National Audubon Society, Inc. v. Costle

No. 79-3043 (D.S.D. July 6, 1979)

In an oral opinion, the court issues a temporary restraining order against the Environmental Protection Agency's (EPA's) exemption, issued on June 26, 1979, for the use of the carcinogenic insecticide toxaphene. The state's application for an exemption failed to contain an analysis of the adverse effects on man and the environment from the intended use on South Dakota grasslands, as required by EPA regulations issued under the Federal Insecticide, Fungicide and Rodenticide Act. In addition, the application failed to discuss alternative insecticides. The court also finds that the Agency improperly eliminated notice and comment on the exemption. Although under the Administrative Procedure Act EPA may dispense with notice and public comment prior to entering a final order, it may do so only upon a showing of good cause, which it failed to make in this case. The court concludes that plaintiffs are thus likely to succeed on the merits of the challenge to the exemption's validity and that the balance of interests weighs in plaintiffs' favor because farmers and ranchers may use alternate insecticides.

(The case was subsequently dismissed for mootness on July 27 after EPA withdrew the exemption for toxaphene use — Ed.)

Counsel for Plaintiffs
Charles K. Dayton
Dayton, Herman, Grohan & Gotts
800 Midland Bank Bldg., Minneapolis MN 55402
(612) 339-7633

Robert Riter, Jr.
Riter, Mayer, Hofer & Riter
P.O. Box 280, Pierre SD 57501
(605) 224-5826

Counsel for Defendants
Robert Hiaring, U.S. Attorney
231 Fed. Bldg. & U.S. Courthouse, 400 S. Phillips Ave., Sioux Falls, SD 57102
(605) 336-2980

Kemper Will
Environmental Protection Agency, Region VIII
1860 Lincoln St., Denver CO 80203
(303) 837-3826

Lawrence Kyte, Ass't Attorney General
State Capitol Bldg., Pierre SD 57501
(605) 224-3215

[9 ELR 20620]

Porter, J.:

Memorandum

I intend to read into the record the reasons that I give, both in terms of findings of fact and conclusions of law, to explain my order in this case.

The court's duty in a case like this, primarily, it to interpret and apply the applicable federal statutes; I don't view it as my duty at this time to make a subjective determination concerning which of the competing economic and environmental interests should prevail. Instead, I must, if there are applicable federal statutes, go to those and apply those to the record made at the hearing before me.

It does appear that the court, without any doubt, has jurisdiction, federal question jurisdiction, since the Federal Insecticide, Fungicide and Rodenticide Act is sued upon. The National Environmental Policy Act of 1969 also applies, as well as §§ 4 and 5 of the Administrative Procedure Act. All such Acts are federal statutes.

It is undisputed in the record before me that toxaphene, because of its dangerous properties, may not, under federal law, be used on grassland unless a specific exemption is first obtained from the Environmental Protection Agency (EPA).

Whether there is an emergency and whether it is a Grade 1, Grade 2, or Grade 3 emergency, is not the answer since this fact alone does not relieve any party from complying with the federal statutes and with the EPA regulations promulgated under those statutes.

Toxaphene is a substance which may not be used for the purpose authorized by the Environmental Protection Agency order of June 26, 1979, unless that order was entered consistent with the federal statutes that I have referred to, and consistent with the Environmental Protection Agency regulations.

Now, to examine the regulations. These are the EPA's regulations and have the force of law. I do find for the purpose of this proceeding that the applicant State of South Dakota, acting through its Department of Agriculture, failed to comply with Environmental Protection Agency Regulation 166.3 in applying for the specific toxaphene exemption here involved. Section 166.3, subparagraph 7, was not complied with in that the state's written application to the Environmental Protection Agency failed to contain an analysis of the adverse effects on man and the environment from use of toxaphene on 600,000 acres. That is a required part of any application on grassland in the state. This is not a minor technicality in light of the fact that the parties, present in the court, do not dispute that toxaphene is a carcinogen and that in addition to being harmful to fish and wildlife, toxaphene, as a carcinogen, is considered harmful to human beings, under conditions not yet fully understood. That is one of the reasons the Environmental Protection Agency is now conducting a study to determine whether toxaphene should be withdrawn from use so that it may not used as an insecticide for any purpose. I understand the study will perhaps be completed this fall. But at least as of now, there is sufficient evidence before me to find that toxaphene does have properties which could adversely affect man and the environment. Therefore, that is an important part of the application required of any applicant under the regulations. The application filed by the State Department of Agriculture and supplemented by a later writing by witness Kantack, as extension entomologist, was legally insufficient and not in compliance with that portion of the EPA regulations.

Also, under law, alternative insecticides must be indicated and considered in place of the substance (in this case toxaphene) which is banned for the use, but for which special permission is sought.

In this case, I find from the oral argument and testimony that malathion and sevin are alternative insecticides to control [9 ELR 20621] grasshoppers and are being used extensively in South Dakota at this time for such purpose. I do find that there is mention made in the state's application of alternative insecticides but the reference is merely conclusory in nature and is not the detailed discussion of this important consideration which the EPA regulations require. But for the record, I will say that I am primarily influenced by the failure to comply with § 166.3(7).

I cite and rely upon the case, Environmental Defense Fund, Inc. v. Blum, 458 F. Supp. 650 [8 ELR 20748], a 1978 District Court of the District of Columbia decision. Under the applicable statutes, orders and rules of EPA are open to judicial review. Such review would include a determination whether the EPA procedure was as required by the Administrative Procedure Act, and in that regard, it is conceded that the Environmental Protection Agency did not give notice or invite public comment before entry of the order of June 26, 1979, the order which is at issue here.

EPA argues that § 553(b)(B) of the Administrative Procedure Act (APA) authorizes it to dispense with notice and to dispense with the inviting of public comment which is ordinarily required before an administrative agency enters a final order of this nature. In the record before me, there is no finding, as required by § 553(b)(B), that the EPA had good cause for dispensing with notice and public comment. I find in the record before me nothing to indicate that the EPA found it impractical, unnecessary, or contrary to the public interest to invite public comment before issuing the rule. The EPA order at issue here was essentially an ex parte determination. The only information that came into the Agency consisted of matters which were secret between the applicant in this case and the Agency. Now, I don't wish to attach an onerous connotation to the term "secret" but it was secret in the sense that the general public, including all third parties who would have a legitimate interest, was kept in ignorance of the application until the order was entered.

We have clearly a question of law. Regardless of what my ruling might be if I were in the future presented with a written statement of the EPA which for reasons stated within the order did find that it was impractical, unnecessary or contrary to the public interest to give notice, there is no such statement before me now. I don't have to reach the point because there is nothing before me now which would constitute good cause for dispensing with notice by the EPA. I therefore find that § 553(b)(B) of the Administrative Procedure Act would not apply. Under § 553, the EPA was required to give notice before making an order allowing a specific exemption for toxaphene. However, the EPA failed to give notice and failed to allow public comment. Therefore, there was a violation of law in entering the EPA order involved here. Failure to allow comment is not something merely technical. Had comment been allowed, the order might not have been issued or may have contained modifications provding for strict monitoring of the use of the toxaphene.

Furthermore, I cannot conclude on this record that if the Fish and Wildlife Service of the United States were notified they would not have responded promptly and would not have been able to furnish information which the Environmental Protection Agency would find worthwhile. I rely on the Federal Register publication of May 1979, which indicates the willingness of the Environmental Protection Agency to receive information from the National Fish and Wildlife Service. There could well be profitable input regarding the precise locations or even general location within the state within which the agent, toxaphene, was to be used, the duration, and, since it wasn't contained in the application, an analysis of the possible adverse effects on man and the environment. I mention this because in passing on the granting or withholding of a temporary restraining order, I am to pay attention to the likelihood of success on the merits of the plaintiff, and I consider at this time, on this record, that there is a strong chance of plaintiff's success on the merits. I will add the caveat that I have not yet seen any order, nor have I considered the legal issue whether the Agency may make a post hoc order validly to comply with § 553(b)(B). That's not before me now, so I may decide that that can be done and that the notice wasn't required. This will still not reach the infirmities which appear in the application. As I indicated this morning — even if I were to find at the merits hearing that the Act had not been complied with, the limit of the court's jurisdiction would be to remand to the Environmental Protection Agency for compliance with the Act.

Now, in determining whether to grant or deny the temporary restraining order in this case, I have sought to balance the interests involved. I am strongly influenced by the fact that a good case has been made out for future success on the part of the plaintiff as far as being entitled to a remand to the EPA. The toxaphene will be, according to Mr. Kantack, used throughout the summer. On the other hand, there is a plan to use half the authorized amount within the next four or five days, and this would certainly be irreparable harm, if I view the toxaphene as now being used without lawful authority, and it would not be lawful authority if the statute has not been complied with by the state or the EPA. I also take into account the fact that grasshopper spraying will go on with the use of malathion and sevin.

There is nothing that I received during the hearing to indicate otherwise. All of the lands that have substantial acreage owned by the Department of the Interior will be treated with that, and all of the farmers and ranchers who are within the government program for the use of those insecticides will continue to have the benefit of those substances since they are registered and may be lawful insecticides. [The United States Department of Interior had, according to the record, no plans to use toxaphene even if authorized, but to use malathion and sevin instead.]

Concerning irreparable harm to the defendants: First of all, I note that the insecticides which have been authorized for use will continue to be used. There is nothing to indicate to met that they are not valuable insecticides. Furthermore, I am advised that the record of the Environmental Protection Agency concerning the order at issue can be ready for filing with the office of the clerk of this court within 10 days. That being true, I will order that all counsel may have 10 days thereafter within which to file briefs based upon the EPA Administrative record and at the conclusion of that time I will promptly hear oral arguments. I will also allow a three day period for rebuttal briefs if desired. That is, each of you may respond to the simultaneous brief of the other side within that time.I intend to act promptly when the case is thus submitted, which I anticipate will enable a merits ruling to be handed down in July.

The state's application does indicate that while it is termed an emergency, nonetheless it is set forth in the state's application that this is an annual problem in the state. It is something that could have been anticipated. I do not regard it as the court's fault or the fault of anybody in the courtroom that we are at this point in the summer with the substance toxaphene in a state of suspended animation. The statute has been there for enough years, regulations have been there for enough years, so they are there for all to follow and comply with. Congress authorized the use of substances such as toxaphene only on the basis that the statute and regulations would be carefully and fully complied with and I find on the record now before me that the law and regulations were violated and the temporary restraining order brought must therefore be issued.