Settlement of EPA Lawsuit Threatens Pesticide Use in Northern California

WASHINGTON – In a development that has significant implications for the pest control industry, the U.S. Environmental Protection Agency announced a proposed settlement of a lawsuit filed by an environmental group to formally evaluate the effects of 74 pesticides on 11 endangered and threatened species in the San Francisco Bay Area over the next five years, and to impose interim restrictions on use of these pesticides in and adjacent to endangered species critical habitats.

The proposal stems from a settlement with the Center for Biological Diversity, which sued EPA in 2007 for claiming that EPA violated the Endangered Species Act by “registering and allowing the use of toxic pesticides in Bay Area endangered species habitats without determining whether the chemicals jeopardize those species’ existence.”

BACKGROUND. As part of the Endangered Species Act, EPA is required to consult with the U.S. Fish and Wildlife Services – and sometimes the National Marine Fisheries Service – when they make a pesticide regulatory decision to register or re-register a product. If EPA fails to do so, they are in violation of the Act, so if a group wants to file a lawsuit against EPA for not being in compliance with the Act, they can do so and be compensated for legal fees.

“At this point, EPA’s options are not good,” said NPMA Senior Vice President Bob Rosenberg. “They can either 1) enter into a settlement or 2) allow a judge impose a settlement. Either way the decision is adverse to EPA, because they have not implemented the provisions of the law.”

What usually happens is that groups that file such a lawsuit will then do so again, Rosenberg said. For example, the group that filed the suit in California, has filed a notice of intent to sue EPA alleging the use of chemicals in the lower 48 states are having an adverse effect on polar bears in Alaska.

IMPACT ON PCOs. As a result of the lawsuit filed in California, pest control operators in Northern California are presented with serious challenges. Many of the pesticides that are the subject of the proposed injunction are used by pest control operators in Northern California, including all of the rodenticides and all of the soil-applied liquid termiticides.

“It’s a huge impact because we are talking about virtually every chemical a pest control operator uses,” said Rosenberg.

Another major PCO impact is from an operational standpoint. For example, it will be a challenge for pest control operators who make pesticide applications in numerous locations to clearly understand what products are allowed to be applied in which locations. These and other points are included in NPMA's “Request for Extension to the Proposed Stipulated Injuction” that the association filed on July 6. [Click here to read the document].

In the meantime, pest management professionals in California are understandably concerned about this development.

"This is going to create a complex nightmare because it is going to be extremely difficult and complicated to comply,” said Western Exterminator Company President Mike Katz. “You’ve got eight counties, 11 different species and 74 chemicals and all of these different combinations. What I’ve seen of the EPA maps for other similar situations, they are so non-definitive that compliance is going to be extremely difficult and enforcement is going to be very difficult.”

Martyn Hopper, executive vice president of the Pest Control Operators of California (PCOC) said right now that there is a lot of uncertainty among California pest management professionals. “There are major issues the entire industry faces, including economic issues. You will have liability issues that will arise because the maps are not precise (and thus an operator could accidentally be in violation). In many cases PMPs can be criminally liable.”

Hopper and Katz both added that PCOC has been working closely with NPMA to get the 15-day comment period extended, lobby relevant U.S. congressional members, and build coalitions with other groups impacted by this decision.

“What we’ve tried to do is convince EPA that it should take into account public health consequences when imposing any pesticide restrictions,” Rosenberg said. “In these settlements, EPA is able to make exceptions – and they have done so in the California case. We’ve tried to make the case that they need to make a few more exceptions to give PCOs some more latitude.”