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Environmental Defense Fund v. Costle

Citation: 10 ELR 20585
No. Nos. 79-1971, -2133, 631 F.2d 922/15 ERC 1217, 1611/(D.C. Cir., 07/17/1980)

The court affirms the Environmental Protection Agency (EPA) Administrator's denial, 10 ELR 30011, of plaintiffs' requests for an administrative hearing regarding EPA's order restricting use of the pesticide chlorobenzilate in four citrus-growing states and banning use elsewhere. The hearing had been requested by the Environmental Defense Fund (EDF), arguing that the registration for the pesticide should be cancelled absolutely, and Florida Citrus Mutual, contending that the registration should be reinstated. Affirming an administrative law judge, the EPA Administrator dismissed Florida Citrus' request as untimely and rejected EDF's petition on the ground that it is not entitled to a hearing. The circuit court first holds that it, rather than the district court, has jurisdiction because the proceedings antecedent to the Administrator's order constituted a "public hearing" for purposes of § 16(b) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and the administrative record is adequate for judicial review. Second, the court holds that EDF is not entitled to an administrative hearing because (1) EDF is not affected by cancellation of the use of chlorobenzilate and (2) no hearing right is available under § 6(b) of FIFRA to challenge only the retention of registration of permissive portion of a cancellation notice. A party seeking such a review may challenge it only in district court pursuant to § 16(a). Since § 6(b) of FIFRA does not require EPA to hold an administrative hearing when the only proferred objection concerns the retention portion of a cancellation notice, the court finds it unnecessary to reach the question whether a party to a validly initiated hearing could expand the scope to consider more stringent restrictions than EPA proposes.Finally, the court affirms the Administrator's dismissal of Florida Citrus' objection as untimely because under § 6(b), its hearing request should have been made within 30 days after it received a copy of the notice.

Counsel for Petitioners
Douglas V. Rigler, Michael Fischer
Foley, Lardner, Hollabaugh & Jacobs
1775 Pennsylvania Ave. NW, Washington DC 20006
(202) 862-5300

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

William Amory Underhill
1625 K St. NW, Washington DC 20006
(202) 737-7888

Monterey Campbell II
P.O. Drawer 30, Bartow FL 33830
(813) 533-3146

J. Hardin Peterson Jr.
Peterson, Myers, Craig, Crews, Brandon & Mann
215 E. Lime St., Drawer B.S., Lakeland FL 33802
(813) 676-7611

Counsel for Respondent
David E. Menotti, Associate General Counsel; Michael S. Winer, Deputy Associate General Counsel; Mitchell H. Bernstein
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Intervenor Ciba-Geigy Corp. and Amicus Curiae National Agricultural Chemicals Ass'n
Lawrence S. Ebsner, Charles A. O'Connor III, Robert A. Anthony
Sellers, Conner & Cuneo
1575 Eye St. NW, Washington DC 20005
(202) 789-7500

Counsel for Amicus Curiae American Public Health Ass'n
Thomas O. McGarity
University of Kansas School of Law, Lawrence KS 66045
(913) 864-4550

Before: McGOWAN and WILKEY, Circuit Judges and RONALD N. DAVIES*, Senior United States District Judge for the District of North Dakota