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September 27, 1978



The opinion of the court was delivered by: GERHARD A. GESELL

This is an action to set aside a ruling of the Environmental Protection Agency ("EPA") which grants in part an application of the State of Mississippi under Section 18 of the Federal Insecticide, Fungicide and Rodentcide Act ("FIFRA"), as amended, 7 U.S.C. § 136 et seq. (1976), requesting permission to distribute and apply for one year a chemical known as Ferriamicide for the control of the imported fire ant. The matter comes before the Court on cross-motions for summary judgment. Numerous issues are presented which have been hotly contested by the parties and intervenors in unnecessarily protracted proceedings. The Court heard extensive argument after receiving elaborate briefs and other documentation.

 Mississippi's Application

 The imported fire ant has plagued Mississippi and eight other southern states for many years. *fn1" The harm visited by this pest, characterized by the National Academy of Sciences as an agricultural "nuisance," is twofold: its bite is painful and causes a severe allergic reaction in a small percentage of the population and, in rare instances, death; in addition, mounds built by the ants interfere with certain agricultural operations such as mowing and harvesting.

 Faced with this problem, federal and state authorities embarked on a combined fire ant control program in 1957. In 1962, these authorities began treating the infested areas -- then apparently 30 million acres -- with a pesticide known as Mirex. In late 1976, however, the EPA issued an order barring any use of Mirex after June 30, 1978; *fn2" a three-year study had found the chemical to be a likely carcinogen. Faced with this cancellation of Mirex, the Mississippi Department of Agriculture and Commerce, with the aid of EPA and the United States Department of Agriculture, undertook to develop an alternative means of "controlling" fire ants, which during the reign of Mirex had spread to an area of 190 million acres. The product of its efforts was Ferriamicide, a compound of ferrous chloride, an amine, and the suspect carcinogen Mirex.

 The distribution and use of pesticides such as Ferriamicide is subject to pervasive control and regulation under FIFRA which prescribes a system of registration involving extensive testing to determine efficacy, health hazards, and related issues. Id. § 136a; 40 C.F.R. §§ 162.5-162.8 (1977). The Act, though, contains a significant, if limited, exception to its normal registration requirements. Section 18 allows the Administrator, "at his discretion," to exempt any federal or state agency from the registration requirement "if he determines that emergency conditions exist which require such exemption." Id. § 136p.

 When Mississippi developed Ferriamicide, insufficient data, of course, existed to permit its registration. For this reason EPA, on September 29, 1977, issued to the Mississippi Authority for Control of Fire Ants a one-year permit for the experimental use of Ferriamicide on 5,500 acres of nonagricultural, nonpopulated land in Mississippi and Florida. 42 Fed. Reg. 54331 (1977). See 7 U.S.C. § 136c (1976).

 Three months later Mississippi submitted a further application, this time for a section 18 exemption to permit it to manufacture and use Ferriamicide on 17 million acres of agricultural and recreational land once further use of Mirex was terminated on June 30, 1978.

 The Proceedings to Date

 EPA processed the Mississippi application in a very confusing and clumsy manner, thus creating much of the difficulty and uncertainty which permeates this case. Initially it noticed the application and requested public comment within 25 days. 42 Fed. Reg. 64734 (December 28, 1977). The record as a result was formally closed on January 23, 1978. During the comment period EPA was inundated with letters, telephone calls and telegrams from private citizens, environmental groups, state authorities, members of Congress, and others, most of them supporting the requested exemption. Considerable technical data was assembled and there were various meetings held with interested groups. No effort was apparently made at any time, however, to place the comment data in an identifiable file open for public inspection.

 When the record was closed, comments from interested parties continued to be received and technical studies proceeded apace. In short, active consideration of all aspects of the application continued. Plaintiff proceeded with the understanding that the record had been closed. When additional data came to its attention it moved on two occasions formally to reopen the record. On the whole, however, although its interest in the matter continued, it was unaware of much of the material coming to EPA's attention.

 On March 8, 1978, Deputy Administrator Blum, to whom authority to grant or deny the exemption request had been delegated, adopted an 18-page memorandum written by the Assistant Administrator for Toxic Substances recommending that the exemption be granted. The Environmental Defense Fund ("EDF"), interpreting this as a final determination, immediately filed suit to enjoin effectuation of the opinion. Named as defendants were EPA, its Administrator, Deputy Administrator, and Assistant Administrator for Toxic Substances. Promptly after the complaint was filed, the parties jointly sought expeditious treatment by this Court and undertook to stipulate the record upon which review would be held. Cross-motions for summary judgment were filed and briefed, and argument was held.

 As the argument progressed it appeared to the Court that the memorandum purporting to grant the exemption was not a final order since (1) by the agency's own admission the precise conditions to be imposed upon emergency use of Ferriamicide had not yet been formalized, and (2) the order had not yet been published in the Federal Register, as required by the agency's own regulations, 40 C.F.R. § 166.10 (1977).

 Accordingly, the Court refused to act but agreed to hold proceedings in abeyance until a final order was issued. It was agreed that EPA would not authorize the manufacture, distribution, or use of Ferriamicide until after it issued a final order and that order had been reviewed by the Court.

 On July 28, 1978, a final order was promulgated and this was published in the Federal Register. It was supported by lengthy findings and signed by Deputy Administrator Blum. Promptly a new round of briefs were submitted and the matter came on again for oral argument. At this point, to the consternation of the Court, it became apparent that the parties had not agreed on the contents of the record which had been before the agency and which would form the backdrop for judicial review of the final order. The Court therefore required EPA to designate those documents which it had relied on and those additional documents noted by plaintiff which had existed in EPA's file as of July 28, 1978, and which plaintiff considered significant. Thereafter the Court received additional briefs and the cross-motions came on again for oral argument.

 The Order

 Mississippi was required by the Deputy Administrator's final order to monitor all Ferriamicide distribution and to ensure compliance with the following conditions.

 (1) Aerial broadcast of the substance was banned.

 (2) Ground broadcast was permitted on parks, cemeteries, schoolyards, camp grounds, and fairgrounds, but only by certified applicators.

 (3) Mound-to-mound application was permitted on all other lands. Non-certified applicators, often farmers, would be allowed to obtain bags of the substance only if they certify that they have more than 50 mounds or more than one acre to treat. Non-certified applicators must also read and sign a form containing several warnings before being allowed to purchase and use Ferriamicide. Women of child-bearing age are prohibited from applying the substance under all circumstances.

 (4) Certain labelling conditions are specified.

 This final order took into account additional health risk data which had come to light since the agency's earlier March 8 action, responded favorably in most respects to a significant "addendum" Mississippi had submitted to its initial exemption application after the Court's first hearing, and finalized all the conditions under which Ferriamicide would be distributed.


 Notwithstanding the existence of the agency's final order, defendants challenge the Court's power to review the exemption decision, citing its discretionary and emergency nature. Defendants rely on section 16 of FIFRA which grants review jurisdiction in the district courts only of "final Agency actions not committed to Agency discretion by law. . . ." Id. § 136n(a) (1976). Section 18 of the Act allows the Administrator, "at his discretion, [to] exempt any Federal or State agency from [registration] if he determines that emergency conditions exist which require such exemption." Id. § 136p (1976) (emphasis added). Since most administrative decisions are discretionary, sections 16 and 18 read in conjunction do not conclude the inquiry. Language in the Administrative Procedure Act almost identical to section 16 has been read by the Supreme Court to bar review only "in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.'" Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). There is law to be applied in this instance. As shown below, the statute, its legislative history, and the agency's own regulations establish standards against which the Deputy Administrator's decision must be judged.

 In support of their argument that the emergency nature of the decisions bars the time-consuming process of judicial review, defendants cite Morris v. Gressette, 432 U.S. 491 (1977). Morris held a decision by the Attorney General not to interpose an objection to a state's proposed voting law change unreviewable. Under section 5 of the Voting Rights Act, 42 U.S.C. § 1973c (1976), the Attorney General has only 60 days within which to object to a proposed change. The Court recognized Congress's concern about undue delay in the implementation of valid state legislation and found that "since judicial review of the Attorney General's actions would unavoidably extend this [60-day] period," it was "necessarily precluded." 432 U.S. at 504-05.

 Morris, however, does not counsel a similar result in this case. The Court there reaffirmed the fundamental proposition stated in Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967), that "judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." 432 U.S. at 501. The legislative history of FIFRA does not support such a showing; rather, the contrary intent may be discerned from committee reports. See generally S. Rep. No. 92-838, 92d Cong., 2d Sess. pt. I at 12 (1972); id pt. II at 39. Furthermore, the Morris Court expressly noted that it was not faced with the situation where the review sought would, as here, be the "exclusive" means of challenging the action in controversy. Id. at 505-07. In Morris, inability to challenge the Attorney General's decision did not remove all means of contesting the validity of the law; indeed a lawsuit directly challenging its constitutionality had already been brought. In this case, a finding of review preclusion would eliminate all means of challenging the Deputy Administrator's decision. See Save the Bay, Inc. v. Administrator of EPA, 556 F.2d 1282, 1296-97 n. 15 (5th Cir. 1977).

 The facts of this case, moreover belie the very premise of defendants' argument. For those instances where time really is "of the essence," EPA regulations call for "crisis exemptions." 40 C.F.R. §§ 166.2(c), 166.8 (1977). Not only was this expedited procedure not invoked in this case, but the agency permitted a lapse of seven months between notice of the application and issuance of the final order. The long-standing and strong ...

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