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Amvac Chem. Corp. v. EPA

Citation: 11 ELR 20104
No. Nos. 79-7270, 80-5102, 653 F.2d 1260/15 ERC 1467/(9th Cir., 12/01/1980)

The Ninth Circuit Court of Appeals holds that a decision by the Environmental Protection Agency (EPA) limiting the scope of a public hearing regarding a registration cancellation under the Federal Insecticide, Fungicide and Rodenticide Act must be reviewed first in the district court. EPA proposed to cancel the registration of the pesticide dibromochloropropane (DBCP). Appellant filed a request for a hearing to contest the proposed cancellation, but when it sought to amend the request to cover all crops listed in EPA's amended cancellation notice, EPA denied leave to amend. Presented with EPA's appeal from the district court's failure to dismiss appellant's petition for review, the Ninth Circuit finds that the EPA denial of leave to amend was procedural in nature, in the form of a preliminary step to determine the scope of the requested agency hearing. It was not an order issued following a public hearing and thus not reviewable in the court of appeals. The EPA decision, the court holds, was not a final decision with an adequate administrative record. Thus, the district court decision denying EPA's motion to dismiss is affirmed, and the original petition filed in the court of appeals is dismissed.

A dissent would find that EPA's denial of leave to amend was an order issued following a public hearing and thus directly reviewable in the court of appeals.

Counsel for Petitioner
Lawrence D. Lewis
Musick, Peeler & Garrett
20th Floor, One Wilshire Blvd., Los Angeles CA 90017
(213) 629-7600

Counsel for Respondent
Mitchell Bernstein
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Nancy L. Long
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2280

Before GOODWIN and FERGUSON, Circuit Judges, and PRICE*, District Judge.