The much-hated Delaney Clause was put to rest with the signing of the new Food Quality Protection Act (H.R. 1627) by President Clinton on Aug. 3. While everyone is jumping up and down with joy at having escaped the zero-risk cancer standard which would have eliminated many pesticides, a rude awakening lurks in the fine print of the new law. In reality, the new standard is more strict than Delaney, at least the way EPA was interpreting it -- one in a million chances of additional cancer cases from all crop uses of a pesticide. And the new standard -- ``a reasonable certainty of no harm'' -- applies to all pesticides, not only cancer-causing ones.

It was estimated that if the Delaney zero-risk standard had been allowed to stand, California apple, citrus, grape and plum growers alone would have had losses totalling $111 million annually as pesticides for which there were no replacements were eliminated.

This ticking time-bomb finally led to unanimous passage in both the House and Senate within four working days of initial subcommittee mark-up of controversial legislation that had been bottled up for three years in Congress (10 years, if one goes back to the first congressional efforts to incorporate recommendations of the 1987 Delaney Paradox report into legislation). Now it is the law and farmers and others must adjust.

California Farmer learned that the office of state Senator Mike Thompson (D-St. Helena) asked policy analyst Charles Benbrook to prepare a quick appraisal of the implications of the passage of H.R. 1627 for California agriculture and we obtained a copy of his response. Benbrook was the executive director of the Board on Agriculture of the National Research Council, an arm of the National Academy of Sciences when it published ``Regulating Pesticides in Food -- The Delaney Paradox'' in 1987. In 1993, Benbrook was commissioned by Cal/EPA's Department of Pesticide Regulation (DPR) to review California's pesticide regulation system. This review resulted in a report, ``Challenge and Change: A Progressive Approach to Pesticide Regulation In California.'' He now operates Benbrook Consulting Services, based in Washington, D.C.

Benbrook says many of the news releases circulating about the Delaney reform ``make it sound like this is a great relaxation of regulatory pressure on pesticides.'' That's far from the case, based on his review of the bill for Sen. Thompson.

``In a nutshell, this means a majority of pesticide tolerances are finally going to be adjusted downward to more assuredly safe levels, as a series of scientific experts and commissions have been recommending since the Mrak Commission in 1969,'' Benbrook asserts. ``Based on substantial past analyses done on the provisions in the bill, I estimate that about two- thirds of existing tolerances on the books will be affected, and about one- half of these will be affected significantly, i.e. lowered more than 10-fold,'' he warns.

A ``Schedule For Review'' is set forth in the bill that requires EPA to review and adjust tolerances as needed to meet the bill's basic ``reasonable certainty of no harm to children'' safety standard. It requires: *[That] 33 percent of such tolerances and exemptions (from the requirement for a tolerance) are reviewed within three years of the date of enactment. *[That] 66 percent are reviewed within six years. *[That] 100 percent be reviewed within 10 years to the date of enactment.

``This means that most of the major food use insecticides and fungicides important to California agriculture will be assessed and adjusted downward in the next three years,'' says Benbrook. ``This places a premium on decisive action now to assure the state is ready to participate in tolerance triage,'' he adds.

Clearly, says Benbrook, DPR is going to face major added challenges because of H.R. 1627. ``The bill is going to force a sort of triage among pesticide manufacturers, who must choose which tolerances and uses to keep, and which to abandon. Especially for organophosphate and carbamate insecticides, the bill is going to force major changes, since all these pesticides are going to be regulated, in effect, as one (because all or most work to inhibit cholinesterase function in the brain).''

Benbrook suggests that pesticide companies will pursue combinations of three ways to ``save'' their most profitable labels and uses: *Seek voluntary cancellation of all uses of their most toxic compounds (likely to impact about a dozen insecticides). This will be done to save their allotment of organophosphate/carbamate exposure for their most profitable products within their existing product line. *Drop high-dietary-exposure uses with low acreage (like those found in California). *Change the way insecticides are formulated and applied in order to drive down residue levels post-harvest so that a given label, as revised, uses up very little of an active ingredient's total allowed exposure.

Is there a survival strategy for California agriculture if these likely actions are taken by pesticide companies? ``There are ways to use many organophosphates/carbamates today in California that will result in extremely infrequent and very low residues, and which could survive under this bill,'' assures Benbrook. ``The question is who is going to do the work needed to convince the companies and the EPA of this fact,'' he asks.

``I see a major role for the DPR in working with the growers, processors and the pesticide industry to obtain new section 24(c) registrations coupled with geographically limited tolerances,'' Benbrook suggests. Other ideas include changing formulations, pre-harvest intervals, maximum rates of application, standard post-harvest food handling practices among others.

``The name of the game is driving down and saving uses that companies would otherwise abandon in favor of corn, soybean, cotton, small grain and other major commodity uses,'' he says. But the success of these steps, he warns, will require the development and approval of state labels and/or revised federal labels, based on real data and credible analyses, that EPA accepts and trusts. ``DPR can do this but not without additional resources.''

Benbrook uses Lorsban as an example, an important insecticide for dozens of California crops. ``Suppose EPA's judgement ends up requiring an average 50-fold reduction in Lorsban tolerances for all food crops. DowElanco ponders what to do and starts to move toward ending 30 high exposure but low sales/income minor crop uses, to save a dozen major crop uses. To deal with these situations will require decisive and well coordinated action by everyone in the state, in both the public and private sectors,'' he explains.

Thus if growers and processors in California feel it is feasible to retain most of these uses even with the lowered tolerances, they must convince DowElanco to seek and defend the lower tolerances, or for the state to seek them under the minor use provisions in H.R. 1627 (which are going to be much more important now, given the other provisions in the bill).

Benbrook goes on to explain that the bill gives major new authority to preserve minor uses and reward companies developing biopesticides, ``but both will again depend upon a strong scientific case coming from the state, with DPR playing a major role in shaping data requirements, establishing review provisions and decision-criteria, and taking on responsibility for monitoring exposure episodes and enforcing labels. The capacity of DPR to perform these tasks will determine what pesticides can be used in the state and whether the still damaging lag between approval by EPA and other states, and in California is lessened.''

``Indeed, the bill envisions a day when many specialized products get registered first in states (and perhaps largely by states), after EPA assesses and approves tolerance petitions,'' Benbrook says.

He highlights these impacts in summing up the bill's importance:

*First,``The `reasonable certainty of no harm' standard for infants and children and the vulnerable will become, I predict, the health standard adopted over the next decade or so in other federal environmental and public health laws, as well as in legislation in progressive, public-health minded states. These many include California at some point,'' he says.

A key issue here, he explains, is whether the EPA administrator may adjust exposure estimates for the percent of crop acres treated. The bill allows such adjustments only in the case of evaluating chronic exposure and risk, and only if EPA has accurate data on pesticide use and ``finds that the exposure estimate does not understate exposure for any significant population group.''

``The value of California's pesticide use reporting system just went up several-fold,'' Benbrook asserts.

*Second, ``EPA will probably decide to proceed with lowering the tolerances 50-fold on average, rather than ending them altogether. This would mean that over the next three to five years pest managers will have to shift a major share of the insect pest management burden to biologically- based interventions, what we call biointensive IPM, but that in years when weather or other factors limit the effectiveness of such systems, there would still be products like Lorsban in the (pesticide) toolkit. This works only if the remaining relatively toxic organophosphates/carbamates are all used very judiciously, not as a routine crutch but as an insurance policy,'' he says.

*Finally, the bill has enormous international trade ramifications. ``[This] is particularly true for California agriculture which ships overseas a variety of high-valued fruit, vegetable and drink products,'' says Benbrook. ``EPA will be lowering hundreds of tolerances significantly within a few years to well below current (international) Codex/WHO levels. Some of our trading partners and competitors will no doubt try to challenge these changes as non-tariff trade barriers and the U.S. will have to defend the scientific justification for lowering of tolerances. This debate will be visible on a world wide stage and the U.S. position will prevail.''

While agriculture cheered the demise of the Delaney Clause, pesticide expert Charles Benbrook warns that the new standard of a ``reasonable certainty of no harm'' will mean that many pesticides will see significantly lower tolerance levels.