If EPA rejects the groups' motion for a stay - the equivalent of a temporary restraining order for sulfuryl fluoride - and does not grant a public hearing, the next step could involve litigation in federal court.
Sulfuryl fluoride, a fumigant applied to stored crops after harvest, leaves significant amounts of fluoride on treated foods. The motion argues in considerable detail that the EPA has failed in its statutory duty under the Food Quality Protection Act (FQPA) to ensure that total combined exposure to fluoride in food and tap water is safe for infants and children. In urging an immediate stay of all food tolerances, the groups cite the March 2006 National Academy of Sciences report on fluoride safety which found that fluoride limits in tap water are not safe, particularly for children and people who drink large amounts of water, such as diabetics, and should be lowered.
"EPA's decision to allow huge increases in fluoride exposure via a wide range of food products flies in the face the NAS conclusion that allowable fluoride exposures from water alone are not safe, particularly for children," said Michael Connett of FAN.
The motion also details procedural flaws including the fact that EPA did not release its human health risk assessment to the public until six months after it set the tolerances.
"EPA has been utterly oblivious to science and the law in this case," said Richard Wiles, senior vice president of EWG. "The agency's actions are a gross violation of both the spirit and the letter of the law, which requires the protection of children from pesticides."
The motion was prepared by Perry Wallace, of the international law firm Zelle, Hofmann, Voebel, Mason and Gette, that represents plaintiffs and defendants in antitrust, business, class action, securities, insurance coverage and intellectual property litigation, among numerous other areas.
Sulfuryl fluoride, a fumigant, is a substitute for the post harvest crop storage uses of the pesticide methyl bromide. Methyl bromide is an ozone-depleting compound scheduled for phase-out under international agreement. Dow Agrosciences, the manufacturer of sulfuryl fluoride, has touted the potential benefits to the ozone layer with sulfuryl fluoride as a replacement to methyl bromide.
In fact, sulfuryl fluoride would replace only the storage fumigation application of methyl bromide, about 10 percent of methyl bromide use. The remaining 90 percent, almost all of which is for field fumigation, would remain. Rather than protecting the ozone layer, the food fumigation uses of sulfuryl fluoride present a substantial and real health threat to children, while providing negligible benefits to the atmosphere.
Lauren Sucher, EWG, 202-667-6982
Michael Connett, FAN, 802-355-0999
Jay Feldman, Beyond Pesticides, 202-543-5450