Chlorothalonil – communication with cost consequences

Chlorothalonil – communication with cost consequences

The FSVO has taken a secondary judgement by the Federal Administrative Court as an opportunity to issue a directive with «remediation measures» due to the «contamination» of drinking water with chlorothalonil degradation products. The new directive does not create legal certainty, as the FSVO suggests in its communication. Legal certainty and careful use of state resources would have been guaranteed if the FSVO had waited until the judgement in the main case before issuing its directive. This is still pending. And according to several experts, there is no urgent need for action.

Saturday, May 25, 2024

It happened in Seldwyla. In order to better regulate access traffic to the town, the decision was made to install so-called «gatekeeper systems» on the entry axes, i.e. traffic lights that stop private traffic and thus access to the town by means of red lights when traffic in the town itself comes to a standstill. Such gatekeeper systems were also installed in the outer municipalities. This was publicised in advance in the official gazettes and those affected were able to lodge objections. This was also the case in one of the suburban municipalities. Unfortunately, the planners in the distant cantonal capital had planned the gatekeeper system between two neighbourhoods in this suburban municipality, instead of correctly outside the municipality. The appeal period was set over the summer holidays, probably in the hope that nobody would see this. As a result, construction of the gatehouse began while the appeal period was still running. However, the residents of the affected neighbourhood successfully defended themselves. The gatehouse that had already been built had to be demolished and a new one erected on the outer boundary of the municipality. It is rumoured that this exercise would have cost the taxpayer several hundred thousand francs. Conclusion: it would have been better to wait.

A similar situation with far greater cost implications now looms in the chlorothalonil case.

«Syngenta loses legal dispute - Swiss water is deemed contaminated. The authorities may once again label the active substance chlorothalonil or its degradation products as toxicologically relevant. Water suppliers must take action.» This was the headline in the 24 May 2024 edition of the Bauernzeitung.

This was triggered by a new communication and a directive issued by the Federal Food Safety and Veterinary Office (FSVO) on 23 May 2024 entitled: «Chlorothalonil: Legal certainty regarding the maximum level for drinking water».

But fact is

In 2020, Syngenta filed a complaint with the Federal Administrative Court against the contradictory ban on chlorothalonil. This judgement is still pending.

However, Syngenta had also filed a complaint against the communication of the responsible FSVO because the communication resulted in concrete measures. Despite the ongoing legal proceedings, the FSVO had issued a directive obliging the cantons, municipalities and drinking water suppliers to take measures. They must ensure that the maximum value (disputed in the main proceedings!) is complied with. As the FSVO directive states, this «can only be achieved under certain circumstances with measures that are very costly in terms of time, money, politics or ecology».

After the Federal Administrative Court prohibited the FSVO from issuing the 2020 directive as a precautionary measure, it has now dismissed this secondary action by Syngenta regarding FSVO communication. In its reasoning, the court writes: «Whether a reassessment has taken place (...) and whether it is also inadmissible or admissible requires a substantive examination of the revocation decision. However, this question is to be examined in the revocation proceedings. In this respect, the complainant's request amounts to obtaining a precedent for the revocation proceedings in a minor matter. However, it must be examined in the court proceedings on the revocation of the plant protection product whether the revocation was justified.» In other words, the pending judgement regarding the ban on chlorothalonil will be decisive.

However, the FSVO is now setting a precedent with its new communication following this collateral decision. With the title «Legal certainty regarding the maximum level for drinking water», it suggests that the court has made a substantive decision and that Syngenta has lost the legal dispute regarding the ban. On its website, the FSVO makes no mention of the pending judgement in the main action. Instead, it creates a costly precedent: by instructing the cantons, municipalities and drinking water suppliers to take measures within two years to prevent the «contamination» of drinking water with chlorothalonil degradation products, the FSVO anticipates the decision in the disputed main case and orders the water suppliers to take immediate action.

However, preventing uncertainty among the population and premature «remediation orders» was precisely the intention of Syngenta's secondary action, which was dismissed by the Federal Administrative Court on 20 March 2024. After all, what would happen if the Federal Administrative Court were to come to the conclusion in its main ruling against the contradictory chlorothalonil ban that neither the parent substance nor the degradation products found in the groundwater are probably carcinogenic - and that all the measures now ordered by the FSVO are therefore unnecessary? Who will bear these costs? Taxpayers, as in the case of the traffic lights in Seldwyla? According to the TagesAnzeiger newspaper, experts estimate the costs at several hundred million francs.

The new directive does not create legal certainty, as the FSVO suggests in its press release. Quite the opposite. Legal certainty would have been guaranteed if the FSVO had waited until the decision in the main case before issuing a directive. Costly measures and «reorganisations» have time, especially in times of tight public finances, until any need for reorganisation has been established by the courts. For what the FSVO as the responsible office does not write anywhere, but Kurt Seiler, who chairs the Drinking and Bathing Water Commission at the Association of Cantonal Chemists, tells the TagesAnzeiger: «There is no reason to panic.» Urs Von Gunten from the Eawag research institute also says in the same article: «There is no immediate risk to the population.» The cantonal laboratory of the canton of Zurich sums it up well in its detailed statement of 10 September 2020 on pages 38 and 39: «Scientific studies show that even drinking water with more than 0.1 µg/l chlorothalonil metabolites is safe and can be drunk without hesitation.» and «the final court decision will show whether the justification for the measures is legally compliant.»

Whether «relevant» or «not relevant» is relevant

Whether a degradation product of a chemical is so-called «relevant» or «not relevant», i.e. harmless to humans and the environment, certainly plays a role. This is because much lower limit values apply to «relevant» degradation products or so-called metabolites: 0.1 micrograms per litre instead of maximum values of up to 10 micrograms per litre for «non-relevant» metabolites. If the two most common (and above all controversial) chlorothalonil metabolites R417888 and R471811 are found in the last monitoring year 2022 published by the FOEN when sampling a total of 520 monitoring sites, the limit value of 0.1 micrograms per litre for R417888 is exceeded at 32 points and for R471811 at 162 points. R471888 exceeds a measured value of > 1 microgram per litre at just 2 locations, R471811 at 17 locations. As the maximum value for non-relevant metabolites is 10 micrograms per litre, it can be assumed that this is not exceeded at any point. The graph of exceedances presented by the FOEN would suddenly look harmless and the dramatic text would have to be adapted....

A fact sheet on the ban on the fungicide chlorothalonil and the background to the legal dispute can be found here: Facts on the chlorothalonil ban in Switzerland (PDF, 147.93 KB)

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