The 9th Circuit Court of Appeals issues a Scathing Writ of Mandamus Against the U.S. Environmental Protection Agency for its Pesticide Inaction

The 9th Circuit Court of Appeals Lays a Smack down on the EPA for Its Pesticide Inaction.

See the 9th Circuit Court of Appeals Writ of Mandamus Order here:

Chlorpyrifos 9th Opinion

When a court opinion starts off with a sentence like this, you know it is going to be a good read:

“Although filibustering may be a venerable tradition in the United States Senate, it is frowned upon in administrative agencies tasked with protecting human health.”

The 9th Circuit Court of Appeals recently issued a “writ of mandamus,” a command to a court, agency or person to perform its public or statutory duty. The writ ordered the Environmental Protection Agency (EPA) to act on a 2007 petition to ban chlorpyrifos, a widely used agricultural insecticide whose dangers have been studied for many years.

It’s a big deal for several reasons. First, Earth Justice through Pesticide Action Network North America and the Natural Resources Defense Council have been fighting to get this dangerous pesticide out of agricultural fields for more than a decade. And the judges seem to be losing patience right along with them:

“Pesticide Action Network North America and the Natural Resources Defense Council have been waiting for years for the United States Environmental Protection Agency to respond to their administrative petition requesting a ban on the pesticide chlorpyrifos. Instead, they’ve received a litany of partial status reports, missed deadlines and vague promises of future action.”

Second, while the chemical has already been banned from residential and urban uses, it remains a huge threat to farm workers, their children and rural families. Every day, month and year the EPA drags its feet or plays footsie with pesticide manufacturers, more people are exposed and poisoned. The court recognizes this danger:

“In view of EPA’s own assessment of the dangers to human health posed by this pesticide, we have little difficulty concluding it should be compelled to act quickly to resolve the administrative petition.”

Third, after years of legal filings and the EPA’s continued inability to meet its own deadlines, the judges are not above using a bit of dry wit:

“As an astute reader might have guessed, EPA’s timeline proved not to be ‘concrete’.”

And EPA’s latest response to the Court garnered this response:

“EPA’s response isn’t a ‘concrete timeline’ for resolving the petition—it’s a road map for further delay.”

This time, the EPA had better take the court’s instructions seriously:

“We recognize the scientific complexity inherent in evaluating the safety of pesticides and the competing interests that the agency must juggle. However, EPA’s ambiguous plan to possibly issue a proposed rule nearly nine years after receiving the administrative petition is too little, too late.”

Now, the court is demanding action:

“This delay is egregious and warrants mandamus relief. We order EPA to issue a full and final response to the petition no later than October 31, 2015.”

The EPA has only two real options:

The agency could reverse course and deny the petition for a ban, going against its previous findings and all the other science that shows how harmful chlorpyrifos is to human health—especially the health of pregnant women and children—and to the environment. This would be a hard choice to defend, since the EPA’s own June 2015 status report to the court announced a plan to eventually “partially grant” the petition based on human health risks.

The EPA could grant the petition and propose to revoke all tolerances for chlorpyrifos. Revoking tolerances would essentially ban the use of chlorpyrifos, since tolerances control the amount of pesticide residue that is allowed to remain on food and in drinking water. Without an allowable tolerance, a pesticide cannot be applied to crops.

There is probably a third option in which the EPA either begs the court for more time or proposes yet another schedule to coordinate with pesticide manufacturers about changing labeling requirements. Given the court’s tone in this latest opinion, however, Earth Justice believes this path would prove a dead end.

That’s tremendous progress after years of fuzzy replies and no answers. Who knew the “extraordinary remedy of mandamus” could be so, well, extraordinary?

See also:

The EPA is Rolling Back PCB Safeguards and Has Significantly Raised the Toxic Exposure levels for Our Nation’s Children

https://lawofficesofbarryfagan.wordpress.com/2015/08/22/the-epa-is-rolling-back-pcb-safeguards-and-has-significantly-raised-the-toxic-exposure-levels-for-our-nations-children/

See attached pdf copy:

8_20_15_Comparison_EPA_PCB_guidance

See link to the comparison between the new EPA and old EPA guidance:

http://www.peer.org/assets/docs/epa/8_20_15_Comparison_EPA_PCB_guidance.pdf

See link to News Article Concerning the EPA’s Stealth Rollback of School PCB Safeguards:

http://www.sonorannews.com/archives/2015/150826/news-EPA.html

“Exposure to and health effects of volatile PCBs”

http://www.ncbi.nlm.nih.gov/pubmed/25822318

See EPA Study entitled:

“Polychlorinated Biphenyls (PCBs) in School Buildings: Sources, Environmental Levels, and Exposures”
Sources of PCBs in School Buildings
“PCBs-containing caulk is a primary source of PCBs in and around school buildings. PCBs from exterior caulks around windows and mechanical ventilation system air intakes can lead to elevated concentrations in indoor spaces. PCBs in exterior caulk are likely to enter the soil near school buildings with the highest soil PCB levels found in closest proximity to the building. Caulk containing PCBs was found to be mostly intact and still somewhat flexible, but visual examination alone may not be adequate for determining if PCBs are present and testing is needed to determine if caulk or other sealants in a building contain PCBs.” See report: pcb_EPA600R12051_final

PCBs Affect a Whole Building, Not Just a Single Window

If PCB-laden caulking over 50ppm has been found in one classroom, then it is probable that PCB-laden caulk is in all classrooms in that building. It would be absurd to propose removal of only the tested window (which is what the district has proposed) when adjacent windows used the same caulking that contain high levels of PCBs.

12029766_766201816822513_7554779534588348547_o

The Santa Monica Malibu Unified School District’s Superintendent Sandra Lyon sought the assistance of the California Association of School Administrators to lobby the EPA to not enforce PCB source testing and remediation in Malibu schools.

See California Association of School Administrators email to the EPA.

This email was obtained through a freedom of information act request.

Link to email:

California Association of School Administrators Email to EPA

Thereafter, on August 1, 2014 Laura Preston, legislative advocate for the California Association of School Administrators, sent an email to Jared Blumenfeld, EPA Region 9 Administrator, in which she revealed that her organization had been working with Superintendent Sandra Lyon for several months on the PCB issue in Malibu schools. She expressed that her office had also met with the offices of all of our state and federal elected officials, including the California Governor’s office about this issue.

This email suggested that Blumenfeld’s actions could give the appearance of “preferential treatment “ to Malibu. Preston said that: “…any preferential treatment to the community of Malibu will give the appearance that an affluent largely white community will receive preferential treatment. This can easily become a civil rights issue for all of us.”

DECEMBER 2015 UPDATE ON CURRENT HEALTH ISSUES WITH STUDENTS AND TEACHERS AT MALIBU SCHOOLS

  • 6 teachers with thyroid cancer;
  • 4 alumni  (28-year-old)with thyroid cancer;
  • 1 current student with thyroid disease, possible thyroid cancer
  • 25 teachers with thyroid disease (including 14 of 30 Malibu Middle School teachers);
  • 10 alumni in their 20s with thyroid disease;
  • 1 alumni (22-year-old) with environmentally induced melanoma;
  • 2 current teachers with environmentally induced melanoma;
  • 1 teacher hospitalized from an environmentally-induced rash;
  • 1 current student with an environmentally-induced rash lasting several months
  • innumerable cases of headaches; persistent rashes; daily migraines; infertility issues; hair loss; immune issues; respiratory issues; and diabetes.

There is a statistically significant “relationship” between spending your days at Malibu High School and Thyroid Cancer

For details, go to: https://lawofficesofbarryfagan.wordpress.com/2015/06/24/there-is-a-statistically-significant-relationship-between-spending-your-days-at-mhs-and-thyroid-cancer/

See also the Report on Improper Collusion Between Environmental Pressure Groups and the Environmental Protection Agency As Revealed by Freedom of Information Act Requests

This report examines lessons learned from documents produced pursuant to several Freedom of Information Act (FOIA) requests by the Energy & Environment Legal Institute (E&E Legal, or EELI) — pieced together with others obtained by the Competitive Enterprise Institute (CEI). It focuses on the relationship between the Obama Administration’s Environmental Protection Agency (EPA) and various special interest groups.

See Report here: EE-Legal-FOIA-Collusion-Report-9-15-2014

EPA now needs a PCB Smackdown!

See America Unites for Kids’ post concerning Pesticide Action Network’s victory against the U.S. Environmental Protection Agency for Pesticide Inaction.

http://us9.campaign-archive1.com/?u=7f78cd97057aa8eaeb574d18d&id=56a1902bbd

Tell EPA:

To Protect children! Enforce the law and Remove Toxic PCBs from our Nation’s Schools.

https://www.change.org/p/barbara-boxer-ted-lieu-dianne-feinstein-kamala-harris-tell-epa-protect-children-enforce-the-law-and-remove-toxic-pcbs-from-our-nation-s-schools#petition-letter

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