Procedural Missteps Doom Trade Association Challenge to EPA Rule Ending Domestic Pesticide Tolerances

The D.C. Circuit Court of Appeals has upheld, in part, the Environmental Protection Agency’s (EPA’s) denial of objections filed to its final rule revoking all residues of the pesticide carbofuran permitted on or in raw and processed foods. Nat’l Corn Growers Ass’n v. EPA, No. 09-1284 (D.C. Cir., decided July 23, 2010). EPA revoked the carbofuran “tolerances” after notice-and-comment rulemaking because it determined that aggregate dietary exposure to residues of carbofuran is “not safe” and because exposure to the chemical in drinking water exceeded “the level of concern with respect to both children and adults.” This action effectively banned its use on both domestic and imported food for human consumption.

The U.S. company that makes the pesticide and several trade organizations filed objections to the revocation and a hearing request, which EPA denied. While the objectors had participated in the rulemaking proceeding, they attempted to either introduce new evidence during the objection phase or simply recycled arguments submitted during the comment phase as to the revocation of domestic tolerances. According to the court, the agency was justified in refusing to consider the new evidence and the recycled arguments. The court also refused to substitute its judgment on the “highly technical and factual matters” raised by the petitioners.

As to EPA’s decision to also revoke all carbofuran tolerances for imported foods, despite acknowledging that this exposure alone is safe, the court vacated this part of the final rule because EPA claimed that petitioners had failed to make a timely request that import tolerances be left in effect. The petitioners had apparently made this request twice. According to the court, “EPA’s decision to revoke these tolerances was arbitrary and capricious.”