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National Coalition Against the Misuse of Pesticides v. Thomas

Citation: 17 ELR 20910
No. Nos. 86-1114, -1535, 815 F.2d 1579/(D.C. Cir., 04/17/1987) EPA compliance on remand

The court holds that the Environmental Protection Agency (EPA) acted reasonably on remand leaving in place an interim tolerance of 30 parts per billion (ppb) for the pesticide ethylene dibromide (EDB) in imported mangoes, to be reduced to 0 ppb after September 30, 1987. The court had previously remanded EPA's decision to rescind the ban, 17 ELR 20435, holding that the Agency acted arbitrarily and capriciously in basing its decision solely on the ban's impact on foreign economies. The court holds that, because of EPA's narrow role in the regulation of pesticide residues in food, it is appropriate for the Agency to consider the views of officials of other government agencies with broader responsibility for ensuring disease-free, pest-free fruits and vegetables. The court holds that it is also appropriate for EPA to consider the attempts by mango-exporting countries to develop alternatives to EDB by utilizing mango revenues in setting the tolerance, sincean outright ban could have more adverse long-term health effects by discouraging development of such alternatives. The court accordingly holds that EPA satisfied the Food, Drug, and Cosmetic Act's requirements that public health considerations be placed at the forefront of its deliberations. The court specifically noted that the 30 ppb tolerance was reasonable under the circumstances since it was temporary, the attendant health risks were low, and that the ban on EDB would not be further delayed past September 30.

A concurring judge writes separately to emphasize that further extension of the tolerance would be unacceptable.

Counsel are listed at 17 ELR 20435.

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