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National Audubon Soc'y v. Costle

Citation: 9 ELR 20620
No. No. 79-3043, (D.S.D., 07/06/1979)

In an oral opinion, the court issues a temporary restraining order against the Environmental Protection Agency's (EPA's) exemption, issued on June 26, 1979, for the use of the carcinogenic insecticide toxaphene. The state's application for an exemption failed to contain an analysis of the adverse effects on man and the environment from the intended use on South Dakota grasslands, as required by EPA regulations issued under the Federal Insecticide, Fungicide and Rodenticide Act. In addition, the application failed to discuss alternative insecticides. The court also finds that the Agency improperly eliminated notice and comment on the exemption. Although under the Administrative Procedure Act EPA may dispense with notice and public comment prior to entering a final order, it may do so only upon a showing of good cause, which it failed to make in this case. The court concludes that plaintiffs are thus likely to succeed on the merits of the challenge to the exemption's validity and that the balance of interests weighs in plaintiffs' favor because farmers and ranchers may use alternate insecticides.

(The case was subsequently dismissed for mootness on July 27 after EPA withdrew the exemption for toxaphene use — Ed.)

Counsel for Plaintiffs
Charles K. Dayton
Dayton, Herman, Grohan & Gotts
800 Midland Bank Bldg., Minneapolis MN 55402
(612) 339-7633

Robert Riter, Jr.
Riter, Mayer, Hofer & Riter
P.O. Box 280, Pierre SD 57501
(605) 224-5826

Counsel for Defendants
Robert Hiaring, U.S. Attorney
231 Fed. Bldg. & U.S. Courthouse, 400 S. Phillips Ave., Sioux Falls, SD 57102
(605) 336-2980

Kemper Will
Environmental Protection Agency, Region VIII
1860 Lincoln St., Denver CO 80203
(303) 837-3826

Lawrence Kyte, Ass't Attorney General
State Capitol Bldg., Pierre SD 57501
(605) 224-3215