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18 ELR 20577 | Environmental Law Reporter | copyright © 1988 | All rights reserved National Coalition Against the Misuse of Pesticides v. United States Environmental Protection Agency No. 87-2089-LFO (D.D.C. February 23, 1988)The court holds that the Environmental Protection Agency's (EPA's) decision to permit the continued sale and use of existing stocks of chlordane and heptachlor, pursuant to an agreement in which the manufacturer voluntarily cancelled registrations, was arbitrary and capricious, and contrary to law. EPA violated § 6(a)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by failing to determine that continued sale and use of the existing stocks were not inconsistent with the purpose of FIFRA and would not have unreasonable adverse effects on the environment. Although EPA determined that the settlement agreement would result in less risk than would result from a proceeding to cancel the pesticides' registration without a suspension of their registration in the meantime, such a determination does not satisfy § 6(a)(1). Counsel for Plaintiffs Counsel for Defendants Oberdorfer, J.: Judgment and Order On October 1, 1987, the United States Environmental Protection Agency ("EPA") entered into a supplemental agreement with Velsicol Chemical Corporation ("Velsicol"), the sole manufacturer of chlordane and heptachlor, providing that sale and use of existing stocks of those products registered to Velsicol will cease on or before April 15, 1988. The October 1 agreement did not address existing stocks of Velsicol manufactured chlordane and heptachlor that were registered to others. On January 11, 1988, this Court granted in part plaintiffs' motion for summary judgment, ruling that "EPA's policy of exchanging use authorization on existing stocks for voluntary cancellations from non-Velsicol reformulator registrants does not satisfy the agency's obligation under 7 U.S.C. § 136d(a)(1)." Memorandum of January 11, 1988 at 6. The Court ordered EPA to make and submit to the Court a reasoned finding, supported by evidence, as to whether the continued sale and use of existing stocks of non-Velsicol registered, reformulated chlordane and heptachlor "is not inconsistent with the purposes of [FIFRA] and will not have unreasonable adverse effects on the environment," pursuant to 7 U.S.C. § 136d(a)(1). . . . Order of January 11, 1988 at 1. Defendant subsequently submitted a response to that Order, plaintiffs responded to defendants' response, and further oral argument was held on February 12, 1988. The Court has considered the briefs and oral argument of the parties and has reviewed and considered the other submissions of the parties including the administrative record and affidavit testimony. There is no genuine issue of material fact so that plaintiffs are entitled to summary judgment as a matter of law on the issue of the continued sale and use of existing stocks of chlordane and heptachlor termiticide products, which are the subject of voluntary cancellations. In connection with cancellations of one or more uses of a pesticide, including voluntary cancellations, Section 6(a)(1) of the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136d(a)(1), requires EPA to permit continued sale or use of existing stocks only "to such extent, under such conditions, and for such uses" which the Administrator determines are "not inconsistent with the purposes of [FIFRA] and will not have unreasonable adverse effects on the environment." FIFRA defines "unreasonable adverse effects on the environment" to mean "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." FIFRA § 2(bb), 7 U.S.C. § 136(bb). An adequate § 6(a)(1) determination must analyze the risks and benefits from the sale and use of existing stocks and determine whether or not such sale and use would be consistent with FIFRA and whether or not such sale and use would pose any unreasonable risk to man or the environment. See 7 U.S.C. § 136(bb). Instead, defendants found only that the settlement agreement permitting the use of existing stocks would result in less use (and therefore less risk) than would a proceeding to cancel the pesticide's registration without a suspension of the registration during the proceeding.[1] This finding does not meet the requirements of § 6(a)(1). What the defendants have done here is indistinguishable in principle from the action of the Secretary of Commerce, recently condemned by our Court of Appeals in Kokechik Fishermen's Association v. Secretary of Commerce, No. 87-5239, slip op. (D.C. Cir. Feb. 16, 1988). There, the Secretary issued a permit to Japanese fishermen to take northern fur seals even though he could not make, or had not made, a finding, required by statute, as to whether the particular seal population was within its optimum sustainable level. Id. at 12-13. Nonetheless, the Secretary "issued the permit taking the position that as long as it did not authorize the taking of northern fur seals he had complied with the [relevant statute]." Id. at 13 (emphasis added). Said the Court of Appeals, however, "[t]he result was, in effect, that the permit allowed the Federation to take protected marine mammals for a price -- the civil penalties imposed for such takings. . . . This is a result that the [relevant statute] does not countenance." Id. So here defendants, without making a required finding that sale and use of existing chlordane stocks will not unreasonably endanger man or the environment, have allowed the continued sale and current use of those stocks for a price -- i.e., conditional suspension of production and suspension of some prospective distribution from existing stocks by chlordane registrants. This, FIFRA does not countenance. Furthermore, defendants have not addressed the appropriate relevant factors, and have not adequately supported or rationally justified a determination that the continued sale or use of existing stocks permitted in the October 1, 1987 Order and the other chlordane and heptachlor voluntary cancellations is consistent with the purposes of FIFRA and would not have unreasonable adverse effects on man or the environment, within the meaning of FIFRA. The Court has not overlooked EPA's expressed concern about the "possibility" that invalidation of the existing stocks concession for chlordane registrants "could constitute a basis on the part of Velsicol and the other registrants to void the August agreement as well as the voluntary cancellations." Defendants' Response to Plaintiffs' Revised Proposed Judgment and Order (filed Feb. 23, 1988) at 3 n.1. There will be time enough to deal with such a hypothetical situation when, and if, it materializes. Accordingly, it is this 23d day of February, 1988, hereby ADJUDGED AND DECLARED: that defendants' decision to permit continued sale and use of existing chlordane and heptachlor stocks which are the subject of voluntary cancellation in the absence of the finding required by § 6(a)(1) is arbitrary, capricious, and an abuse of discretion; and it is further ADJUDGED AND DECLARED: that the provisions of any agreement entered into by defendants (and only such provisions) permitting the continued sale and use of existing chlordane and heptachlor stocks which are the subject of voluntary cancellations including, but not limited to, the provisions of the October 1, 1987 "Order Accepting Voluntary Cancellation and Authorizing Use of Existing Stocks with Limitations," made in accordance with a Supplemental Memorandum of Understanding with Velsicol Chemical Corporation, are contrary to law; and it is further ADJUDGED AND DECLARED: that the defendants' decision to permit sale or commercial use and commercial application (as distinguished from household and homeowner use and application) of existing stocks which have been the subject of voluntary cancellations is contrary to law; and it is further ORDERED AND ADJUDGED: that the defendants shall, on or before April 15, 1988, take whatever action is necessary to conform to, and to enforce, the requirements of the law as declared in this Judgment and Order so that on and after April 15, 1988, sales, commercial use and commercial application of existing stocks [18 ELR 20578] of chlordane and heptachlor which have been the subject of voluntary cancellations shall cease; and it is further ORDERED: that plaintiffs' motion for partial summary judgment is, to the extent therefore stated, GRANTED; and it is further ORDERED: that defendants' motion for summary judgment is DENIED; and it is further ORDERED: that there being no just reason for delay in the entry of this Order as a Judgment, and in order to permit its review by the Court of Appeals, the Clerk of Court shall, pursuant to F.R. Civ. P. 54(b), enter this Judgment and Order forthwith in favor of plaintiffs; and it is further ORDERED: that on March 21, 1988, at 9:00 A.M., there will be a status call to schedule further proceedings on unresolved issues, including the disposition of existing stocks derived from suspended, as distinguished from voluntarily cancelled, registrations. 1. The defendants determined that a suspension was not justified. 18 ELR 20577 | Environmental Law Reporter | copyright © 1988 | All rights reserved |