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cancel is taken based on a compiled documentary record which includes the registration file, scientific documents which are exhibits and a published order with findings.

Written petitions and comments are made part of a formal docket. This is, we believe, a sufficient record for review by a circuit court.

The Environmental Defense Fund concurs in these views of the Environmental Protection Agency, and on the basis of experience, suggest that all judicial review be held in the courts of appeals.

With the improvements we have suggested today in H.R. 10729, as well as those which we will cover in greater detail in our submission to the committee, we believe the American public will be greatly aided by a strengthened regulatory procedure which will not only prevent harmful economic poisons from ever reaching the market, but which will prevent the pesticide industry from incurring the heavy economic losses involved in registering a pesticide only to have it subsequently suspended or cancelled.

Further, the public, as represented by citizens environmental groups like those sitting before you today, will have a say in the ultimate determination of the important questions facing the society regarding pesticides, human health, and the environment, instead of leaving these decisions entirely up to the pesticide industry and the regulatory agencies.

Thank you.

I might also say I have read the statements of the other members of the panel and agree with their comments.

Senator HART. We will welcome the detailed analysis that you will provide.

(The analysis follows:)

SUPPLEMENTARY COMMENTS BY WILLIAM A. BUTLER ON BEHALF OF THE
ENVIRONMENTAL DEFENSE FUND

The following are the supplementary comments of the Environmental Defense Fund (EDF) submitted in reference to HR 10729:

The Environmental Defense Fund wishes to draw to the Committee's attention the following points which were not adequately covered in the comments offered June 15 by interested persons appearing before the committee, and which in our opinion are not fully covered in the proposed amendments to this Bill offered by Senators Hart and Nelson.

1. The Environmental Defense Fund opposes Section 23(c) permitting state registration of pesticides for specific local needs for limited but extendable time periods.

EDF feels that this provision is unnecessary, will be difficult to enforce, and may well provide a huge and unnecessary loophole in the regulatory provisions of this act.

2. Concerning Section 10 of the Bill, dealing with disclosure of information, EDF feels that the Environmental Protection Agency (EPA) should be permitted to determine in the first instance what constitutes a trade secret as is currently provided in EPA's regulations, and not be bound by the views of the pesticide manufacturers submitting the data, as currently is provided in the Bill. Ultimately the determination of the Environmental Protection Agency can 'be challenged in the courts, but in the first instance, EPA should be permitted within the carefully circumscribed confines of its regulations to make this determination. (The current version of the Bill, as interpreted by the Senate Agriculture Committee on page 10 of its report, at subparagraph 8, expresses a desire to "leave the determination of what is a trade secret to the courts (rather than the Administrator)." If court action is required for every Freedom of Information Act request to EPA, the purposes of that Act will be effectively thwarted.

3. EDF feels that the question of human safety is inadequately covered in the bill as presently drafted and supports the original amendment number 3 offered by Senator Stevenson. This amendment would provide in the sections dealing with classifications for restricted use that not only "applicators" but also "farmers, farm workers, or other persons who may come into contact with the pesticide or pesticide residues," should be specifically protected. There is value in this instance of making explicit what probably is already implicit, i.e., that hazard to farm workers from pesticides is a subject of major concern in classifying and registering a pesticide.

4. As part of Section 3's discussion of the control of pesticide use, EDF feels that EPA should be left with the option to create a permit system for particularly dangerous pesticides not sufficiently hazardous either to suspend or to cancel outright. If not a permit system, EPA should be given the express authority to require the actual physical presence of a certified applicator during the application of a pesticide which EPA determines to be particularly hazardous. Further, there should be a specific requirement in Section 3 that where the same pesticide is registered for both restricted and general use, that separate packaging as well as separate labeling should be required.

5. The time limits of Section 4, within which the provisions of this Bill are to become effective provide far too much time to elapse before the Act becomes law. 6. Section 14 (a) (3) provides for an automatic violation hearing held where an alleged violator resides. This should be changed to require a hearing only if requested by either party. The Bill or committee report should make clear that it is contemplated that violation hearings will be the exception rather than the rule, that other means of defense against charges of violation (such as correspondence by the accused's attorney) will be relied upon in most instances, and that if there is a hearing, it should take place at a place of mutual convenience. To require that in each instance of a violation an adversary hearing be held where the alleged violator resides would be practically so onerous as in fact to cripple any effective enforcement of this Act.

7. In the discussion of Section 6(c) dealing with hearings, it is provided that "other interested persons with the concurrence of the registrants" may "contest the denial, cancellation, or suspension of registration, or a change in classification, where the registrant fails to do so." It is unclear from the wording whether the registrants approval is also required to protest a failure to deny, cancel or suspend. It should be made clear that this approval is not required since the party contesting the failure to deny, cancel or suspend would always have interests adverse to the registrant, and therefore would be unlikely to get from the registrant permission to contest an EPA decision favorable to the registrant.

Further, it should be specifically stated in the law that these "interested persons" must meet the standing requirements currently governing court actions. 8. Section 20 (a) states that EPA should be required to solicit the views of the United States Department of Agriculture before it publishes any regulations. This provision should be made more specific by requiring that EPA solicit Agriculture's views prior only to the publication of final regulations on matters covered by this statute. There is no reason why EPA need solicit USDA's views prior to the publication of draft regulations.

9. Provisions of Section 24(b) calling for the exemption of pesticides regulated by another federal agency are entirely superfluous and present a potential loophole which should be closed by elimination of this provision. Because DDT or Mirex, for example, are now restricted to USDA use does not mean these economic poisons should be exempt from the provisions of the Act.

10. The reference in Section 2 to arsenic should also be eliminated since there is no reason specifically to single out this one economic poison for comment, except for the fact that arsenic is currently under review by EPA, its uses may be banned, and pesticide manufacturers currently making use of arsenic would like to argue that in recent legislation Congress focused specific attention upon arsenic, this implicitly supporting its continued use. For this very reason, specific reference to arsenic is unnecessary and should be eliminated.

II. The Environmental Defense Fund wishes specifically to associate itself with the following comments concerning this Bill as reported out by the Senate Agriculture Committee, and as referenced to a greater or lesser degree in comments of others before the Committee on Commerce on June 15, or in the proposed amendment by Senators Hart and Nelson.

1. The provisions in Section 6 concerning the appointment of the advisory committee are vague as to who does the appointing, qualifications of persons to be appointed, and to whom the advisory committee ultimately reports. Specifics of appointment should be spelled out in legislation to a greater extent than currently.

Further, there should be an option left for the Administrator to extend the amount of time within which his advisory committee may report. Many of the questions involved may require lengthy study. Each of the four advisory committees appointed to date has asked for an extension of time in which to file its report.

2. Provisions of Section 6 regarding suspension hearings do not provide for the personal participation of counsel for the environmentalists who may well have brought the initial suspension petition. This omission should be rectified. Those calling for suspension are unlikely to delay the suspension hearing they have requested.

3. Provisions of Section 15(a) for judicial review currently state that appeals after suspension or cancellation hearings should be in the Court of Appeals, whereas appeals from EPA's failure to hold suspension or cancellation hearings should be in the district court. Such a distinction is unwise. The provisions of the current law should be retained, i.e., that all appeals from a final order of the Environmental Protection Agency should be filed in the Court of Appeals, as is the case with other final orders of administrative agencies. The only reason given by the Senate Agriculture Committee for district court appeals is that allegedly failure to hold a suspension or cancellation hearing does not create a reviewable record. EDF's litigation in the D.C. Circuit Court of Appeals regarding failure to suspend DDT and Aldrin/Dieldrin shows this is not true. There will be an adequate record in either case for review in the Court of Appeals. The case law on DDT, as well as Aldrin/Dieldrin supports the position that petition of EPA's decision not to hold suspension and cancellation hearings can be heard by the Court of Appeals.

4. There should be added to the Bill provisions of the nature of amendment number 1013 of Senators Hart and Nelson requiring specific notification to foreign governments receiving pesticides exported from the U.S. regarding any relevant and current cancellation or suspension notices outsetanding here involving the pesticides in question. Further, additional information should be as a matter of course provided to foreign governments concerning potential hazards of pesticides being sold them by U.S. concerns.

5. The provisions of Section 17 calling for possible federal and state agency exemptions from the provisions of this bill are entirely superfluous and open large loopholes which should not be permitted to exist. In several instances involving the U.S. Department of Agriculture, for example, alleged overuse of pesticides has been the focal point of litigation. The State of Florida has been criticized in the past for permitting intrastate uses of Azodrin resulting in bird kills, as another example. There is no reason why federal and state agencies should be exempt from the strictures of the proposed Act. (This argument is particularly compelling in the case of state agencies: the provision for exemption of state agencies was added by the Senate Agriculture Committee for reasons nowhere explained in its report.)

6. The provision of Section 23 prohibiting political subdivisions of states from adopting stricter regulations than the state or federal government should be dropped. There is no reason why counties or other political subdivisions of a state cannot decide that they wish not to have a particular pesticide used within their boundaries. Massive state spraying for gpysy moths in the Northeast is an example of an instance in which many local communities, and quite properly, have opted out or banned pesticides being so used. Any amendment, however, should not permit political subdivisions of states to be more liberal in their treatment of pesticides than the relevant state or federal law.

7. Section 14 should provide for increased maximum penalties for violations of the Act by private pesticide applicators. In an age of corporate farmers, a court should be given the opportunity to assess a fine adequate to deter repeated violation of the Act.

8. A citizens suit provision such as that of Senators Hart and Nelson's amendment number 1011 should be added to the Bill. It could be very similar to that included in the Toxic Substances Bill, the Federal Clean Air Act, and the Michigan Citizens' Suit Act. The ability of citizens to enforce the Pesticide Act if responsive officials fail to do so is a very important ingredient in the effectiveness of the entire Act.

9. The provisions of Section 10 dealing with disclosure of information should make it clear that registration data submitted in support of a proposed registration by a pesticide maker should be made available to the public prior to registration in order to allow informed public comment. Comment after a pesticide is registered is too late. Wording such as that of Senators Hart and Nelson's amendment 1004 is embraced by EDF.

10. The provisions of Section 3 should make it perfectly clear that data submitted in support of pesticide registration should not be exclusive, and that the Environmental Protection Agency should be able to use the test data submitted by one company to assess the adequacy of test data submitted by another company. Current wording of this section seems to have two contradictory views juxtaposed within the same sentence on this question.

11. The criteria for registration of pesticides as discussed in various provisions of Section 2 require changes. As is suggested by proposed amendment 1012 of Senator Hart and Nelson, considerations of "benefits" should be dropped from the definition of what constitutes "substantial adverse effect upon the environment" since what is really involved here are two distinct questions: 1, are there adverse environmental effects from the pesticide; and 2, if so, are these adverse effects outweighed by the supposed benefits of the pesticide? There is no reason why these two questions should be blurred as in the present version of the bill. The balancing of benefits and risks, in other words, should not be done after it is separately determined whether there are adverse environmental effects from use of the pesticide, and whether the pesticide has benefits.

12. EDF suggests that all reference to lack of essentiality of a pesticide constituting no bar to its registration be dropped from Section 3, since EPA has suggested that the sense of this provision is implicit in other provisions of the Act in its present wording, the clause seems affirmatively to encourage registration of superfluous pesticides.

We hope the above elaboration of EDF's views supplementing its formal statement will be of use to the Committee in its consideration of this most important legislation, and we thank the Chairman for his invitation to submit our proposals.

Senator HART. Having been involved so heavily with the DDT litigation, how do you react to the questions that are now being raised as to the health threat that is represented by some of the pesticides which are suggested as suitable, appropriate, effective alternatives to DDT?

Mr. BUTLER. In brief, I would answer in this fashion, which incidentally is the answer that both the environmental groups and EPA have accepted. First, 86 percent of DDT's current use domestically is on cotton. Now, there are two, not one, alternative pesticides currently used for DDT. They are the organophosphates about which we have heard so much, and the carbamates, which are in no way as toxic as the organophosphates. The carbamates like carbaryl are less toxic than the organophosphates and frequently are as effective.

Second of all, there is a difference between ethyl parathion and methyl parathion. Ethyl parathion is the one that has been generally involved in the accidents. În contrast, is methyl parthion that is usually use on the cotton fields. Methyl Parathion is, however, acutely toxic, but in the short term, as opposed to chronically, or long term as with DDT. Currently the most commonly used formulation of DDTDDT is never used alone on cotton-includes methyl parathion. This is to say that methyl parathion is already currently being used with DDT. Therefore, the health hazard posed by methyl parathion without DDT remains about the same as with DDT.

Methyl parathion currently is already the first choice pesticide against the boll weevil, which is the No. 1 cotton pest in the Southern United States.

In those States such as California, Arizona, Arkansas, and Texas, which have either banned DDT on cotton or do not recommend it, methyl parathion has been used for a number of years. With familiarity of usage comes not contempt, but caution. The accident rates with methyl parathion have gone dramtically downward in the last 10 or 15 years, and I think in the last few years there have been no accidental deaths attributable to it whatsoever in the United States.

The last point is that with the banning of DDT there will not be, at least in the long term, an exact one-to-one substitution of methyl parathion, or any other pesticide for DDT. The U.S. Department of Agriculture, the environmental groups, and the scientific witnesses at the DDT hearings agreed that the proper approach for the cotton. industry long term is integrated control, which is a many faceted approach.

The objective of integrated control is to use less pesticides overall. On cotton, integrated control includes what is called the diapause method. One uses sex lures releases of sterile males, and then relies largely on predatory insects. Later in the season individual trained farmworkers or "scouts" determine which fields need to be sprayed for what insects and at what intervals. For insecticides, one tries to use less persistent pesticides, such as the carbamates, in small doses only where they need to be used. Last of all, late in the season after the cotton crop has been harvested, one destroys all the cotton stalks by shredding and plowing them under, so as to prevent any of the pest insects from hibernating in them over the winter.

The Department of Agriculture has such a program operating in the State of Mississippi with this very goal in mind. It does not use methyl parathion, and does not use DDT. DDT would kill the beneficial insects over an unacceptably long period of time. Arkansas does not recommend DDT on cotton, uses the diapause system, and gets along without major accidents.

My last point, sir, is this: It is most likely that accidents attributed to "parathion" occur particularly with respect to ethyl parathion, particularly with children, and particularly through the careless discarding of containers which formerly held these substances. There are and should be provisions in this bill to control disposal of the containers and to reduce these accidents.

The small farmer, the illiterate farmer, the man with very few acres, he is the man that is theoretically the most likely to have an accident with a toxic pesticide, since he probably doesn't even have sophisticated ground application equipment. But the sad fact is that this man, in fact, is currently in such financial straits that he does not apply any pesticides at all. He just prays that he will be able to raise a crop on his few acres and earn a few dollars without the additional expense of pesticides.

In summary, we feel, along with EPA, that the banning of DDT will not endanger the farmer's health, and in fact will hasten that day when he uses less pesticides overall, and uses a more sophisticated, broader and cheaper approach to handle the problems of cotton pests. In the very short term, it is possible that there will be increased use of the organophosphates because DDT has been banned, but the organophosphate used will most likely be methyl parathion, not ethyl parathion, which is the real killer.

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