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CHEMICAL SPECIALTIES MFRS. ASSN. v. UNITED STATES

February 8, 1980

CHEMICAL SPECIALTIES MANUFACTURERS ASSOCIATION and National Agricultural Chemicals Association, Plaintiffs, Velsicol Chemical Corporation, Plaintiff-Intervenor,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Defendants.



The opinion of the court was delivered by: ROBINSON

MEMORANDUM OPINION

Before the Court are Cross Motions for Summary Judgment in an action brought by the Chemical Specialties Manufacturers Association, the National Agricultural Chemicals Association, and Velsicol Chemical Corporation against the Environmental Protection Agency and its Administrator, Douglas Costle. Plaintiffs challenge two actions of the EPA interpreting Section 6(a)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136d(a) (2), alleging that (1) the standards imposed by a 1978 EPA memorandum outlining Defendants' interpretation of § 6(a)(2) exceeds the Agency's authority under that section, (2) the 1978 memorandum imposes an undue burden on FIFRA registrants, (3) a 1975 EPA regulation enacted pursuant to § 6(a)(2) exceeds agency authority and (4) the procedures leading to the publication of the 1978 EPA memorandum and the 1975 regulation violated the Administrative Procedure Act (APA) 5 U.S.C. § 553.

 I. The Statutory Scheme

 The regulatory scheme adopted by Congress requires a careful balancing of risks and benefits before allowing the use of pesticides. The theory underlying this scheme was described by the Senate Committee on Agriculture and Forestry as follows:

 
While appropriate pesticides properly used are essential to man and his environment, many constitute poisons that are too dangerous to be used for any purpose. Others are dangerous unless used extremely carefully, and some may have long lasting adverse effects on the environment. Some may be taken up in the food chain and accumulated in man and other animals. Improperly used they may endanger bees and other useful insects, birds, and other animals and their food supply. Pesticides may cause injury through accidental ingestion, inhalation or deposit on the skin. Pesticides therefore have important environmental effects, both beneficial and deleterious. Their wise control based on a careful balancing of benefits versus risk to determine what is best for man is essential. *fn1"
 
Thus, the Senate Committee on Agriculture and Forestry described the general purpose of the bill as "(providing) for the more complete regulation of pesticides in order to provide for the protection of man and his environment and the enhancement of the beauty of the world around him." Id., at 3 U.S. Code Cong. & Admin. News 1972, at p. 3995.
 
In the 1972 FIFRA amendments Congress created a registration system to carry out the risk-benefit balancing. Under Sections 3(a) and 12(a)(1) of FIFRA, 7 U.S.C. §§ 136a(a) and 136j(a)(1), with certain exceptions no pesticide may be distributed sold, or otherwise placed in commerce unless it has been registered. The procedure and requirements for registration are set forth in Section 3 of FIFRA, 7 U.S.C. § 136a. The procedure involves the filing of an application supported by extensive information on the risks and benefits of using the pesticide. The specific information required to be submitted is set forth in guidelines issued pursuant to Section 3(c)(2) of FIFRA.
 
After reviewing the information submitted by the applicant, Section 3(c)(5) of the Act provides that the EPA Administrator must register the pesticide for the requested use *fn2" if he finds that:
 
When considered with any restrictions imposed under subsection (d)
 
(A) its composition is such as to warrant the proposed claims for it;
 
(B) its labeling and other material required to be submitted comply with the requirements of this act;
 
(C) it will perform its intended function without unreasonable adverse effects on the environment; and
 
(D) when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment. ...

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