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Environmental Defense Fund v. EPA

Citation: 7 ELR 20012
No. No. 75-2259, 548 F.2d 998/9 ERC 1433/(D.C. Cir., 11/10/1976)

The U.S. Court of Appeals for the D.C. Circuit affirms the EPA Administrator's order suspending the registrations of heptachlor and chlordane for certain uses under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and prohibiting further production of the two pesticides for those uses. In addition, the court remands for reconsideration the Administrator's decision to allow continued use of existing stocks of the chemicals without inquiring into the issue of retrieving such stocks for controlled disposal. The registrant bears the ultimate burden of establishing the safety of a pesticide in a FIFRA suspension proceeding after the agency has made a prima facie showing of hazard; the court concludes that the burden has not been met in this case. There is substantial evidence in the record in the form of data from animal studies and showings of residues in the human diet and in human tissue to support the Administrator's determination that continuation of certain uses of heptachlor and chlordane during the time required for a full cancellation proceeding posed an "unreasonable risk to man or the environment" and thus represented an "imminent hazard." The Administrator did not err in deciding that the benefits derived from the suspended uses of the pesticides (on corn and miscellaneous agricultural crops, and in the household, as well as on lawns and gardens) did not outweigh the harms done. Similarly, he correctly refused to suspend use on certain fruits and against certain pests because benefits did outweigh harms, effective alternatives were not available, and exposure risk was minimal. The exemption of existing stocks from the suspension order was arbitrary, however, because no effort was made to inquire into the amount of stocks left or the problem of returning and disposing of them.

Counsel for Petitioner Environmental Defense Fund
Jacqueline M. Warren
William A. Butler
Environmental Defense Fund
1525 18th St., NW
Washington DC 20036
(202) 833-1484

John F. Dienelt
Caplin & Drysdale
1101 17th St., NW
Washington DC 20036
(202) 293-3900

Counsel for Petitioner Earl Butz, Secretary of Agriculture
James Michael Kelly, Asst. General Counsel
Raymond W. Fullerton
Alfred R. Nolting
Margaret M. Breinhalt
Office of the General Counsel
Department of Agriculture
Washington DC 20250
(202) 447-2571

Counsel for Intervenor
Velsicol Chemical Corp.
Robert L. Weinberg
John G. Kester
Richard M. Cooper
Kendra Heymann
Williams, Connolly & Califano
1000 Hill Bldg.
839 17th St., NW
Washington DC 20006
(202) 638-6565

Counsel for Respondents
Rex E. Lee, Asst. Attorney General
Michael H. Stein
Robert E. Kopp
Department of Justice
Washington DC 20530
(202) 737-8200

Richard J. Denney, Jr., Assoc. General Counsel
John E. Bonine, Deputy Assoc. General Counsel
Lee C. Schroer
Ronald C. Hausman
Office of the General Counsel
Environmental Protection Agency
Washington DC 20460
(202) 755-2500

Before Leventhal, Robinson and Wilkey, JJ.