National Corn Growers Assoc. v. U.S. EPA

Jul 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1284. In a brief opening summary the Appeals Court explains that the National Corn Growers Association, the National Sunflower Association, the National Potato Council, and FMC Corporation petition for review of the order of U.S. EPA denying their objections to the EPA's Final Regulation revoking all "tolerances" for the pesticide carbofuran. The Appeals Court said, "We grant the petition for review in part and accordingly vacate the EPA's final rule to the extent it revoked import tolerances for carbofuran. We deny the petition for review in all other respects."

 

    EPA determines the maximum amount of a pesticide residue, which the statute terms a "tolerance," that may remain on or in raw and processed food. EPA may establish or leave in effect a tolerance only if it is "safe." Absent an exemption from the Administrator of the EPA, any food containing a pesticide residue that exceeds an established tolerance is deemed "unsafe" and "adulterated" and may not be moved in interstate commerce. In 2006 the EPA concluded, in a dietary risk assessment, that human exposure to carbofuran, a pesticide used to control insect infestations in a number of crops, is "above the Agency's level of concern."

    EPA sought to limit exposure to carbofuran by revoking all tolerances which would effectively ban the use of carbofuran on both domestic and imported food for human consumption. The petitioners submitted extensive comments in response to the proposed revocation. Also during the comment period, FMC, the only manufacturer of carbofuran in the United States, voluntarily cancelled its registrations under the FIFRA for all but six crops and proposed that the EPA amend the remaining registrations to limit usage in areas particularly susceptible to drinking water contamination (the First FMC Proposal), which EPA accepted. In May 2009 the EPA issued a Final Regulation revoking all tolerances for carbofuran. It concluded that although the First FMC Proposal would reduce exposure to carbofuran, the aggregate exposure from drinking water would still exceed the level of concern with respect to both children and adults. FMC subsequently, submitted a second proposal which EPA also denied.

    The petitioners contend that even if the EPA properly revoked all domestic tolerances for carbofuran, it acted arbitrarily and capriciously, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), in revoking the import tolerances for carbofuran. EPA acknowledges that exposure to carbofuran from imported foods alone is safe. The EPA nonetheless revoked all carbofuran tolerances for imported foods, contending the petitioners failed to make a timely request that import tolerances alone be left in effect.

    The Appeals Court ruled, "The agency's position is untenable, for the petitioners made such a request on two occasions. . .  In sum, the petitioners asked that if all else failed, the import tolerances for carbofuran should be maintained because the EPA itself considered them safe. The EPA's decision to revoke those tolerances was arbitrary and capricious."

    Access the complete opinion (click here).