ELR Citation: 41 ELR 20295
No(s). 08-377 (2d Cir. Sep 16, 2011)

The Second Circuit vacated in part EPA's risk assessments for the pesticide dichlorvos. To determine safe levels of exposure to dichlorvos for certain exposure scenarios, EPA relied heavily on a single study in which six people were paid to ingest a dose of the pesticide every day for three weeks. Based on the results of this human study, EPA set tolerances regarding the maximum level of dichlorvos residue on food products and registered numerous dichlorvos products for sale and distribution in the United States. The Food Quality Protection Act (FQPA), however, requires EPA to apply an additional tenfold margin of safety for infants and children. Because EPA failed to explain why it did not use a tenfold children’s safety factor for dichlorvos risk assessments that relied on the human study, EPA acted in an arbitrary and capricious manner. Accordingly, the court vacated those portions of EPA’s final order assessing the risk of dichlorvos based on the human study, as it was not “reliable data” on which EPA could base its decision to choose a lower children’s safety factor. The environmental group challenging EPA's order also sought review of EPA's decision not to apply the tenfold children’s safety factor for certain risk assessments in which EPA did not rely on the human study. The group argued that EPA cannot reduce or waive the tenfold children’s safety factor unless and until it completes the FQPA-mandated endocrine disruptor screening program. But the FQPA allows EPA to reduce or waive the tenfold margin of safety if “reliable data” indicate that a lower margin of safety will be safe for infants and children, and the “reliable data” need not come from the endocrine disruptor screening program. Accordingly, the court denied this portion of the group's petition for review.