40 CFR Ji64.31 ------- REFERENCE: 40 CFR §164.31 CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Granting Motion for Leave to Intervene by Arkansas Seed Growers Ass’n and Louisiana Rice Seed Growers Ass’ri DATE: March 11, 1981 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Association’s Reply to Response of Respondent. Opposing Motion for Leave to Intervene satisfies requirements of 40 CFR §164.31. Motion for Leave to Intervene granted. Intervenors bound by Rules of Procedure, especially re filing of written statements and service. This will enable all parties to determine whether or not testimony is duplicative or repetitious and then take whatever action is deemed appropriate. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.31 CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Order Terminating the DBCP Cancellation Hearing DATE: March 6, 1981 PRESIDIN G OFFICIAL: Walter Barber, Acting Administrator ABSTRACT: Only remaining parties who could object to continued DBCP use on pineapples are intervenors and as such are limited to addressing issues legitimately presented in notice of cancellation and raised by parties with a right to compel a hearing. No controversies remain since cancellation notice is being withdrawn. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.31 CASE NAME: Environmental Defense Fund (Chlorobenzi].ate) 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 man 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 c nmon ground for denying intervention. CROSS REFERENCES: FIFRA §6(b) (Adversely affected) 40 CFR §164.20(a) ------- REFERENCE: 40 CFR §164.31 CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Motions for enlargement of time here could have been treated as motions for leave to intervene under §164.31. However, under circumstances (dismissal of the proceeding) leave to intervene prior to dismissal is inappropriate and improper. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.31 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 §164.22 ------- REFERENCE: 40 CFR §164.31 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: American Ass’n of Nurserymen’s petition shows good cause and leave to intervene granted. However, petitioners required to amend petition to provide more detail. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.31 CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Leave to Intervene DATE: April 28, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: NACA has demonstrated an interest which, absent complications, would establish a right to intervene. However, motion filed five months after first prehearing conference and 20 months after issuance of notice of intent to cancel. NACA has shown “good cause” for failure to file earlier since its interest in proceedings only arose after certain issues were raised. Also, NACA agrees to be bound by agreements, etc. previously made in proceedings and does not seek to broaden issues. No prejudice to others. Motion granted. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.31 CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Leave to Intervene DATE: April 14, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Attorney General and Dept. of Agriculture of State of Hawaii motion for leave to intervene. In appro- priate case motion should be granted; also intervention will not unreasonably broaden issues. However, §164.31 provides motion must ordinarily be filed prior to commencement of first prehearing conference and motion filed thereafter shall only be granted upon finding of extraordinary circumstances. Movants here have set forth extraordinary circumstances justifying intervention based on questionable avail- ability of substitute for heptachior (issue arose after second prehearing conference) and participation of movants in H/C suspension proceeding. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.31 CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Order to File DATE: April 14, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Technical failure of NACA to file for leave to intervene (motion filed late); no good cause shown. §164.31(b) provides that late filing petition must show good cause for failure to file on time. §164.31(g) requires filing of proposed objections to notice of intent to cancel. No pro- posed objections were filed by NACA. NACA given time extension to file objections. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.31 CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordarie) 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 references 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: FIFRA §6(b) ------- REFERENCE: 40 CFR §164.31 CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order Modifying Prior Order DATE: May 31, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Prior order granted leave to intervene on assumption that company, not its employee, was moving party. Employee was movant and does not intend to partici- pate. He is in reality requesting status amicus curiae and not as intervenor. Ainicus status granted. CROSS REFERENCES: ------- 40 CFR §164.31(a) ------- REFERENCE: 40 CFR §164.31(a) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Denial of Leave to Intervene DATE: January 4, 1973 PRESIDING OFFICIAL: Perlman, Administrative Law Judge ABSTRACT: Letters from two people considered motions to intervene but do not meet requirements of §164.25(a) and movants do not appear to desire to participate as parties. CROSS REFERENCES: ------- 40 CFR §164.31(b) ------- REFERENCE: 40 CFR §164.31(b) CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Order Granting Occidental Chemical Co. Leave to Intervene in Section 6(b)(l) Proceeding DATE: May 22, 1979 PRESIDIWG OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: 40 CFR §164.31 places more stringent requirements on intervention if motion is filed after first pre— hearing conference (must show good cause). Need finding of extraordinary circumstances and intervenor shall be bound by all agreements etc. previously made. First prehearing conference here is one within meaning of §164.31, even though only scope of hearing was considered. Since only scope considered, intervention here would not interfere with progress of the proceeding. Good cause shown here. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.31(b) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Order Granting Limited Intervention DATE: August 26, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Provisions of §164.31(b) alternative, not conjunctive. CROSS REFERENCES: ------- 40 CFR §164.31(c) ------- REFERENCE: 40 CFR §164.31(c) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Order Granting Limited Intervention DATE: September 7, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: State of Iowa granted leave for limited intervention for same reasons as State of Missouri granted leave in Order dated 8/26/77. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.31(c) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Order Granting Limited Intervention DATE: August 26, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: State of Missouri, Dept. of Agriculture and its Director, in appropriate case should be granted leave to intervene (adequate interest demonstrated). If private person had filed leave to intervene it would be denied due to lateness and fact that petitioner’s interest would be adequately protected and presented by others. But, dealing here with sovereign state, and AU feels comity should be extended. Therefore, leave to intervene granted for a limited purpose. Leave is not hereby granted merely for presentation of cumulative evidence. CROSS REFERENCES: ------- 40 CFR §164.31(d) ------- REFERENCE: 40 CFR §164.31(d) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET #: 145 TITLE: Order Denying Permission to File Brief Amicus Curiae DATE: September 26, 1974 PRESIDING OFFICIAL: Michael K. Glenn, Chief Judicial Officer ABSTRACT: Rules of practice re: motions provide an opportunity for any party to file an answer to a motion. Here it is an expedited proceeding and no time exists for an answer. Also, since brief here focusses on broader aspects of case and substantive points, unlikely it includes material considerations not already presented in other briefs. CROSS REFERENCES: 40 CFR §164.60 ------- REFERENCE: 40 CFR §164.31(d) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Order Denying Motion DATE: September 16, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Motion to file a brief amicus curiae filed pursuant to §164.31(d) in suspension proceeding. §164.31(d) applies to cancellation proceedings only. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.31(d) CASE NAME: 2,4,5—T DOCKET #: 295 TITLE: Order Granting Motions DATE: December 17, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACTI Leave is granted to Society of American Foresters to file a brief amicus curiae. Administrative Law Judge observes that movant cannot introduce new evidence and expert opinion in its brief. Suggests SAF contact EPA program office to arrange for introduction of its evidence. CROSS REFERENCES: ------- 40 CFR §l 64 .32(a) ------- REFERENCE: 40 CFR §164.32(a) 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: §164.32(a) does not prohibit proposal regarding mechanics and scheduling of hearing sessions, to be worked out at prehearing conference. Burden of going forward still on respondent. CROSS REFERENCES: 40 CFR §164.50(a) 40 CFR §164.80 ------- 40 CFR §164.40 ------- REFERENCE: 40 CFR §164.40 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: Order of Remand does not violate requisite ind?pendence of hearing officer or violate due process any more than a judicial remand would. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.40 CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension DOCKET #: 384 TITLE: Notice of Denial of Motion to Reconsider Administrator’s Denial of Request for Interlocutory Review - DATE: November 8, 1975 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: Velsicol’s motion claims apprehensions as to prejudg- ment expressed in early Motion (Aug. 23, 1975) which was denied re: appointment of Judge Penman to suspension hearing have been borne out by subsequent conduct of hearing. Issue of personal bias. Velsicol also requests Administrator recuse himself from participation in suspension based on prejudgment and his public announcement at news conference of Notice of Suspension findings. Held: no merit in grounds for reconsiderat .on asserted by Velsicol. Velsicol cites no incident of Perlman’s alleged bias. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.40 CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane 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 objects to appointment of Judge Penman as presiding officer in suspension because of his role in H/C cancellation and aldrin/dieldrin suspension and also claims failure to rotate AU’s. Reconsidera- tion of appointment of Judge Perlman denied. Makes good sense to use Penman because he has benefit of experience in H/C cancellation. CROSS REFERENCES: Administrative Procedure Act, 5 U.S.C. §3105 ------- REFERENCE: 40 CFR §164.40 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 §164.20(c) ------- REFERENCE: 40 CFR §164.40 CASE NAME: Stevens Industries, et al. (DDT) DOCKET #: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Alleged behavior of member of advisory committee does not result in prejudgment by final deciding authority prior to formal adjudication. CROSS REFERENCES: 40 CFR §164.50(e) ------- 40 CFR §164.40(b) ------- REFERENCE: 40 CFR S164.40(b)(l) CASE NAME: DBCP Cancellation DOCKET : 401 TITLE: Dismissal of Appeal of Order Denying Motion to Disqualify DATE: April 7, 1980 PRESIDING OFFICIAL: Douglas Costle, Administrator - ABSTRACT: Because of nature of motion to disqualify on grounds of bias, §l64.40(b)(l) requires presiding officer to grant a request to certify an adverse ruling for interlocutory appeal regardless of his own views of the merits of the motion. Exception to rule in §164.100. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.40(b) CASE NAME:. Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Order Denying Motion to Disqualify DATE: February 19, 1980 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: In absence of showing warranting disqualification, duty of Judge to preside equally as strong as duty not to preside where disqualified. Rulings now asserted as erroneous by Ainvac were never questioned on appeal of recommended decision of suspension cases—— shows lack of substance to Amvac’s claims of bias. Not true that Administrative Law Judge ruled against Amvac consistently during suspension proceedings. Reasons given for all rulings. Disagreement with rulings does not establish bias. Appeal process available for allegedly erroneous rulings. Even if he had uniformly ruled against Amvac,wouldnot follow that thér was bi s r thei €h n impartial appraisal of merits. Bias must stem from an extra—judicial source and result in opinions on merits on basis other than what Judge learned from participation in case. Participation in suspension proceeding will not prevent impartial consideration in cancellation hearings. Differences between the two proceedings. A judge is not incapable of impartially and fairly presiding in a case by fact he has participated in prior judicial proceedings in that case, even when case is returned to Judge on remand after reversal. CROSS REFERENCES: 40 CFR §164.40(c) ------- 40 CFR §164.40(c) ------- REFERENCE: 40 CFR §164.40(c) CASE NAME: DBCP Cancellation DOCKET #: 401 TITLE: Dismissal of Appeal of Order Denying Motion to Disqualify DATE: April 7, 1980 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Question is whether previous findings by presiding officer will prevent impartial consideration of evidence. No foundation for per Se rule prohibiting same Administrative Law Judge from presiding at both suspension and cancellation proceedings. Comparison to court hearings on preliminary and permanent injunctions. Cites FRCP, Rule 65(a)(2). CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.40(c) CASE NAME: DBCP Cancellation DOCKET *: 401 TITLE: Dismissal of Appeal of Order Denying Motion to Disqualify DATE: April 7, 1980 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Petitioner has failed to establish grounds for disqualification. Need to show bias or prejudice stemming from an extrajudicial source. Officer in FIFRA suspension cannot be a passive observer; he must form opinions to make decisions. Number of rulings for or against a party cannot establish extrajudicial bias. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.40(c) CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Order Denying Motion to Disqualify DATE: February 19, 1980 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: In absence of showing warra.nting disqualificatfon, duty of Judge to preside equally as strong as duty not to preside where disqualified. Rulings now asserted as erroneous by Amvac were never questioned on appeal of recommended decision of suspension cases-— shows lack of substance to Amvac’s claims of bias. Not true that Administrative Law Judge ruled against Axnvac consistently during suspension proceedings. Reasons given for all rulings. Disagreement with rulings does not establish bias. Appeal process available for allegedly erroneous rulings. Even if he had uniformly ruled against Amvac, would not follow that there was bias rather than impartial appraisal of meri-ts. Bias-must stem from an extra—judicial source and result in opinions on merits on basis other than what Judge learned from participation in case. Participation in suspension proceeding will not prevent impartial consideration in cancellation hearings. Differences between the two proceedings. A judge is not incapable of impartially and fairly presiding in a case by fact he has participated in prior judicial proceedings in that case, even when case is returned to Judge on remand after reversal. CROSS REFERENCES: 40 CFR §164.40(b) ------- 40 CFR §164.40(d) ------- REFERENCE: 40 CFR §164.40(d) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Suspension Order and Final Decision DATE: October 29, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Question is whether bifurcation of proceeding - into risks and benefits resulted in exclusion of important evidence. 5 U.S.C. §556(c)(5) gives presiding officer power to regulate course of the hearing, including bifurcation. Held: no error. Standard would be stricter in cancellation proceeding than in suspension proceeding which is expedited in nature. CROSS REFERENCES: Administrative Procedure Act, 5 U.S.C. §556(c)(5) ------- REFERENCE: 40 CFR §164.40(d) (Authority of AU to Invalidate Registrations) CASE NAME: 15 Herbicides Registrations — Velsicol DOCKET : 483 TITLE: Order Denying Motion by Velsicol to Dismiss Cancellation Proceeding or for Sumn ary Judgment, and for Stay Pending Deterir’ination of Motion DATE: September 21, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Authority to invalidate registrations not vested in AU. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.40(d) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 - TITLE: Order Granting Motion DATE: February 3, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Evidence should be presented for record as soon as possible, as the summarization and analysis thereof is essential to its usefulness. Respondents need to present rebuttal. Respondent to address issue of feasibility and environmental effects of recall and controlled disposal should H/C be cancelled. CROSS REFERENCES: 40 CFR §164.80(a) ------- REFERENCE: 40 CFR §164.40(d) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Collaborative Study DATE: May 6, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: AU lacks authority to order a collaborative study. Also, lacks authority to require respondent to expend substantial sums which are not available for data gathering. This is a matter for technical people of Velsicol and Respondent to work out. CROSS REFERENCES: Data Production Requirement By AU ------- REFERENCE: 40 CFR §164.40(d) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Recommended Decision DATE: September 20, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: USDA raises several procedural questions, all rejected by AU. Unlikely cancellation proceeding would be completed before date for 1975 corn planting. Issue as to date on which suspension hearing should have commenced. Held: Two day delay (occasioned oy large number of parties) not prejudicial. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.40(d) (Production of Documents) 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 seeks all documents etc. sought in interro— gatories, and subpoena to compel their production. By virtue of AU’s ruling re interrogatories, this request is also denied. CROSS REFERENCES: 40 CFR S164.51 (Production of Docurients) ------- REFERENCE: 40 CFR §164.40(d) (Interrogatories) 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: Rules of practice contain no provision for propounding interrogatories to OGC. AU lacks authority to order that respondent supply requested information. Stated purpose for interrogatonies (i.e. as prelimi- nary for motions for subpoenas) also beyond AU’s powers. CROSS REFERENCES: 40 CFR §164.51 (Interrogatories) ------- 40 CFR §164.50 ------- REFERENCE: 40 CFR §164.50 CASE NAME: Mirex DOCKET #: 293 TITLE: Prehearing Conference Order No. 3 DATE: August 9, 1973 PRESIDING OFFICIAL: D. Harris, Administrative Law Judge ABSTRACT: Parties required to exchange witness lists, pre—file documentary evidence with hearing clerk, stipulate authenticity of documents or file objections thereto. CROSS REFERENCES: ------- REFERENCE: 40 CFR S164.50 CASE NAME: Stevens Industries, Inc., et al. (DDT) DOCKET #: 63 TITLE: Order Denying Motion DATE: January 16, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Dismissal with prejudice is a drastic sanction to be applied only in extreme situations and is not warranted herein (failure of registrant to supply witness list). CROSS REFERENCES: Dismissal with prejudice ------- 40 CFR §l 64 .50(a) ------- REFERENCE: 40 CFR §164.50(a) CASE NIAME: 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: §164.32(a) does not prohibit proposal regarding mechanics and scheduling of hearing sessions, to be worked out at prehearing conference. Burden of going forward still on respondent. CROSS REFERENCES: 40 CFR §164.80 40 CFR §164.32(a) ------- REFERENCE: 40 CFR §164.50(a) 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: EPA regulations encourage parties who wish referral to NAS to do so at early stage of proceedings. §164.50(a) makes requests to NAS one of ten specific matters to be considered at prehearing conference. No request by NCAP prior to risk hearings. CROSS REFERENCES: ------- REFERENCE: 40 CFR S164.50(a)(10) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Order Denying Field Hearings in Los Angeles DATE: August 16, 1979 PRESIDING OFFICIAL: ABSTRACT: In fixing place of hearings, consideration should be given to convenience of all parties, witnesses and the public interest (including expedited nature of suspension proceedings). Here, all parties but two have D.C. counsel. Only a few of the 47 witnesses reside near Los Angeles. Travel to Los Angeles will take too much time during expedited process. Motion denied. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.50(a)(lO) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Order Granting Limited Intervention DATE: August 26, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: AU has reservations about cost and delay resulting from field hearings in Missouri. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.50(a)(10) CASE NAME: Mirex DOCKET #: 293 TITLE: Order DATE: March 17, 1975 PRESIDING OFFICIAL: D. Harris, Administrative Law Judge ABSTRACT: Order approving parties’ consent to cross—examine by written interrogatories a witness whose illness prevented travel to Washington, D.C. Order sets out detailed implementation of written mechanisms. CROSS REFERENCES: 40 CFR §164.81(a) (Cross—examination) ------- 40 CFR §l 6 4.50(b) ------- REFERENCE: 40 CFR §164.50(b) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 - TITLE: Order on Incorporation DATE: April 27, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Discovery in cancellation proceedings is limited in nature. CROSS REFERENCES: 40 CFR §164.51 ------- REFERENCE: 40 CFR §164.50(b) CASE NAME: 2,4,5—T DOCKET #: 295 TITLE: Procedural Order DATE: March 11, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Establishes date for witness lists and narrative summaries of their expected testimony, proposed documents and exhibits. It is appropriate that a date be specified for filing supplemental lists after opportunity for review of initial filings of other parties. CROSS REFERENCES: ------- 40 CFR §164.50(e) ------- REFERENCE: 40 CFR §164.50(e) 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: F .nch, 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’ t . CROSS REFERENCES: FIFRA §6(d) ------- REFERENCE: 40 CFR §164.50(e) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) 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 WAS, not AU. CROSS REFERENCES: FIFRA §6(d) ------- REFERENCE: 40 CFR §164.50(e) CASE NAME: Velsicol Chem. Co. (Heptach].or/Chlordane 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: FIFRA §6(d) (Referral to NAS) ------- REFERENCE: 40 CFR §164.50(e) 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 determined, or not directly relevant. CROSS REFERENCES: FIFRA §6(d) ------- REFERENCE: 40 CFR §164.50(e) CASE NAME: Velsicol Chem. Co. (Heptachlor/Chlordane 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: USDA seeks review of decision of AU denying USDA motion to refer scientific questions to committee of NAS. Earlier motions re NAS by Velsicol and NACA denied. This motion raises issue of whether Rules of Practice Governing Hearings under FIFRA provide for referral of scientific questions to NAS in suspension hearings. Held: unable to conclude AU erred in denying USDA’S motion for referral to NAS in suspension proceeding. No provision in Rules for interlocutory review by Administrator of rulings of AU in suspension proceedings. CROSS REFERENCES: 40 CFR §164.100 ------- REFERENCE: 40 CFR §164.50(e) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Notice of Denial of Request for Interlocutory Review and Reconsideration by the Administrator DATE: October 2, 1975 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: No basis for reviewing Judge Penman’s decision to defer ruling on motion pending in cancellation proceeding which seeks appointment of a committee of the NAS. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.50(e) 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: FIFRA §6(d) (Referral to NAS) 40 CFR §164.100 ------- REFERENCE: 40 CFR §164.50(e) 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 , _ o very meaningful or g. or co tempiated 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: FIFRA §6(d) ------- REFERENCE: 40 CFR §164.50(e) CASE NAME: Science Products Co. et al. (Zero Tolerance) DOCKET #: 245 TITLE: Order Denying Notions 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: FIFRA §6(d) ------- REFERENCE: 40 CFR §164.50(e) 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: FIFRA §6(d) ------- REFERENCE: 40 CFR §164.50(e) 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: FIFRA §6(d) ------- REFERENCE: 40 CFR §164.50(e) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Ruling on Motions and Requests DATE: June 28, 1973 PRESIDING OFFICIAL: Perlinan, 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 AU 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: FIFRA §6(d) ------- REFERENCE: 40 CFR §164.50(e) CASE NAME: Stevens Industries, et al. (DDT) DOCKET *: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Alleged behavior of member of ad’.’isory committee does not result in prejudgment by final deciding authority prior to formal adjudication. CROSS REFERENCES: 40 CFR §164.40 ------- REFERENCE: 40 CFR S164.50(e) CASE NAME: Stevens Industries, et al. (DDT) DOCKET #: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administative 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 commit e _repp t - CROSS REFERENCES: FIFRA §6(d) 40 CFR §164.81(b) ------- REFERENCE: 40 CFR §164.50(e) 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 ain endment 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: FIFRA §6(d) ------- REFERENCE: 40 CFR §164.50(e)(2) 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: FIFRA §6(d) ------- REFERENCE: 40 CFR §164.50(e)(2) 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: Harwcod, Administrative Law Judge ABSTRACT: Requests for referral to NAS 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: FIFRA S6(d) ------- REFERENCE: 40 CFR §164.50(e)(4) 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: Late requests for NAS referral are subject to “good cause” requirement in addition to “necessary and desirable” standard. No excuse offered here for filing late (three years) and no “good cause” showing made. CROSS REFERENCES: ------- 40 CFR §164.51 ------- REFERENCE: 40 CFR §164.51 CASE NAME: Velsicol Chemical Corp. (Heptach].or/Chlordane) DOCKET #: 336 TITLE: Order on Incorporation DATE: April 27, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Discovery in cancellation proceedings is limited in nature. CROSS REFERENCES: 40 CFR §164.50(b) ------- REFERENCE: 40 CFR §164.51 (Production of Documents) 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 seeks all documents etc. sought in interro— gatories, and subpoena to compel their production. By virtue of ALJ t s ruling re interrogatories, this request is also denied. CROSS REFERENCES: 40 CFR S164.40(d) (Production of Documents) ------- REFERENCE: 40 CFR §164.51 (Interrogatories) 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: Rules of practice contain no provision for propounding interrogatories to OGC. AU lacks authority to order that respondent supply requested information. Stated purpose for interrogatories (i.e. as prelimi- nary for motions for subpoenas) also beyond AU’s powers. CROSS REFERENCES: 40 CFR §164.40(d) (Interrogatories) ------- REFERENCE: 40 CFR §164.51 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 §164.70 FIFRA §6(d) (Subpoenas) ------- 40 CFR §164.51(a) ------- REFERENCE: 40 CFR §164.51(a) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Denying Dow’s Motion for Production of Documents DATE: April 2, 1981 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: EPA bases its refusal to hand over document, requested by EPA from author after trial preparation was under- way and prepared at request of OGC, not OPP, on “work product” doctrine of Rule 26(b)(3). This rule protects documents prepared in anticipation of liti- gation. Release of document would arguably reveal directly or indirectly mental impressions of EPA attorneys. Factual data in report available in the public literature. Hard to segregate factual material from opinions and conclusions. To overcome “work product” qualified immunity, Dow must show document contains evidence essential to the preparation of its case and not otherwise available. Stringent standaid of good cause not shown here by Dow. CROSS REFERENCES: Federal Rules of Civil Procedure, Rule 26(b(3) ------- REFERENCE: 40 CFR §164.51(a) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Ruling of Motion for Discovery by O.M. Scott & Sons. Co.’ DATE: December 12, 1974 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Scott’s request for list of projects commissioned or undertaken by Respondent and total dollars spent thereon on research related to issues presented denied because request is too broad; it is not established that information sought is relevant and that it will have significant probative value; and the information is otherwise obtainable. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.51(a) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order Denying Motions DATE: October 30, 1973 PRESIDING OFFICIAL,: Penman, Administrative Law Judge ABSTRACT: Registrants seek time prior to filing of answering brief within which to invoke discovery. AU refers them to §164.51(a). Registrants may at this stage in proceedings merely deny, if appropriate, questioned statements from respondent’s brief. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.51(a) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Order to File DATE: September 14, 1973 PRESIDING OFFICIAL: Per].man, Administrative Law Judge ABSTRACT: Motions filed by respondent for issuance of subpoenas lack information to enable AU to determine whether requirements of §164.51(a) have been met; especially as to whether information is otherwise obtainable. ROSS REFERENCES: ------- 40 CFR §164.51(b) ------- REFERENCE: 40 CFR §164.51(b) CASE NAME: 15 Herbicides Registrations — Velsicol DOCKET #: 483 TITLE: Order Denying Motion of Dow for Leave to Conduct Depositions Upon Oral Questions, and Order to File DATE: September 21, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Dow’s Motion for Leave to Conduct Depositions denied because there has been discovery on same issue (identity of data) in related compensation proceeding, and more definitive information cannot be obtained from Registration Division in absence of negotiations between parties in attempt to narrow the issue of reliance. Order does not apply to pre—1972 data pending outcome of Amchem v. GAF . CROSS REFERENCES: ------- 40 CFR §164.60 ------- REFERENCE: 40 CFR §164.60 CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET #: 145 TITLE: Order Denying Permission to File Brief Axnicus Curiae DATE: September 26, 1974 PRESIDING OFFICIAL: Michael K. Glenn, Chief Judicial Officer ABSTRACT: Rules of practice re: motions provide an opportunity for any party to file an answer to a motion. Here it is an expedited proceeding and no time exists for an answer. Also, since brief here focusses on broader aspects of case and substantive points, unlikely it includes material considerations not already presented in other briefs. CROSS REFERENCES: 40 CFR §164.31(d) ------- REFERENCE: 40 CFR § L64.60 (Inclusion of Multiple Unrelated Matters in Single Pleading) 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: EPA Rules of Practice contain no specific prohibition against inclusion of two or more unrelated matters in a single pleading. It is, nevertheless, an unjustifiable practice since it does not provide opportunity to respond. CROSS REFERENCES: ------- 40 CFR §164.60(b) ------- REFERENCE: 40 CFR §164.60(b) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Granting Motion for Extension of Time for Filing Risk Witness List by NCAP and Denying Motion for Provision of Time to Comply with Orders DATE: August 22, 1979 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: All parties permitted ten days after service to respond to any motion, with three additional days when service is by mail. In abnormal case, an enlargement of time to respond may be granted on a case—by—case basis pursuant to 40 CFR §164.6(b). CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.60(b) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Order to Fi-le DATE: September 14, 1973 PRESIDING OFFICIAL: Perlman, Administrative Law Judge ABSTRACT: Respondent will have, pursuant to §164.60(b), until Oct. 1, 1973 to file reply to answer, which reply is also to address itself to §164.51(a). CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.60(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 §164.6(b) ------- 40 CFR §164.60(c) ------- REFERENCE: 40 CFR §164.60(c) CASE NAME: Environmental Defense Fund (Chlorobeozilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Penman, Administrative Law 3udge ABSTRACT: EDF’s request for oral argument at this stage of proceeding denied. Oral argument before Judicial Officer upon exceptions to Accelerated Decision would be more meaningful and productive. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.60(c) CASE NAME: Shell Chemical Co. Aldrin/Dieldrin Suspension) DOCKET #: 145 TITLE: Order Denying Request for Oral Argument DATE: September 26, 1974 PRESIDING OFFICIAL: Michael K. Glenn, Chief Judicial Officer ABSTRACT: Request for oral argument denied based on large volume of written material to be reviewed. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.60(c) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET if: 145 TITLE: Order Denying Request for Oral Argument DATE: September 23, 1974 PRESIDING OFFICIAL: Michael K. Glenn, Chief Judicial Officer ABSTRACT: Review by Administrator of testimony has commenced. Large volume of testimony to be reviewed and short time available are reasons for denial of request for oral argument. CROSS REFERENCES: ------- 40 CFR §164.70 ------- REFERENCE: 40 CFR §164.70 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: FIFRA §6(d) (Subpoenas) ------- REFERENCE: 40 CFR §164.70 CASE NAME: Dow Chemical Co. (2,4,5-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: Federal Rules of Civil Procedure, Rule 45 FIFRA §6(d) (Subpoenas) ------- REFERENCE: 40 CFR §164.70 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: FIFRA §6(d) (Subpoenas) ------- REFERENCE: 40 CFR §164.70 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 FIFRA §6(d) (Subpoenas) ------- REFERENCE: 40 CFR l64.7O CASE NAME: Dow Chemical Co. (24,5—T & Silvex Cancellatiàn) DOCKET #: 415 TITLE: Order Granting Motion to Vacate Subpoenas Duces Tecum Against University of Wisconsin and Subpoenas Ad Testificandum Issued to Dr. Allen and Dr. Barsotti DATE: March 25, 1981 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: EPA motion to vacate subpoenas claiming University of Wisconsinss refusal to release the information encou- rages doubt re validity of 50 ppt study. Even if this study were to remain in the record, its probative value is nil since there was no opportunity for cross—examination. AU disagrees that subpoenas should be vacated with prejudice. CROSS REFERENCES: 40 CFR §164.81(a) ------- REFERENCE: 40 CFR §164.70(a) CASE NAME: Dow Chemical Co. (24,5—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 OGC, EPA for transmittal to Dept. of Justice for appropriate action. CROSS REFERENCES: FIFRA §6(d) (Subpoenas) ------- REFERENCE: 40 CFR §164.70(a) CASE NAME: IX,w Chemical Co. (24,5—T & Silvex Cancellation) DOCKET 4 : 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 §164.51 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 REFERENCES: FIFRA §6(d) (Subpoenas) ------- 40 CFR 164.80 ------- REFERENCE: 40 CFR §164.80 CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Order Granting Motions DATE: February 3, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Burden of proof, even aside from §164.80(b), is a practical matter. Clear that material or informa- tion involved here should be presented by registrant— petitioners. No undue burden since data readily obtainable. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.80 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’s) use. EDF v. EPA , 465 F.2d 528 (C.A.D.C. 1972). CROSS REFERENCES: FIFRA §2(bb) FIFRA §6(b) ------- REFERENCE: 40 CFR §164.80 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: FIFRA §2(bb) 40 CFR §162.11(b) ------- REFERENCE: 40 CFR §164.80 CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Clarification of Evidence Which May Be Introduced In Hearing on Suspension of Registrations of Pesticides Containing Heptachior or Chlordane DATE: August 6, 1975 PRESIDING OFFICIAL: John Quarles, Deputy Administrator ABSTRACT: In satisfying its burden of going forward to present affirmative case, proponent of suspension is not required to present evidence to establish points referred to in Notice of Intent to Suspend as basis for evaluating carcinogenicity. In satisfying its ultimate burden of persuasion, however, proponent of registration shall have the right to submit evidence in challenge of these points subject to rebuttal. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.80 CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Ruling With Respect to Rebuttal Evidence On Substitutes DATE: July 2, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Registrants entitled to opportunity to present rebuttal evidence regarding substitutes listed in Respondent’s Notice of Substitutes. . .“ Cites Administrator’s Opinion in Stevens Industries (Docket *63) re burden of proof. No previous opportunity for adequate rebuttal. Scope of rebuttal as defined in Stevens Opinion. Registrants may choose to show non—viability of alternatives and non—desirability (or risk) of alternatives. CROSS REFERENCES: Burden of Proof on Alternatives ------- REFERENCE: 40 CFR §164.80 CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order to File DATE: May 30, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Respondent has not made clear its position regarding substitutes or alternatives to mercurial pesticides. Ordered to do so and specifically address: (1) whether respondent is relying on fact preferable substitutes are available, (2) position re: respondent’s obliga- tion to show availability of substitutes, and (3) whether respondent as part of its affirmative case has offered evidence to show availability of all preferable substitutes or alternatives for each of the uses subject to the hearing, (4) respondent’s position regarding recommendations of substitutes. Cites Administrator’s opinion re: burden of proof in Stevens Industries (Docket #63). CROSS REFERENCES: Burden of Proof on Alternatives ------- REFERENCE: 40 CFR §164.80 CASE NAME: Mason Chemical Co. (Consolidated into #245) DOCKET #: 296 TITLE: Initial Decision DATE: May 19, 1975 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Proceedings as to Mason Chem. Co. and Saisbury Labs terminated with prejudice since neither company offered any testimony or otherwise supported a continuance of registrations. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.80 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 fDr 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 S162.11(b)(l) ------- REFERENCE: 40 CFR §164.80 CASE NAME: S. W. Cowley & Sons Mfg. Co. (arsenic trioxide) DOCKET #: 341 TITLE: Initial Decision on Remand DATE: August 19, 1976 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Registrant’s product has not met 90% standard under criteria set forth by EPA. Therefore, AU concludes Registrant has not satisfied burden of showing efficacy. Present lab analysis of efficacy is a reasonable and proper method. Mortality rate to be accomplished in lab must be higher than under actual field conditions. Lab results must be in the order of 90% mortality. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.80 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: Burden of proof in establishing safety of a product in both cancellation and suspension proceedings remains at all times with the registrant. CROSS REFERENCES: 40 CFR §164.121(g) ------- REFERENCE: 40 CFR §164.80 CASE NAME: 2,4,5—T DOCKET #: 295 TITLE: Administrative Law Judge Document Re: Procedure DATE: May 15, 1974 PRESIDIWG OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Requires that EPA proceed first followed by intervenors in support of cancellations (EDF). To require the various parties to specify an order of witnesses prior to hearing the EPA and EDF presen- tations would be meaningless and unproductive as other parties would have right to amend and modify any such lists. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.80 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: §164.32(a) does not prohibit proposal regarding mechanics and scheduling of hearing sessions, to be worked out at prehearing conference. Burden of going forward still on respondent. CROSS REFERENCES: 40 CFR §164.50(a) 40 CFR §164.32(a) ------- REFERENCE: 40 CFR §164.80 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 §164.20 ------- REFERENCE: 40 CFR §164.80 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: Burden of proof addressed in FIFRA legislative history is burden of persuasion which requires a party to establish existence of primary facts relating to registration. Burden of going forward is generally a rule to establish the order for the presentation of evidence. Where a party which has the burden of going forward fails to satisfy that burden, the facts will be decided against him, even though the other party may have been responsible for the burden of persuasion. In a FIFRA cancellation hearing the proponent of cancellation bears the burden of going forward, but does not bear the burden of persuasion. CROSS REFERENCES: ------- 40 CFR §164.80(a) ------- REFERENCE: 40 CFR §164.80(a) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Order Granting Motions DATE: February 3, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Evidence should be presented for record as soon as possible, as the summarization and analysis thereof is essential to its usefulness. Respondents need to present rebuttal. Respondent to address issue of feasibility and environmental effects of recall and controlled disposal should H/C be cancelled. CROSS REFERENCES: 40 CFR §164.40(d) ------- REFERENCE: 40 CFR §164.80(a) 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 EDF V. Ruckelshaus , 439 F.2d 584 (D.A.D.C. 1971) and other cases. CROSS REFERENCES: FIFRA §2(bb) FIFRA §6(b) ------- 40 CFR §164.80(b) ------- REFERENCE: 40 CFR §164.80(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: Placing burden of persuasion on registrant is proper and does not violate registrants’ right to due process or violate APA §556(d). CROSS REFERENCES: Administrative Procedure Act, 5 U.S.C. §556(d) ------- REFERENCE: 40 CFR §164.80(b) CASE NAME: S. W. Cowley & Sons Mfg. Co. (arsenic trioxide) DOCKET #: 341 TITLE: Initial Decision on Remand DATE: August 19, 1976 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Given a record where neither side is conclusive, a decision on merits must be predicted on the ability or failure to sustain the ultimate burden of proof which is on Registrant. Registrant has failed to adduce a preponderance of evidence demonstrating either that 90% standard is unreasonable or that some other standard would be more valid. Has also failed to produce evidence sufficient to find its product is in compliance with standard advocated by Respondent. Therefore, has not met burden of pre— suasion as to efficacy. CROSS REFERENCES: ------- REFERENCE: 40 CFR S164.80(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 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 AU’s weighing of relative risks and benefits with respect to some uses. CROSS REFERENCES: FIFRA §6(b) FIFRA §2(bb) 40 CFR §162.11 ------- 40 CFR §164.80(c) ------- REFERENCE: 40 CFR §164.80(c) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order on Respondent’s Motion to Dismiss as to Certain Parties DATE: March 5, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Respondent’s motion to dismiss (for failure to file motions to dismiss or proposed findings and conclusions of law) denied because none of the parties was required to file a motion to dismiss (one party inactive, the other a limited participant). Under prior order they are not required to file proposed findings or conclu- sions. Other parties’ interests adequately represented by other registrants. CROSS REFERENCES: Motion to Dismiss for Failure to Prosecute ------- REFERENCE: 40 CFR §164.80(c) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order Dismissing Proceedings as to Certain Registrants and Fixing Status of Certain Other Registrants DATE: October 21, 1974 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Respondent’s motion to dismiss with prejudice for failure to appear. Order dismissed as to parties not responding to motion and their registrations ordered cancelled. Other parties allowed to remain as inactive participants. Others allowed to remain as limited participants. Limited participants may cross—examine witnesses and present evidence in support of their registrations. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.80(c) CASE NAME: Science Products Co. et al. (Zero Tolerance) DOCKET #: 245 TITLE: Procedural Order DATE: January 28, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: If registrants who failed to enter an appearance or participate in hearing fail to appear at further hearing, proceedings may be dismissed as to them. CROSS REFERENCES: ------- 40 CFR §164.81 ------- REFERENCE: 40 CFR §164.81 CASE NAME: DBCP Cancellation DOCKET #: 401 TITLE: Dismissal of Appeal of Order Denying Motion to Disqualify DATE: April 7, 1980 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Any evidence received upon art application for a preliminary injunction which would be admissible upon the trial on the merits becomes a part of the record on the trial and need not be repeated upon the trial. CROSS REFERENCES: FRCP Rule §65(a)(2) ------- REFERENCE: 40 CFR §164.81 CASE NAME: Velsicol Chemical Corp. (Heptac4ilor/Chlordane) DOCKET #: 336 TITLE: Order Denying Motion DATE: June 24, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Synthesis of literature in connection with scientific validity of “principles” can adequately be done by AU and Administrator with assistance of expert testimony. Cross—examination is a useful and essential tool in a scientific inquiry. Time factor also makes the hearing the better forum for addressing scientific issues. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81 - 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: If Administrator does not withdraw notice based on new information, registrant or any party to hearing may, under usual rules of practice, offer relevant, competent and material evidence. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81 (Stipulation) CASE NAME: Stevens Industries, et al. (DDT) DOCKET *: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Registrant may not renege upon its prior stipulation and agreement. Prior waiver and estoppel aside, no merit to registrant’s substantive contentions. CROSS REFERENCES: 40 CFR §164.91 ------- 40 FR § 16 4.81(a) ------- REFERENCE: 40 CFR §164.81(a) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Granting Motion to Vacate Subpoenas Duces Tecum Against University of Wisconsin and Subpoenas Ad Testificandum Issued to Dr. Allen and Dr. Barsotti DATE: March 25, 1981 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: EPA motion to vacate subpoenas claiming University of Wisconsjn t s refusal to release the information encou- rages doubt re validity of 50 ppt study. Even if this study were to remain in the record, its probative value is nil since there was no opportunity for cross—examination. AU disagrees that subpoenas should be vacated with prejudice. CROSS REFERENCES: 40 CFR §164.70 ------- REFERENCE: 40 CFR §164.81(a) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Denying Dow’s Motion to Strike a Portion of Reference 17 to EPA Exposure Assessment DATE: February 26, 1981 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Dow claims portion of Reference 17 should be excluded from the record for OGC’s failure to produce the underlying data, which thereby had deprived Dow of opportunity for cross—examination. Held: Dow is correct in alleging it has been denied right to cross— exam witness on his statement. However, this is not sufficient to warrant striking the statement. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(a) CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Order Re USDA Amendment of Witness List DATE: September 5, 1980 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: USDA seeks to add witness on peanut use of DBCP. That use cancelled earlier and decision on appeal to courts. If court reverses others will want to testify. Therefore, no benefit to allowing such testimony during this proceeding. Also, reversal on appeal would undoubtedly apply to all 22 uses involved — so if there is reversal a second cancellation hearing will be required. Don’t want to open this hearing to testimony on all 22 uses to avoid possible second cancellation hearing. Motion denied. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(a) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Granting Motion to Strike DATE: July 7, 1980 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Motion to strike lay opinion testimony granted. Submission of expert opinion by non—experts does not assist court in reaching decision and leaves poten- tially unsubstantiated evidence in the record——denies all parties opportunity f or meaningful cross—exami- nation. CROSS REFERENCES: Federal Rules of Evidence, Rule 701 ------- REFERENCE: 40 CFR §164,81(a) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Denying Motion for Witness Appearance by Telephone DATE: April 10, 1980 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Witness undergoing medical treatment in Germany and unable to travel to testify in person. Cross— examination by phone would deprive Dow of effective cross—examination. Impedes use of documents and other visual devises in cross—exam. This cross—exam expected to be especially complex. Cross—exam by phone deprives parties of visual contact with witnesses. Motion denied. If witness is unable to appear, his testimony should be taken by deposition. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(a) (Hearsay) 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: In administrative proceeding admissibility of suspension record governed by whether it is relevant, competent and material evidence. More liberal rules apply to admission of hearsay evidence in administrative proceedings than in judicial proceedings, although hearsay nature of evidence may effect reliance which can be placed on it. Relevance, competency and materiality of suspension record clear here. Most efficient use of suspension record is to exclude cross— exam by suspension parties which is repetitive. Administrative Law Judge will not require showing by parties to cancellation proceeding who were not fully represented at suspension that their interest was not fully represented at suspension hearing as prerequisite to cross—exam. CROSS REFERENCES: 40 CFR §164.81(e) ------- REFERENCE: 40 CFR §164.81(a) 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: If objections must be relevant, evidence offered in support of objections also must be relevant to issues raised. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(a) (Test Methods or Protocols) 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: Question whether 90% rodent mortality rate set forth in test procedures is appropriate. Also question of relationship between test method and label instructions. Rejects contention that preliminary approval of EPA test methods by Amer. Society for Testing and Materials should be considered as giving some validity to these methods. Here, no authority on rat control has ever put in writing a percent of mortality required to declare a single dose acute rodenticide to be efficacious or not efficacious. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(a) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Order on Incorporation DATE: April 27, 1976 PRESIDING OFFICIAL: Per].man, Administrative Law Judge ABSTRACT: Entire hearing record (transcripts and exhibits offered or received in evidence) in H/C suspension proceeding is hereby incorporated by reference into cancellation proceedings. Cites aldrin/dieldrin proceedings where portion of cancellation proceedings was incorporated into suspension proceeding. Require- ments of due process or fairness may demand that some witnesses in suspension proceeding be required to return to the stand in an appropriate case. CROSS REFERENCES: 40 CFR §164.81(e) ------- REFERENCE: 40 CFR §164.81(a) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Order on Incorporation DATE: April 27, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Suspension and cancellation proceedings are inextricably intertwined. (FIFRA §6(c)(1)). In reality suspension proceedings are but a phase or part of cancellation proceeding. Merely the period of concern which is different. Record of suspension proceeding not hearsay in cancellation proceedings. Reference to criminal proceedings inapposite. Velsicol has same interest, motives and position in both proceedings. No inability to cross-examine in suspension proceeding as compared to cancellation proceeding. CROSS REFERENCES: Collateral estoppel Incorporation of Suspension Record 40 CFR §164.81(e) ------- REFERENCE: 40 CFR §164.81(a) 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 §162.11(a) (3) (ii) ------- REFERENCE: 40 CFR §164.81(a) 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: Not necessary to find an increase in background level of mercury in the general atmosphere to find that volatilization of pesticidal mercury compounds may constitute an unreasonable risk under §6(b). Back- ground levels in general atmosphere are not necessarily indicative of effects of volatilization on a localized area of ground and water. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(a) 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: This proceeding limited under FIFRA to assessment of relative risks and benefits. It should not and does not involve assessment or reassessment of Agency actions taken under other pollution con troJ.\ laws and programs. Agency actions re allowable emis’sions of mercury compounds from other sources not relevant. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(a) CASE NAME: Mirex DOCKET #: 293 TITLE: Order DATE: August 20, 1975 PRESIDING OFFICIAL: D. Harris, Administrative Law Judge ABSTRACT: Order admits as exhibits testimony of 672 lay witnesses with personal Mirex experience and limits cross— examination to a list of 100 of the witnesses selected by parties seeking cross— xaxnination. Ruling relates to cross—examination and’ c imu1ative/repetitive evidence. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(a) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Ruling on Admissibility in Evidence of Stanford Research Institute Report DATE: July 14, 1975 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Draf€’ report written under contract to EPA. Drafts provided to registrants. If final report not avail- able bethre hearing closes, AU will not exclude from evidenc’e’such portions of draft as may be relevant and mater al solely on ground it is not a final report. Suggests stipulation. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(a) (Cross—examination) CASE NAME: Mirex DOCKET #: 293 TITLE: Order DATE: March 17, 1975 PRESIDING OFFICIAL: D. Harris, Administrative Law Judge ABSTRACT: Order approving parties’ consent to cross—examine by written interrogatories a witness whose illness prevented travel to Washington, D.C. Order sets out detailed implementation of written mechanisms. CROSS REFERENCES: 40 CFR §164.50(a)(l0) ------- REFERENCE: 40 CFR §164.81(a) CASE NAME: Mirex DOCKET #: 293 TITLE: Prehearing Conference Order No. 4 DATE: August 9, 1973 PRESIDING OFFICIAL: D. Harris, Administrative Law Judge ABSTRACT: Pre—filed written direct testimony in question—answer format required 20 days prior to participation. Objections thereto and motions to strike required in writing within 8 days of service, written responses thereto within 4 days thereafter. Exceptions for voir dire and objections to expert qualifications. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(a) (Cross—examination) CASE NAME: Mirex DOCKET #: 293 TITLE: Prehearing Conference Order No. 3 DATE: August 9, 1973 PRESIDING OFFICIAL: D. Harris, Administrative Law Judge ABSTRACT: Cross—examination of each witness limited to one representative per party; cross—examination provided only for parties opposing sponsor of witness. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(a) (Credibility of witnesses) 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, Admirristrator ABSTRACT: Nowhere does Examiner state his conclusions are based on credibility choices. Whatever extra weight that might be due findings based on credi- bility, judgment is not appropriate in this case. Agency is free to make its own findings and Examiner’s findings and report only comprise part of the record which a court will then evaluate. CROSS REFERENCE: 40 CFR §164.103 Deference to AU findings ------- 40 CFR §164.81(b) ------- REFERENCE: 40 CFR §164.81(b) 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: FIFRA §6(d) 40 CFR §164.50(e) ------- 40 CFR §l 64 .81(e) ------- REFERENCE: 40 CFR §164.81(e) 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: In administrative proceeding admissibility of suspension record governed by whether it is relevant, competent and material evidence. More liberal rules apply to admission of hearsay evidence in administrative proceedings than in judicial proceedings, although hearsay nature of evidence may effect reliance which can be placed on it. Relevance, competency and materiality of suspension record clear here. Most efficient use of suspension record is to exclude cross- exam by suspension parties which is repetitive. Administrative Law Judge will not require showing by parties to cancellation proceeding who were not fully represented at suspension that their interest was not fully represented at suspension hearing as prerequisite to cross—exam. CROSS REFERENCES: 40 CFR §164.81(a) (Hearsay) ------- REFERENCE: 40 CFR §164.81(e) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Order on Incorporation DATE: April 27, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Suspension and cancellation proceedings are inextricably intertwined. (FIFRA §6(c)(1)). In reality suspension proceedings are but a phase or part of cancellation proceeding. Merely the period of concern which is different. Record of suspension proceeding not hearsay in cancellation proceedings. Reference to criminal proceedings inapposite. Velsicol has same interest, motives and position in both proceedings. No inability to cross—examine in suspension proceeding as compared to cancellation proceeding. CROSS REFERENCES: 40 CFR §164.81(a) Collateral estoppel Incorporation of Suspension Record ------- REFERENCE: 40 CFR §164.81(e) CASE NAME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Order on Incorporation DATE: April 27, 1976 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Entire hearing record (transcripts and exhibits offered or received in evidence) in H/C suspension proceeding is hereby incorporated by reference into cancellation proceedings. Cites aldrin/dieldnin proceedings where portion of cancellation proceedings was incorporated into suspension proceeding. Require- ments of due process or fairness may demand that some witnesses in suspension proceeding be required to return to the stand in an appropriate case. CROSS REFERENCES: 40 CFR §164.81(a) ------- REFERENCE: 40 CFR §164.81(e) CASE NAME: Mirex DOCKET #: 29. 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: Effect of taking official notice would foreclose parties from cross—examining the source of the noticed “facts”. Because proposed “facts” are near the center of controversy, notice would not significantly expedite the proceeding. Therefore, AL 1 J denial upheld. CROSS REFERENCES: ------- 40 CFR §164.81(f) ------- REFERENCE: 40 CFR §164.81(f) CASE NAME: Dow Chemical Co. (2,4,5—T & Silvex Cancellation) DOCKET #: 415 TITLE: Order Incorporating NCAP’s Offer of Proof Into the Record DATE: August 20, 1980 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: Under §164.81(f), offer of proof of witness testimony and all documents relating to Granting of Motion to Strike (the Lay Opinion of Witness) including witnesses written statement, shall be included in record of this proceeding to be transmitted to Administrator upon any appeal. This testimony and exhibits may not be referred to for evidentiary purposes such as for briefs or argument. CROSS REFERENCES: ------- 40 CFR §164.81(g) ------- REFERENCE: 40 CFR §164.81(g) CASE NAME: 2,4,5—T DOCKET #: 295 TITLE: Order Granting Respondent’s Motion DATE: April 24, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Purpose is to facilitate introduction of statements into record in event no party wishes to cross— examine a particular witness. As to any witness who will appear and personally sponsor the prepared testimony, or as to statements for which appropriate affidavits are supplied at any time prior to the actual offer of the statement, the absense of the affidavit at the time the statements are distributed to the parties is immaterial. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(g) CASE NAME: 2,4,5—T DOCKET #: 295 TITLE: Procedural Order DATE: April 11, 1974 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Approval given for use of verified statements, with appropriate jurats . Consideration will be given to stipulation by the parties which would permit reception of such statements into evidence without necessity of personal appearance where cross— examination is waived by all parties. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.81(g) 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: Because of large numbers of farmer—witnesses Shell plans to call and in order not to delay proceedings, AU has lost reluctance to require verified state- ments from non—expert witnesses, which will be utilized in lieu of oral direct testimony. CROSS REFERENCES: ------- 4(1 CFR §164.90 ------- REFERENCE: 40 CFR §164.90 CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order Dismissing Proceedings as to Certain Registrants and Fixing Status of Certain Other Registrants DATE: October 21, 1974 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: At appropriate time, inactive and limited participants may file proposed orders, findings of fact, conclusions of law and briefs in accordance with 40 CFR §164.90. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.90 CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Order Declining Review of Accelerated Decision DATE: September 19, 1974 PRESIDING OFFICIAL: Michael K. Glenn, Chief Judicial Officer ABSTRACT: 40 CFR §164.90, .91(b), and .101 provide 20 days for filing exceptions after filing of accelerated decsion. CROSS REFERENCES: 40 CFR §164.91(b) 40 CFR §164.101 ------- REFERENCE: 40 CFR §164.90 CASE NAME: Stevens Industries, et al. (DDT) DOCKET 1: 63 TITLE: Recommended Decision DATE: March 14, 1973 PR IDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: While ALl 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: FIFRA §6(b) 40 CFR §164.103 ------- REFERENCE: 40 CFR §164.90 CASE NAME: Stevens Industries, et al. (DDT) DOCKET #: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Per]man, Administrative Law Judge ABSTRACT: Recommended decision on other issue will be issued at a later date after time for filing reply briefs by parties concerned with that aspect of consolidated pro- ceeding. §164.28 does not prohibit such procedure under the circumstances and in view of fact that in reality AU presented with two separate disputes herein. CROSS REFERENCES: ------- 40 CFR §164.90(b) ------- REFERENCE: 40 CFR §164.90(b) CASE NAME: Aceto Chemical Co. (Paraquat) DOCKET #: 484 TITLE: Order Declining Review of Accelerated Decision of AU DATE: November 13, 1979 PRESIDING OFFICIAL: Ronald McCallum, Judicial Officer ABSTRACT: An accelerated decision has the same force and effect as an initial decision and becanes a final decision of Administrator unless appealed pursuant to §164.102 or Administrator orders review pursuant to §164.101. CROSS REFERENCES: 40 CFR §164.91 ------- REFERENCE: 40 CFR §164.90(b) CASE NAME: Mason Chemical Co., Bio-Lab, Salsbury Labs (Science Products, Inc.) DOCKET *: 245 (Including Nos. 296, 297, 298) TITLE: Initial Decision re QAC DATE: May 19, 1975 PRESIDING OFFICIAL: Denniston, Administrative Law Judge ABSTRACT: Unless an appeal is taken from this order or the Administrator determines to rev iew it pursuant to 40 CFR §164.101, the order becomes the final order of the Administrator. CROSS REFERENCES: ------- 40 CFR §164.91 ------- REFERENCE: 40 CFR §164.91 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: FIFRA §6(b)(2) ------- REFERENCE: 40 CFR §164.91 CASE NAME: Aceto Chemical Co. (Paraquat) DOCKET #: 484 TITLE: Order Declining Review of Accelerated Decision of AU DATE: November 13, 1979 PRESIDING OFFICIAL: Ronald McCallum, Judicial Officer ABSTRACT: An accelerated decision has the same force and effect as an initial decision and becanes a final decision of Administrator unless appealed pursuant to §164.102 or Administrator orders review pursuant to §164.101. CROSS REFERENCES: 40 CFR §164.90(b) ------- REFERENCE: 40 CFR §164.91 CASE NAME: Aceto Chemical Co. (Paraquat) DOCKET #: 484 TITLE: Accelerated Decision DATE: August 22, 1979 PRESIDING OFFICIAL: Nissen, Administrative Law Judge ABSTRACT: Under §164.91, an accelerated decision can be rendered only in favor of Respondent. Therefore, an initial decision purporting to grant the relief Aceto seeks would of necessity follow a hearing or perhaps a factual stipulation in lieu thereof. Cites Shell Oil re: scope of hearing not being broadened. Without a notice of intent to cancel there is no authority to conduct a hearing under §6(b). CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.91 CASE NAME: DBCP DOCKET #: 401 et al. TITLE: Order Denying Motion for Accelereted Decision DATE: March 29, 1978 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: Registrants, et al. Move for accelerated decision to dismiss §6(b)(2) notice without evideritiary hearing. Held: AU lacks authority over motion. §164.91 authorizes AU under certain conditions to dispense with evidentiary hearing and render accelerated decisions in favor of respondent EPA only. No provision for accelerated decision in favor of other party. — CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.91 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: Penalty for failure to file legally sufficient objections is an accelerated decision in favor of RespondenE. CROSS REFERENCE: ------- REFERENCE: 40 CFR §164.91 CASE NAME: Stevens Industries, et al. (DDT) DOCKET #: 63 TITLE: Recommended Decision DATE: March 14, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Registrant may not renege upon its prior stipulation and agreement. Prior waiver and estoppel aside, no merit to registrant’s substantive contentions. CROSS REFERENCES: 40 CFR §164.81 (Stipulation) ------- 40 CFR §164.91(a) ------- REFERENCE: 40 CFR §164.91(a) CASE NAME: Kepone DOCKET #: 392 TITLE: Accelerated Decision DATE: October 28, 1977 PRESIDING OFFICIAL: Finch, Administrative Law Judge ABSTRACT: §164.91 provides that Administrative Law Judge may render an accelerated decision when there is: a failure to appear or proceed at prehearing conferences or no genuine issue of material fact. Therefore, objections filed herein are dismissed under §164.91(a)(4) and (7) and registrations are cancelled. CROSS REFERENCE: ------- REFERENCE: 40 CFR §164,91(a) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Accelerated Decision DATE: May 27, 1975 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRA CT: Respondent’s motion for accelerated decision. Shell has agreed to stop manufacturing aldrin/dieldrin. Therefore, no basis for continuing cancellation proceeding. Cancellation ordered. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.91(a) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Accelerated Decision DATE: August 9, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Accelerated Decision issued pursuant to §164.91(a)(8), although it could possibly be supported by §164.91(a)(5) and/or (7). CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.91(a) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Acceler ted Decision DATE: August 9, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Respondent’s motion for accelerated decision based on facts he has met burden of going forward and no party has defended the uses identified in the motion. Purpose and function of §164.91(a) is not to issue an accelerated decision on merits with respect to undefen- ded uses. Cancellation now on basis proposed would be inappropriate and prejudicial. However, based on risk, lack of evidence as to benefits and lack of objection by active parties to proposed accelerated decision, issuance of an accelerated decision as to undefended uses pursuant, in reality, to §164.91(a)(8) is appropriate. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.91(a) CASE NAME: Chapman Chein. Co. (Mercury) DOCKET #: 246 TI fLE: Denial of Motion DATE: September 25, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Motion to dismiss for failure to file objections and to comply with discovery order. In response some of the registrants apparently filed required documents. AU hesitates at this early stage in proceedings to grant respondent’s motion to dismiss. Other regis- trants given 10 days to file documents. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.91(a)(1) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Perlman, Administrative Law Judge ABSTRACT: Question raised whether accelerated decision shou:Ld be issued against citrus grower groups. Objections filed late; time extension requested pursuant to §164.6(b). CROSS REFERENCES: ------- REFERENCE: 40 CFR 164.91(a)(3) CASE NAME: USM Corp. DOCKET fr: 36 TITLE: Accelerated Decision DATE: November 7, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Motion for accelerated decision filed after registant failed to respond to proposed settlement agreement. Registrant did not file answer to motion for accelerated decision and failed to attend pre—hearing conference. There- fore, registration cancelled and proceeding dismissed. CROSS REFERENCES: 40 CFR S164.9l(a)(4) ------- REFERENCE: 40 CFR 164.91(a)(4) CASE NAME: USM Corp. DOCKET #: 36 TITLE: Accelerated Decision DATE: November 7, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Motion for accelerated decision filed after registant failed to respond to proposed settlement agreement. Registrant did not file answer to motion for accelerated decision and failed to attend pre—hearing conference. There— fore, registration cancelled and proceeding dismissed. CROSS REFERENCES: 40 CFR §164.91(a)(3) ------- REFERENCE: 40 CFR §164.91(a)(6) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: EDF’s first two objections clearly fall within §164.91(a)(6). Objections dismissed pursuant to §164.91(a) (6). CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.91(a)(6) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Administrator bound by stare decisis to follow recent holding in Shell case that complaint or objections contesting failure of a notice of conditional cancellation to go farther may not be heard in a proceeding under §6(b)(l). CROSS REFERENCES: Stare Decisis ------- REFERENCE: 40 CFR §164.91(a)(8) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET *: 336 TITLE: Accelerated Decision DATE: June 16, 1977 PRESIDING OFFICIAL: Perlman, Administrative Law Judge ABSTRACT: Failure to supply ordered information results in Accelerated Decision denying applications or can- celling registrations. CROSS REFERENCES: FIFRA §3(c)(2)(B) ------- REFERENCE: 40 CFR §164.91(a)(8) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Accelerated Decision DATE: June 7, 1977 PRESIDING OFFICIAL: Perlman, Administrative Law Judge ABSTRACT: Failure to supply ordered information results in Accelerated Decision cancelling registrations or denying applications. CROSS REFERENCES: FIFRA §3(c)(2)(B) ------- REFERENCE: 40 CFR §164.91(a)(8) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) 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: FIFRA §3(c)(2)(B) ------- 40 CFR §164.91(b) ------- REFERENCE: 40 CFR §164.91(b) CASE NAME: Environmental Defense Fund (Chlorabenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: EDF not without recourse to have the issue presented herein placed before the Judicial Officer for his consideration or reconsideration. CROSS REFERENCES: 40 CFR §164.101 ------- REFERENCE: 40 CFR 164.91(b) CASE NAME: USM Corp. DOCKET *: 36 TITLE: Accelerated Decision DATE: November 7, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Accelerated decision shall become decision of Administrator unless appeal is taken within 20 days after its filing by exceptions pursuant to §164.101(a) or the Administrator orders review on his own motion pursuant to §164.101(b). CROSS REFERENCES: 40 CFR §164.101(a) 40 CFR §164.101(b) ------- REFERENCE: 40 CFR §164.91(b) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Order Declining Review of Accelerated Decision DATE: September 19, 1974 PRESIDING OFFICIAL: Michael K. Glenn, Chief Judicial Officer ABSTRACT: 40 CFR §164.90, .91(b), and .101 provide 20 days for filing exceptions after filing of accelerated decsion. CROSS REFERENCES: 40 CFR §164.90 40 CFR §164.101 ------- 40 CFR §164.100 ------- Dismissal of Appeal of Order Denying Motion to Disqualify DATE: April 7, 1980 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Ordinarily, requests for certification may only be granted by presiding officer if he determines that the order or ruling involves an important question of law or policy about which there is substantial ground for difference of opinion. REFERENCE: CASE NAME: DOCKET *: TITLE: 40 CFR §164.100 DBCP Cancellation 401 CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 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: FIFRA §6(b)(2) ------- REFERENCE: 40 CFR §164.100 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: CFR Part 164, Subpart C (Interlocutory review) ------- REFERENCE: 40 CFR §164.100 (Stay pending interlocutory appeal) CASE NAME: DBCP DOCKET #: 401 et al. TITLE: Order Denying Stay DATE: February 28, 1979 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: Matters involved in interlocutory appeal (scope of hearing based upon uses involved and objections permitted) do not render inappropriate continued preparation of hearing on matters not governed by appeal. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Denial of Request for Hearing DATE: February 25, 1977 PRESIDING OFFICIAL: John Quarles, Acting Administrator ABSTRACT: When an order is not certified by AU, it is reviewable by the Administrator only upon appeal from initial or accelerated decision except when Administrator determines that delaying review would be “deleterious to vital public or private interests”. Request denied (not shown to be deleterious). CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Denial of Certification DATE: February 10, 1977 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Velsicol’s request for certification of order with respect to existing stocks of H/C to Administrator. AU does not believe order involves an important question of law or policy or that there is substan- tial ground for difference of opinion. Timing of the order (dated 2/3/77) is not appropriate for certification. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 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: Criteria for interlocutory appeal (important question of law, substantial differences, expedite proceeding) met based on deference to AU judgment and on volume and vigor of pleadings. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 CASE NAME: Mirex DOCKET #: 293 TITLE: Denial of Motion to Defer Decision on Respondent’s Interlocutory Appeal DATE: March 26, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Order denies delay in consideration of appeal, emphasizing importance of avoiding delays caused by such appeals. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 CASE NAME: Mirex DOCKET #- 293 TITLE: Order Accepting Review by Administrator DATE: February 25, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Order ruling that criteria for interlocutory appeal met by AU certification of rulings on Official Notice. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET #: 384 TITLE: Notice of Denial of Motion to Reconsider Administrator’s Denial of Request for Interlocutory Review DATE: November 8, 1975 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: Issue not raised in Aug. 23 Request for Interlocutory Review and therefore as a matter of procedure it is not properly raised as subject for reconsideration. Also Velsicol’s perception of role of Administrator is at odds with the law. Law requires Administrator to make preliminary findings which are included in Notice of Suspension which DC Circuit Court has held “do not represent prejudgment of the merits of the decision” (EDF v. EPA). Alleged prejudgment due to public announcement of Suspension unfounded. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 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: USDA seeks review of decision of AU denying USDA motion to refer scientific questions to committee of NAS. Earlier motions re WAS by Velsicol and NACA denied. This motion raises issue of whether Rules of Practice Governing Hearings under FIFRA provide for referral of scientific questions to NAS in suspension hearings. Held: unable to conclude AU erred in denying USDA’S motion for referral to NAS in suspension proceeding. No provision in Rules for interlocutory review by Administrator of rulings of AU in suspension proceedings. CROSS REFERENCES: 40 CFR §164.50(e) ------- REFERENCE: 40 CFR §164.100 CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane 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 Per].man’s decision to defer ruling on motion which seeks appointment of a committee of NAS until cancellation proceeding is resumed. CROSS REFERENCES: FIFRA §6(d) (Referral to NAS) 40 CFR §164.50(e) ------- REFERENCE: 40 CFR §164.100 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: Basis of request for interlocutory review here is exceptional circumstances “when the Administrator determines . . . that denying review would be deleterious to vital public or private interest.” Held: unable to determine that denying review would be deleterious. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 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: Movants seeking certification of motion by Administrative Law Judge to Administrator. Motion sought inclusion of other compounds in the §6(b)(2) portion of the hearing. Question of po1icytt raised by order is not defined or explained; as order dealt solely with procedure, no basis for certification exists. Request denied. §164.100 patently inapplicable. That rule deals only with appeals from interlocutory orders of AU. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 CASE NAME: Chapman Chem. Co. (Mercury) J DOCKET #: 246 TITLE: Order DATE: April 1, 1974 PRESIDING OFFICIAL: David A. Schuenke, Judicial Officer and Assistant Director for Legislation ABSTRACT: Case comes before Administrator pursuant to certification by AU. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order of Certification DATE: March 7, 1974 PRESIDING OFFICIAL: Levinson, Administrative Law Judge ABSTRACT: Order of AU (1/14/74) denying motion to dismiss involves important question of law about which there is substantial ground for difference of opinion. Therefore, appeal certified to Administrator. CROSS REFERENCES: ------- REFERENCE: 40 CFR S164.100 CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Notice of Dismissal of Appeal from Interlocutory Ruling DATE: December 7, 1973 PRESIDING OFFICIAL: Michael Glenn, Judicial Officer ABSTRACT: Appeal from interlocutory ruling shall be deemed dismissed if the Administrator determines that certification was improvidently granted or takes no action within 30 days of certification. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.100 CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Order of Certification DATE: November 7, 1973 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Shell seeks certification of question to Administrator. (“Should hearing include putative alternative compounds?”). Really a request for certification of oral ruling of AU. While ALl does not believe there is a “substantial ground for difference of opinion”, since it involves a matter of first impression under 1972 Amendments, AU certifies ruling to Administrator under §164.100. CROSS REFERENCES: ------- 40 CFR §164.101 ------- REFERENCE: 40 CFR §164.101 CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Accelerated Decision DATE: May 22, 1979 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: EDF not without recourse to have the issue presented herein placed before the Judicial Officer for his consideration or reconsideration. CROSS REFERENCES: 40 CFR §164.91(b) ------- REFERENCE: 40 CFR §164.101 CASE NAME: S. W. Cowley & Sons Mfg. Co. (arsenic trioxide) DOCKET #: 341 TITLE: Denial of Application 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: FIFRA §16(b) ------- REFERENCE: 40 CFR §164.101 CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET #: 145 TITLE: Order Declining Review of Accelerated Decision DATE: September 19, 1974 PRESIDING OFFICIAL: Michael K. Glenn, Chief Judicial Officer ABSTRACT: 40 CFR §164.90, .91(b), and .101 provide 20 days for filing exceptions after filing of accelerated decsion. CROSS REFERENCES: 40 CFR §164.91(b) 40 CFR §164.90 ------- 40 CFR §164.101(a) ------- REFERENCE: 40 CFR §164.101(a) CASE NAME: S. W. Cowley & Sons Mtg. Co. (arsenic trioxide) DOCKET #: 341 TITLE: Denial of Applications for Stay Pending Appeal DATE: September 1, 1976 PRESIDING OFFICIAL: Richard G. Stoll, Jr., Acting Judicial Officer ABSTRACT: Registrant may file exceptions to Initial Decision and respondent may respond. Administrator would then issue final order. Only after procedures in 40 CFR §100 et seq . are followed will there be a final order. CROSS REFERENCES: ------- REFERENCE: 40 CFR 164.101(a) CASE NAME: USM .Corp. d DOCKET #: 36 TITLE: Accelerated Decision DATE: November 7, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Accelerated decision shall become decision of Administrator unless appeal is taken within 20 days after it filing by exceptions pursuant to §164.101(a) or the Administrator orders review on his own motion pursuant to §164.101(b). CROSS REFERENCES: 40 CFR §164.91(b) 40 CFR §164.101(b) ------- 40 CFR §l 64 .1o1(b) ------- REFERENCE: 40 CFR §164.101(b) CASE NAME: Aceto Chemical Co. (Paraquat) DOCKET #: 484 TITLE: Order Declining Review of Accelerated Decision of AU DATE: November 13, 1979 PRESIDING OFFICIAL: Ronald McCallum, Judicial Officer ABSTRACT: If no exceptions are filed within twenty days, Administrator shall issue order regarding review. Here, no exceptions filed. Therefore, review by Administrator declined. CROSS REFERENCES: ------- REFERENCE: 40 CFR 164.101(b) CASE NAME: USM Corp. DOCKET #: 36 TITLE: Accelerated Decision DATE: November 7, 1974 PRESIDING OFFICIAL: Penman, Administrative Law Judge ABSTRACT: Accelerated decision shall become decision of Administrator unless appeal is taken within 20 days after its filing by exceptions pursuant to §164.101(a) or the Administrator orders review on his own motion pursuant to §164.101(b). CROSS REFERENCES: 40 CFR §164.91(b) 40 CFR §164.101(a) ------- 40 CFR §164.102 ------- REFERENCE: 40 CFR §164.102 CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Denial of Motion for Reconsideration DATE: June 6, 1979 PRESIDING OFFICIAL: Ronald McCallum, Judicial Officer ABSTRACT: Amvac seeking reconsideration of portion of Administrator’s upholding of Administrative Law Judge’s Accelerated Decison which cancelled 22 uses of DBCP based on Amvac’s failure to file timely objections to cancellation notice. Amvac claims error in failure of Administrator to prepare decision and in adopting Administrative Law Judge’s Order as Administrator’s decision on appeal. Here, no new issues on appeal; a separate decision by Administrator would have been redundant. No authority which precludes an appellate administrative tribunal from affirming the findings of a subordinate board without restatement. CROSSA REFERENCES: 40 CFR §164.103 ------- REFERENCE: 40 CFR §164.102 CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Order Declining Review of Accelerated Decision of AU DATE: August 3, 1977 PRESIDING OFFICIAL: Harriet B. Marple, Judicial Officer ABSTRACT: Absent showing of cause for reviewing Accelerated Decision, review by Administrator declined. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.102 CASE NAME: Velsico]. Chemical Corp. (Heptachior/Chiordane) DOCKET #: 336 TITLE: Order Declining Review of Accelerated Decision of AU DATE: July 18, 1977 PRESIDING OFFICIAL: Harriet B. Marple, Judicial Officer ABSTRACT: Absent showing of cause for reviewing Accelerated Decision, review by Administrator declined. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.102 CASE NME: Velsicol Chemical Corp. (Heptachlor/Chlordane) DOCKET #: 336 TITLE: Order Declining Review of Accelerated Decision of AU DATE: June 21, 1977 PRESIDING OFFICIAL: Harriet B. Marple, Judicial Officer ABSTRACT: In absence of any cause shown or found for reviewing Accelerated Decision, review by Administrator declined. CROSS REFERENCES: ------- 40 CFR § 164 .102(a) ------- REFERENCE: 40 CFR §164.102(a) CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Cancellation) DOCKET tt: 145 TITLE: Order Declining Review of Accelerated Decision of ALl DATE: July 2, 1975 PRESIDING OFFICIAL: Michael K. Glenn, Chief Judicial Officer ABSTRACT: No exceptions filed to accelerated decision. Review declined. Order is final. CROSS REFERENCES: ------- 40 CFR §164.102(c) ------- REFERENCE: 40 CFR §164.102(c) CASE NAME: Environmental Defense Fund (Chlorobenzilate) DOCKET #: 411—414 TITLE: Order DATE: July 20, 1979 PRESIDING OFFICIAL: Ronald McCallum, Judicial Officer ABSTRACT: EDF Motion (1) requesting permission to file response to Respondent’s Reply to Exceptions and Appeal by EDF of Accelerated Decision and (2) renewing earlier motion for oral argument are discretionary insofar as decision to grant or deny them is concerned. As to #1, permission granted. As to #2, permission denied. CROSS REFERENCES: ------- 40 CFR §164.103 ------- REFERENCE: 40 CFR §164.103 CASE NAME: Shell Oil Co. (DBCP Cancellation) DOCKET #: 401 TITLE: Denial of Motion for Reconsideration DATE: June 6, 1979 PRESIDING OFFICIAL: Ronald McCallum, Judicial Officer ABSTRACT: Amvac seeking reconsideration of portion of Administrator’s upholding of Administrative Law Judge’s Accelerated Decison which cancelled 22 uses of DBCP based on Amvac’s failure to file timely objections to cancellation notice. Amvac claims error in failure of Administrator to prepare decision and in adopting Administrative Law Judge’s Order as Administrator’s decision on appeal. Here, no new issues on appeal; a separate decision by Administrator would have been redundant. No authority which precludes an appellate administrative tribunal from affirming the findings of a subordinate board without restatement. CROSS REFERENCES: 40 CFR §164.102 ------- REFERENCE: 40 CFR §164.103 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: For Administrator to issue final order rather than Order of Remand would have deprived both parties, Administrator and reviewing courts benefit of AU’s findings of fact. Even if Administrator should have entered a final order, it would not follow he should be barred from making any further order in this matter. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.103 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: Registrant claims violation of §164.103 by Administrator not entering final order within 90 days after conclusion of hearing. Held: effect of Order of Remand was to reopen hearing; 90 days ran after hearing on remand. Even if this were incorrect, Administrator should not be barred from entering final order after pas ’àge of 90 day limit. 90 day limit to protect public y ensuring speeding action on cancellations not intended to benefit pesticide manufacturers or formulators. Registrant’s position would limit ability of Adminis- trator to render well—considered final opinions ripe for judicial review. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.103 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 auth brity to issue a final order of cancellation in a pr. ceed ing under the act. AU believes he lacks such authority under the act. CROSS REFERENCES: FIFRA §6(b) 40 CFR §164.90 ------- REFERENCE: 40 CFR S164.103 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: Nowhere does Examiner state his conclusions are based on credibility choices. Whatever extra weight that\\might be due findings based on credi- bility, judgment is not appropriate in this case. Agency is fi ee to make its own findings and Examiner’s findings and report only comprise part of the record which a court will then evaluate. CROSS REFERENCE: 40 CFR §164.81(a) (Credibility of witnesses) Deference to AU findings ------- 40 CFR §164.110 ------- REFERENCE: 40 CFR §164.110 (Clarification of Orders) CASE NAME: Velsicol Chem. Co. (Heptachlor/Chlordane Suspension) DOCKET #: 384 TITLE: Clarification of Order of December 24, 1975 DATE: January 19, 1976 PRESIDING OFFICIAL: Russell E. Train, Administrator ABSTRACT: Even though not expressly provided for in Ru1e ; of Practice, authority does exist to clarify 12/24/75 Order and clarification is warranted. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.110 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: 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: FIFRA §21 ------- REFERENCE: 40 CFR §164.110 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: “Joint Request to Amend Order as to Lilly’s Registered Label” is in substance an application for reconsidera- tion. Provides that petition to reconsider an order shall be filed within 10 days after date of service of order. This application filed after 10 day limit; however, AU may waive this provision where, as here, no party objects to the petition and the request is in the public interest. CROSS REFERENCES: ------- 40 CFR § 164 .11O(c) ------- REFERENCE: 40 CFR §164.110(c) CASE NAME: Chapman Chem. Co. (Mercury) DOCKET #: 246 TITLE: Order Granting Motion for Reconsideration DATE: March 26, 1976 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Motion to reconsider final order of Administrator must be made within 10 days after date of service of final order and must state specifically matters claimed to be in error. Finds sufficient basis for reconsideration. Motion granted as to mercurial pesticides for use in water based paints and coatings and is limited to factual and legal errors set forth in registrants statement of errors acccmpanying this motion. CROSS REFERENCES: ------- 40 CFR §164.120 ------- REFERENCE: 40 CFR §164.120 CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET 4: 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: FIFRA §6(c) ------- REFERENCE: 40 CFR §164.120 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 §6(c) FIFRA §2(1) ------- REFERENCE: 40 CFR §164.120 CASE NAME: Vélsicol 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 H/C are conclusively carcinogens in lab animals. Therefore, cannot find imminent hazard. Heptachior presents more of a risk than chlordane. (This is only recommended—— in fact not accepted in full by Administrator).. CROSS REFERENCES: FIFRA §6(c) FIFRA §2(1) ------- REFERENCE: 40 CFR §164.120 CASE NAME: Velsicol Chem. Co. (Heptachior/Chiordane Suspension) DOCKET if: 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: FIFRA §6(c) (Suspension/cancellation relationship) ------- REFERENCE: 40 CFR §164.120 CASE NAME: Velsicol Chem4.cal Corp. (Heptachior/Chiordane) DOCKET *: 336 TITLE: Notice of Denial of Request for Interlocutory Review and Reconsideration by the Administrator DATE: October 2, 1975 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Suspension proceeding initiated when Administrator determines action necessary to prevent “imminent hazard” during time required for cancellation. Cancellation proceeding may take several years. No basis in law or judicious use of agency’s resources to warrant simultaneous adjudications of issues involved in both cancellation and suspension pro— ceed.ings. Suspension issues should be adjudicated first even if it interrupts cancellation proceeding. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.120 CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) I 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) FIFRA §2(1) ------- REFERENCE: 40 CFR §164.120 CASE NAME: Shell Chemical Co. (Aldriri/Dieldrin Suspension) DOCKET it: 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) FIFRA §6(c) ------- REFERENCE: 40 CFR §164.120 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) FIFRA §6(c) ------- 40 CPR §164.121 ------- REFERENCE: 40 CFR §164.121 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: FIFRA §6(c) (Termination of suspension proceeding) ------- REFERENCE: 40 CFR §164.121 CASE NAME: Shell Chemical Co. (Aldrin/Dieldrin Suspension) DOCKET #: 145 TITLE: Order Denying Request for Oral Argument DATE: September 26, 1974 PRESIDING OFFICIAL: Michael K. Glenn, Chief Judicial Officer ABSTRACT: Rules of practice do not con emp1ate granting additional time to file briefs in expedited hearings. CROSS REFERENCES: ------- 40 CFR §164.121(b) ------- REFERENCE: 40 CFR §164.121(b) CASE NAME: Velsicol Chemical Corp. (Heptachior/Chiordane) DOCKET *: 336 TITLE: Notice of Denial of Request for Interlocutory Review and Reconsideration by the Administrator DATE: October 2, 1975 PRESIDING OFFICIAL: Russe].1 Train, Administrator ABSTRACT: Velsicol claims EPA has violated provision of Administrative Procedure Act and its regulations which require that AU’s be assigned cases in rotation so far as practicable. CROSS REFERENCES: Administrative Procedure Act, 5 USC §3105 5 CFR §930.212 ------- 40 CFR §164.121(c) ------- REFERENCE: 40 CFR §164.121(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: FIFRA §6(c) ------- REFERENCE: 40 CFR §164.121(c) 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 Heptachior 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 carcinogens. 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: Carcinogen Policy 40 CFR §162.ll(a)(3)(ii)(A) ------- REFERENCE: 40 CFR §164.121(c) CASE NP ME: 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: Findings of imminent hazard (p. 11—17) which shall constitute the issues to be adjudicated at suspension hearing, if hearing is requested. CROSS REFERENCES: FIFRA §6(c)(l) ------- REFERENCE: 40 CFR §164.121(c) 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 Heptachior or Chiordane DATE: August 1, 1975 PRESIDING OFFICIAL: Russell Train, Administrator ABSTRACT: Cites Stevens Industries opinion. Sufficient that Agency staff present evidence that alternatives are registered for uses in question. May be accomplished by affidavit. Burden of showing alternatives are not available at reasonable prices is on proponents of continued registration. EPA under a heavy burden to justify any decision that benefits outweigh risks for carcinogens. - -- CROSS REFERENCES: 40 CFR §164.121(g) ------- 40 CFR §164.121(d) ------- REFERENCE: 40 CFR §164.121(d) 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. An vac’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 §164.2(g) FIFRA §6(c)(2) 40 CFR §164.121(j) ------- 40 CFR §164.121(e) ------- REFERENCE: 40 CFR §164.121(e) CASE NAME: DBCP Suspension DOCKET 4: 485 TITLE: Denial of Petition for Withdrawal of Suspension Notice DATE: September 10, 1979 PRESIDING OFFICIAL: Douglas M. Costle, Administrator ABSTRACT: 40 CFR §164.121(e) provides for intervention by “any person adversely affected.” Amvac’s.allegations that extension to “any interested person” il1 prolong and complicate hearing are premature. Also, intervenors subject to limitations in §l64.l21(e)(l’)\ 4 at it may only raise matters or introduce evid en ce that is pertinent to issue of imminent hazard. §6’(c) i’s silent on question of who may participate in a hearing. Cites legislative history to show Congressional intent. CROSS REFERENCES: ------- 40 CFR §l6 4 .121(g) ------- REFERENCE: 40 CFR §164.121(g) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Suspension Order and Final Decision DATE: October 29, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: Burden of going’ forward on EPA. Burden of persuasion as to safety on registrant (benefits outweighing risks). Significant uncertainties re risks and benefits are to be resolved in fav or of public health for suspension purposes. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.121(g) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Recommended Decision DATE: October 20, 1979 PRESIDING OFFICIAL: Harwood, Administrative Law Judge ABSTRACT: Responsibility to demonstrate that benefits outweigh risks is upon proponents of continued registration (p.112). No evidence that suspension of DBCP would cause serious dislocation in production and marketing of crop, ., Alternatives available. CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.121(g) CASE NAME: Velsicol Chem. Co. (Heptachlor/Chlordane Suspension) DOCKET #: 384 TITLE: Recommended Decision DATE: December 12, 1975 PRESIDING OFFICIAL: Penman, Administrative Law 3udge 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: FIFRA §6(c) (Burden of proof) ------- REFERENCE: 40 CFR §164.121(g) 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: Cites Stevens Industries opinion. Sufficient that Agency staff present evidence that alternatives are registered for uses in question. May be accomplished by affidavit. Burden of showing alternatives are not available at reasonable prices is on proponents of continued registration. EPA under a heavy burden to justify any decision that benefits outweigh risks for carcinogens. CROSS REFERENCES: 40 CFR §164.121(c) ------- REFERENCE: 40 CFR §164.121(g) 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: Burden of proof in establishing safety of a product in both cancellation and suspension proceedings remains at all times with the registrant. CROSS REFERENCES: 40 CFR §164.80 ------- REFERENCE: 40 CFR §164.121(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: Responent has burden of going forward, not burden of persuasion, as to safety; here Respondent satisfied both and has shown the chemical poses a high risk of causing cancer in man. (p. 69). CROSS REFERENCES: ------- REFERENCE: 40 CFR §164.121(9) 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 §6(c) (“Imminent hazard”) FIFRA §2(1) ------- 40 CFR l 64 .l 2 1(j) ------- REFERENCE: 40 CFR §164.121(j) CASE NAME: DBCP Suspension DOCKET #: 485 TITLE: Suspension Order and Final Decision DATE: October 29, 1979 PRESIDING OFFICIAL: Douglas Costle, Administrator ABSTRACT: 5 U.S.C. §557(c) and 40 CFR §164.121(j) require that Recommended Decision include statement of findings and conclusions. Held: presiding officer’s “narrative” discussion meets this requirement. Purposes of findings and conclusions is to advise parties and reviewing court of basis for decision. “Narrative” not precluded. CROSS REFERENCES: Administrative Procedure Act, 5 U.S.C. §557(c) ------- REFERENCE: 40 CFR §164.121(j) 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. Amvac’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) FIFRA §6(c)(2) ------- 40 CYR §164.122(b) ------- REFERENCE: 40 CFR §164.122(b) 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)(l) 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: FIFRA §6(c) ------- 40 CFR §164.130 et seq. ------- REFERENCE: 40 CFR §164.130 et seq . 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: Administrator’s acceptance of voluntary cancellations is not a decision based on an evidentiary record made in a cancellation proceeding and is without prejudice to statutory right of any person to file an application for a registration under §3 of FIFRA or any other section for permission to sell, distribute or use DBCP for any of the cancelled uses. Since cancellation of DBCP based on voluntary cancellation rather than decision following hearing, Subpart D of Part 164, which requires that any reregistration of a pesticide cancelled after a hearing be based on “substantial new evidence” and results of a public hearing, is not applicable. CROSS REFERENCES: ------- |