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National Coalition Against the Misuse of Pesticides v. Thomas

Citation: 17 ELR 20435
No. Nos. 86-1114, -1535, 806 F.2d 875/(D.C. Cir., 01/16/1987)

The court holds that the Environmental Protection Agency (EPA) arbitrarily and capriciously lifted its ban under the Federal Food, Drug, and Cosmetic Act (FFDCA) on imported mangoes treated with ethylene dibromide (EDB), a known carcinogen, based solely upon consideration of the ban's impact on foreign economies. Initially, the court holds that the plaintiffs are entitled to judicial review of EPA's action, even though they failed to exhaust their available administrative remedies, because FFDCA § 408 permits, but does not require, an administrative hearing for review of a final agency action taken under the section. The court then holds that § 408(b) does not permit nonhealth factors outside the United States to be the sole consideration in setting pesticide residue tolerances for foods consumed in the United States, but does not hold that such considerations may never be a relevant factor. The court therefore holds that EPA arbitrarily and capriciously lifted the ban on EDB by not considering all the factors specified in the FFDCA. The court also holds that EPA acted arbitrarily and capriciously by shifting its position on the health risks posed by EDB without supplying a reasoned explanation for doing so. EPA had set a 30 parts per billion (ppb) EDB residue tolerance in 1983, banned EDB entirely in mid-1985 when it found that additional exposure to the pesticide was not in the public interest, but reversed itself and reinstated the 30 ppb tolerance in late 1985, summarily concluding that the risks were "low." The court holds that the record is virtually barren of support for EPA's turnabout on the health risks posed by EDB.

Counsel for Petitioners
Alexander J. Pires Jr.
Scott, McLeod, Himmelberg, Matz, Pires & Price
4th Fl., 2501 M St. NW, Washington DC 20037
(202) 861-1234

Counsel for Respondents
Letitia Grishaw
Civil Division
Department of Justice, Washington DC 20530
(202) 633-2000

Cara S. Jablon, Michael S. Winer, Stanley H. Abramson
Office of General Counsel, Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Before: STARR and WILLIAMS, Circuit Judges, and JOYCE GREEN,* District Judge.