Chemical Specialties Mfrs. Ass'n v. Jorling

• Decision Date: 09 February 1995
• Citation: 649 N.E.2d 1145,626 N.Y.S.2d 1,85 N.Y.2d 382
• Parties: , 649 N.E.2d 1145, 40 ERC 1452 In the Matter of CHEMICAL SPECIALTIES MANUFACTURERS ASSOCIATION et al., Appellants, v. Thomas C. JORLING, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 1

626 N.Y.S.2d 1

85 N.Y.2d 382, 649 N.E.2d 1145, 40 ERC 1452

In the Matter of CHEMICAL SPECIALTIES MANUFACTURERS ASSOCIATION et al., Appellants, v. Thomas C. JORLING, as Commissioner of the New York State Department of Environmental Conservation, et al Respondents.

Court of Appeals of New York.

Feb. 9, 1995.

[85 N.Y.2d 385] [649 N.E.2d 1147] McKenna & Cuneo (Charles A. O'Connor, III, and Thomas B. Johnson, of the District of Columbia Bar, admitted pro hac vice, of counsel), and Hinman Straub, Pigors & Manning, P.C., Albany (Eileen M. Considine and Beverly Cohen, of counsel), for appellants.

[85 N.Y.2d 386] G. Oliver Koppell, Atty. Gen., Albany (Maureen F. Leary, Jerry Boone, Peter F. Schiff and Val Washington, of counsel), for respondents.

OPINION OF THE COURT

LEVINE, Judge.

In response to a report by the New York Department of Health recommending that the Department of Environmental Conservation (DEC) promulgate a regulation limiting the concentration of a pesticide called DEET (N,N-diethyl-m-toluamide) in products sold in New York, DEC notified DEET product registrants of a proposed rule that would amend the existing list of restricted use pesticides contained in 6 NYCRR 326.2(b). The proposed rule would have added DEET in concentrations greater than 30% to the list. At that time, DEC issued a SEQRA notice in the form of a Determination of Non-Significance regarding the proposed rule making. DEC then published a Notice of Proposed Rule Making which contained a regulatory impact statement, and the rationale for the proposed rule. DEC notified parties holding registrations for high concentration DEET products about the proposed rule and of a legislative public hearing that would be held to accept public comment on the proposed rule. The hearing was held on July 23, 1991, and numerous oral and written comments were submitted, including submissions by petitioners Chemical Specialties Manufactures Association. After the hearing, DEC solicited information from all high concentration DEET registrants regarding any potential impact the proposed rule would have on their businesses. DEC also accepted comments from other agencies, other manufacturers, and the public during the public comment period.

After publishing reports summarizing the legislative hearing and public comments, responding to the public comments, and issuing a revised negative SEQRA declaration, DEC issued a Notice of Adoption of the proposed rule. The DEET regulation, as adopted, prohibits use, sale or distribution of pesticide products which contain in excess of 30% DEET, or 33% DEET for controlled release formulas (6 NYCRR 326.2[b][10]. Products containing 30% or less DEET concentration (or less than 33.33% in controlled release formulas) continue to be classified for general use (id.; see also, ECL 33-0101[19]. After publishing the rule, DEC advised registrants of high concentration DEET products that their products would no longer comply with the DEET regulation and that the product registrations would be canceled as of the effective date of the regulation.

Upon receipt of the notice of cancellation, the affected registrants requested that DEC refer the cancellation decision to an independent advisory committee, as is required under title 7 of ECL article 33. DEC denied the request.

Petitioners, a trade organization of chemical manufacturers, DEET product registrants, and a user of high concentration DEET products, commenced this action seeking declaratory and injunctive relief. Petitioners challenge the validity of the DEET regulation on the grounds that (1) respondents lacked statutory authorization to ban pesticide products by rule making; (2) respondents lacked statutory authority to effect cancellation of pesticide registrations by the DEET rule; (3) adoption of the DEET rule was arbitrary and capricious; (4) adoption of the DEET rule violated the State Environmental Quality Review Act (ECL art 8) (SEQRA); and (5) the DEET rule violates the Commerce Clause of the United States Constitution.

Supreme Court invalidated the rule on the ground that respondents exceeded their rule-making authority. The Appellate Division modified, holding that the rule was valid but that the rule does not and cannot automatically cancel the existing pesticide registrations (197 A.D.2d 314, 611 N.Y.S.2d 663). The Appellate Division further held, however, that in any such proceeding to cancel the registration of high DEET concentration pesticide products, "[t]he registrant cannot challenge the validity of the DEET regulation" (id., at 320, 611 N.Y.S.2d 663).

Petitioners appealed as of right to this Court on constitutional grounds. We now affirm the order of the Appellate Division.

I.

ECL article 33 contains separate and independent mechanisms by which pesticide use, sale, and distribution are regulated throughout the State. At issue in this case are title 3, containing the general rule-making power of the Commissioner, and title 7, the individual adjudicatory rights of pesticide product registrants.

Title 3 of ECL article 33 vests the Commissioner with exclusive jurisdiction over "all matters pertaining to the distribution, sale, use and transportation of pesticides" (ECL 33-0303[1]. Specifically, it authorizes the Commissioner "[t]o promulgate a list of restricted use pesticides and the usages of such pesticides that may be permitted subject to whatever conditions or limitations which the [C]ommissioner deems appropriate to fully protect the public interest" (ECL 33-0303[3][d]. A "restricted use pesticide" is defined as one "[w]hich the [C]ommissioner finds is so hazardous to man or other forms of life that restrictions on its sale, purchase, use, or possession are in the public interest" (ECL 33-0101[42][b]. Additionally, the Commissioner is authorized to "adopt, promulgate and issue such rules and regulations as he [or she] may deem necessary to carry out and give full force and effect to the provisions of this article" (ECL 33-0303[3][e].

Title 7 of article 33 governs registration of "[e]very pesticide which is used, distributed, sold, or offered for sale within this state or delivered for transportation or transported in intrastate commerce or between points within this state through any point outside this state" (ECL 33-0701). Registration is a prerequisite to a pesticide product's use, distribution, or sale in this State (id.). The Commissioner is required to register a pesticide if "the composition of the pesticide is such as to warrant the proposed claims for it, and if the pesticide and its labeling and other material * * * comply with the requirements of [the] article" (ECL 33-0709). An individual's registration of a pesticide may be canceled "whenever it does not appear that the article or its labeling or other material * * * complies with the provisions of this article" (ECL 33-0713[1]. However, "[w]henever the [C]ommissioner determines that registration of a pesticide should be canceled" (ECL 33-0713), the registrant is entitled to certain procedural rights including notice (ECL 33-0713[2], time to make necessary corrections (ECL 33-0713[3]; referral to an advisory committee (ECL 33-0715); and an adjudicatory public hearing (ECL 33-0717).

II.

Petitioners' main contentions on this appeal are that DEC lacks statutory authority to ban pesticide products by rule making, and, alternatively, that title 3 of ECL article 33 should not be read as authorizing a rule which would preclude current registrants of high concentration DEET products from challenging the underlying scientific bases for the DEET rule in their statutorily required adjudicatory cancellation of registration proceedings. We disagree with both assertions.

First, title 3 of ECL article 33, and particularly sections 33-0303(3)(d) and (e), contain broad legislative delegations to the Commissioner to act against dangerous pesticides, even to ban them outright, by means of legislative rule making. Specifically, title 3 was enacted in 1970 as part of chapter 732 (L.1970, ch. 732) which (1) defined a restricted use pesticide (ECL 33-0101[42][b] [Agriculture and Markets Law former § 148(22)(B) ]; (2) gave the Commissioner authority to "promulgate a list of restricted use pesticides and the usages of such pesticides that may be permitted subject to whatever conditions or limitations which the [C]ommissioner deems appropriate to fully protect the public interest" (ECL 33-0303[3][d] [Agriculture and Markets Law former § 150(1)(4) ]; and (3) created a permit system as the exclusive means of selling, using or possessing restricted use pesticides (ECL 33-0901 [Agriculture and Markets Law former § 149].

Supporting the express language of chapter 732, the legislative history clearly indicates an intent to authorize a complete ban on the use of dangerous pesticides under certain circumstances. The Executive Memorandum in support of chapter 732 states that the "Commissioner may refuse to issue * * * a permit [for the sale, purchase, possession or use of a restricted use pesticide] for a number of reasons, including * * * failure to comply with the law or rules and regulations, and inadequate knowledge or experience concerning the use and application" thereof (Mem of State Executive Dept, 1970 McKinney's Session Laws of NY, at 2987). And in the Governor's Message of Approval of chapter 732, he stated that a permit to sell or use a restricted use pesticide "must [be] refuse [d] * * * for use of a particular pesticide if there is a reasonable, less dangerous alternative available, capable of performing the task required" (1970 NY Legis Ann, at 513 [emphasis in original].

Thus, both the express statutory language and the legislative history of chapter 732 of the Laws of 1970 contradict the petitioners' suggestion, adopted by the dissent, that title 3 of ECL article 33 was intended merely to "improve the Commissioner's ability to control misuse of registered pesticides by...