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Dow Chem. Co. v. Train

ELR Citation: 7 ELR 20262
Nos. No. 76-10087, 423 F. Supp. 1359/9 ERC 1678/(E.D. Mich., 12/23/1976)

The court enjoins the Environmental Protection Agency (EPA) Administrator from registering a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) unless the applicant submits all required data, offers to pay compensation for use of plaintiff's previously submitted confidential data, and the data are not protected by FIFRA's trade secrets provisions. Plaintiff's claim, that a 1975 FIFRA amendment limiting the confidential data section to applications submitted after January 1, 1970, deprives plaintiff of property without just compensation, does not support issuance of a preliminary injunction, as plaintiff has demonstrated no irreparable injury on this claim, and has not shown lack of alternate remedies for compensation. At the hearing, plaintiff submitted evidence showing that other pesticide companies had relied on Dow data and that EPA had used Dow data in support of reregistration of other pesticides, all without compensating plaintiff. EPA's Interim Policy Statement, which does not provide for such compensation and specific identification of the data's original owner, thus violates FIFRA §3(c)(1)(D). The court approves EPA's procedure for submission of confidentiality claims, but it extends from 30 to 60 days the period for filing such claims. Finally, the court holds that FIFRA's compensation and confidentiality sections fully apply to reregistration of pesticides and that plaintiff will suffer immediate, irreparable injury if data it has previously submitted are not protected by these provisions.

Counsel for Plaintiff
Joseph E. Stevens, Jr., Robert D. Youle, Stephen W. Jacobson
Lathrop, Koontz, Righter, Clagett, Parker & Norquist
1500 Ten Main Center, Kansas City MO 64105
(616) 842-0820

John Gerald Gleeson, Terrence G. Linderman
Dow Chemical U.S.A.
2030 Dow Center, Midland MI 48640
(517) 636-0461

Counsel for Defendant
Philip M. Van Dam, U.S. Attorney; Haskell Shelton, Ass't U.S. Attorney
817 Federal Bldg., 231 Lafayette Blvd., Detroit MI 48226
(313) 226-7715

Rex E. Lee, Ass't Attorney General; Jeffrey Axelrad, Catherine Rebnick
Department of Justice, Washington DC 20530
(202) 739-5353