EPA Avoids Court Order on Organophosphates, but Timeline Concerns Remain

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The Ninth Circuit has declined to force EPA to act on a petition brought by nonprofits targeting organophosphate pesticides, calling the request “premature” despite noting concerns with the agency’s response timeline for certain pesticides.

The 2021 petition, brought by environmental and farmworker groups, asks EPA to revoke Federal Food, Drug, and Cosmetic Act (FFDCA) food tolerances and cancel Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) registrations for organophosphate pesticides due to health harms.

In a memo issued April 27, 2026, the court generally accepted EPA’s plan to address the disputed pesticides in three groups, finding the delay thus far “below the threshold of what we have generally found to be unreasonable.”

Under EPA’s proposed schedule, the agency plans to respond to the first group of pesticides in 2026.  For the second group, EPA plans to address the FFDCA issues in 2026 and the FIFRA issues during registration review.  EPA plans to address the third group entirely in conjunction with registration review.

Still, the court expressed concern about “the lack of a concrete timeline” for resolving some of the petitioners’ FIFRA claims, particularly those involving pesticides that may present higher risks.

“EPA admits that it will not complete its registration review for any of the thirteen pesticides by the October 2026 statutory deadline,” the memo states.  “If, by the expiration of that statutory deadline, EPA still ‘does not offer a timetable’ for resolving the FIFRA-related claims for those particular pesticides presenting higher levels of risk,” the outcome may be different, the court said.

“If EPA chooses not to address the chemicals posing the greatest risk by the 2026 deadline, Petitioners are free to file a second mandamus petition as to those chemicals,” the court added, using the legal term for a petition seeking to compel agency action.

Registration Review

The court was partly persuaded by the existence of the October 2026 registration review deadline itself, which Congress extended from October 2022 through the Pesticide Registration Improvement Act of 2022, commonly known as PRIA 5.

“Congress thus judged that EPA needs more time to complete the FIFRA registration review process for the types of pesticides at issue,” the memo states.  “This weighs heavily against granting relief with respect to Petitioners’ FIFRA-related claims until after the congressional deadline has passed.”

The October 2026 deadline for registration reviews applies to pesticides registered before October 1, 2007, when Congress formally required EPA to review each registered pesticide at least once every fifteen years to ensure that it can still be used without unreasonable adverse effect on human health or the environment.

Human Health Concerns    

The 2021 petition argues that organophosphate pesticides can cause a range of unreasonable adverse effects, including neurodevelopmental harm in children at exposures “far below” EPA’s current regulatory endpoint.  According to the petition, those harms include impaired motor and mental development, reduced IQ, attention disorders, and autism associated with low-level exposure.

These alleged harms were not sufficient for the court to force EPA’s hand, however.

“The breadth of [Petitioners’] request was perhaps reasonable in 2021 in light of what the EPA characterizes as its earlier conservative assumption ‘that all the [organophosphates] cause similar neurodevelopmental effects.’”  But “all parties now seem to agree that the degree of risk does not appear to be consistent for all thirteen pesticides still at issue.”

For example, the petitioners conceded that the pesticides chlorethoxyfos, tribufos, and terbufos are lower priority at oral argument, while emphasizing greater risk associated with bensulide, the court said.  “On this record, we cannot hold that human risks justify granting the petition as to all thirteen pesticides.”

The case is In re Pesticide Action Network North America, No. 25-3955 (9th Cir.), petition for a writ of mandamus filed 6/25/2025.  The memorandum disposition is unpublished.

EPA Grants Petition to Address PFAS Created by Plastic Fluorination

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On July 10, 2024, EPA granted a citizen petition from environmental groups encouraging EPA to take Toxic Substances Control Act (TSCA) section 6 action for three PFAS substances produced during the fluorination of plastic containers.

The petition alleges that the three PFAS—PFOA, PFNA, and PFDA—pose a variety of serious human health hazards, even at extremely low exposures.  The petition cites EPA’s December 2023 response to significant new use notices filed by Inhance Technologies (“Inhance”), a fluorination company, for substances including PFOA, PFNA, and PFDA.  As discussed in a previous blog post, EPA found that Inhance’s production of the three PFAS presents an unreasonable risk and ordered Inhance to stop producing the chemicals under TSCA section 5, which allows EPA to regulate new substances and significant new uses.

Inhance challenged EPA’s order.  In March, the Fifth Circuit ruled that EPA could not regulate Inhance under TSCA section 5 because Inhance’s fluorination process had been in place for decades; a blog post on the decision can be found here.  However, the court noted that EPA is free to regulate Inhance’s fluorination process under section 6, which allows EPA to restrict existing substances.  Unlike section 5, section 6 requires EPA to conduct a cost-benefit analysis that considers a substance’s benefits and what the economic consequences of regulation would be.

In its letter granting the petition, EPA said that the agency will initiate “an appropriate proceeding under TSCA Section 6 associated with the formation” of the three PFAS during plastic container fluorination.  As part of the proceeding, “EPA intends to request information, including the number, location, and uses of fluorinated containers in the United States; alternatives to the fluorination process that generates PFOA, PFNA, and PFDA; and measures to address risk from PFOA, PFNA, and PFDA formed during the fluorination of plastic containers.”

FDA Reaffirms Softening Chemicals are Okay for Food Packaging

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FDA recently denied a citizen petition requesting that the Agency prohibit the use of eight ortho-phthalates and revoke prior sanctioned uses for five additional ortho-phthalates in food packaging. Ortho-phthalates are used to soften plastics. They can be found in plastic film wrap on foods, cap gaskets used on the metal lids of glass jars, beverage caps, and other packaging.

The original petition was submitted by Earthjustice in 2016. FDA responded in May 2022, denying the petition; Earthjustice submitted a petition for reconsideration in June of that same year. Earthjustice stated that it filed the petition for reconsideration because FDA needed to consider the “mounting scientific evidence that phthalates in food cause serious harm,” evidence that has been developed since the petition was originally submitted.  According to Earthjustice, there is now significant scientific evidence that links phthalates to fibroid tumors in women and preterm births.

The petition for reconsideration alleged that FDA ignored the scientific information presented within the original petition, did not take new information into consideration when denying the petition, and failed to take action on the use of phthalates. In its response to the petition for reconsideration, FDA maintained that it did, in fact, assess the scientific information presented in the original petition, which it did not find persuasive enough to change its position on phthalate regulation at this time.

Further, under 21 CFR § 10.33, FDA is only required to grant a petition for reconsideration if all the following criteria apply:

(1) The petition demonstrates that relevant information or views contained in the administrative record were not previously or not adequately considered.

(2) The petitioner’s position is not frivolous and is being pursued in good faith.

(3) The petitioner has demonstrated sound public policy grounds supporting reconsideration.

(4) Reconsideration is not outweighed by public health or other public interests.

The Agency holds that no information was presented in the petition that has not already been presented and is, therefore, in the administrative record. Because all of the above requirements must be met for reconsideration without the presentation of new relevant information in the petition, FDA has no further obligation at this time.