National Coalition Against Misuse of Pesticides v. E.P.A., 88-5147

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation867 F.2d 636
Docket NumberNo. 88-5147,88-5147
Parties, 276 U.S.App.D.C. 20, 57 USLW 2457, 19 Envtl. L. Rep. 20,539 NATIONAL COALITION AGAINST THE MISUSE OF PESTICIDES, et al., Appellees, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Appellants.
Decision Date03 February 1989

Appeal from the United States District Court for the District of Columbia (Civil Action No. 87-02089).

Kathleen P. Dewey, Atty., Dept. of Justice, with whom Roger J. Marzulla, Asst. Atty. Gen., Anne S. Almy and J. Steven Rogers, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellants.

Victor M. Sher, Seattle, Wash., with whom Paula Dinerstein and Gerald I. Sommer, Washington, D.C., were on the brief, for appellees.

James F. Flug, Washington, D.C., also entered an appearance for appellees.

Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and GIBSON, * Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

The Administrator of the Environmental Protection Agency appeals from an order of the district court permanently enjoining EPA from permitting "sales, commercial use and commercial application of existing stocks" of the termiticides chlordane and heptachlor pursuant to a settlement agreement under which the producers of the chemicals agreed to voluntary cancellation of the chemicals' registrations under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. Secs. 136-136y (1982 & Supp. IV 1986). See National Coalition Against the Misuse of Pesticides v. EPA, 679 F.Supp. 55, 60 (D.D.C.1988). We think the district court misconstrued the relevant provisions of FIFRA by holding unlawful EPA's determination to permit continued sale and use of existing stocks of the cancelled termiticides. Accordingly, we reverse the district court and remand with instructions to vacate the injunction and thereby allow EPA to fulfill its commitments under the original settlements.

I.

FIFRA provides a comprehensive framework for regulating the sale and distribution of pesticides within the United States. Under the statute, EPA may not approve a pesticide's introduction into commerce unless the Administrator finds that the pesticide "will not generally cause unreasonable adverse effects on the environment" when used in accordance with any EPA-imposed restrictions and "with widespread and commonly recognized practice." 7 U.S.C. Sec. 136a(c)(5)(D) (1982). "Unreasonable adverse effects on the environment" are defined to include "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." Id. Sec. 136(bb). With few exceptions, FIFRA prohibits the sale, distribution, and professional use of unregistered pesticides. Id. Secs. 136a(a) & 136j(a)(1).

Once registered, pesticides are still subject to continuing scrutiny by EPA. See generally id. Sec. 136d. Indeed, section 6 of FIFRA requires EPA to cancel a pesticide's registration after the first five years in which the registration has been effective (and at the conclusion of subsequent five year periods if the registration is renewed) "unless the registrant, or other interested person with the concurrence of the registrant, ... requests ... that the registration be continued in effect." Id. Sec. 136d(a). And at any time, EPA may propose cancellation of a registration and initiate elaborate cancellation proceedings if "it appears to the Administrator that a pesticide ... does not comply with [FIFRA] or ... generally causes unreasonable adverse effects on the environment...." Id. Sec. 136d(b).

During the pendency of cancellation proceedings, the registration remains in effect unless the Administrator "suspend[s] the registration of the pesticide immediately." Id. Sec. 136d(c). But before suspending, the Administrator must determine that an "imminent hazard" exists--that "continued use of the pesticide during the time required for cancellation proceeding[s] would be likely to result in unreasonable adverse effects on the environment...." Id. Sec. 136(l ). Even then, FIFRA guarantees registrants the right to an expedited administrative hearing on that issue, and the pesticide's registration remains effective during this latter proceeding. Id. Sec. 136d(c)(2). Only if "the Administrator determines that an emergency exists that does not permit him to hold a hearing before suspending" may he prohibit commerce in the pesticide in advance of administrative proceedings. Id. Sec. 136d(c)(3). 1

While commerce in unregistered pesticides is generally prohibited, the Administrator may permit continued sale and use of existing stocks of pesticides whose registrations have been cancelled provided "he determines that such sale or use is not inconsistent with the purposes of this subchapter and will not have unreasonable adverse effects on the environment." Id. Sec. 136d(a)(1). It is this last provision--section 6(a)(1), concerning the disposition of existing stocks--that we are called upon to interpret today.

Chlordane and heptachlor (to which we refer simply as "chlordane") are part of a class of chlorinated hydrocarbon insecticides known generally as "cyclodienes," introduced into the marketplace for general use in the late 1940s and early 1950s. In recent years, the chemical has been sold and distributed both by chlordane's sole manufacturer, Velsicol Chemical Company, and a number of so-called "reformulator" companies who acquire chlordane from Velsicol and manufacture derivative products. Until 1987, Velsicol and the reformulators maintained various registrations for these products with EPA.

The regulatory action challenged here--concerning the termiticide uses of chlordane--follows an earlier, fiercely disputed controversy regarding the more general uses of the chemical. In 1974, following an intensive three-year agency investigation into the human and environmental health effects of chlordane exposure, EPA issued a notice of intent to cancel the bulk of chlordane's registered uses. See 39 Fed.Reg. 11,298 (Nov. 24, 1974). This was followed eight months later by a notice of intent to suspend most registered uses of the chemical during the pendency of cancellation proceedings. Velsicol unsuccessfully contested the proposed suspension and sought review of the Administrator's suspension order in this court, but we ultimately upheld that decision. See Environmental Defense Fund, Inc. v. EPA, 548 F.2d 998, 1005 (D.C.Cir.1976). Lengthy cancellation proceedings continued thereafter until EPA and the registrants concluded a settlement agreement in 1978, see Fed.Reg. 12,372 (March 6, 1978), under which the disputed registrations were phased out over four years with unlimited use of existing stocks. See id.

The termiticide uses of chlordane were not subject to the 1978 settlement, but the risks and benefits of such uses have been under more or less continuous study by EPA since the late 1970s. As part of this review effort, EPA in December 1986 released "Guidance for the Re-registration of Pesticide Products Containing Chlordane as an Active Ingredient" which, pursuant to the Administrator's statutory authority, required chlordane registrants, including Velsicol, to generate and submit to the Administrator certain data concerning the health effects of chlordane under permitted uses. See generally 7 U.S.C. Sec. 136a(c)(2)(B) (1982). The National Coalition Against the Misuse of Pesticides ("NCAMP"), concerned about the allegedly imminent hazards posed by chlordane, filed a formal petition with EPA on March 23, 1987, seeking emergency suspension and cancellation of all chlordane product registrations. NCAMP disputed the need for additional studies, asserting that "available information is more than adequate to support an immediate ban and recall of all [chlordane] products from the market."

A month later, John A. Moore, Assistant EPA Administrator for Pesticides and Toxic Substances, responded to NCAMP's petition by defending EPA's latest "data call-in" as "enabl[ing] EPA to assess exposure and risks associated with the proper application of termiticides on the basis of data gathered according to specific protocols and subject to EPA validation of analytical results." Assistant Administrator Moore assured NCAMP that a complete evaluation of these data together with a decision on appropriate regulatory action would be forthcoming during the summer. In fact, while not disclosed in EPA's letter to NCAMP, EPA officials were preparing a draft Technical Support Document ("TSD") concerning the risks and benefits of chlordane for inclusion in the administrative record to support EPA's ultimate regulatory judgment. This document, completed in July 1987, proposed that "the risks of continued use [of chlordane] outweigh the benefits." Presumably on the basis of the draft TSD, EPA contemporaneously prepared a draft notice of intent to cancel the termiticide registrations of chlordane.

In the meantime, NCAMP and the other plaintiffs brought this action in district court seeking cancellation and emergency suspension. Unbeknownst to them, at some point either shortly before or after the institution of litigation, EPA became engaged in settlement discussions with Velsicol concerning Velsicol's termiticide registrations. These negotiations led to an agreement whereby Velsicol consented to cancellation of certain registered termiticide uses, to suspension of certain others pending the completion of outstanding "data call-ins," and to a cessation of all manufacture, distribution, and sale of chlordane. In exchange, EPA agreed to permit indefinitely the sale and use of existing stocks of chlordane outside the control of Velsicol, which EPA estimated to amount to a two-months' supply at normal application rates. 2

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