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Katzson Bros. v. EPA

ELR Citation: 18 ELR 20942
Nos. No. 86-1047, 839 F.2d 1396/27 ERC 1425/(10th Cir., 02/22/1988)

The court holds that the Environmental Protection Agency (EPA) may serve notice of a Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) violation by sending a certified letter rather than personal service, but that the EPA Regional and Chief Administrators inadequately reviewed the civil penalties assessed for a pesticide producer's failure to file an annual production report. The court first holds that EPA may establish notice of process by sending a return receipt-requested certified letter to the appellant's office. The Federal Rules of Civil Procedure do not bind administrative agencies, as long as the agency's own rules satisfy due process requirements. EPA's Consolidated Rules, which do not require direct personal service, satisfy due process because they are reasonably calculated to achieve notice. The court then holds that neither the Regional Administrator nor the Chief Administrator properly reviewed the $4,200 civil penalty. Neither Administrator made any inquiry into the factual basis for the penalty. The producer had a good compliance record, did not produce the pesticide in the year for which it failed to file a report, and had not threatened the environment or public health. Moreover, EPA has been more lenient in the past in assessing penalties where such mitigating factors were absent.

Counsel for Petitioner
Richard H. Right
455 Sherman St., Denver CO 80205
(303) 758-9469

Counsel for Respondent
Scott A. Schachter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before MOORE and ANDERSON, Circuit Judges, and PHILLIPS, District Judge.[*]