Hal Ambuter

Director, Regulatory and Government Affairs

North America

Reckitt Benckiser LLC

Morris Corporate Center IV

399 Interpace Parkway

Parsippany, NJ 07054-0225

T 973.404.2716

F 973.404.5702

hal.ambuter@rb.com

April 24, 2012

The Honorable Lisa Garcia

Associate Assistant Administrator for Environmental Justice

U.S. EPA Headquarters

Mail Code 2201A

Ariel Rios Building

1200 Pennsylvania Avenue, N. W.

Washington, DC 20460

Dear Ms. Garcia:

I write to follow up on correspondence from Reckitt Benckiser LLC dated October 21, 2011.

(See enclosure). In that correspondence, we expressed our concern that the U.S.

Environmental Protection Agency (“EPA” or “the Agency”), in implementing its Risk Mitigation

Decision for Ten Rodenticides (“RMD”), has consistently failed to follow its stated policy of

integrating environmental justice and civil rights into its “programs, policies, and daily work.”1

To date, we have received no response to our letter, and to our knowledge, EPA has taken

no steps to address the substantive issues raised therein.

EPA, like all federal agencies, is subject to Executive Order 12898, “Federal Actions to

Address Environmental Justice in Minority Populations and Low-Income Populations” which

requires federal agencies to “make achieving environmental justice part of their mission by

identifying and addressing, as appropriate, disproportionately high and adverse human health

or environmental effects of their programs, policies, and activities on minority populations and

low-income populations in the United States.” E.O. 12898 at 1-101. More specifically,

pursuant to EPA’s own guidance implementing Environmental Justice concerns, the Agency

is required to ensure the “fair treatment” and “meaningful involvement” of all people in the

development of environmental regulations. See EPA’s Action Development Process, Interim

Guidance on Considering Environmental Justice During the Development of an Action, July

2010, (“Interim Guidance”) at 3. According to the Interim Guidance, EPA’s environmental

justice policies and procedures “apply to all agency actions,” Interim Guidance at 5, and

1 US EPA, Plan EJ 2014: A message from EPA Administrator Lisa P. Jackson

(September 2011).
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requires EPA to “explicitly integrate EJ [Environmental Justice] considerations into the fabric

of EPA’s ADP [Action Development Plan] -- from rule inception through all the stages leading

to promulgation and implementation.” Interim Guidance at i. Indeed, EPA must “identify and

address existing and new disproportionate environmental and public health impacts on

minority, low-income, and indigenous populations” and explain how the Agency’s evaluations

of these concerns “impact[ed] the outcome or final decision.” Interim Guidance at ii. For

each Agency action, EPA must “compare how options under consideration would change the

environmental and public health impacts on minority, low-income, and indigenous

populations” and the Agency must also “document [its] efforts to achieve meaningful

involvement and address potential EJ concerns.” Interim Guidance at 15.

Yet, for the RMD, EPA acted in flagrant disregard of Executive Order 12898 and the Interim

Guidance. The RMD did not, on its face, consider the impacts of banning consumer-uses of

the most effective rodenticides on the market while retaining use of these same products for

agricultural, commercial, and Government uses. Nor did EPA in the RMD document the

process it used -- if any -- to consult with communities most concerned about environmental

justice concerns or document how it addressed those concerns. In fact, the RMD does not

even acknowledge the implications of EPA’s actions to low-income and minority communities.

EPA’s failure to follow E.O. 12898 and the Interim Guidance in developing the RMD has led

directly to a policy decision that is disastrous for low-income and minority populations.

Without ever performing a critical assessment of the impacts of its determination on minority

and economically-disadvantaged communities, the Agency is imposing measures that will

disproportionately harm families and individuals living in urban and multi-family dwellings that

might be susceptible to rodent infestations. Specifically, the Agency has announced that it

intends to cancel all consumer uses of rodenticide products if they contain “second

generation” anticoagulants as active ingredients. Products containing second-generation

anticoagulants are the most widely used and most cost-effective consumer rodenticides on

the market. The unintended consequences of cancelling these products are significant:

among other things, the effectiveness of consumer rodent control efforts will decrease, and

their costs will increase. As a result, rodent infestations will become more prevalent and

more persistent, particularly in low-income and urban areas where high-density residential

housing is prevalent.

Because low-income and minority households suffer higher-than-average rates of rodent

infestations, cancelling consumer uses of effective and affordable rodenticides will put

overburdened communities at risk. These risks include transmission of dozens of rodentborne diseases, some fatal; household fires caused by gnawed wires; and damage to food

supplies. Within infested households, some rodent-related risks are borne particularly by

children, who are the most common victims of rodent bites and suffer higher rates and

aggravation of asthma when rodent allergens are present.

Nevertheless, in the six months since Reckitt Benckiser raised these concerns with your

office, we have received no reply to our correspondence and request for action. At the same
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time, the Agency has continued to advance its plans to cancel these important consumer

products. Specifically, on November 2, 2011, EPA issued its draft Notice of Intent to Cancel

(“draft NOIC”) certain consumer-use rodenticides affected by the RMD, including several

Reckitt Benckiser products. (EPA based the draft NOIC explicitly on the findings and

conclusions of the RMD.) Subsequently, on November 29, 2011, the Agency convened a

Scientific Advisory Panel (“SAP”) to obtain independent review of the scientific basis for its

proposed cancellation action.

In its meeting minutes,2the SAP expressed strong concerns regarding EPA’s assessment of

the scientific evidence as well as the Agency’s failure to consider the potential

disproportionate impact of EPA’s actions on pest control programs, and on minority and lowincome Americans in particular. The SAP cautioned the Agency about the potential impacts

on disadvantaged populations of increased costs of effective rodent control, noting, “Use of

commercial applicators or expecting the government to manage the rodent populations is not

a viable option for many residents . . . This should be considered a social equity issue.”3

Local government agencies, community organizations, and business owners have also

expressed concerns about EPA’s proposed cancellation of these important consumer-use

products. In recent weeks, a Baton Rouge, Louisiana newspaper reported that, as a result of

the RMD, a local government rodent control program must pay more than twice as much for

consumer-use rodenticides, with the result that fewer treatments will be provided to residents.

A program representative also noted that there is no antidote to the rodenticides the program

now distributes.4

Similarly, representatives of local governments in several states have responded to EPA’s

draft NOIC, voicing concerns about its potential impact on public health and safety, and

urging the Agency to reconsider its position.5 An Arizona community organization founded to

combat incursion of non-native roof rats into Phoenix-area neighborhoods wrote to urge EPA

to consider its perspective from the “front lines” of rodent control, where rodenticides subject

2

SAP Minutes No. 2011-06, A Set of Scientific Issues Being Considered by the Environmental Protection

Agency Regarding: Scientific Conclusions Supporting EPA's FIFRA Section 6(b) Notice of Intent to Cancel

Twenty Homeowner Rodenticide Bait Products, available at

http://www.epa.gov/scipoly/sap/meetings/2011/112911finalsap_mtg_mins.pdf (hereinafter “SAP Meeting

Minutes”).

3

SAP Meeting Minutes at 46.

4

Amy Wold, Parish Program Switches to Bait Boxes Meeting New EPA Rules, The Advocate, Mar. 13, 2012.

5

See, e.g., Letter from Michael Swoyer, Supervisor of Rat Control, City of Kansas City MO Health Department,

to EPA, Nov. 14, 2011; Letter from Patrick Shuttleworth, Director, Camden County NJ Department of Health and

Human Services, to EPA, Nov. 16, 2011; Letter from Frank Pachecho, Executive Director, Housing Authority of

the City of Pueblo CO, to EPA, Nov. 18, 2011; Letter from L’Tanya L. Williamson, Acting Director, Newark NJ

Department of Family and Child Well-Being, to EPA, Nov. 18, 2011.
Page 4 of 5

to cancellation have been used safely and successfully for ten years.6 Hispanic Chambers of

Commerce in at least two states have written to the Agency to emphasize the potential for

disparate impacts of the proposed cancellation action on minority-owned businesses.7The

CEO of the Illinois Hispanic Chamber of Commerce, noting that it represents businesses

often located in some of the state’s poorest areas — “communities [that] are often the most

susceptible to rodent infestations” — predicted that, “[i]f implemented, this ban would not only

run afoul of the EPA’s stated mission of protecting human health and the environment — it

would ensure an entire generation of our community grows up in dangerous and unsafe

conditions.”8

Despite the magnitude and importance of these concerns, and EPA’s explicit obligations

under E.O. 12898 and under the Interim Guidance, we are unaware of any action EPA has

taken to investigate or address the disparate impact of the RMD and proposed cancellation

action on minority and low-income households.

During this same period, however, the Obama Administration has reaffirmed its commitment

to environmental justice. In late February, the Administration announced the release by

federal agencies — led by EPA and the Council on Environmental Quality — of

environmental justice strategies, implementation plans, and progress reports, “outlining steps

agencies will take to protect communities facing greater health and environmental risks.”9

EPA has itself announced its intention to expand its commitment to environmental justice

concerns by, among other things, making the Interim Guidance final.10

We therefore respectfully renew our request that your office honor the Administration’s

commitment to environmental justice by: (i) suspending any further implementation of the

RMD or the draft NOIC until the Agency undertakes a review of the intended and unintended

potential impacts of the RMD and the draft NOIC on minority and Native American

communities, as well as on low-income populations, as required by EO 12898 and the Interim

Guidance; (ii) reissue the RMD after the Agency has concluded the required environmental

justice review to incorporate the results of that review as well as to document that the Agency

appropriately followed its environmental justice requirements; and (iii) if the Agency chooses

to continue its cancellation process after completing and documenting the environmental

justice review, reissue the draft NOIC with the environmental justice review included as

supplemental information and provide the results of the review to the SAP, the Department of

6

Letter from Barry E. Paceley, Founder and Director of Arcadia NEIGHBORtoNEIGHBOR to EPA, Nov. 14,

2011.

7

Letter from Omar Duque, CEO, Illinois Hispanic Chamber of Commerce, to EPA, Nov. 11, 2011; Letter from

Julio Fuentes, Founder and CEO, Florida Hispanic Chamber of Commerce, to EPA, Nov. 14, 2011.

8

Letter from Omar Duque, CEO, Illinois Hispanic Chamber of Commerce, to EPA, Nov. 11, 2011.

9

Press Release, US EPA, Obama Administration Announces Commitment to Protect the Health of Every

American, (Feb. 27, 2012).

10 Plan EJ 2014, U.S. EPA, at 36 (available at www.epa.gov/compliance/ej/plan-ej/index.html).
Page 5 of 5

Agriculture, and the Department of Health and Human Services for their review and comment

prior to taking any further action on the draft NOIC.

We look forward to your response to the concerns raised in this letter.

Sincerely,

Hal Ambuter

cc: Lisa P. Jackson, Administrator

Robert Perciasepe, Deputy Administrator

Cynthia Giles, Assistant Administrator, OECA

Heather Case, Acting Director, OEJ

Jim Jones, Acting Assistant Administrator, OCSPP

Michelle J. DePass, Assistant Administrator, OITA

Senator Robert Menendez (NJ)

Lawrence E. Culleen, Esq.