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McGill v. EPA

Citation: 9 ELR 20271
No. No. 76-4353, 593 F.2d 631/13 ERC 1156/(5th Cir., 04/20/1979)

The court affirms an order of the Administrator of the Environmental Protection Agency (EPA) accepting the voluntary cancellation of a registration to produce the pesticide Mirex and to suspend hearings on the cancellation, ruling that under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) nonregistrant users of the pesticide may challenge neither the cancellation of the registration nor termination of the adjudicatory proceeding. After EPA initiated hearings to cancel all registrations for Mirex, the Agency and the only outstanding registrant agreed to suspend the hearings and cancel the registration. Petitioners, nonregistrant users of Mirex, sought to reopen and complete the hearings. The court notes that FIFRA allows nonregistrant interested parties to participate in such proceedings because of congressional concern that a pesticide producer would choose not to defend a particular registration that was not important to it but was important to a particular user. Neither the Act nor the legislative history, however, discusses the situation where the sole registrant agrees to cancellation of all registrations. Noting the difficulty of attempting to divine the intent of Congress where it has failed to act, the court nonetheless decides that the rights of nonregistrants are limited to those expressly provided in the Act; nonregistrants thus have no right to challenge the suspension of hearings and cancellation of registration under these circumstances. To rule otherwise would permit any consumer to compel a lengthy and expensive hearing purely on its own volition. The court notes, however, that users may become registrants even though they are unable to manufacture the pesticide themselves.

Counsel for Petitioners
Wayne T. Elliott
Southeastern Legal Foundation
Suite 950, 1800 Century Blvd., Atlanta GA 30345
(404) 325-2255

Counsel for Respondents
Joseph B. Scott
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3256

Counsel for Intervenor Pineapple Growers Ass'n of Hawaii
Clausen Ely, Jr.
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6374

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

Before MORGAN, FAY and RUBIN, Circuit Judges.