Copyright 2000 The Washington Post
The Washington Post
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May 13, 2000, Saturday, Final Edition
Correction Appended
SECTION: A SECTION; Pg. A01
LENGTH: 1929 words
HEADLINE:
Pesticide Coalition's Text Enters House Bill; Industry, Farmers Trying to Blunt
U.S. Regulation
BYLINE: George Lardner Jr.; Joby
Warrick, Washington Post Staff Writers
BODY:
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.
Revolving
Door?
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.
Name; Former EPA position
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
CORRECTION-DATE: May
19, 2000
CORRECTION: CLARIFICATION
A May 13
article about pesticide regulation incompletely described an article that
appeared in The Packer, a produce industry trade newspaper. The article,
critical of federal pesticide policy, was a guest opinion column.
GRAPHIC: Illustration, The Washington Post
LOAD-DATE: May 13, 2000