Environmental Defense Fund, Inc. v. E.P.A., s. 74--1924

• Citation: 510 F.2d 1292,167 U.S.App.D.C. 71
• Decision Date: 04 April 1975
• Docket Number: Nos. 74--1924,74--2113,74--2114 and 75--1092,s. 74--1924
• Parties: , 167 U.S.App.D.C. 71, 5 Envtl. L. Rep. 20,243 ENVIRONMENTAL DEFENSE FUND, INC., and National Audubon Society, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Russell E. Train, Administrator, Respondent, Shell Chemical Company and Earl L. Butz, Secretary of Agriculture, Intervenor. SHELL CHEMICAL COMPANY, DIVISION OF SHELL OIL COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Russell E. Train, Administrator, Environmental Protection Agency, Respondents. FLORIDA CITRUS MUTUAL, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Russell E. Train, Administrator, Environmental Protection Agency, Respondents. Earl L. BUTZ, Secretary of Agriculture of the United States, Petitioner, v. Russell E. TRAIN, Administrator of the Environmental Protection Agency, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1292

510 F.2d 1292

7 ERC 1689, 167 U.S.App.D.C. 71, 5

Envtl. L. Rep. 20,243

ENVIRONMENTAL DEFENSE FUND, INC., and National Audubon

Society, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Russell E. Train, Administrator, Respondent,

Shell Chemical Company and Earl L. Butz, Secretary of

Agriculture, Intervenor.

SHELL CHEMICAL COMPANY, DIVISION OF SHELL OIL COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Russell E. Train,

Administrator, Environmental Protection Agency,

Respondents.

FLORIDA CITRUS MUTUAL, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Russell E. Train,

Administrator, Environmental Protection Agency,

Respondents.

Earl L. BUTZ, Secretary of Agriculture of the United States, Petitioner, v. Russell E. TRAIN, Administrator of the Environmental

Protection Agency, Respondent.

Nos. 74--1924, 74--2113, 74--2114 and 75--1092.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 7, 1975.

Decided April 4, 1975.

William A. Butler, with whom Jacqueline M. Warren, John F. Dienelt, and John T. Shinkle, Washington, D.C., were on the brief for petitioners in No. 74--1924.

Dennis G. Lyons, Washington, D.C., with whom David H. Lloyd, Andrew S. Krulwich, and Linda F. Blumenfeld, Washington, D.C., were on the brief, for petitioner in No. 74--2113 also argued for petitioner in No. 74--2114.

Raymond W. Fullerton, Atty., Dept. of Agriculture, with whom John A. Knebel, Gen. Counsel, James Michael Kelly, Asst. Gen. Counsel, and Richard S. Wasser-strom, Atty., Dept. of Agriculture, were on the brief for petitioner in No. 75--1092.

Charles W. Lane, III, New Orleans, La., was on the brief for petitioner in No. 74--2114.

Michael H. Stein, Atty., Dept. of Justice, with whom Carla A. Hills, Asst. Atty. Gen., Stephen F. Eilperin, Atty., Dept. of Justice, and William E. Reukauf, Atty., Environmental Protection Agency, were on the brief for respondents.

Before WRIGHT and LEVENTHAL, Circuit Judges, and DAVIS, ^* Judge, United States Court of Claims.

Opinion for the Court filed by Circuit Judge LEVENTHAL.

LEVENTHAL, Circuit Judge:

This case involves the validity of an order issued by the Administrator of the Environmental Protection Agency (EPA) on October 1, 1974, suspending the registration and prohibiting the manufacture and sale ¹ of the pesticides aldrin and dieldrin. ² EPA permitted the sale and use of existing stocks manufactured prior to August 2, 1974, the date of the issuance of the Notice of Intention to Suspend.

The validity of the suspension of registration is attacked by Shell Chemical Company, the sole United States manufacturer of the pesticides, which raises general questions as to the basis of the order and stresses the importance of these pesticides for the 1975 corn crop. It is also attacked by Florida Citrus Mutual (FCM), an association of citrus growers, and by the Secretary of Agriculture; ³ in addition to adopting the general attack made by Shell, the Secretary stresses the need for the continued registration of aldrin/dieldrin for certain minor uses, including the protection of citrus fruits, onions, strawberries, pineapples, sugar cane, bananas, cranberries, and nursery stock, and use as a seed treatment.

The Environmental Defense Fund (EDF) and the National Audubon Society attack the EPA's decision to permit continued sale and use of existing stocks.

The court has taken into account the need for an expeditious determination, and has, to the extent permitted by its other pressing obligations, expedited the appeal and oral argument, and the issuance of its opinion. While the court has set forth its reasons it has not provided a full elaboration. The court has considered, though it has not spelled out in detail, all the contentions of the various petitioners. It rejects those contentions except that, in the case of the point raised by EDF, the court remands the record for further consideration.

I. THE ORDER

On December 3, 1970, EDF first petitioned EPA for the immediate suspension of aldrin/dieldrin and the initiation of cancellation proceedings for all existing registrations. On March 18, 1971, the Administrator issued notices of intent to cancel, under § 4 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), for all products containing the pesticides, on the basis of his finding that 'a substantial question as to the safety' of the chemicals existed. ⁴ Section 4 permits the suspension of registration while a cancellation hearing is pending when 'the Administrator . . . finds that action is necessary to prevent an imminent hazard to the public,' but the Administrator declined to take this further step. ⁵ Registrants objected to the notices of intent to cancel, and requested the appointment of a scientific advisory committee and the commencement of a public hearing. ⁶ When EDF sought review in this court of the refusal to suspend, we remanded for further consideration in light of the Report of the Advisory Committee, which was issued on March 28, 1972. Environmental Defense Fund, Inc. v. Environmental Protection Agency, 150 U.S.App.D.C. 348, 465 F.2d 528 (1972). After considering the Report and further public comments, the EPA issued an order on December 7, 1972, which affirmed its previous decisions to issue a notice of intent to cancel, without interim suspension.

Cancellation hearings began before Chief Administrative Law Judge (ALJ) Perlman on August 7, 1973. Twelve months into the hearings, on August 2, 1974, the Administrator issued a notice of intent to suspend on the ground that evidence developed since December 1972 indicated that the continued use of aldrin/dieldrin presented an 'imminent hazard' to the public. Shell and USDA requested a public hearing on the suspension question. The hearing began before ALJ Perlman on August 14, 1974, and was concluded on September 12, 1974. ALJ Perlman recommended suspension, and, on October 1, 1974, the Administrator suspended the registrations.

We will first develop the general purpose and validity of the order, with a broad overview of its reasoning and the supporting evidence. Then we shall turn to certain particular objections presented by the parties.

II. GENERAL VALIDITY

Turning first to the broad question of validity raised by cases like this, the court concludes: The EPA's order is a rational exercise of discretion, rather than arbitrary agency action. It is supported by the reasoning of the agency, and by substantial evidence in the record.

A. The Scope of Judicial Review

The primary challenge raised by Shell, FCM, and the USDA goes to the adequacy of the evidentiary basis of the EPA's finding that aldrin/dieldrin presents 'an imminent hazard (to man) during the time required for cancellation.'

We have cautioned that the term 'imminent hazard' is not limited to a concept of crisis: 'It is enough if there is substantial likelihood that serious harm will be experienced during the year or two required in any realistic projection of the administrative process.' Environmental Defense Fund, Inc. v. EPA, supra, 150 U.S.App.D.C. at 360, 465 F.2d at 540 (emphasis added.) 'FIFRA confers broad discretion' on the Administrator to find facts and 'to set policy in the public interest.' Wellford v. Ruckelshaus, 142 U.S.App.D.C. 88, 91, 439 F.2d 598, 601 (1971). See also Environmental Defense Fund, Inc. v. EPA, supra, 150 U.S.App.D.C. at 354, 465 F.2d at 534 (1972). It does not require the Administrator to establish that the product is unsafe, but places '(t)he burden of establishing the safety of a product requisite for compliance with the labeling requirements . . . at all times on the applicant and registrant.' Environmental Defense Fund, Inc. v. EPA, supra, 150 U.S.App.D.C. at 352, 465 F.2d at 532.

Section 16(b) of FIFRA defines the scope of judicial review of EPA orders made after public hearing: ⁷

The court shall consider all evidence of record. The order of the Administrator shall be sustained if it is supported by substantial evidence when considered on the record as a whole. ⁸

The standard of 'substantial evidence' means

something less than the weight of the evidence . . . (T)he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. ⁹

In applying this principle to review of a suspension decision, this court has said, 'the function of the suspension decision is to make a preliminary assessment of evidence, and probabilities, not an ultimate resolution of difficult issues. We cannot accept the proposition . . . that the Administrator's findings . . . (are) insufficient because controverted by respectable scientific authority. It (is) enough at this stage that the administrative record contain(s) respectable scientific authority supporting the Administrator.' Environmental Defense Fund, Inc. v. EPA, supra, 150 U.S.App.D.C. at 357, 465 F.2d at 537.

B. Carcinogenicity of Aldrin/Dieldrin

Although the cancellation hearing encompasses a broad range of issues concerning the effect of aldrin/dieldrin on the environment as well as on human beings, ¹⁰ the supension hearing was confined to whether the pesticides present a cancer hazard to man. ¹¹ The Administrator concluded that aldrin/dieldrin presented an 'imminent hazard' to man on the basis of data indicating that it is carcinogenic in five strains of mice and, as corroboration, indications that 'there is a strong probability that Aldrin-Dieldrin is a carcinogen in rats as well as mice.' ¹²

1. Mice Data

Shell attacks the Administrator's reliance on mice data on the ground that the inadequacy of present knowledge regarding cancer and the difficulty of extrapolating from mice to men render his decision speculative.

The Administrator's failure to determine a threshold level of exposure to aldrin/dieldrin does not render his determination improper, for he has concluded that the concept of a threshold exposure level has...