District Appeals Court Cancels EPA Revocation of Carbofuran Tolerances in Imported Food
On July 23, 2010, in National Corn Growers Association, Et Al. v. Environmental Protection Agency Et Al., the Court of Appeals for the District of Columbia Circuit granted NCGA’s petition requiring review of its objections to the EPA’s total ban of the pesticide Carbofuran1 in imported foods, and cancelled EPA’s final rule to the extent that it revoked any Carbofuran tolerance levels2 in imported food.
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In May 2009, the EPA issued a final regulation with an effective date of December 31, 2009, revoking all previously established tolerance levels for residue of the chemical pesticide Carbofuran in domestic and imported food commodities. NCGA filed a request for a hearing on the domestic tolerance issue, along with objections to the removal of the import tolerances, all of which were denied in November 2009 by the EPA. NCGA sought review by the Court of that EPA decision.
With respect to the EPA’s revocation of all Carbofuran tolerances, even those for imported food, NCGA argued that EPA had acknowledged that exposure to carbofuran from imported foods alone was safe, and that revocation for imports was not needed. EPA contended that NCGA had failed to make a timely request that import tolerances alone should be left in effect.
The Court rejected EPA’s argument, finding that NCGA had made a request on two occasions and in any event, the import tolerances for carbofuran should be maintained because the EPA itself considered them safe.
The Court ruled that EPA’s decision to revoke the import tolerances was arbitrary and capricious and granted the petition for a review of the objections. In addition, the Court vacated the EPA’s final rule to the extent it revoked the import tolerances of carbofuran on imported foods.
With respect to NCGA's request for a hearing, the Court noted that its review was limited to whether the EPA had given adequate consideration to all relevant evidence submitted. Having determined that EPA had met this requirement, the Court denied NCGA's request for a hearing.
¹”Carbuofuran” is a pesticide registered to control pests in soil and on leaves in a variety of fruit and vegetable crops.
²A “tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities (including animal feed) and processed foods.
(See ITT’s Online Archives or 05/20/09 news, 09052025, for BP summary of EPA final rule on Carbofuran in food commodities.)
(National Corn Growers Association, et. al., v. Environmental Protection Agency, Docket No. 09-1284, decided July 23, 2010)