A panel of federal judges today overturned U.S. EPA's cancellation of import tolerances for a pesticide used on imported rice, coffee and bananas, saying the agency's decision had ignored a request from industry groups.
The use of carbofuran on domestic crops such as corn, potatoes and sunflowers was banned last year after the pesticide was linked to harmful water contamination and health problems in farm workers. In tossing out EPA's decision to revoke import tolerances as well, the U.S. Circuit Court of Appeals for the District of Columbia sided with Philadelphia-based pesticide manufacturer FMC Corp. and agricultural trade groups such as the National Corn Growers Association.
EPA has acknowledged that there are no known side effects of exposure to carbofuran residues on food alone. Industry groups said the agency violated the Administrative Procedure Act because it failed to consider their request to continue allowing residues on imported crops, but the agency claimed during oral arguments that industry groups had not made a timely request to leave the rules in place.
Judge Douglas Ginsburg, writing an opinion for the three-judge panel, ruled that the groups had made such a request on two occasions. The agency's counterargument seemed to be "premised upon the idea that a party may not make arguments in the alternative," he wrote. "That is a strange idea, rejection of which requires no display of learning.
"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."
Industry groups also sought to overturn the agency's ban on domestic use of carbofuran, saying new studies had suggested that pesticide exposures would not exceed safe levels under current usage patterns. The court agreed with EPA that the industry groups "failed to lodge a relevant objection" because their objections to the decision had been "recycled" from the comment period.
"As the agency points out, the comment period would be redundant and superfluous if the same concerns could be raised at the objection stage," Ginsburg wrote.
Today's court decision is a vindication of sorts for industry groups, which criticized the agency last year for banning all tolerances of carbofuran residues before completing the cancellation of the pesticide's registered uses in the United States.
While the agency claimed that the action provided "the most direct and timely means to realize protection of children from dietary risks," the trade group CropLife America claimed that the agency set a "new and unwise regulatory precedent" by jumping the gun on scientific analysis (Greenwire, May 13, 2009).
The federal court had previously declined to stay the agency's carbofuran ban, which took effect Jan. 1.
Click here to read the opinion.
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