Rohm & Haas Co. v. Environmental Protection Agency

No. 81-1757 (3d Cir. May 26, 1981)

The Third Circuit Court of Appeals upholds a district court decision, 11 ELR 20849 allowing the Environmental Protection Agency (EPA) to issue a permit for experimental use of a pesticide for soybeans. It adopts the district court's conclusion that, under the Federal Insecticide, Fungicide, and Rodenticide Act, EPA properly considered another submitter's data in issuing the permit.

Counsel for Appellant
Patrick M. Raher
Hogan & Hartson
815 Connecticut Ave. NW, Washington DC 20006
(202) 331-4500

Counsel for Appellees
Patrick J. Cafferty Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5289

Harold Himmelman, Cynthia A. Lewis
Beveridge & Diamond
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 828-0200

Before Gibbons, Garth, and Sloviter, JJ.

[11 ELR 20857]

Per curiam:

Rohm & Haas Company appeals from a judgment in favor of the defendants in its action against the Environmental Protection Agency et als, in which Mobil Oil Corporation intervened as a defendant. Rohm & Haas sought an injunction against the issuance to Mobil of an Experimental Use Permit (EUP) for experimental use of Mobil's product Tackle as a pesticide for soybeans. Rohm & Haas contends, and the defendants do not dispute, that the Environmental Protection Agency, in approving experimental use of Tackle, relied on information in the agency's file with respect to Rohm & Haas'product Blazer, which like Tackle contains the active ingredient acifluorfen. Such reliance, Rohm & Haas contends:

(1) violates Section 5 of the Federal Fungicide and Rodenticide Act, 7 U.S.C. § 136(c) in that EUP's may not be issued in reliance on data submitted by anyone but the applicant; and

(2) violates restrictions on the use of submitted data in Section 3(c)(1)(D) of the Federal Fungicide and Rodenticide Act, 7 U.S.C. 136(c)(1)(D).

Rohm & Haas also contends that the agency should have permitted additional time for public comments in response to its May 5, 1981 Federal Register Notice of Mobil's application for the EUP.

Upon filing its notice of appeal Rohm & Haas moved for an injunction pending appeal, and alternatively for accelerated disposition of the appeal after oral argument, on the briefs filed with the trial court. All parties agreed to a disposition of the appeal on the submissions to date. We heard oral argument on the merits of the appeal on May 22, 1981.

We affirm the judgment appealed from, essentially for the reasons set forth in the comprehensive opinion of the trial court.