EMERGENCY CITIZEN PETITION TO THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

__________________________________________ ) ) JEFF ANDERSON, MANLEY AND LINDA ) BIGALK and 25 o ther commercial ) beekeepers and honey producers, and ) four environmental and consumer ) organizations, represented by : ) Center fo r Food Safety ) 660 Pennsylvania Ave., SE Suite 302 ) Washington, DC 20003 ) (Tel: 202.547.9359) ) ) Petitioners, )

) Docket Number _________ ) Filed With: ) ) LISA P. JACKSON ) in her official capacity as, ) Administrator ) Environmental Protection Agency ) Ariel Rios Building ) 1200 Pennsylvania Avenue, N.W. ) Washington, DC 20460 )

___________

______________________________ )E MERGENCY P ETITION

2 Table of Contents Page SUMMARY OF PETITION 3

PETITIONERS 7 Petitioners’ Interests 7 Broader Public Interest in this Petition 8

APPLICABLE LAW 9

ARGUMENT 9 I. Introduction 9 II. State of the Science Report 10 III. EPA’s Authority Over Pesticides 11 IV. Summary of EPA’s Institutional and Legal Failures 12 V. Factual Background 13 A. Colony Collapse Disorder 13 B. Clothianidin and Other Neonicotinoid Pesticides 16 C. EPA’s Awarenes s that Clothianidin Causes Mass Bee Kills 17 D. Poor R eception in Europe for Clothianidin and Other Neonicotinoid s 18 E. U.S. Government Failure to Survey for CCD Causes 19 VI. Regulatory History of Clothianidin 21 A. Clothianidin’s Conditional Registration 21 B. Bayer’s Fatally Flawed Field Study 22 C. EPA’s 2010 Re

- Review of Bayer’s 2007 Study 23 D. EPA’s Endangered Species Act Violation 24 E. Clothianidin’s Rejection by New York State 26 F. Critical New Studies on Exposure Pathways 27

STATEMENT OF LEGAL GROUNDS 31 VII. Allowing Sale and Use of Clothianidin Without a Field Study 31 Required for its Conditional Registration is Arbit rary and Capricious; Immediate Suspension is Required VIII. Studies Linking Neonicotinoids to Declining Honey Bee Populations and 33 Health Justify Immediate Suspension of Clothianidin’s Registration IX. Immediate Suspension i s Warranted Under 7 U.S.C. § 136d 35 A. Cancellation Proceedings are Required or at Least Warranted 35 B. Clothianidin Presents an “Imminent Hazard”; Immediate 36 Suspension is Warranted X. Clothianidin’s Inadequate Labeling Renders It Misbranded ; a Stop Sale, 36 Use or Removal Order is Required XI. EPA’s Actions Violate the Endangered Species Act 39

CONCLUSION 39

TABLES APPENDICESE MERGENCY P ETITION

3 EMERGENCY CITIZEN PETITION TO THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY SEEKING SUSPENSION OF REGISTRATION FOR CLOTHIANIDIN

SUMMARY OF PETITION

Under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S. C. §136 et

seq. , the Environmental Protection Agency ( EPA ) regulates pesticide use in the United States. In

violation of FIFRA , EPA continues to permit the sale and use of clothianidin, a neonicotinoid
pesticide, for which EPA is lacking a pollinator field study the agency required eight years ago as a condition of clothianidin’s registration and as necessary to support the required “no

unreasonable environmental effe cts” determination. 1 In short, EPA has vi olated its own
conditional registration procedures for o btaining outstanding data . That legal defect is at the

heart of this Petition.
Allowing the continued sale and use of any pesticide while EPA lacks the scientific

studies it needs to ensure the compound does not pose a hazard is irresponsible

. Doing so wit h
clothianidin is particularly damaging because neo nicotinoid pesticides, and clothianidin in
particular, function as systemic insecticides with physical and chemical properties allowing them
to move easily within a given plant and reach its flowers, fruit , pollen and nectar

– essentially
making the whole plant poisonous to insects. The plant becomes potentially highly toxic to bees

. This phenomenon could be a significant contributing factor in the recent, devastating decline in
honey bee numbers and health and is likely a contributing factor in the decline of indigenous bee
species as well as other insects, including Federally

- listed threatened and endangered species

. Due to EPA’s actions and inactions, c lothianidin and its “sister” pesticides now are

spre ad widely throughout te ns of millions of acres of both ag ricultural and neighboring lands.
The neighboring lands are where these toxic compounds were not intended to be and often are

la nds not owned by the farmers applying the compounds. These lands adjacent to agricultural

fields in many cases are prime remaining bee and native insect habitat. Due to the very long

1 EPA’s PC Code is 044309. Commo n trade names for products containing clothianidin include, but are not limited to, Poncho, Titan, Prosper, Sepresto, Proceed, Belay, Clutch, NipsIt, Celero, Arena, Inovate, Aloft and Darlex (see Appendix A for details of registered products and approved u ses ; note that Petitioners cannot be certain Appendix A includes every such product and approved use; EPA must determine that ).E MERGENCY P ETITION

4 persistence of these compounds, and the uncontrollable drift ing and blowin g of contaminated

dust and soil , b ees and other insect s are vict ims of multiple exposure pathways that EPA failed to
assess when the agency allowed the pesticide onto the market

– and still has failed to assess. Key among these exposure pathways are residues in pollen and nectar, dust from treated seeds and

soils , plan ter exhaust, untreated but contaminated non

- crop plants adjacent to treated fields

, guttation droplets on both treated and untreated but contaminated plants and residues from foliar

uses

. 2 With half

- lives of several years in some situations and continuing uptake by rotational
crops and volunteer weeds such as dandelions, neonicotinoid s are drastically altering our nation’s rural insect populatio ns and no label warnings or use directions are capable of mitigating

this

. EPA has frankly dropped the ball and co nsistently underestimated the extent of

translocation and the levels of exposure to clothianidin and other neonicotinoid s that honey bees

and other beneficial insects are suffering , as well as the extent to which non

- crop lands that are
not owned by the applicators are being contaminated

. It is long past time for the agency to stop giving these pesticide s a free pass

. It is improper for the agency to continue to deflect
responsibility by responding that abnormal bee mortality and poor health result from many
factors and the precise contribution of neonicotinoids to these declines remains uncertain . The
agency made a major procedural and analytical error that turned a blind eye to resolving that
very uncertainty long ago . That erro r can be readily remedied by granting the relief sought in this

document.
Accordingly, p ursuant to the Right to Petition Government Clause contained in the First
Amendment of the United States Constitution, 3 th e Administrative Procedure Act (APA) 4 and

2 Christian H. Krupke, Greg J. Hunt, Brian D. Eitzer, Gladys Andino, Krispn Given, Multiple Routes of Pesticide Exposure for Hon ey Bees Living Near Agricultural Fields

, 7 PLoS ONE 1, (2012), available at e29268 .doi:10.1371/journal.one.0029268; Andrea Tapparo et al.

, Assessment of the E nvironmental E

xposure of H oneybees to P articulate M atter C ontaining N

eonicotinoid I

nsecticides C oming F rom C orn C oated S eeds

, 46 E NVTL

. S CI

. & T ECH

. 2592 (2012) , DOI: 10.1021/es2035152 ; V. Girolami et al.

, Translocation of Neonicotinoid Insecticides From Coated Seeds to Seedling Guttation Drops: A Novel Way of Intoxication for Bees , 102 J. E CON

. E NTO MOLOGY , 1808 (2009)

.

3 “Congress shall make no law

. . . abridging

. . . the right of the people

. . . to petition Government for a redress of grievances.” U.S. C ONST . amend. I. The right to “petition for a redress of grievances [ is ] among the most precious of the liberties safeg uarded by the Bill of Rights.” United Mine Workers of Am. v. Ill inois State Bar Ass’n , 389 U.S. 217, 222 (1967). It shares the “preferred place” accorded in our system of government to the First Amendment fre edoms, and has “sanctity and a sanction not p ermitting dubious intrusions.” Thomas v. Collins , 323 U.S. 516, 530 (1945). “[A]ny attempt to restrict those First Amendment liberties must be justified by clear public interest, threatened not doubtful ly or re motely, but by clear and present danger.” Id . The Supreme Court has recognized that the right to petition is logically implicit in, andE MERGENCY P ETITION

5 EPA ’s implementing regulations and Special Review procedures

, 5 the Petitioners request the

agency, on an emergency basis, to take four steps: 1) C ure clothian idin’s unlawful conditional registration

. EPA should prompt ly
suspend the registration of clothianidin and issue a stop sale, use or removal order pending compliance with the agency’s own procedural requirement to provide outstanding data

, including
but not limited to, the preparation

, publication and agency review of a fi e ld st udy sufficient to

support a finding that clothianidin does not pos e any unreasonable adverse effec ts to honey bees

and other insect pollinators

. 6 The agency imposed that condition but has failed under FIFRA to enforce its own requirement since 2004

. 2) P revent imminent harm

. S hould EPA refus e to initially su spend clothianidin’s

conditional registration

, Peti tioners request EPA to promptly initiate Special Review and
cancellation proce dures for clothianidin pursuant to 7 U.S.C. § 136d ; and then suspend its
registration pending completion of the cancellation proceedings based on the ongoing and

imminent harm posed

. N umerous peer

- reviewed studies and other evidence of both acute and sub

- lethal harm to
bees from a variety of exposure pathways all across America’s agr icultural landscapes support

the need to stop the use of clothianidin

. 7 They demonstrate not only that it cause s unreasonable

adverse environmental effects

, but also that it i s an “imminent hazard” to the environment

. C ontributing to mass decl ine s of honey bees and other beneficial insects and thus leading to
severe economic and ecological impacts clearly meets that test.
3) R ecognize clothianidin’s inadequate labels

. Prompt suspension and a stop sale, use
or removal order are also necessary because clothianidin is misbranded. FIFRA authorizes EPA

to take such action when there is reason to believe a pesticide is being distributed or sold with

ina dequate labe ling. 8 Indeed, on ly seven months ago EPA issued just such an order when it

discovered the herb icide “ Imprelis

, ” newly registered by DuPont, was kill ing non

- target

fundamental to, the very idea of a republican form of government. United States v. Cruikshank , 92 U.S. 542, 552 (187 6 )

.

4 5 U.S.C. § 553(e).
5 40 C.F.R. § 154 Subpart A and §154.10.

6 7 U.S.C. § 136k(a).
7 See State of the Science

, Appendix B.
8 7 U.S.C. § 136k(a).E MERGENCY P ETITION

6 coniferous trees. 9 Like Imprelis, t he labels for clothianidin products do not contain directions “adequate to protect health and the environment

. ” 10 In the face of clear evi dence that planting

seeds treated with clothianidin is spreading this extremely persistent and accumulating pesticide

across America’s crop field s and the product label s are inadequate to advise planters on how to

prevent th is, EPA’s labeling is defective.
4) Comply with the Endangered Species Act. EPA has violated Section 7(a)(2) of the
Endangered Species Act (ESA) by failing to make required “ effects ” determinations and failing to undergo consultation concerning clothianidin’s impacts on native endangered and threatened
species. 11 Numerous native Federally

- listed insects may be directly impacted and non

- insect
species, such as insectivorous birds, may b e i ndirectly affected . Petitioners request the agency to make the requir ed effects determinations and complete the Section 7 consultation process. EPA
has sought to comply with the ESA retroactively, after its approval decision, which is illegal. It

must s uspend use of clothiani din in the interim to make th is request mea ningful. O therwise users
of this deadly insecticide may continue to take threatene d and endangered species without
appropriate mitigation or ESA compliance

. Failure by EPA to take the action s Petitioners request herein would severely harm Petitioners’ interests. It also would be arbitrary, capricious and contrary to the mandates of

FIFRA , the ESA and the APA

. In view of the emergency nature of this matter, the severity of the
impacts the Peti tioners are suffering an d EPA’s excessive delays in resolving the questions of

clothianidin’s environmental effe cts, the agency is urged to grant the requests in this Petition

within 90 days of its filing date.
After identifying the Petitioners and their affected interests, and then citing the applicable
law, this Petition provides an introduction to the argument (§ I), highlights a key new “State of the Science” report that supports the Petition ( § II), provides the background on EPA’s leg al
authority un der FIFRA (§ III) and r ecounts EPA’s legal and procedural failures (§ IV). It then
provides additional information on honey bee declines and the role of clothianidin ( § V ) , gives

the flawed regulatory history of these pesticide s ( § VI ) and then giv es f ive Statements of Legal

Grounds to remedy the situation ( §§ VII

, VIII

, IX

, X and XI).

9 EPA Region III, In re E.I. du Pont de Nemours & Co. , Stop Sale, Use, or Removal Order, Docket No. FIFRA

- 03

- 2011

- 0277SS (Aug. 11, 2011).

10 7 U.S.C. § 136(q)(1)(F).
11 The ESA is codified at 16 U.S.C. § 1531 e t seq.E MERGENCY P ETITION

7 This Petition does not challenge the FIFRA conditional registration process as a whole,
but Petitioners strongly urge EPA to review that process to determine whether it is being

misused. The case of clothianidin, in which EPA has allowed a highly toxic compound to
become extremely prevalent despite an eight year period of failure by the registrant to comply
with a critical condition imposed specifically to assess the long

- term threat the compound poses
to honey bee survival, strikes Petitioners as a clear illustration that the conditional registrati on system is broken. In any event, th e burden of proving clothianidin meets EPA’s criteria to be “entitled” to continued registration rests not with Petitioners, or with EPA, but with Bayer A.G.
and other companies with clothianidin

- containing products, pe r 40 CFR§ 154.5 on Special
Review petitions:
Burden of persuasion in determinations under this part.
In making determinations under this part the Administrator shall be guided by the principle that the burden of persuasion that a pesticide product is enti tled to registration or continued registration for any particular use or under any particular set of terms and conditions of registration is always on the proponent(s) of registration.

PETITIONERS

Petitioners’ Interests
This Petition is motivated by a vast array of interests of the many Petitioners

, who come

from across the United States. The beekeeper and honey producers seek emergen cy relief du e to

severe economic impacts centered on the unsustainable mortality rates an d poor health of their
privately

- owned honey bees , which will be aided if the Administrator provides the relief
requested herein

. The listed Petitioners are representative of this industry sector, in which there
are thousands of similarly

- affected business es. The environmental and c onsumer organizations
seek to represent the strong public interest in preserving healthy pollinators in both agricultural
and natural ecosystems, as well as conserving na tive insects jeopardized by the persistent,
systemic insecticide at issue.E MERGENCY P ETITION

8 Beekeeper and Honey Producer Petitioners. The following 27 beekeepers and honey
producer s are Petitioners (due to their large number, full descriptions o f their particular interests
follows at the end of this Petition in Table 1) :
Jeff Anderson , Minnesota; Manley and Linda Bigalk , Iowa; Tim Brod , Colorado; Coalition4Bees , Colorado; Craig Byer , New York; Cynthia Cole , Massachusetts; Ross Conrad , Vermont; James Doyle , Indiana; Steve Ellis , Minnesota; Adam French , Idaho; Tim Fulton , W isconsin; David Hackenberg , Pennsylvania; Paula Hendricks , Ohio; Dr. Carl Korschgen , Missouri; Dr. Daniel Mayer , Montana; Gary McCallister , Colorado; Miles McGaughey , Colorado; Cass Moore , Ohio; Charles Mraz , Vermont; Eloise Naylor , New Jersey; Michael Risk , Michigan; Gus Rouse , Hawaii; Tom Theobold , Colorado; Tim Tucker

, Kansas; Charles Vorisek , Pennsylvania; Western Colorado Beekeepers Association

, Colorado; Stephen Whittlesey , Massachusetts

.

Environmental and Consumer Organization Petitioners. The following four environmental

and c onsumer organizations are Petitioners (full descriptions of their particular interests are at

the end of this Pet ition in Table 2 ) : Beyond Pesticides , Washington, DC; Center for Food Safety

, Washington, DC, and San Francisco; International Center for Technology Assessment , Washington, DC; Pesticide Action Network of North America, San Francisco.

Broader Public Interest in this Petition

Petitioners are not alo ne in seeking emergency relief. Hundreds of thousands of Americans have endorsed an informal citizen petition already urging EPA’s Administrator, Lisa
P. Jackson, to stop the use of clothianidin

. 12 Intense public concern over EPA’s actions is visible
through comments, position papers, art icles and books representing a vast spectrum of
stakeholders across the country. Administrator Jackson and the agency cannot ignore the public

concern over the loss of hon ey bees, other beneficial insect s, resulting economic and ecosystem
damages and the u nnecessary persistent toxic pollution of America’s vast agricultural landscapes

that EPA’s actio ns and inactions enabled.

12 Pesticide Action Network N. Am.

, Pull Bayer ’ s B ee

- K illing P esticide. Now

, Action Alert (Dec. 8, 2010) available at http://action.panna.org/p/dia/action/public/?action_KEY=5370

.E MERGENCY P ETITION

9 APPLICABLE LAW
The Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq

. The Endangered Species Act, 16 U.S.C. § 1531 et seq

. The Administrative Procedure Act, 5 U.S.C. Subchapter II
Code of Federal Regulations, EPA , 40 C.F.R. Parts 150, 152, 154
EPA Guideline 850.3040: Field Testing for Pollinators (April 1996)

ARGUMENT

I. Introduction
Over the past decade, the proliferatin g use of the neonicotinoid class of pesticides has

coincided with mass die

- offs of honey bee ( Apis mellifera ) populations in the phenomenon

known as C olony Collapse Disorder (“CCD”). 13 I f left unchecked, these losses could precipitate

a n economic and ecological disaster impacting the Petitioners and the United States as a whole at

a time when the nation can ill

- afford it

. H oney bees not only pro duce nutritious honey , but are
also of enormous economic importance for American agriculture as pollinators. About 90% of all
flowering plants require pollinators to reproduce and

, in American agriculture, near ly a third of
pollination is performed by honey bees. 14 By the U.S. Department of Agriculture’s most recent

estimates in 2000 , bee pollination is responsible for $15 billion annually in added crop value

. ( That f igure has surely increased in the last 12 years) . M ost of this value comes from specialty
crops such as nuts, berrie s and fruits. 15 H ealthy population s of pollinators are essential for the
future of American agriculture.

R esearch has linked r ecent declines in honey bee colonies and other native bee
pollinators to a constellation of stress factors, including pesticides, pa thogens and nutrition

. 16

Experts have singled out the recent, widespread

, major increase in the use of system ic pesticides

13 See, e.g.

, Honey Bee Die

- Off Alarms Beekeepers, Crop Growers and Researchers

, S CIENCE D AILY ( Apr. 22, 2007), availabl e at www.sciencedaily.com/releases/2007/04/070422190612.htm

.

14 See Janet N. Abramovitz, Putting a Value on Nature’s “Free” Services

, Worldwatch Institute (1998), available at www.worldwat ch.org/system/files/EP111B.pdf; Renée Johnson, Honey Bee Colony Collapse Disorder

, Cong

. Research Serv . Report for Congress, 7

- 5700, RL33938

.

15 Roger A. Morse & Nichoals W. Calderone, The Value of Honey Bees as Pollinators of U.S. Crops in 2000 , Cornell Univ. (Mar. 2000), www.masterbeekeeper.org/pdf/pollination.pdf ; US DA Agricultural Research Service, “Questions and Answers: Colony Collapse Disorder” (Sept. 13, 2011), available at www.ars.usda.gov/News/docs.htm?docid=15572

.

16 See USDA Agric. Research Serv., Colony Collapse Disorder Progress Report 6 (June 2010) availabl e at www.ars.usda.gov/is/br/ccd/ccdprogressreport2010.pdf

.E MERGENCY P ETITION

10 like clothianidin, thiamethoxam and others as particularly responsible for mortality and poor health in bee populations and to bees’ increasing vulnerability to other threats. 17

While used on dozens of crops, t he predominant use of neonicotinoid s i s as a seed

treatment for corn. Production of corn for food, feed and ethanol production i s the largest single
use of arable land in North America, occurring in nearly every State and reportedly r eaching a

near

- record 92 million acres in 2011 ( a cumul ative area virtually equivalent to the entire country
of Germany ) ; it is expected to continue to climb

. 18 Almost all of the corn seed planted in North

America

, except for 0.2% used in organic production

, reportedly i s coate d with neonicotinoid s , primarily clothianidin and its closely related compound, thiamethoxam

. 19
Neonicotinoids are persistent and are fast

- becoming nearly ubiqui tous

. Their half

- lives
can vary widely according to soil type and weather conditions , bu t are extremely long, ranging

from 148 days to 1,155 days

. 20

II. State of the Science Report

A substantial and increasing body of scientific literature addresses the levels of

neonicotinoid s in the environment. Numerous scientists have assessed the effects of these
compounds on honey bees

. A new report by Pet itioner PANNA entitled Pesticides and Honey

Bees

– The State of the Science (hereinafter, “State of the Science report” ; attached hereto as Appendix B )

, compile s a cross

- section of these studies, providing significant ly more detail than

is reiterated in this Petition.

The State of the Science report provides the current baseline on key threats that neonicotinoids pose and that none of EPA’s risk assessments or other regulatory documents for

clothi anidin products adequately characterize. It covers key research on pesticide prevalence in
agricultural areas, sub

- lethal and chronic effects, synergistic effects of neonicotinoids and

17 State of the Science , Appendix B

. See also Brian D. Eitzer, The R ole of P esticides in H oneybee D ecline

, Conn. Agric. Experiment Station (2011), a vailable at www.ct.gov/caes/lib/caes/documents/pl ant_science_day/plant_science_day_spring/2011/spring_open_house_2011_ eitzer.pdf

.

18 USDA Agric. Research Serv. Agric. Statistics Board, Acreage report (2011), a vailable at www.usda.gov/nass/PUBS/TODAYRPT/acrg0611.pdf ; l ist of countries and outlying territories by total area

, available at http://en.wikipedia.org/wiki/List_of_countries_and_outlying_territories_by_total_area

.

19 Krupke et al. , supra note 2

. 20 EP A Pesticide Fact Sheet: Clothianidin, Conditional Registration (May 30, 2003), a vailable at www.epa.gov/opprd001/factsheets/clothianidin.pdf

.E MERGENCY P ETITION

11 pathogens and the significance of compromised bee health. In sum, it fu rther demonstra tes the

need for th e relief sought herein

.

III. EPA’s Authority O ver Pesticides
Under FIFRA, EPA licenses the sale, distribution and use of pesticides through the
process of registration. 21 FIFRA authoriz es the agency to grant a “conditional registration” when
the pesticide is so new that insufficient data exists to support unrestricted registration. 22

However, the Administrator must make an affirmative finding that the pesticide will not pos e

“ unreasonable adverse effects ” during the period of conditional registration. 23 An application for
registration is incomplete if it contains insufficient information for the Administrator to make

such a determination. 24 Registration of a pesticide

— conditional or otherwise

— cannot continue
on the basis of an incomplete application. 25
Once a pesticide is registered, FIFRA provides EPA with ongoing oversight authority.

S ection 6 stat es the Administrator may, at any time, propose cancellation of a registration if it
appears to the Administrato r that a pesticide “ generally cause [ s ] unreasonable adverse effects on

the environment.” 26 In the case of a conditional registration, if the registrant has failed to initiate
or pursue appropriate action toward fulfilling any condition imposed on registrati on, the Administrator “shall” initiate cancellation proceedings. 27 Wh ile cancellation is pending, EPA may “suspend the registration of the pesticide immediately” if an “imminent hazard” exists

, 28
that is, if continued use of the pesticide during the time req uired for the cancellation proceedings “would be likely to result in unreasonable adverse effects on the environment.” 29
Further, section 12(a)(1)(E) of FIFRA makes it unlawful for any person to sell or distribute a “misbranded” pesticide

. 30 Section 2(q)(1) (F) provides that a pesticide is misbranded

21 7 U.S.C

. § 136a(5)(D).
22 Id. § 136a(c)(7)(C).
23 Id. ; 40 C.F.R. § 152.114(d).
24 40 C.F.R. § 152.104.
25 See i d. § 152.105.
26 7 U.S.C. § 136 a( d )(1) ( B ).
27 Id. § 136d(e)(1).
28 I d. § 136d(c)

. 29 Id. § 136( l ).
30 7 U.S.C. § 136j(a)(1)(E).E MERGENCY P ETITION

12 if such pesticide’s “labeling accompanying it does not contain directions f or use which

. . . if
complied with . . . [is] adequate to protect health and the environment.” 31

IV

. Summary of EPA’s Institutional and Legal Failures

In the face of the e vidence that neonicotinoid pesticides are a contributing factor in the
ongoing, huge economic and environmental losses stemming from mass bee die

- offs and
compromised pollinator health , EPA should have adopted a more protective, more rigorous

stance toward the data necessary for registration

. Instead, EPA l oosened its oversight, allowing

farmer s t o inundate fields with toxic chemicals before EPA has confirm ed their safety

. In particular, the agency continues to mainta in the registration status f o r clothianid in despite the

fact that the registrant, Bayer AG, has failed to conduct a required study satisfying EPA’s

standards after having more than nine years to gather the needed data. EPA has definitivel y
stated that Bayer’s belated attempt to conduct a field study of clothianidin’s effects on pollinators
did not satisfy the condition on registration

. 32 Yet

, the agency has never identified any alternative
study that support s a finding that clothianidin does not ha ve any unreasonable adverse effects on

the environment

— including pollinators

. Such a finding was, and remains, a prerequisi te to conditional registration. C ontinuing to allow clothianidin to be marketed, sold and used when not

one study meets EPA’s conditi on for its registration is , as a matter of law, arbitrary, capricious
and contrary to the mandates of FIFRA and the APA

. T his is not merely a situation in which new e vidence casts doubt on EPA’s prior findings

about the environmental hazards of clothianidin

— although Pe titioners include such evidence

herein to underscore the urgency of this matter

. Rather, t h e essential step EPA imposed for
conditional registration has never been complet ed

. Thus, FIFRA’s typical procedure s for

cancelli ng and then suspending a previously properl y

- registered insecticide on the basis of new

evidence do not apply

. 33 T he applicable remedy is for the agency to correct its mistake through immediate suspension of clothianidin’s registration

, pending preparation

, publication and EPA

review of the required field study with an evaluation of the long

- term toxic effect that

31 7 U.S.C. § 136(q)(1)(F).
32 Memorandum: Clothianidin Registration of Prosper T400 Seed Treatment on Mustard Seed (Oilseed and Condiment) and Poncho/Votivo Seed Treatment on Cotton 2, 4, PC Code 044309, EPA Environmental Fate and Effects Division (Nov. 2, 2010) (hereinafter “November 2010 Memorandum”).

33 7 U.S.C. §§ 136d(b)

– (c).E MERGENCY P ETITION

13 clothianidin has on the worker bee life cycle, as well as an evaluation of exposure and effects to
the queen and larvae

. EPA also has failed to aggressively s eek potential adverse effects data from

the registrants of clothianidin that would shed more light on its dangers. Petitioners are aware
EPA has moved up its registration review of clothianidin a nd other neonicotinoids in response to

c oncerns about their i mpacts on pollinators. However, t his process is projected by EPA to take
six to eight years and is thus grossly insufficient to address the urgency of this toxic threat and

would not remedy the legal defect s in clothianidin’s current registration

. Further, American
agriculture relies on healthy pollinators

. The Petitioner beekeepers and honey prod u c ers, as they clear ly articulate in the descriptions of their interests in Table 1 at the end of this
Petition, cannot reasonably wait the many more years that EPA’s registration review
process will consume while their bee s die off in dramatic numbers each year. EPA’s process utterly failed to assess the environmental impacts of its actions before
approving cloth ianidin

. It would be specious to suggest tha t EPA’s implementation of FIFRA in this case is the “functional equivalent” of the National Environmental Policy Act (NEPA), 34
whereas this equivalence has, to date, been the basis for excusing EPA from NEPA c ompliance
in FIFRA regulatory matters

.

V. Factu al Background

A. Colony Collapse Disorder
Honey b ees are the most economically valuable pollinators of agricultural crops

worldwide

. Other important pollinating bee s pecies include : common eastern bumble bee
( Bombus impatiens ), alkali bee ( Nomia melanderi ), blue orchard mason bee ( Osmia lignaria ),

hornfaced bee ( O. cornifrons ) and alfalfa (or Lucerne) leafcutter bee ( Megachile rotundata )

. Many other unmanaged native insects are also effective pollinators of crops and other plants.

About 90% of flo wering plants require pollinators

. 35 Bee pollination of agricultural crops

accounts for about one

- third of the U.S. diet, including a wide range of high

- value fruits,
vegetables, tree nuts, forage crops, field crops and other specialty crops

. 36 Meat, milk an d cheese

34 42 U.S.C. §§ 4321 et seq. 35 See Abramovitz, supra note 14

. 36 See May R. Berenbaum, Statement Before the Subcomm. on Horticulture and Organic Agriculture, U.S. House of Reps. (Mar. 29, 2007), available at http://agriculture.house.gov/testimony/110/h70329/Berenbaum.pdf

.E MERGENCY P ETITION

14 production are also reliant on the pollinated crops that livestock eat , such as alfalfa

. 37 Overall,
pollinator

- dependent crops make up almost one

- third of total U.S. agricultural production

. 38

Pollinators a re crucial pillar s of non

- crop plant health and survival generally, whether in

horticulture or in nature. 39 Thus , it is clear healthy pollinators are essential to healthy food

systems , healthy gardens and healthy ecosystems.

CCD is the name given to the abrupt decline of honey bee populations observ ed around
the world beginning in the middle of the last decade. (For more complete analysis of CCD, see

State of Science report

, Appendix B .) Alt hough first reported in 2006, cases probably indicative

of CCD were docum ented as early as 2004 in the United S tates

. 40 Each winter since then

, roughly one

- third of the U.S. honey bee population has died off or disappeared. 41 Such losses are
approximately double the normal ly expected winter decrease. CCD is distinguishable from other
ailments affecting honey bees in the past in that vast numbers of worker bees simply disappear
rapidly, never returning to the hive where the queen still lives with a small cluster of bees amidst
pollen and honey stores in the presence of immature b ees ( the brood). 42

T he first reported CCD losses in the United States coincided with the widespread ramp

up of clothianidin use following conditional registration in 2003. As commonly applied in field
mixes clothianidin has been observed to cause the type of bee kills attributed to CCD. Other

countr ies , such as Italy, experiencing similar die

- offs o f honey bees

, have suspended

neonicotinoid

- coated corn seed use a nd have recorded no cases of colony collapse in subsequent

For example, a number of agricultural crops are almost totally (90%

- 100%) dependent on honey bee pol lination, including almonds, apples, avocados, blueberries, cranberries, cherries, kiwi fruit, macadamia nuts, asparagus, broccoli, carrots, cauliflower, celery, cucumbers, onions, legume seeds, pumpkins, squash, and sunflowers. Other specialty crops also rely on honey bee pollination, but to a lesser degree. These crops include apricot, citrus (oranges, lemons, limes, grapefruit, tangerines, etc.), peaches, pears, nectarines, plums, grapes, brambleberries, strawberries, olives, melon (cantaloupe, watermelo n, and honeydew), peanuts, cotton, soybeans, and sugar beets.

37 See James R. Hagler et al., Foraging R ange of H oney B ees, Apis mellifera , in A lfalfa S eed P roduction F ields

, 11 J. I NSECT S CIENCE 1 (2011); Honey Industry Facts, Nat ’ l Ho ney Bd. (2011), available at www.honey.com/nhb/media/press

- kit

.

38 Johnson, supra note 14 , at 1.
39 See, e.g. , J.C. Biesmeijer et al.

, Parallel D eclines in P ollinators and I nsect

- P ollinated P lants in Britain and the Netherlands . 313 S CIENCE 351 (2006).

40 Natalie Lounsbury, Pollinators and Pesticides: Escalating Crisis Demands Action , 28 Pesticides and You 13 (2008), available at www.beyondpesticides.org/infoservices/pesticidesandyou/Fall08/pollinators.pdf

.

41 See Dennis vanEngelsdorp et al., Preliminary Results: A Survey of Honey Bee Colonies Losses in the U.S. Between September 2008 and April 2009 (May 19, 2009), available at www.apiaryinspectors.org/files/documents/Survey_2009.pdf

.

42 See Johnson, supra note 14 , at 8

.E MERGENCY P ETITION

15 years. 43 Many bees are exposed to neon icotinoid residue levels several orders of magnitude

above acute toxicity values; others may be exposed to lower levels that still are higher than levels

known to cause chronic ef fects. The sub

- lethal, chronic effects are consistent with CCD, most
particul arly the absence of dead bees inside the hive. N eonicotinoid pesticides are known to interfere with honey bees’ cognition and orientation in ways that would prevent foraging bees
from finding their way back to the hive. 44 The injury to bees from sub

- le thal exposures is
reported to be cumulative, that is, with every exposure more damage occurs. 45

Critical ly, the injury to bees from neonicotinoids makes them more vulnerable to highly

damaging introduced parasites, such as the genus of gut parasites

, Nosem a spp. A major new
study

, published in January 2012 and led by the USDA Agricultural Research Station in

Belt sville, Maryland, shows a clear link between these two bee hazards

. 46 The abstract of this study, again, which was led by one of EPA’s sister Federa l agencies, is directly on point with the
relief sought in this Petition (emphasis added):
[W]e exposed honey bee colonies during three brood generations to sub

- lethal doses of a widely used pesticide, imidacloprid, and then subsequently challenged newly e merged bees with the gut parasite, Nosema spp. The pesticide dosages used were below levels demonstrated to cause effects on longevity or foraging in adult honey bees. Nosema infections increased significantly in the bees from pesticide

- treated hives when compared to bees from control hives demonstrating an indirect effect of pesticides on pathogen growth in honey bees . We clearly demonstrate an increase in pathogen growth within individual bees reared in colonies exposed to one of the most widely used pest icides worldwide, imidacloprid, at below levels considered harmful to bees. The finding that individual bees with undetectable levels of the target pesticide, after being reared in a sub

- lethal pesticide environment within the colony, had higher Nosema is significant. Interactions between pesticides and pathogens could be a major contributor to increased mortality of honey bee colonies, including colony collapse disorder, and other pollinator declines worldwide.

43 Relazione sull’attivita svolta e sui risultati ottenuti nell’ambito del progetto APENET per la tematica ‘‘Effetti del mais conciato sulle api’’ , CRA

- API (2010) a vailable at www.reterurale.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/409; Relazione sull’attivita svolta e sui primi risultati ottenuti nell’ambito del progetto Apenet per la tematica ‘‘Effetti del mais conciato sulle api’’ , CRA

- API (2009), a vailable at www.reterurale.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/81.

44 Axel Decourtye et al

. , Imidacloprid I mpairs M emory and B rain M

etabolism in the H

oneybee ( Apis M ellifera L. ) , 78 Pesticides Biochemistry & Physiology 83 (2004)

.

45 Henk Tennekes

, T HE S YSTEMIC I NSECTICIDES : A D ISASTER IN THE M AKING (Weevers Walburg Communicatie, Zutphen, The Ne therlands) (2010) , available at www.disasterinthemaking.com

.

46 Jeffery S. Pettis et al., Pesticide Exposure in Honey Bees Results in Increased Levels of the Gut Pathogen Nosema

, N ATURWISSENSCHAFTEN (2012) DOI: 10.1007/s00114

- 011

- 0881

- 1

.E MERGENCY P ETITION

16 This study confirms previous findings of a s ynergistic effect between Nosema and other
neonicotinoid pesticides wherein bee mortality is dramatically increased

. 47

B esides honey bees

, there are many other U.S. native bees and other insects that EPA has
a duty to conserve from these threats including

, but not limited to, the rusty patched bumble bee
( Bombus affinis ), Franklin’s bumble bee ( B. franklini ) , yellow

- banded bumble bee ( B. terricola )
and Western bumble bee ( B. occidentalis ). Several of these species are facing severe declines
comparable to, o r worse than, those faced by honey bees

. 48 Additionally c lo thianidin has been

documented to be highly toxic to other wild bee species like the common eastern bumble bee

, alfalfa leafcutting bee and b lue orchard bee, mentioned previously as valuable pollinat ors

. 49

B. Clothianidin and Other Neonicotinoid Pesticides

Neonicotinoids are systemic

, that is

, they are taken up by the plant’s vascular system as the seed grows and get expressed through its tissues, including flowers, pollen and nectar. 50

Neonicotinoids share a common mode of action that damages the ce ntral nervous system of

insects. When bees and other insects forage on pollen or nectar from treated crops, they ingest
the pesticide, resulting in paralysis and death. 51 Guttated water of seed

- treated plant s, which
provides a source of water for bees, also can be a source of contamination and exp o s ure. 52 Reetz

et al. found that corn seeds treated with clothianidin could result in toxic concentrations up to
8,000 ng/ mL in the guttated fluid; t hese concentration s , while decreasing rapidly, remained

detectable over several weeks. 53 Additionally, and critically, neonicotinoid pesticides persist in

47 Cédric Alaux et al.

, Interactions Between Nosema Microspores and a Neonicotinoid Weaken Honeybees (Apis Mellifera)

, 12 Env t l

. Microbiology 774 (2010); Cyril Vidau et al., Exposure to S ublethal D oses of F ipronil and T hiacloprid H ighly I

ncreases M

ortality of H

oneybees P reviously I

nfected by Nosema ceranae

, 6 PLoS ONE e21550

.

48 Elaine Evans et al., Status Review of Three Formerly Common Species of Bumble Bee in the Subgenus Bombus, Xerces Society (2009), available at www.xerces.org/wp

content/uploads/2009/03/xerces_2008_bombus_status_review.pdf

.

49 Cynthia D. Scott

- Dupree et al., Impact of Currently Used or Potentially Useful Insecticides for Canola Agroecosystems on Bombus impatiens (Hymenoptera: Apidae), Megachile rotundata (Hymentoptera: Megachilidae), and Osmia lignaria (Hymenoptera: Megachilidae )

, 102 J. E CON

. E NTOMOLOGY 177 (2009)

.

50 Clothianidin Fact Sheet, supra note 20 , at 15.
51 See Joe Cummins

, Requiem for the H oneybee

, 34 Inst. for Science in Society 3 7 (2007).
52 Eric Hoffmann & Steven Ca stle, Imidacloprid in Melon Guttation Fluid: A Potential Mode of Exposure for Pest and Beneficial Organisms

, 105 J. E CON

. E NTOMOLOGY 67 (2012)

.

53 Jana E. Reetz et al.

, Neonicotinoid Insecticides Translocated in Guttated Droplets of Seed

- Treated Maize and Wheat: A Threat to Honeybees? 42 A PIDOLOGIE 596 (2011)

.E MERGENCY P ETITION

17 the environment, increas ing the risk of cumulative toxic lo ading effects , especially with repeated
applica tions

, in both the short and long term

. 54

Clothianidin is Bayer AG’s successor to imidacloprid, for which Bayer’s U.S., German,
French, Italian and U.K

. patents expired in 2006. 55 Clothianidin h as been linked to immune

effects in lab animals. 56 It is categor ized by EPA as “ highly toxic ” to all varieties of bees , insects

and certain aquatic organisms, as well as to birds and other non

- target organisms. 57

C. EPA’s A wareness that C lothia nidin Causes Mass Bee K ills

. EPA’s awareness of clothianidin being “highly toxic” is not limited to experiment s. The agency has full notice of
the compound ’ s ability to destroy larg e numbers of bee colonies in the field. The below bullets

are from EPA’ s own non

- comp r ehensive documenta tion of bee kill data , collections that are
roundly critic ized as spotty in coverage

, inadequately advertised to beekeepers, containing
numerous years of data gaps, being inconsistently maintained and not up to the task of giving a
full pic ture of CCD

- rela ted mortalities. Neve r theless, over the last four years there are consistent

alarm bells (emphasis added) :

EPA’s Ecological Incident Information System (EIIS) data base on honey b ee
kills lists a 2008 incident for clothianidin

- treated “ Poncho ” corn that states

“hundreds of thousands” of hives were destroyed in a “highly probable” case involving a registered use

. EPA’s 2011 document Registration Review: Problem Formulation for the
Environmental Fate and Ecological Risk [etc.] of Clothianidin re

- characterizes
the same 2008 incident as affecting “11,000 colonies”

. 58

The same EPA document states: “ A similar incident affecting 2 , 500 colonies was recently reported by Slovenia in April, 2011 where bees were affected by drift of

abraded clothi anidin

- t reated maize seed coats” and “ Three incidents were also

54 See Clothianidin Fact Sheet, supra note 20 ; Imidacloprid Summary Document for Registration Review

, PC Code 129099, EPA Office of Pesticide Programs (2008)

.

55 Bayer AG Securities and Exchange Commission Filing: Form 20

- F, at 57 (Mar. 15, 2007), available at www.investor.bayer.com/user_upload/2622

.

56 See Clothianidin Fact Sheet, supra note 20

. 57 Id.
58 Registration Review: Problem Formulation fo r the Environmental Fate and Ecological Risk, Endangered Species, and Drinking Water Exposure Assessments of Clothianidin , EPA Office of Chemical Safety and Pollution Prevention (2011).E MERGENCY P ETITION

18 reported in Canada. In May of 2009, in Ste

- Martine, Quebec, over 200 bee

colonies were reported lost. Residues of clothianidin and three other pesticides

were detected. In Cocte au

- du

- Lac, Quebec in Ma y, 2010, residues of clothianidin
and thiamethoxam were detected after a number of dead or paralyzed bees were
found. Also, in May 2010 in Quebec , residues of clothianidin were detected after
reportedly high bee mortality in St

- Dominique involving an unspe cified number

of colonies. ” (p. 25)

The same document mentions f ive other U.S. incidents involving destruction of
multiple colonies due to clothianidin reported to the Agency, all of them since
2009, in Nevada, Indiana, Minnesota and two in Pennsylvania. ( p. 26)

T he capacity of clothianidin to kill bee s en masse , together with consistent patterns of

smaller kills in various reports, and together with the strong data on clothianidin causing sub

lethal effects consistent with CCD, and also together with new data on the synergistic effects of

neonicotino ids and pathogens, strongly suggest the mass bee kills are just the “tip of the
iceberg ” . The reported kills likely represent the most visible, egregious inc idents, while a much

great er number of incidents exist “under the surface” in which clothianidin

- caused bee deaths

occur and hives are weakened and destroyed, but the losses are not readily observed

, or they are

not reported

, or they are reported but not tabulated by EPA

.

D. P oor R eception in Europe for Clothianidin and Other Neonicotinoid s
C lothianidin was approved in Germany in 2004

. Four years later, German authorities

observed a massive bee kill across the Baden

- W ü rttemberg region which they linked to

clothianidin use (the 2008 incident in the EIIS)

. Within two weeks, Ge rmany banned clothianidin
seed treatment on corn and several other crops

. 59 While some suspensions were later lifted, the

ban on clothianidin

- treated corn seed remains. 60 Also in 2008 , Italy’s agricultura l ministry

59 See Authorizations for N eonicotinoids are S till S uspended D ue to the H azards of B ees , Fed. Office of Consumer Prot. and Food Safety (BVL), available at www.bvl.bund.de/cln_027/nn_496790/sid_FFE204596E8096E5D0F6C6B9E657F9EA/EN/08__PresseInfothe k__engl/01__Presse__und__Hintergrundinformationen/PI__Maissaatgut__Mesurol__engl.html__nnn=true ; Alison Benjamin

, Pesticides: Germany Bans Chemicals Linked to Honeybee Devastation

, G UARDIAN (May 23 2008), available at www.guardian.co.uk/environment/2008/ma y/23/wildlife.endangeredspecies

.

60 Colony Collapse Disorder: European Bans on Neonicotinoid Pesticides , EPA, available at www.epa.gov/pesticides/about/intheworks/ccd

- european

- ban.html

.E MERGENCY P ETITION

19 suspended neo nicotinoid authorizations as a precautionary measure. In the following growing season, and for the first time since 1999, Italy’s n eonicotinoid

- free corn sowing reportedly

resulted in no cases of widespread bee mortality in apiaries near the crops. 61 Slovenia likewise

has banned uses of both clothianidin and imidacloprid. 62

F rench authorities instituted bans on progressively more neonicotinoid treatments. In
1999, approximately one

- third of French honey bees di ed following widespread use of Bayer’s

i midacloprid

. French authorities promptly banned its use a s seed dressing for sunflowers and

later on corn

. 63 In 2008, having observed enough adverse i mpacts from neonicotinoids

, France

flat ly rejected Bayer’s application to register clothianidin. 64

EPA has not aggressively investigated these European suspensions to determine their
impact on the restoration of the bee populations or to unearth useful epidemiology data. Ignoring Europe’s experiences makes little sense. Bey on d the direct impacts on insects , data indicate
persistent neonicotinoids have indirectly decimated populations of native farm, meadow and

grass land insectivorous birds, such as starlings, spotted flycatcher and snipe, across wide swaths

of Eur ope by killin g off the large insects that make up their food supply and contaminating

waters as well

. 65 The United States can ill

- afford to ignore this indirect impacts data, thereby
putting a vast suite of North American farm, meadow and grassland birds, as well as aqu atic
organisms, at further risk , many of which already are in decline, such as the upland sandpiper,
eastern meadowlark, greater and lesser prairie

- chicken, sage

- grouse and others , some of which
are Federally

- listed threatened or endangered species

.

E. U.S. Government Failure to S urvey for CCD Causes
In passing the 2008 Farm B ill, Congress called on Federal agencies to investigate and

take coordinated action against CCD. However, USDA an d Congress’s multi

- year failure to

61 See, e.g.

, Press Release, Italian Ministry of Health, Tutela patrimonio apistico: sospensione cautelativa dei prodotti fitosanitari ut ilizzati nel trattamento di concia delle sementi

, (Sept. 19, 2008), available at www.salute.gov.it/dettaglio/dettaglioNews.jsp?id=1054&tipo=old; Bees “Restored to Health” in Italy Aft er This Spring’s Neonicotinoid

- Free Maize Sowing , Youris.com (June 26, 2009), available at www.youris.com/Environment/Bees/Bees_restored_to_health_in_Italy_after_this_springs_neonicotinoidfree_maize _sowing.kl.

62 See Vicky Kindemba, The I mpact of N

eonicotin oid I

nsecticides on B umblebees, H oney B ees and O ther N on

- T arget I nvertebrates

, B UG L IFE 24 (2009).
63 Id.
64 Benjamin, supra note 59

. 65 Tennekes, supra note 45

.E MERGENCY P ETITION

20 follow through on that commitment and survey the national scope of CCD in a manner capable
of isolating its causes has exacerbated EPA’s parallel multi

- year failure to require a
comprehensive field stu dy that w ould hav e assess ed the contribution of clothianidin to excess bee mortality. Ke y points from the recent USDA Inspector General Audit report on this are

here: 66

A pproximately 4 years have passed since the CCD Action Plan was developed, and although the Plan called for a comprehensive survey of honey bee colony production and colony los s due to CCD, we found that USDA has not completed the survey. We also found that although the 2008 Farm Bill authorized $2.75 million in annual funding between 2008 and 2012 that could potentially have been used for this purpose, Congress never actually a ppropriated the funds, and Departmental officials did not take other measures to identify funds that might have been ava ilable to use for this purpose. (p. 6)

The Audit reinforces that this USDA and Congressional failure relates directly to the subject of

this Petition:
However, the Steering Committee agreed that a comprehensive survey would help identify where CCD was prevalent and on what potential causal factors to focus, i.e., pests, pathogens, poor nutrition, and or pesticides . They felt that comprehensive NASS surveys would have been a good reference point for CCD colony losses, and that they would be useful for assessing the extent of the CCD problem. The Steering Committee also felt that data from a NASS colony decline survey might provide c lues to the causes of honey bee decline, if correlated with other data, such as pesticide use patterns. (p. 7, emphasis added)

USDA’s chastened response to the audit was to agree and commit to undertaking the
neglected survey if and when it is funded (p. 15)

. D oing so and obtaining useful results will take

many years and funding remains uncertain . Bee survival and health can no t wait. This is
underscored by the alarming, albeit non

- comprehensive

, data EPA already possesses on

extensive clothianidin

- caused b ee kills, discussed in the previous section , which again are the tip
of the iceberg

. Immediate steps are needed to mitigate this threat.

66 USDA’s Response to Colony Collapse Disorder , Audit Report 50099

- 0084

- HY, USDA Office of Inspector General (2012).E MERGENCY P ETITION

21 VI. Regulatory History of Clothianidin

A

. Clothianidin’s Conditional Registration

T he U.S. regulatory history surrounding clothianidin is different from that in Europe and

show s a disturbing pattern

. I n February 2003

, EPA issued a risk assessment for clothianidin seed

treatment for corn and canola. 67 EPA scientists raised serious concerns about t he compound in that document, citing France’s experience with the similar neonicotinoid pesticide, imidacloprid,
as cause for proceeding with caution. 68 The EPA scientists also called for a field test evaluating

clothianidin’s environmental hazards prior to registration, specifically citing harm to pollinators

as the reason for concern:
The possibility of toxic exposure to nontarget pollinators through the translocation of clothianidin residues that result from seed treatment (corn and canola) has prompted EFED [Environmental Fate and Effects Division] to require field testing that can ev aluate the possible chronic exposure to honey bee larvae and queen. In order to fully evaluate the possibility of this toxic effect, a complete worker bee life cycle study must be conducted, as well as an evaluation of exposure and effects to the queen

. 69

Less than two months later, in an Addendum to the Risk Assessment, EFED re vers ed from this
position, recommending conditional registration while Bayer arranged for the required chronic

exposure study. 70 Thus, in contrast to its prior memorandum, EPA decided it would allow the
nationwide sale and use of clothianidin while Bayer arranged for the very study necessary to

determine whether EPA’s decision w ould be a grave mistake. EPA provided no reason for its reversal; it merely prefaced the change with “after f urther con sideration

. . . ”

. 71 Nonetheless, even

the second memorandum confirmed EPA determined a study evaluating the long term
toxicity to pollinators was necessary as a condition for registration

. 72 This determination

made the study of the impacts on the honey bee life cycle a “core” requirement for registration.

67 Memorandum: Risk Assessment for the Seed Treatment of Clothianidin 600FS on Corn and Canola, PC Code 044309, EPA Environmental Fate and Effects Division (Feb. 20, 2003), available at www.epa.gov/pesticides/chem_search/cleared_reviews/csr_PC

- 044309_20

- Feb

- 03_a.pdf

.

68 See id. at 4.
69 Id.
70 Memorandum: Addendum Referring to EF ED’s Risk Assessment on Clothianidin Use as a Seed Treatment on Corn and Canola 2 (PC 044309), EPA Environmental Fate and Effects Division, (Apr. 10, 2003) (hereinafter “EPA Memo, April 2003”); see also See Clothianidin Fact Sheet, supra note 20

.

71 EPA Memo, April 2003, at 2.
72 Id. at 1.E MERGENCY P ETITION

22 B

. Bayer’s Fatally Flawed Field Study
Bayer was initially given until December 200 4 to complete the study as a condition for
registration. 73 At the outset, EPA’s decision to allow sale and use of clothianidin immediately on
the condition that Bayer eventually complete the required study provided Bayer with a perverse
incentive: rather than completing the study promptly according to established deadlines, Bayer

could bolster it s clothianidin sales by delaying the study for as long as possible

. (As EPA was
later to find out, reliance on registrant

- supplied data can be a flawed process from the outset due to the registrant’s conflict of interest.) T he final protocols and methodology for this study wer e
not established until March 2004

. 74 Bayer requested, and EPA granted, a retroactive extension of
its conditional registration to complete the required field study by May 2005

, al though EPA

stated it would push the deadline further out if accurate data cou ld not be produced that season

. 75
In addition to rewarding Bayer for dragging its feet

, EPA approved protocols for th e study that were so far removed from reality that

, even once completed

, the study was incapable

of detecting the environmental impacts it purported to evaluate

. For example, despite the fact s
that : (1) corn is visited by honey bees and bumble bees , (2) the vast majority of U.S. use for

clothianidin is on corn seed (grown on approximately 9 0 million acres 76 ), and (3) canola is a
minor crop in the United States ( grown on fewer than one million acres ) , EPA nevertheless
permitted Bayer to conduct the field test i n canola only. 77 Moreover, despite the fact tha t the
purpose of a field study is to evaluate impacts based on representative crops gro wn in the United

States that are treated with the pesticide, 78 EPA permitted Bayer to conduct the study in Canada,

rather than in the United S tates where the more relevant agronomic field conditions and
cultivation practices were present. 79 Finally, the stud y d esign virtually guaranteed very few of
the honey bees studied would actually forage i n the canola treated with clothianidin , resulting in

observations of minimal harm to the m

. Four colonies of bees were set in the middle of just one

73 Id. at 2.
74 Review of Bayer CropScience’s Draft Protocol of a Honey Bee Field Study

- Poncho 600 (264

- 789) [Clothianidin (044309), D2953 181 ], EPA EFED, (Mar. 11, 2004), available at http://grist.files.wordpress.com/2010/12/memo_3.pdf

.

75 Id. at 2.
76 USDA Statistics Board Acreage report, supra note 18

. 77 Review of Bayer CropScience’s Draft Protocol, supra note 74, at 3

- 5.
78 Ec ological Effects Test Guidelines: Field Testing for OPPTS 850.3040 Pollinators, EPA Office of Prevention, Pesticides and Toxic Substances (Apr. 1996), available at www.epa.gov/ocspp/pubs/frs/publications/OPPTS_Harmonized/850_Ecological_Effects_Test_Guidel ines/Drafts/85 0

- 3040.pdf

.

79 Id.E MERGENCY P ETITION

23 hectare (21⁄2 acres) of treated canola, while the bees were free to forage over thousands of
surrounding acres in bloom with un treated canola

. 80

This Canadian canola study (hereinafter, “Cutler and Scott

- Dupree 2007” 81 ) provided no
relevant data for assessing the li kely impact that the approximately 9 0 million U.S. acres of corn

treated with cloth ianidin are having on honey bee s. Despite t hese deficiencies , in November

2007

, after the untested clothianidin had been applied in U.S. fields for four growing seasons,

EPA categoriz ed this study as “ Acceptable ” for the purposes of the condition on clothianidin’s
registration. 82

C

. EPA’s 2010 Re

- Review of Bayer’s 2007 Study

In November 2010 , EPA conducted a “re

- review” of the Cutler and Scott

- Dupree 2007
study as part of a new use assessment for clothianidin seed treatment on mustard seed and

cotton. 83 (EFED scientists routinely reevaluate previously submitted studies to determine

whether the information remains relevant or useful.) The EFED scientists do ing this reevaluat ion

determined the field study was “Invalid,” due to design and methodological errors. 84 In an apparent effort to salvage some use for the study

, EPA subsequently revised its opinion and

reclassified the Cutler and Scott

- Dupree 2007 study as “Supplemental.” 85 This reclassification
notwithstanding, EPA did not change its crucial determination for purposes of this Petition that

this stud y no longer satisfied the field study requirement. Here is what EPA said:
[D]eficiencies were identified that render the study supplemental. It does not satisfy 850.3040, and another field study is needed to evaluate the effects of clothianidin on bees through contaminated pollen and nectar. Exposure through contaminated pollen and nectar and potential toxic effects therefore rem ain an uncertainty for pollinators. 86

As of March 2012 , m ore than 1 6 months af ter EPA’s 2010 downgrading of the Cutler and

Scott

- Dupree 2007 field study

, Bayer still has not re

- submitted the required field study

80 Id.
81 G. Christopher Cutler & Cynthia D. Scott

- Dupree

, Exposure to Clothianidin Seed

- Treated Canola Has no Long

- Term Impact on Honey Bees , 100 J

. E CON

. E NTOMOL OGY 765 (2007)

.

82 Memorandum: Review of Data Package DP336888 for Clothianidi n 4 , PC Code 044309 , EPA (Nov. 16, 2007).
83 EPA November 2010 Memorandum, supra note 32

.

84 See Memorandum: Reclassification of MRID 46907801/46907802 Data Package 336888 for Clothianidin 1, PC Code 044309, EPA (Dec. 22, 2010).

85 Id.
86 EPA November 2010 Memorandum, supra note 32 , at 2 (emphasis added).E MERGENCY P ETITION

24 complying with guideline 850.3040 and assessing the long

- term toxicity of clothianidin on honey

bees. In short, Bayer still has neither provided the outstanding data nor complied with the
condition for clothianidin’s registration, which was to have been completed by December

200 4

. Nonetheless, clothianidin retains its registration status and EPA has approved its use on
more than 3 0 crops as well as ornamental, turfgrass and structural applications. 87 S hockingly

, EPA still has not assessed its effects on bees eight years later

.

D. EPA’s Endangered Species Act Violatio n Congress enacted the ESA, in part, to provide a “me ans whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” 16 U.S.C. §
1531(b). When a species has been listed as threatened or endangered under the ESA, all F ederal
agencies

– including EPA

– must ensure that their programs and activities are in compliance with
the ESA. When EPA first conditionally registered clothianidin for use on corn it recognized ESA
compliance would be ne cessary: 88
Clothianidin is expected to present acute and/or chronic toxicity risk to endangered/threatened birds and mammals via possible ingestion of treated corn and canola seeds. Endangered/threatened non

- target insects may be impacted via residue lad en pollen and nectar. The potential use sites cover the entire U.S. b ecause corn is grown in almost all U.S. states.

Based on the admittedly clearly foreseeable and widespread effects, c onsultation with the

Fish and Wildlife Service and/or National Marine Fisheries Service wa s necessar y to ensure that EPA’s approval of clothianidin d id not jeopardize the continued existence of any endangered or
threatened species or result in the destruct ion or adverse modification of designated critical

habitat of these species, under 16 U.S.C. §1536(a)(2) (known as “Section 7(a)(2)”). EPA has
frankly admitted that it has not complied with Section 7(a)(2) to date . Despite having allowed

clothianidin

- based products to be used across now what amount to many tens of millions of acres

87 See Appendix A for the approved uses of clothianidin products; note that Petitioners cannot be certain Appendix A includes every such product and approved use; EPA must determine that.

88 Clothianidin Fact Sheet, supra note 20 , at 16.E MERGENCY P ETITION

25 annually, in almost 3 0 different formulations , EPA’s recent Registration R eview Problem

Formulation document admit s: 89

The Agency has not conducted a risk assessment that supports a complete endangered species determination for clothianidin. The ecological risk assessment planned during registration review will allow the Agency to determine whether clothianidin’s use has “ no effect” or “may affect” federally listed threatene d or endangered species (listed species) or their designated critical habitats. When an assessment concludes that a pesticide’s use “may affect” a listed species or its designated critical habitat, the Agency will consult with the U.S. Fish and Wildlife Se rvice a nd/or National Marine Fisheries Service (the Services), as appropriate.

This is not an academic exercise ; the ESA is a strong, proactive law that EPA has treated
lightly

. More than 15 ESA

- listed insects , ranging from beetles to butterflies to grasshoppers and
other taxa, are potentially directly affect ed now by clothianidin

- based products

. 90 The 2010 Risk

Assessment for mustard seed and cotton uses admit s as much : 91

[I]nformation from standard tests and fi eld studies, as well as incident reports involving other neonicotinoid insecticides (e.g. imidacloprid) also suggest the potential for long term toxic risk to honey bees and other beneficial insects.

Despite the “ long term toxic risk, ” EPA has not even made the basic , required formal

determination as to how clothianidin “ may e ffect” any of the ESA

- listed species more than nine

years after its conditional registration , much less consulted on the key ESA action

- forcing

determination as to whether broad us e of the compound “jeopardize s ” the survival of these
species. Harmful effects on many non

- insect ESA

- listed species are also foreseeable, based on

89 Registration Review: Problem Formulation fo r the Environmental Fate and Ecological Risk, Endangered Species, and Drinking Water Exposure Assessments of Clothianidin , EPA Office of Chemical Safety and Pollution Prevention (2011).

90 A non

- exhaustive list shows 18 threatened or endangered insec ts that clothianidin may affect : American burying beetle ( Nicrophorus americanus ); Behren's fritillary (or Behren's silverspot) ( Speyeria zerene behrensii ); Callippe silverspot ( Speyeria callippe callippe ); Delhi Sands flower

- loving fly ( Rhaphiomidas terminatus

a bdominalis ); Fender's blue ( Icaricia icarioides fender ); Hine's emerald dragonfly ( Somatochlora hineana ); Karner blue ( Plebejus melissa samuelis ); Kern primrose sphinx moth ( Euproserpinus euterpe ); Lange's metalmark ( Apodemia mormo langei ); Mitchell's saty r butterfly Neonympha mitchellii mitchelli ; Myrtle's silverspot ( Speyeria zerene myrtleae ); Northeastern beach tiger beetle ( Cicindela dorsalis dorsalis ); Ohlone tiger beetle ( Cicindela ohlone ) Quino checkerspot butterfly ( Euphydryas editha quino ); Salt C reek tiger beetle ( Cicindela nevadica lincolniana ); San Bruno elfin ( Callophrys mossii bayensis ); Schaus swallowtail ( Papilio aristodemus ponceanus ); Zayante band

- winged grasshopper ( Trimerotropis infantilis ) . This list likely will need updating as more sp ecies are regularly added and numerous “Candidate” species await further action, including native bees

.

91 EPA November 2010 Memorandum, supra note 32 , at 52.E MERGENCY P ETITION

26 the many declines of insectivorous birds documented in Europe due to neonicotinoid use. 92 EPA

has not made th e required “effects” determinations or consulted for them either.

The documents suggest EPA is seeking to paper over various inadequate forms of

“ compliance ” that fall far short of act ually making biologically

- based “effects” determinations

and doing the c onsultations that are mandated under Section 7(a)(2) , not optional. Yet, elsewhere
the agency admits its own violation s . At Appendix H of the 2011 Registration Review Problem
Formulation, EPA outlines the need for four studies, on “Pollinator Larval Toxici ty”; “Pollinator Laboratory Chronic Feeding”; “Residues in Pollen and Nectar/ Field Resid ue Analysis”; and
(once again) the long

- missing “Field Test for Pollinators”

. For each of those studies, the agency

states (emphasis added) 93 :

EPA is required by section 7(a)(2) of the ESA to ensure that any action it authorizes or takes “...is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction of or adverse modification of critical habitat” and to us e the “best scientific data available” in carrying out this obligation. The data EPA intends to call in are necessary to inform the determination required by the ESA as to whether continued registration of a pesticide is not likely to jeopardize the specie s or its critical habitat

. The lack of these data will limit the flexibility that the agency and registrants have in coming into compliance with the ESA and could result in use restrictions which are unnecessarily severe. In addition, the lack of these dat a may result in assumed risk and potential mitigation of clothianidin formulations under FIFRA.

The statement’s focus on “continued registration” and “coming into compliance with the

ESA” entirely begs the question of complying with the ESA before approvi ng the pesticide,
which the agency did not do, and not after it has approved clothianidin

. EPA’s attempt s to do
post hoc Section 7 (a)(2) “ compliance ” are inadequate and clear ly violate the ESA.

E

. Clothianidin’s Rejection by New York State The rejection of clothianidin is not limited to prominent European nations. In 2005, the
New York State Department of Conservation advised Bayer Crop Science regarding the

withdrawal of its application for “Poncho 600,” with the active ingredient clothianid in , stating : 94

92 T ennekes, supra note 45

. 93 EPA Registration Review: Problem Formulation

, supra, note 89, App. H

. 94 L etter from NY State Dep’t of Envtl. Conservation to Bayer CropScience, available at http://pmep.cce.cornell.edu/pr ofiles/insect

- mite/cadusafos

- cyromazine/clothianidin/clothianidn_wth_1105.pdf

.E MERGENCY P ETITION

27 Based on the high toxicity of clothianidin and the potential long

- term chronic effects to honey bees, environmental persistence, possible role as an endocrine disrupter, chronic toxic risk to non

- endangered and endangered small birds, and

acu te/chronic toxicity to non

- endangered and endangered mammals, Poncho 600 should not be accepted for registration in New York State.

In 2007, the same De p a rtment rejected the application by Arysta LifeScience to register four
insecticide products (variatio ns of Are na, Clutch and Celero) containing clothianidin. 95 The
Department justified that rejection based on a lengthy list of “unmitigated concerns” about
required information that the co mpany did not submit, including adequate pollinator field

studies. The se actions underscore the weakness of EPA’s conditional registration of this
pesticide , as a prominent State agency can no t depend on EPA ’s risk management decisions

.

F

. Critical New Studies on Exposure Pathways Both EPA’s analytical failures and t he emer gency nature of this Petition are underscored
by two recent stud ies

. They illustrate that if a valid, comprehensive pollinator field study, as EPA
imposed as a condition of registration nine years ago, had actually been undertaken

, it would

have demons trated unacceptable adverse effects. The first study is from the United States, the
second is from Italy.

The first was published in January of 2012 and conducted by Christian Krupke of the
Department of Entomology at Purdue University, as well as several Purdue colleagues, and Brian

Eitzer of the Department of Analytical Chemistry at the Connecticut Agricultural Experiment

Stat ion (hereinafter “Krupke et al.”). 96 Th ey reported on their efforts to determine how bees are
being exposed to pesticides commonly applied to either corn se ed before planting or to corn plants later in the season. Two major systemic insecticides are used to treat corn seed,

clothianidin and thiamet hoxam (the latter is metaboliz ed to the former in bees and plants )

. The

researchers coll ected samples from a variety of potential e xposure routes in and near fields and
analyzed them to determine whether pesticides were present. They sampled soil, pollen both
collected by honey bees and directly from plants, neighboring dandelion flowers and both d ead
and healthy bees. They also checked waste products p roduced during pla nting

.

95 Letter from NY State Dep’t of Envtl. Conservation to Arysta LifeScience (July 17, 2007), available at http://pmep.cce.cornell.edu/profiles/insect

- mite/cadusafos

- cyromazine/clo thianidin/clothianidin_den_0707.pdf

.

96 Krupke et al., supra note 2

.E MERGENCY P ETITION

28 Corn is s o wn with tractor

- drawn planters us ing a forced air/vacuum system and a
perforated disc to pick up individual seeds and drop them into the planting furrow at the selected
spacing. K ernels treated with neonicotinoids do not flow readily and may stick to one another,
causing uneven plant spacing. To overcome this, white talc powder is added to seed boxes t o
reduce friction and ensure smooth flow. Much of this talc t hen is exhausted across entire fields
during planting, either down with the seed or behind the planter and into the air via an exhaust

fan. The r esearchers sampled th is waste talc after planting to determine whether this material was
contaminated with pest icides abraded from treated seeds. The waste is a mixture of the talc that

has been in contact with treated corn kernels and minute pieces of the seeds.
Among the concerns confirmed by the study is that clothianidin is accumulating in the
environment; Krup ke et al. found that soil from fields that had not been treated for two years still
tested positive for clothianidin residues. The authors state: Soil collected from areas near our test site revealed that neonicotinoid insecticide residues were present in all samples tested, with clothianidin occurring in each field sampled ... These results demonstrate that honey bees living and foraging near agricultural fields are exposed to neonicotinoids and other pesticides through multiple mechanisms throughout the spring and summer ... We show that bees living in these environments will forage for maize pollen and transport pollen containing neonicotinoids to the hive.

They found corn (or maize) pollen was frequently collected by foraging honey bees while it was

av ailable; corn pollen comprised over 50% of the pollen collected, by volume.
During the spring planting period, the contaminated dust that ari ses from this soil may

settle on flowers frequented by bees, or possibly on the insects themselves. Of potentially greater concern are the very high levels of neonicotinoids found in the talc that has been exposed to

treated seed. The report states:
The large areas being planted with neonicotinoid treated seeds, combined with the high persistence of these materials an d the mobility of disturbed soil and talc dust, carry potential for effects over an area that may exceed the boundaries of the production fields themselves

.
Later in the season, when planting is largely complete, the rese archers found bees collect

corn p ollen that contains translocated neonicotinoids and other pesticides from seed.
Translocation of neonicotinoids into pollen has previously been re ported for corn grown fromE MERGENCY P ETITION

29 imidacloprid

- t reated seed, but Krupke et al. say the degree to which honey be es in their study
gathered corn pollen was surprising:
The finding that bee

- collected pollen contained neonicotinoids is of particular concern because of the risks to newly

- emerged nurse bees, which must feed upon pollen reserves in the hive immediately followi ng emergence.

Impor tantly, the amount of the pest icide s f ound in and around corn fields wa s near the range

kn own to kill honey bees. Also, dead bees collected nea r treated fields contained pesticide
residues, whereas none of the apparently healthy, live bees sampled from the same locations had
any detectable clothianidin. Lethal levels in pollen are an obvious concern, but sub

- lethal levels
are also worthy of study as even slight behavioral effects may impact how affected bees carry out
important tasks su ch as brood rearing, orientation and communication

. Krupke et al. specifically compared their findings of clothianidin’s impact on bees in and

near treated corn fields to those of the Cutler and Scott

- Dupree 2007 commissioned by Bayer in

treated canola fie lds and stated (emphasis added) : The levels of clothianidin in bee

- collected pollen that we found are approximately 10

- fold higher than reported from experiments conducted in canola grown from clothianidin

- treated seed. 97

It is now shown that the study upon which EPA relied

- and which the agency later admitted it

should not have

- was performed in a crop field that had a 10

- fold lower exposure level of
clothianidin to bees via collected pollen than t he levels found in and near treated corn
fields. EPA must fully consider the Krupke et al. study, especially on the issue of there being an

“imminent hazard” justifying suspension. 98
In sum, Krupke et al. show that, contrary to EPA’s initial assumption that the substance

stays co nfined in the treated plants themselves when the agency approved clothianidin as a seed
treatment product and approved its labeling, the material is broadcast over the soil of almost all

97 Krupke et al., supra note 2 , citing to Cutler & Scott

- Dupree, supra note 81.
98 The Administrat or is requested to take note of language in a very recent U.S. Circuit Court of Appeals decision, Sierra Club v. EPA

, __ 9th Cir. 567, No. 10

- 71457, (Jan. 20, 2012). This case involved a successful challenge to EPA’s decisionmaking under the Clean Air Act about a State Implementation Plan; the scientific questions were about ozone levels. The Plaintiffs’ claim was EPA failed to consider the most current ozone data. While based on a different context than presented in this Petition, the agency’s obligations are the same with respect to reasoned decisionmaking. The Court stated, at 590

- 91: [W]e should not silently rubber stamp agency action that is arbitrary and capricious in its reliance on old data without meaningful comment on the significance of more current compiled data. We hold that EPA’s failure to even consider the new data and to p rovide an explanation for its choice rooted in the data presented was arbitrary and capricious.E MERGENCY P ETITION

30 of America’s extrem ely vast corn acreage and is scattered over neighb oring lands

. EPA’s recent assessments admit the “terrestrial ecosystems potentially at risk” from treated fields “include
other cultivated fields, fencerows, hedgerows, meadows, fallow fields or grasslands, woodlands,
riparian habitats, and other uncultiva ted areas.” 99 Being persistent, and repeatedly spread each
planting season, clothianidin dust and contamination from treated seeds create an essentially
perennial exposure situation for bees and other beneficial insects across America, everywhere
corn is gr own commercially (in almost every State), and at toxicity levels roughly ten

- fold higher than EPA had been led to believe by Bayer’s discredited 2007 field study.
The second recent study was published in January 2012 and conducted by eight scientists

at t he University of Padova, Italy (hereinafter “Tapparo et al.”). 100 They quantitatively measur ed
the previously underestimated pathway of environmental exposure of ho ney bees to clothianidin
(Poncho) as well as the other neonicotinoid s , namely, the atmospheric emission of particulate

matter by standard pneumatic corn seed plant ing machines (also used in Krupke et al. )

. Their
results show that the environmental release of particles containing neonicotinoids can produce
high exposure levels for bees , with lethal effects consistent with the colony loss phenomenon
observed by beekeepers.
They also tested different configurations of the plant er exhaust pipes, including
modifications aimed at reducing emissions of the neonicotinoid s. They concluded the se various

exhau st modifications “ have a limited effect on both the factor emission and the effective bee

contamination ”.

EPA ’s communications on reported, neonicotinoid

- caused, mass bee kills regularly

blame faulty planter exhaust systems

. But, the findings of Tapparo et al. neutralize that blame

shifting , as exhaust modifications only have a “limited effect”. Krupke et al., who made very
clear that they followed the insecticide label directions for use, confirm Tapparo et al. on the
point that the toxic dust from plan ting the coated seeds will escape in any event, regardless of the
label warnings, directions for use or other farming techniques that EPA may urge ( but is in no
position to mandat e or enforce )

.

99 Memorandum: Revised Assessment for Clothianidin Registration of Prosper T400 Seed Treatment on Mustard Seed (Oilseed and Condiment) and Poncho/Votivo Seed Tr eatment on Cotton, PC Code 044309, EPA Environmenta l Fate and Effects Division (Dec . 2, 2010 ), at 21.

100 Tapparo et al., supra note 2

.E MERGENCY P ETITION

31 Tapparo et al. conclude d by suggesting reforms , not just to preserve honey bees but also

to protect broader ecosystems from this pervasive and increasing contamination source :

This emission source of particles with acute toxic effects on bees (and on other insects too) is of concern for both apiculture and crop pro ductions based on bee pollination. But it is also a widespread ecological problem that, in view of the worldwide increase in corn production partly promoted by government subsidies to renewable energy sources, and the consequent predictable exacerbation of the problem, should require a deeper analysis of the related agricultural policies.

As Krupke et al. , Tapparo et al

. , and a vast number of other studies and real

- world
experiences show, the effect of EPA’s policies and decisions has been to imprudently expose
vast numbers of America’s beneficial insects to damaging toxin levels and not just in and near
corn fields as clothianidin is approved for dozens of other uses

. F or the owners of honey bees
that are privately held

, the economic and workload impac ts are devastating (see Table 1)

. Many commercial beekeepers have gone out of business, filed for bankruptcy or both.

STATEMENT OF LEGAL GROUNDS

VII

. Allowing Sale and Use of Clothianidin Wi thout a Field Study Required for its Conditional Registration is Arbitrary and Capricious; Immediate Suspension is Required

Well over a year has passed since EPA finally acknowledged it had improperly relied on

t he Cutler and Scott

- Dupree 20 07 study as satisfying the outstanding data requirement that the

agency made a condition of clothianidin’s registration. Clothianidin thus exists i n a regulatory

limbo in which EPA continues to allow its sale and use even though Bayer failed to meet a
crucial condition imposed back in 2003

. A condit ional registration is authorize d under three circumstances : EPA may conditionally register a pesticide if “the pesticide and proposed use are
identical or substantially similar to any currently registered pesticide and use
thereof, or differ only in ways that would not significantly increase the risk of

unreasonable adv erse effects on the environment

, ” 101

101 7 U.S.C. § 136a(c)(7)(A) (i).E MERGENCY P ETITION

32 EPA may conditionally amend a pesticide’ s registration “to permit ad ditional uses
of such pesticide

, ” 102
EPA may conditionally register a pesticide “containing an active ingredient not
contained in any currently registered pesticide for a period reasonably sufficient for the generation and submission of required data” but “ only if [EPA] determines
that use of the pesticide during such period will not cause any unreasonable

adverse effect on the environment, and that use of the pest icide is in the public

interest. ” 103
Only the last of these circumstances

— generating data for a newly

- developed pesticide

— even arguably applied in 2003, but none of t hese circumstances appl y in 2012

. Accordingly,
maintaining the registration of clothianidin violates FIFRA for at least two reasons.
First, EPA no longer has statutory authori zation to maintain the registration of

clothianidin because of the outstanding data

. B y its own terms

, FIFRA does n ot allow
conditional registrations to go on indefinitely. A conditional registration may only last for a period “reasonably sufficient” to generate the outstanding data necessary for un conditional
registration. Nine years far exceeds the amount of time “re asonably sufficient” to generate

those data. Even the 1 6 months since EPA ’s 2010 downgrade of Bayer’s 2007 study is more
than “reasonably sufficie nt” time f or Bayer to have conduct ed the missing pollinator fiel d study
that complies with guideline 850.3040

. Because much more than a reasonably sufficient time has
passed for Bayer to produce the missing data required for conditional registration , EPA now
lacks authority to prolong clothianidin’ s registration; i mmediate suspension is required. EPA
must require completion of the missing field tests using actual commonly

- applied mixes.
Second, EPA has not determined and

, given the state of independent pe er

- reviewed

scientific research

, it c ould not reasonably determine

, that clothianidin will not have

unreasonable adverse effects on the environment if the compound’s registration is allowed to

continue

. N or can EPA determine that maintaining its registration is in the public interest

. Indeed, EPA itself admitted in an official memorandum in 2010 th at clothianidin may have
significant adverse impacts on pollinators : 104

102 I d . § 136a(c)(7)(B)

. 103 Id . § 136a(c)(7)(C) ; Hardin v. Jackson , 625 F.3d 739, 740 (D.C. Cir. 2010) (dismissal affirmed on other grounds) (emphasis added)

.

104 See, e.g. , EPA November 2010 Memorandum, supra note 32 , at 2.E MERGENCY P ETITION

33 [I]nformation from standard tests and field studies, as well as incident reports involving other neonicotinoids insecticides (e.g., imidacloprid) suggest the potential for long term tox ic risk to honey bees and other beneficial insects

.
In sum, EPA is maintaining conditional registration for clothianidin “without making the
findings required by law for such a registration and contrary to the statutory terms which
preclude a conditional registration

. ” 105 T he agency’s actions and inactions

, as a matter of law, are arbitrary, capricious and contrary to the mandates of FIFRA . The agency has severely harm ed the Petitioners’ interests in maintaining healthy populations of honey bees and other be neficial

insect s , as well as in preventing further resulting economic and ecosystem damage. Immediate
suspensio n of clothianidin’s registration is the required remedy

.

VI II. Studies Linking Neonicotinoids to Declining Honey Bee Populations and Health Just ify Immediate Suspensio n of Clothianidin’s Registration

In addition to the law, t he weight of the science justif ies suspension as shown in this
Petition and in the State of the Science report in Appendix B

, because clothianidin use ha s been

shown to be a likely factor in the abnormal declines in honey bee population s

. Th is pesticide , in

addition to its lethal effects, also affect s bee behavior and cognition in ways that compromise the

overall health of colonies

. To reiterate, h oney bees are social insec ts that rely heavily on a cer tain level of memory,
cognition and communication to coordinate activities essential for their survival. 106 C hronic
ingesti on of neonicotinoid s damages fora ging behavior, overall mobility and the communication

that allows these s ocial insects to coordinat e their activities

. 107 N eonicotinoid pesticides also

have several other indirect effects on honey bees, such as premature s hifts in hive roles

. 108 They can impair honey bees’ medium

- term olfactory memory and associative learning abilities, which

105 Hardin

, supra note 103, 625 F.3d at 741.
106 Judy Y. Wu et al.

, Sub

- Lethal Effects of Pesticide Resi dues in Brood Comb on Worker Honey Bee ( Apis mellifera ) Development and Longevity , 6 PLoS ONE e14720 (2011).

107 See, e.g. , Piotr Medrzycki et al., Effects of Imidacloprid Administered in Sub

- Lethal Doses on Honey Bee Behaviour. Laboratory Tests , 56 Bulletin of Insectology 59 (2003), available at www.bulletinofinsectology.org/pdfarticles/vol56

- 2003

- 059

- 062medryzcki.pdf ; E.C. Yang et al., Abnormal F oraging B ehavior I

nduced by S ub

- L ethal D osage of I midacloprid in the H

oney B ee ( Hymenoptera : Apidae ) , 10 1 J. OF E CON

. E NTOMOLOGY 1743 (2008).

108 Wu et al. supra note 6 at 1

– 2; see also Yang et al.

, supra note 107.E MERGENCY P ETITION

34 foraging honey bees rely on, inter alia , to find their way back to the hive. 109 Impairment of these

functions is consistent with the absence of dead bees inside the hive s in reported CCD cases.
As indicated above, r ecent studies also confirm neonicotinoi ds in teract with common bee
pathogens and parasites , making the bees more vulnerable to the deadly effects of both

. S tudies

reveal that neonicotinoi ds weaken honey b ees so they are more vulnerable to mortality from gut parasites like Nosema spp. and vice versa. 110 T he combination of the increasing prevalence of

Nosema spp. with high pesticide conte nt in beehives can create synergistic effects, contributing

further to colony depopulation.
In sum, peer

- re viewed studies demonstrate neonicotinoid s including clothianidin have the
potential to wreak havoc on U.S. pollina tors. Due to uncontrollable drift and blowing of
contaminated dust and soils, this includes vast acreage of lands neighboring the fields where the
pesticide is intentionally applied. EPA also has approved it in various formulations for use on

ornamental and landscaping plants and as trunk injections to trees that are foreseeably visited by
many species of be es and other beneficial inse cts, including threatened and endangered species
(see Appendix A on Approved Uses). As shown in this Petition and bolstered by the State of the

Science report , t he levels of clothianidin a pplied through its spectrum of approved uses pose significant acute and chronic risk s

. Thus, the compound clearly meets EPA’s own criteria for
Special Review in Title 40 CFR 154 Subpart A:

§ 154.7 Criteria for initiation of Special Review. (a) The Administrator may conduct a Special Review of a pesticide use if he determines, based on a validated test or other significant evidence, that the use of the pesticide (taking into account the ingredients, impurities, metabolites, and degradation products of the pesticide): ///////////////// (3) May result in residues in the environment of nontarget organisms at levels which equal or exceed concentrations acutely or chronically toxic to such organisms, or at levels which produce adverse reproductive effects in such organisms, as determined from tests conducted on representative species or from other appropriate data. (4) May pose a risk to the continued existence of any endangered or threatened species designated by the Secretary of the Interior or the Secretary of Commerce under the Endangered Species Act of 1973, as amended. /////////////////

109 Decourtye et al., supra note 4; see also Alex Decourtye et al., Effects of Imidacloprid and Delamethrin on Associative Learning in Honeybees Unde r Semi

- Field and Laboratory Conditions , 57 E COTOXICOLOGY & E NVTL

. S AFETY 410 (2004).

110 Pettis et al., s upra note 46 ; Vidau et al. , s upra note 47

.E MERGENCY P ETITION

35 (6) May otherwise pose a risk to humans or to the environment which is of sufficient magnitude to merit a determination whether the use of the pesticide product offers offsetting social, economic, and environmen tal benefits that justify initial or continued registration.

In addition to the fatal proce dural and legal defects in clothianidin’s conditional
registration, the weig ht of the current science on its adverse effects mandate s immediate
suspension of its r egistration and its removal from the market and the environment

.

IX

. Immediate Suspension is Warranted Under 7 U.S.C. § 136d

EPA also has more than enough evidence and cause to make the determinations
necessary to suspend registration of clothianidin under 7 U.S.C. § 136d.

A. Cancellation Proceedings a re Required o r a t Least Warranted 7 U.S.C. § 136d(e)(1) provides :

T he Administrator shall issue a notice of intent to cancel a registration issued under section 136(a)(c)(7) of this title if ... the Administrator, at any time during the period provided for satisfaction of any condition imposed, determines that the registrant has failed to initiate and pursue appropriate action toward fulfilling any condition imposed.

By using the word “shall,” in contrast to the use of “may” in section 136d(b), Congress imposed

on EPA a mandatory duty to initiate cancellation pr oceedings when a registrant has, for example,
effectively extended its condi tional re gistration by delaying its own compliance with a condition

. Based on the unreasonable delay s by Bayer

, a determin ation by EPA that clothianidin did

not now conform to the criteria for cancellation under section 136d(e)(1) would be contrary to

FIFRA and arbitrary and capriciou s

. Alternatively, e ven if EPA rejects this interpretation of
FIFRA, initiation of cancellation proceedings is still warranted under 7 U.S.C. § 136d(b)(1). That

section states the Administrator may initiate cancellation proceedings if she determines that a pesticide “generally causes unreasonable adverse effects on the envi ronment.” As discussed

above

, the strong weight of the evidence shows that recent and widespread use of clothiani din is
causing unreasonab le adverse effects

.E MERGENCY P ETITION

36 B. Clothianid in Presents an “Imminent Hazard ” ; Immediate Suspension is Warranted

Every year clothianidin remain s in use, the viability of pollinator popula tions deteriorates

more

. After at least six consecutive winters resulting in s ignificant, abnormal

, die

- offs of honey
bees, their populations across the United States could collapse. E conomic losses from the
collapse of U.S. bee colonies would measure in the tens of billions of dollars. 111 The ecological
impacts of lost pollinators also would be devastating and perhaps irreparable. With the stakes so
high, and with America’s bee keepers and honey producers already suffering severe losses, EPA
cannot reasonably interpret FIFRA to require putting off suspension until this hazard somehow

becomes more imminen t

.

X

. Clothianidin’s Inadequate Label ing Renders It Misbranded; a Stop Sale, U se or Removal Order is Required

Section 2(q)(1)(F) of FIFRA states a pesticide is “misbranded” if its labeling lacks “directions for use” which are “adequ ate to protect health and the environment.” 112 It is unlawful

to sell or distribute a misbranded pesticide

. 113 Section 13(a) authorizes EPA to issue an order
prohibiting the sale, use or removal of any pesticide or device whenever t here is reason to

believe it s use would violate any provision of FIFRA. 114

Clothianidin seed treatment product s are misbranded because their labeling lacks
directions for use adequate to protect against devastating harm to beneficial insect s, particularly
honey bees and including Federally

- listed threatened and endangered species

. 115 The Krupke et

al. , Tapparo et al. and other stud ies show that farmers are broadcasting it far and wide via many
pathways of exposure for which there is no foreseeable likelihood that label warnings could
mitigate the exposure of unintended targets. (This is particularly the case because label warnings

are ver y rarely enforced.) The researchers found that when corn seeds we re treated with
clothianidin according to the label guidelines it nev ertheless became widespread across the
agricultural landscape , including neighboring lands over which the user of the pesticide typically

111 E.g. , Johnson, supra note 14 , at 1.
112 7 U.S.C. § 136(q)(1)(F); see also id. § 136(q)(1)(G) (pesticide is misbranded if its label lacks a warning adequate to protect health and the environment).

113 7 U.S.C. § 136j(a)(2)(I).
114 Id. § 136k(a).
115 Appendix C: Sample Labels of Pesticides Containing Clothianidin

.E MERGENCY P ETITION

37 lacks any means of controlling the harmful effects and no modifications to the planting
machinery have been shown to s ignificantly reduce it.

C urrent labeling for clothianidin seed treatment s , such as Poncho 600 and Poncho Beta
(see Appendix C), lack any warnings or directions for use as to how pollinators and other
beneficial insects, including threatened and endangered species

, actually are to be protect ed

. EPA should determine that no label warning or directions could provide adequate protection

based on the available evidence.
Indeed, t he agency’s regulatory do cuments contain several asser t ion s by EPA scientists to

this effect. EFED’s entomologist, Allen Vaughan, assert ed in an offici al Memorandum that
applied to cucurbits and fruiting vegetables , but also applies more generally , that : 116
Because of the extreme persistence of clothianidin in soil environments (half

- l ife = 148 to 1,155 days) and the potential for translocation of this systemic pesticide to pollen and nectar, EFED does not believe that precautionary bee labeling language will effectively mitigate hazards from soil treatment or seed application of clothi anidin to cucurbits and fruiting vege tables

... mitigation measures have not been developed to protect bees from exposure to soil

- applied systemic pesticides.

I t would be specious to suggest that the inability of precautionary labeling language to mitigate

t he environmental hazards of clothianidin is limited to a “special case” of cucurbits and fruiting
vegetables. The degree of hazard is many orders of magnitude greater for corn seed treatment

, such as Poncho 600 , planted now across tens of millions of acres , than for the relatively minor
acreage of cucurbits and fruiting vegetables, and just as incapable of mitigation by label
warnings or use directions. E PA lacks any basis to assert that unenforceable exhortations to
farmers actually will protect bees from the risks; again, the evidence from the recent field studies
is that even if farmers heed those exhortations, and eve n if their planter exhausts are modified, it
would not significa ntly reduce the harmful effect s. Foliar applications of the products also are misbranded; many have label language warning against use when bees are “actively visiting” the plants even though the field half

- life of

clothianidin can be 25 days or more. This defect also applies to clothianidin

- based products sold
to landscapers a nd homeowners in retail stores across the nation. Huge volumes of these

116 Allen W. Vau ghan, Clothianidin Registration of New Products and New Uses of Sepresto 75WS and PROCEEDTM OPTIMUM: Addendum to Address Mitigation of Bee Hazard , Envtl. Risk Branc h, EFED, EPA ( 2009 ); emphasis added

.E MERGENCY P ETITION

38 products reportedly are sold and the rates recommended on the container labels can be as high as
40 times the rate allowed for agricultural applications, resulting in lethal doses. Yet

, these
products can be sold without any bee hazard statement

. Compared to crop uses, this entir e use area is “flying under the radar” of EPA con t rol

. The se fact s, in view of the Vaughan admission, show the labels on clothianidin products

viola te FIFRA. The statute is explicit and requires that EPA find a product is misbranded if : 117

(F) the labeling accompanying it does not contain directions for use which are necessary for effecting the purpose for which the product is intended and if complied with, tog ether with any requirements imposed under section 136a(d) of this title, are adequate to protect health and the environment ; [or]

(G) the label does not contain a warning or caution statement which may be necessary and if complied with, together with any requirements imposed under section 136a(d) of this title, is adequate to protect health and the environment

.

As indicated, based on the above language

, EPA recently issued a stop sale, use o r removal order for a comparable herb icide based on the label because o f similarly undisclosed
impacts on non

- target organisms. EPA registered DuPont’s broadleaf herbicide Imprelis in 2010.

In the course of inves tigation, the agency discovered that the appr oved label s di d not warn about
potential damage to trees when the product was used in accordance with the label directions

. EPA therefore determined Imprelis was misbranded because it lacked : “ directions for use and /or
warning or caution statements that are adequate to protect the environment, namely certain
species of trees .” 118 Accordingly, the agency ordered DuPont to “ immediately cease the sale, use
or removal of Imprelis products .” 119

T he fact s that led EPA to issue th e order for Imprelis are indistinguishable from the fact s here, namely, that clothianidin product labels lack warnings or directions for use adequate to

protect non

- target insects, including Federally

- listed threatened and endangered species. It is

irrelev a n t that in the Imprelis case the organisms being killed were large visible trees and in this

case the organisms being killed are small insects that may go un noticed until they are gone

.

117 7 U.S.C. § 136 (q); emphasis added.
118 EPA Region III, In re E.I. du Pont de Nemours & Co. , Stop Sale, Use, or Removal Order, Docket No. FIFRA

- 03

- 2011

- 0277SS (Aug. 11, 2011) ¶ 22.

119 Id. ¶ 24 (emphasis in original).E MERGENCY P ETITION

39 Accordingly, Petitioners request EPA to formal ly determin e that cloth ianidin is misbranded and
issue a stop sale, use or removal order on an emergency basis

.

XI. EPA’s Actions Violate the Endangered Species Act.
As indicated, EPA has violated Section 7(a)(2) of the ESA by failing to make the
required “ effects ” determinat ions and failing to undergo consultation with the Services concerning clothianidin’s impacts on native endangered and threatened species. EPA has in
effect admitted these violations and it explicitly acknowledged the foreseeability of adverse

effects on ES A

- listed species back in 2003 when it first registered the compound. Petitioners
request EPA to make the needed effects de terminations and initiate and complete the required
consultation process. The agency must suspend the continued use of clothianidin in the interim to make this ESA compliance meaningful and in accordance with the statute’s requirements,
otherwise clothianidin may continue to take listed threatened and endangered species w ithout the
required take authorizat ion under the ESA and may degrade designated critical habitat.

CONCLUSION
If EPA does nothing the collapse of honey bee populations nationwide and severe damage to the Nation’s agriculture, as well as to populations of native pollinators and other

beneficial insects

, and to the Petitioners’ interests, are foreseeable

. But, it is not too late. T aking

the actio ns requested in this Emergency Petition can preserve these remarkable insects for future
generations and prevent massive economic and ecological damage , but not i f the actions are
delayed for years.

For the foregoing reasons, Petit ioners respectfully request EPA to prompt ly suspend the
registration of clothianidin

. Petitioners also request EPA to make a formal determination that

clothianidin is misbranded because its labeling is inadequate and to issue a stop sale, use or

removal order

. In the alter native, Petitioners request EPA to initiate Special Review and
cancellation proce dures and sus pend clothianidin’s registrati on pending the outcome of those
procedures

. C lothianidin does not meet the burden under EPA’s criteria to be “entitled” to
continued regist ration per 40 CFR§ 154.5 on Special Review petitions

.E MERGENCY P ETITION

4 0 In view of the emergency nature of this matter, the severity of the impacts the Petitioners
are suffering an d EPA’s excessive delays to date in complying with FIFRA and the ESA and in
resolving the concerns over clothianidin’s environmental effe cts , the agency is urg ed to grant the
requests in this Petition within 90 days of its filing date. Failure to promptly resolve the se matters will create a high likelihood of significant harm to the Petitioners, the public and the

environment.

DATED this 20th day of March , 2012.

/s/

_______________________ _____ Peter T. Jenkins, Attorney for Petitioners Center for Food Safety and International Center for Technology Assessment 660 Pennsylvania Ave ., SE Suite 302 Washington

, DC 20003 P hone : (202) 547

- 9359 Email: PJenkins@icta.org

TABLES

Table 1. Beekeeper and Honey Producer Petitioners

Table 2 . Environmental and Consumer Organization Petitioners

APPENDICES
Appendix A

- Approved Uses of Clothianidin
Appendix B

– PANNA report: Pesticides and Honey Bees

– The S tat e of the Science Appendix C

- Sample Labels of Pesticides Containing ClothianidinE MERGENCY P ETITION

41 Table 1. Beekeeper and Honey Producer Petitioners ( 27 )

Jeff Anderson , owner of California Minnesota Honey Farms (CMHF), is a commercial beekeeper residing in Oakdale, California and Eagle Bend, Minnes ota. CMHF is a 3
, 000 hive commercial migr atory beekeeping operation. Mr. Anderson has worked in this operation for 36 years and owned it for that last 15; e xperiences include an extensive fight over improper use of insecticides in Minnesota which over the course of 5 years killed 11,000 of his bee hives. This first hand exposure has mad him adept at identifying abnormal bee mortality attributed to pesticides as compared to ‘normal’ pest and pathogen caused mortality. Abnormal bee mortality again reared its head for CMHF in the form of excessive overwinter mortality starting in the spring of 2005. Another issue relate d to bee health which has

worse ned in subse quent years i s a ‘light’ bee kill which appears to correlate with corn planting in Minnesota. The hives fail to build in a normal fashion during planting season. The a ppearance of these and other similar symptoms correlate directly with the introduction of clothianidin seed treatment in 2004 on agricultural crops in his area. In 2011, the spring issues included abnormal ly high queen mortality. Of the 3

, 000 hives first brought to Minnesota , 25% plus had to be re

- queened. E ven with this extra manipulation whi ch in essence should have raised the spring count to 3750 hives, the season’s abnormal mortality resulted in a spring 2012 count of 1800 hives; representing over 50% actual mortality.

Manley and Linda Bigalk are beekeepers near Cresco, Iowa

, which is in northeastern Iowa near the Minnesota border. They have been comm ercial beekeepers for over 50 years. They are producers

packers and supply a grocery chain of about 110 stores in the region. They also are farmers. They are very concerned about clothianid in as it pertains to the honey industry, environment and to consumers of honey. Their bees have been stressed these last years. They don’t have the vigor they used to; evidently their immune s ystems have be en stressed. The Bigalks used to run about 1

, 40 0 hive s and are d own to 600 at present. They are replacing 30% of their bees each year and some years more. Things have dramatically changed as it used to be about 15%. The y believe the systemic insecticides, neonicotinoids including clothianidin

, h ave had an effect

.

Tim A

. Brod of Highland Hon ey Bees, LLC., is a commercial be ekeeper residing in Boulder, Colorado. He has been involved with bees for o ver 40 years, and for the last 6 with a registe red licensed commercial operation

. For the past 5 years, he has been experiencing an increase in bee mortality and poor brood

queen dy sfunction. Some years the die off is as high as 40%. This pattern o f die off and brood illness is alarming and not sustainable for the bees or for the business. He belie ves his excessive die off and "illness," is at the least partially due to new generatio ns of pesticides, particularly neonicotinoids, and specifi cally seed treatments using these chemical s. He is very disappointed by EPA 's poor management and science rega rding these chemical s , and its inadequa te enforcement and education of applicators

.

Coalition4Bees is a grassroots group of beekeepers whose members share the goal of educating themselves and others in Boulder County, Colorado

, about the effects of syste mic pesticides on honeybees, other pollinators, soils, and groundwater. The members of this organization have all seen excessive mortality of their colonies over the past several years. A large percentage of the agricultural lands in Boulder County are pl anted in corn, the majority of which is treated with the neonicotinoid pesticide clothianidin. The member s of Coalition4Bees believe this pesticide is very toxic to bees and other pollinators. They are reasonably certain that a significant percentage of t heir bee mortality is linked to this pesticide, and they are extremely concerned that if its use continues to be permitted, the damage to the food supply and the ecosystem could be devastating.E MERGENCY P ETITION

42 Craig Byer is a com mercial beekeeper in Huntington /Smithtown, New York. He serves as a board member on the American Apitherapy Society which uses the products of the hive to aid in overall health. He also runs a large pest control operation on Long Island and is fully aware of the detrimental effects on t he environment of residual pesticides used to control insects. Because of persistent chemicals in the environment he has difficulty in maintaining his bee hives in a normal fashion. He is sure the use of clothianidin and other neonicotinoid pesticides has impacted the health of h i s bees. This is compounded by the lack of labels on those pesticides adequate to inform the applicators how to avoid harm to bees and as well an inadequate enforcemen t of the label requirements

.
Cynthia Cole is a beekeeper and m arket gardener residing in Ba rnstable, Massachusetts. She has kept bees for four years for the purposes of collecting honey and for pollination, which is extremely impor tant for her flower business. She is a member of the Barnstable County Beekeepers Ass ociation and Market Manager of the Mid

- Cape Farmers Market. Overwintering mortality h as been a problem for her

. Losing hives is costly in terms o f out

- of

- pocket expenses, time to restock the hive and lost honey producti on. She believes that this mortali ty, at least in pa rt, is a result of exposure of her bees to neonicotinoid pesticides, including clothianidin

.

Ross Conrad , is a commercial beekeeper residing in Middlebury, Vermont. He manages 50

- 60 hi ves for pollination, as well as honey and wax production. He has relied on honey bees for part or all, of his
inco me since 1993. His experience includes:

-- a uthor of one of the central books on the subject of Natural/Organic Beekeeping (Natural Beekeeping: Organic Approaches to Modern Apiculture, C helsea Green publishing 2007);

-- a uthor of dozens of articles on beekeeping for bee related journals and periodicals in the United States and abroad;

-- has taught dozens of courses and led dozens of bee related workshops and presentations th roughout North America for groups from 4 to 300;

-- o ffers Natural/Organic Beekeeping consultation services ;

-- is r e cognized nationally as a leader in the area of Natural/Organic Beeke eping. The ongoing effects of excessive overwintering mortality and oth er excess losses other beekeepers are experiencing are of serious concern to Mr. Conrad as he does not want his operation to be impacted by chemicals toxic to honey bees that have not been improperly approved for the marketplace. T he evidence indicating th at honey bees become more susceptible to disease after exposure to sublethal doses of chemicals may be impacting his operation and it may be impacted more directly at some point in the future

.
James Doyle is a commercial beekeeper residing in Bainbridg e, Indiana . He currently has 32 hives for honey production, and pollination services, including 10 years in it. The ongoing effects of excessive overwintering mortality and other excess lo sses of honey bees has damaged his operation with an average of a 30 % loss of hives over winter, and a general failure to thrive. Worker loss is preventing the hive from growing, thus making them vulnerable to predation by ot her insects. This has caused him to buy replacement bees each spring and feed sugar to replace the honey that was not gathered in an effort to keep the hive s alive. The hive splits he is able t o do go to replace losses to his own apiary so he cannot expand his operation or sell bees for profit. This damage is believed to have at least partly resulted from neonicotinoid pes ticides, including clothianidin.

Steve Ellis owns and operates Old Mill Honey Company, a migratory beekeeping operation with 2,300 hives of bees during the summer honey

- producing season. The managed hives of honey bees in this business produce honey for market over the summer months in Minnesota, and paid pollination services in the winter and spring in California. He has over 35 years of ex perience as a beekeeper; over that period he has observed many incidents related to pesticide poisoning. Each pesticide poisoning incident affects hives of honey bees differently, depending on the route of exposure of the bees and the mode ofE MERGENCY P ETITION

43 action of th e specific chemical. Monetary damages done to managed honey bees can become very great including the costs of replacing killed bees, contaminated beeswax comb, lost honey production, and lost income from failure to perform contracted pollination services. Over the course of the last five

to six years, he has observed a new type of bee kill: bees dying of pesticide poisoning in the early spring, at corn seeding time, and early dandelion bloom. N eighboring beekeepers also have been reporting this unusual o ccurrence

. Fall and winter mortality have remained between 30 and 40% over thi s period in his operation. C learly this level of l osses is unsustainable. He keep s bees in west central Minnesota where corn and soybeans are increasingly the dominant crops. It is not po ssible to locate his bees away from these crops duri ng the summer growing season.

Adam French runs Cox Honey Farms, Inc., a commercial beekeeping operation in Shelley, Idaho. The business has operated for over 70 years. The ongoing effects of excessive overwintering mortality and other excess losses of honey bees have at times crippled its operati on. Excessive manpower and hours have been spent to regroup and bring colony counts back to normal. This damage is believed to have at least partly resulted from neonicotinoid pesticides, including clothianidin, in the environment where it has impacted the ir bees. This is made worse by the lack of labels on those pesticides adequate to inform the applicators how to avoid harm to bees and inadequate enforcement.

Tim Fulton is a sideline beekeeper with a s mall operation based in Kenosha, Wisconsin. He has k ept bees for over 15 years and produces about 2

, 000 lb s. of honey annually that he sells at a farmers market and from his home. He is President of Wisconsin Honey Producers, Program Chair of Kenosha Racine Beekeepers, and a member of the American Federatio n of Beekeepers. The ongoing effects of excessive overwintering mortality and other excess losses of honey bees have damaged his operation significantly. When Mr. Fulton first started keeping bees, he had a high 90% overwintering success rate. Over the las t 5 to 6 years however, he has suffered consistent losses of 30

- 40%, and this only seems to be getting

worse. Mr. Fulton’s hives are located between flying distance of two golf courses. The damage to his operation is believed to have at least partly result ed from neonicotinoid pesticides, including clothianidin, in the environment where it has impacted his bees. He recognizes this is a complex issue, but believes that the EPA needs to be more respon sible to the pollinator and beekeeper population, especiall y in light of the growing local food move ment, which depends heavily on honeybees.

David Hackenberg is a commercial bee keeper residing in Lewisburg, Pennsylvania . He has been keeping bees for 49 years, through his family business Hackenberg Apiaries. His experience includes serving 12
years on the National Honey Board, President of the American Beekeeping Federation, and has served as Chair and Co

- chair of the National Honey Bee Advisory Board. The ongoing effects of excessive
overwinterin g mortality and other excess los ses of honey bees have damaged his operation. In 2006, he saw huge losses in a little less than three weeks. These disappearances coincided with neonicotinoid pesticides coming on the market. This damage is believed to have at least partly resulted from these pesticides, including clothianidin, in the environment where it has impacted his bees. This is believed to be compounded by the lack of labels on those pesticides adequate to inform the applicators how to avoid harm to b ees and inadequate enforcement of the label requirements. He currently has about 3300 hives this spring. His annual l osses have run 75

- 80%, or with continual protein feeding, they can be held closer to 60% losses , but both these levels are excessive

.

Pa ula L. Hendricks , is a commercial beekeeper residing in Ellsworth, Ohio . She has been a beekeeper for approximately ten years producing honey, soaps, candles, and other products

. Her experience includes Columbiana

- Mahoning County Beekeepers Association and Ohio State Beekeepers Association, she is a past secretary of the Columbiana

- Mahoning County Beekeepers Association. The ongoing effects ofE MERGENCY P ETITION

44 excessive overwintering mortality a nd other excess losses of honey bees has damaged this operation in the way of lost profits, lack of honey production, and bee loss in the upward numbers of 50% in the years 2007, 2008, 2009, 2010 and 2011. Bees are very c ostly to replace. She has c rop fiel ds adjacent to her land; on the other side of the property is a gol f course. Both rely heavily on pesticid e and herbicide
usage

. Her damage is believed to have at least partly resulted from neonicotinoid pesticides, including clothianidin, in the environme nt where it has impacted his bees. This is believed to be compounded by the lack of labels on those pesticides adequate to inform the applicators how to avoid harm to bees and inadequate enforcement of the label requirements

.
Dr. Carl E. Korschgen is a co mmercial beekeeper residing in Columbia, Missouri. He has been a beekeeper for 4 years and is steadily increasing his operation by about 10 hives each year with an expectation of up to 50 hives in the next few years. His experience includes 32 years as a supervisory research biologist for the U. S. Department of Interior (USFWS and USGS), a member of the Boone Regional Beekeepers Association for 4 years. The ongoing effects of excessive overwintering mortality and other excess losses of honey bees have dam aged his operation. Over the past two years he has lost about 40% of his hives over the winter period. This damage is believed to have at least partly resulted from neonicotinoid pesticides, including clothianidin, in the environment where it has impacted his bees. This is believed to be compounded by the lack of labels on those pesticides adequate to inform the applicators how to avoid harm to bees and inadequate enforcement of the label requirements. Further,
i n th e Columbia, Missouri region, he and man y acquaintances have witnessed a noticeable lack of native insects, especially many species of grasshoppers, over the past several years. They do not know the cause of these declines but are very concerned that these declines are attributing to the reduct ion of wildlife species such as bobwhite quail and wild turkeys.

Dr. Daniel F. Mayer is a commercial beekeeper residing in Hamilton, Montana. He has been a beekeeper since 1973 and maintains somewhat less than 100 colonies selling honey from the farm and at local markets. His experience includes 3 years as a Research Technician, 3 years as a county Extension Agent and 22 years as an Extension/Research Entomologist with a State University working with bees and is past president of the Western Apicultural Society. The ongoing effects of excessive overwintering mortality and other excess los ses of honey bees has damaged this operation increased overwintering losses (up from 15% 20 years ago to 30% now) which has led to increased costs and less profits. This damage is believed to have at least partly resulted from neonicotinoid pesticides, inc luding clothianidin, in the environment where it has impacted his bees. This is believed to be compounded by the lack of labels on those pesticides adequate to inform the applicators how to avoid harm to bees and inadequate enforcement of the label require ments. Having worked as a n Extension/Research Entomologist for Washington State University and in the private sector f or 40 years, much of his work experience focused on the effects of pesticides on bees

. The symptoms he has seen of the dying off of honey bee colonies that began in the early 2000's and the continuing losses are classic for pesticide poisoning.

Gary McCallister is a commercial beekeeper residing in Grand Junction, Colorado. He has been building a small beekeeping operation since 2004. Beg inning with one hive, he has expanded until, in 2012, he will have about 20 hives. He also sells and services native bee nests for small gardeners’ pollination needs. There has been a measurable decline in native bee populations in areas of commercial
ag riculture due to pesticide us age. His is a small operation with plans to continue to increase in numbers of hives as he retires from full time employment. He is the founder of the Western Colorado Beekeepers Association and current Vice President of the WCBA. He also teaches beekeeping classes through the local University and Community College. The ongoing effects of excessive overwinteringE MERGENCY P ETITION

45 mortality and other excess losses of honey bees have damaged his oper ation. In the last two years his winter los ses have exceed ed 30%. He had lost at least three hives during summer operations that were obviously due to pesticide contamination

.
Miles McGaughey is the head of Mountain Warri or Honey in Longmont, Colorado . He has been a

commerc ial beekeeper for 25 years. He is also the president of the Boulder County Beekeepers Association. Up until r ecently he had 120 hives. He lost over 90% of his hive s; currently he only has about 60. This massive loss has put a hard ship on my pocket book and on his famil y who ha ve helped him through this. He believes his loss es wer e due to the ne onicotinoid pesticides sprayed in his area, which are poorly labe led about the effects they have on bees.

Cass Moore is a commercial beekeeper residing in Marysville, Ohio . He has a small bee

- keeping operation (about 150 colonies) that provides supplemental income. He started bee

- keeping when he was just 13 years old and has over 59 years of experience. He has formerly served on the Board of Directors for the American Honey Producers Association. The ongoing effects of excessive overwintering mortality and other excess losses of honey bees have damaged this operation greatly in recent years. Annual loss for winter colonies has ranged from 50

- 99% in the last twenty years. During that ti me, Mr. Moore has lost 40 or more colonies per year, with each colony being valued around $250. This damage is believed to have at least partly resulted from neonicotinoid pesticides, including clothianidin, in the environment where it has impacted his bee s. This is believed to be compounded by the lack of labels on those pesticides adequate to inform the applicators how to avoid harm to bees and inadequate enforcement of the label requirements.

Charles E. Mraz is a third generation commercial beekeeper in Middlebury, Vermont, and current president of the 500 member Vermont Beekeepers Association. He has a producer/packer operation established by his g randfather in 1931. H e operate s 30 apiaries with a total of approximately 1

, 200 honeybee colonies. Excessi ve winter losses and queen failures has had a very negative impact on the viability of his operation. Duri ng the winter of 2004/2005 his operation lost 45% of its colonies. Sin ce this time he has routinely suffered winter losses of 20

- 25% and is losing col onies in the regular season a t a much higher rate than ever experienced in the past. Historically winter losses were less than 5% and rarely as high as 10%. Honey production averages have fallen from 58,000 lbs. to 39,000 lbs. sin ce 2004. He feels that neonicotinoid pesticides are not the only prob lems honey bees have, but he sees good evidence that they are contributing to the problems.

Eloise Naylor is a commercial beekeeper residing in Moorestown, New Jersey. She has been keeping bees for four years and hopes to supplement her retirement income with honey sales. Her experience includes Member of American Beekeeping Federation, Member of Eastern Apicultural Society, Member of New Jersey Beekeepers Association, Vice President of the of South Jerse y Beekeepers Association. The ongoing effects of excessive overwintering mortality and other excess losses of honey bees has damaged this operation with yearly loss averages at 20 percent.

Michael Risk is a commercial beekeeper residing in Laingsburg, Mic higan. He has a ho ney and queen rearing business and has been a beekeeper for 29 years. He is the President of the Center of Michigan Beekeepers Association and has been mentoring and instructing at the club level as well as at the Michigan State Beekeepers Association level for a number of years

. The ongoing effects of excessive overwintering mortality and other excess losses of honey bees has damaged this operation with losses last year of 70%, it resu lted in buyi ng packages of replacement bees and losing a full year of lost queen and nuc production and lost profits. These losses have cost an estima ted $6,000 in lost sales andE MERGENCY P ETITION

46 replacement bees. Last year was the worst but he has had a minimum of 30% o ver winter ing losses the past 5 years. This damage is believed to have at least partly resulted from neonicotinoid pesticides, including clothianidin, in the environment where it has impacted his bees. This is believed to be compounded by the lack of label s on those pesticides adequate to inform the applicators how to avoid harm to bees and inadequate enforcement of the label requirements.

Gus Rouse is President of Kona Queen based in Hawaii. He owns and operates the largest honey bee queen breeding operat ion in the country, which furnishes replacement queens for many of the larger beekeeping operations in the country. He has been on the Am erican Beekeeping Federation Board of
Directors for the last twelve years. Over the past 30 years he has seen how the d emand for queens has gone from a spring business to a year around as beekeepers must fight to keep up their hive numbers. Customers typically used to buy queens equaling half the number of hives they owned to re

- queen every hive every two years. Now custom ers typically have to use one or two queens per year per hive.

Thomas C. Theobald is a commercial beekeeper and owner of the Niwot Ho ney Farm in Niwot, Colorado. He has conducted this beekeeping business for 37 yea rs. He was one of the founders, and president for 30 years, of the Boulder C ounty Beekeepers Association . He served two terms as vice

president of the Colorado Beekeepers' Association, and was the last County Bee Inspector in the State of Colorado. He is losing 40 to 60% of his colonies each year and in 2011 had the smal lest honey crop in 36 years. He believe s a primary cause of these continuing losses is the uncontrolled spread of neonicotinoid pesticides (clothianidin, imidacloprid, thiamethoxam and others) ov er 200 million acres of agricultural land and untold acres of urban and suburban land. If EPA does not regulate these chemicals properly, there may be no 38th year for his business.

Tim Tucker is a co mmercial beekeeper based in Niotaze, Kansas. He has bee n keeping bees since 1991 and currently runs between 3

- 400 colonies of bees. He has been a President of the Kansas Honey Producers Association and is currently on the National Honey Bee Advisory Board and is also Vice

President of the American Beekeeping F ederation. During the past seven years he has had winter losses that have been dramatic when the bees were placed in intensively farmed areas. While these are areas which provide good nectar sources

, such as soybean, cotton and alfalfa

, they make an obviou s difference in harming the health of the colonies. After heavy losses which were around 50% in 2006 and 2007 he had to move to locations which kept the bees from high exposure to the pesticides that are being u sed . Since moving away from intensively farme d areas the bees have been healthier and overwintered better but these areas tend to be less productive for production of honey. It is his opinion that the new neonicotinoid pesticides are responsible for winter dwindling of honey bee colonies and lack of vigor in the surviving colonies. He has had to resort to other means of earning income such as selling bee colonies and queens to other beekeepers to supplement income that has been dramatically impacted for the past seven or eight years.

Charles Vorisek is a full time beekeeper residing in L inesville, Pennsylvania. He ha s the largest bee keeping operation in his county in northwestern Pennsylvania. His operation provides critical pollination services for orchards along Lake Erie. His pollination and honey sales help fill a void left by a large number of bee keepers leaving the business in his areas. He was instrumental in reorganization of the Northwestern PA Beekeepers Association in 2001 and has held the offices of President and Vice President every year since and he is actively involved with Pennsylvania State Beekeepers Association, for which is currently Vice Presid ent. The ongoing effects of excessive overwintering mortality and other excess losses of honey bees have damaged this operation. Losses over the past six years have been 50

- 75% each winter. It is increasingly difficult to meet regular expenses of utilities , fuel and healthE MERGENCY P ETITION

47 insurance, because of the cost of just getting back to the previous year’s level. He has pollination contracts in areas where neonicotinoid pesticides, including clothianidin, are used. He can routinely expect a 25% colony failure during pollination and as he track those same colonies through winter, he finds an approximately 75% failure rate. With the honeybee range of 2

- 3 miles, it is virtually impossible to avoid these pesticide exposures in his area. As a Farm Bureau member himself he knows, through talking with the average crop farmer, that they have no concept that these seed treatments can harm honeybees. Every farmer he knows has concern for honeybees, yet their education as far as their impacts on bees is inadequate.

Western Col orado Beekeepers Association is a beekeeper association located in Grand Junction, Colorado. They are a group of beginner, hobby, and commercial beekeepers that represent beekeeping in a large rural part of Colorado. There are those with over 1000 hives in the area, smaller commercial producers with 20+ hives, and the typical beginners and hobbyists as well. The ongoing effects of excessive overwintering mortality and other excess losses of honey bees have damaged their operations. Winter losses have been above 30% for the last two years. Several members have reported obvious pesticide kills. The area is heavily agricultural and pesticide use is common. This damage is believed to have at least partly resulted from neonicotinoid pesticides, including cloth ianidin, in the environ ment where it has impacted bees

.
Stephen Whittlesey , is a commercial organic blueberry farmer and beekeeper residing in West Barnstable, Massachusetts

. He has owned about twenty bee colonies, beginning in 1971 until present, using them for pro pagating one 1,000 highbush blueberry bushes which are organicall y grown. He is a member of the Barnstable County Beekeepers Association and the Cape Cod Organic Growers
Association. O ngoing effects of excessive overwintering mortality and other excess losses of honey bees have damaged his operation. Typical losses in the seventies and early eighties would a mount to 10 to 15% annually, and were sustainable. Losses now ar e between 50 to 70% annually and are not

sus tainable. This has resulted in poor propagation and consequent decreased yields in the blueberry business and has resulted in his operating the blueberry business at a loss the last three years. He has had to buy many new colonies of bumble bees and honeybees every year, and each year the price of the bees and the shipping get higher and higher. The damage to his bees is I believe the result, at least partly, of neonicotinoid pesticides, including clothianidin, in the environment

.

Table 2 . Environmental and Consumer Organization Petitioners (4)

Beyond Pesticides , located in Washington, DC, is a nonprofit organization founded in 1981. Beyond Pesticides promotes safe air, water, land, and food and works to protect public health and the environment by encouraging a transition away from the use of toxic pesticides. W ith Beyond Pesticides’ resources made available to the public on a national scale, Beyond Pesticides has contributed to a significant reduction in unnecessary pesticide use, thus improving protection of public health and the
environment. The risks to publi c health and the environment from pesticides are large. Beyond Pesticides and its members have a vital interest in a thriving agricultural system, which includes healthy populations of honey bees and wild crop pollinators, as well as healthy natural ecosys tems, managed landscapes and gardens. Honey bee Colony Collapse Disorder and general decline of pollinator health, along with inadequate regulation of pesticides known to kill and have sub

- lethal impacts on bees andE MERGENCY P ETITION

48 other pollinators, are of grave concern to the organization and its members.

Center for Food Safety (CFS) , located in Washington, DC, and San Francisco California, is a nonprofit organization. Since its founding in 1997, CFS has sought to ameliorate the adverse impacts of industrial farming and food production systems on human health, animal welfare and the environment. CFS has over 200,000 members across the country. CFS seeks to protect human health and the environment by advocating for thorough, science

- based, safety testing of new agricultur al products prior to any marketing and cultivation of crops in a manner that minimizes negative impacts such as increased use of pesticides and evolution of resistant pests and weeds. CFS also seeks to provide consumers with a means of identifying genetica lly engineered (GE) foods on the market and to encourage full public participation in defining the issues presented by GE crops. Finally, a foundational part of CFS’ mission is to further the public’s fundamental right to know what is in their food. CFS an d its members have a vital interest in the survival and health of honey bees and other crop pollinators to ensure a nutritious and safe food supply and healthy natural ecosystems and gardens. The ongoing collapse of populations of honey bees and other bene ficial insects, and failure to provide adequate label warnings on these pesticides, has damaged this interest. CFS has a sister organization, the Petitioner International Center for Technology Assessment (ICTA), based at the same Washington, DC, location. It is a non

- profit organization committed to providing the public with full assessments of technological impacts on society. ICTA explores the economic, ethical, social, environmental and political impacts that can result from the applications of technolog y or technological systems. ICTA’s interest in the development of safe agricultural technologies has been harmed by the use of unsafe, improperly

- labeled, pesticides that contribute to decline in honey bees and other insects.

Pesticide Action Network of North America (PANNA) , is a San Francisco

- based, non

- profit corporation that serves as an independent regional center of Pesticide Action Network International, a coalition of public interest organizations in more than 90 countries. For nearly 30 years, PA NNA has worked to replace the use of hazardous pesticides with healthier, ecologically sound, pest management across the United States and around the world. PANNA provides scientific expertise, public education and access to pesticide data and analysis, po licy development and coalition support to more than 100 affiliated organizations in North America. PANNA has more than 70,000 members across the United States. PANNA’s members live and recreate in areas of the country where pesticides such as clothianidin are applied, and in which pesticide drift and transport occurs, and thus have a strong interest in ensuring that federal regulatory agencies protect public health and the environment from clothianidin
contamination.