INTRODUCTION The materials contained in this publication have been prepared in order to provide a convenient format for reviewing statutory and regulatory interpretations developed as a result of administrative proceedings held pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.s.c. 136 et seq.) (FIFRA). Each substantive judicial or administrative ruling, decision, and order issued pursuant to a suspension or cancellation proceeding under FIFRA after 1972 has been reviewed, summarized, and indexed by appropriate reference within this publication. In addition to providing a legal resource for Environmental Protection Agency (EPA) staff attorneys, Adminis- trative Law Judges, the Administrator, Judicial Officers, and others involved in administrative decisioninakirig under FIFRA, publication of this document constitutes compliance with Section 552(a)(2)(C) of the Administrative Procedure Act which requires that the agency maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, an.d required to be made available or published. Instructions for Use Reference sheets have been developed for each statutory, regulatory, or other reference found in the FIFRA orders. The publication is divided into sections by general headings, e.g., 40 CFR Part 164. Tabs are included to separate each general heading into subheadings or references such as FIFRA §6(b) or 40 CFR §164.30. Within each subheading group specific references are filed in reverse order by date. Thus, a reference to FIFRA §6(b) issued on March 18, 1974 will precede a reference dated January 1, 1974. In this way, the most recent reference by subheading will be the first one and will reflect the current interpretation of a reference in those cases where the interpretation has changed. Each reference sheet identifies the case name, FIFRA Docket number, title of order, date of order, and presiding officer. It contains an abstract of the order’s contents relative to the particular reference in question. This publication is intended for use as a research tool only and is not to be cited in documents prepared by EPA attorneys for purposes of litigation. All citations should be to the original orders which are filed in the Hearing Clerk’s Office. A complete set of the orders summarized in this publication is also available for use by EPA employees in Room 535, West Tower, EPA. ------- —2— Narrative Reference Subheadings In addition to the general heading categories such as FIFRA, 40 CFR and FDCA, an “Other” category has been included. Review of the orders produced certain subheadings which could not be related to particular statutory or regulatory sections. These subheadings are included under narrative descriptors in the “Other” section. Cross References In many instances a specific reference sheet identifies a cross—reference to another statutory or regulatory section or a narrative descriptor subheading. In those cases the reference is included under both the specific subheading(s) and the cross— reference(s). This was done because of the large number of references to certain statutory sections (e.g., FIFRA §6(b)). It is possible to search under the statutory reference and utilize the cross—reference identification on the bottom of the reference sheets to identify other relevant statutory, regulatory or other references. For example, both FIFRA §6(b) and 40 CFR §164.6(b) address time deadlines for requesting hearings. Both subheadings should be consulted to ensure all relevant references have been identified, even though, to a certain degree, the references will be duplicative. Updates As new orders are issued, the Pesticides/Toxic Substances Division attorney with lead responsibility for the case will be responsible for ensuring that the order is abstracted, appropriate reference sheets are prepared and distributed, and a copy of the order is filed with the other orders. In this way the publication will be kept current. ------- FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT ------- T!PRA •2(bb) ------- REFERENCE: FIFRA §2(bb) CASE NAME: Kepone DOCKET #: 392 TITLE: Order Granting Motion to Dismiss and Order to File Proposed Findings, Conclusions, and Order DATE: September 27, 1977 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: In making a determination concerning unreasonable adverse effects on the environment, the Act provides that the Administrator shall take into account “the economic, social and environmental costs and benefits of the use of any pesticide.” Impact on the manufacturer is not a relevant consideration. CROSS REFERENCE: 40 CFR §162.11(b) ------- REFERENCE: FIFRA §2(bb) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Ruling on Applicability DATE: April 27, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Definition of “any unreasonable risk to man or environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide”. CROSS REFERENCES: ------- REFERENCE: FIFRA §2(bb) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: FIFRA requires balancing of risks. FIFRA does not establish absolute degree above or below which a pesticide must or should be cancelled. AU found some risks insufficient to warrant cancel— lation of some uses; therefore, burden of proof on registrants not impossible. They met the standard as to some uses. Administrator disagrees with ALPs weighing of relative risks and benefits with respect to some uses. CROSS REFERENCES: 40 CFR §164.80(b) FIFRA §6(b) 40 CFR §162.11 ------- REFERENCE: FIFRA §2(bb) CASE NAME: Chapman Chern. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Fact that other sources of mercury exist and may also cause some degree of risk in no way diminishes need to assess particular risks associated with pesticides. Each separate avenue of risk is increased by very existence of other avenues of risk. §6(b)—risks determined for particular pesticide uses are to be determined solely in relation to benefits of their use. No weighing allowed against non—FIFRA risks. CROSS REFERENCES: FIFRA §6(b) ------- REFERENCE: FIFRA §2(bb) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Respondent has established proof of actual harm to man or environment from use of mercurial pesticides. Minimata and other tragedies relevant since they are examples of extreme hazard of methylmercury. Under §6(b) Administrator must examine whatever risks may be posed by pesticidal use of mercury, even in absence of proof positive that methylmercury poisoning has resulted from use of mercurial pesticides. Administrator need not and should not refrain from taking action until day that confirmation of potential risk or suspected hazards results in tragedy. Cites EF F v. Ruckeishaus , 439 F.2d 584 (D.C. 1971) and other cases. CROSS REFERENCES: FIFRA §6(b) 40 CFR §164.80(a) ------- REFERENCE: FIFRA §2(bb) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: FIFRA §2(bb) and §6(b) require a risk/benefit assessment of evidence adduced at a cance]lation (or suspension) hearing. ( See EDF v. EPA , 465 F.2d 528, 538 (C.A.D.C. 1972; EDF v. EPA , 510 F.2d 1292, 1302 (C.A.D.C. 1975). FIFRA does not specify that any specific level or magnitude of risks must be found before a pesticide may be cancelled. Requires finding of “unreasonable” risk. A finding of risk, if it is unreasonable in relation to benefits of continued use, is sufficient to warrant cancellation. Not necessary to establish threshhold to trigger risk! benefit assessment. AU’s characterization of risks as “minimal” does not preclude cancellati.on. CROSS REFERENCES: FIFRA §6(b) 40 CFR §162.11 ------- REFERENCE: FIFRA §2(bb) CASE NAME: Velsicol Chem. Co. (Heptachlor/Chlordane Suspension) DOCKET #: 384 TITLE; Decision of the Administrator on the Suspension of Heptachlor-Chlordane and Order DATE: December 24, 1975 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: FIFRA § 6(c)(1), 2(e), and 2(bb) provide that suspen- sion depends on a finding that continued use during time required for cancellation proceeding would be likely to result in any unreasonable risk taking into account benefits. Question of reasonableness depends on risk—benefit assessment. Not necessary to find conclusively that harm will occur. Propriety of suspension turns on risk—benefit balancing. Mere fact that evidence is not complete is not a reason to deny suspension. Held: ground given by AU (no conclusive evidence on carcinogeriicity) in determining not to recommend suspension is difficult as a matter of law. AU failed to adequately weigh risks in relation to benefits. Likelihood of risk to man rather than conclusiveness of evidence is basis for suspension. Burden of proof of safety on registrant, so inconclusive evidence favors position of agency. CROSS REFERENCES: FIFRA §6(c)(1) FIFRA §2(e) ------- REFERENCE: FIFRA §2(bb) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Initial Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Use for following purposes will not generally cause unreasonable adverse effects and registrations for such uses should not be cancelled. (1) as in—can paint preservative, (2) as fungicide in paints and coatings, (3) as fungicide on golf course greens to control snow mold, (4) as fungicide in treating textiles, and (5) as fungicide to control brown mold on freshly sawn lumber. Use of mercury containing pesticides for all other purposes will cause unrea- sonable adverse effects and should be cancelled including: (1) other use in paints, (2) other uses on golf course greens as fungicide, (3) all use for seed treatments, (4) to control Dutch elm disease, arid (5) all uses for any material that could be used as wearing apparel and other uses for textiles except those listed in decision as not cancelled. CROSS REFERENCES: ------- REFERENCE: FIFRA S2(bb) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Initial Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: In those cases where there are no adequate or effective substitutes, benefits outweigh risks. Where there are substitutes whatever risks there may be outweigh the benefits. Final decision re cancellation depends on intricate balance struck between benefits and dangers to the public health and welfare resulting from (a product t s) use. EDF v. EPA , 465 F.2d 528 (C.A.D.C. 1972) CROSS REFERENCES: FIFRA §6(b) 40 CFR §164.80 ------- REFERENCE: FIFRA §2(bb) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET *: 246 TITLE: Initial Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Burden on registrants to prove that use of their pesticides when used in accordance with widespread and commonly recognized practices will not generally cause “unreasonable adverse effects on the environ- ment” (taking into account economic, social and environmental costs and benefits). CROSS REFERENCES: 40 CFR §164.80 40 CFR §162.11(b) ------- REFERENCE: FIFRA §2(bb) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET *: 336 TITLE: Notice of Intent to Suspend and Findings of Imminent Hazard Posed by Registrations of Pesticides Containing Heptachior or Chlordane DATE: August 1, 1975 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Defines “unreasonable adverse effects on the environment”. CROSS REFERENCES: 40 CFR §162.11 ------- PIFM •2(e) ------- REFERENCE: FIFRA §2(e) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Decision of the Administrator on the Suspension of Heptachior—Chiordane and Order DATE: December 24, 1975 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: FIFRA § 6(c)(l), 2(e), and 2(bb) provide that suspen— Sian depends on a finding that continued use during time required for cancellation proceeding would be likely to result in any unreasonable risk taking into account benefits. Question of reasonableness depends on risk—benefit assessment. Not necessary to find conclusively that harm will occur. Propriety of suspension turns on risk—benefit balancing. Mere fact that evidence is not complete is not a reason to deny suspension. Held: ground given by AU (no conclusive evidence on carcinogenicity) in determining not to recommend suspension is difficult as a matter of law. AU failed to adequately weigh risks in relation to benefits. Likelihood of risk to man rather than conclusiveness of evidence is basis for suspension. Burden of proof of safety on registrant, so inconclusive evidence favors position of agency. CROSS REFERENCES: FIFRA §6(c)(l) FIFRA §2(bb) ------- FIFRA §2(1.) ------- REFERENCE: FIFRA §2(1) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET *: 384 TITLE: Decision of the Administrator on the Suspension of Heptachlor—Chlordane and Order DATE: December 24, 1975 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: AU did not conduct adequately the kind of risk! benefit balancing process which the law and Agency policy require. In a suspension proceeding (unlike a cancellation proceeding) EPA is not specifically required to balance possible benefits against the environmental and health risks of pesticide use. However, Administrator has statutory power to do so and Agency policy is to do so. Responsibility to demonstrate that benefits outweigh risks is on proponent of continued registration. The law does not require explicit evaluation of all relevant testimony when that is not necessary to deal with salient grounds of - objection and would preclude practical use of the suspension provisions. Sufficient that there is substantial evidence and court is able to discern fair import of Administrator’s reasoning ( EDF v. EPA , 510 F.2d 1304). Concludes there is a substantial Likelihood of serious harm to man or environment. Also finds imminent hazard based on unreasonable human health risk. Some uses suspended, others not, based on risk/benefit assessment. CROSS REFERENCES: FIFRA §6(c) (Risk—benefit) ------- REFERENCE: FIFRA §2(1) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Recommended Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Administrator’s findings of imminent hazard were adequate to support Notice of Intent to Suspend (cf. aldrin/dieldnin, EDF v. EPA) . Notice of Intent to Suspend in reality comparable to a conventional complaint instituting an administrative proceeding. No prejudgment by Administrator found. CROSS REFERENCES: FIFRA §6(c) 40 CFR §164.120 ------- REFERENCE: FIFRA §2(1) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Recommended Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Imminent hazard not limited to a concept of crisis. Enough if there is a substantial likelihood that serious harm will be experienced. Conclude that heptachior and its metabolite appear to be a carcinogen in the mouse and may be a carcinogen in the rat . That chiordane appears to be a carcinogen in the mouse. Hesitantly unwilling at this time to find B/C are conclusively carcinogens in lab animals. Therefore, cannot find imminent hazard. Heptachior presents more of a risk than ch].ordane. (This is only recommended——in fact not accepted in full by Administrator). CROSS REFERENCES: 40 CFR §164.120 FIFRA §6(c) ------- REFERENCE: FIFRA §2(1) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET *: 336 TITLE: Notice of Intent to Suspend and Findings of Imminent Hazard Posed by Registrations of Pesticides Co&taining Heptachlor or Chlordane DATE: August 1, 1975 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Defines “imminent hazard”. Not limited to a concept of crisis; “substantial likelihood” enough. Burden of proof of establishing safety of a product is on the registrant. CROSS REFERENCES: 40 CFR §162.3(r) ------- REFERENCE: FIFRA §2(1) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET #: 145 TITLE: Opinion of the Administrator and Order DATE: October 1, 1974 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: Risks of aldrin/dieldrin use not outweighed by benefits. Alternatives available. CROSS REFERENCES: FIFRA §6(c) (Risk/Benefit) ------- FIFRA §2(1) Shell Chemical Co. (Aldrin/Dieldrin Suspension) of the Administrator and Order 1, 1974 Russell E. Train, Administrator of irmninent hazard for aldrin/dieldrin. REFERENCE: CASE NAME: DOCKET #: 145 TITLE: Opinion DATE: October PRESIDING OFFICIAL: ABSTRACT: Finding CROSS REFERENCES: FIFRA §6(c) (Imminent hazard) ------- REFERENCE: FIFRA §2(1) (No—effect Level) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET #: 145 TITLE: Opinion of the Administrator and Order DATE: October 1, 1974 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: Impossible to establish a ‘safe’ level of exposure to aldrin/dieldrin for man. CROSS REFERENCES: ------- REFERENCE: FIFRA §2(1) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrirt Suspension) DOCKET #: 145 TITLE: Opinion of the Administrator and Order DATE: October 1, 1974 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: Suspension mandated when there is “imminent hazard”. May be declared at any stage of administrative review process, either upon receipt of new evidence or after reevaluation of existing evidence. Suspension order resembles preliminary injunction and immediately halts production and distribution and remains in effect until cancellation hearing is completed and a final decision is made by Administrator. Since sus- pension order is a temporary decision, EPA has taken position that it has a continuing responsibility to review suspension decisions. Here, suspension notice issued after two previous reviews failed to find “imminent hazard”. CROSS REFERENCES: FIFRA §6(c) (imminent hazard) 40 CFR §164.120 ------- REFERENCE: FIFRA §2(1) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET #: 145 TITLE: Opinion of the Administrator and Order DATE: October 1, 1974 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: “Imminent hazard” not restricted to crises. CROSS REFERENCES: FIFRA §6(c) 40 CFR §164.120 ------- REFERENCE: FIFRA §2(1) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Risk—benefit analysis required by statute even with respect to “imminent hazard”. Risk here clearly one of cancer. Balanced against benefit, especially 1975 corn crop in drought year. (Aidrin) AU does not believe availability of Aldrin or lack thereof will significantly affect 1975 corn crop or other uses. (p. 74). • CROSS REFERENCES: FIFRA §6(c)(l) (“Imminent hazard”) 40 CFR §164.21(g) ------- REFERENCE: FIFRA §2(1) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET *: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Failure on previous occasions of Administrator to find no “imminent hazard” does not prevent him from finding it based on new information or reevaulation. CROSS REFERENCES: FIFPA §6(c)(1) (“Imminent hazard”) 40 CFR S164.21(g) ------- REFERENCE: FIFRA §2(1) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Suspension is to be based on potential or likely injury and need not be based upon demonstrable injury or certainty of future public harm. Here there is a cancer hazard. Registrations suspended to prevent “imminent hazard”. Reserve Mining (asbestos) case distinguished on the facts and differences in who has burden of proof. Under FIFRA burden of proving safety on registrant. CROSS REFERENCES: FIFRA S6(c) (“Imminent hazard”) 40 CFR §164.121(g) ------- REFERENCE: FIFRA §2(1) CASE NAME: Stevens Industries, et al. (DDT) DOCKET *: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrtive Law Judge ABSTRACT: DDT Advisory Committee detinition of imminent hazard (p.l0). CROSS REFERENCES: FIFRA §6(b)(2) 40 CFR §164.120 ------- FIFRA §2(q) ------- REFERENCE: FIFRA §2(g) CASE NAME: Dexol Industries DOCKET *: 255 TITLE: Recommended Order of Dismissal DATE: March 22, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Pesticide chemicals which cause adulteration of food under FDCA when used as directed are not per se misbranded and therefore, issues of fact in this regard may be raised in this forum ( Continental Cheniiste Corp. v. Ruckeishaus) . This case distin- guished from Continental Chemiste on the facts and therefore respondent’s Motion for Summary Entry of a Recommended Decision Affirming Cancellation granted. CROSS REFERENCES: FDCA §402(a)(1) FIFRA §12(a)(1)(E) ------- REFERENCE: FIFRA §2(q)(1)(F) CASE NAME: Science Products Co. et a].. (Zero Tolerance) DOCKET #: 245 TITLE: Order Denying Motions to Dismiss DATE: November 1, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: As a matter of law, use of any pesticide chemical for which no tolerances have been established under §408 of FDCA is deemed unsafe, and that as to any product containing it, “misbranding” necessarily results under FIFRA S2(q)(l)(F). CROSS REFERENCES: FDCA §408 ------- REFERENCE: FIFRA §2(q)(1)(F) CASE NAME: Dexol Industries DOCKET #: 255 TITLE: Recommended Order of Dismissal DATE: March 22, 1973 PRESIDING OFFICIAL: Perlman, Administrative Law Judge ABSTRACT: Pesticide chemical which is defined as unsafe under FDCA, the use of which on raw agricultural commodities results in adulteration is a violation of FIFRA §2(q)(l)(F). CROSS REFERENCES: FIFRA S12(a)(l)(E) FDCA §402 ------- FIFRA §2(u) ------- REFERENCE: FIFRA §2(u) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET if: 246 TITLE: Initial Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Mercury compounds used as pesticide when used as bactericide for in—can preservation of paint and as fungicide in paint and other coatings; as a fungicide in treatment of turf, seed textiles, wood and Dutch elm disease within purview of §2(u). CROSS REFERENCES: ------- FIPRA §3 ------- REFERENCE: FIFRA §3 CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Statement s to Basis for Settlement DATE: March 6, 1978 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: This disposition is without prejudice to any statutory right of any person to file a new registration under §3 or to file application to sell, distribute or use H/C for any use subject to this proceeding under any other section of FIFRA. CROSS REFERENCES: ------- VIFRA §3(c)(1) ------- REFERENCE: FIFRA §3(c)(l)(D) CASE NAME: 15 Herbicides Registrations — Velsicol DOCKET #: 483 TITLE: Decision DATE: April 24, 1980 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Appropriate remedy for improper granting of a registration as a result of registration application being filed and processed under procedures set forth in §2(c) of interim policy statement is not cancellation but, rather, appropriate remedy is for prior applicant to seek reasonable compensation from subsequent applicant as provided in §3(c)(1)(D). See FIFRA Docket No. 407. CROSS REFERENCES: 40 CFR §162.9 ------- FIFRA §3(c)(2) ------- REFERENCE: FIFRA §3(c)(2)(B) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Accelerated Decision DATE: June 16, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Failure to supply ordered information results in Accelerated Decision denying applications or can- celling registrations. CROSS REFERENCES: 40 CFR §164.91(a)(8) ------- REFERENCE: FIFRA §3(c)(2)(B) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Accelerated Decision DATE: June 7, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Failure to supply ordered information results in Accelerated Decision cancelling registrations or denying applications. CROSS REFERENCES: 40 CFR §164.91(a)(8) ------- REFERENCE: FIFRA §3(c)(2)(B) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Accelerated Decision DATE: May 12, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Failure to supply ordered data by certain date results in issuance of Accelerated Decision cancelling registrations or denying pending applications. CROSS REFERENCES: 40 CFR §164.91(a)(8) ------- FIFRA §3(c)(5) ------- REFERENCE: FIFR.A §3(c)(5) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Essentiality doctrine——an assurance by Congress that equally safe and effective pesticides can and should be registered without any preference among the various products. AU did not base his findings and conclusions solely on availability of substitutes and therefore did not violate essentiality doctrine, even though it was a pivotal consideration. CROSS REFERENCES: ------- REFERENCE: FIFRA §3(c)(5) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET *: 246 TITLE: Initial Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Administrator shall not make any lack of essentiality a criterion for denying registration of any pesticide. Where two pesticides meet the requirements of this paragraph, one should not be registered in preference to the other. This provision does not eliminate need for risk—benefit assessment in a cancellation proceeding. CROSS REFERENCES: ------- PIFRA §3(c)(6) ------- REFERENCE: FIFRA §3(c)(6) CASE NAME: Aceto Chemical Co. (Paraguat) DOCKET #: 484 TITLE: Accelerated Decision DATE: August 22, 1979 PRESIDING OFFICIAL: Nissen, Administrative Law Judge ABSTRACT: At least arguable that Assistant Administrator’s letter of March 19, 1979 may not have been intended as a notice of refusal to register under §3(c)(6) but that does not deprive AU of authority to conduct a hearing and grant such relief as may be appropriate. Failure to publish notice of refusal to register in Federal Register as required by §3(c)(6) should not prejudice Aceto as the applicant. CROSS REFERENCES: 40 CFR §162.11 (Denial of registration) ------- REFERENCE: FIFRA §3(c)(6) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Final Order DATE: March 6, 1978 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: All applications for registration of products containing H/C subject to Notice of Denial of Registration (5/21/75) or subsequent Notice of Denial are denied. CROSS REFERENCES: 40 CFR §164.21 ------- vim 16 ------- REFERENCE: FIFRA §6 CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Statement as to Basis for Settlement DATE: March 6, 1978 PRESIDING OFFICIAL: Castle, Administrator ABSTRACT: Order will provide for cancellation of all uses of E’/C at issue in this proceeding. Provides for transition period. Disposition based on health, economic and environmental considerations pertaining to U. S. Different conclusions may be appropriate in other countries. CROSS REFERENCES: ------- REFERENCE: FIFRA 6 CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET : 336 TITLE: Final Order DATE: March 6, 1978 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Cancels registration for all pesticide products containing H/C which are subject to Notice of Intent to Cancel (11/18/74). CROSS REFERENCES: ------- FIFRA §6(a) ------- REFERENCE: FIFRA §6(a)(1) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Sale and use of mercury compounds cancelled herein which are formulated into products on or before date of D&O shall be permitted in view of enormous diffi- culties which would be involved in collecting and disposing of them. CROSS REFERENCES: Existing Stocks ------- P1FRA §6(b) ------- REFERENCE: FIFRA S6(b) CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Order Terminating the DBCP Cancellation Hearing DATE: March 6, 1981 PRESIDING OFFICIAL: Walter Barber, Acting Administrator ABSTRACT: Hearing terminated based on requests for voluntary cancellation of all DBCP uses except on Hawaiian pineapples and agreed modification of label instructions for use of DBCP on Hawaiian pineapples. Notice of intent to cancel withdrawn. The right of any party to compel that a hearing continue must be premised on some dispute concerning an existing registration. No dispute remains re DBCP. Parties to hearing representing user groups have no independent right to prevent termination of hearings. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(b) (Purpose of notice) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Purpose of notice is to inform registrant of what action agency intends to take (not what action EDF intends to take). CROSS REFERENCES: Administrative Procedure Act, 5 U.S.C §554(b) ------- REFERENCE: FIFRA §6(b) (Adversely affected) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Legislative history of FIFRA demonstrates that “adversely affected” as used in §6(b) only includes registrants, users and other persons who want to stop proposed cancellation from going into effect. Cites McGill v. EPA , 593 F.2d 631 (5th Cir. 1979) re legislative history of §6(b). There must be some legally recognizable injury as a result of the proposed action in order for person to be “adversely affected”. Mere “interest” in the problem insufficient. EDF clearly not “adversely affected”. Distinction between standing to intervene in an administrative hearing and standing to obtain judical review of challenged administrative action. Cites K. Davis, Administrative Law Treatise, §8.11 at 564 (1958). Intervention affected by Agency rules and statutes not affecting standing to challenge. Problems of case or controversy do not affect inter’ Jention. Also, consequences different. Undue broadening of issues is a common ground for denying intervention. CROSS REFERENCES: 40 CFR §164.31 40 CFR §164.20(a) ------- REFERENCE: FIFRA S6(b) (Adversely affected) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Effect of Accelerated Decision was to rule that §6(d) hearing forum is not available to EDF. (Cites Shell Oil case, Docket #401). EDF seeks to have Shell Oil decision reversed. In Shell ALl held that scope of hearing cannot be expanded to include consideration of relief broader (ie., more restrictive) than that proposed in §6(b)(1) notice. CROSS REFERENCES: FIFRA §6(d) (Scope of hearing) ------- REFERENCE: FIFRA §6(b) (Timeliness of Request for Hearing) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Florida Citrus Mutual did not file its request for hearing until five days after deadline set in notice. FCM argues deadline specified in notice conflicts with §6(b) and thus unlawfully shortened 30 day deadline. FCM argues §6(b) should be interpreted to allow timeliness of a non—registrant’s request for hearing to be measured from either (1) 30 days following publication in Federal Register or (2) 30 days following any registrant’s receipt of the notice, which ever occurs later and that otherwise registrants would get more time than non—registrants. However, this interpretation could have opposite effect of giving all non—registrants more time than registrants if only one registrant receives notice after publica- tion in Fed. Register. Reasonable to assume Congress did not intend completely equal treatment between registrants and non—registrants. Reasonable to infer from legislative history that publication provision in §6(b) primarily intended for non—registrants. Its benefit to registrants incidental. Constructive notice by publication in Federal Register adequate when identity and location of affected person not known or readily ascertainable. CROSS REFERENCES: 40 CFR §164.20(a) 40 CFR §164.22(b) ------- REFERENCE: FIFRA §6(b) (Hearing Requests) CASE NAME: Aceto Chemical Co. (Paraquat) DOCKET *: 484 TITLE: Accelerated Decision DATE: August 22, 1979 PRESIDING OFFICIAL: Nissen, Administrative Law Judge ABSTRACT: Aceto did not request hearing wi.thin thirty days. Only issue is whether Aceto made necessary correc- tions. Where registrant has attempted to make required corrections, statute is not self—executing and registrant’s submission must be reviewed and determination made whether corrections have in fact been accomplished. “Makes the ncessary corrections, if possible” does not mean to the extent possible. Because corrections required here consist chiefly of promises of future action not intended to be accomplished within any specific time period, reasons are not present for statutory requirement that failure to request a hearing or to effect required corrections within thirty day period results in automatic cancellation. Here a final notice of cancellation was required. Because record contains evidence from which it can be inferred such a notice was sent to Aceto, unnces— sary to decide propriety of cancellation absent a final notice. CROSS REFERENCES: 40 CFR §164.22 ------- REFERENCE: FIFRA §6(b) (Notice of Intent to Cancel) CASE NAME: Aceto Chemical Co. (Paraquat) DOCKET *: 484 TITLE: Accelerated Decision DATE: August 22, 1979 PRESIDING OFFICIAL: Nissen, Administrative Law Judge ABSTRACT: Issue here is whether registration was validly can- celled. Threshhold question is whether petition sets forth claim upon which relief can be granted. Absent a notice of intent to cancel there is no authority to conduct a hearing under §6(b). Not reasonable to construe a letter notifying Aceto that its registration had been legally cancelled over four years previously as a notice of intent to cancel because it speaks in past tense rather than future tense. Held: No genuine issue of material fact here. Registration was legally and validly cancelled. CROSS REFERENCES: 40 CFR §164.21 ------- REFERENCE: FIFRA §6(b) (Adversely affected) CASE NAME: Environmental Defense Fund (Chlorobenzjlate) DOCKET t : 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Perlinan, Administrative Law Judge ABSTRACT: §6(b) is framed in terms of preventing proposed cancellation (conditional or otherwise) from occurring and not in terms of forcing a result not proposed by the Administrator. Here, EDF trying to force a more restrictive result. Under §6(b) person would be adversely affected by affirmative act of Administrator, not his failure to act. Section 16(a) provides remedy in latter case. CROSS REFERENCES: FIFRA §16(a) 40 CFR §164.20(a) ------- REFERENCE: FIFRA §6(b) (30 day deadline) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Perlman, Administrative Law Judge ABSTRACT: FIFRA itself imposes thirty day deadline for requesting hearings. Rules of Practice specifi- cally fashioned in response to statute and thirty day deadline. Other cases dismissed based on late filings. §164.6(b) does not apply to as serious a matter as the enlargement of statutory deadline and cannot be construed to enlarge the time or authorize Administrator to enlarge the time within which to file initial filings or objections in response to notice of intent to cancel, conditional or other- wise, pursuant to FIFRA §6(b)(1). Part of reason for special treatment is that registration would be cancelled by operation of law prior to filing of late objections. CROSS REFERENCES: 40 CFR §164.6(b) 40 CFR §164.20(a) ------- REFERENCE: FIFRA §6(b) (Timeliness of hearing requests) CASE NAME: DBCP DOCKET #: 401 et al. TITLE: Order Denying Motion of Ainvac to Amend its Objection and Cross—motion to Dismiss Ainvac DATE: January 22, 1979 PRESIDING OFFICIAL: Harwood, Adminstrative Law Judge ABSTRACT: Request for hearing for one specific use cannot be amended to add uses after 30—day period to request hearing has expired. Notice itself also required specific designation of uses. CROSS REFERENCES: 40 CFR S164.20(b) ------- REFERENCE: FIFRA §6(b) (Efficacy) CASE NAME: S. W. Cowley & Sons Mfg. Co. (arsenic trioxide) DOCKET #: 341 TITLE: Order Cancelling Registration DATE: October 28, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Not necessary to find that the product is hazardous to the environment in order to cancel. Issue here is efficacy which is also a basis for cancellation. Absense of complaints from the public does not prove a product is efficacious. Price of product not relevant to question of efficacy. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(b) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET t : 336 TITLE: Ruling on Applicability DATE: April 27, 1976 PRESIDING OFFICIAL: Perlman, Administrative Law Judge ABSTRACT: No useful purpose served in determining whether Sec. 1(2) is procedural or substantive. At most it is a clarification and refinement of Administrator’s duty in applying risk/benefit assessment herein. Cites legislative history. Congressional purpose to assure Agency takes cognizance of effect of its actions on agricultural economy at every step in decision process. Provides effective procedural mechanism for implementing preexisting statutory risk—benefit test. Sec. 1(2) applicable to these proceedings. No substantive rights of parties affected by the amendment. Hearing has not yet commenced. CROSS REFERENCES: 40 CFR §162.11(a)(5)(ii) ------- REFERENCE: FIFRA §6(b) (Benefits) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Ruling on Applicability DATE: April 27, 1976 PRESIDING OFFICIAL: Penman, Administratiye Law Judge ABSTRACT: Amendment to Act requiring Administrator to take into account impact of final action on production and prices of agricultural commodities, retail food prices, etc. Administrator’s notice of intent to cancel U/C was issued prior to this amendment and it is clear section 1(1) of this amendment is not appli- cable herein. CROSS REFERENCES: 40 CFR §162.ll(a)(5)(ii) ------- REFERENCE: FIFRA §6(b) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Respondent has established proof of actual harm to man or environment from use of mercurial pesticides. Minimata and other tragedies relevant since they are examples cf extreme hazard of methylmercury. Under S6(b) Administrator must examine whatever risks may be posed by pesticidal use of mercury, even in absence of proof positive that methylmercury poisoning has resulted from use of mercurial pesticides. Administrator need not and should not refrain from taking action until day that confirmation of potential risk or suspected hazards results in tragedy. Cites EDF v. Ruckeishaus , 439 F.2d 584 (D.A.DSC. 1971) and other cases. CROSS REFERENCES: FIFRA §2(bb) 40 CFR §164.80(a) ------- REFERENCE: FIFRA §6(b) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET f : 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: FIFRA requires balancing of risks. FIFRA does not establish absolute degree above or below which a pesticide must or should be cancelled. AIJ found some risks insufficient to warrant cancel- lation of some uses; therefore, burden of proof on registrants not impossible. They met the standard as to some uses. Administrator disagrees with AU’s weighing of relative risks and benefits with respect to some uses. CROSS REFERENCES: FIFRA §2(bb) 40 CFR §164.80(b) 40 CFR §162.11 ------- REFERENCE: FIFRA S6(b) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: FIFRA §2(bb) and S6(b) require a risk/benefit assessment of evidence adduced at a cancellation (or suspension) hearing. ( See EDF v. EPA , 465 F.2d 528, 538 (C.A.D.C. 1972; EDF v. EPA , 510 F.2d 1292, 1302 (C.A.D.C. 1975). FIFRA does not specify that any specific level or magnitude of risks must be found before a pesticide may be cancelled. Requires finding of “unreasonable” risk. A finding of any risk, if it is unreasonable in relation to benefits of continued use, is sufficient to warrant cancellation. Not necessary to establish threshhold to trigger risk/ benefit assessment. AU’s characterization of risks as “minimal” does not preclude cancellation. CROSS REFERENCES: FIFRA §2(bb) 40 CFR S162.ll ------- REFERENCE: FIFRA S6(b) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Fact that other sources of mercury exist and may also cause some degree of risk in no w y diminishes need to assess particular risks associated with pesticides. Each separate avenue of risk is increased by very existence of other avenues of risk. §6(b)—risks determined for particular pesticide uses are to be determined solely in relation to benefits of their use. No weighing allowed against non—FIFRA risks. CROSS REFERENCES: FIFRA S2(bb) ------- REFERENCE: FIFRA 6(b) CASE NAME: Chaprrian Chem. Co. (Mercury) DOCKET #: 246 TITLE: Initial Dedision DATE: December 12, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: In those cases where there are no adequate or effective substitutes, benefits cutweigh risks. Where there are substitutes whatever risks there may be outweigh the benefits. Final decision re cancellation depends on intricate balance struck between benefits and dangers to the public health and welfare resulting from (a product’s) use. EDF v. EPA , 465 F.2d 528 (C.A.D.C. 1972) CROSS REFERENCES: 40 CFR §164.80 FIFRA §2(bb) ------- REFERENCE: FIFRA §6(b) (Relationship to FDCA §408) CASE NAME: Bio—Labs Inc. (Consolidated into #245) DOCKET #: 297 TITLE: Initial Decision DATE: May 19, 1975 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: No residue—zero tolerance phase out issue (PR Notice 72—4). “No fault” clause. Bio—Labs found not to be at fault for delay in issuance of tolerance and therefore proceeding for cancellation dismissed. CROSS REFERENCES: FDCA §408 (Zero tolerance) ------- REFERENCE: FIFRA §6(b) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Order of Dismissal DATE: 4ay 9, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: EPA filed motion to dismiss as to Do—It—Yourself Pest Control, Inc. since its product produced little risk of environmental contamination. Technical errors by EPA. Dismissal of proceeding would technically result in cancellation of registration in issue. En reality EPA is seeking withdrawal of notice of intent to cancel. CROSS REFERENCES: 40 CFR §164.21 ------- REFERENCE: FIFRA §6(b) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Order to File DATE: May 2, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Company filing petition to intervene must file memoranda or brief, including referenàes to pertinent legislative history, with respect to meaning of phrase “by a person adversely affected by a notice” in context of its motion. CROSS REFERENCES: 40 CFR §164.31 ------- REFERENCE: FIFRA §6(b) (Relationship to FDCA §408) CASE NAME: Science Products Co. et al. (Zero Tolerance) DOCKET #: 245 TITLE: Order Denying Motions to Dismiss DATE: November 1, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Case involves registered uses for which no tolerances have been established. Registration of enumerated substances and indicated usages were directed to be cancelled unless all directions for such usages were deleted from labels. U.S. v. Ewig Bros . held that any pesticide chemicals used on raw agricultural commodities are declared “unsafe” under S408 unless exempted or used within prescribed tolerance limits (same conclusion as Dexol) . CROSS REFERENCES: FDCA §408 ------- REFERENCE: FIFRA §6(b) (Zero tolerance) CASE NAME: Science Products Co. et al. (Zero Tolerance) DOCKET *: 245 TITLE: Order Denying Motions to Dismiss DATE: November 1, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Allowed continuation of registration for pesticide use patterns accepted on a “no residue” or “zero tolerance” basis pending petitions for fir ite tolerances where lack of established tolerances not the fault of petitioners. Series of PR Notices phasing out no residue or zero tolerance registrations. “No fault” saving clause not applicable since fault for non—completion of these tolerance petitions lies with petitioners. CROSS REFERENCES: FDCA §408 (Zero tolerance) ------- REFERENCE: FIFRA §6(b) (Relationship to FDCA §408) CASE NAME: Science Products Co. et al. (Zero Tolerance) DOCKET #: 245 TITLE: Order Denying Motions to Dismiss DATE: November 1, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Found close relationship between §408 of FDCA and FIFRA. Registration cancelled. Question whether Dexol is applicable to current cases (Docket #245). Dexol agrees with holding in U.S. V. Ewig Bros . CROSS REFERENCES: FDCA §408 ------- REFERENCE: FIFRA §6(b) (Relationship to FDCA §408) CASE NAME: Science Products Co. et al. (Zero Tolerance) DOCKET #: 245 TITLE: Order Denying Motions to Dismiss DATE: November 1, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: This proceeding may not be utilized to determine what might be safe or acceptable limits of residue. §408 is the vehicle for that purpose. In this pro- ceeding if any residues are shown to be likely, by operation of law the product violates FIFRA and cancellation may result. CROSS REFERENCES: FDCA §408 ------- REFERENCE: FIFRA §6(b) (Relationship to FDCA §408) CASE NAME: Science Products Co. et al. (Zero Tolerance) DOCKET 1: 245 TITLE: Order Denying Motions to Dismiss DATE: November 1, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Closely related; but each represents a separate portion of the statutory scheme and each is governed by separate rules of procedure. Registrants may not forestall operation of cancellation provisions of FIFRA merely because they have succeeded in frustrating conclusive action on their tolerance petitions. CROSS REFERENCES: FDCA §408 ------- REFERENCE: FIFRA §6(b) (Notice of Withdrawal of Cancellation and Intent to Hold Hearings) CASE NAME: 2,4,5—T DOCKET #: 295 TITLE: (1) Notice of Withdrawal of Cancellation of 2,4,5—T on Rice and; (2) Notices of Withdrawal of Intent to Hold Hearings on All Registered Uses of 2,4,5—T etc; Statement DATE: June 24, 1974 PRESIDING OFFICIAL: J. Quarles, Assistant Administrator ABSTRACT: Notice of withdrawal of cancellation of 2,4,5—T on rice and notices of withdrawals of intent to hold hearings on all registered uses of 2,4,5—T and all registered uses of herbicides potentially containing tetrachiorodioxin, including Silvex and Erbon. Reason for withdrawal: sufficient TCDD residue monitoring requires more time. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(b) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order DATE: April 1, 1974 PRESIDING OFFICIAL: David A. Schuenke, Judicial Officer and Assistant Director for Legislation ABSTRACT: Question whether finding of widespread practice, unreasonable risk and costs and benefits are condition precedent to issuance of cancellation notice. Two portions of §6(b) are alternative. Can also cancel based on health and safety aspects associated with misbranding under old FIFRA. CROSS REFERENCES: 40 CFR §162.11(a) ------- REFERENCE: FIFRA §6(b) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order Denying Motions to Dismiss and Motion to Remand DATE: January 14, 1974 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Two separate bases for cancellation: (1) does not comply with provisions of Act, or (2) unreasonable adverse effects. These two situations are alter- natives. Legislative history clear. Purpose of 1972 amendments to provide for more complete regulation. FIFRA as amended does not require Administrator to take into account every economic, social and environ- mental cost and benefit before issuing Notice of Cancellation. Purpose of hearing is to present evidence on factors Administrator must take into account before he makes determination and issues an order. Possible existence of countervailing factors that would justify administrative decision to continue a registration despite substantial degree of risk does not justify failure to issue notice that triggers administrative process. Findings in notice adequately meet requirements of statute. CROSS REFERENCES: 40 CFR §164.21 ------- REFERENCE: FIFR.A §6(b) (Relation to FDCA) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Order Partially Granting Motion DATE: July 24, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Proceeding divided into two phases: 1) consideration of uses, including risks and benefits; 2) considera- tion of tolerances by Administrator after cancellation decision made. Such a procedure avoids duplication of evidence since §406 only applies if there is a cancellation. Previous order of Administrator had consolidated tolerance (rulemaking) proceeding into cancellation (adjudicatory) proceedings. Bifurcation insulates at least FIFRA cancellation proceedings from possible serious procedural questions. Persons concerned with tolerances will have opportunity to participate in registration segment of this proceeding as it relates to tolerances. CROSS REFERENCES: FDCA §406 FDCA §408 40 CFR Part 180 ------- REFERENCE: FIFRA §6(b) (Relationship to FCDA §408) CASE NAME: Dexol Industries DOCKET #: 255 TITLE: Recommended Order of Dismissal DATE: March 22, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Two related statutes should, whenever possible, be blended to reinforce their common purpose. Congressional intent that issuance or continuance of a tolerance under FDCA would usually be a con- dition precedent to issuance or continuance of a registration under FIFRA. Registrant cannot do indirectly (through registration) what he failed to do directly (get a tolerance established). CROSS REFERENCES: FDCA S408 ------- REFERENCE: FIFRA §6(b) (No tolerance) CASE NAME: Dexol Industries DOCKET #; 255 TITLE: Recommended Order of Dismissal DATE: March 22, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Registrant’s claim of financial inability does not alter decision to cancel registration. CROSS REFERENCES: FDCA §408 (Claim of Financial Inability to Obtain Residue Tolerance) ------- REFERENCE: FIFRA §6(b) CASE NAME: Stevens Industries, et al. (DDT) DOCKET #: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: While AU may rule on motion to dismiss objections filed by registrant and cancel registration, serious doubt exists as to AU’s authority to issue a final order of cancellation in a proceeding under the act. AU believes he lacks such authority under the act. CROSS REFERENCES: 40 CFR §164.90 40 CFR §164.103 ------- REFERENCE: FIFRA §6(b) (Widespread and commonly recognized practice) CASE NAME: Stevens Industries, Inc., et al. (DDT) DOCKET #: 63 TITLE: Opinion of the Administrator and Order DATE; June 14, 1972 PRESIDING OFFICIAL: William D. Ruckleshaus, Administrator ABSTRACT: Evidence of each alleged risk must be reviewed and a conclusion reached as to whether or not, and in what degree, such risk is incidental to the directed use of a particular product (p.10). CROSS REFERENCES: 40 CFR §162.1l(b)(l)(i) ------- FIFR §6(b)(1) ------- REFERENCE: FIFRA §6(b)(l) (Adversely affected) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Question whether EDF is a person “adversely affected” by §6(b)(1) notice. Held: EDF not person “adversely affected” since EDF seeks not to stop conditional cancellation from becoming final but rather to force a more restrictive action. Under §6(b) proposed action is self—executing. Therefore, standing conferred on persons seeking to stop such action. §16 applies. CROSS REFERENCES: FIFRA §16(a) 40 CFR §164.20(a) ------- REFERENCE: FIFRA §6(b)(1) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Proceeding under §6(b)(1) not an abstract academic exercise or scientific peer review. First two objections inextricably intermingled with EDF’s challenge that conditional registration not restric- tive enough. Will not substitute form for substance. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(b)(l) (Standing) CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET *: 401 TITLE: Decision on Interlocutory Appeal DATE: April 9, 1979 PRESIDING OFFICIAL: Ronald L. McCallum, Judicial Officer ABSTRACT: Administrative Law Judge’s ruling incorrect. Importance of role of §6(b)(l) notice in setting standard of relevance for conduct of the proceeding. Evolutionary change in FIFRA resulting in abandonment of “all—or—nothing” approach to cancellation. Administrator not limited to what has been proposed in notice of intent to cancel-—may amend original notice prior to commencement of hearing, consolidate proceedings, or broaden issues by consent of parties. Fairly narrow changes allowed. Notice determines standard of relevance——cannot expand scope of hearing to include matters not contained in notice of intent to cancel. To let parties’ own objections set scope of hearing (as Administrative Law Judge did) is contrary to statutory scheme. Administrator has authority to issue notice and thus establish standard of relevance. Cites history of pesticide regulation. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(b)(1) (Standing) CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Decision on Interlocutory Appeal DATE: April 9, 1979 PRESIDING OFFICIAL: Ronald L. McCallum, Judicial Officer ABSTRACT: Discussion supporting Administrator’s authority to issue conditional cancellation notices. EPA’S increased ability to tailor cancellation notice. CROSS REFERENCES: 40 CFR §162.11 ------- REFERENCE: FIFRA §6(b)(l) CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Decision on Interlocutory Appeal DATE: April 9, 1979 PRESIDING OFFICIAL: Ronald L. McCallum, Judicial Officer ABSTRACT: Issue is whether Administrative Law Judge can properly expand heariflg to consider whether DBCP pesticides which were conditionally cancelled should be uncondi- tionally cancelled (a more restrictive action than proposed in §6(b)(l) notice). Administrative Law Judge held Carlos P maya’s objections were proper and order can be more restrictive than §6(b)(l) notice. Subsequently, EPA issued §6(b)(2) notice regarding uses in question and also filed appeal on Admini- strative Law Judge’s ruling, claiming issue was moot since S6(b)(2) notice was issued. AU’s ruling held incorrect. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(b)(l) (Standing) CASE NAME: DBCP - Cancellation DOCKET #: 401 et al. TITLE: Order and Opinion Allowing Objectives DATE: January 18, 1979 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: Interprets FIFRA §6(b)(l) to permit hearing requests and objections filed by persons seeking more restrictive action than cancellation notice contemplates. Note: Prior to decision in EDF v. Costle (Chlorobenzilate) with opposite ruling as to hearing requests. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(b)(1) (Adequacy of Notice) CASE NAME: Science Products Co. et al. (Zero Tolerance) DOCKET #: 245 TITLE: Order Denying Motions to Dismiss DATE: November 1, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Registrancs claim PR Notices 72—4 and 73—5 do not meet requirements of FIFRA §6 that cancellation notice state “reasons (including factual basis) for the action.” Also claim notices refer to generic descriptions of substances rather than listing individual registrations affected. Held: factual basis clearly established; no lack of reasonable notice. CROSS REFERENCES: ------- FIFRA §6(b)(2) ------- REFERENCE: FIFRA §6(b)(2) CASE NAME: 15 Herbicides Registrations — Velsicol DOCKET #: 483 TITLE: Order Directing Respondent to File a Response DATE: November 14, 1979 PRESIDING OFFICIAL: Ronald L. McCallum, Judicial Officer ABSTRACT: Velsicol seeking summary judgment (on certification of interlocutory appeal to Administrator). Failure of Respondent to respond could lead to termination of proceeding. Question is discretionary basis of §6(b)(2) notice. CROSS REFERENCES: 40 CFR §164.91 ------- REFERENCE: FIFRA §6(b)(2) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Recommended Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Fact that an action is commenced under §6(b)(2) (i.e, Mirex) rather than §6(b)(1) would indicate less cause for questioning safety. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(b)(2) CASE NAME: 15 Herbicides Registrations — Velsicol DOCKET #: 483 TITLE: Certification of Ruling on Interlocutory Appeal to the Administrator DATE: October 15, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Under §164.100 ruling or order may be certified for interlocutory appeal to Administrator when its involves important question of law or policy concerning which there is substantial ground for difference of opinion and either (1) immediate appeal would advance ultimate termination of proceeding or (2) review after final decision will be inadequate or ineffective. Held: ruling in question here (denial of motion to dismiss) involves such a question and immediate appeal will advance termination of proceeding. Issue is discretionary basis of §6(b)(2) notices. CROSS REFERENCES: 40 CFR §164.100 ------- REFERENCE: FIFRA §6(b)(2) ‘CASE NAME: 15 Herbicides Registrations — Velsicol DOCKET *: 483 TITLE: Order Denying Motion by Velsicol to Dismiss Cancellation Proceeding or for Summary Judgment, and for Stay Pending Determination of Motion DATE: September 21, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Authority to issue notice of intent to hold hearing to determine whether or not to cancel is within sole discretion of Administrator and until such a hearing is held and issues stated therein are answered there is no authority to void such discretionary action. CROSS REFERENCES: 40 CFR §164.20(a) ------- REFERENCE: FIFRA §6(b)(2) tASE NAME: 15 Herbicides Registrations — Velsicol DOCKET #: 483 TITLE: Order Denying Motion by Velsicol to Dismiss Cancellation Proceeding or for Summary Judgment, and for Stay Pending Determination of Motion DATE: September 21, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: In previous case AU Levinson and Administrator thereafter held Dow had waived any claim to §10(b) trade secrets protection. However, to grant motion which claims Dow’s waiver precludes invalidation of Velsicol’s past registrations based on Dow’s claims under §10(b), will result, in effect, in a withdrawal of Administrator’s Notice of Intent to Hold a Hearing. Only the Administrator has that authority. CROSS REFERENCES: FIFRA §10(b) ------- REFERENCE: FIFRA §6(b)(2) CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Decision on Interlocutory Appeal DATE: April 9, 1979 PRESIDING OFFICIAL: Ronald L. McCallum, Judicial Officer ABSTRACT: Appeal of Administrative Law Judge’s ruling not mooted by subsequent issuance of §6(b)(2) notice because of unsettled status of §6(b)(2) notice, issues raised re §6(b)(2) notice likely to recur, overall importance of issues. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(b)(2) CASE NAME: Mirex DOCKET #: 293 TITLE: Order DATE: March 1, 1974 PRESIDING OFFICIAL: John R. Quarles, Deputy Administrator ABSTRACT: Orders restricting use during §6(b)(2) hearing. Extends order permitting USDA’S Mirex spray application program and monitoring for data on aquatic hazards. Includes conditions beyond labelling regarding pilot actions, required USDA findings before spraying, acreage limitations and surveillance, including EPA monitors. CROSS REFERENCES: Orders Adding Use Requirements Beyond Labelling ------- REFERENCE: FIFRA §6(b)(2) CASE NAME: In re: Use of Certain Rodenticides DOCKET #: 294 TITLE: Determination and Order DATE: December 3, 1973 PRESIDING OFFICIAL: J. Quarles, Deputy Administrator ABSTRACT: Hard scientific data needed to respond to the Statement of Issues does not now exist. Sufficient valid scientific and economic data do not exist at this time to justify continuation of procedures begun by June 19, 1973 Notice of Intent to hold a hearing. Notice of Intent withdrawn. EPA will undertake field studies to develop data. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(b)(2) CASE NAME: Stevens Industries, Inc., et al. (DDT) DOCKET #: 63 TITLE: Order Granting Motion DATE: January 22, 1973 PRESIDING OFFICIAL: Marshall Miller, Special Assistant to Administrator, Judicial Officer ABSTRACT: Motion sets forth good cause to grant Lilly’s request and permit Lilly to use a label designed more particu— larly to fit peculiar considerations applicable to its product rather than label required by Administrator’s order of 7/7/72. CROSS REFERENCE: 40 CFR §162.10 40 CFR §164.21 ------- FIFRA §6(c) ------- REFERENCE: FIFRA §6(c) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Notice of Intent to Cancel Registrations of Pesticide Products Containing DBCP DATE: October 29, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: This Notice satisfies requirements of §6(c) of FIFRA that suspension order be accompanied or preceded by notice under §6(b). Appears that a final §6(b)(2) would be legally sufficient to support suspension order under §6(c) because cancellation proceeding can be intiated either by a §6(b)(1) notice or a §6(b)(2) notice. This notice issued to avoid liti- gation over whether a §6(b)(2) notice (currently outstanding for DBCP) can support an order of suspension. CROSS REFERENCES: 40 CFR §164.122(b) ------- REFERENCE: FIFRA §6(c) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Suspension Order and Final Decision DATE; October 29, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Function of suspension decision is to make preliminary assessment, not ultimate resolution of difficult issues. Do not need complete evidence to suspend. Suspension an interim remedy. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(c) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Order Denying Field Hearings in Los Angeles DATE: August 16, 1979 PRESIDING OFFICIAL: ABSTRACT: Suspension proceeding entails a preliminary assessment of probability of harm, not ultimate resolution of difficult issues. Expedited process — statute sets short time limits. CROSS REFERENCES: 40 CFR §164.121(c) ------- REFERENCE: FIFRA §6(c) (Termination of suspension proceeding) CASE NAME: Dow Chemical Co. (2,4,5—T and Silvex Suspension) DOCKET #: 409 TITLE: Order Terminating the Suspension Proceeding DATE: May 18, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Since all parties have withdrawn from suspension hearing, proceeding terminated. Suspension orders final. CROSS REFERENCES: 40 CFR §164.121 ------- REFERENCE: FIFRA §6(c) (Risk—benefit) CASE NAME: Velsicol Chem. Co. (Heptachlor/Chlordane Suspension) DOCKET #: 384 TITLE: Decision of the Administrator on the Suspension of Heptachlor—Chlordane and Order DATE: December 24, 1975 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: AU did not conduct adequately the kind of risk! benefit balancing process which the law and Agency policy require. In a suspension proceeding (unlike a cancellation proceeding) EPA is not specifically required to balance possible benefits against the environmental and health risks of pesticide use. However, Administrator has statutory power to do so and Agency policy is to do so. Responsibility to demonstrate that benefits outweigh risks is on proponent of continued registration. The law does not require explicit evaluation of all relevant testimony when that is not necessary to deal with salient grounds of objection and would preclude practical use of the suspension provisions. Sufficient that there is substantial evidence and court is able to discern fair import of Administrator’s reasoning ( EDF v . EPA, 510 F.2d 1304). Concludes there is a substantial likelihood of serious harm to man or environment. Also finds imminent hazard based on unreasonable human health risk. Some uses suspended, others not, based on risk/benefit assessment. CROSS REFERENCES: FIFRA §2(1) ------- REFERENCE: FIFRA §6(c) (Benefit analysis) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET *: 384 TITLE: Recommended Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: AU recommends certain uses of Heptachior and Chiordane be continued during period of suspension assuming Administrator disagrees with him on issue of carcinogenicity and decides to suspend. Discussion of alternatives to heptachior and chiordane. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(c) (Burden of proof) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Recommended Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Administrator does not have burden of proving that a pesticide is unsafe. Burden of proving safety is on registrant. Function of suspension decision is to make a preliminary assessment of evidence and probabilities, not an ultimate resolution of difficult issues ( EDF v. EPA , 510 F.2d 1292, 1298 (D.C. Cir. 1975) ). CROSS REFERENCES: 40 CFR §164.121(g) ------- REFERENCE: FIFRA §6(c) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Recommended Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Imminent hazard not limited to a concept of crisis. Enough if there is a substantial likelihood that serious harm will be experienced. Conclude that heptachlor and its metabolite appear to be a carcinogen in the mouse and be a carcinogen in the rat. That chlordane appears to be a carcinogen in the mouse. Hesitantly unwilling at this time to find H/C are conclusively carcinogens in lab animals. Therefore, cannot find imminent hazard. Heptachlor presents more of a risk than chiordane. (This is only recommended—— in fact not accepted in full by Administrator). CROSS REFERENCES: 40 CFR §164.120 FIFRA §2(1) ------- REFERENCE: FIFRA S6(c) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Recommended Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Notice of Intent to Suspend issued on basis of additional matters, some of which Velsicol did not timely call to Administrator’s attention as was its statutory duty. Cannot say Administrator was arbi- trary in issuance of Notice. CROSS REFERENCES: 40 CFR §164.120 ------- REFERENCE: FIFRA §6(c) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Recommended Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Administrator’s findings of imminent hazard were adequate to support Notice of Intent to Suspend (cf. aldrin/dieldrin, EDF v. EPA) . Notice of Intent to Suspend in reality comparable to a conventional complaint instituting an administrative proceeding. No prejudgment by Administrator found. CROSS REFERENCES: FIFRA §2(1) 40 CFR §164.120 ------- REFERENCE: FIFRA §6(c) (Suspension/cancellation relationship) CASE NAME: Velsicol Chem. Co. (Heptachlor/Chlordane Suspension) DOCKET #: 384 TITLE: Notice of Denial of Request for Interlocutory Review and Reconsideration by the Administrator DATE: October 2, 1975 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: Velsicol challenges order holding cancellation proceeding in abeyance pending outcome of suspension proceeding. Cancellation can take as much as 18 months during which time product can be marketed. Suspension notice requires finding of “imminent hazard”. Purpose of suspension proceeding to determine if imminent hazard exists and whether to cease marketing etc. pending cancellation. No basis in law or judicious use of Agency resources to warrant simultaneous adjudications of issues involved in cancellation and suspension proceedings. Implicit in law’s provision for expedited suspension proceedings is notion that once imminent hazard finding is made, issues presented in suspension action should be adjudicated first, even if it interrupts cancellation proceeding. No prejudice to registrant since product can be marketed etc. during 4—5 months suspension proceeding takes. CROSS REFERENCES: 40 CFR §164.120 ------- REFERENCE: FIFRA §6(c) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET *: 336 TITLE: Notice of Intent to Suspend and Findings of Imminent Hazard Posed by Registrations of Pesticides Containing Heptachior or Chiordane DATE: August 1, 1975 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Notice of intent to suspend based on evidence of human cancer hazard (imminent hazard) pending outcome of cancellation hearing. The function of suspension is to make a preliminary assessment of evidence and probabilities, not ultimate resolution. Enough that administrative record contain respectable scientific authority supporting the Administrator. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(c) (Imminent hazard) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET 1 : 145 TITLE: Opinion of the Administrator and Order DATE: October 1, 1974 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: Finding of imminent hazard for aldrin/dieldrin. CROSS REFERENCES: FIFRA §2(1) ------- REFERENCE: FIFRA §6(c) (Risk/Benefit) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET *: 145 TITLE: Opinion of the Administrator and Order DATE: October 1, 1974 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: Risks of aldrin/dieldrin use not outweighed by benefits. Alternatives available. CROSS REFERENCES: FIFRA §2(1) ------- REFERENCE: FIFRA §6(c) (Imminent hazard) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET #: 145 TITLE: Opinion of the Administrator and Order DATE: October 1, 1974 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: Suspension mandated when there is “imminent hazard”. May be declared at any stage of administrative review process, either upon receipt of new evidence or after reevaluation of existing evidence. Suspension order resembles preliminary injunction and immediately halts production and distribution and remains in effect until cancellation hearing is completed and a final decision is made by Administrator. Since sus- pension order is a temporary decision, EPA has taken position that it has a continuing responsibility to review suspension decisions. Here, suspension notice issued after two previous reviews failed to find “imminent hazard”. CROSS REFERENCES: FIFRA §2(1) 40 CFR §164.120 ------- REFERENCE: FIFRA §6(c) (Risk/Benefit Analysis) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET #: 145 TITLE: Opinion of the Administrator and Order DATE: October 1, 1974 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: In a suspension proceeding, unlike a cancellation proceeding, EPA not required to balance possible benefits against environmental and health risks of pesticide usage. No absolute need for analysis of benefits. However, Agency has traditionally done so. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(c) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET #: 145 TITLE: Opinion of the Administrator and Order DATE: October 1, 1974 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: “Imminent hazard” not restricted to crises. CROSS REFERENCES: FIFRA §2(1) 40 CFR §164.120 ------- REFERENCE: FIFRA §6(c) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Suspension proceedings are not but a phase or part of the cancellation proceedings, even though Notice to Suspend based largely upon evidence adduced in cancel- lation hearing. Does not violate 5 U.S.C. 554(d) (APA). CROSS REFERENCES: Administrative Procedure Act, 5 U.S.C. §554(d) ------- REFERENCE: FIFRA §6(c) (“Imminent hazard”) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Suspension is to be based on potential or likely injury and need not be based upon demonstrable injury or certainty of future public harm. Here there is a cancer hazard. Registrations suspended to prevent “imminent hazard”. Reserve Mining (asbestos) case distinguished on the facts and differences in who has burden of proof. Under FIFRA burden of proving safety on registrant. CROSS REFERENCES: FIFRA §2(1) 40 CFR §164.121(g) ------- REFERENCE: FIFRA §6(c) CASE NAME: Stevens Industries, et al. (DDT) DOCKET #: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: DDT Advisory Committee definition of imminent hazard, (p. 10). CROSS REFERENCES: FIFRA §2(1) 40 CFR §164.120 ------- FIFRA §6(c)(1) ------- REFERENCE: FIFRA §6(c)(l) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Recommended Decision DATE: October 20, 1979 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: Suspension hearing to decide if there is substantial likelihood that serious harm will be experienced during time it takes to complete cancellation proceeding. A preliminary assessment, not ultimate resolution of issues. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(c)(l) CASE NAME: Velsicol Chen. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Decision of the Administrator on the Suspension of Heptachlor—Chlordane and Order DATE: December 24, 1975 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: FIFRA §S6(c)(l), 2(e), and 2(bb) provide that suspen- sion depends on a finding that continued use during time required for cancellation proceeding would be likely to result in any unreasonable risk taking into account benefits. Question of reasonableness depends on risk—benefit assessment. Not necessary to find conclusively that harm will occur. Propriety of suspension turns on risk—benefit balancing. Mere fact that evidence is not complete is not a reason to deny suspension. Held: ground given by AU (no conclusive evidence on carcinogenicity) in determining not to recommend suspension is difficult as a matter of law. AU failed to adequately weigh risks in relation to benefits. Likelihood of risk to man rather than conclusiveness of evidence is basis for suspension. Burden of proof of safety on registrant, so inconclusive evidence favors position of agency. CROSS REFERENCES: FIFRA §2(e) FIFRA §2(bb) ------- REFERENCE: FIFRA §6(c)(1) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Notice of Intent to Suspend and Findings of Imminent Hazard Posed by Registrations of Pesticides Containing Heptachlor or Chiordane DATE: August 1, 1975 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Findings of imminent hazard (p. 11—17) which shall constitute the issues to be adjudicated at suspension hearing, if hearing is requested. CROSS REFERENCES: 40 CFR §164.121(c) ------- REFERENCE: FIFRA §6(c)(1) (“Imminent hazard”) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Risk—benefit analysis required by statute even with respect to “imminent hazard”. Risk here clearly one of cancer. Balanced against benefit, especially 1975 corn crop in drought year. (Aldrin) AU does not believe availability of Aldrin or lack thereof will significantly affect 1975 corn crop or other uses. (p. 74). CROSS REFERENCES: FIFRA §2(1) 40 CFR §164.21(g) ------- REFERENCE: FIFRA §6(c)(1) (“Imminent hazard”) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Failure on previous occasions of Administrator to find no “imminent hazard” does not prevent him from finding it based on new information or reevaulation. CROSS REFERENCES: FIFRA §2(1) 40 CFR §164.21(g) ------- PIFRA §6(c)(2) ------- REFERENCE: FIFRA S6(c)(2) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Denial of Petition for Withdrawal of Suspension Notice DATE: September 10, 1979 PRESIDING OFFICIAL: Douglas M. Costle, Administrator ABSTRACT: Administrator’s 60 day deadline for completion of process not a violation of due process principles embodied in APA. Case citations. Ainvac’s claims of unfairness are premature (filed before First Pre— hearing Conference). Whether 60 day deadline results in unfairness can only be answered during course of proceedings. Can later move for extension of deadline if necessary upon recommendation of presiding officer and for good cause. CROSS REFERENCES: 40 CFR §164.121(d) 40 CFR §164.2(g) 40 CFR §164.121(j) ------- FIFR.A 6(d) ------- REFERENCE: FIFRA §6(d) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Denying Motion by NCAP to Refer Questions to NAS DATE: February 24, 1982 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: FIFRA §6(d) permits AU to refer relevant questions of scientific fact to committee of NAS. AU must find it is either “necessary or desirable”—not auto- matic. No demonstration here by NCAP of “necessary or desirable”. CROSS REFERENCES: 40 CFR §164.50(e) ------- REFERENCE: FIFRA §6(d) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Denying Motion by NCAP to Refer Questions to NAS DATE: February 24, 1982 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Where request for referral to NAS made at public hearing, parties are directed to file proposed questions for consideration by AU under “necessary and desirable” standard. CROSS REFERENCES: 40 CFR §l64.50(e)(2) ------- REFERENCE: FIFRA §6(d) (Subpoenas) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Granting Motion for Compulsory Process Regarding 50 ppt Study Against Dr. Allen, et al. DATE: July 16, 1980 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Dr. Allen, et al. declined to comply with subpoenas issued pursuant to order of AU. Therefore, Respon- dent has moved to compel production. §6(d) authorizes AU to issue a subpoena to compel production upon showing of relevance and reasonable scope of evidence. CROSS REFERENCES: 40 CFR §164.70 ------- REFERENCE: FIFRA §6(d) (Subpoenas) CASE NAME: Dow Chemical Co. (2,4 ,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Granting Motion for Compulsory Process Regarding 50 ppt Study Against Dr. Allen, et al. DATE: July 16, 1980 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Allows AU to issue subpoenas sua sponte or upon a showing by applicant that evidence sought is relevant and material or that sought discovery pursuant to S164.51 meets standards set forth therein. Records sought here will provide evidence that satisfy “rele- vant and material” standard of §164.70(a) and have significant probative value. Motion granted. CROSS REFEPF.NCES: 40 CFR §l 64 .70(a) ------- REFERENCE: FIFRA §6(d) (Subpoenas) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Granting Motion for Compulsory Process Regarding 50 ppt Study Against Dr. Allen, et al. DATE: July 16, 1980 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Evidence sought here satisfies the criteria for “other discovery” in §164.51. Documents can only be obtained through issuance of subpoenas. Production necessary to fully access other data. Therefore, the documents contain information that has “significant probative value”. CROSS REFERENCES: 40 CFR §164.51 40 CFR §164.70 ------- REFERENCE: FIFRA §6(d) CASE NAME: Shell Oil Co. (DBCP Suspension) DOCKET #: 401 TITLE: Order Denying Requests for Referral of Questions to a Committee of the National Academy of Sciences DATE: June 23, 1980 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: Requests for referral to WAS must be accompanied by reasons supporting request. No reasons given here. Expert testimony on the record will provide answers to the questions — referral to NAS unnecessary. Referral to NAS to be used only where scientific information material to the issues cannot be obtained by other means reasonably available to the parties. Not intended to relieve party of obligation to present its evidence. CROSS REFERENCES: 40 CFR §164.50(e)(2) ------- REFERENCE: FIFRA §6(d) (Subpoenas) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Granting Motion by Dow for Enforcement of Subpoena Duces Tecum Against Dr. Allen DATE: May 20, 1980 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Re: 50 ppt study. Dow’s motion granted. Matter forwarded to 0CC, EPA for transmittal to Dept. of Justice for appropriate action. CROSS REFERENCES: 40 CFR §164.70(a) ------- REFERENCE: FIFRA §6(d) (Subpoenas) CASE NAME: Dow Chemical Co. (2,45—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Granting in Part and Denying in Part Motion for Compulsory Document Production Against Dr. James Allen DATE: February 1, 1980 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Subpoenas issued pursuant to 40 CFR §164.70 which states AU shall be guided by Federal Rules of Civil Procedures. In spirit of Rule 45 FRCP, AU will entertain motion to quash or modify if filed timely and contains specific statements as listed in Order. Issuance of subpoenas not considered as precedent for discovery. Uncertainties are the overriding factor. Motion for Compulsory Document Production as to one study denied since study was nonsubstantive as to probative value. CROSS REFERENCES: 40 CFR §164.70 Federal Rules of Civil Procedure, Rule 45 ------- REFERENCE: FIFRA §6(d) (Exhaustion of administrative remedies) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET 4 1: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Issue: What avenue of administrative relief is EDF (whose objections were dismissed) entitled to pursue in order to have requested relief either granted or denied (and thus finalized). It is by filing objec- tions in adjudicatory hearing forum under §6(d) or by invoking less formal administrative procedures. CROSS REFERENCES: FIFRA §16(a) (Exhaustion of administrative remedies) ------- REFERENCE: FIFRA §6(d) (Scope of hearing) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Effect of Accelerated Decision was to rule that §6(d) hearing forum is not available to EDF. (Cites Shell Oil case, Docket #401). EDF seeks to have Shell Oil decision reversed. In Shell AU held that scope of hearing cannot be expanded to include consideration of relief broader (ie., more restrictive) than that proposed in S6(b)(l) notice. CROSS REFERENCES: FIFRA §6(b) (Adversely affected) ------- REFERENCE: FIFRA §6(d) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Intention to Refer DATE: May 6, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Desirability of referring some limited questions to committee of NAS. Submission of broad, general questions, in the abstract, not meaningful or rewarding or contemplated purpose of §6(d). Administrator responsible for entering into “appro- priate arrangements” with NAS, not AU. CROSS REFERENCES: 40 CFR §164.50(e) ------- REFERENCE: FIFRA §6(d) (Referral to NAS) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Recommended Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Referral to committee of NAS not a right. No provision for referral in suspension proceedings. §6(d) deals with cancellation and does not apply to §6(c) suspension proceedings. CROSS REFERENCES: 40 CFR §164.50(e) ------- REFERENCE: FIFRA §6(d) CASE NAME: Mirex DOCKET #: 293 TITLE: Order DATE: October 22, 1975 PRESIDING OFFICIAL: D. Harris, Administrative Law Judge ABSTRACT: Denies USDA request for referral to NAS because issues either subjected to intensive testing by cross— examination, previously judicially detennined, or not directly relevant. CROSS REFERENCES: 40 CFR §164.50(e) ------- REFERENCE: FIFRA §6(d) (Referral to NAS) CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Notice Denying Motion for Interlocutory Review and Stay of Proceedings DATE: October 10, 1975 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: No specific authority found in Rules of Practice for referring questions to NAS in suspension proceedings. To contrary, suspension hearings are to be expedited and referral to NAS would delay proceedings. CROSS REFERENCES: ------- REFERENCE: FIFRA §6(d) (Referral to NAS) CASE NAME: Velsicol Chem. Co. (Heptachlor/Chlordane Suspension) DOCKET #: 384 TITLE: Notice of Denial of Request for Interlocutory Review and Reconsideration by the Administrator DATE: October 2, 1975 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: No basis for reviewing Judge Penman’s decision to defer ruling on motion which seeks appointment of a committee of NAS until cancellation proceeding is resumed. CROSS REFERENCES: 40 CFR §164.100 40 CFR §164.50(e) ------- REFERENCE: FIFRA §6(d) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET *: 336 TITLE: Order Denying Motion DATE: June 24, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Issue is referral of “9 principles” which EPA’s brief stated should be used in these proceedings to guide evaluation of cancer hazard of H/C. Velsicol contests two of the principles. No useful purpose would be served by referring nine principles to NAS. AU’s function not to construct definitive treatise on chemical carcinogenesis or establish general Agency policy but rather to determine cancer hazard of H/C. Submission of broad general questions, in the abstract , not every meaningful or rewarding or contemplated purpose of Section 6(d). Also two concepts in dispute are not unique or esoteric and have been presented to the scientific community. Purported fact that there is not universal acceptance of some of the “principles” does not alter conclusion not to refer to NAS. CROSS REFERENCES: 40 CFR §164.50(e) ------- REFERENCE: FIFRA §6(d) CASE NAME: Science Products Co. et al. (Zero Tolerance) DOCKET #: 245 TITLE: Order Denying Motions to Dismiss DATE: November 1, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Amendment to FIFRA in 1972 providing for referral to Committee of National Academy of Sciences immediately effective under §4(a) of FIFRA. With the change in FIFRA (1972) no right to an advisory committee continued even though the requests were pending at the time of the change. CROSS REFERENCES: 40 CFR §164.50(e) ------- REFERENCE: FIFRA §6(d) CASE NAME: Science Products Co. et al. (Zero Tolerance) DOCKET #: 245 TITLE: Order Denying Motions to Dismiss DATE: November 1, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: 1947 FIFRA provided for referral to advisory committee. Registrant requested referral which was not acted upon because tolerance petition was not complete. CROSS REFERENCES: 40 CFR §164.50(e) ------- REFERENCE: FIFRA §6(d) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order Denying Motions to Dismiss and Motion to Remand DATE: January 14, 1974 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Under FIFRA as amended, applicant may request hearing and may request AU to refer questions of scientific fact to advisory committee. Change in procedure (from old FIFRA) which does not affect registrant’s substantive rights. Nothing in statute to indicate an exemption from new method of procedure. Motions to dismiss denied. CROSS REFERENCES: 40 CFR §164.50(e) ------- REFERENCE: FIFRA §6(d) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Ruling on Motions and Requests DATE: June 28, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Motion denied. Persons utilized by Respondent to prepare for litigation not an advisory committee. Questions previously referred to Advisory Committee under old FIFRA. Doubts as to whether ALl has authority to refer matters to Advisory Committee as it was then constituted. Also, Committee report was but “one piece of evidence” before Administrator (cites Stevens Industries , Docket #63). CROSS REFERENCES: 40 CFR §164.50(e) ------- REFERENCE: FIFRA §6(d) (Subpoenas) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Ruling on Motions and Requests DATE: June 28, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Shell request for subpoena of EPA documents etc. relating to risks and benefits. FIFRA §6(d) somewhat unclear as to whether subpoena power extends to pretrial discovery or merely covers testimony or evidence at a hearing by a witness and production of documents there . Subpoena power may not be exercised for purposes of discovery as here requested where rules of practice do not so provide. Cites Admini- strator’s statement in Implementation Plan, Pesticide Control Act (1/4/73) that subpoena power will be exercised in accordance with FRCP and applicable precedents. This statement relates to method of obtaining, etc. subpoenas and not their scope. Since statutory language is unclear and there is an absence of clear implementation by Administrator of a power which is a matter of serious concern , motion denied. (Agency rules of practice being amended at the time). CROSS REFERENCES: 40 CFR §164.70 ------- REFERENCE: FIFRA §6(d) CASE NAME: Stevens Industries, et al. (DDT) DOCKET #: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Under recent amendment to Act, registrant may no longer request or obtain report of a science advisory committee as a matter of right. Under circumstances presented herein, AU would not again refer the matter to such a committee. CROSS REFERENCES: 40 CFR §164.50(e) ------- REFERENCE: FIFRA §6(d) CASE NAME: Stevens Industries, et al. (DDT) DOCKET #: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Stipulation by registrant that Committee Report would be made part of record. Registrant’s attack on compo- sition and operation of Committee an afterthought necessitated by its decision not to proceed with the hearing process. No merit in registrant’s contentions with respect to Committee. Findings and recommendations of committee unanimous and committee report but one piece of evi- dence in these proceedings. Administrator exercised independent judgment based, in part, on data in addition to committee report. CROSS REFERENCES: 40 CFR §164.50(e) 40 CFR §164.81(b) ------- FIFRA §7 ------- REFERENCE: FIFRA §7 CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Order Granting Motions DATE: February 3, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Velsicol alleges much of the data is already available by reason of §7 reporting form. Held that information on reporting form is inadequate to meet needs herein. CROSS REFERENCES: 40 CFR Part 167 ------- FIFRA §10 ------- REFERENCE: FIFRA §10 CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Requiring Dow Chemical Co. to Submit Name of Outside Consultants DATE: July 27, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Conditions under which Dow releases trade secret data to its consultants are immaterial to conclusion herein. Any disclosure of such released trade secret data by Dow employee or outside consultant would prompt consideration of a waiver of trade secret status of the subject data. CROSS REFERENCES: ------- FIPRA §10(b) ------- REFERENCE: FIFRA §10(b) CASE NAME: 15 Herbicides Registrations — Velsicol DOCKET #: 483 TITLE: Order Denying Motion by Velsicol to Dismiss Cancellation Proceeding or for Summary Judgment, and for Stay Pending Determination of Motion DARE: .-, September 21, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: In previous case AU Levinson and Administrator thereafter held Dow had waived any claim to §10(b) trade secrets protection. However, to grant motion which claims Dow’s waiver precludes invalidation of Velsicol’s past registrations based on Dow’s claims under §10(b), will result, in effect, in a withdrawal of Administrator’s Notice of Intent to Hold a Hearing. Only the Administrator has that authority. CROSS REFERENCES: FIFRA §6(b)(2) ------- FIFRA fl2(a) ------- REFERENCE: FIFRA S12(a)(1)(E) CASE NAME: Dexol Industries DOCKET #: 255 TITLE: Recommended Order of Dismissal DATE: March 22, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Pesticide chemicals which cause adulteration of food under FDCA when used as directed are not per se misbranded and therefore, issues of fact in this regard may be raised in this forum ( Continental Chemiste Corp. v. Ruckelshaus) . This case distin- guished from Continental Chemiste on the facts and therefore respondent’s Motion for Summary Entry of a Recommended Decision Affirming Cancellation granted. CROSS REFERENCES: FDCA §402(a)(l) FIFRA §2(q) ------- REFERENCE: FIFRA §12(a)(1)(E) CASE NAME: Dexol Industries DOCKET #: 255 TITLE: Recommended Order of Dismissal DATE: March 22, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Pesticide chemical which is defined as unsafe under FDCA, the use of which on raw agricultural commodities results in adulteration is a violation of FIFRA §2(q)(l)(F). CROSS REFERENCES: FIFRA S2(q)(l)(F) FDCA §402 ------- REFERENCE: FIFRA §12(a)(1)(F) CASE NAME: Stevens Industries, Inc., et al. (DDT) DOCKET *: 63 TITLE: Opinion of the Administrator and Order DATE: June 14, 1972 PRESIDING OFFICIAL: William D. Ruckleshaus, Administrator ABSTRACT: If a product is misbranded within the meaning of the Act, it may no longer be shipped in interstate commerce and stocks in hand in the original package may be seized (p. 10). CROSS REFERENCES: FIFRA §13(b) ------- FIFRA §13(b) ------- REFERENCE: FIFRA §13(b) CASE NAME: Stevens Industries, Inc., et al. (DDT) DOCKET 1: 63 TITLE: Opinion of the Administrator and Order DATE: June 14, 1972 PRESIDING OFFICIAL: William D. Ruckleshaus, Administrator ABSTRACT: If a product is misbranded within the meaning of the Act, it may no longer be shipped in interstate commerce and stocks in hand in the original package may be seized (p.10). CROSS REFERENCES: FIFRA §12(a)(1)(F) ------- FIFRA §15(a) ------- REFERENCE: FIFRA §15(a) CASE NAME: Kepone DOCKET #: 392 TITLE: Order Granting Motion to Dismiss and Order to File Proposed Findings, Conclusions, and Order DATE: September 27, 1977 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: FIFRA does not provide for payments to Petitioner (for existing stocks) in a cancellation action. CROSS REFERENCE: ------- FIFRA §15(b) ------- REFERENCE: FIFRA §15(b)(2) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Order Granting Motions DATE: February 3, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: AU has need for the information for reasons other than those stated by respondent in its motion for presentation of evidence. Administrator should have available more precise information to determine whether he intends to consider exempting existing stocks. CROSS REFERENCES: ------- REFERENCE: FIFRA §15(b)(2) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Order Granting Motions DATE: February 3, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Existing stocks issue in suspension and cancellation proceedings differ substantially because of time periods and uses involved. Independent inquiry needed in cancellation proceeding regardless of Administrator’s action in suspension proceeding. Not premature to consider Respondents request before Administrator establishes procedures for adducing and reviewing data on existing stocks. CROSS REFERENCES: ------- REFERENCE: FIFRA §15(b)(2) CASE NAME: Velsicol Chem. Co. (Heptachlor/Chlordane Suspension) DOCKET #: 384 TITLE: Decision of the Administrator on the Suspension of Heptachior—Chiordane and Order DATE: December 24, 1975 PRESIDING.OFFICIAL: Russell E. Train, Administrator ABSTRACT: “Special Rule”——continued sale and use of existing stocks permitted. CROSS REFERENCES: ------- REFERENCE: FIFRA §15(b)(2) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Notice of Intent to Suspend and Findings of Imminent Hazard Posed by Registrations of Pesticides Containing Heptachior or Chlordane DATE: August 1, 1975 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Invokes “Special Rule” provision permitting continued use of existing stocks formulated as of date of this notice. There would be no stocks realistically retrievable following a suspension notice. CROSS REFERENCES: ------- REFERENCE: FIFRA §15(b)(2) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET #: 145 TITLE: Opinion of the Administrator and Order DATE: October 1, 1974 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT:’ Order allows continued sale and use of existing stocks under “Special Rule” provisions. CROSS REFERENCES: ------- FIFRA §16 ------- REFERENCE: FIFRA §16 CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Administrator’s refusal to impose unconditional cancellation on citrus uses of chlorobenzilate once finalized (after exhausting available administrative remedies) amounts to “final agency action” within terms of APA (5 U.S.C. §704) and is judicially review— able under §16 of FIFRA. CROSS REFERENCES: Administrative Procedure Act, 5 U.S.C. §704 ------- REFERENCE: FIFRA §16 (Effect of pending judicial appeal on AU jurisdiction) CASE NAME: Stevens Industries, et al. (DDT) DOCKET #: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Appeal by registrant from Administrator’s order filed 6/14/72 taken in U.S. Court of Appeals, Ninth Circuit, does not remove jurisdiction of AU in this matter. Administrator’s order applied to parties involved in proceedings at time of order. Registrant was not a party to those consolidated proceedings until three months after the appeal. CROSS REFERENCES: ------- FIFRA §16(a) ------- REFERENCE: FIFRA §16(a) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: FIFRA has never provided for formal adjudicatory hearing under §6(d) to object to Agency’s refusal to propose action. Instead, FIFRA contemplates in §16 that unresolved controversies over Agency “refusals” to propose such action are to be heard in the Federal courts. To allow EDF’s objections would prevent proposed action from going into effect even though affected parties (registrants) have not objected. CROSS REFERENCES: ------- REFERENCE: FIFRA §16(a) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: EDF’s recourse is to convince a Federal court that EPA’s refusal violated statutory standard under which Agency is required to issue cancellation notices. Cites Shell Oil (Docket #401) and EDF v. Ruckeishaus . Here a factual determination made by EPA that citrus uses will not meet statutory standard for unconditional cancellation when subject to changes and restrictions on use identified in notice. EDF may petition EPA to reconsider refusal to issue unconditional cancellation, and, if the petition is subsequently denied, have that decision judicially reviewed per §16. This decision does not narrow EDF’s rights to public parti- cipation. EDF had chance to participate in decision making during RPAR review which actually broadened public particpation. CROSS REFERENCES: ------- REFERENCE: FIFRA §16(a) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Question whether EDF is a person “adversely affected” by §6(b)(1) notice. Held: EDF not person “adversely affected” since EDF seeks not to stop conditional cancellation from becoming final but rather to force a more restrictive action. Under §6(b) proposed action is self—executing. Therefore, standing conferred on persons seeking to stop such action. §16 applies. CROSS REFERENCES: FIFRA §6(b)(l) (Adversely affected) 40 CFR §164.20(a) ------- REFERENCE: FIFRA §16(a) (Exhaustion of administrative remedies) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Issue: What avenue of administrative relief is EDF (whose objections were dismissed) entitled to pursue in order to have requested relief either granted or denied (and thus finalized). It is by filing objec- tions in adjudicatory hearing forum under §6(d) or by invoking less formal administrative procedures. CROSS REFERENCES: FIFRA §6(d) (Exhaustion of administrative remedies) ------- REFERENCE: FIFRA §16(a) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PR ESIDLNG, OFFICIAL: Penman, Administrative Law Judge ABSTRACT: §6(b) is framed in terms of preventing proposed cancellation (conditional or otherwise) fran occurring and not in terms of forcing a result not proposed by the Administrator. Here, EDF trying to force a more restrictive result. Under §6(b) person would be adversely affected by affirmative act of Administrator, not his failure to act. Section 16(a) provides remedy in latter case. CROSS REFERENCES: FIFRA §6(b) (Adversely affected) 40 CFR §164.20(a) ------- REFERENCE: FIFRA §16(a) CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET It: 401 TITLE: Decision on Interlocutory Appeal DATE: April 9, 1979 PRESIDING’OFFICIAL: Ronald L. McCallum, Judicial Officer ABSTRACT: Agency refusals to cancel or suspend not following a public hearing are reviewable in district courts. CROSS REFERENCES: ------- FIFRA §16(b) ------- REFERENCE: FIFRA §16(b) CASE NAME: S. W. Cowley & Sons Mfg. Co. (arsenic trioxide) DOCKET #: 341 TITLE: Order Cancelling Registration DATE: October 28, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Rejects argument that §16 gives U.S. Court of Appeals exclusive jurisdiction (see Denial of Application for Stay, 9/1/76). CROSS REFERENCES: ------- REFERENCE: FIFRA §16(b) CASE NAME: S. W. Cowley & Sons Mfg. Co. (arsenic trioxide) DOCKET #: 34]. TITLE: Denial of Applications for Stay Pending Appeal DATE: September 1, 1976 PRESIDING OFFICIAL: Richard G. Stoll, Jr., Acting Judicial Officer ABSTRACT: Issue is whether FIFRA §16(b) confers “exclusive jurisdiction” in the Court, therefore barring Agency from proceedings. Agency has not taken a final action and therefore registrant is free to market its product. Remand Order is not a decision on the merits and Initial Decision on Remand is not a final order. No adverse effect under §16(b) until there is a final order. CROSS REFERENCES: 40 CFR §164.101 ------- FIFRA §21 ------- REFERENCE: FIFRA §21 CASE NAME: Chapman Chem. Co. (Mercury) DOCKET 1: 246 TITLE: Order Denying Motions to Dismiss and Motion to Remand DATE: January 14, 1974 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: If new scientific findings are truly significant, AU assumes they are known to scientists interested in the subject including EPA staff. This information should be brought to respondent’s attention in course of prehearing procedures. CROSS REFERENCES: 40 CFR §164.110 ------- FIFRA §21(b) ------- REFERENCE: FIFRA §21(b) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Provides for Administrator to solicit outside views. No improper ex parte communication here such as to provide an impediment to Administrator acting in his quasi—judicial capacity in suspension proceedings. May be a problem as to cancellation proceeding. CROSS REFERENCES: 40 CFR §164.7 ------- 40 CFR PART 162 ------- 40 CFR §162.3 ------- REFERENCE: 40 CFR §162.3(r) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET *: 336 TITLE: Notice of Intent to Suspend and Findings of Imminent Hazard Posed by Registrations of Pesticides Containing Heptachlor or Chiordane DATE: August 1, 1975 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Defines “imminent hazard.” Not Limited to a concept of crisis; “substantial likelihood” enough. Burden of proof of establishing safety of a product is on the registrant. CROSS REFERENCES: FIFRA §2(1) ------- 40 CFR §162.8 ------- REFERENCE: 40 CFR §162.8 (Test methods) CASE NAME: S. W. Cowley & Sons Mfg. Co. (arsenic trioxide) DOCKET #: 341 TITLE: Initial Decision DATE: May 28, 1976 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: (1) Reasonable and proper for EPA to establish test methods for determining efficacy, (2) Such tests necessary to proper administration of F I F RA, (3) These test methods must be established on basis of lab techniques which simulate field condi- tions, (4) Test methods must be established and promulgated under informal rulemaking requirements of APA §553, (5) Procedures are presently being utilized by EPA to establish test methods for acute rat liquid bait in compliance with APA, and (6) Test methods which form basis of intent to cancel were not established under informal rulemaking requirements of APA and are therefore invalid and unenforceable. (Decision reversed on other grounds by Administrator——see Order on Remand, 7/27/76). CROSS REFERENCES: Administrative Procedure Act, 5 U.S.C. §553 ------- REFERENCE: 40 CFR §162.8 CASE NAME: S. W. Cowley & Sons Mfg. Co. (arsenic trioxide) DOCKET #: 341 TITLE: Order Cancelling Registration DATE: October 28, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Impossible for lab tests to duplicate natural environment and actual use conditions. These test procedures simulate actual conditions reasonably well. CROSS REFERENCES: ------- 40 CFR §162.9 ------- REFERENCE: 40 CFR §162.9 CASE NAME: 15 Herbicides Registrations — Velsicol DOCKET #: 483 TITLE: Decision DATE: April 24, 1980 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Appropriate remedy for improper granting of a registration as a result of registration application being filed and processed under procedures set forth in §2(c) of interim policy statement is not cancellation but, rather, appropriate remedy is for prior applicant to seek reasonable compensation from subsequent applicant as provided in §3(c)(1)(D). See FIFRA Docket No. 407. CROSS REFERENCES: FIFRA §3(c)(l)(D) ------- 40 CFR §162.10 ------- REFERENCE: 40 CFR §162.10 CASE NAME: Stevens Industries, Inc., et al. (DDT) DOCKET #: 63 TITLE: Order Granting Motion DATE: -January 22, 1973 PRESIDING OFFICIAL: Marshall Miller, Special Assistant to Administrator, Judicial Officer ABSTRACT: Motion sets forth good cause to grant Lilly’s request and permit Lilly to use a label designed more particu- larly to fit peculiar considerations applicable to its product rather than label required by Administrator’s order of 7/7/72. CROSS REFERENCE: FIFRA §6(b)(2) 40 CFR §164.21 ------- 40 CFR §162.11 ------- REFERENCE: 40 CFR §162.11 (Denial of registration) CASE NAME: Aceto Chemical Co. (Paraquat) DOCKET #: 484 TITLE: Accelerated Decision DATE: August 22, 1979 PRESIDING OFFICIAL: Nissen, Administrative Law Judge ABSTRACT: At least arguable that Assistant Administrator’s letter of March 19, 1979 may not have been intended as a notice of refusal to register under §3(c)(6) but that does not deprive AU of authority to conduct a hearing and grant such relief as may be appropriate. Failure to publish notice of refusal to register in Federal Register as required by §3(c)(6) should not prejudice Aceto as the applicant. CROSS REFERENCES: FIFRA §3(c)(6) ------- REFERENCE: 40 CFR §162.11 CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Decision on Interlocutory Appeal DATE: April 9, 1979 PRESIDIt4G OFFICIAL: Ronald L. McCallum, Judicial Officer ABSTRACT: Discussion supporting Administrator’s authority to issue conditional cancellation notices. EPA’s increased ability to tailor cancellation notice. RPAR process served need of refining Agency’s decision—making capabilities to get away from “all— or—nothing” approach to cancellation. Major advance in decision—making since DDT case ( EDF v. Ruckelshaus ) which is distinguished on the facts. §6(b)(l) notice here culmination of RPAR process which gave all parties opportunity to participate and present their views. Other relief available to Amaya such as petition to Administrator outside framework of formal administrative process to seek cancellation of additional uses. CROSS REFERENCES: FIFRA §6(b)(l) (Standii’ ) ------- REFERENCE: 40 CFR §162.11 CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: FIFRA requires balancing of risks. FIFRA does not establish absolute degree above or below which a pesticide must or should be cancelled. AU found some risks insufficient to warrant cancel- lation of some uses; therefore, burden of proof on registrants not impossible. They met the standard as to some uses. Administrator disagrees with ALl’s weighing of relative risks and benefits with respect to some uses. CROSS REFERENCES: FIFRA §6(b) FIFR.A §2(bb) 40 CFR §164.80(b) ------- REFERENCE: 40 CFR §162.11 CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: FIFRA §2(bb) and §6(b) require a risk/benefit assessment of evidence adduced at a cancellation (or suspension) hearing. (See EDF v. EPA , 465 F.2d 528, 538 (C.A.D.C. 1972; EDF v. EPA , 510 F.2d 1292, 1302 (C.A.D.C. 1975). FIFRA does not specify that any specific level or magnitude of risks must be found before a pesticide may be cancelled. Requires finding of “unreasonable” risk. A finding of risk, if it is unreasonable in relation to benef its of continued use, is sufficient to warrant cancellation. Not necessary to establish threshhold to trigger risk! benefit assessment. AU’s characterization of risks as “minimal” does not preclude cancellation. CROSS REFERENCES: FIFRA §6(b) FIFRA §2(bb) ------- REFERENCE: 40 CFR §162.11 CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Notice of Intent to Suspend and Findings of Imminent - Hazard Posed by Registrations of Pesticides Containing • Heptachlor or Chiordane DATE: August 1, 1975 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Defines “unreasonable adverse effects on the environment”. CROSS REFERENCES: FIFRA §2(bb) ------- 40 CFR §162.11(a) ------- REFERENCE: 40 CFR §162.11(a) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order DATE: April 1, 1974 PRESIDING OFFICIAL: David A. Schuenke, Judicial Officer and Assistant Director for Legislation ABSTRACT: Question whether finding of widespread practice, unreasonable risk and costs and benefits are condition precedent to issuance of cancellation notice. Two portions of §6(b) are alternative. Can also cancel based on health and safety aspects associated with misbranding under old FIFRA. CROSS REFERENCES: FIFRA §6(b) ------- REFERENCE: 40 CFR §162.ll(a)(3)(ii) CASE NAME: Mirex DOCKET 1: 293 TITLE: Administrator’s Decision on Interlocutory Appeal Affirming Denial of Respondent’s Request to Take Official Notice DATE: April 22, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Administrator comments on commitment to basic cancer policy principles like extrapolation from animal data, malignant vs. benign tumors, and no effect” levels. CROSS REFERENCES: Carcinogen Policy ------- REFERENCE: 40 CFR §162.11(a)(3)(ii) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Decision of the Administrator and Order DATE: February 17, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Registrant’s contention that extrapolations from laboratory conditions are insufficient to demonstrate risks sufficient to warrant cancellation under §6(b) is not legally defensible. CROSS REFERENCES: 40 CFR §164.81(a) ------- REFERENCE: 40 CFR §162.1l(a)(3)(ii)(A) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Notice of Intent to Suspend and Findings of Imminent Hazard Posed by Registrations of Pesticides Containing Heptachlor or Chlordane DATE: August 1, 1975 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Sets forth bases for evaluating carcinogenicity of pesticides. Positive oncogenic effect in test animals sufficient to characterize a pesticide as posing a cancer risk to man. Negative results have only limited significance. No scientific basis exists for establishing a no effect level for ca rcinogens. Distinction between benign and malignant tumors not meaningful in determining cancer hazard to men on basis of tests conducted on laboratory animals. As to benefits, because of expected and provisional nature of suspension process, it is not necessary to explore all available information on alternative pest control methods to same degree as in cancellation proceedings. Responsibility to show benefits of continued registra- tion during cancellation proceeding outweigh risks is on proponents of continued registration. CROSS REFERENCES: 40 CFR §164.121(c) Carcinogen Policy ------- REFERENCE: 40 CFR §162.11(a)(5)(ii) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Ruling on Applicability DATE: April 27, 1976 PRESIDING OFFICIAL: Perlman, Administrative Law Judge ABSTRACT: Amendment to Act requiring Administrator to take into account impact of final action on production and prices of agricultural commodities, retail food prices, etc. Administrator’s notice of intent to cancel H/C was issued prior to this amendment and it is clear section 1(1) of this amendment is not appli- cable herein. CROSS REFERENCES: FIFRA §6(b) (Benefits) ------- REFERENCE: 40 CFR §162.ll(a)(5)(ii) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Ruling on Applicability DATE: April 27, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: No useful purpose served in determining whether Sec. 1(2) is procedural or substantive. At most it is a clarification and refinement of Administrator t s duty in applying risk/benefit assessment herein. Cites legislative history. Congressional purpose to assure Agency takes cognizance of effect of its actions on agricultural economy at every step in decision process. Provides effective procedural mechanism for implementing preexisting statutory risk—benefit te st. Sec. 1(2) applicable to these proceedings. No substantive rights of parties affected by the amendment. Hearing has not yet commenced. CROSS REFERENCES: FIFRA §6(b) ------- 40 CPR fl62.11(b) ------- REFERENCE: 40 CFR §162.11(b) CASE NAME: Kepone DOCKET #: 392 TITLE: Order Granting Motion to Dismiss and Order to File Proposed Findings, Conclusions, and Order DATE: September 27, 1977 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: In making a determination concerning unreasonable adverse effects on the environment, the Act provides that the Administrator shall take into account “the economic, social and environmental costs and benefits of the use of any pesticide.” Impact on the manufacturer is not a relevant consideration. CROSS REFERENCE: FIFRA §2(bb) ------- REFERENCE: 40 CFR §162.11(b) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET *: 246 TITLE: Initial Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Burden on registrants to prove that use of their pesticides when used in accordance with widespread and commonly recognized practices will not generally cause “unreasonable adverse effects on the environ- ment” (taking into account economic, social and environmental costs and benefits). CROSS REFERENCES: 40 CFR §164.80 FIFRA §2(bb) ------- REFERENCE: 40 CFR §l62.ll(b)(l) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET *: 246 TITLE: Order Denying Motions to Dismiss DATE: March 7, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Question of whether respondent has carried burden of going forward to present an affirmative case for cancellation. Cites Administrator’s opinion in Stevens Industries (Docket #63) re: burden of proof. Held here that respondent sustained burden of proof; motions denied. In FIFRA canellation hearing proponent of cancellation bears burden of going forward, but does not bear burden of persuasion. CROSS REFERENCES: 40 CFR §164.80 ------- REFERENCE: 40 CFR §162.11(b)(l)(i) CASE NAME: Stevens Industries, Inc., et al. (DDT) DOCKET #: 63 TITLE: Opinion of the Administrator and Order DATE: June 14, 1972 PRESIDING OFFICIAL: William D. Ruckleshaus, Administrator ABSTRACT: Evidence of each alleged risk must be reviewed and a conclusion reached as to whether or not, and in what degree, such risk is incidental to the directed use of a particular product (p.lO). CROSS REFERENCES: FIFRA §6(b) (Widespread and commonly recognized practice) ------- REFERENCE: 40 CFR §162.ll(b)(l)(i)(B) and (C) CASE NAME: Kepone DOCKET #: 392 TITLE: Decision on Appeal of Accelerated Decision by Lethelin Products Co. DATE: December 13, 1977 PRESIDING OFFICIAL: Harriet Marple, Judicial Officer ABSTRACT: Notice of cancellation will be issued unless person requesting hearing carries burden of proof that pesticide does not cause unreasonable adverse effects on environment or man. Nothing presented by Lethelin to suggest it has evidence to sustain this burden of proof. CROSS REFERENCE: 40 CFR §162.1l(b)(2)(i)(B) ------- REFERENCE: 40 CFRS162.1l(b)(2)(i)(B) CASE NAME: Kepone DOCKET #: 392 TITLE: Decision on Appeal of Accelerated Decision by Lethelin Products Co. DATE: December 13, 1977 PRESIDING OFFICIAL: Harriet Marple, Judicial Officer ABSTRACT: Notice of cancellation will be issued unless person requesting hearing carries burden of proof that pesticide does not cause unreasonable adverse effects on environment or man. Nothing presented by Lethelin to suggest it has evidence to sustain this burden of proof. CROSS REFERENCE: 40 CFR §162.ll(b)(l)(i)(B) and (C) ------- 40 CFR PART 164 ------- 40 CFR Part 164, Subpart C ------- REFERENCE: 40 CFR Part 164, Subpart C (Supplementary Procedures) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Denial of Petition for Withdrawal of Suspension Notice DATE: September 10, 1979 PRESIDING OFFICIAL: Douglas M. Costle, Administrator ABSTRACT: Administrator established supplementary procedures for this hearing: (1) 60 day deadline for rendering of recommended decision by Administrative Law Judge (2) assignment of technical support staff of Agency employees for Administrative Law Judge (3) extension of right to intervene to “any interested person”. Axnvac challenges these procedures and Administrator’s failure to use California benefits data. CROSS REFERENCES: ------- REFERENCE: 40 CFR Part 164, Subpart C (Interlocutory review) CASE NAME: Dow Chemical Co. (2,4,5—T and Silvex Suspension) DOCKET #: 409 TITLE: Denial of Motion for Appointment of AU DATE: April 11, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: 40 CFR Part 164 does not provide for consideration of interlocutory matters by the Administrator in a suspension proceeding. Dow’s motion to appoint AU in lieu of presently constituted hearing panel denied. Concludes Dow unlikely to prevail on the merits. CROSS REFERENCES: 40 CFR §164.100 ------- 40 CFR §l 6 4. 2 (q) ------- REFERENCE: 40 CFR §164.2(g) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Denial of Petition for Withdrawal of Suspension Notice DATE: September 10, 1979 PRESIDING OFFICIAL: Douglas M. Costle, Administrator ABSTRACT: Administrator’s 60 day deadline for completion of process not a violation of due process principles embodied in APA. Case citations. Anivac’s claims of unfairness are premature (filed before First Pre— hearing Conference). Whether 60 day deadline results in unfairness can only be answered during course of proceedings. Can later move for extension of deadline if necessary upon recommendation of presiding officer and for good cause. CROSS REFERENCES: FIFRA §6(c)(2) 40 CFR §164.121(d) 40 CFR §164.121(j) ------- 40 CFR §164.4 ------- REFERENCE: 40 CFR §164.4 CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Order Incorporating Suspension Record DATE: March 28, 1980 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: Record of suspension proceeding admitted into this proceeding available for inspection and copying at office of Hearing Clerk. Parties who were not parties to suspension will get copy of docket sheet entries and final list of witnesses and exhibits. Recommended and final decisions available. CROSS REFERENCES: ------- 40 CFR §164.4(c) ------- REFERENCE: 40 CFR §164.4(c) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET 4: 415 TITLE: Order Granting in Part and Denying in Part Dow’s Motion in Support of Proposed Protective Order and Confidentiality Agreement DATE: March 13, 1981 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Respondent unwilling to agree to including irreparable damages provision in confidentiality agreement. It would be unfair to require any signatory to a confi- dentiality agreement to be bound by such a provision as Dow proposes. It would not add to or detract from effectiveness of order and agreement and its absence would not affect Dow’s rights. Lack of this provision will merely require proof by Dow of irreparable harm in another forum and opportunity of signatory to such agreement to defend its position. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.4(c) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Benefits Protective Order DATE: March 13, 1981 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Protective Order entered pursuant to 40 CFR S164.4(c). CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.4(c) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Protective Order DATE: July 25, 1980 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Protective Order CROSS REFERENCES: ------- REFERENCE: 40 CFR S164.4(c) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Supplemental Protective Order DATE: March 14, 1980 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Supplemental Protective Order pursuant to 40 CFR §164.4(c). CROSS REFERENCES: ------- REFERENCE: 40 CFR Sl64.4(c) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET 4 : 415 TITLE: Protective Order DATE: August 2, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Protective Order entered pursuant to 40 CFR §164.4(c). CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.4(c) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex’Cancellation) DOCKET #: 415 TITLE: Order Requiring Dow Chemical Co. to Submit Name of Outside Consultants DATE: July 27, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Dow shall submit to AU, under seal, names of outside consultants. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.4(c) CASE NAME: Dow Chemical Co. (2,4,5—T and Silvex Suspension) DOCKET #: 409 TITLE: Protective Order DATE: May 4, 1979 PRESIDING OFFICIAL: Charles Gregg, Chairperson, Hearing Panel ABSTRACT: Order granted. Conditions specified. CROSS REFERENCES: ------- 40 CFR §164.6 ------- REFERENCE: 40 CFR §164.6 CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order Denying Motions DATE: October 30, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Cannot use anticipated Motion to Dismiss as basis for getting time extension to file answering brief. 60 days adequate to file answering brief. CROSS REFERENCES: ------- 40 CFR § 164.6(b) ------- REFERENCE: 40 CFR §164.6(b) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Perlman, Administrative Law Judge ABSTRACT: FIFRA itself imposes thirty day deadline for requesting hearings. Rules of Practice specifi- cally fashioned in response to statute and thirty day deadline. Other cases dismissed based on late filings. §164.6(b) does not apply to as serious a matter as the enlargement of statutory deadline and cannot be construed to enlarge the time or authorize Administrator to enlarge the time within which to file initial filings or objections in response to notice of intent to cancel, conditional or other— wise, pursuant to FIFRA §6(b)(l). Part of reason for special treatment is that registration would be cancelled by operation of law prior to filing of late objections. CROSS REFERENCES: FIFRA §6(b) (30 day deadline) 40 CFR S164.20(a) ------- REFERENCE: 40 CFR §164.6(b) VCASE NAME: 2,4,5—T DOCKET #: 295 TITLE: Order Denying Request for Certification DATE: April 17, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Unclear from EDF motion or EPA support thereof if major or minor enlargement of parameters of proceeding is sought. Supporting justifications mostly mere conjecture. Should Administrator, in response to proper motion, grant a request for enlargement, no reason why testimony as to expanded issues cannot be presented at the end of its presentation. No time extension needed. CROSS REFERENCES: 40 CFR §164.23(b) ------- REFERENCE: 40 CFR §164.6(b) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order on Reconsideration DATE: December 14, 1973 PRESIDING OFFICIAL: Perinian, Administrative Law Judge ABSTRACT: Motion for reconsideration and request for oral argument denied. “Environmental problems should be parced with a scalpel, not a hacksaw.” CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.6(b) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET *: 246 TITLE: Order to File DATE: May 9, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Registrants given 10 days to file response to EPA’S answer to motions to amend in view of the fact that they were filed prior to placement of proceedings in hearing process. CROSS REFERENCES: 40 CFR §164.60(b) ------- REFERENCE: 40 CFR S164.6(b) (Delay of Hearing) CASE NAME: Stevens Industries, et al. (DDT) DOCKET : 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Matters in registrant’s motion to dismiss on jurisdictional and procedural grounds were untimely raised and represent a not well disguised attempt to delay entry of final order of cancellation. AU, nevertheless, addressed them. Registrant’s attack on composition and operation of committee an afterthought necessitated by its decision not to proceed with hearing process. CROSS REFERENCES: ------- 40 CFR §164.7 ------- REFERENCE: 40 CFR §164.7 CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Notice of Intent to Cancel Registrations of Pesticide Products Containing DBCP DATE: October 29, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Prohibition against ex parte communications on the merits of the proceeding between Administrative Law Judge, Judicial Officer or Administrator and investigative and trial staff or other interested parties. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.7 CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Denial of Petition for Withdrawal of Suspension Notice DATE: September 10, 1979 PRESIDING OFFICIAL: Douglas M. Costle, Administrator ABSTRACT: Moot issue re illegal ex parte contact since presiding officer has exercised his discretion not to consult ex parte with technical support panel. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.7 CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Notice and Order DATE: May 17, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Certain communications from Suspension Hearing Panel to Assistant Administrator for Toxic Substances held not to relate to merits of proceeding and therefore not in violation of ex parte rule. Also, these communications were not filed by or on behalf of any party to the cancellation proceeding. This correspondence not to be included in record of hearing. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.7 CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Recommended Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: No violation of 40 CFR §164.7 re ex parte contact based on clarification issued by Deputy Administrator since it was procedural, not substantive. In fact, clarification was to Velsicol’s benefit. During development of regulations Velsicol had opportunity to input and challenge Agency policy re: evaluation of cancer hazard. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.7 CASE NAME: Velsicol Chem. Co. (Heptachlor/Chlordane Suspension) DOCKET #: 384 TITLE: Order Denying Motion DATE: August 7, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Velsicol requested ‘Clarification of Evidence which may be introduced . . . SI( / /75) be stricken as being the result of improper ex parte communications. §164.7 does not apply here and Velsicol’s oral motion denied. Clarification was procedural and did not involve merits of the controversy. Also, no indica- tion of improper ex parte communication. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.7. CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Provides for Administrator to solicit outside views. No improper ex parte comutunication here such as to provide an impediment to Administrator acting in his quasi—judicial capacity in suspension proceedings. May be a problem as to cancellation proceeding. CROSS REFERENCES: FIFRA §21(b) ------- 40 CFR §164.8 ------- REFERENCE: 40 CFR §164.8 CASE NAME: Aceto Chemical Co. (Paraquat) DOCKET #: 484 TITLE: Accelerated Decision DATE: August 22, 1979 PRESIDING OFFICIAL: Nissen, Administrative Law Judge ABSTRACT: EPA claims it mailed notice of cancellation, Aceto claims they did not receive it. There is a strong presumption of delivery in ordinary course of mails. Fact of mailing may be established by proof of an office practice and evidence of non—receipt does not nullify the presumption. Here presumption not rebutted. Conclusion: irrespective of whether a final notice of cancellation was legally required, record establishes that such a notice was mailed; Aceto is presumed to have received it and Aceto’s registrat ion was legally and validly cancelled. Therefore, no genuine issue of material fact here. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.8 CASE NAME: Mirex DOCKET #: 293 TITLE: Prehearing Conference Order No. 3 DATE: August 9, 1973 PRESIDING OFFICIAL: D. Harris, Administrative Law Judge ABSTRACT: Respondent, then supporting parties, then registrant, then opposing parties to present evidence. CROSS REFERENCES: ------- 40 CFR §164.20 ------- REFERENCE: 40 CFR §164.20 CASE NAME: Stevens Industries, et al. (DDT) DOCKET #: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Registrant failed to participate in hearing based on conclusion that in view of Administrator’s order filed 6/14/72 (cancelling certain uses of DDT) proceeding further would be useless. No such presumption or assumption can be made. Because registrant failed to participate in hearing, AU’s decision is limited to the record. By failure to adduce evidence regarding DDT use on crops not covered in previous cancellation order, registrant has failed to carry burden of proof. CROSS REFERENCES: 40 CFR §164.80 ------- 40 CFR §l 64 . 2 0(a) ------- REFERENCE: 40 CFR §164.20(a) CASE NAME: 15 Herbicides Registrat.ion — Velsicol DOCKET #: 483 TITLE: Order Denying Motion by Velsicol to Dismiss Cancellation Proceeding or for Summary Judgment, and for Stay Pending Determination of Motion DATE: September 21, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Authority to issue notice of intent to hold hearing to determine whether or not to cancel is within sole discretion of Administrator and until such a hearing is held and issues stated therein are answered there is no authority to void such discretionary action. CROSS REFERENCES: FIFRA §6(b)(2) ------- REFERENCE: 40 CFR §164.20(a) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Question whether EDF is a person “adversely affected” by §6(b)(l) notice. Held: EDF not person “adversely affected” since EDF seeks not to stop conditional cancellation from becoming final but rather to force a more restrictive action. Under §6(b) proposed action is self—executing. Therefore, standing conferred on persons seeking to stop such action. §16 applies. CROSS REFERENCES: FIFRA §16(a) FIFRA §6(b)(l) (Adversely affected) ------- REFERENCE: 40 CFR §164.20(a) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Legislative history of FIFRA demonstrates that “adversely affected” as used in §6(b) only includes registrants, users and other persons who want to stop proposed cancellation from going into effect. Cites McGill v. EPA , 593 F.2d 631 (5th Cir. 1979) re legislative history of §6(b). There must be some legally recognizable injury as a result of the proposed action in order for person to be “adversely affected”. Mere “interest” in the problem insufficient. EDF clearly not “adversely affected”. Distinction between standing to intervene in an administrative hearing and standing to obtain judical review of challenged administrative action. Cites K. Davis, Administrative Law Treatise, §8.11 at 564 (1958). Intervention affected by Agency rules and statutes not affecting standing to challenge. Problems of case or controversy do not affect intervention. Also, consequences different. Undue broadening of issues is a common ground for denying intervention. CROSS REFERENCES: 40 CFR §164.31 FIFRA §6(b) (Adversely affected) ------- REFERENCE: 40 CFR §164.20(a) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Cos.tle, Administrator ABSTRACT: Florida Citrus Mutual did not file its request for hearing until five days after deadline set in notice. FCM argues deadline specified in notice conflicts with §6(b) and thus unlawfully shortened 30 day deadline. FCM argues §6(b) should be interpreted to allow timeliness ot a non—registrant’s request for hearing to be measured from either (1) 30 days following publication in Federal Register or (2) 30 days following any registrant’s receipt of the notice, which ever occurs later and that otherwise registrants would get more time than non—registrants. However, this interpretation could have opposite effect of giving all non—registrants more time than registrants if only one registrant receives notice after publica- tion in Fed. Register. Reasonable to assume Congress did not intend completely equal treatment between registrants and non—registrants. Reasonable to infer from legislative history that publication provision in §6(b) primarily intended for non—registrants. Its benefit to registrants incidental. Constructive notice by publication in Federal Register adequate when identity and location of affected person not known or readily ascertainable. CROSS REFERENCES: FIFRA §6(b) (Timeliness of Request for Hearing) 40 CFR §164.22(b) ------- REFERENCE: 40 CFR §164.20(a) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: §6(b) is framed in terms of preventing proposed cancellation (conditional or otherwise) fran occurring and not in terms of forcing a result not proposed by the Administrator. Here, EDF trying to force a more restrictive result. Under §6(b) person would be adversely affected by affirmative act of Administrator, not his failure to act. Section 16(a) provides remedy in latter case. CROSS REFERENCES: FIFRA §6(b) (Adversely affected) FIFRA §16(a) ------- REFERENCE: 40 CFR §164.20(a) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: FIFRA itself imposes thirty day deadline for requesting hearings. Rules of Practice specifi- cally fashioned in response to statute and thirty day deadline. Other cases dismissed based on late filings. §164.6(b) does not apply to as serious a matter as the enlargement of statutory deadline and cannot be construed to enlarge the time or authorize Administrator to enlarge the time within which to file initial filings or objections in response to notice of intent to cancel, conditional or other— wise, pursuant to FIFRA §6(b)(l). Part of reason for special treatment is that registration would be cancelled by operation of law prior to filing of late objections. CROSS REFERENCES: FIFRA §6(b) (30 day deadline) 40 CFR §164.6(b) ------- 40 CPR §164.20(b) ------- REFERENCE: 40 CFR §164.20(b) CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Accelerated Decision DATE: April 16, 1979 PRESIDING OFFICIAL: Ronald L. McCallum, Judicial Officer ABSTRACT: Amvac’s objections filed within 30 days but did not include registration numbers or copies of labeling as required by §164.22(a). Only registered use identified was tomatoes, which was not one of the uses to be cancelled. After 30 day period Ainvac moved to amend objections to include all uses. EPA moved to dismiss as to tomatoes and opposed objections. Administrative Law Judge denied EPA’s motion as to tomatoes but sustained as to amending objections to include additional uses. This Administrative Law Judge’s order constitutes accelerated decision under §l64.91(a)(1) from which appeal can be taken pursuant to §164.102. On appeal, none of Amvac’s exceptions sustained. CROSS REFERENCES: 40 CFR §164.22(a) ------- REFERENCE: 40 CFR S164.20(b) CASE NAME: DBCP DOCKET #: 401 et al. TITLE: Order Denying Motion of Amvac to Amend its Objection and Cross—motion to Dismiss Amvac DATE: January 22, 1979 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: Request for hearing for one specific use cannot be amended to add uses after 30—day period to request hearing has expired. Notice itself also required specific designation of uses. CROSS REFERENCES: FIFRA §6(b) (Timeliness of hearing requests) ------- REFERENCE: 40 CFR §164.20(b) CASE NAME: Kepone DOCKET #: 392 TITLE: Decision on Appeal of Accelerated Decision by Lethelin Products Co. DATE: December 13, 1977 PRESIDING OFFICIAL: Harriet Marple, Judicial Officer ABSTRACT: Requires a person requesting a hearing to state objections to Administrator’s intent to cancel. CROSS REFERENCE: ------- REFERENCE: 40 CFR §164.20(b) CASE NAME: Kepone DOCKET it: 392 TITLE: Order Granting Motion to Dismiss and Order to File Proposed Findings, Conclusions, and Order DATE: September 27, 1977 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: As part of their obligation in requesting a hearing, petitioners are required to file objections setting forth the factual basis of their objections. Responses filed by petitioners to Administrative Law Judge’s Order to File (June 1, 1977) are not sufficient objections under Rules of Practice to entitle Petitioners to a hearing. Objections made by petitioners are either vague and without foundation or immaterial. CROSS REFERENCES: 40 CFR §164.22 ------- CFR §164.20(c) ------- REFERENCE: 40 CFR §164.20(c) CASE NAME: 2,4,5—T DOCKET #: 295 TITLE: Administrative Law Judge Document Re: Procedure DATE: May 15, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Direction in previous order that all matters necessary to commencement of an orderly, informative, and efficient hearing will be subject to “resolution by the parties” rather than by the Administrative Law Judge is at odds with the Rules and the fact that no party has presented any objections to procedures (other than effort for postponement). CROSS REFERENCES: 40 CFR §164.40 ------- 40 CFR §164.21 ------- REFERENCE: 40 CFR §164.21 CASE NAME: Aceto Chemical Co. (Paraquat) DOCKET #: 484 TITLE: Accelerated Decision DATE: August 22, 1979 PRESIDING OFFICIAL: Nissen, Administrative Law Judge ABSTRACT: Issue here is whether registration was validly can- celled. Threshhold question is whether petition sets forth claim upon which relief can be gi anted. Absent a notice of intent to cancel there is no authority to conduct a hearing under §6(b). Not reasonable to construe a letter notifying Aceto that its registration had been legally cancelled over four years previously as a notice of intent to cancel because it speaks in past tense rather than future tense. Held: No genuine issue of material fact here. Registration was legally and validly cancelled. CROSS REFERENCES: FIFRA §6(b) (Notice of Intent to Cancel) ------- REFERENCE: 40 CFR §164.21 CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Final Order DATE: March 6, 1978 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: All applications for registration of products containing H/C subject to Notice of Denial of Registration (5/21/75) or subsequent Notice of Denial are denied. CROSS REFERENCES: FIFRA §3(c)(6) ------- REFERENCE: 40 CFR §164.21 CASE NAME: Velsicol Chemical Corp. (HeptachlorfChiordane) DOCKET #: 336 TITLE: Order of Dismissal DATE: May 9, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge - ABSTRACT: EPA filed motion to dismiss as to Do—It—Yourself Pest Control, Inc. since its product produced little risk of environmental contamination. Technical errors by EPA. Dismissal of proceeding would teáhnically result in cancellation of registration in issue. In reality EPA is seeking withdrawal of notice of intent to cancel. CROSS REFERENCES: FIFRA §6(b) ------- REFERENCE: 40 CFR S164.21 CASE NAME: Chapman Chem. Co. 1 (Mercury) DOCKET #: 246 TITLE: Order DATE: April 1, 1974 PRESIDING OFFICIAL: David A. Schuenke, Judicial Officer and Assistant Director for Legislation ABStRACT: Administrator’s Notice adopted general findings of earlier mercury order and set forth factual basis for his action. Any notice is adequate in absence of a showing a party was misled. Notice here reasonably calculated to apprise registrants of nature of Administrator’s intent to remove registration and reasons. AU’s order sustained. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.21 CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order Denying Motions to Dismiss and Motion to Remand DATE: January 14, 1974 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Two separate bases for cancellation: (1) does not comply with provisions of Act, or (2) unreasonable adverse effects. These two situations are alter- natives. Legislative history clear. Purpose of 1972 amendments to provide for more complete regulation. FIFRA as amended does not require Administrator to take into account every economic, social and environ- mental cost and benefit before issuing Notice of Cancellation. Purpose of hearing is to present evidence on factors Administrator must take into account before he makes determination and issues an order. Possible existence of countervailing factors that would justify administrative decision to continue a registration despite substantial degree of risk does not justify failure to issue notice that triggers administrative process. Findings in notice adequately meet requirements of statute. CROSS REFERENCES: FIFRA §6(b) ------- REFERENCE: 40 CFR §164.21 CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order to File DATE: May 31, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge •ABSTRACT: Motion by respondent to clarify requirement that - registrants file objections pursuant to §164.21 in order to determine confines of controversy. Motion granted since it would cause little undue hardship and would help determine scope of proceedings. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.21 CASE NAME: Stevens Industries, Inc., et al. (DDT) DOCKET *: 63 TITLE: Order Granting Motion DATE: January 22, 1973 PRESIDING OFFICIAL: Marshall Miller, Special Assistant to Administrator, Judicial Officer ABSTRACT: Motion sets forth good cause to grant Lilly’s request and permit Lilly to use a label designed more particu- larly to fit peculiar considerations applicable to its product rather than label required by Administrator’s order of 7/7/72. CROSS REFERENCE: FIFRA §6(b)(2) 40 CFR §162.10 ------- 40 CFR §164.21(g) ------- REFERENCE: 40 CFR §164.21(g) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Perlman, Administrative Law Judge ABSTRACT: Risk—benefit analysis required by statute even with respect to “imminent hazard”. Risk here clearly one of cancer. Balanced against benefit, especially 1975 corn crop in drought year. (Aidrin) AU does not believe availability of Aldrin or lack thereof will significantly affect 1975 corn crop or other uses. (p. 74). CROSS REFERENCES: FIFRA §6(c)(l) (“Imminent hazard”) FIFRA §2(1) ------- REFERENCE: 40 CFR §164.21(g) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Failure on previous occasions of Administrator to find no “imminent hazard” does not prevent him from finding it based on new information or reevaulation. CROSS REFE1 ENCFS: FIFP.A §6(c)(l) (“Irir’inent hazard”) FIFRA §2(1) ------- 40 CFR §164.22 ------- REFERENCE: 40 CFR §164.22 CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Accelerated Decision DAT E: April 16, 1979 PRESIDING OFFICIAL: Ronald L. McCallum, Judicial Officer ABSTRACT: 40 CFR §164.22 must be construed using Amended Notice which requires person requesting a hearing to perfect request by objecting to “specific registered uses.” When read together, term “pesticide” is interchangeable with term “use”. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.22 CASE NAME: DBCP DOCKET #: 401, et al. TITLE: Order Denying Motion of Axnvac to Amend its Objection and Cross—Motion to Dismiss Amvac DATE: January 22, 1979 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: Aniendrnent to objections permitted because letter requesting hearing was drafted by laymen and should be liberally construed and because rules of practice provide for leave to amend objections when justice requires. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.22 CASE NAME: Kepone DOCKET #: 392 TITLE: Order Granting Motion to Dismiss and Order to File Proposed Findings, Conclusions, and Order DATE: September 27, 1977 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: As part of their obligation in requesting a hearing, petitioners are required to file objections setting forth the factual basis of their objections. Responses filed by petitioners to Administrative Law Judge’s Order to File (June 1, 1977) are not sufficient objections under Rules of Practice to entitle Petitioners to a hearing. Objections made by petitioners are either vague and without foundation or immaterial. CROSS REFERENCES: 40 CFR §164.20(b) ------- REFERENCE: 40 CFR §164.22 CASE NAME: Aceto Chemical Co. (Paraquat) DOCKET #: 484 TITLE: Accelerated Decision DATE: August 22, 1979 PRESIDING OFFICIAL: Nissen, Administrative Law Judge ABSTRACT: Aceto did not request hearing within thirty days. Only issue is whether Aceto made necessary correc- tions. Where registrant has attempted to make required corrections, statute is not self—executing and registrant’s submission must be reviewed and determination made whether corrections have in fact been accomplished. “Makes the ncessary corrections, if possible” does not mean to the extent possible. Because corrections required here consist chiefly of promises of future action not intended to be accomplished within any specific time period, reasons are not present for statutory requirement that failure to request a hearing or to effect required corrections within thirty day period results in automatic cancellation. Here a final notice of cancellation was required. Because record contains evidence from which it can be inferred such a notice was sent to Aceto, unnces— sary to decide propriety of cancellation absent a final notice. CROSS REFERENCES: FIFRA §6(b) (Hearing Requests) ------- REFERENCE: 40 CFR §164.22 CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Order With Respect to Intervention DATE: June 29, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Vermont and Rhode Island petitions fail to comply with §164.31 in that they fail to contain proposed objections to notice of intent to cancel (S164.22) and fail to comply with §164.31(b). AU would be inclined to look favorably on proper petition. Without knowing basis for requests for intervention, Respondent is unable to reply in detail. CROSS REFERENCES: 40 CFR §164.31 ------- 40 CFR §l 64 . 22 (a) ------- REFERENCE: 40 CFR §164.22(a) CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET *: 40]. TITLE: Accelerated Decision DATE: April 16, 1979 PRESIDING OFFICIAL: Ronald L. McCallum, Judicial Officer ABSTRACT: Amvac’s objections filed within 30 days but did not include registration numbers or copies of labeling as required by §164.22(a). Only registered use identified was tomatoes, which was not one of the uses to be cancelled. After 30 day period Ainvac moved to amend objections to include all uses. EPA moved to dismiss as to tomatoes and opposed objections. Administrative Law Judge denied EPA ’s motion as to tomatoes but sustained as to amending objections to include additional uses. This Administrative Law Judge’s order constitutes accelerated decision under §164.91(a)(l) from which appeal can be taken pursuant to §164.102. On appeal, none of Anwac’s exceptions sustained: CROSS REFERENCES: 40 CFR §164.20(b) ------- 40 CFR §164.22(b) ------- REFERENCE: 40 CFR §164.22(b) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Final Decision DATE: August 23, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Florida Citrus Mutual did not file its request for hearing until five days after deadline set in notice. FCM argues deadline specified in notice conflicts with §6(b) and thus unlawfully shortened 30 day deadline. FCM argues §6(b) should be interpreted to allow timeliness of a non—registrant’s request for hearing to be measured from either (1) 30 days following publication in Federal Register or (2) 30 days following any registrant’s receipt of the notice, which ever occurs later and that otherwise registrants would get more time than non—registrants. However, this interpretation could have opposite effect of giving all non—registrants more time than registrants if only one registrant receives notice after publica— tibri in Fed. Register. Reasonable to assume Congress did not intend completely equal treatment between registrants and non—registrants. Reasonable to infer from legislative history that publication provision in §6(b) primarily intended for non—registrants. Its benefit to registrants incidental. Constructive notice by publication in Federal Register adequate wherLJdentity and location of affected person not known or readily ascertainable. CROSS REFERENCES: FIFRA §6(b) (Timeliness of Request for Hearing) 40 CFR §164.20(a) ------- 40 CFR §164.23(b) ------- REFERENCE: 40 CFR §164.23(b) CASE NAME: 2,4,5—T DOCKET #: 295 TITLE: Order Denying Request for Certification DATE: April 17, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Contemplates amendments to statement of issues; this presumably will be done by Administrator only for clear and ascertainable reasons. Otherwise proceeding may never reach a conclusion if issues are successively amended to include each new substitute disclosed by the Responses filed. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.23(b) CASE NAME: 2,45-T DOCKET #: 295 TITLE: Order Denying Request for Certification DATE: April 17, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Unclear from EDF motion or EPA support thereof if major or minor enlargement of parameters of proceeding is sought. Supporting justifications mostly mere conjecture. Should Administrator, in response to proper motion, grant a request for enlargement, no reason why testimony as to expanded issues cannot be presented at the end of its presentation. No time extension needed. CROSS REFERENCES: 40 CFR §164.6(b) ------- REFERENCE: 40 CFR §164.23(b) CASE NAME: 2,4,5—T DOCKET #: 295 TITLE: Order Denying Request for Certification DATE: April 17, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: One registrant acting on validly assumed starting date has established a special Washington office and obtained apartments for its personnel working on the case. Delay will prejudice this registrant. Strong public interest considerations which are not served by inordinate delay. CROSS REFERENCES: 40 CFR §6(b) (Delay of proceeding) ------- 40 CFR §164.24 ------- REFERENCE: 40 CFR §164.24 CASE NAME: Mirex DOCKET #: 293 TITLE: Order DATE: June 25, 1976 PRESIDING OFFICIAL: D. Harris, Administrative Law Judge ABSTRACT: Order substituting as party the entity to which registrations of previous party were transferred. CROSS REFERENCES: ------- |