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Dow Chem. Co. v. EPA

ELR Citation: 9 ELR 20640
Nos. No. 78-2203, 605 F.2d 673/(3d Cir., 08/24/1979)

In a case of first impression, the Third Circuit Court of Appeals upholds the Environmental Protection Agency's (EPA's) broad reading of §8(d) of the Toxic Substances Control Act (TSCA), ELR STAT. & REG. 41344, regarding its studies from chemical manufacturers. The EPA rule required manufacturers to submit studies in their possession even if they used the chemicals purely for purposes of research and development. Petitioners challenged the rule on the ground not only that it exceeded EPA's authority under TSCA but also that it expanded the scope of the proposed rule without adequate notice and a fair opportunity to comment, in violation of the Administrative Procedure Act. Even though EPA subsequently withdrew the rule, the court rules that the issue is not moot because EPA has not altered its substantive position but merely withdrew the rule for technical reasons. The court also rejects the applicability of judicial deference to EPA's interpretation of TSCA because the questions involve information gathering rather than issues subject to special agency expertise. Turning the merits, the court finds that EPA's inclusion of "research and development" within the statutory definition of "commerical purposes" to be within the legislative intent. Second, the court concludes that the legislative history of TSCA supports EPA's view that it may require, pursuant to §8(d)(2), the furnishing of all studies known by a manufacturer to exist, even though the manufacturer was not required to list such studies in reports to the Agency under §8(d)(1). The petition for review is therefore denied.

Counsel for Petitioner
Robert V. Zener
Petter, Hamilton & Scheetz
1776 F St. NW., Washington DC 20006
(202) 862-7500

James Hanson
Dow Chemical Co.
1800 M St. NW, Washington DC 20036
(202) 457-1700

Counsel for Respondents
Michael P. Carlton; James W. Moorman, Ass't Attorney General; Angus MacBeth
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2793

Alan H. Carpien; Joan Z. Bernstein, General Counsel Environmental Protection Agency, Washington DC 20460
(202) 755-4076

Adams, J. (joined by Rosenn and Lacey,* JJ.)