Dow Chemical Company v. Costle

Civ. A. No. 76-10087 (E.D. Mich. June 30, 1977)

In a consent judgment following an earlier opinion, 7 ELR 20262, the court enjoins the Environmental Protection Agency from establishing different requirements for reregistration of pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) than those required for initial registration but sanctions conditional registration and nondiscriminatory waiver of data requirements. The decree also upholds current FIFRA data compensation and trade secrecy provisions.

For a detailed description of proposed amendments to FIFRA touching on the issues involved in this consent decree, see Comment, FIFRA Amendments, Getting the Pesticide Program Moving, 7 ELR 10141 (Aug. 1977).

Counsel for Plaintiff
Joseph E. Stevens, Jr., Stephen W. Jacobson
Lathrop, Koontz, Righter, Clagett, Parker & Norquist
1500 TenMain Center, Kansas City MO 64105
(816) 842-0820

Counsel for Defendant
Jeffrey Axelrad, Carol Buehrens
Department of Justice, Washington DC 20530
(202) 739-5353

[7 ELR 20591]

Haney, J.:

Final Judgment

Plaintiff, The Dow Chemical Company, having filed its first amended complaint herein on October 14, 1976, and defendant having filed its answer on December 30, 1976, the court having held a preliminary injunction hearing on the matter November 30 through December 2, 1976, and entered its preliminary injunction herein December 23, 1976;

NOW, THEREFORE, upon the consent of the parties hereto;

It is hereby ORDERED, ADJUDGED, and DECREED as follows:

This final judgment relates only to count II of Plaintiff's first amended complaint. This court has jurisdiction of the subject matter hereof and the parties hereto. Count II states a claim upon which relief may be granted against the defendant under § 16(c) of the Federal Insecticide, Fungicide & Rodenticide Act, 7 U.S.C. § 136n(c).

As used in this Final Judgment: (A) "defendant" or "EPA" means the United States Environmental Protection Agency, and any predecessors or successors thereof; and (B) "reregistration" means the process of bringing products previously registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) prior to the promulgation of regulations July 3, 1975, (40 C.F.R. § 162) setting forth the standards for registration of new products into compliance with those new standards.

III

Defendant is enjoined and restrained from:

(1) Establishing different data requirements for reregistration of a pesticide than those established for registration of a pesticide; provided, that defendant is not enjoined or restrained from granting a conditional registration or conditional reregistration or from waiving any data requirement pertaining to registration and reregistration so long as any condition or waiver applies equally to all applicants for registration and reregistration of a pesticide.

(2) Consideration, use or reliance on data submitted by plaintiff on or after January 1, 1970 in support of another's application for reregistration unless such data is identified to plaintiff and such other applicant has offered to plaintiff to pay reasonable compensation.

(3) Consideration, use or reliance on data submitted by plaintiff on or after January 1, 1970 in support of another's application for reregistration unless within 60 days after plaintiff has received notice specifically identifying the data or information involved, plaintiff has not made a claim to the defendant that such information or data is protected from consideration by reason of §§ 10(b) and 3(c)(1)(D) of FIFRA, as amended, provided that if there has been a final determination by defendant or by an appropriate court that such information or data are not subject to protection under § 10 of FIFRA, as amended, this paragraph shall not apply.

(4) Consideration, use or reliance on data submitted by plaintiff on or after January 1, 1970 in support of another's application for reregistration which information, research or test data has been clearly marked by plaintiff as pertaining to trade secrets or commercial or financial information as provided by 7 U.S.C. § 136h(a), unless the same has been finally determined by defendant or by an appropriate court to be not subject to protection under § 10 of FIFRA, as amended.