Love v. Thomas

• Citation: 668 F. Supp. 1443
• Decision Date: 21 May 1987
• Docket Number: Civ. No. 87-343-RE.
• Parties: James M. LOVE, Northwest Food Processors Association, a non-profit association, and Tualatin Valley Fruit Marketing, Inc., an Oregon corporation, Plaintiffs, v. Lee M. THOMAS, Administrator Environmental Protection Agency, Defendant.
• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)

668 F. Supp. 1443

James M. LOVE, Northwest Food Processors Association, a non-profit association, and Tualatin Valley Fruit Marketing, Inc., an Oregon corporation, Plaintiffs, v. Lee M. THOMAS, Administrator Environmental Protection Agency, Defendant.

Civ. No. 87-343-RE.

United States District Court, D. Oregon.

May 21, 1987.

Susan K. Eggum, McEwen, Gisvold, Rankin & Stewart, Phillip D. Chadsey, Stoel, Rives, Boley, Fraser & Wyse, Portland, Or., for plaintiffs.

Charles H. Turner, U.S. Atty., Thomas C. Lee, Asst. U.S. Atty., Portland, Or., John A. Amodeo, U.S. Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for defendant.

OPINION

REDDEN, District Judge:

Plaintiffs James M. Love, an Oregon farmer and packer, the Northwest Food Processors Association (NWFPA), a nonprofit trade association of seventy fruit, vegetable and potato growers and processors in Oregon, Washington and Idaho, and Tualatin Valley Fruit Marketing, Inc. (TVFM), an Oregon corporation which grows and processes berry crops, move for a preliminary injunction under Fed.R.Civ.P. 65(a). They seek relief from an order of the Environmental Protection Agency (EPA) suspending the distribution, sale, or use of pesticides containing dinoseb (2-secbutyl-5, 6 dinitrophenol). They request a court order allowing the application of dinoseb to green pea, snap bean, cucurbit (cucumbers, squash and zucchini) and caneberry crops in the states of Oregon, Washington and Idaho.

The defendant is Lee M. Thomas, Administrator of the EPA.

The EPA issued the suspension order based on evidence that dinoseb may unreasonably endanger applicators of this pesticide by causing birth defects, lowered male reproductive capability and possibly, death. The issue is whether that decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with procedures established by law. Plaintiffs claim the EPA did not properly weigh the risks as opposed to the benefits of the use of dinoseb, in that there are no alternative pesticides which can be used in the northwest.

This case was filed late Friday, April 3, 1987. The defendant was allowed until April 9, 1987 to brief its position. Trial commenced April 13 and concluded on April 14, 1987. An injunction and an expedited opinion were entered on April 15, 1987. That opinion promised a more thorough opinion to follow. This opinion incorporates much of the April 15 opinion, but adds sections on jurisdiction and the scope of review.

STATUTORY FRAMEWORK

The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136, et seq., generally requires all pesticides to be registered for use with the EPA Administrator. However, the pesticide must meet the registration requirements set forth in 7 U.S.C. § 136a(c)(5), including a determination that it will not cause "unreasonable adverse effects on the environment." A continuous review of registered pesticides is required, to incorporate new information to protect human health and the environment. 7 U.S.C. § 136d.

In the event of new information that a registered pesticide poses a significant threat to human health or the environment, the Administrator may cancel the registration of that pesticide. 7 U.S.C. § 136d(b)(1). Depending on the severity of the hazard, the Administrator may (1) cancel the registration; (2) suspend the registration pending cancellation (ordinary suspension); or (3) suspend the registration immediately (emergency suspension). These three choices are necessary because of the varied risks of a pesticide depending on its nature and use, and the amount of time consumed by cancellation or suspension proceedings during which a dangerous pesticide would otherwise continue to be used.

This case involves the third type of action, the emergency suspension.

Ordinary Suspensions and Expedited Hearings

If the Administrator determines a pesticide presents an imminent hazard, its registration may be suspended during the time required for cancellation. First, however, the Administrator must notify the registrant, or manufacturer, of the pesticide before issuing a suspension order. 7 U.S.C. § 136d(c)(1). The purpose of this notice is to provide for an expedited hearing, if the registrant requests it, on the question of whether an imminent hazard exists. Id. The order is effective after the expedited hearing, if one is requested. If no hearing is requested, the order is effective immediately. It is not reviewable by a court. 7 U.S.C. § 136d(c)(2). Five days are allowed after notice is received to request a hearing. After the passage of five days, the EPA may issue the order of suspension. Id.

A finding of imminent hazard results from a determination that the risks appear to outweigh the benefits of use of a pesticide during the cancellation proceedings. Dow Chemical Co. v. Blum, 469 F.Supp. 892, 898-899 (E.D.Mich.1979).

Emergency Suspension

There is one exception to the requirement of notice to registrants before suspension of a pesticide registration. Whenever the Administrator determines an emergency is of such magnitude as to preclude an expedited hearing before suspension, he may issue a suspension order before he notifies the registrants. 7 U.S.C. § 136d(c)(3). The emergency suspension order is effective immediately. Notice to registrants is still required, and they may request an expedited hearing within five days after notice is received.

Participants in the Expedited Hearing

An ordinary suspension order requires notification of the registrant. 7 U.S.C. § 136d(c)(1). Only the registrant may request an expedited hearing. The only matter for consideration at the hearing is whether an imminent hazard exists. The expedited hearing must commence within five days after a registrant requests one, unless otherwise agreed. No one other than registrants may participate in this expedited hearing.

If an emergency suspension order is issued, the registrants must request an expedited hearing within five days after they receive notice of the suspension. Any person adversely effected by the emergency suspension may file briefs with the EPA. Anyone who files a brief is a party, and may obtain judicial review.

Judicial Review

7 U.S.C. § 136d(c)(4) provides that "a final order on the question of suspension following a hearing shall be reviewable in accordance with section 136n of this title ..." 7 U.S.C. § 136n provides for review by a Court of Appeals.

However, if an emergency suspension is ordered before an expedited hearing, that order is subject to immediate review in a district court. Either the registrant or another interested person who has the concurrence of the registrant may bring this action. The only question for the court is whether the order of suspension was arbitrary, capricious or an abuse of discretion, or whether the order was issued in accordance with the procedures established by law. 7 U.S.C. § 136d(c)(4). Judicial review and administrative review of the suspension order may proceed simultaneously. Id.

FACTS

On October 7, 1986 the EPA issued an emergency suspension order pursuant to 7 U.S.C. § 136d(c)(3), without prior notice to registrants. The order prevented any further sale, distribution or use of pesticide products containing dinoseb. The required post-order notification to registrants was published in the Federal Register on October 14, 1986. 51 Fed.Reg. 36,634.

Four registrants requested an expedited hearing as provided for in 7 U.S.C. § 136d(c)(2) and (3). The hearing convened on October 20, 1986. Ten days later on October 30, 1986 all four registrants withdrew their requests for an expedited hearing and it was terminated. The EPA entered an immediate final suspension order as provided in 7 U.S.C. § 136d(c)(2) and (3). On November 26, 1986 the administrative law judge closed the docket in the expedited hearing.

Plaintiff Northwest Food Processors Association (NWFPA) petitioned the EPA for a subpart D hearing on February 11, 1987 to reconsider and modify the suspension order as provided for in 40 C.F.R. 164.130-133.¹ NWFPA contended dinoseb was the only truly efficacious pesticide for green peas, snap beans, caneberries and cucurbits, which was used successfully in the northwest for forty years. They claimed they would incur significant crop and financial losses if the order prohibiting dinoseb was not modified.

On April 1, 1987 the EPA denied the request to reconsider its order with respect to green peas and snap beans on the grounds that the petitioner had not "presented substantial new evidence which may materially affect the prior suspension order." 52 Fed.Reg. 11,119 (April 7, 1987). With such a determination, the EPA is not required to hold a hearing. 40 C.F.R. § 164.131(b). Such a decision is final. By April 15, 1987, the day the hearings ended in federal court, the EPA apparently had still not acted on the petition with respect to caneberries and cucurbits.

Earlier, however, the EPA had allowed modification of the order to permit the use of dinoseb under strictly monitored conditions to dry peas, lentils, and chick peas. On January 20, 1987 the American Dry Pea and Lentil Association petitioned the EPA for a Subpart D hearing on this issue. In mid-February, the EPA agreed to hold a hearing. The hearing concluded concluded on March 10, 1987 and the administrative law judge who presided recommended a modification of the suspension order to allow application of dinoseb on these crops. On March 30, 1987 the EPA approved the administrative law judge's recommendation.

Following the EPA's denial of the petition to modify the suspension order, plaintiffs filed on April 3, 1987 for a preliminary injunction in federal court. The EPA filed a motion to dismiss this action for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1). The EPA also filed a motion in limine to restrict this court's review to the administrative record, in the event the court finds it has jurisdiction. Both motions were...