The Environmental Protection Agency looks determined to keep the public from knowing whether a pesticide on which it has waived safety rules may be a factor in the worldwide bee die-off known as "colony collapse disorder."
Pollination by bees is needed for crops that provide about one-third of the human diet.
EPA is supposed to license ("register") pesticides only if they meet standards for protection of environment and human health. But pesticide law allows EPA to waive these requirements and grant a "conditional" registration when health and safety data are lacking in the case of a new pesticide — allowing companies to sell the pesticide before EPA gets safety data. The company must submit the data by the end of the conditional registration period.
Five years ago, EPA gave such a conditional registration to Bayer CropScience for a neonicotinoid pesticide called Clothianidin (sold under the brand name "Poncho"). While there are many theories about the causes (possibly multiple) of colony collapse disorder, some scientists have pointed to neonicotinoid pesticides as a leading suspect. The colony collapse disorder phenomenon came to the attention of beekeepers during that five-year period. While EPA waits to make a final decision on whether Clothianidin is killing bees, Bayer is selling over $750 million worth of the product a year.
The Bush Agriculture Department recently let it be known that it would no longer gather and publish data on how much of various pesticides farmers were applying to crops — because the $8 million annual cost of the program was too expensive for the federal government to bear.
The Natural Resources Defense Council, an environmental group, filed a Freedom of Information Act request on July 17, 2008, seeking the studies on Clothianidin filed by Bayer, plus a broad range of EPA documents related to its decision. EPA has not provided any of the documents NRDC requested, and NRDC went to court suing EPA under FOIA for the information.
NRDC's president Frances Beinecke says in a blog post that "We would prefer not to have to resort to FOIA requests and lawsuits in order to review documents that should be available to the public in the first place. It is costly and time consuming. But in this case, the EPA expressly asked us to file a FOIA request after it declined to hand over the records informally."
After more than a month, NRDC filed a FOIA lawsuit and issued a press release headed "Is the Agency Hiding Colony Collapse Disorder Information?" and charging that "EPA has failed to respond" to its FOIA request.
At that point, Debra Edwards, director of EPA's Office of Pesticide Programs (OPP), fired off an August 21 letter to Beinecke "to express my great disappointment with the words and actions of NRDC" in what she called "misleading statements in the press." Both those actions are unusual.
"In particular, I take issue with NRDC's assertion, as represented on its website, that EPA 'refuses to tell the public what it knows' and that EPA is somehow hiding information recarding CCD," Edwards wrote.
Edwards claimed that EPA had responded to NRDC's initial FOIA request by sending two letters — one acknowledging receipt of the request and another saying it could not collect all the information within the 20-day FOIA deadline. The second letter was not sent until the day NRDC filed suit.
"This kind of bureaucratic reaction doesn't count as a meaningful response to our call for scientific studies," Beinecke wrote in her blog. "And it certainly doesn't meet the agency's legal obligation to provide a final ruling on our FOIA request within 20 days."
Edwards claimed in her letter that "EPA's Office of Pesticide Programs 'sets the bar' for its exceptional public participation processes and transparency...." But when San Francisco Chronicle reporter Jane Kay called the EPA press office, she hit a brick wall.
"Representatives of the EPA said they hadn't seen the [NRDC FOIA] suit and couldn't comment," Kay wrote in an August 19 front-page article. "An EPA spokesman, Dale Kemery, said the agency couldn't comment on the documents required under the conditional registration because the matter is the subject of litigation."
As to Edwards' claims of OPP transparency, Beinecke wrote: "NRDC begs to differ. The program has repeatedly refused to disclose information in response to FOIA requests until months or even years after the deadline. Several times, federal judges have rebuked the Office of Pesticide Programs in cases NRDC was forced to litigate regarding the EPA's lack of transparency. There has even been significant press coverage of the agency's repeated private negotiations with the pesticide industry on key regulatory decisions — to the exclusion of public health and environmental groups."
In the ensuing days, EPA has posted on its website roughly half of the bee-related studies that NRDC asked for — but not some of the most important, including one "core" study. Nor has EPA written NRDC a formal letter saying that it has posted that information in response to NRDC's FOIA request. This kind of indirect response has become a bit of a pattern at EPA, especially in politically or legally controversial cases. For example, EPA insisted publicly that it had responded to FOIA requests from many reporters related to Hurricane Katrina — but never actually wrote reporters back claiming that it had done so.
- "Lawsuit Seeks EPA Pesticide Data,"  San Francisco Chronicle, August 19, 2008, by Jane Kay.
- Letter of August 21, 2008,  from Debra Edwards, director of EPA's Office of Pesticide Programs to Frances Beinecke, NRDC president.
- NRDC Press Release of August 18, 2008. 
- NRDC's original July 17, 2008, FOIA request. 
- "Honeybees, NRDC's Lawsuit, and EPA's Discontent,"  Switchboard Blog, NRDC, September 4, 2008, by Frances Beinecke.
- Index of Cleared Science Reviews Clothianidin,  EPA OPP FOIA reading room.
- EPA Docket: "Establishment of Tolerances of Clothianidin Residues In and On Sorghum, Grapes, Potatoes, and Cotton." 
- EPA Docket: "Notice of Filing of a Pesticide Petition for Establishment or Amendment of Tolerances for Residues of (clothianidin) in or on (sugar beets)." 
- "EPA Withholds Pesticide Information While Bees Die,"  OMB Watcher, OMB Watch, September 9, 2008.
- "Germans Suspect Bayer Pesticide in Beehive Collapse,"  McClatchy News Service (DC Bureau), August 26, 2008, by Sabine Vollmer (Raleigh News & Observer).
- Previous Stories: "USDA Stops Pesticide, Fertilizer Data,"  WatchDog of August 27, 2008; "NRDC FOIA Request Shows Rat-Poison Industry Clout at EPA,"  WatchDog of April 21, 2004.