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Fmc Corporation v. United States Environmental

November 21, 2011


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No: 71




This matter comes before the court on the plaintiff's motion to dismiss its own complaint without prejudice. The plaintiff, FMC Corporation ("FMC"), brought suit against the Environmental Protection Agency and the EPA Administrator (collectively "the EPA"). The plaintiff claims that the defendants violated the Administrative Protection Act ("APA") by placing the burden of proof on the plaintiff during administrative hearings held pursuant to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq.

For the reasons explained below, the plaintiff now moves to dismiss its complaint without prejudice. The defendants, however, ask that the court deny the plaintiff's motion and instead resolve the defendants' pending motion for summary judgment. In the alternative, the defendants ask the court to dismiss the plaintiff's case with prejudice. Because the plaintiff's motion satisfies the prerequisites for voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2), the court grants the plaintiff's motion and dismisses this action without prejudice.


A. Statutory Framework

The EPA regulates pesticides pursuant to two federal statutes: the Federal Food, Drug and Cosmetic Act ("FFDCA"), codified at 21 U.S.C. § 356a, and FIFRA. Nat'l Corn Growers Ass'n v. Envtl. Prot. Agency, 613 F.3d 266, 269 (D.C. Cir. 2010). Under the FFDCA, the EPA determines the "tolerance" levels for food -- the maximum amount of pesticide residue that may remain on or in raw and processed food while still being considered "safe." 21 U.S.C. § 346a(b)(2)(A). Conversely, any food containing a pesticide residue that exceeds an established tolerance level is generally deemed "unsafe" and "adulterated" and may not be moved in interstate commerce. 21 U.S.C. §§ 331, 342(a)(2)(B).

FIFRA provides that, with minor exceptions, "no person in any State may distribute or sell to any person any pesticide that is not registered" under the Act. 7 U.S.C. § 136a(a). To register a pesticide under FIFRA, a pesticide seller must submit extensive scientific studies to the EPA demonstrating that the pesticide meets certain human dietary and environmental safety standards. Id. §§ 136-136y.

FIFRA also requires the EPA to periodically re-examine registered pesticides to ensure that the older pesticides continue to meet current safety standards. 7 U.S.C. § 136a-1. When the EPA re-examines a previously registered pesticide, the registrant is required to re-register this pesticide and show that the registered product continues to meet FIFRA's registration standard. Id. § 136a-1(a)-(b).

If the EPA believes that a registered pesticide no longer meets FIFRA's safety standards, it may take administrative action to cancel the pesticide's registration. 7 U.S.C. § 136d(b)-(d). FIFRA requires that as a preliminary step, the EPA must issue a formal notice of intent to cancel ("NOIC"), thereby providing the registrant with an opportunity to request a formal adjudicatory hearing ("a cancellation hearing"). 7 U.S.C.§ 136d(b). If a cancellation hearing is properly requested, the registration remains in effect while the formal adjudicatory hearing is conducted in accordance with FIFRA and the EPA's regulations. Id. § 136d(d); 40 C.F.R. § 164. Under the relevant EPA regulations, the EPA has the burden of producing the reasons for cancellation, but the registered party bears the burden of persuading the court that the EPA's proffered reasons are inadequate. 40 C.F.R. § 164.80. At the conclusion of the cancellation hearing, the EPA Administrator issues an order either revoking the NOIC or canceling the registration. 7 U.S.C. § 136(d). The registrant can appeal the EPA's final cancellation order in the federal appellate court where the registrant resides or has a place of business. Id. § 136n(b).

B. Factual and Procedural Background

The plaintiff is a chemical company that produces pesticides, including Furadan® 4F, which contains the active ingredient carbofuran. Compl. ¶¶ 3, 9. The plaintiff is the sole manufacturer of carbofuran in the United States. Nat'l Corn Growers, 613 F.3d at 270. Since the EPA first approved the use of Furadan® 4F in 1969, carbofuran has been used as a pesticide on a variety of crops. Compl.¶ 3. The plaintiff also produces carbofuran for technical and manufacturing use and has three registrations with the EPA for such uses. Defs.' Opp'n to Pl.'s Mot. to Dismiss Without Prejudice ("Defs.' ...

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