Citing health and ecological concerns, the U.S. Environmental Protection Agency (EPA) announced recently that it’s moving to ban sales of the “more toxic rat and mouse poisons” to residential consumers.
EPA intends to ban the sale and distribution to residential consumers of certain rodenticide products. Specifically, the rodenticide products in question are known as second generation anticoagulants, and in this case they contain the chemicals brodifacoum, bromadiolone, difethialone and difenacoum. The reason is that these four chemical ingredients are extremely toxic and persistent.
Products containing these second generation anticoagulants are designed to terminate the life of a rodent after just one feeding. The problem is that termination may take 1-3 days. In the meantime, the rodent may consume more — too much — of the toxic food, thus elevating its own levels into a zone that is hazardous for animals that may feed on the poisoned rodents. Dogs, cats and wild predators like hawks and owls feed on rodents, so there can be serious repercussions closer to home, as well as general disruptions to the eco-system.
EPA says there are safer alternatives to the most toxic bait station products. Suggesting alternatives would be a green chemistry initiative — which can be enabled by smart chemical software for green chemistry — but remains just out of scope of this measure. The goal of the effort here, insiders say, is to remove the most toxic second generation anticoagulants from the market.
FIFRA: EPA initiates cancellation proceedings under FIFRA
While many companies that produce rat and mouse poison products have agreed to adopt the new safety measures, a handful of companies have reportedly advised EPA that they do not plan to do so. This is due in part to the fact that companies believe EPA should follow certain procedures for implementing changes and restrictions, and not simply ask and receive.
Companies with a lot to lose commercially often stall when asked to cease sale of a product. In their opinion, to comply with EPA without EPA being accountable to a formal procedure is more dangerous than selling the hazardous substances.
EPA named the following companies, along with their corresponding products, as having declined to remove the requested pest control products from the residential market:
- Reckitt Benckiser Inc. (makers of D-Con, Fleeject, and Mimas rodent control products)
- Woodstream Inc. (makers of Victor rodent control products)
- Spectrum Group (makers of Hot Shot rodent control products)
- Liphatech Inc. (makers of Generation, Maki, and Rozol rodent control products)
EPA says it intends to initiate cancellation proceedings under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the federal pesticide law. Such proceedings, if successful, would remove offending products from the market.
EPA cancellation proceedings: what it means
In terms of policy and procedure, then, what does “initiate cancellation proceedings” actually mean?
When EPA determines that a product ought to be removed from market or from a certain segment of market, they must cancel the registration of the product or request cancellation from the governing agency. All products that contain chemicals that are regulated by EPA must be registered with regard to the corresponding law and agency.
Chemicals in food coloring, for instance, are regulated under the Food & Drug Administration (FDA); so foods containing certain food colorings must be registered with the FDA. To ban them from market, a food item’s registration would first have to be cancelled with FDA.
Chemicals in pest control products are regulated under FIFRA. So to revoke registration of a product on the basis of changed status of a regulated chemical, EPA typically must notify both
- the Department of Agriculture (USDA) and
- the FIFRA Scientific Advisory Panel
of the proposed cancellation.
To do so, EPA prepares a Notice of Intent to Cancel (NOIC). The NOIC is published in the Federal Register and sent to registrants. Rodenticides are used for public health purposes, so in this case EPA must also consult with the Department of Health and Human Services.
After these notifications, EPA will formally issue a Notice of Intent to Cancel (NOIC). Attached to the NOIC are the reasons, including factual basis, for the revocation action.
The cancellation outlined in the NOIC becomes final and effective 30 days after the registrant receives the notice, or when the notice is published in the Federal Register (whichever comes later). However, there can be a delay if a person adversely affected by the notice requests a hearing before the 30 days are up.
If a hearing is held, it is held in accordance with FIFRA section 6(d) and 40 C.F.R. Part 164, the latter being the Agency’s Procedural Regulations. An administrative law judge is assigned. Afterwards, the administrative law judge’s decision can be appealed to the Environmental Appeals Board, which, on behalf of the Administrator, issues the final decision for the Agency.
A final cancellation order following a public hearing is subject to judicial review within 60 days after entry of the order. If judicial review is sought, the cancellation can become effective after all avenues of legal appeal have been exhausted.
EPA recently updated and published their list of new, more “protective” rodenticide bait station products. The list can be found here – current as of May 24, 2011:
http://www.epa.gov/pesticides/mice-and-rats/rodent-bait-station.html Tomcat products are at the top of the list, and, interestingly, so are D-Con – the products which made the other list of products that EPA mentioned should be removed from sale to residential customers but whose manufacturer has declined to do so.
The June 24, 2008 Federal documentation describes the EPA’s prior “risk mitigation decision.” For details, see this doc, the “Revised Risk Mitigation Decision for Ten Rodenticides”. If docket link is broken, try searching the Regulations.gov web site, as documents change, move or are updated there.
For over a decade, Chris Nowak has been immersed in the business of environmental management, regulatory compliance and supplier material disclosure process. Nowak serves as Director at Actio Corporation.