Jump to Navigation
Jump to Content

Mobay Chem. Corp. v. Gorsuch

Citation: 12 ELR 20776
No. Nos. 81-2190 et al., 682 F.2d 419/17 ERC 1737/(3d Cir., 06/22/1982)

The Third Circuit upholds the constitutionality of provisions in the Federal Insecticide, Fungicide, and Rodenticide Act governing the Environmental Protection Agency's (EPA's) use of test data submitted in support of applications for registration of pesticides, but remands the pertinent EPA regulations for violation of the Administrative Procedure Act (APA). Relying on its decision in Chevron Chemical Co. v. Costle, 11 ELR 20156, the court determines that pesticide registration applicants do not have a property interest in supporting test data since this information is submitted voluntarily in exchange for a valuable government license. Without such a property interest, appellant can make no claim that EPA's use of its test data constitutes an unconstitutional taking of private property.

Though declining to pass on the substantive validity of EPA's policy of granting conditional registrations, the court holds that the rule enunciating that policy was not promulgated in conformity with the notice and comment requirements of § 553 of the APA. Stating that a notice of proposed rulemaking must apprise interested parties of the subjects and issues to be addressed by the Agency, the court concludes that EPA's notice falls short of this standard by failing to discuss in other than general terms the specific procedures and criteria that were contemplated for the proposed conditional registration policy. While the regulations must therefore be remanded, the court stays the effect of its judgment for six months to enable EPA to promulgate new regulations.

Counsel for Appellant Mobay Chemical Corp.
Daniel M. Dibble, C. David Barrier
Lathrop, Koontz, Righter, Clagett & Norquist
26th Floor, Mutual Benefit Life Bldg., 2345 Grand Ave., Kansas City MO 64108
(816) 842-0820

Cloyd R. Mellott, John W. Ubinger
Eckert, Seamans, Cherin & Mellot
42d Floor, 600 Grant St., Pittsburgh PA 15219
(412) 566-6000

Counsel for Appellant Pennwalt Corp.
Aaron C. F. Finkbiner III, Bradford F. Whitman, Jonathan L. Braff
Dechert, Price & Roads
3400 Centre Sq. W., 1500 Market St., Philadelphia PA 19102
(215) 972-3400

Counsel for Appellee
Marcia E. Mulkey; Carol E. Dinkins, Ass't Attorney General; Donald W. Stever Jr., Anne S. Almy, Patrick J. Cafferty
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Robert S. McLaughlin
Environmental Protection Agency, Washington DC 20460
(202) 755-4076

Weis, J. (joined by Aldisert and Becker, JJ.)