Natural Resources Defense Council
www.nrdc.org/media
NATURAL RESOURCES DEFENSE COUNCIL  UNITED FARM WORKERS of AMERICA,
AFL-CIO  THE BREAST CANCER FUND  SAN FRANCISCO BAY AREA PHYSICIANS
FOR SOCIAL RESPONSIBILITY  MARCIA CUMMINGS HUBBARD, EUGENE D.
HUBBARD  PESTICIDE ACTION NETWORK NORTH AMERICA REGIONAL CENTER 
PESTICIDE WATCH EDUCATION FUND  CALPIRG CHARITABLE TRUST
February 6, 2016
The Honorable Christie Todd Whitman
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Re: Settlement Agreement to Protect the Health of Children & Farm Workers Under
the Food Quality Protection Act in NRDC et al. v. EPA, No. C-99-3701CAL
(N.D.Cal)
Dear Administrator Whitman:
We would like to bring to your attention one of the most important early decisions that you
will be called upon to make regarding the protection of the health of millions of infants and
children. After over a year of discussions, EPA recently reached a settlement agreement in
major pesticide litigation with the undersigned environmental, health, medical, and farm
worker organizations.
Lawyers representing the pesticide industry and some animal rights groups recently wrote to
EPA demanding that the agency repudiate that agreement. We strongly urge you to reject that
demand, as it would severely undermine the progress EPA is just now beginning to make
towards fulfilling the requirements of the Food Quality Protection Act of 1996 (FQPA) to
protect Americans’ health from risky pesticides. Congress unanimously adopted FQPA in
response to a landmark 1993 National Academy of Sciences report recommending that the
pesticide program be overhauled to protect infants and children. EPA’s withdrawal from the
settlement would send a clear signal to the American public that you and the Bush
Administration plan to undo important, legally-required actions to protect infants and
children from these toxins. Moreover, it is clear from court decisions that the agency simply
cannot back out of the signed agreement.
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Natural Resources Defense Council
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The settlement requires EPA to comply with certain key existing legal obligations under
FQPA and the Federal Insecticide, Fungicide, and Rodenticide Act Amendments of 1988
(FIFRA ’88) -- nothing more. In fact, the settlement requires EPA to review fewer chemicals,
and to take actions that are less complete, than EPA had publicly announced that it would
finish before the dates set out in the settlement. The agreement also requires EPA to complete
fewer reviews than are required by FIFRA ’88 or FQPA. In this sense, the agreement
represents a true compromise.
The industry’s argument that the settlement would require EPA to act too quickly is ironic.
This assertion directly contradicts their court filings in federal district court in Washington
and San Francisco, in which they allege that they are severely harmed by EPA’s delays in
reassessing tolerances and in implementing the endocrine screening program.
Industry’s other major arguments are similarly incorrect or misleading. For example, their
allegation that they were “flabbergasted” by the settlement discussions is disingenuous, as
they had been regularly informed that the discussions were taking place, and were informed
and given an opportunity to comment on the draft agreement within a matter of two days after
serious settlement progress was made. Their assertion that there is no “transparency” to the
process also is false. Not only were they given a chance to comment on the proposed
agreement before it was filed, but EPA had announced in a 1997 Federal Register notice that
all of the pesticides for which the agreement requires a common mechanism of toxicity
determination, a Reregistration Eligibility Decision (RED), or an interim RED, were high
priority “Group 1” pesticides for quick review. EPA also committed in that public notice to
reviewing all of the organophosphates -- chemicals of central importance in the settlement -by August 1999. The agency convened four separate Federal Advisory Committees at which
these priorities and FQPA implementation were discussed. EPA also had listed (and
requested comment and data regarding) many of the chemicals included in the settlement as
priorities for “special review” many years ago. The agency also said when FIFRA ’88 was
adopted that it would comply with that law’s deadlines for reregistration of all old pesticides
(including those now covered by the agreement) by 1997.
The pesticides covered in the settlement agreement have been studied for many years, and
available data indicates that they may pose serious health and environmental risks. The
principle of the agreement merely says that EPA will make long-overdue preliminary
decisions on those chemicals without further delay. The decisions the agreement requires
have no directly binding legal effect on industry; all of these decisions must be followed by
40 West 20 Street
New York, NY 10011
tel 212 727-2700
fax
washington, dc
212 727-1773

los angeles

san francisco
Natural Resources Defense Council
www.nrdc.org/media
further regulatory proceedings before they are enforceable, and industry and others can
submit more data or comment then.
There would be a very real downside risk to the agency of seeking to back out of the
settlement. First, trying to renege on the agreement would send a clear signal to the American
public that the health of America’s infants and children are not a priority for the Bush
Administration. Second, the courts have made it clear that once a party signs a settlement
agreement, it cannot back out of it. Third, repudiating the agreement -- assuming for the sake
of argument that a court would allow it -- would mean a return to vigorous litigation
involving comprehensive and expensive discovery. Because it is likely that plaintiffs will
prevail, EPA likely would be put under court order to take more extensive final action (not
just the interim actions required by the settlement), and action on many more pesticides, than
currently covered by the agreement. EPA may be required to act expeditiously on pesticides
that the agency does not believe are high priorities, in addition to those the agency feels are
important to act upon quickly. Moreover, the litigation would unfortunately divert EPA
resources from other activities, and the costs of such unnecessary litigation could be large.
We are aware that certain organizations that are complaining about the settlement will try to
persuade the Congress to gut the FQPA. It would be a dubious accomplishment for this
agency and this Administration to preside over the demise of the FQPA, a landmark statute
for protecting our children, and all that it represents to the American people.
Attached is a detailed letter that we are sending today to your staff responding in greater
depth to the unfounded allegations and in correct statements made by those demanding that
EPA take the unlawful step of seeking to back out of the settlement. It clearly is in EPA’s and
the public’s interest for the agency to move forward with this agreement.
Therefore, we strongly urge you to support the settlement, and to vigorously defend it before
the Court and in other forums. Thank you for your attention to this important matter.
Sincerely,
Erik Olson
Adrianna Quintero
Counsel for Natural Resources Defense Council, et al.
40 West 20 Street
New York, NY 10011
tel 212 727-2700
fax
washington, dc
212 727-1773

los angeles

san francisco
Natural Resources Defense Council
www.nrdc.org/media
Michael E. Wall
Altshuler, Berzon, Nussbaum, Rubin & Demain
Counsel for the United Farm Workers of America, AFL-CIO
Andrea Martin, Founder and Executive Director
The Breast Cancer Fund
Robert M. Gould, M.D., President
San Francisco-Bay Area Physicians for Social Responsibility
Marcia Cummings Hubbard
Eugene D. Hubbard
Monica Moore, Program Director
Pesticide Action Network North America Regional Center
Melanie Undem, Director
Pesticide Watch Education Fund
Theresa Olle, Staff Attorney
CalPIRG Charitable Trust
40 West 20 Street
New York, NY 10011
tel 212 727-2700
fax
washington, dc
212 727-1773

los angeles

san francisco