Dow Chemical Co. v. Blum

• Citation: 469 F. Supp. 892
• Decision Date: 12 April 1979
• Docket Number: Civ. A. No. 79-10064.
• Parties: The DOW CHEMICAL COMPANY et al., Plaintiffs, v. Barbara BLUM et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

469 F. Supp. 892

The DOW CHEMICAL COMPANY et al., Plaintiffs, v. Barbara BLUM et al., Defendants.

Civ. A. No. 79-10064.

United States District Court, E. D. Michigan, N. D.

April 12, 1979.

COPYRIGHT MATERIAL OMITTED

Herbert H. Edwards, James N. O'Connor, Michael J. Traynor, Dow Chemical Company, Midland, Mich., Rudolf H. Schroeter, LaFollette, Johnson, Schroeter & Dettaas, Los Angeles, Cal., for Dow Chemical Co.

Allen A. Lauterbach, Gen. Counsel, Park Ridge, Ill., C. David Mayfield, John J. Rademacher, Asst. Legal Counsels, Park Ridge, Ill., for American Farm Bureau Federation.

Anthony P. Brown, Pillsbury, Madison & Sutro, San Francisco, Cal., for Western Timber Association, Chevron Chemical, National Aborists Association, Asplundh Tree Expert Co.

Allen T. Malone, Apperson, Crump, Duzane & Maxwell, Memphis, Tenn., for Vertac, Inc., National Railroad Contractors Assoc., National Agriculture Aviation Assoc., Bartlett Tree Co., The Davey Tree Expert Co.

Ronald A. Zumbrun, Raymond M. Momboisse, Eileen B. White, Pacific Legal Foundation, Washington, D. C., for Southern Oregon Resources Alliance, Oregon Women For Timber.

Manley B. Strayer, Phillip D. Chadsey, Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., for Industrial Forestry Association.

Richard Dec. Hinds, Cleary, Gottlieb, Steen & Hamilton, Washington, D. C., for United States Steel Corp.

J. Evan Goulding, Friedman, Hill & Robbins, Denver, Colo., O. Russell Armstrong, Davis & McLeod, Washington, D. C., for National Cattlemen's Association.

Robert C. Klevorn, Boyne City, Mich., for Northern Michigan Electric Cooperative, Michigan Electric Cooperative Association.

Joseph E. Stevens, Jr., Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, Mo., for the Andersons.

James H. Eddleman, Springfield, Ill., for Association of Illinois Electric Cooperatives.

Eugene N. Buchheit, Louisville, Ky., for Kentucky Association of Electric Cooperatives, Inc.

Michael S. Winer, Ellen Siegler, U. S. Environmental Protection Agency, Washington, D. C., for Barbara Blum.

Donald W. Stever, Jr., U. S. Dept. of Justice, Land & Natural Resources Div., Washington, D. C., for Douglas Costle.

Joan M. Cloonan, U. S. Dept. of Justice, Pollution Control Section, Washington, D. C., for John McGuire, Environmental Protection Agency.

Edward W. Warren, Kirkland & Ellis, Washington, D. C., for plaintiffs.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

On March 6, 1979, plaintiffs brought this action seeking judicial review of a decision by the Environmental Protection Agency (EPA) to order an emergency ban of two herbicides manufactured primarily by the plaintiff Dow Chemical Company (Dow). The herbicides are commonly known as 2,4,5-T and Silvex. In ordering the ban, EPA was acting, for the first time, pursuant to its emergency powers under Section 6(c)(3) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136d(c)(3). Such action is subject to immediate review in the district courts solely to determine whether the order of suspension was arbitrary, capricious, or otherwise not in accordance with the law. 7 U.S.C. § 136d(c)(4).

The twenty-one plaintiffs joined in this action are registrants and/or users of 2,4,5-T or Silvex. The plaintiff Dow Chemical Company is the primary manufacturer of 2,4,5-T, and is the plaintiff primarily responsible for litigating the plaintiffs' case. The defendants consist of Ms. Barbara Blum, Deputy Administrator of EPA; Mr. Douglas Costle, Administrator of EPA; Mr. John McGuire, Regional Administrator of Region V of EPA; and the EPA itself.

Plaintiffs filed this action, as well as motions for an immediate stay of the EPA emergency suspension orders and for accelerated discovery, on March 6, 1979. On March 7, 1979, defendants filed a motion for a protective order seeking to limit the requested discovery. The same day, March 7, 1979, the Court denied the request for an immediate stay and tentatively set the matter on for a hearing for April 3, 1979. In addition, the Court allowed each party ten days to respond to the discovery motions in question. On March 19, 1979 the Court ruled on the respective discovery motions, granting the motion for accelerated discovery and granting in part the motion for a protective order. In this connection, the Court allowed the plaintiffs to discover all requested documents and to take the depositions of lower EPA officials and contractors for the sole purpose of determining the contents of the administrative record.

Subsequently, on March 16, 1979, EPA filed a motion in limine seeking to cancel the scheduled hearing and limit review to the administrative record as compiled by EPA. On March 27, 1979, the Court denied this motion and permitted the plaintiffs to introduce at the scheduled hearing evidence and direct oral testimony addressing the question whether the emergency suspension orders issued by EPA on February 28, 1979, were arbitrary, capricious, an abuse of discretion or were issued in accordance with the procedures established by law. Later, the Court reset the scheduled hearing for April 5, 1979.

The matter is before the Court on plaintiff's motion to stay the EPA emergency suspension orders reflected above. The Court heard testimony on the matter April 5, 6, 7 and 8 of 1979. In addition, the Court has received numerous exhibits consisting largely of affidavits and depositions, as well as the administrative record certified to this Court by EPA. Having reviewed the testimony and exhibits, the relevant portions of the administrative record cited to the Court by the parties, as well as the law on the matter, the Court believes that the request for a stay of the EPA emergency suspension orders of February 28, 1979 should be denied. Because of the need for an expedited decision, the ensuing discussion will be relatively brief.

FACTUAL BACKGROUND

On February 28, 1979, EPA issued two emergency suspension orders which had the effect of immediately suspending the distribution, sale, and use of: (1), 2,4,5-T for forestry, rights-of-way, and pasture uses; and (2) Silvex for the foregoing uses, as well as home and garden, aquatic weed control/ditch bank, and commercial/ornamental turf uses. The emergency suspension orders were based on a judgment by EPA that pregnant women at the time of exposure to the banned uses of 2,4,5-T and Silvex faced an immediate unreasonable risk of spontaneous abortions. The suspension orders themselves reflect that this judgment was based on essentially two categories of information: (1) laboratory tests which indicated that the contaminant TCDD, which is present in small amounts in both 2,4,5-T and Silvex, produced feto-toxic and teratogenic effects in animals at extremely low dose levels; and (2) an epidemiological study, labeled "Alsea II," which claimed to have found a statistically significant correlation between the spraying of 2,4,5-T and the occurrence of spontaneous human abortions in women residing in the Alsea basin region on the western coast of Oregon. As the suspension orders frankly state, however, it was the Alsea II Study, completed and reviewed by EPA near the end of February, 1979, which provided "the new point of departure" and the claimed additional evidence which necessitated the emergency action by EPA.

The events leading to the Alsea II Study are as follows:

(1) In 1970, the United States Department of Agriculture (USDA) suspended the registration of 2,4,5-T for aquatic and home uses;

(2) In July, 1973, EPA initiated cancellation proceedings on all registered uses of 2,4,5-T with hearings to commence in April of 1974; the cancellation notices were later withdrawn in June, 1974;

(3) In April, 1978, as part of its ongoing program to review the safety of pesticides presently in use, EPA initiated Rebuttable Presumption Against Registration (RPAR) proceedings for 2,4,5-T; the purpose of these proceedings was to carry out a thorough, in-depth scientific review of the long-range risks and benefits of continued use of 2,4,5-T;

(4) In the summer of 1978, during the RPAR proceedings, EPA received complaints from nine women in the Alsea, Oregon area claiming they had experienced miscarriages because of the herbicide spraying in the course of forest management; in July of 1978, as a result of these complaints, the Human Effects Monitoring Branch (HEMB) of EPA initiated an investigation, labeled "Alsea I" and separate from the RPAR proceedings, of the possible relationship between 2,4,5-T spraying and the abortions experienced by these nine women;

(5) The Alsea I investigation consisted of administering a questionnaire to each of the nine women, and referring the results and other information to ten persons, mostly obstetricians and gynecologists, for review; all the reviewers concluded that a causal relationship between forest herbicide spraying and reproductive wastage had not been demonstrated from the data presented;

(6) In October, 1978, deciding that the results of Alsea I required a broader-based epidemiological study of the possible relationship between the spraying of 2,4,5-T and the occurrence of spontaneous abortions in the Alsea Region, EPA contacted Colorado State University for the purpose of initiating the Alsea II investigation which lies at the heart of this action;

(7) In late January or early February of 1979, the Colorado State researches transmitted the final Alsea II report to HEMB;

(8) On February 28, 1979, EPA issued the two emergency suspension orders involved in this action based partly on the results of the Alsea II investigation.

The Alsea II investigation was designed to test the rates of spontaneous abortions occurring in a forested region (Study Area) of Oregon's coastal range, centered about the Alsea Basin (which is roughly equidistant from Oregon's northern and southern borders and where 2,4,5-T has been commonly used in forest management) and to compare those rates with rates...