The active ingredient, marketed by Bayer CropScience as Belt, received a conditional registration in 2008. Bayer is joined by Nichino America as registrants.
Under the agreement, the companies would have to voluntary cancel the registration if the EPA found the pesticide had “unreasonable adverse effects on the environment.”
“In this case, more than seven years ago, the administrator took a leap of faith and took advantage of the ‘middle ground; by allowing flubendiamide to be conditionally registered while petitioners and the agency gathered additional data on its long-term effects,” chief administrative law judge Susan Biro wrote in her ruling. “This was to petitioners’ clear benefit, as the administrator could have simply denied the application based on then-existing data that suggested environmental risk.”
Last year, the EPA concluded that “significant effects to aquatic organisms due to the use of flubendiamide could potentially occur in as little as two years.” As a result, the agency asked Bayer and Nichino to voluntarily cancel the registrations. The companies refused, instead seeking a hearing before an administrative law judge.
In making the ruling, Biro also upheld EPA’s decision not to allow sales of products containing flubendiamide by dealers or distributors.
“As such, I find that the administrator not permitting the use of the flubendiamide technical registration product or the further distribution and sale of end use products to be consistent with FIFRA (the Federal Insecticide, Fungicide and Rodenticide Act),” she wrote in her ruling. “As to permitting use of the pesticide by end-users, no party has
challenged this determination. Consequently, I also find allowing this use to be consistent with FIFRA.”
The case now goes to EPA’s Environmental Appeals Board, which has until July 6 to decide the matter.
“Today’s initial decision is disappointing for supporters of science-based regulations and grower choice, but it was not unexpected, given the judge’s prior preliminary rulings, including her decision to exclude any discussion of the scientific issues raised by EPA’s actions on flubendiamide,” Bayer said in a written statement. “This is only one step in our appeal process and we look forward to having a careful review when the Initial Decision and the ALJ’s prior preliminary rulings are taken up by the Environmental Appeals Board, which is scheduled to issue the final EPA decision no later than July 6.”