Environmental Defense Fund, Inc. v. E.P.A.

Decision Date06 January 1977
Docket NumberNos. 75-2259,76-1181,76-1245 and 76-1247,s. 75-2259
Citation548 F.2d 998,179 U.S.App.D.C. 43
Parties, 9 ERC 1575, 179 U.S.App.D.C. 43, 7 Envtl. L. Rep. 20,012, 7 Envtl. L. Rep. 20,114 ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Russell E. Train, Administrator, Respondents, Velsicol Chemical Corporation and Pineapple Growers Association of Hawaii et al., Intervenors. Earl L. BUTZ, Secretary of Agriculture of the United States, Petitioner, v. Russell E. TRAIN, Administrator of the Environmental Protection Agency, Respondent, Velsicol Chemical Corporation, Intervenor. VELSICOL CHEMICAL CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Russell E. Train, Administrator, Respondent. VELSICOL CHEMICAL CORPORATION, Petitioner, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

Jacqueline M. Warren, Washington, D.C., with whom William A. Butler and John F. Dienelt, Washington, D.C., were on the brief for petitioner in No. 75-2259.

Raymond W. Fullerton, Atty., with whom James Michael Kelly, Asst. Gen. Counsel, Alfred R. Nolting and Margaret M. Brienholt, Attys., Dept. of Agriculture, Washington, D.C., were on the brief for petitioners in No. 76-1181.

Robert L. Weinberg, Washington, D.C., with whom John G. Kester, Richard M. Cooper and Kendrae Heymann, Washington, D.C., were on the brief for intervenor Veliscol Chemical Corp.

Michael H. Stein, Atty., Dept. of Justice, Washington, D.C., with whom Rex E. Lee, Asst. Atty. Gen., Robert E. Kopp, Atty., Dept. of Justice Robert V. Zener, Gen. Counsel, E.P.A., Richard J. Denney Jr., Associate Gen. Counsel, John E. Bonine, Deputy Associate Gen. Counsel, Lee C. Schroer and Ronald C. Hausmann, Attys., E.P.A., Washington, D.C., were on the brief for respondents.

Peter Barton Hutt and Clausen Ely, Jr., Washington, D.C., were on the brief for intervenor, Pineapple Growers Association of Hawaii, and others.

Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge LEVENTHAL.

LEVENTHAL, Circuit Judge:

This case involves the pesticides heptachlor and chlordane. Consolidated petitions seek review of an order of the Environmental Protection Agency (EPA) suspending the registration of those pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) 1 for certain uses. The Administrator of EPA issued an order on December 24, 1975. The order prohibited further production of these pesticides for the suspended uses, but permitted the pesticides' continued production and sale for limited minor uses. Even as to the suspended uses, the Order tempered its impact in certain respects: It delayed until August 1, 1976, the effective date of the prohibition of production for use on corn pests; and it permitted the continued sale and use of existing stocks of registered products formulated prior to July 29, 1975.

One petition to review was filed by Earl L. Butz, Secretary of Agriculture of the United States (U.S.D.A.). Secretary Butz and intervenor Velsicol Chemical Corporation, the sole manufacturer of heptachlor and chlordane, urge that the EPA order as to chlordane be set aside on both substantive and procedural grounds. 2 They contend that substantial evidence does not support the Administrator's conclusion that continued use of chlordane poses an "imminent hazard" 3 to human health, and that the Administrator made critical errors in assessing the burden of proof and in weighing the benefits against the risks of continued use of chlordane.

The other petition, filed by Environmental Defense Fund, urges that the Order did not go far enough to protect against the hazards of heptachlor and chlordane use. EDF sought an injunction against the provisions permitting continued production and use of the pesticides on corn pests until August 1, 1976. EDF also challenges the Administrator's decision to allow continued use of the stocks of the two pesticides existing as of July 29, 1975, 4 contending that EPA should have provided for retrieval and controlled disposal of such stocks. EDF also contends that the Administrator erred in failing to suspend certain "minor uses" of chlordane and heptachlor. 5

On the issue of retrieval of existing stocks, we remand for further consideration. In all other respects, we affirm the Administrator's Order. In view of our conclusion, we denied EDF's request for a stay pending appeal of the provision delaying the effective date for use on corn pests. 6 In effect, we approved the delay of effective date (as to corn) until August 1, 1976, and in this opinion we set forth our reasons for that conclusion. (Part II, B, 1)


The issues posed by administrative action pursuant to FIFRA are not new to this court, 7 and we have previously extensively described the statutory framework for such actions. What is involved here is a suspension of registration of two pesticides during the pendency of the more elaborate cancellation of registration proceeding, initiated in this case by a November 18, 1974, notice of intent to cancel. This 1974 notice stated that there existed "substantial questions of safety amounting to an unreasonable risk to man and the environment" from continued use of heptachlor and chlordane. Public cancellation hearings pursuant to that notice were not expected to commence for some time. 8 On July 29, 1975, the Administrator issued a Notice of Intent to Suspend the registrations of most uses of the two pesticides. The Administrator then commented on that expected delay in completing the cancellation hearings, and cited "new evidence . . . which confirms and heightens the human cancer hazard posed by these pesticides." On August 4, 1975, registrant Velsicol Chemical Corporation requested an expedited adversary hearing on the suspension question pursuant to § 6 of FIFRA, 7 U.S.C. § 136d(c). Administrative Law Judge Herbert L. Perlman presided over the cancellation hearings beginning August 12. Evidence was limited to human health issues and the benefits of continued use of heptachlor and chlordane. The record was closed December 4, 1975, and on December 12, the ALJ recommended against suspension, stating that he was unable to find that "heptachlor and chlordane are conclusively carcinogens in laboratory animals." 9 The Administrator reversed that decision on December 24, 1975, and suspended most uses of chlordane and heptachlor.

The Administrator is authorized to suspend the registration of a pesticide where he determines that an "imminent hazard" is posed by continued use during the time required for cancellation. Section 6(c) of FIFRA, 7 U.S.C. § 136d(c)(1). An "imminent hazard" exists where continued use during the time required for the cancellation proceeding would be likely to result in "unreasonable adverse effects on the environment." Section 2(l ) of FIFRA, 7 U.S.C. § 136(l ). The term "unreasonable adverse effects on the environment" is, in turn, defined as "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." Section 2(bb) of FIFRA, 7 U.S.C. § 136(bb).

As in our previous suspension case involving aldrin/dieldrin, 10 the primary challenge raised by Velsicol and USDA goes to the adequacy of the evidentiary basis of EPA's finding that the suspended pesticides present an imminent hazard during the time required for cancellation. The standard against which we test that challenge is defined in Section 16(b) of FIFRA:

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.

The standard of substantial evidence has been defined as: 11

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.

In applying this principle of review 12 in the specific context of a suspension of pesticides, this court has reiterated that "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 v. EPA (Shell Chemical Co., et al.), 167 U.S.App.D.C. 71, 77, 510 F.2d 1292, 1298 (1975) quoting Environmental Defense Fund v. EPA, 150 U.S.App.D.C. 348, 357, 465 F.2d 528, 537 (1972).

These decisions of our court also point out that the Administrator is not required to establish that the product is unsafe in order to suspend registration, since FIFRA 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." 13 Velsicol and USDA urge that this allocation of burden of proof relied on by the Administrator is inconsistent with the explicit terms of FIFRA. They rely on FIFRA's specific incorporation of subchapter II of the Administrative Procedure Act, which provides in relevant part that "Except as otherwise provided by statute, the proponent of a rule or order shall have the burden of proof." 5 U.S.C. § 556(d).

The EPA regulation governing the burden of proof in suspension proceedings provides:

At the hearing, the proponent of suspension shall have the burden of going forward to present an affirmative case for the suspension....

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