Published on Saturday, May 13, 2000 in the Washington Post
Pesticide Coalition Tries to Blunt Regulation
by George Lardner Jr. and Joby Warrick
When Rep. Richard W. Pombo (R-Calif.) introduced the Regulatory Fairness and Openness Act of 1999, he said it was needed to improve the process of regulating potentially dangerous pesticides. Pombo's colleagues have since rallied to his cause, with a majority of the House and 38 senators signing on to the legislation.
But, unknown outside the small circle of those involved in the drafting process, much of the text of the bill was written not on Capitol Hill but in Arlington, by a consulting firm working for a coalition of pesticide manufacturers, agricultural organizations and food processors. Many of those at the firm previously worked on pesticide regulation at the Environmental Protection Agency.
The legislation would make it more difficult for federal regulators to restrict existing pesticides while giving manufacturers broad leeway to introduce new ones.
Pombo and his allies say his measure deals only with "process" and does not change any of the laudable goals or "basic structure" of a sweeping food safety law passed unanimously by Congress four years ago. Critics say it would effectively undo the protections put in place in 1996. No immediate hearings are planned.
The large number of congressional sponsors of the bill is in part a measure of the intensity of the lobbying campaign by supporters. Chemical and agribusiness trade groups have mounted an aggressive campaign on Capitol Hill, sponsoring "lobbying days" that bring farmers to Washington to meet with their representatives.
Articles and editorials in the farming trade press predicted that continuing with the current law would produce economic disaster for growers and mean less fresh fruit and vegetables for children, who would suffer more illnesses and deaths as a result. One November article in the magazine The Packer even likened EPA Administrator Carol M. Browner to infamous mass murderer John Wayne Gacy.
The 1996 law set a new, stringent safety standard for using pesticides, requiring "a reasonable certainty of no harm" for raw and processed food. It focused on making sure that food was safe for children, requiring that permissible exposures to pesticides be reduced tenfold to protect infants and children unless the EPA was presented with "reliable data" showing that so great a reduction was unnecessary.
The extra protections for children were urged by a 1993 report of the National Academy of Sciences, which concluded that developing brains and bodies are especially vulnerable to damage from the neurotoxins present in many pesticides. While the EPA had occasionally established additional safety margins for children, the academy's scientists said the threat to children's health was grave enough to warrant applying the protections in every case, unless there was solid evidence showing that extra safeguards weren't needed.
The Pombo bill essentially would reverse the burden of proof, requiring the EPA to provide detailed justification before it sought to apply any additional safety margins for children. The agency would face new obligations to explain itself whenever it used computer models or statistical assumptions "in the absence of data that could be obtained."
At the same time, manufacturers that want to register new types of pesticides would still be allowed to use assumptions or calculations rather than conducting studies, making it easier for them to sell new compounds at the same time it would be harder for EPA to restrict old ones, opponents say.
An outspoken defender of private property rights who once said the "eco-federal coalition owes more to communism than to any other philosophy," Pombo says his proposed rules are needed to keep the EPA from making worst-case assumptions and rushing to judgments without "doing the science."
But others instrumental in the passage of the 1996 law disagree. "The Pombo bill would be a major step backward," said Rep. Henry A. Waxman (D-Calif.). "It would guarantee that the law we passed would never be implemented." Rather, he said, the EPA should be moving "faster and more forcefully to deal with pesticides that are a threat to human health. I certainly don't think we should put barriers in their way."
The Pombo bill is almost a word-for-word duplicate of a typewritten draft dated March 22, 1999, and marked in hand-writing "IWG," for Implementation Working Group, the coalition of pesticide manufacturers, agricultural interests and food processors. It was composed on IWG's behalf at Jellinek, Schwartz & Connolly Inc. by JSC vice president Edward C. Gray, a former EPA attorney and head of EPA's pesticides branch. He identified it when supplied with a copy as "a draft I helped prepare for IWG."
The document was obtained by the Environmental Working Group which provided it to The Washington Post. The head of the Environmental Working Group, Kenneth Cook, asserted that Pombo "broke House ethics rules" if he "took money from the pesticide industry; asked it to write a sweeping pro-pesticides bill for him; then represented it as his work product."
Pombo, who has received about $23,000 from IWG members for his 1998 and 2000 election campaigns, angrily denied any impropriety and accused environmentalists of trying to tarnish his bill by saying industry wrote it. He said environmentalists should look to themselves for all the legislation they help draft.
"The bill I introduced started with this office," Pombo said. "Did I ask them [IWG] for input? Sure I did. I asked a whole bunch of different groups for input on the draft legislation."
According to an advisory opinion Pombo obtained from the House ethics committee following a call from The Post, "you may consult with an outside organization on issues and accept such memoranda, legislative drafts and other materials that it chooses to prepare," the advisory said. "However, as a general matter, it would be impermissible for you to request or suggest that a private organization prepare any such materials for you. Put another way, you may not utilize employees or agents of a private organization as de facto congressional staff members."
A rancher from Tracy, Calif., Pombo said he decided to push for legislation after meeting in Stockton around the late summer of 1998 with growers of grapes, pears and various minor crops worried that an EPA crackdown might put them out of business.
Pombo said he put together a bill "over the next couple of months" when someone from the Implementation Working Group apparently heard about it and asked to see it. "We shared a draft with them," Pombo said. "That became the draft everybody was working off."
IWG Chairman Mark Maslyn, deputy Washington office director of the American Farm Bureau Federation, confirmed the sequence. He said his group was devoting its attention, with Jellinek, Schwartz & Connolly serving as staff, to commenting on the rules that the EPA was drawing up "when the Pombo bill surfaced" around mid-February of 1999.
According to Maslyn, the IWG didn't particularly like what they saw. "It was rough and a little bit hard-edged," Maslyn said. "Had he worked with people with experience in drafting legislation, certainly if he had consulted us, we would have suggested he do things a little differently. . . . Our interest was in legislation that didn't do anything foolish or adverse."
Gray was assigned to come up with an IWG version. "There was a feeling that if bills [on this subject] were going to be floating around, it would be good to have one instead of many and it would be good if our ideas were in it," he said. "I was the guy with the typewriter."
Pombo's bill has attracted an impressive assortment of cosponsors, with 219 in the House and 37 backers of a similar bill introduced in the Senate by Chuck Hagel (R-Neb.). The list includes Rep. John D. Dingell (Mich.), ranking Democrat on the Commerce Committee, who said he is concerned about the uncertainties confronting "Michigan agriculture in particular because of its high number of minor-use crops" such as asparagus, beans and ornamental plants. Minor crop growers are fearful that pesticide companies faced with the expenses of new tests for each use might abandon asparagus, for example, in favor of major crops such as wheat and corn.
Even without the Pombo bill, farm and industry groups have already racked up a string of victories. After the passage of the 1996 bill, the EPA promised fast action on the riskiest pesticides, particularly a group known as organophosphates or OPs, nerve agents originally developed by Nazi Germany in the 1930s. But in the law's first three years the agency imposed use restrictions last August on only two OPs, methyl parathion and azinphos methyl, known as Gulthion.
Methyl parathion, used on more than a dozen major fruits and vegetables, was allowed for use until this spring's growing season. Apples sold during the winter, as a result, continued to show potentially dangerous levels of the chemical, according to a laboratory analysis last week by the Environmental Working Group.
"Pesticide levels in two [samples] were so high that a 2-year-old would exceed the government's safety standard just by eating half an apple," the EWG said in its report.
Vice President Gore waded into the controversy over how to implement the law in May 1998 after warnings from Democratic members of Congress that rumors of an imminent ban on widely used pesticides were causing an uproar in key political states. In a memo widely hailed by agribusiness, Gore ordered establishment of a panel to review pesticides and directed that the Department of Agriculture--long viewed by environmentalists as favoring the pesticide interests of farmers--be included in "a sound regulatory approach" that would give "due regard" to the "needs of our nation's agricultural producers."
Environmentalists named to the review panel walked out after several meetings. Cook, president of the Environmental Working Group and the first to quit, said that "overall, pesticide risks have only gotten worse during the Clinton administration," which he described as "unwilling to act to reduce those risks in deference to the economic concerns of agribusiness groups, pesticide companies and food processors."
For their part, farm groups lobbying for Pombo's bill say the EPA's interpretation of the law is already hurting growers and eventually could put many out of business. Risks from pesticides are being "vastly overstated" in the absence of real-world data showing actual harm to children or anyone else, Arizona Farm Bureau President Ken Evans said in 1998 testimony to Congress.
"It [EPA's policy] will increase prices and reduce the quality, selection and availability of the most abundant, wholesome and affordable food supply in the world," Evans said. "It will reduce, not enhance, consumer's and children's opportunities for healthy diets."
Staff researcher Lynn Davis contributed to this report.
The consulting firm that helped write the Pombo bill, Jellinek, Schwartz & Connolly Inc., employs a number of former senior managers of the Environmental Protection Agency (former EPA positions are listed below in parentheses).
Steven D. Jellinek (Assistant administrator for prevention, pesticides and toxic substances)
Dan Barolo (Director of Office of Pesticide Programs)
Judith Hauswirth (Chief of toxicology branch of Office of Pesticide Programs)
Edward C. Gray (General counsel for pesticides)
Edwin F. Tinsworth (Deputy director of toxic substances office)