United States v. Allen

No. 80-C-133 (W.D. Wis. June 12, 1980)

ELR Digest

The court refuses to enforce subpoenas issued by the Environmental Protection Agency (EPA) pursuant to § 6 of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 135-135k, ELR STAT. & REG. 42301, concerning the possible cancellation of the registration of the herbicides 2,4,5,-T and silvex. On February 28, 1979, the EPA Administrator ordered an emergency suspension of the herbicides' registrations and issued a cancellation notice calling for hearings. Over the objection of the EPA Office of General Counsel, an EPA administrative law judge issued subpoenas for several of respondents' studies of the effects of the chemical TCDD, a central component of the herbicides, at dosages of 500 parts per trillion (ppt), 50 ppt, 25 ppt, and 5 ppt. The judge later quashed the subpoenas for the 500 ppt and 50 ppt studies. Respondents refused to honor the remaining subpoenas, claiming that the studies were incomplete particularly with regard to the "cumulative no-effect level" for TCDD toxicity. Intervening petitioner Dow Chemical Co. argued that the decision to issue the subpoenas must be upheld unless judged arbitrary and capricious. The court notes that an action to enforce an administrative subpoena in the district court is a de novo proceeding and the elements of administrative decision making, such as "considered judgment" or policy-making experience, that justify judicial deference to agency decisions are not present. Furthermore, the subpoenas were not issued in EPA's investigatory capacity but in response to a request from a party to an adjudicatory hearing. The court further notes that EPA and Dow have not proven that the studies will have "significant probative value" as required by 40 C.F.R. § 164.51. The court concludes that the information in the studies is relevant, but its probative value at this stage of the cancellation proceeding is limited and does not outweigh the substantial burden that enforcement of the subpoenas would place on respondents. Thus, the petitions to enforce the subpoenas are denied under the provision of FIFRA, 7 U.S.C. § 136d(d), protecting prospective witnesses from undue burdens.

The full text of this opinion is available from ELR (12 pp. $2.00, ELR Order No. C-1221).

Counsel for Petitioner
Richard Cohen, Ass't U.S. Attorney
P.O. Box 112, Madison WI 53701
(608) 252-5158

Counsel for Respondents
Robert K. Aberg
Aberg, Jorgensen & Purcell
131 W. Wilson St., P.O. Box 2157, Madison WI 53701
(608) 251-7600

Counsel for Intervening Petitioner Dow Chemical Co.
Richard Lewandowski
De Witt, Sundby, Huggett & Schumacher
121 S. Pinckney St., P.O. Box 2509, Madison WI 53701
(608) 255-8891

Counsel for Intervening Respondents Vietnam Veterans
David J. Ghilardi
145 W. Wilson St., Madison WI 53703
(608) 255-9491

Crabb, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]