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Dow Chem. Co. v. Blum

Citation: 9 ELR 20583
No. No. 79-1064, 469 F. Supp. 892/13 ERC 1129/(E.D. Mich., 04/12/1979)

The court rejects a challenge to an order by the Environmental Protection Agency (EPA) suspending on an emergency basis several uses of the herbicides 2,4,5-T and Silvex. Under § 6(c)(3) of the Federal Insecticide, Fungicide and Rodenticide Act, the Administrator of the EPA is authorized to suspend pesticide registrations on an emergency basis where unreasonable adverse effects would result during the time required to hold a hearing on the suspension. Analogizing to the factors weighed by the federal courts when considering the issuance of a temporary restraining order, the court finds that EPA's order in this case was not arbitrary and capricious. The studies relied upon by the Agency in determing the existence of an immediate risk of injury, though there is some question as to their validity, provide a sufficient basis on which to issue an emergency suspension under the statute.In addition, plaintiffs have not met their burden of proof in attempting to show that EPA incorrectly determined that the benefits of the emergency suspension outweighed its risks. In sum, EPA has considered all relevant factors, has not made a clear error of judgment, and plaintiffs' motion for a stay of the suspension is denied.

Counsel for Plaintiffs
Herbert H. Edwards, James N. O'Connor, Michael J. Traynor
Dow Chemical Co.
P.O. Box 1592, Midland MI 48640
(517) 636-1000

Rudolf H. Schroeter
LaFollette, Johnson, Schroeter & DeHaas
320 Vermont Ave., Los Angeles CA 90004
(213) 666-3600

Edward W. Warren
Kirkland & Ellis
1665 K St. NW, Washington DC 20006
(202) 857-5000

Counsel for Defendants
Michael S. Winer, Ellen Siegler
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Donald W. Stever, Joan M. Cloonan
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2810