Court of Appeals to vacate the agency's biological opinion and order officials to reconsider it.

The agency exaggerated the negative effects of these chemicals and failed to explain the assumptions in its study, said Christopher Landau, attorney for Dow AgroSciences. "They have to provide reasoned decision-making."

For example, the biological opinion assumes that fish will be exposed to each pesticide for four days but doesn't justify that theory, said David Weinberg, attorney for Makhteshim Agan, during recent oral arguments.

"There's no explanation in the BiOP whatsoever of the basis of the 96-hour exposure," he said. "There's plenty in the BiOp that shows it doesn't make sense."

The biological opinion also relied on outdated information about pesticide levels in waterways that was gathered before the EPA enacted more stringent application restrictions, Weinberg said.

A federal judge wrongly dismissed the pesticide manufacturers' request to vacate the biological opinion by impermissibly relying on an NMFS official's "post-decision justifications," the attorneys said.

Allowing after-the-fact rationalizations would let federal agencies "defer any meaningful explanation of their decisions until they had tested whether commenters cared enough to go to court," according to a court filing by the pesticide firms.

Mark Haag, an attorney representing the agency, rejected the argument that the judge abused his discretion by accepting an affidavit from the official.

"It connects some of the dots but it doesn't provide a new rationale," he said.

Regardless of the official's declaration, the information within the BiOp is enough to support its conclusions, Haag said.

NMFS explained the procedure and data used to develop the document, as well as its weaknesses and assumptions, and arrived at a rational decision, he said.

"It's a task of biblical proportions to count all the salmon in the rivers and determine how these three pesticide ingredients used in hundreds of different pesticides are going to affect 28 species in 20,000 stream miles of critical habitat," Haag said.

When asked by a 4th Circuit judge about the economic effects of buffers, Haag said "there's no balancing requirement" under the law because species preservation takes priority.

"The determination of jeopardy is based on biology. It's not based on economic impact," he said.

The agency acknowledged in a court filing that the "BiOp does not explicitly discuss the basis for the assumption" that salmon are exposed to the pesticides for four days.

However, four days is the "standard period for acute toxicity testing for fish" and it's likely that salmon are actual exposed to the chemicals for longer periods because they're applied several times a season, the filing said.