Petition — Environmental Defense Fund, Inc. v. Costle

Supreme Court brief1981

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80-779

No. 80-

Supreme Court, U.S.

FILED

NOV 14 1980

NECHACL RODAK, JR. CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

ENVIRONMENTAL DEFENSE FUND, INC.

Petitioner,

DOUGLAS M. COSTLE, ADMINISTRATOR

ENVIRONMENTAL PROTECTION AGENCY

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

DOUGLAS V. RIGLER

1775 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

202-862-5300

Counsel of Record for Petitioner

MICHAEL FISCHER

DENNIS A. HENIGAN

1775 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Of counsel:

WILLIAM A. BUTLER

ENVIRONMENTAL DEFENSE FUND, INC.

1525 18th Street, N.W.

Washington, D.C. 20036

202-833-1484

QUESTIONS PRESENTED FOR REVIEW

Section 6(b)(1) of the Federal Insecticide, Fungicide

and Rodenticide Act provides that any “person adversely

affected” by an Environmental Protection Agency notice

to change or cancel the registration of a hazardous pesti-

cide has the right to object and to participate in an

administrative hearing on his objections.

(1) Does the term “person adversely affected” as

used in the statute grant rights only to persons whose

economic interests are affected and deprive all other

persons adversely affected of the right to request a

hearing?

(2) Is the relief available to “persons adversely

affected” who participate in § 6(b)(1) hearings limit-

ed only to less restrictive measures than those pro-

posed by the Administrator if these persons prevail in

establishing Agency error?

THE PARTIES IN THE COURT OF APPEALS

1. Petitioner is the Environmental Defense Fund,

Inc., a private, non-profit national membership organiza-

tion with offices in Washington, D.C.; New York, New

York; Denver, Colorado; and Berkeley, California. It has a

membership of more than 45,000 persons nationwide dedi-

cated to finding scientifically sound solutions to the na-

tion’s environmental problems.

2. Respondent is Douglas M. Costle, Administrator of

the Environmental Protection Agency, an independent

federal government agency which regulates the use of

hazardous pesticides under the provisions of the Federal

Insecticide, Fungicide, and Rodenticide Act.

3. Ciba-Geigy Corporation, a registrant and the pri-

mary manufacture of chlorobenzilate, was an intervenor

in the Court of Appeals.

4. This case was consolidated in the Court of Appeals

with Florida Citrus Mutual v. Costle, No. 79-2133. The

Petitioner in that case, Florida Citrus Mutual, is not a

party to, and has no interest in, this Petition.

lil

TABLE OF CONTENTS

RRS REL i HY OMG od Fy

Statement of Jurisdiction .....00.000000.0........ Mates itt roe

Statutory Provisions Involved ......................cccccccceee

eI EE Nos ee sch iges hs ea hee eee

Reason for Granting the Writ ...........................e.

1. An Interpretation of “Persons Adversely

Affected” as Restricted to Those With a

Financial Interest in Continued Unre-

stricted Use of the Pesticide Is Inherently

i, ERED nas Una SATAN SE Ae ES Onn es Spade Bie

2. The Reasoning of the Court of Appeals in

Affirming the Final Decision of the EPA

Ee IIS, Co ces anne.

a ani

Appendix A—Opinion of the United States Court

of Appeals for the District of Columbia Circuit .....

Appendix B—Opinion of the Administrator of the

Environmental Protection Agency ..

TABLE OF AUTHORITIES

CASES

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976) ..

Sierra Club v. Morton, 405 U.S. 727 (1972)..............

TVA v. Hill, 487 U.S. 158 (1978)................ cece.

STATUTES

The Federal Insecticide, Fungicide and Rodenti-

cide Act, Sec. 6, 7 U.S.C. § 186d (b) (1976).........

Fee MND CE oincss es cnsssicsssccevcseresecnapssinenien

Se i I oes, Ooacicesienastushinedeorisasivoniniacwes

Fr eee ID HIE oe isos cn esescdsicssnstnsvecsnesecosspers

Se Sees OF BU ED COTO ooo es ic cennnnescicssicceesoasinscincnsns

MISCELLANEOUS

Notice of Intent to Cancel Registration and

Deny Applications for Registration of Pesti-

cide Products Containing Chlorobenzilate, 44

I i NE 0 ID da iaceccoincacceotecscssesnveccevevensnenss

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

ENVIRONMENTAL DEFENSE FUND, INC.

Petitioner,

Vv.

DOUGLAS M. COSTLE, ADMINISTRATOR

ENVIRONMENTAL PROTECTION AGENCY

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals (see Appendix A)

and of the Administrator (see Appendix B) are not

reported in any official or unofficial report.

STATEMENT OF JURISDICTION

The judgment of a panel of the Court of Appeals for

the District of Columbia Circuit was entered on July 17,

1980. Petitioner filed a timely petition for rehearing

which was denied by the Court of Appeals on August 18,

1980. This petition for a writ of certiorari was filed within

90 days of that date. The Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1)(1976).

STATUTORY PROVISIONS INVOLVED

1. Section 6(b) of the Federal Insecticide, Fungicide

and Rodenticide Act, 7 U.S.C. § 186(b) (1976):

(b) Cancellation and change in classification. If

it appears to the Administrator that a pesticide

or its labeling or other material required to be

submitted does not comply with the provisions of

this subchapter or, when used in accordance with

widespread and commonly recognized practice,

generally causes unreasonable adverse effects on

the environment, the Administrator may issue a

notice of his intent either—

(1) to cancel its registration or to change its

classification together with the reasons (in-

cluding the factual basis) for his action, or

(2) to hold a hearing to determine whether or

not its registration should be canceled or its

classification changed... .

The proposed action shall become final and effec-

tive at the end of 30 days from receipt by the

registrant, or publication, of a notice issued un-

der paragraph (1), whichever occurs later, unless

within that time either (i) the registrant makes

the necessary corrections, if possible, or (ii) a

request for a hearing is made by a person ad-

versely affected by the notice. ...

In taking any final action under this subsection,

the Administrator shall consider restricting a

pesticide’s use or uses as an alternative to cancel-

lation and shall fully explain the reasons for

these restrictions, and shall include among those

factors to be taken into account the impact of

such final action on production and prices of

agricultural commodities, retail food prices, and

otherwise on the agricultural economy, and he

shall publish in the Federal Register an analysis

of such impact.

2. Section 2(bb) of the Federal Insecticide, Fungicide

and Rodenticide Act, 7 U.S.C. § 136(bb):

Unreasonable adverse effects on the environ-

ment.—The term “unreasonable adverse effects

on the environment” means any unreasonable

risk to man or the environment, taking into

account the economic, social, and environmental

costs and benefits of the use of any pesticide.

STATEMENT OF THE CASE

In 1972 Congress amended the Federal Insecticide,

Fungicide and Rodenticide Act (“FIFRA”) to guarantee

a hearing to persons “adversely affected” by a notice of

the Administrator of the Environmental Protection

Agency (“EPA”) which proposes modifications in the

conditions governing use of a dangerous pesticide.

FIFRA is the basic statute by which use of hazardous

pesticides is controlled so that the public and the environ-

ment are protected from the indiscriminate use of toxic

substances. Some pesticides have been found to be so

dangerous that the provisions of FIFRA have required the

Administrator to impose a total ban on their use. In other

cases the Administrator has imposed restrictions on the

ways a pesticide may be used or applied in order to reduce

health and environmental hazards to acceptable levels.

Prior to the 1972 amendments, a decision by the

Administrator to change the classification of a dangerous

pesticide by imposing additional restrictions on its use

could be challenged at the Agency level only by the

manufacturer of the pesticide. 7 U.S.C. § 135 (1947). In

1972, Congress revised § 6(b) of FIFRA and extended the

right to challenge such proposals to all persons adversely

affected by the terms of the Administrator’s decision. 7

U.S.C. § 186d(b) (1976).

On February 13, 1979, the Administrator concluded a

review of the pesticide chlorobenzilate which had been

initiated in 1976 under EPA’s Rebuttable Presumption

Against Registration (“RPAR’) procedures. As sug-

gested by its name, an RPAR evaluation begins only when

there is known to be a relatively high degree of potential

harm associated with the continued use of a currently

registered pesticide. At the conclusion of the chlorobenzi-

late RPAR proceeding, the Administrator issued a notice

pursuant to § 6(b)(1) of FIFRA announcing that contin-

ued use of chlorobenzilate under the existing registration

would cause “unreasonable adverse effects on the environ-

ment.’ Nevertheless, because he recognized that

chlorobenzilate is effective in the control of rust mite in

citrus groves (its major application), the Administrator

announced his determination to permit the continuation

of this use subject to «>rtain additional restrictions. The

FIFRA § 6(b)(1) notice stated that these new restrictions

were adequate to offset the higher level of hazards which

had been discovered during the calorobenzilate RPAR

proceeding.

The Environmental Defense Fund (“EDF’”’) filed a

timely challenge to the Administrator’s proposal, con-

tending that the safeguards proposed were insufficient to

protect workers and the public from the serious hazards

that had become apparent during the RPAR. EDF on

numerous occasions has represented the interests of

occupationally exposed farmworkers in EPA proceedings. -

‘This is the statutory standard requiring cancellation or

modification of the registration of a pesticide. 7 U.S.C.

§ 136(bb) (1976).

——— ee, eel i i i ee — a

EDF requested an administrative hearing on its objec-

tions under FIFRA § 6(b)(1). Section 6(b)(1) provides,

in pertinent part, that a notice issued under § 6(b)(1):

. Shall be sent to the registrant and made

public. The proposed action shall become final

and effective...unless...a request for a hear-

ing is made by a person adversely affected by the

notice. (Emphasis supplied. )

In its objections EDF requested that continued use of

chlorobenzilate in citrus groves be limited to a five-year

period. EDF was aware that safer alternatives to

chlorobenzilate were being developed, and contended that

a five-year phase out would promote development of these

substitutes. The unlimited continuation of the

chlorobenzilate registration proposed by the Acdminis-

trator, on the other hand, probably would result in the

elimination of such expensive research and development

programs. In addition, EDF expressed concern about

evidence of testicular atrophy in farmworkers applying

chlorobenzilate and petitioned the Administrator to re-

quire growers to provide regular health screening for

these workers to protect them against impotency.

EDF pointed out that studies during the RPAR pro-

ceeding had identified chlorobenzilate as a_ probable

carcinogen. This is significant because chlorobenzilate is

applied through aerial application, raising the possibility

that it will drift from the citrus groves to nearby residen-

tial areas. Another danger associated with its use is that

pulp and rinds from citrus fruit which may be con-

taminated with chlorobenzilate are fed to dairy cattle, and

thus chlorebenzilate may be contained in cow’s milk and

thereby enter the human food chain.

On August 23, 1979, the Administrator of the EPA

entered a Final Decision which denied EDF a § 6(b)(1)

hearing and which dismissed EDF’s objections to the

chlorobenzilate cancellation notice.’ The reason for the

Administrator’s dismissal of EDF was his conclusion that

neither EDF nor any other petitioner objecting on behalf

of persons exposed to the pesticide could be a “person

adversely affected” within the meaning of FIFRA

§ 6(b)(1) because that term was intended to include only

those with economic interests affected by additional re-

strictions i.e., registrants and users.’ Appendix B, at 12b.

In addition, the Administrator ruled that even if he

granted EDF a hearing under § 6(b)(1), and EDF were to

demonstrate the inadequacy of the safeguards during the

hearing process, he would be unable to impose any

safeguards more stringent than those proposed in the

original notice. Appendix B, at 30b.

EDF appealed to the United States Court of Appeals

for the District of Columbia Circuit‘ and, on July 17, 1980,

* Notice of Intent to Cancel Registrations and Deny Appli-

cations for Registration of Pesticide Products Containing

Chlorobenzilate. 44 Fed. Reg. 9548 (1979). Although the notice

was styled a cancellation, it was in fact what is known as a

“conditional cancellation.” That is, all uses other than citrus use

were to be cancelled; citrus use could continue provided addi-

tional restrictions set forth in the notice were accepted by the

registrant and no person adversely affected by their terms

sought a hearing.

‘Organizational standing is not an issue in these proceed-

ings. EDF has not been barred from these proceedings because

it is not within the zone of interest to be protected, see Sierra

Club v. Morton, 405 U.S. 727 (1972), or for any reason other than

that it has no economic interest in the use of chlorobenzilate. No

party or intervenor has suggested that EDF is subject to any

other disability.

‘The Court of Appeals had jurisdiction over the appeal

under 7 U.S.C. § 136n(b) (1976).

a three judge panel of that Court’ affirmed the Adminis-

trator’s decision. The reasoning employed by the Circuit

Court, however, was different than that employed by the

Administrator in his Final Decision.’ The Court in effect

held that a § 6(b)(1) notice was severable and that only

persons who are adversely affected by the cancellation

portion of the notice have a right to a hearing. As to that

part of the notice which permitted continued use of a

pesticide even if subject to new and different restrictions,

the Panel held that this merely retained an existing use

and therefore could not be the subject of a § 6(b)(1)

hearing.

The Environmental Defense Fund filed a petition for

rehearing en banc which was denied August 18, 1980.

REASONS FOR GRANTING THE WRIT

This case is of major importance. Under the Circuit

Court’s decision, the right to a hearing on proposed EPA

safeguards affecting hazardous pesticides is denied to

everyone except those parties who have an economic

interest in reducing or eliminating new restrictions. In

‘Opinion for the Court filed by Circuit Judge Wilkey joined

by Judge McGowan and Judge Davies, Senior U.S. District

Judge for the District of North Dakota.

‘The Circuit Court acknowledged that “we have some

difficulty with the argument that EDF is not adversely affected

by the retention portion of the notice.” Appendix A, at 28a.

However, it stated that it was not bound by the general rule

that in dealing with a determination or judgment which an

administrative agency alone is authorized to make, the Court

must judge the propriety of such action solely by the grounds

invoked by the Agency (contrary to one of EDF’s contentions to

the Court). The Court held that it was dealing solely with the

question of statutory construction, an issue within its expertise

and therefore was not bound to follow the route the EPA

traveled in its interpretation of § 6(b). Appendix A, at 28a,

n.68.

1972, when Congress expanded the right to a hearing to

include all persons adversely affected, it could not have

intended that persons directly exposed to toxic and

carcinogenic dust, fumes and contaminated food be denied

the opportunity to obtain a hearing on the need for

modifications in the proposed protective measures.

It must be noted that no § 6(b)(1) notice of an

intention to change the present use classification of a

pesticide is issued until after the EPA already has

substantial evidence that continued use under an existing

registration poses unacceptable danger. The decisions

below have a significance well beyond that of foreclosing

EDF from obtaining a hearing on chlorobenzilate since

they apply with respect to all pesticides. These holdings

will prevent any effective challenge to the adequacy of every

future EPA plan for reducing hazards by any person

directly exposed to the hazard.’ Basically, these rulings

* During the Court of Appeals proceeding, the Environmen-

tal Defense Fund was supported amicus curiae by the following

organizations:

American Public Health The Migrant Legal Action

Association Program, Inc.

California Rural Legal The National Consumers League

Assistance Society

Concern, Ine. The National Consumers League

Consum .’s Union of the The National Wildlife Federation

United States, Ine.

Environmental Action The Natural Resources Defense

Council

Friends of the Earth The Oil, Chemical and Atomic

Workers International Union

The Equal Justice Foundation The Sierra Club

The Izaak Walton League The Wilderness Society

(footnote continues)

mean that no matter how egregious the Administrator’s

failure to propose adequate restrictions and no matter

how large a sector of the population is adversely affected

by this failure, no hearing under § 6(b)(1) may be

obtained to challenge his mistakes.

1. An Interpretation of “Persons Adversely Affected” as

Restricted to Those With a Financial Interest in Con-

tinued Unrestricted Use of the Pesticide Is Inherently

Flawed.

Prior to 1972, FIFRA provided that a hearing on a

change in classification of a pesticide was restricted to the

manufacturer-registrant of that pesticide. Thus, the

public was excluded from § 6(b)(1) hearings unless and to

the extent that a registrant caused a hearing to be held by

filing its own objection."

In 1972, Congress specifically amended § 6(b)(1) by

extending the right to a hearing to all persons adversely

affected by the notice. The notice represents a summation

(footnote continued )

It is clear that these organizations represent a significant

spectrum of associations devoted to public health, safety and

welfare. Who, other than these organizations, can speak effec-

tively for migrant farmworkers who are dependent upon the

adequacy of government safety regulations to prevent illness

associated with the application of toxic substances? Under the

holding below, none of them is able to contest the adequacy of

new safeguard proposals set forth in a § 6(b)(1) notice.

* As indicated in the statement of the case, the Adminis-

trator’s position that proposed restrictions can be amended to

reduce restrictions but not to make them more stringent makes

it pointless for others to become involved in the hear:ng process

even if a registrant makes a request for hearing. What would

be gained by demonstrating in an evidentiary submission that

proposed restrictions were woefully inadequate if the net result

were an announcement that the Administrator was helpless to

do anything to overcome the dangerous conditions he proposed

to allow?

of (a) the Administrator’s decision with respect to wheth-

er or not the existing registration of a pesticide should be

cancelled, continued or modified, and (b) the facts on

which his decision is based. In instances of a “conditional

cancellation,” the notice specifically states fact conclusions

as to the adequacy of the new use restrictions which the

Administrator proposes. In order to permit conditional

use subject to new and different restrictions, the Adminis-

trator must find that the restrictions are sufficient to

eliminate “unreasonable adverse effects on the environ-

ment.” FIFRA § 6(b).

The phrase “persons adversely affected” by its very

terms is not limited to the manufacturer who profits by

continued production or the citrus grove owner who prof-

its by continued restriction-free use of the pesticide. Not

only is this interpretation of the statute inconsistent with

the accepted meaning of the phrase “persons adversely

affected,” but it is inconsistent with the legislative history

surrounding the 1972 amendment. This Court should be

aware that EPA itself supported both of these conclusions

in the early stages of this proceeding, and that the

Agency simply reversed its position in medias res."

The Administrator’s dismissal of EDF’s objections

erroneously deprived EDF (and will deprive all others

similarly situated) of a statutory right to a hearing.

“EPA originally took the position that the legislative his-

tory required and was intended to permit workers and the

affected population to obtain a § 6(b)(') hearing because they

were within the category of persons adversely affected. At that

time, the Agency’s contention was that even though one could

participate as a person adversely affected, one could not obtain

more stringent relief than that set forth in the § 6(b)(1) notice.

Midway through these proceedings, the EPA reversed its read-

ing of the legislative history and now claims that Congress

never intended to include farmworkers, the affected population

or organizations supporting them. See Appendix A at 23a, n.56.

2. The Reasoning of the Court of Appeals in Affirming the

Final Decision of the EPA Is Insupportable.

As noted, although the Court of Appeals affirmed the

Final Decision of the Administrator, it appears to have

disavowed the Administrator’s rationale. The Circuit

Court did not accept the argument that EDF was not

adversely affected by the retention portion of the cancel-

lation notice. Instead, the Court concluded that even if

EDF were adversely affected by the retention decision, it

would have no right to a hearing because the statute gives

a hearing only to persons adversely affected by the cancel-

lation portion of the notice. The Court’s conclusion is

flawed in two respects. First, it ignores the plain meaning

of the statutory language. Second, it equates the condi-

tional cancellation notice with “retention” of an existing

pesticide registration.

Section 6(b) grants hearing rights to those persons

“adversely affected by the notice” of cancellation. The

Court’s failure to interpret the statute as it is written is

vividly demonstrated by its framing of the issue:

... we do not reach the issue of whether EDF is

adversely affected by the notice, because we

conclude that no hearing right is available to

challenge only the retention or permissive por-

tion of a cancellation notice. Appendix A, at 28a.

The Court therefore refused to reach the question ex-

pressly posed by the statutory language; that is, whether

EDF was “adversely affected by the notice.” Instead, it

imposed a qualification on § 6(b) that is nowhere found in

the provision itself. The statute was read by the Court as

if it stated that “persons adversely affected by the imposi-

tion of greater restrictions in the notice” receive a hear-

ing as a matter of right. This is not what the provision

says. By granting such rights to those “adversely affected

by the notice,” the statute permits hearings on all the

factual conclusions aiinounced in the notice, including the

conclusion that the proposed restrictions are sufficient to

protect the environment." The error is particularly eg-

regious in this case because, as the Court admitted, the

legislative history of the 1972 FIFRA amendment sug-

gests that Congress intended to guarantee greater citizen

participation in the administrative process (see Appendix

A, at 32a, n.75.), a result precluded by the Court’s limita-

tion of hearing rights to persons adversely affected by the

cancellation portion of the notice.

The Court also erred in treating the conditional

cancellation notice as if it were simply a decision by EPA

to retain an existing registration. It reasoned that since

other portions of FIFRA give no hearing rights to contest

decisions to permit the continued use of a pesticide (e.g.,

to grant a registration or to refuse to cancel a registra-

tion), EDF has no right to contest the portion of the

cancellation notice which permits continued use of

chlorobenzilate, although with restrictions.

In fact, there is one paramount distinction between a

conditional cancellation notice and the “retention” deci-

sions to which the Court refers. The conditional cancella-

tion notice issues only after the Administrator has found

that the pesticide causes “unreasonable adverse effects on

the environment.” Decisions to grant registration, or to

refuse to cancel a registration, are made precisely because

the Administrator has found the absence of such adverse

effects. The availability of hearings to contest the

Agency’s factual findings is thus tied to the degree of

It is precisely to avoid the arbitrary judicial redrafting of

statutes engaged in by the Court of Appeals that this Court has

recognized the primacy of the plain meaning of statutory

language as a tool of legislative interpretation. 7VA v. Hill, 437

U.S. 153, 184, n.29 (1978); Ernst & Ernst v. Hochfelder, 425 US.

185, 201 (1976).

danger posed by the pesticide. If the hazards are suffi-

ciently high to constitute “unreasonable adverse effects,”

the statute recognizes the wisdom of permitting hearings

to test the adequacy of the Agency’s proposals to reduce

those hazards. The intent of the statute is to give all

adversely affected persons the right to contest those

Agency decisions which merely restrict, but do not elimi-

nate, the use of pesticides which the Agency itself believes

are dangerous.'' This statutory meaning is entirely lost in

the Court’s mistaken equation of conditional cancellation

notices with “retention” decisions. In this case, the

chlorobenzilate registration was materially altered by the

Agency’s notice and therefore cannot be treated as reten-

tion of a registration.

Since the effect of the Court of Appeals’ reasoning is

to deny any opportunity to challenge safety conclusions

set forth in any § 6(b)(1) notice, this Court should re-

examine the Court’s conclusions on a priority basis.

'' The necessity for hearing rights is particularly critical in

this case because the Agency decided to unconditionally cancel

only about 10% of the uses of chlorobenzilate after finding that

the pesticide is an environmental poison.

CONCLUSION

For the reasons set forth above, petitioner respect-

fully requests that this petition be granted.

Respectfully submitted,

DOUGLAS V. RIGLER

MICHAEL FISCHER

DENNIS A. HENIGAN

1775 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

202-862-5300

Counsel for Petitioner

Environmental Defense Fund

Of Counsel:

WILLIAM A. BUTLER

ENVIRONMENTAL DEFENSE FUND

1525-18th Street, N.W.

Washington, D.C. 20036

202-833-1484

APPENDIX A

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1971

ENVIRONMENTAL DEFENSE FUND, INC., PETITIONER

Vv.

DOUGLAS M. COSTLE, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

CIBA-GEIGY CORPORATION, INTERVENOR

No. 79-2133

FLORIDA CITRUS MUTUAL, PETITIONER

DOUGLAS M. COSTLE, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Petitions for Review of Orders of the

Environmental Protection Agency

Argued 15 April 1980, Judgment enterec

, this date

Decided 17 July 1980) «ane

—_—-— ee.

Douglas V. Rigler with whom Michael Fischer, Wil-

liam A. Butler and Jacqueline M. Warren were on the

brief for Petitioner in No. 79-1971.

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

+ same

J. Hardin Peterson, Jr., with whom William Amory

Underhill was on the brief for Petitioner in No. 79-

2133. Monterey Campbell, II also entered an appearance

for Petitioner in No. 79-2138.

David E. Menotti, Associate General Counsel, Environ-

mental Protection Agency, of the Bar of the Court of

Appeals of New York, Pro hac vice by Special Leave of

Court, with whom Michael S. Winer, Deputy Associate

General Counsel, Mitchell H. Bernstein, General Attorney,

Environmental Protection Agency were on the brief for

Respondent.

Lawrence S. Ebner with whom Charles A. O’Connor,

III and Robert A. Anthony were on the brief for Inter-

venor Ciba-Geigy Corporation in No. 79-1971 and Amicus

Curiae National Agri Chemicals Association urging re-

versal in Nos. 79-1971 and 79-2138.

Thomas O. McGarity was on the brief for Amicus

Curiae, American Public Health Association, et al. urging

reversal and remand in Nos. 19-1971 and 79-2133.

Before: MCGOWAN and WILKEY, Circuit Judges and

RONALD N. DAviEsS*, Senior United States

District Judge for the District of North

Dakota

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge: Petitioners Environmental

Defense Fund, Inc. (EDF) and Florida Citrus Mutual

(Florida Citrus) challenge the Environmental Protec-

tion Agency’s (EPA) refusal to hold an administrative

hearing regarding an order restricting the use of chloro-

benzilate in four citrus growing states and banning its

use elsewhere. The EPA concluded that EDF was not

a party “adversely airected” by the order, and that

Florida Citrus’s request for a hearing was untimely.

While we do not adopt entirely the reasoning of the

EPA, we affirm its decision denying the requests for an

administrative hearing.

* Sitting by designation pursuant to 28 U.S.C. § 294(d).

OUTLINE OF OPINION

I. BACKGROUND

II. JURISDICTION

A. Order

B. Public Hearing

1. Statutory Language

Case Law

Other Statutes

Legislative History

~~ P ?

Judicial Policy

III. EDF’S RIGHT TO ADMINISTRATIVE HEARING

A. Cancellation

B. Noncancellation

1. Agency Rationales and Appellate Arguments

2. Discussion

(a) Structure and Language of Section 6(b)

(b) Legislative Intent

(d) Other Considerations

8. Conclusion as to EDF’s Hearing Right

IV. TIMELINESS OF FLORIDA CITRUS’S HEARING

REQUEST

V. CONCLUSION

I. BACKGROUND

On 26 May 1976 the Administrator of the EPA in-

itiated a Rebuttable Presumption Against Registration

(RPAR) proceeding to determine whether unrestricted

use of chlorobenzilate, a carcinogenic miticide, should

continue.' The RPAR process is an administrative pro-

ceeding designed by the EPA to gather and evaluate in-

formation about the risks and benefits of certain pesti-

cides. Written public participation in the preliminary

notice and comment stage of RPAR process was invited.’

The Administrator published his preliminary determina-

tions respecting the risks and benefits of chlorobenzilate

uses on 11 July 1978.* Pursuant to statute the Adminis-

trator referred his preliminary determination to the Sec-

retary of Agriculture’ and a scientific advisory panel °

before initiating final action. An opportunity to the

interested public was extended for comment on the Ad-

ministrator’s preliminary determinations. Both EDF and

Florida Citrus, among others, submitted written com-

ments and attended a public meeting ® held by the scien-

tific advisory panel.

On 13 February 1979 pursuant to section 6(b) of the

Federal Insecticide, Fungicide and Rodenticide Act

(FIFRA? the EPA published a Notice of Intent to

Cancel Registrations and Deny Applications for Registra-

141 FED. REG. 21,517 (1976).

* See 40 C.F.R. § 162.11 (1978).

*43 FED. REG. 29,824 (1978).

47 U.S.C. § 186(b) (1976).

57 U.S.C. $ 186(d) (1976).

* See 43 FED. REG. 32,185 (1978).

77 U.S.C. §1386d(b) (1976).

tion of Pesticide Products Containing Chlorobenzilate.*

The notice communicated the EPA’s intention to restrict

the use of chlorobenzilate in four citrus-growing states

and to ban its use elsewhere. Both EDF and Florida

Citrus requested section 6(d) administrative hearings

and filed objections to the intended cancellation, the for-

mer because its provisions were too lenient, the latter

because its provisions were too stringent. Florida Citrus’s

request, however, was not received by the EPA until

20 March 1979, more than 80 days after publication

of the notice in the Federal Register.

On 11 April 1979 the ALJ assigned to the case issued

a show cause order why an accelerated decision should

not be issued against EDF and Florida Citrus." On 22

May 1979 the ALJ issued an accelerated decision, in

which he dismissed Florida Citrus’s objections as not

timely.’ He also ruled against EDF, based on the re-

cent administrative decision. Jn re Shell Oil, which held

that no party has a right to seek more stringent relief

than that proposed in a section 6(b)(1) notice. The

parties appealed administratively; the Administrator is-

sued a Final Decision on 20 August 1979, affirming the

ALJ’s decision on all grounds. The Administrator agreed

that Florida Citrus had not filed within the time limits

set out by FIFRA. He also concluded that EDF was

not a party “adversely affected” by the cancellation no-

tice, and therefore was not entitled to request an ad-

ministrative hearing."

*44 FED. REG. 9548 (1979).

10 In re Environmental Defense Fund, FIFRA Docket No.

411 et al. (11 Apr. 1979), reprinted in Joint Appendix (J.A.)

at 113-15.

In re Environmental Defense Fund, FIFRA Docket No.

411 et al., slip op. at 7-11 (22 May 1979), reprinted in J.A.

at 72, 78-82.

11 Jd. at 1-7, reprinted in J.A. at 72-78.

On 18 December 1979 intervenor Ciba-Geigy Corp.

filed a motion to dismiss on the basis that jurisdiction

to review the challenged order lay in the district court

“and not in the court of appeals.!? This court denied the

motion on 19 February 1980."°

II. JURISDICTION

Intervenor Ciba-Geigy argues that the petitions for

review should be dismissed on the ground that this court

lacks jurisdiction to review the action of the Administra-

tor under the judicial review provisions of section 16 of

FIFRA. That section provides:

(a) District court review—Except as is otherwise

provided in this subchapter, Agency refusals to can-

cel or suspend registrations or change classifications

not following a hearing and other final Agency ac-

tions not committed to Agency discretion by law are

judicially reviewable in the district courts.

(b) Review by court of appeals—In the case of

actual controversy as to the validity of any order

issued by the Administrator fo! lowing : a public hear

id, any person who will be adversely affected by

such order and who had been a party to the proceed-

‘yes may obtain judicial review bv filing in the

United States court of appeals for the cireuit where-

in such person resides or has a place of business,

within 60 days after the entry of such order, a peti-

tien praying that the order be set aside in whole or

in part."

12 Motions to Dismiss and for Separate Argument.

8 Pnvivonmental Defense Fund, Inc. Vv. Costle, Nos. 79-1971,

79-2133 (19 Feb. 1980). The panel consisted of Chief Judge

Wright, Senior Judge Bazelon, and Judge Wilkey. Judge

Wilkey did not participate in the order.

"7 ULS.C. § 136n (a)-(b) (1976) (emphasis added).

Because an “actual controversy” surrounds the Adminis-

trator’s action and both petitioners claim to be “adversely

affected” by the action, this court has jurisdiction if the

EPA action is an “order issued by the Administrator

following a public hearing.”

In asserting that this court lacks jurisdiction, Ciba-

Geigy argues that the proceedings before the Chief Ad-

ministrative Law Judge and before the Administrator

did not constitute a “public hearing” within the meaning

of section 16(b) of FIFRA. Instead, those proceedings

denied the parties the right to a formal section 6(d)

hearing later. In other words, it is asserted that what

we have had is not a “hearing” or “public hearing,” but

a “proceeding” to determine if there will be a “public

hearing.” In addition, Ciba-Geigy asserts that the Ad-

ministrator’s action was not an “order” within the mean-

ing of section 16(b). Because EDF and Florida Citrus

are not challenging an “order . .. following a public

hearing,” Ciba-Geigy argues, the court of appeals lacks

jurisdiction. The final decision should therefore be re-

viewed in the district court under the section 16(a) pre-

scription for district court review of “other final Agency

actions not committed to Agency discretion by law.

In response, EDF, Florida Citrus, and the EPA argue

that review in this Court is proper. They assert that the

final decision is an “order,’”’ and that the record com-

piled through the proceedings before both the ALJ and

the Administrator is sufficient to fit within the require-

ments of a “public hearing.” In sum, while Ciba-Geigv

argues that the only agency action was summary denial

of the public hearing prescribed by section 6(d) of

FIFRA, the other parties insist that the decision to deny

the 6(d) hearing was itself based on a “public hearing”

before the agency.

Thus, the jurisdiction of this Court to review the

agency action at issue here turns both on whether the

final decision was an “order” and on whether that ac-

tion followed a “public hearing” within the meaning of

section 16 of FIFRA. The meaning of those terms

within the context of the judicial review provisions of

FIFRA is a question of first impression for this Court.

A. Order

Ciba-Geigy asserts that EPA’s decision is not an “or-

der” within the meaning of section 16(b). While it

concedes the decision is an order within the meaning of

the Administrative Procedure Act,'* it argues that FIFRA

contemplates “that a reviewable order is to be matured,

fully deliberated agency action, taken after ample op-

portunity for development of the factual record upon

which it must be supported.” Here, Ciba-Geigy main-

tains that no such mature, deliberated action took place;

rather, the EPA’s decision was “very much by way of

preliminary and summary action.” '*

No authority other than the structure of section 16

(b) is cited by Ciba-Geigy to show that “order” in

FIFRA means anything more than an order within the

meaning of the APA. Ciba-Geigy’s argument seems to

boil down to this: The EPA decision is not an “order”

within the meaning of section 16(b) because it is not the

kind of order Congress wanted appellate courts to review.

We think that, if the order followed a “public hear-

ing,” it is the type of order Congress intended appellate

courts to review. We find no authority that Congress

intended further to refine the meaning of “order” in sec-

tion 16(b). Therefore, we turn now to the question

whether the order followed a “public hearing.”

5 U.S.C. §551(b) (1976).

'® Motions to Dismiss and for Separate Argument 35.

B. Public Hearing

In considering whether the challenged order issued af-

ter a “public hearing,” it is helpful to review the nature

of the proceedings and submissions before the EPA. In

the proceedings before the ALJ, legal memoranda were

submitted by EDF, the EPA, Ciba-Geigy, and the Depart-

ment of Agriculture. Although a pre-hearing conference

was scheduled, none was held. Oral argument on the

issues before the ALJ was requested and denied. At the

conclusion of the proceedings, the ALJ issued his Ac-

celerated Decision, and the parties filed exceptions. On

appeal to the Administrator, the same parties again sub-

mitted briefs, and EDF filed a reply brief to the EPA’s

memorandum. The Administrator’s Final Decision fol-

lowed. In all, the EPA took 186 pages of argument and

supporting exhibits.'’ The certified index of the record

lists 68 items.

In arguing that the Administrator did not make his

decision to deny the section 6d) hearing on chlorobenzi-

late atter a “public hearing,” Ciba-Geigy points to the

lack of public notice, the absence of public participation,

and the lack of any type of oral presentation by the

parties. Rather, Ciba-Geigy characterizes the EPA’s ac-

tion as a “short-lived summary proceeding to determine

whether the petitioners’ requests for hearing should be

dismissed.” '* The other parties, who oppose Ciba-Geigy’s

motion, insist that a “public hearing” within the context

of the FIFRA judicial review provision can be far less

than a formal, evidentiary proceeding. Relying on de-

cisions that require no such proceedings to satisfy a

“hearing” requirement and on legislative history that

points to the importance of a record for appellate court

‘7 See Response of Petitioner Environmental] Defense Fund

to Intervenor’s Motion to Dismiss 10.

‘6’ Motion to Dismiss and for Separate Argument 18.

10a

review, these parties emphasize that appellate review

of the Administrator’s order requires a decision only

as to a matter of law and can be made on the basis of

the record already compiled before the agency.

Neither FIFRA nor federal law articulates a defini-

tion of the term “public hearing.” '* In resolving the

jurisdictional question, we must turn to other sources.

Examination of references to public hearings in FIFRA,

interpretive case law, and the meaning of analogous

language in other statutes is helpful, but does not un-

ambiguously resolve the question. However, FIFRA’s

legislative history and judicial policy strongly indicate

that the proceedings constituted a public hearing within

the meaning of section 16(b).

1. Statutory Language

Although FIFRA does not define “public hearing,” it

does use that term in several of its sections. Section 16

(b) invokes appellate court review only of an “order

issued ... following a public hearing.” Review is to be

based on all evidence of record, and the decision of the

Administrator is to be sustained if supported by sub-

stantial evidence, considered on the record as a whole.”°

Section 6(d) describes the procedures to be followed in

a public hearing held pursuant to a section 6(b) request.

Section 6(d) refers to the necessity of due notice, and

the production of evidence, documents, and testimony.*!

Section 14(a) requires notice and opportunity for “a

hearing” before civil penalties can be assessed under the

Act, but does not describe the nature of the hearing.”

19 Seacoast Anti-Pollution League v. Costle, 572 F.2d 872,

879 n.14 (1st Cir. 1978).

*°7 U.S.C. $136n(b) (1976).

21 Id. § 1386d(d).

22 Id. § 1861 (a).

lla

Section 21(b) allows the Administrator to solicit the

views of all interested persons in connection with his

other authority relating to public hearings.** In addition,

section 21(c) provides that “[iJn connection with all

public hearings under this subchapter the Administra-

tor shall publish timely notice of such hearings in the

Federal Register.” *

Ciba-Geigy urges that the combination of these pro-

visions, especially the description of the procedures re-

quired in a section 6(d) hearing, shows that the “public

hearing” needed prior to appellate review under section

16(b) of FIFRA is a formal affair with at least some

opportunity for oral presentation.

While this argument has some appeal, we are not

persuaded. That FIFRA establishes certain types of hear-

ing proceedings and procedures does not definitively prove

that these are the only “public hearings” able to serve

as predicates of appellate court review. Furthermore, it

is possible for a term to have different meanings, even

in the same statute.** As we observed in another case

°3 Td. § 186s (b).

*4 7d. § 136s(c).

25 Thus the implicit partial definition of public hearing in

§ 21(c) does not necessarily govern its meaning in § 16(b).

Section 21(c) provides: ‘In connection with all public hear-

ings under this subchapter the Administrator shall publish

timely notice of such hearings in the Federal Register.” This

implies that any proceeding in which notice is not so published

is not a public hearing, and since no such notice was pub-

lished in this case, arguably no public hearings preceded

the order. But §§ 21(c) and 16(b) are concerned with dif-

ferent matters, and “‘public hearing” in each must be inter-

preted in light of those differing concerns. Section 21(c)

is procedural, governing the input of agency decisions;

§$ 16(b) is jurisdictional, focusing on the kind of decision

courts of appeals should review. In interpreting § 21(c),

one must inquire what kind of proceedings Congress thought

12a

construing the meaning of “order” for judicial purposes:

“'T he word ‘order’ has several frequently utilized mean-

ings which vary in scope, and it is therefore not sur-

prising that different sections of the same statute might

use the word in different ways.” *°

In the absence of an explicit or conclusive contextual

definition of “public hearing” in FIFRA itself, in re-

solving the jurisdictional question we think it wise to

consult sources that might shed light on its meaning.

2. Case Law

Section 16(b) has been litigated rarely, and no de-

cision has defined precisely the term “public hearing”

as it is used in that section. In Lowisiana v. Train," a

district court in the Western District of Louisiana ad-

dressed the question of appellate court jurisdiction under

section 16(b). The EPA hearing that was the focus of

the case had consisted of the presentation of 93 witnesses,

1180 pages of transcript, and 1080 pages of exhibits over

a period of five days. The proceeding was an informal

public hearing, rather than a formal adjudicatory hear-

ing within the meaning of section 554 of the APA. The

district court recognized that section 6(d) of FIFRA

contemplated formal public hearings for cases of can-

cellation, suspension, or refusal to register a pesticide.

needed to be announced via the Federal Register. In inter-

peting §16(b), one must ask what type of proceeding Con-

gress wanted courts of appeals to review. As will be dis-

cussed, we think the agency proceedings and decision here

meet the concerns motivating Congress’s restriction of appel-

late court review to “orders ... following a public hearing.”

26 Investment Co. Inst. v. Board of Governors, 551 F.2d

1270, 1278 (D.C. Cir. 1977).

27 392 F. Supp. 564 (W.D. La.), aff’d mem., 514 F.2d 1070

(5th Cir. 1975).

13a

In addition, however, the court noted that section 21(b)

allows the Administrator to solicit the views of inter-

ested persons concerning actions taken under the Act.

This solicitation, the court concluded, would involve in-

formal, rather than formal, public hearings. Because

these FIFRA provisions indicated that Congress had con-

templated that both formal and informal proceedings

were “public hearings,’ and because legislative history

did not suggest that Congress intended “public hearing”

to mean only a formal public hearing, the district court

concluded that an EPA order following an informal pub-

lic hearing was sufficient to trigger appellate court re-

view under FIFRA. The Fifth Circuit affirmed without

opinion.

While helping illuminate the meaning of “public hear-

ings,’ Louisiana v. Train is distinguishable from the

present case. The informal hearings in Train occurred

after notice of proposed public hearings appeared in the

Federal Register, presumably as required by section 21

(ce) of FIFRA.** Moreover, the Train hearings included

oral presentations, examinations of witnesses, and ex-

tensive evidence.

Although Train does not resolve the question con-

fronting the court, it does indicate that the term “public

hearing’ encompasses more than just section 6(b)

hearings.

3. Other Statutes

Absent a definition or conclusive indications of the

meaning of “public hearing” in FIFRA and interpretive

case law, it is instructive to examine the meaning of

similar terms in other statutes. It appears that the

term “hearing” does not always require formal proceed-

ings, or even oral presentations.

°8 But see note 25 supra.

l4a

In Florida East Coast Railway ** the Supreme Court

held that, at least in some contexts, the term “hearing”

should be defined by reference to the use of that term

in the Administrative Procedure Act.

[C]onfronted with a grant of substantive author-

ity made after the Administrative Procedure Act

was enacted, we think that reference to that Act, in

which Congress devoted itself exclusively to ques-

tions such as the nature and scope of hearings, is

a satisfactory basis for determining what is meant

by the term “hearing” used in another statute.

Turning to that Act, we are convinced that the term

“hearing” as used therein does not necessarily em-

brace either the right to present evidence orally and

to cross-examine opposing witnesses, or the right to

present oral argument to the agency’s decision-

maker.*°

Applying this reasoning to section 1(14) (a) of the In-

terstate Commerce Act,*' the Court held that the hearing

requirement was satisfied by the “opportunity to com-

ment, to object, or to make some other form of written

submission.” ** Other authority supports the conclusion

that a “hearing” need not require formal proceedings

nor oral presentations.**

The absence of oral presentations in the challenged

proceedings would not disqualify them from being labeled

“hearings.” But here we consider the meaning not just

29410 U.S. 224 (1973).

30 Td, at 240 (footnote omitted).

31 24 Stat. 379 (1887) (current version at 49 U.S.C. § 11122

(Supp. II. 1978) ).

2410 U.S. at 241.

33 .g., United States v. Allegheny-Ludlum Steel Corp., 406

U.S. 742 (1972); Morgan v. United States, 298 U.S. 468

(1936).

15a

of “hearing,” but of “public hearing.” Ciba-Geigy as-

serts that “public hearing’ means something more. It

cites circuit court decisions that construe “public hear-

ing” in other statutes to require oral presentation or

public participation.

For example Seacoast Anti-Pollution League v. Costle ™*

construed the Federal Water Pollution Control Act

(FWPCA) Amendments of 1972 and the requirement of

the “opportunity for a public hearing” for operators of

effluent sources prior to an effluent limitation. The

First Circuit stated that

the FWPCA requires the EPA to afford an oppor-

tunity for a public hearing. We do not believe that

an opportunity to submit documents constitutes a

public hearing. Nor do we believe that the Admin-

istrator can comply with the statute merely by tak-

ing some evidence at a public hearing and then

taking the rest in written form.*

Despite the provision of section 556(d) of the Adminis-

trative Procedure Act that allowed agency “procedures

for the submission of all or part of the evidence in writ-

ten form,” the court found that the requirement of a

public hearing meant something more than only writ-

ten submissions. Other decisions have also stressed the

importance of oral as well as written participation,

when a public hearing is required by statute.**

While these opinions do indicate that “public hearing”

in some statutes requires oral public participation, they

34572 F.2d 872 (1st Cir. 1978).

35 Jd. at 879 (emphasis in original) (footnote omitted).

36 F.g., South Terminal Corp. v. EPA, 504 F 2d 646 (1st

Cir. 1974) ; Anaconda Co. v. Ruckelshaus, 482 F.2d 1801 (10th

Cir. 1973) ; Virgin Islands Hotel Ass'n Vv. Virgin Islands Water

& Power Auth., 465 F.2d 1272 (3d Cir. 1972).

16a

do not control the interpretation of section 16(b). These

decisions construe the meaning of the term “public hear-

ing” in a context entirely different from that of section

16(b) of FIFRA; they consider what procedures should

be followed in the process of agency decisionmaking,”

rather than what “public hearings” trigger appellate

review.

To determine whether a broader or narrower construc-

tion of “public hearing” should be a prerequisite to ap-

pellate review, we turn to the legislative history to ex-

amine the purpose of the requirement.

4. Legislative History

The present judicial review system in FIFRA dates

from 1972. Prior to 1972, FIFRA had provided for

appellate review in a case of actual controversy as to the

validity of an EPA order.** No express provision pre-

scribed district court review. In a pre-1972 decision

which considered judicial review under FIFRA, this court

noted that the review provisions “contemplated that ju-

dicial review would ordinarily occur .. . after advisory

committee proceedings and a public hearing. But they do

not make advisory committee proceedings or a public

hearing a jurisdictional prerequisite to review.” * Even

the lack of a hearing record, the court thought, would

not preclude review entirely.

7 Compare Mobil Oil Corp. v. Federal Power Commission,

483 F.2d 1238 (D.C. Cir. 1973), with Independent Cosmetic

Mfrs. v. HEW, 574 F.2d 553, 560 (D.C. Cir. 1978) (Wilkey,

J., dissenting). See also Friendly, “Some Kind of Hearing,”

123 U. Pa. L. Rev. 1267 (1975).

38 See Nor-Am Agricultural Prods., Inc. v. Hardin, 485 F.2d

1151, 1156 (7th Cir. 1970).

9° PDF v. Ruckelshaus, 439 F.2d 584, 591 (D.C. Cir. 1971)

(footnote omitted).

17a

The 1972 amendments to FIFRA established judicial

review for different types of agency action in both the

district and the appellate courts. In its report the Senate

Committee on Agriculture and Forestry indicated that

the question of judicial review was one of major concern

and study. The Committee believed that it had simpli-

fied the procedures for review by providing that Agency

actions taken after a hearing were to be reviewed by

courts of appeals and those taken without a hearing in

the district courts.*°

The Senate report explained the appropriate division

of judicial review as follows:

After a hearing judicial review on petition by

any person adversely affected is properly lodged in

the courts of appeals, since an adequate record ex-

ists for such review. Where, however, the Adminis-

trator has determined no substantial question of

safety exists which warrants formal review, and

thus has refused to hold a hearing, review should

be by a district court since there is no record for

the court of appeals.”

In Part II of the same Senate report, the Committee

quoted this language and added:

In short, the Committee on Agriculture and For-

estry believes that matters which have not been

heard before should go to courts of origina! juris-

ditcion and appeals from cases which have already

been administratively heard and decided should go

to appellate courts. The question is really that

simple.*?

49S. REP. No. 92-838, 92d Cong., 2d Sess. 28, reprinted in

[1972] U.S. CoDE Cona. & AD. NEws 4019.

417d. at 18, reprinted in [1972] U.S. CopDE Conc. & Ap.

NEWS 4004 (emphasis added).

42 Td., pt. II, at 50-51, reprinted in [1972] U.S. CopE Conc.

& AD. NEws 4070 (emphasis added).

18a

Ciba-Geigy argues that because the Administrator “has

refused to hold a hearing,” no “public hearing” has oc-

curred to give this court jurisdiction. It is true that

no hearing concerning cancellation per se has taken place,

and we are presently without jurisdiction to review the

merits of EPA’s decision conditionally to cancel registra-

tion of chlorobenzilate. But that is not the issued pre-

sented us. The question raised in this case is the leyality

of denying a section 6(d) hearing, and that issue has

“already been administratively heard and decided.” **

Furthermore, the Committee’s considerable emphasis

on the existence of a reviewable record must be con-

sidered in reaching a conclusion as to our jurisdiction.

The Committee reasoned that appellate review was ap-

propriate after a hearing because “an adequate record

exists for such review.” ** Legislative developments sub-

sequent to the 1972 amendments** are also consistent

with the proposition that the availability of a record

is especially significant in appellate review. During con-

sideration of the 1975 FIFRA amendments, the National

Agricultural Chemicals Association attempted to restrict

the judicial review provisions to orders following a public

hearing “pursuant to Section 6 of this Act.” That change

was deleted in Senate floor debate.*® The Senate’s sub-

«8 Jd.

44 7d., pt. I, at 18, reprinted in [1972] U.S. CopE Conca. &

Ap. NEws 4004.

*5 Although the subsequent history is not as persuasive as

statements contemporaneous with the statute’s enactment, it

is entitled to “some weight ‘as a secondarily authoritative

express of expert opinion.’”’ Copeland v. Martinez, 603 F.2d

981, 988 (D.C. Cir. 1979), cert. den., 100 S.Ct. 730 (1980)

(quoting Parker v. Califano, 561 F.2d 320, 3839 (D.C. Cir.

1977) (quoting Bobsee Corp. v. United States, 411 F.2d 231,

237 n.18 (5th Cir. 1969) ).

#6121 CONG. REc. 36,116 (1975).

19a

stitution, “for which there is a reviewable record,” was

also deleted during conference. Section 16(b) remained

unchanged. The conference report, however, made it

clear that the availability of a reviewable record was

the basis for appellate review:

It is the intent of the Conferees, however, that an

adequate reviewable record be developed by the En-

vironmental Protection Agency in each of its public

hearings although such hearings need not necessarily

be adjudicatory in nature.

In 1977 the National Agricultural Chemicals Associa-

tion proposed that any order to be given appellate review

be based on the record of a formal or due process hear-

ing. The Association was responding to the Administra-

tor’s position that an order following any type of public

hearing was to receive appellate review. The Senate re-

jected the proposal, and the report notes:

The Subcommittee then took up the proposal of the

National Agricultural Chemicals Association that

would require that all Environmental Protection

Agency public hearings directly reviewable in the

courts of appeal be adjudicatory in nature. It was

decided that there was no compelling reason for

changing existing law and the proposal was not

adopted.**

The legislative history of the 1972 amendment, then,

demonstrates that underlying the restriction of appellate

review to orders following public hearings was congres-

sional concern that review be based on an administrative

decision with an adequate record. The history of subse-

quent attempts to amend FIFRA shows no lessening of

these concerns.

47 H.R. REP. No. 94-668, 94th Cong., lst Sess. 6 (1975).

48S. REP. No. 95-334, 95th Cong., lst Sess. 12 (1977).

20a

Here, no facts are at issue. The petition presents a

pure question of law. The submissions before the Agency

and its decisions constitute a completely adequate record

for us to review. This being the case, we conclude that

the proceedings before the agency sufficiently meet the

concerns of Congress animating section 16(b) to qualify

as a public hearing.

5. Judicial Policy

It should be noted that our conclusion that these pro-

ceedings constituted the kind of public hearing Congress

intended to trigger appellate review is in accord with

sound judicial policy. In determining when agency regu-

lations are a “final order” allowing appellate court juris-

diction, this court has stated, “(i]t is the availability of a

record for review and not the holding of a quasi judicial

hearing which is now the jurisdictional touchstone.” *

Also, where “the administrative record forms the basis

for review, requiring petitioners challenging regulations

to go first to the district court results in unnecessary

delay and expense .. . and undesirable bifurcation of the

reviewing function between the district courts and the

courts of appeals.” "’ Where administrative proceedings

have developed an adequate record, judicial policy favors

appellate review; where no record or an insufficient rec-

ord is developed, district court review is generally ap-

propriate.

In this case, not only does a record exist, but it is

“an adequate record ... for such review.” *' The agency

9 Deutsche Lufthansa Aktiengesellschaft v. CAB, 479 F.2d

912, 916 (D.C. Cir. 1978).

50 Investment Co. Inst. Vv. Board of Governors, 551 F.2d

1270, 1276 (D.C. Cir. 1977) (citations omitted).

51S. REP. No. 92-888, 92d Cong., 2d Sess. 18, reprinted in

[1972] U.S. CopE Conc. & AD. NEws 4004; see Independent

Cosmetic Mfrs. v. HEW, 574 F.2d at 576 (Wilkey, J., dis-

senting).

2la

action in refusing wo hold section 6(d) hearings at the

request of both EDF and Florida Citrus raised issues of

law; those issues were briefed by the parties, and con-

sidered by the Agency. An order expressing Agency

rationale resulted. It would seem that few, if any, fur-

ther insights could have been gained through further

proceedings. Moreover, no fact finding will be necessary

in the process of judicial review. Appellate court review

on the basis of this sufficient record is consistent with

judicial policy. Involving a district court first not only

would not necessarily benefit the parties, but in view of

the likelihood of appeal might well be a waste of time

and effort by the court and parties.

We recognize that Congress may allocate judicial re-

view responsibilities as it pleases, with or without re-

gard to consideration of judicial economy or policy.

Here, fortunately, Congress designed review provisions

with the jurisdictional touchstone of the reviewable rec-

ord in mind. Referring to the existence of an adequate

record in deciding if an order followed a public hearing

within the meaning of section 16(b) is consistent with

the legislative history and judicial policy.

Because the record before us is wholly adequate for

judicial review, we conclude the proceedings antecedent

to the Administrator’s order were a “public hearing”

granting this court jurisdiction to review the challenged

order.

III. EDF’s RIGHT TO ADMINISTRATIVE HEARING

EDF maintains that it was entitled to an administra-

tive hearing pursuant to section 6(b) because it was a

82 Harrison V. PPG Indus., Inc., 48 U.S.L.W. 4585, 4589

(U.S. 27 May 1980) (No. 78-1918); see Independent Cos-

metic Mfrs. v. HEW, 574 F.2d at 568 (Wilkey, J., dissenting).

22a

person adversely affected by the notice. Section 6(b) pro-

vides in pertinent part:

The proposed action shall become final and effective

at the end of 30 days from receipt by the registrant,

or publication, of a notice issued under paragraph

(1) whichever occurs later, unless within the time

... (ii) a request for a hearing is made by a person

adversely affected by the notice.™

The EPA contends that EDF is not adversely affected

within the meaning of section 6(b), and that its remedy

is district court review of the decision to retain pur-

suant to section 16(a). In relevant part that section

states: “Agency refusals to cancel . . . registrations .. .

not following a hearing . . . are judicially reviewable

in the district courts.” ™

We hold that to the extent the notice cancels uses of

chlorobenzilate, EDF is not adversely affected. To the

extent EDF challenges the retention of registration as

restricted, it is not entitled to an administrative hearing.

A. Cancellation

EDF filed objections to the Administrator’s notice in

order to challenge “continued use of chlorobenzilate in

citrus groves.” * It is thus the retention, not the cancel-

337 U.S.C. § 186d(b) (1976).

‘4 7d. § 186n(a).

55 Brief for Petitioner EDF at 6. Specifically EDF objected

to:

a) the Agency’s assessment of both the risks and bene-

fits of the use of chlorobenzilate on citrus;

b) the Agency’s determination that modifications in the

terms or conditions of registration of products con-

taining chlorobenzilate for use on citrus will reduce

23a

lation aspect of the notice, that EDF maintains ad-

versely affected it. As a matter of fact, because no ob-

jections were filed in a timely manner to the cancella-

tion aspects of the notice, EDF maintains that that as-

pect of the notice should go into effect immediately. Be-

cause EDF was not adversely affected by cancellation and

restrictions of chlorobenzilate uses, as to that portion

of the notice EDF clearly neither has nor claims a right

to a hearing.

B. Noncancellation

1. Agency Rationales and Appellate Arguments

The rationales used by the EPA throughout these

proceedings to deny EDF an administrative hearing

have not been entirely consistent.®* First, the ALJ ruled

risks sufficiently to eliminate any unreasonable ad-

verse effects on man or the environment;

c) the Agency’s failure to cancel citrus uses of chloro-

benzilate products after a limited phase-out period

during which alternatives can be registered; and

d) the Agency’s failure to require the examination of

sperm counts in a selected population of chlorobenzi-

late applicators and citrus pickers exposed to chloro-

benzilate to gather data on the potential adverse

effects of chlorobenzilate on human reproduction.

Request for Hearing and Objections of the Environmental

Defense Fund to the Notice of Intent to Cancel Registrations

of Chlorobenzilate at 2-3, reprinted in J.A. at 147-48.

56 Interestingly EPA counsel originally argued rather stren-

uously to the ALJ that EDF could be adversely affected by a

retention decision within the meaning of § 6(b). Respondent’s

Reply to Memorandum of Petitioner Environmental Defense

Fund in Response to Notice to Show Cause of 11 April 1979,

at 6-10, reprinted in J.A. at 88-92. Agency counsel changed

its position in argument before the Administrator, contending

that only those desiring to stop cancellation can be “adversely

affected” within the meaning of §6(b). Respondent’s Reply

to Exceptions and Appeal by Environmental Defense Fund

from Accelerated Decision at 4, reprinted in J.A. at 45.

24a

that to consider in the cancellation proceedings restric-

tions on the use of chlorobenzilate greater than those

proposed in the cancellation notice would be improper.

He relied on Jn re Shell Oil Co.,° a decision by the

Judicial Officer of the EPA issued 9 April 1979 which

prohibited consideration in a section 6(b) (1) proceed-

ing of contentions that a conditional cancellation is in-

sufficiently restrictive. EDF did not challenge the ap-

plicability of Shell, but argued that it had been wrongiy

decided. The ALJ considered himself bound by stare

decisis. Although he assumed that EDF was adversely

affected by the notice,®* he held that its objections were

outside the scope of the cancellation proceeding, and he

denied the hearing request.*®

Then, while affirming the decision of the ALJ “‘in its

entirety,” ® the Administrator’s opinion focused on the

proposition that EDF was not a party “adversely af-

fected” by the notice of cancellation. The Administrator

maintained that EDF was an “adversely affected” party

under section 16(a) of FIFRA, but not under section

6(b). In his view, “adversely affected” persons within

the meaning of section 6(b) principally meant registrants

and users."’ Finding no indications that Congress meant

57 FIFRA Docket No. 401 et al. (9 Apr. 1979), reprinted in

J.A. at 116-35.

58 In re Environmental Defense Fund, FIFRA Docket No.

411 et al., slip op. at 4 n.4 (22 May 1979), reprinted in J.A.

at 75 n.4.

59 Td. at 4-5, reprinted in J.A. at 75-76.

6° In re Environmental Defense Fund, FIFRA Docket No.

411 et al., slip op. at 39 (28 Aug. 1979), reprinted in J.A. at

39.

*! He cited legislative history indicating that users of pesti-

cides were the prime movers behind 1972 amendments allow-

ing “persons adversely affected by the notice” to request an

administrative hearing instead of just “registrants” of the

25a

to include within the category of those who could re-

quest section 6(b)(1) hearings anyone besides parties

adversely affected by cancellation of registration, the

Administrator concluded that parties affected only by the

failure to restrict pesticides more stringently were not

entitled to request a hearing. Having thus determined

that EDF was not an adversely affected party,” the

Administrator largely ignored® the Shell Oil argu-

ments.“

In its appellate brief the EPA has further refined its

argument. Although not eschewing the Administrator’s

rationale, the EPA now suggests that under the 1972

Amendments no person could ever be adversely affected

by an insufficient notice of cancellation. The 1972

pesticide. The Administrator cited language in the legislative

history and a Fifth Circuit opinion demonstrating that the

amendment was to allow users to request hearings.

82 In re Environmental Defense Fund, FIFRA Docket No.

411 et al., slip op. at 10 (23 Aug. 1979), reprinted in J.A. at

17.

63 The Administrator did deal briefly with EDF’s argument

that any EPA authority to enlarge the scope of relief in a sec-

tion 6(b)(1) hearing beyond that proposed in the notice

would not pose due process problems. Jd. at 27, reprinted in

J.A. at 33.

64 On appeal EPA maintains that we need not reach the

Shell issue respecting the proper scope of § 6(b) (1) proceed-

ings. Brief for Respondent at 45-48. Because we conclude

the request for a hearing was properly denied, we do not de-

cide what issues are appropriate at a properly initiated

hearing.

85 Tt notes that prior to 1972 the Administrator had virtually

no option conditionally to cancel registrations; if he found

that there was a substantia] question as to the safety of the

pesticide, he was obligated to issue a notice of unconditional

cancellation. No person could be adversely affected by the

retention part of a notice because all cancellation notices

26a

amendments extended the right to initiate hearings to

those adversely affected by cancellation, but not to those

who claim injury because a notice failed to announce

unconditional restrictions (i.e., sufficient restrictions)

upon the use of the pesticide. The EPA contends, how-

ever, that the 1972 amendments granted it no authority

to issue contingent notices at all; therefore, the amend-

ments may not be construed to extend hearing rights

as suggested by EDF. According to the EPA, it was

not until 1975 that Congress tacitly allowed it to issue

conditional cancellation notices by changing the stand-

ard from a “substantial question of safety” determina-

tion to a balancing of economic, social, and environmental

factors. EPA would ascribe no intent to Congress to

change at that time the category of persors permitted

to request hearings.

Thus, only those injured by the PROHIBITORY aspect

of a notice’s cancellation or restriction provisions may

request a hearing. EDF, on the other hand, clains

injury only from the PERMISSIVE aspect of the notice.

The permissive aspect is really only a preservation of

the status quo, or a part of the status quo. The Agency

maintains that a failure to take more restrictive action

were unconditional. After a section 6(b) hearing, the Admin-

istrator could issue an order that partially or conditionally

cancelled pesticide registrations, but not before. The EPA

argues that in enacting the 1972 amendments Congress in-

tended that the “‘substantial question” standard for issuing

cancellation notices continue, and therefore all cancellation

notices were to be unconditional. Brief for Respondent at 29-30

note * (quoting S. REP. No. 92-838, 92d Cong., 2d Sess. 12-13

(1972) and 40 FED. REG. 28255 (1975). See also H. Rep. No.

92-1540, 92d Cong., 2d Sess. 32 (1972) (“[the amended

FIFRA] preserves cancellation criteria in existing law’’). Its

still being the case that no person could be adversely affected

by the failure of a notice to go far enough, Congress could not

have intended that such entities be among those adversely

affected parties that may request administrative hearings.

27a

in a notice (ic., retaining the status quo in part by

permitting certain qualified uses) does not injure a party

in the way Congress intended when it granted ‘“ad-

versely affected” parties the right to request adminis-

trative hearings.”

Ciba-Geigy notes that EDF is challenging only the

decision to retain the pesticide registration subject

tu certain conditions. It maintains that the structure of

FIFRA makes clear that while adversely affected parties

have a right to a hearing as to cancellation decisions by

the EPA, they have no right to challenge in an admin-

istrative hearing retention decisions by the Agency.

66 EDF on the other hand argues that “adversely affected”

means the same thing in section 6(b) as it does in section

16(a). It maintains that in the absence of contrary evidence

the words should be interpreted the same way. It notes that

the 1972 amendments instructed the Administrator to issue

cancellation notices whenever it found that continued use of

pesticide would result in ‘unreasonable adverse effects on the

envircnment,” Federal Environmental Pesticide Control Act

of 1972, $6(b), Pub. L. No. 92-516, 86 Stat. 973 (codified

at 7 U.S.C. §$ 186d(b) (1976)), that phrase defined as “any

unreasonable risk to man or the environment, taking into

account the economic, social, and environmental costs and

benefits of the use of any pesticide.” Jd. $2(bb) (current

version at 7 U.S.C. § 186(bb)).

EDF argues that whatever the standard for when cancella-

tion notices should issue under the 1972 amendments, nothing

prevented the EPA from issuing conditional cancellation

notices. The Judicial Officer in Shell Oil appeared to acknowl-

edge the power of the EPA under the 1972 amendments to

issue conditional cancellation notices. Slip op. at 12, reprinted

in J.A. at 127 (“the 1972 amendments provided ample au-

thority for the Agency to consider restrictions on the use of a

pesticide as an alternative to cancellation”). EDF also notes

that the 1972 amendments to FIFRA were in part motivated

by concern that citizens participate in the regulatory process,

and therefore ‘‘adversely affected” parties under section 6(b)

should include those impacted by insufficient restrictions in

a notice.

28a

2. Discussion

We have some difficulty with the argument that EDF

is not adversely affected by the retention portion of the

notice. The EPA’s argument is intricate and dependent

on congressional knowledge of implied interrelationships

of stated and intended notice standards, conditional and

unconditional notices, and parties affected thereby. How-

ever, we do not reach the issue of whether EDF is ac-

versely affected by the notice, because we cOnelude that

no hearing right is available to challenge only the re-

tention or permissive portion of a cancellation notice.

It is true that in “dealing with a determination or

judgment which an administrative agency alone is au-

thorized to make, [the court] must judge the propriety

of such action solely by the grounds invoked by the

agency.” Here, however, we deal solely with a question

of statutory construction, an issue within the court’s

expertise, and we are not bound to follow the route the

EPA traveled in interpreting section 6(b)."*

EDF concedes that, had the Administrator concluded

that no cancellation proceedings were warranted, its

only remedy would be section 16(a) district court review

under the arbitrary and capricious standard.’ It is

clear that were chlorobenzilate already registered under

the restrictions of the subject notice of cancellation, and

were EPA upon reviewing the situation to conclude that

no further restrictions were necessary, EDF’s only rem-

edy would be in the district court. The question here is

*7 SEC v. Chenery, 332 U.S. 194, 196 (1947).

68 See K. DAVIS, ADMINISTRATIVE LAW TEXT § 16.07, at 329

(8d Ed. 1972) (Chenery principle “does not apply to functions

which courts properly perform, such as... interpreting stat-

utes’’).

“* Reply of Environmental Defense Fund to Brief of Inter-

venor Ciba-Geigy Corp. at 5.

_- 29a

very narrow: whether by being included in the notice

of cancellation the decision to continue registration under

certain restrictions becomes subject to an administra-

tive hearing and eventual substantial evidence review by

the court of appeals. That is, does section 6(b) compel

the EPA to hold an administrative hearing when the

only proffered objection concerns the retention portion

of a notice of cancellation?' We hold that it does not.

Because we conclude that EDF is not entitled to a

hearing as to the retention question only, we do not find

it necessary to reach the question whether a party in a

validly initiated hearing could expand the scope of the

preceedings to consider restrictions more stringent than

those proposed by the EPA.

‘a) Structure and Language of Section 6(b)

The language of section 6(b) speaks only in terms of

cancellation decisions. The Administrator issues a ‘“no-

tice of his intent ... to cancel [the pesticide’s] regis-

tration.” *’ Unless an adversely affected party requests

a hearing, the cancellation becomes final and effective.

At that time any retention portion of the notice becomes

no more final than it was prior to the cancellation; a

party still may petition the EPA to issue an uncondi-

tional cancellation notice and obtain district court review

of any refusal to do so.*! Thus, the request for a hear-

ing stops the cancellation process and has no effect on

the retention portion of the notice.’* Since the hearing

7 U.S.C. § 136d(b) (1) (1976) (emphasis added).

1 See In re Environmental Defense Fund, FIFRA Docket

No. 411 et al., slip op. at 23 (28 Aug. 1979), reprinted in J.A.

at 30; 7 U.S.C. $1385n(a) (1976).

*2 Furthermore, we believe that interpreting section 6(b)

to allow a hearing reques. of itself negatively to affect

continued registration of a pesticide would contravene sec-

30a

halts the cancellation process, logically the purpose of the

hearing must be evaluation of the cancellation proposal.

Thus, the language and structure of section 6(b) indi-

cate that an adversely affected person may request a

hearing to consider reasons why registration should not

be cancelled. There is no indication that a party has a

right to a hearing to consider solely objections to the

retention part of the notice.

(b) Legislative Intent

Prior to 1972 only registrants could reqvest hearings

respecting cancellation notices. The 1972 amendments

expanded the class which could request hearings, but

there is no evidence that Congress intended to change the

basic subject matter and purpose of section 6(b) hear-

ings. Legislative history indicates that the class was

broadened out of concern that users be allowed to chal-

lenge cancellation decisions when registrants declined to

do so. As the Fifth Circuit explained in McGil! v. EPA:

The legislative history suggests that the rights of

non-registranis were recognized in the statute be-

cause certain Congressmen were concerned that a

pesticide producer would choose not to defend a

tion 6(c). Section 6(c) grants the Administrator exclusive

authority to suspend registrations when he believes it neces-

sary to “prevent an imminent hazard during the time required

for cancellation . . . proceedings.” We decline to intcrpret

section 6(b) to permit parties effectively to suspend a revis-

tration pending the hearing simply by filing objections and

requesting a hearing.

EDF argues that the EPA could issue regulations aliowing

the cancellation portion of a notice to go into effect when

only the retention portion is challenged. Brief for Petitioner

EDF at 18. This may be true. But this does not change the

fact that a hearing request is capable only of halting the

cancellation process, and of itself not capable of preventing

continued registration.

3la

particular registration that was of small importance

to the manufacturer, but of great importance to a

particular agricultural group. All parties to this

litigation agree that the testimony of Dr. Edwin A.

Crosby, a representative of the National Canners

Association, was instrumental in securing rights for

non-registrants in the revised statute. His proposed

amendment was designed to protect the rights of

users of established pesticides if the producer-regis-

trant decided not to defend against the cancellation

or change of a particular registration.”

The proposed Crosby amendment would allow any per-

son “adversely affected by cancellation of a registration”’

to file objections and request an administrative hearing.“

As adopted by Congress, section 6(b) allows those ‘“ad-

versely affected by the notice” to request a hearing.

While this slight change in wording may indicate an in-

tent to broaden the category of hearing requesters, we

do not think it evidences a change in the purpose of

section 6(b) hearings. The reason Congress adopted the

amendment was to allow persons other than registrants

to compel hearings regarding the cancellation decision.

While there is evidence that Congress desired participa-

tion in administrative proceedings by interested citi-

73593 F.2d 631, 635-36 (5th Cir. 1979) (citing Hearings on

H.R. 10729, Before the SubComm. on Agricultural Research

and General Legislation of the Senate Comm. on Agriculture

and Forestry, 92d Cong., 2d Sess. 294 (1972)) (footnote

omitted).

4In full the proposed amendment provided:

Any person who will be adversely affected by cancel-

lation of a registration or change of classification also

may file objections and request a public hearing within

30 days of public notice of the Administrator’s intention

to cancel the registration or to change the classification

of a pesticide.

Hearings on H.R. 10729 Before the SubComm. on Agrvicul-

tural Research and General Legislation of the Senate Comm.

on Agriculture and Forestry, 92d Cong., 2d Sess. 298 (1972).

32a

zens,*> we find no persuasive indications that Congress

intended to alter the function of section 6(b) hearings

from the halting of and considering of challenges to can-

cellation decisions to include consideration of objections

that noncancellation decisions are excessively permissive.

A party seeking review of the permissive aspect of the

Agency decision (i.e., the retention of certain erstwhile

qualified uses) may challenge these notice provisions in

district court.”

(ce) Relationship with Other Parts of FIFRA

We note that our interpretation of section 6(b) is

consistent with other aspects of FIFRA. Decisions by the

Administrator to deny registration of pesticides may be

challenged in an administrative hearing, but not de-

cisions to grant registration.’ Decisions to suspend

registration pending a hearing are subject to an adminis-

trative hearing, but not decisions refusing to suspend.”*

As previously noted, decisions to cancel may be chal-

lenged in an agency hearing, but not refusals to issue a

cancellation notice.

The pattern seems to be that decisions regulating more

strictly may be challenged in administrative hearings,

those regulating less strictly may not.” Thus, persons

7% For instance Senator Hart maintained that the bill took

“important strides in... the promotion of citizen participa-

tion in the regulatory process through comment before ad-

ministrative agencies.” 118 ConG. REc. 32,259 (1972).

76 See notes 77-79 and accompanying text infra.

77 U.S.C. § 1386a(c) (5)-(6) (1976).

78 Td. § 186d(c) (1976).

7 The Food, Drug and Cosmetics Act, 21 U.S.C. § 355 ef seq.

(1976), appears to exhibit a similar pattern. 21 U.S.C.

§ 355 (c) (1)-(2) (1976) (hearing when drug application re-

jected, no hearing when approved).

33a

seeking more stringent regulation may sue in the district

court without first enduring an administrative hearing;

those complaining of regulation as too strict must first

exhaust their administrative remedy of a formal hear-

ing before seeking judicial review. While all the pro

visions of FIFRA may not fit precisely into this mold,

we think this apparent pattern is useful to keep in

mind. Interpreting section 6(b) to require hearings

when an aspect of the cancellation portion of the notice

is challenged, but not when the only objection relates to

a retention decision, is perfectly consistent with the

pattern discerned in FIFRA.

(d) Other Considerations

We also note that this interpretation leaves EDF no

worse off than it was before the notice of cancellation.

As a matter of fact, EDF is better off. The cancella-

tion of the uses of chlorobenzilate has gone into effect

and to that extent EDF is better off than it was before

the notice of cancellation issued. Prior to the issuance

of the notice any decision not to cancel would have been

subject to a district court review under section 16(a),

and even now that many of the uses have been can-

celled the decision to retain registration for other uses is

still subject to district court review. Thus EDF has

available to it the same remedies that it did prior to

the notice of canceilation, and it is better off for the

automatic cancellations of certain uses having gone into

effect.

8. Conclusion as to EDF’s Hearing Right

Because EDF was not adversely affected by the por-

tion of the notice cancelling and restricting chloroben-

zilate uses, and because it is not entitled to a hearing

respecting only the retention portion, we conclude that

the Administrator correctly denied EDF’s hearing re-

quest.

34a

IV. TIMELINESS OF FLORIDA CITRUS’S HEARING REQUEST

With respect to the time period in which a hearing

request must be made, section 6(b) states:

The proposed action shall become final and effective

at the end of 30 days from receipt by the registrant,

or publication, of a notice issued under paragraph

(1), whichever occurs later, unless within that time

... (ii) a request for a hearing is made by a person

adversely affected by the notice.*°

In the notice of cancellation, the EPA outlined the fol-

lowing time limits:

Registrants affected by the actions initiating can-

cellation of the registered uses of chlorobvenzilate

may request a hearing on specific registered uses

within 30 days of receipt of this notice, or on cr

before March 15, 1979, whichever occurs later. Any

person adversely affected by the cancellation actions

initiated by this notice may request a hearing on

specific registered uses affected by this notice on or

before March 15, 1979."

Florida Citrus filed a request for a hearing on 20 March

1979. It did not respond directly to the ALJ’s order to

show cause why its request should not be dismissed as

untimely; rather, it filed a motion pursuant to 40 C.F.R.

$ 164.6(b) to enlarge the time within which to file ob-

jections. Believing that section 6‘b) required the dead-

line set in the cancellation notice, the ALJ held he was

without power to extend the deadline and consequently

the objections of Florida Citrus were dismissed.

On appeal to the Administrator, Florida Citrus argued

that section 6(b) allows requests to be filed within thirty

days from receipt by any registrant or publication of

897 U.S.C. § 1386d(b) (1976).

8144 FED. REG. 9548, 9551 (1979).

35a

the notice, ‘whichever occurs later.” Because Tower

Chemical Co., a registrant, did not receive a copy of the

cancellation notice until 1 March 1979, Florida Citrus

claims the deadline for hearing requests should have

been 31 March instead of 15 March. The Administrator

rejected the argument. He reasoned it was unlikely that

Congress intended that parties be required to discover

the dates that others received the notice to find out their

own deadline. He ruled instead that the deadline for a

registrant was thirty days after it received a copy of

the notice or thirty days after publication in the Federal

was thirty days after publication.

We agree with the EPA’s sensible interpretation of

the time limitation. The language of the statute is not

without ambiguity, but we do not read it to allow ad-

versely affected parties to request a hearing thirty days

after either receipt of the notice by any registrant or

publication. Indeed, section 6(b) speaks of a time period

beginning to run from the date of “receipt by the regis-

trant” of the notice. Logically, the relevant time period

begin to run for a registrant when notice is published

and when it receives the notice, not when any other

registrant receives notice.

Permitting all adversely affected parties, registrants

or nonregistrants, to request a section 6(b)(1) hearing

anytime until thirty days after receipt of the notice by

the very last registrants would lead to great uncertainty

as to time limits. For all we know there may still be a

notice in the Postal System that hasn’t been delivered to

a registrant. Interpreting the statutory time limit to be

thirty days after the party receives the type of notice

required by statute leads to certainty of rights and dead-

lines. A registrant knows it has thirty days to request

a hearing after receipt of actual or constructive notice,

to which it is entitled; the nonregistrant knows it has

36a

thirty days from constructive notice, to which it is en-

titled.**

We hold that the Administrator correctly interpreted

the time limitations of section 6(b), and affirm his dis-

missal of Florida Citrus’s objection.

V. CONCLUSION

We conclude that we have jurisdiction to consider this

petition and that the Administrator correctly denied

EDF’s and Florida Citrus’s requests for administrative

hearing. The decision of the Administrator is

Affirmed.

8? Nonregistrants are not statutorily entitled to actual notice

of cancellation, so of the two dates on which the thirty days

begin to run, only the date of publication has application. To

allow nonregistrants to file requests thirty days aftei any

registrant received notice would give nonregistrants an ad-

vantage that registrants do not have. It is true that as we

interpret section 6(b), registrants have a slight advantage

over nonregistrants because they may request a hearing

thirty days after cither actual notice or constructive notice

via publication. But these different time limits flow more

than anything else from the different kinds of notice rights

granted by Congress: registrants receive two kinds of notice,

nonregistrants one type. No challenge has been made to the

notice provisions legislated by Congress.

APPENDIX B

BEFORE THE ADMINISTRATOR

U.S. Environmental Protection Agency

WASHINGTON, D.C.

FIFRA Docket Nos. 411, et al.

IN RE:

ENVIRONMENTAL DEFENSE FUND, et al.

Petitioners.

Final Decision

This case involves separate appeals by the

Environmental Defense Fund (“EDF”) and Florida

Citrus Mutual from an Accelerated Decision of the Chief

Administrative Law Judge (issued May 22, 1979) dis-

missing their respective objections to a Notice of Intent to

Cancel Registrations and Deny Applications for Registra-

tion of Pesticide Products Containing Chlorobenzilate.'

The notice was issued pursuant to §6(b)(1) of the Federal

Insecticide, Fungicide, and Rodenticide Act, as amended

(“FIFRA”), which provides for the issuance of such a

notice

“{i]f it appears to the Administrator that a

pesticide or its labeling or other material re-

quired to be submitted does not comply with the

provisions of this Act or when used in accordance

'44 FR 9548 et seg. (February 13, 1979).

with widespread and commonly recognized prac-

tice, generally causes unreasonable adverse ef-

fects on the environment....”’

The action proposed in the notice becomes final and

effective at the end of thirty (30) days from receipt by the

registrant, or publication, of the notice, whichever occurs

later, unless the registrant makes the necessary correc-

tions (if possible), or a hearing is requested by a person

“adversely affected” by the notice. If a hearing is re-

quested, §6(d) of FIFRA provides that

“such hearing shall be held after due notice

for the purpose of receiving evidence relevant

and material to the issues raised by the objec-

tions filed by the applicant or other interested

parties. ...”

In this case, the notice was issued by the Assistant

Administrator for Toxic Substances (“Respondent”)

pursuant to a delegation of authority. The notice proposed

*The term “unreasonable adverse effects on the environ-

ment” is the statutory standard for determining whether a

particular use of a pesticide complies with the Act. It is defined

in §2(bb) as “any unreasonable risk to man or the environment,

taking into account the economic, social, and environmental

costs and benefits of the use of any pesticide.” In other words,

this standard requires that the benefits of each use of a pesticide

be balanced against its risks. H.R. Rep. No. 92-511, 92d Cong.,

Ist Sess. at 14 (House Committee on Agriculture) (hereafter

the “House Report’’). (‘"... [T]he Committee seeks to articulate

the concept that the benefits of using pesticides should be

balanced against the risks of using them.’’); S. Rep. No. 92-838,

92d Cong., 2d Sess. at 4 (Senate Committee on Agriculture and

Forestry) (hereafter the Senate Agriculture Report) (‘Pesti-

cides therefore have important environmental effects, both

beneficial and deleterious. Their wise control based on a careful

balancing of benefit versus risk to determine what is best for

man is essential.’’)

to unconditionally cancel the registrations (and deny

applications for registration) of chlorobenzilate products

for all uses other than citrus uses in Florida, Texas,

California and Arizona. With respect to the latter uses,

the notice proposed to cancel the registrations (and deny

applications for registration) unless registrants (and ap-

plicants) modified the terms and conditions of registra-

tion to reflect specified changes and restrictions. This

latter action is referred to as conditional cancellation.

Within thirty days of publication of the notice, EDF

requested a hearing and filed objections alleging in effect

that the conditional cancellation action did not go far

enough, that the proposed restrictions were inadequate,

and that the citrus uses should have been unconditionally

cancelled. Florida Citrus Mutual, an organization repre-

senting segments of the citrus industry which use

chlorobenzilate, also requested a hearing and filed objec-

tions, alleging in effect that the conditional cancellation

action went too far in imposing restrictions on the citrus

uses; however, the organization’s objections and request

for a hearing were not filed within thirty days of publica-

tion of the notice. No request for a hearing or objections

were filed by registrants of chlorobenzilate; however, the

principal manufacturer and registrant, Ciba-Geigy Cor-

poration, petitioned for leave to intervene for the limited

purpose of opposing the objections filed by EDF on the

grounds that they went beyond the scope of the proceed-

ing. The Secretary of Agriculture of the United States

also opposed EDF’s objections on similar grounds and

petitioned for leave to intervene. Both petitions went

unopposed and were subsequently granted.

On April 11, 1979, the Chief Administrative Law

Judge issued sua sponte a Notice to Show Cause why an

accelerated decision should not be entered against EDF

pursuant to §164.91(a)(6) of the Agency’s rules of prac-

tice and against Florida Citrus Mutual pursuant to

§$164.91(a)(1)° of the same rules (40 CFR §164.91(a)).

After receiving briefs from the parties and intervenors,

the Chief Administrative Law Judge entered his Acceler-

ated Decision dismissing the proceedings and the objec-

tions filed by EDF and Florida Citrus Mutual: EDF’s

objections were improper because the relief it sought was

outside the scope of the proceeding and therefore could

not be granted; and Florida Citrus Mutual’s objections

were untimely.

EDF’s Appeal

Respondent’s decision not to impose a total ban (un-

conditional cancellation) on the citrus uses of chlorobenzi-

late was made following a three-year review of the risks

and benefits of chlorobenzilate. The review was conducted

in accordance with the Agency’s Rebuttable Presumption

Against Risk (RPAR) regulations (40 CFR §162.11),

which, among other things, invited and took into account

comments (both oral and written) from interested groups

such as EDF in order to assist Respondent in determining

whether the statutory standard for issuing a cancellation

‘Section 164.91(a) provides, in pertinent part, as follows:

(a) General. The Administrative Law Judge, in

his discretion, may at any time render an accelerated

decision in favor of Respondent as to all or any

portion of the proceeding, including dismissal without

further hearing or upon such limited additional evi-

dence such as affidavits as he may receive, under atiy

of the following conditions:

(1) Untimely or insufficient objections filed

pursuant to $164.20;

* * *

(6) Failure to state a claim upon which relief

can be granted, or direct or collateral estoppel... .

notice had been met.‘ Based on that review, he concluded

that conditional cancellation for all citrus: uses would

achieve the statutory mandate of §6(b) that a pesticide

not cause “unreasonable adverse effects on the environ-

ment.” In other words, contrary to EDF’s wishes, he

refused to impose a total ba. (unconditional cancellation )

on the citrus uses of chlorobenzilate. It is that refusal

which is the undisputed source of EDF’s objections. Such a

refusal once finalized (after exhausting available adminis-

trative remedies), amounts to “final agency action’”’

within the terms of the Administrative Procedure Act (5

U.S.C. §704) and is judicially reviewable under 816 of

FIFRA.’ The issue thus raised by the dismissal of EDF’s

objections centers on what avenue of administrative relief

EDF is entitled to pursue in order to have the requested

relief either granted or denied (and thus finalized). Is it

by filing objections in the adjudicatory hearing forum

established by §6(d) of FIFRA, or is it by invoking the

‘The RPAR process, described in the Shell decision (dis-

cussed supra at 6), provides for the ‘more finely tuned control of

pesticides” as envisioned by Congress when it rewrote FIFRA

in 1972. See Senate Agriculture Report at 5.

‘Section 16 provides in pertinent part, as follows:

, (a) District Court Review—Except as is otherwise

provided in this Act, Agency refusals to cancel or

suspend registrations or change classifications not

following a hearing....are judicially reviewable in

the district courts.

(b) Review by Court of Appeals—In the case of

actual controversy as to the validity of any order

issued by the Administrator following a public hear-

ing, any person who will be adversely affected by such

order and who had been a party to the proceedings

may obtain judicial review by filing in the United

States Court of Appeals...a petition praying that

the order be set aside in whole or in part....

less formal administrative procedures which have evolved

by regulation and practice under FIFRA?

The effect of the Accelerated Decision was to rule that

the §6(d) hearing forum is not available to EDF. The

Chief Administrative Law Judge reached this result by

following the precedent established in a very recent deci-

sion of the Judicial Officer in another proceeding (in-

volving a different pesticide) which dismissed objections

similar to those voiced by EDF. Jn Re: Shell Oil Company,

et al. FIFRA Docket Nos. 401, et al., April 9, 1979

(Decision on Interlocutory Appeal). The applicability of

the Shell decision to the facts in this case is not disputed

by EDF; instead, it argues that the Shell decision is

erroneous and should therefore be reversed.‘

In Shell, the Judicial Officer reversed an interlocutory

ruling of the presiding Administrative Law Judge which

allowed Carlos Amaya, et al., representing a coalition of

farmworkers, to be heard on objections to a conditional

cancellation proposal. Amaya sought to expand the scope

of the hearing to include consideration of relief broader

(i.e., more restrictive) than that proposed in the §6(b)(1)

notice. In allowing Amaya’s objections, the presiding

officer relied principally on the language in §6(d) which

provides that, at the close of the hearing, the Adminis-

trator “shall issue an order either cancelling the registra-

tion, changing the classification, denying the registration,

" Initially there is the question of whether the Shel! decision

should be reconsidered in view of its undisputed applicability to

this case and the fact that no intervening events have occurred

to weaken its precedential value. It was rendered by the Judicial

Officer pursuant to a delegation of authority from me and

therefore has the same authority and finality as if penned under

my own name. Nevertheless, upon the Judicial Officer’s recom-

mendation, I have decided to rule on the merits of EDF’s claims.

EDF's suggestions that the Shell decision unfairly deprives

organizations such as its own of meaningful participation rights

in matters raising serious health and environmental questions

are not lightly taken and—I presume—not lightly made.

or requiring modification of the labeling or packaging of

the article.’”” He concluded that nothing in this language

indicates that the Administrator is limited to what has

been proposed in the §6(b)(1) notice and that it grants

the Administrator broad authority to take any remedial

action appropriate to the facts which have been found.

The Judicial Officer rejected this analysis on the basis that

it usurped the Administrator’s authority to define the

scope of the proceeding; it ignored the role of the §6(b) (1)

notice in setting the framework for the remainder of the

proceeding.

“In procedural terms, the notice serves much

the same function as a complaint in any other

proceeding, and as such, ‘set|s] a standard of

relevance which shall govern the proceedings at

the hearing.’ {Citations omitted.] Thus, matters

falling outside the scope of the notice of intent to

cancel are of no relevance to the proceeding.

‘Section 6(d) provides, in relevant part, as fo'lows:

(d) Public Hearings and Scientific Review.—In

the event a hearing is requested pursuant to subsec-

tion (b)..., such hearing shall be held after due notice

for the purpose of receiving evidence relevant and

material to the issues raised by the objections filed by

the applicant or other interested parties .... As soon

as practicable after completion of the hearing. . ., the

Administrator shall evaluate the data and reports

before him and issue an order either revoking his

notice of intention issued pursuant to this section, or

shall issue an order either cancelling the registration,

changing the classification, denying the registration,

or requiring modification of the labeling or packaging

of the article. Such order shall be based only on

substantial evidence of record of such hearing and

shall set forth detailed findings of fact upon which the

order is based.

Amaya’s objections belong in that category to

the extent that they are directed at expanding

the scope of the hearing to include matters not

contained in the notice of intent to cancel.

Although the language of Section 6 does not

expressly provide that the parties’ objections

must be relevant to the matters raised in the

notice of intent to cancel, such a limitation on

the right to file objections is necessarily implied.

“The Administrative Law Judge’s ruling, on

the other hand, allows the parties, by their own

objections, to set the standard of relevance for

the conduct of the proceeding. This result is

contrary to the statutory scheme. Under Section

6(b), the authority to issue a notice of intent to

cancel, and hence, set the standard of relevance,

is expressly reserved to the Administrator. The

Administrator may, of course, delegate that au-

thority to another Agency official, as he did in

this case by designating the Assistant Adminis-

trator; however, there is no provision in the Act

authorizing such notice to be issued by private

parties.” Shell decision at 10-11.

He also noted that limiting the scope of relief to what was

contained in the §6(b)(1) conditional cancellation propo-

sa! did not preclude Amaya from pursuing other viable

avenues of administrative relief in order to persuade the

Agency to consider initiating proceedings for the purpose

of establishing more stringent restrictions or uncon-

ditional cancellation.

The validity of EDF’s claim that Shell is incorrect as a

matter of law is premised on its assertion that it is a

person “adversely affected” by the §6(b)(1) notice,* a

statutory prerequisite to standing to request a hearing

and file objections.’ This assertion was challenged by the

* Exceptions of Environmental Defense Fund to accelerated

Decision at 1 June 2, 1979, and see generally Brief of

Environmental Defense Fund in Support of Exceptions and

Appeal from Accelerated Decision, dated June 11, 1979 (“EDF

Brief’).

"Section 6(b) of FIFRA provides:

“(b) Cancellation and Change in Classifica-

tion.—If it appears to the Administrator that a pesti-

cide or its labeling or other material required to be

submitted does not comply with the provisions of this

Act or when used in accordance with widespread and

commonly recognized practice, generally causes un-

reasonable adverse effects on the environment, the

Administrator may issue a notice of his intent ei-

ther—

(1) to cancel its registration or to change

its classification together with the reasons (in-

cluding the factual basis for his action, or

(2) to hold a hearing to determine whether

or not its registration should be cancelled or its

classification changed.

“Such notice shall be sent to the registrant and

made public... . The proposed action shall become final

and effective at the end of 30 days from receipt by the

registrant, or publication, of a notice issued under

paragraph (1), which ever occurs later, unless within

that time either (i) the registrant makes the neces-

sary corrections, if possible, or (ii) a request for

hearing is made by a person adversely affected by the

notice. In the event a hearing is held pursuant to such

a request or to the Administrator’s determination

under paragraph (2), a decision pertaining to regis-

tration or classification issued after completion of

such hearing shall be final.

(footnote continues)

10b

Secretary of Agriculture, Ciba-Geigy and, in particular,

by Respondent in his reply brief, where, based upon an

analysis of the statute and its legislative history, Re-

spondent argued that a person, such as EDF, whose

primary objective is not to stop a conditional cancellation

proposal from becoming final and effective (but rather is

to force more restrictive action, such as unconditional

cancellation), is not “adversely affected” within the

meaning of §6(b) of FIFRA.” EDF responds to this

argument by contending that Respondent’s position is

erroneous, that it constitutes a reversal of a long-standing

Agency construction of “adversely affected,” that it ig-

nores the plain words of §6(b), that it misreads the

legislative history, and that it is not defensible as a matter

of public policy.”

Notwithstanding EDF’s arguments to the contrary, I

am persuaded that Respondent’s reading of FIFRA is

correct. The controversy surrounding the meaning of

“adversely affected” under §6(b) arises at this late date

because, in the past, there has never been any need or

occasion to address the issue head-on in an actual con-

troversy. This case and Shell number among the first

instances in which the Agency has sought to implement

(footnote continued )

“In taking any final action under this subsection,

the Administrator shall consider restricting a pesti-

cide’s use or uses as an alternative to cancellation. .. .”

(Emphasis added. )

Respondent’s Reply to Exceptions and Appeal by

Environmental Defense Fund from Accelerated Decision, dated

July 9, 1979 (“Respondent’s Brief’).

'' Response of Petitioner Environmental Defense Fund to

Respondent's Reply to Petitioner’s Appeal from Accelerated

Decision, dated July 30, 1979 (“EDF Response”).

1lb

its authority to issue conditional cancellation notices.”

Prior to this time the Agency has had to confine itself to

issuing unconditional cancellation notices. As a con-

sequence, as was noted by the Chief Administrative Law

Judge, EDF has heretofore participated in FIFRA cancel-

lation proceedings as an intervenor, not as a party who is

allegedly adversely affected by the cancellation notice."

The “internal logic” of FIFRA is structured so as to

confer standing to request hearing and file objections on

those persons who want to stop the Agency’s proposed

action from going into effect. Under §6(b), the proposed

action is self-executing: it becomes “final and effective”

unless the registrant makes the necessary corrections (if

possible) or a request for a hearing is made by a person

“adversely affected” by the proposed action. EDF ob-

viously has no interest in stopping the proposed action

from going into effect, and it is clear that its objections

were not filed for that purpose. Rather, EDF’s grievance

with the proposed action is that the conditional cancella-

tion proposal for the citrus uses did not go far enough; in

other words, EDF complains, not of the action proposed,

but of the action not proposed. Put still differently, it is

the Agency’s refusal to propose action (unconditional

cancellation of the citrus uses) that is the source of EDF’s

objections. However, FIFRA has never provided for a

formal adjudicatory hearing under §6(d) in such circum-

stances. Instead, it expressly contemplates in §16 that

unresolved controversies over Agency “refusals” to pro-

pose such action are to be heard in the Federal courts. It is

The origin of the Agency’s authority to issue conditional

cancellation notices is discussed in detail in the Shell decision

(pp. 11-13) and will not be repeated here. EDF does not contest

the legality of conditional cancellation, but rather opposes

limiting the scope of the proceeding to consideration of condi-

tional cancellation (as opposed to including unconditional

cancellation as well).

'’ Acceleration Decision at 5, n. 4 (continued).

12b

clear, therefore, that FIFRA is not structured for the

purpose of entertaining objections by persons, such as

EDF, who have no real interest in stopping the cancella-

tion proposal from going into effect. If EDF’s objections

were to be entertained in this proceeding, they would

automatically prevent the proposed action from going into

effect even though no timely objections were filed by

persons such as, registrants and users, who presumptively

have a legitimate stake in stopping the proposed action,

but who may, nonetheless, for reasons of their own, elect

not to oppose it. This anomalous result was pointed out in

the Accelerated Decision": and would frustrate the statu-

tory scheme for protecting human health and the

environment. As Ciba-Geigy observed, “Ironically, EDF

would be defeating its own purpose by requesting a

hearing. From EDF’s viewpoint, some restrictions are

surely better than none.’ Thus, the statutory scheme of

FIFRA can not logically support the conclusion that EDF

is “adversely affected” by the conditional cancellation

proposal. The legislative history of FIFRA and the con-

trolling court decisions are also in accord with this analysis

of the statutory scheme.

The legislative history of FIFRA demonstrates that

the term “adversely affected” as used in §6(b) only

includes registrants, users and other persons who want to

stop the proposed cancellation action from going into

effect. In McGill v. Environmental Protection Agency, 593

F.2d 631 (5th Cir. 1979), the court construed this language

in the context of deciding whether users of a pesticide who

oppose cancellation have the right to prevent the in-

definite suspension of a §6(b)(2) hearing when the sole

registrant and the Agency have agreed to it. Its analysis

'' Accelerated Decision at 4, n. 4.

'" Response of Intervenor Ciba-Geigy Corporation to Ex-

ceptions of Environmental! Defense Fund to Accelerated Deci-

sion at 13, dated June 21, 1979.

13b

of the legislative history and meaning of the term “‘ad-

versely affected” is applicable in the context of this con-

troversy as well. The court observed that FIFRA, which

was originally enacted in 1947 (the “1947 FIFRA”) and

which only granted registrants standing to request a

hearing,’ was completely revised in 1972 for the general

purpose of expanding the Agency’s supervisory role over

the use of pesticides and protecting the environment, and

in the process of amending the 1947 FIFRA, “Congress

also granted specific rights of participation to ‘interested’

and ‘adversely affected’ persons (e.g., non-registrants who

are pesticide users) in... [§§6(a) and (b) of FIFRA.”

593 F.2d at 635 (emphasis added). The court examined

the legislative history and concluded that such rights of

participation were added to protect the interests of pesti-

cide users who were not registrants.

“The legislative history suggests that the

rights of non-registrants were recognized in the

statute because certain Congressmen were con-

cerned that a pesticide producer would choose

The procedures for requesting a hearing under the 1947

FIFRA provide, in pertinent part, as follows:

Whenever the Secretary ... determines that reg-

istration of an economic poison | pesticide] should be

cancelled, he shall notify...the registrant of his

action and the reasons therefor .... A cancellation of

registration shall be effective thirty days after service

of the foregoing notice unless within such time the

registrant (1) makes the necessary corrections; (2)

files a petition requesting that the matter be referred

to an advisory committee; or (3) files objections and

requests a public hearing. (7 USC 135)

if the matter was referred to an advisory committee and

the Secretary thereafter issued an order of cancellation, the

registrant (and only the registrant) was given another

opportunity to file objections and request a hearing.

14b

not to defend a particular registration that was

of small importance to the manufacturer, but of

great importance to a particular agricultural

group. All parties to this litigation agree that

the testimony of Dr. Edwin A. Crosby, a repre-

sentative of the National Canners Association,

was instrumental in securing rights for non-

registrants in the revised statute. His proposed

amendment was designed to protect the rights

of users of established pesticides if the producer-

registrant decided not to defend against the

cancellation or change of a particular registra-

tion. See Hearings on H.R. 10729. Before the

Sub-Committee on Agricultural Research and

General Legislation of the Senate Committee on

Agriculture and Forestry, 92d Cong., 2d Sess. 294

(1972).

Representatives of the United States Department of

Agriculture (USDA) also supported an amendment to

§6(b) in order to protect the interests of pesticide users

who were not registrants.

“Such a provision would protect agriculture

and other affected persons from the cancellation

of a product in instances in which a product has

an important use but for any number of reasons

“The amendment which Dr. Crosby referred to in his

testimony read:

“Any person who will be adversely affected by

cancellation of a registration or change of classifica-

tion also may file objections and request a public

hearing within 30 days of public notice of the Admin-

istrator’s intention to cancel the registration or to

change the classification of a pesticide.”

15b

the registrant does not wish to appeal; for exam-

ple, a use involving such a minor volume that the

registrant does not find it feasible to appeal.’’”*

In response to an inquiry by Senator Allen, the same

USDA witness elaborated:

“What we had in mind is an example of a

small group. To use an example, let us take an

example of citrus growers in California. I believe

that the registration for DDT on citrus was not

appealed by the registrant when it was can-

celled. The citrus growers therefore had no

recourse under the existing law and under the

proposed law [i.e., H.R. 10729]. What we would

say is that user groups should have the right to

appeal on their own behalf and this should not be

limited to the registrant. This is our point.’’””

Based on the foregoing testimony and the testimony

of Dr. Crosby, the Senate Agriculture and Forestry Com-

mittee reported a bill containing an amendment which is

virtually identical to the present §6(b).

“The proposed action shall become final and

effective at the end of 30 days from receipt by

the registrant, or publication, of a notice issued

under paragraph (1), whichever occurs latest,

unless within that time either (i) the registrant

makes the necessary corrections, if possible, or

(ii) a request for a hearing is made by a person

adversely affected by the notice.’”"

'" Hearings before Subcommittee on Agricultural Research

and General Legislation of the Committee on Agriculture and

Forestry, U.S. Senate (92nd Cong., 2nd Sess.), on H.R. 10729,

Part II, March 7 and 8, 1972, p. 111 (“Senate Hearings’’).

“ Id at 114-115.

“ Senate Agriculture Report at 49.

—————

16b

In explaining the amendment, the Senate Agricul-

ture Report demonstrates that the Senate intended the

term “adversely affected” to refer to users of the pesticide.

“The committee action permits persons ad-

versely affected [i.e., registrants] to continue to

be able to request review of the status of a

registration and adversely affected persons, like

users, also to participate in the administrative

process.’”' (Emphasis added. )

At the same time that users were securing new rights

of standing from Congress to request hearings and file

objections under §6(b), various public interest groups,

including EDF, were waging a battle to retain their

established right of standing to obtain judicial review of

Agency refusals to initiate cancellation hearings under

$16 (formerly §4(d) under the 1947 FIFRA).” Under the

1947 FIFRA, the right of environmental groups to initiate

cancellation proceedings by petitioning the Agency (out-

side the framework of a cancellation hearing) was recog-

nized in Environmental Defenses Fund v. Hardin, 428 F.2d

1093 (D.C. Cir. 1970). The court held that EDF had

standing to seek judicial review of a refusal by the

Secretary of Agriculture (who then administered

FIFRA) to issue a notice cancelling all uses of DDT.

“The statute affords a right of review to ‘any

person who will be adversely affected’ by an

order (7 U.S.C. 135b (d) (1964) .... The ‘zone of

interests’ sought to be protected by the statute

includes not only the economic interest of the

registrant but also the interest of the public in

safety.” 428 F.2d at 1096.

*! Id at 12.

“ See, e.g., Senate Hearings at 135 (Sierra Club), 140 (Na-

tional Audubon Society), 147-150 (Alabama Conservancy) and

168 (Environmental Defense Fund).

17b

As noted by the court, the judicial review provisions of

the 1947 FIFRA allowed any person “adversely affected”’

by an order to seek judicial review. The House of Repre-

sentatives tried to change this language to “any party at

interest,” but the Senate Agriculture Committee “re-

jected the House language which refers to ‘interested

persons’ so as to avoid any implication of desiring to

change present law.’ Under the “present law” at that

time, non-registrants (including users and environmen-

tal groups) did not have the right to request an adminis-

trative hearing. They could, however, participate in the

administrative hearings as intervenors. Consequently,

the Senate’s restoration of “adversely affected” in the

judicial review provisions of FIFRA did not, contrary to

EDF’s assertions, indicate an intent to grant

environmental groups standing to request a hearing for

the purpose of contesting an Agency refusal to initiate a

cancellation proceeding. EDF glosses over these facts in

its selection of excerpts from the legislative history and

thus fails to make the proper distinction between stand-

ing to intervene in an administrative hearing and stand-

ing to obtain judicial review of challenged administrative

action.” For example, EDF cites the following statement

** House Report at 62.

** Senate Agriculture Report at 12.

* As noted by Professor Davis in his treatise on adminis-

trative law,

“The problem of right to intervene in adminis-

trative proceedings is closely related to and in some

measure governed by the elaborate body of law con-

cerning standing to challenge and to enforce admin-

istrative action. But intervention and standing to

challenge are not the same and are not governed by

the same considerations. Intervention is affected by

Agency rules and statutory provisions not affecting

(footnote continues)

18b

of David D. Dominick, a former EPA Assistant Adminis-

trator, which was made before the Senate Agriculture

Subcommittee, as support for its contention that

“{e]nvironmental groups such as EDF had standing to

request and to participate in cancellation hearings under

the ‘present law’ referred to by the Senate Committee.’

“On a related subject [i.e., EPA’s authority

to phase-out use of a cancelled pesticide], this

matter underscores the importance for broad

public participation in our regulatory process. As

the law stands at present, users and interested

groups, like environmentalists, have standing to

participate in our decisions. The House Bill has

changed the language in the present act. It is

our view that this change in language does not

create a change in substance in view of the case

law which does not suggest that courts view

these two phrases differently. While we do not

believe a change back to the original FIFRA is

required, the Committee may wish to include

(footnote continued )

standing to challenge. The problems of case or con-

troversy, the heart of many standing problems, do not

affect intervention in administrative proceedings.

Furthermore, the consequences of intervention are

different from the consequences of allowing a party to

obtain review. Intervention depends not only upon

the directness and importance of the effect of the

proceeding upon the interest of the party seeking to

intervene, but it also depends upon the effects upon

the proceedings of allowing intervention. Thus, an

undue broadening of the issues is a common ground

for denying intervention.” K. Davis, Administrative

Law Treatise, §8.11, at 564 (1958).

“ EDF Brief at 7.

19b

language in the committee report which would

clarify what we believe to be the case.”” (Em-

phasis added. )

Mr. Dominick’s reference to “standing to participate

in our decisions” was obviously intended to refer to stand-

ing to participate as an intervenor; only registrants had

standing to request a hearing under the 1947 FIFRA. In

his prepared comments for the Senate subcommittee

hearings, Mr. Dominick addressed this point directly:

“We agree that any interested person should

be able to intervene in a hearing. This is the

practice under the present law and that practice

is, we believe, carried forward by H.R. 10729 and

no further language is necessary... .’””

Based on this testimony, the Senate Agriculture and

Forestry Committee rejected an amendment proposed by

the Senate Commerce Committee which would have made

such a right to intervene an express part of the law."

Another example of EDF’s failure to distinguish be-

tween the different types of standing is the following

passage in the Senate Agriculture and Forestry Com-

mittee’s Supplemental Report, which explained that com-

mittee’s reasons for rejecting a Senate Commerce Com-

mittee proposal to include an amendment to provide for

citizens’ suits:

“The bill as reeommended by the Committee

on Agriculture and Forestry affords adversely

“Senate Agriculture Report at 14.

“Senate Hearings at 84.

“See Senate Agriculture Report (Supplemental) at 42

(October 3, 1972). H.R. 10729 was referred to both Senate

committees, but the Committee on Agriculture and Forestry

ultimately prevailed in asserting a predominant role in in-

fluencing the final legislation.

20b

affected parties with the opportunity for admin-

istrative and judicial review of decisions with

respect to registration, cancellation, suspension,

classification and the imposition of additional

involvement of citizens in the administration of

the law provided for by this amendment. * * *

The Agriculture Committee bill already permits

any citizen to initiate cancellation proceedings,

obtain judicial review of every action and in-

action he disagrees with, and intervene in every

proceeding... .”’ (Emphasis supplied in EDF Re-

sponse at 10).”

The underscored language is plainly not “dispositive”

of the issue as EDF contends.” First, there is no indication

in this language that the Senate Agriculture and Forestry

Committee intended to rescind its previous statements

which equated “adversely affected” persons under §6(b)

with registrants and users. Second, the passage simply

does not address the issue of whether environmental

organizations have standing to request a hearing under

§6(b). Third, the right of citizens to “initiate cancellation

proceedings” by petitioning the Agency to issue a cancel-

lation notice was established in Environmental Defense

Fund v. Hardin, and that right is distinctly different from

the right to request a hearing after the cancellation notice

has been issued. And finally, the express reference in the

quoted passage to the right of “any citizen” to “intervene

in every proceeding” constitutes tacit recognition of the

” Id at &&

‘ EDF Response at 11.

21b

fact that the Senate expected such persons to participate

as intervenors.”

Thus, the Senate’s restoration of the “adversely af-

fected” language in the judicial review provisions of §16

was intended to avoid any implication of changing the

“present law” regarding the right of third parties, such as

EDF, to obtain judicial review. That action did not

purport to create any new rights of standing for such

persons in cancellation hearings under §6(b). However,

because the focus of the Senate’s deliberations over §16 are

heavily identified with rights of environmental groups to

obtain judicial review, EDF argues that the identical

“adversely affected” language in §6(b) must also have

been intended to reflect the same Congressional concern

over their rights in cancellation hearings.” This argument

is too simplistic. It seeks to always equate environmental

organizations with the term “adversely affected.” How-

ever, this ignores the plain meaning of the words: whether

one is “adversely affected” depends not so much on his

status as a registrant, user or environmentalist, but rath-

er on how he is affected by the proposed action. There

must be some legally recognizable injury as a result of the

“In resolving the discrepancy between the House and

Senate judicial review provisions, the Committee of Conference

similarly stated that $16

‘.. provides judicial review of any order follow-

ing a public hearing for ‘any person who will be

adversely affected by such order and who had been a

party to the proceedings.’ It is the intent of the

conferees that anyone who intervenes in a public

hearing under this Act shall be considered a party for

purposes of this provision [i.e. §16(b)].... The con-

ferees intend the words ‘adversely affected’ to have

the same meaning that they have under 5 U.S.C. 702.”

S. Rep. No. 92-1540, 92d Cong., 2d Sess. at 33 (1972).

“ See EDF Response at 8.

22b

proposed action in order for the person to be ‘adversely

affected.” As stated in Sierra Club v. Morton, 405 U.S. 727,

739 (1972), “a mere ‘interest in the problem,’ no matter

how longstanding the interest and no matter how quali-

fied the organization is in evaluating the problem, is not

sufficient by itself to render the organization ‘adversely

affected’ or ‘aggrieved’... .”” Under this definition, EDF is

clearly not “adversely affected” by the conditional cancel-

lation proposal; if anything, EDF is benefited, not injured,

by the restrictions on the citrus uses. EDF’s over-

simplification of the relationship between §6(b) and §16

also ignores the legislative history, discussed earlier, which

demonstrates that the “adversely affected” language in

§6(b) was added to protect the interests of non-

registrants, like users, whose potential for injury is mani-

fest if the proposed action goes into effect.

EDF’s real grievance, as stated earlier, is not with the

action proposed, but with the action not proposed. FIFRA

has never provided for an automatic right to a cancella-

tion hearing in such circumstances. If EDF is unsuccessful

in convincing the Agency that its refusal to initiate a

cancellation hearing is wrong, EDF’s recourse is to con-

vince a Federal court that the Agency’s refusal violated

the statutory standard under which the Agency is re-

quired to issue cancellation notices. Thus, in Environmen-

tal Defense Fund v. Hardin (after holding that EDF had

standing to obtain judicial review of the Secretary’s

refusal to initiate a cancellation hearing), the court re-

manded the case to the Secretary of Agriculture for an

explanation of the grounds for his refusal. When, after

remand, the Secretary affirmed his original decision not to

initiate a cancellation hearing, the court held that based

upon the Secretary’s own findings respecting the hazards

of DDT, the statutory standard for issuing cancellation

notices had been violated. Environmental Defense Fund v.

Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971).

23b

“When, as in this case, he reaches the

conclusion that there is a substantial question

about the safety of a registered item, he is

obliged to initiate the statutory procedure that

results in referring the matter first to a scien-

tific advisory committee and then to a public

hearing.” 439 F.2d at 595.

Since the Secretary had made a finding about the safety

of DDT which met the statutory standard for issuance of a

cancellation notice, the court ordered him to issue a

cancellation notice and thereby commence the formal

administrative process. Consequently, when the opposite

finding is made, EDF’s recourse to the decision to exclude

these uses from unconditional cancellation is the same as it

was in 1970. It may petition the Agency to reconsider the

refusal to issue an unconditional cancellation notice and, if

the petition is subsequently denied, have that decision

judicially reviewed as provided in §16 of FIFRA. The law

has not changed in this respect, and therefore, contrary to

EDF’s suggestions, its rights of public participation in

pesticide decisions are not narrowed by this result. In

fact, EDF, as well as registrants, users and others, were

given the opportunity, as part of the RPAR review of this

chemical, to participate in the decision which resulted in

Respondent’s issuance of the chlorobenzilate cancellation

notice. The highlights of this review were summarized by

Respondent as follows:

“The Chlorobenzilate Notice was issued after

almost three years of intensive review under the

RPAR process, which afforded multiple opportu-

nities for interested parties, including EDF, to

make their views known to the Agency. Parties

were invited to submit comments in response to

the initial RPAR Notice (41 FR 21517; May 26,

1976); were allowed to make written and oral

presentations to the Agency’s FIFRA Scientific

24b

Advisory Panel; and were invited to submit com-

ments on the Agency’s preliminary decisions

concerning the balancing of risks and benefits of

Chlorobenzilate which were announced in a No-

tice of Determination Concluding the Chloro-

benzilate RPAR, and which were explained in

detail in an accompanying Position Document

(43 FR 29824; July 11, 1978). Moreover, the

Agency responded in detail to the last set of

comments on the Agency’s evaluation of risks,

benefits and chosen regulatory options in anoth-

er Position Document which accompanied the

final Chlorobenzilate Notice (44 FR 9548; Febru-

ary 13, 1979). Following this sequence of events,

the Administrator’s delegatee for these decisions

(Respondent Assistant Administrator for Toxic

Substances) has taken an action that he has

determined will achieve the statutory mandate

that a pesticide not cause unreasonable adverse

effects on the environment, and has issued a

86(b)(1) notice to effectuate that decision.”

(Respondent’s Brief at 28-29.)

Thus, public participation in pesticide decisions is actually

broadened in contrast to earlier times when decisions on

cancellation matters were not made public until a cancel-

lation notice was actually issued. At the same time, the

RPAR process implements the spirit of the Congressional

mandate that FIFRA provide for ‘more finely tuned

control of pesticides.” (This latter point is discussed at

length in the Shell decision.) Yet, in spite of these parallel

achievements, EDF is urging an interpretation of FIFRA

which it openly acknowledges will cause the environmen-

tally protective restrictions contained in the conditional

cancellation proposal to be “stayed pending the outcome of

" Note 4, supra.

25b

the hearing.” Such an interpretation simply does not

make any sense and is contrary to the statutory scheme as

discussed above.

EDF raises a number of other arguments in its briefs

which are primarily intended to support its contention

that the Shell decision is erroneous. For example, in

arguing that the Agency has broad authority under

FIFRA to enlarge the scope of relief beyond what is

proposed in the notice of intent to cancel, EDF suggests

that the due process problems with respect to the regis-

trant who elects not to oppose the proposed action (and

thereby allows his registratioh to be cancelled by oper-

ation of law) can be ignored since the registrant was on

notice during the RPAR review that unconditional

cancellation was an option open to the Administrator and

“it is in this context that the registrant was advised of

EDF’s objections to the Administrator’s proposal.’ The

practical effect of this suggestion is to nullify the purpose

of the notice itself, which is to inform the registrant of

what action the Agency intends to take (5 U.S.C. 554(b)),

not what action EDF intends to take. It is also based on

the unlikely assumption that the registrant has the pre-

science required to know what EDF’s position will be after

the cancellation notice is issued, based upon the position it

took during the RPAR review. EDF also argues that the

scope of relief is not limited to what was proposed in the

notice by relying on court decisions arising in the context

of rulemaking proceedings; however, these decisions are

inapposite to license revocation proceedings (cancellation )

conducted in accordance with FIFRA and the Adminis-

trative Procedure Act. These and all other arguments

made by EDF have been considered and rejected as either

being irrelevant or lacking in merit; in any event, they

are not sufficient to overcome the conclusion that EDF is

“ EDF Response at 25.

“ See EDF Response at 22 and Appendix C at 8.

* EDF Response, Appendix C at 11.

26b

not “adversely affected” by the conditional cancellation

notice within the meaning of §6(b).

Florida Citrus Mutual’s Appeal

The issue in this appeal is whether Florida Citrus

Mutual filed a timely request for a hearing in connection

with the chlorobenzilate notice.” The chlorobenzilate no-

tice, issued on February 5, 1979, was published in the

Federal Register on February 138, 1979, and specified the

time for requesting a hearing as follows:

“Registrants affected by the actions ini-

tiating cancellation of the registered uses of

chlorobenzilate may request a hearing on specific

registered uses within 30 days of receipt of this

notice, or on or before March 15, 1979, whichever

occurs later. Any person adversely affected by

the cancellation actions initiated by this notice

may request a hearing on specific registered uses

affected by this notice on or before March 15,

1979.” 44 F.R. at 9551.

Florida Citrus Mutual’s request was not filed with the

Hearing Clerk until March 20, 1979, five (5) days after the

deadline set forth in the notice. Accordingly, the Chief

Administrative Law Judge issued a notice to show cause

why the request for a hearing should not be dismissed as

untimely. Rather than respond directly to the notice to

show cause, and in apparent recognition of the untimeli-

ness of its request, Florida Citrus Mutual filed a motion

pursuant to 40 CFR 164.6(b) to enlarge the time within

which to file its objections. As grounds for granting the

extension, Florida Citrus Mutual stated that it did not

receive the Federal Register notice until March 2, 1979,

“ Florida Citrus Mutual is not a registrant, but its status as

“a person adversely affected” by the notice is not contested by

any party.

27b

and it “understood” that it had 30 days from that date to

file its request for a hearing.

In denying the motion and dismissing the request for

a hearing, the Chief Administrative Law Judge did not

comment on the organization’s obvious misreading of the

notice, but instead held that the Agency’s rules of practice

did not allow him to enlarge the 30-day statutory dead-

line. On appeal, Florida Citrus Mutual does not contest

the Chief Administrative Law Judge’s conclusion that the

Agency’s rules of practice do not allow for the enlarge-

ment of a statutory deadline; instead, it asserts that

Respondent’s notice of intent to cancel misinterprets the

statutory requirements and thus had the unlawful effect

of shortening the 30 day deadline. In other words, Florida

Citrus Mutual argues that the March 15 deadline specified

in the notice conflicts with §6(b), which, in pertinent part,

is restated here as follows:

“The proposed action shall become final and

effective at the end of 30 days from receipt by

the registrant, or publication, of a notice issued

under paragraph (1), whichever occurs later,

unless within that time either (i) the registrant

makes the necessary corrections, if possible, or

(ii) a request for a hearing is made by a person

adversely affected by the notice.”

The thrust of Florida Citrus Mutual’s argument is

that this language should be interpreted to allow the

timeliness of a non-registrant’s request for a hearing to

be measured from either (i) 30 days following the date of

publication of the notice in the Federal Register or (ii) 30

days following any registrant’s receipt of the notice,

whichever occurs later. It argues that the interpretation

contained in Respondent’s notice favors registrants and

unfairly penalizes non-registrants: non-registrants must

always measure the timeliness of their requests by refer-

ence to the publication date, whereas registrants have the

28b

option of measuring it from either the date of receipt or

the date of publication, whichever occurs later. However,

Florida Citrus Mutual fails to note that its interpretation

has the opposite effect: if just one registrant receives his

notice after it was published in the Federal Register, the

30-day period following the publication date may be

ignored by all non-registrants, notwithstanding the fact

that other registrants who received their notices on or

before the publication date must abide by that date or

suffer the consequences of having their registrations can-

celled by operation of law. Consequently, neither inter-

pretation offers complete parity under all circumstances.

The only instance where both achieve it is when all

registrants receive their copies of the notice on the same

day that the notice is published. The likelihood of this

occurring, even under the best of circumstances, is of

course extremely remote. Thus, in the absence of any

indication to the contrary in the legislative history, it is

reasonable to assume that Congress did not expect this

provision of FIFRA to operate in a way that would require

registrants and non-registrants to be treated equally.

Some inequality was bound to occur."

As noted in connection with EDF’s appeal, the 1947

FIFRA did not authorize non-registrants to request a

hearing. In addition, there was no provision for publica-

tion of the notice; it was simply sent to the registrant, who

then had 30 days after service thereof to file a request for

“ Actually there is a third interpretation which does

achieve parity between the two categories. It is based on the

assumption that the notice provisions of §6(b) permit a regis-

trant who allowed both periods to lapse before requesting a

hearing (i.e., 30 days from actual receipt, and 30 days from

publication) to later come in and have his untimely request

ruled “timely” by virtue of the fact that it was nevertheless

filed before the expiration of some other registrant's deadline

(regardless of whether or not the latter actually filed a request).

However, this interpretation is so obviously at odds with com-

mon sense that it must be dismissed as being totally implausible.

29b

a hearing.’ However, with the 1972 amendments to

FIFRA which expanded the right to request a hearing to

include non-registrants who are adversely affected by the

notice, an obvious need arose to provide some means of

notifying them that the proposed action would become

final and effective unless they made a timely request for a

heari*«z. Since the number of individuals who fall in that

class is not known and their identities are not readily

ascertainable, publication in the Federal Register was

clearly the only feasible way of putting them on notice

that their interests might be adversely affected by the

Agency’s proposed action. Therefore, it is reasonable to

infer that the publication provision in §6(b) was primarily

intended to prescribe a deadline for non-registrants. The

fact that it might also benefit registrants must be viewed

as incidental. Constructive notice through publication in

the Federal Register is not normally regarded as a satis-

factory substitute for actual notice when the identity and

location of the affected person is known or readily

ascertainable, as is the case with registrants. Construc-

tive notice by publication in the Federal Register is,

however, normally regarded as adequate when the identi-

ty and location of the affected person is not known or

readily ascertainable, as is the case with non-registrants

who are adversely affected by the notice. Therefore, it is

unlikely that Congress intended to put non-registrants,

such as Florida Citrus Mutual, on the same footing as

registrants in terms of defining when their rights to

request a hearing would be cut-off by the passage of time.

Non-registrants were given the right to request a hear-

ing as a matter of legislative grace in order to ensure that

the interests of farmers and other consumers would be

considered before a pesticide’s availability was restricted

or terminated, not because they were entitled to a hearing

as a matter of law. Cf. McGill v. Environmental Defense

Fund, supra at 637.

*' See note 1€ supra.

30b

It is unreasonable to assume that Congress intended

to grant a grace period to non-registrants (in order to

cure a lack of due diligence in responding to the published

notice) which has the cloudy contours envisaged in the

interpretation advanced by Florida Citrus Mutual. In

order for Florida Citrus Mutual to establish that its

request was timely under its interpretation, Florida

Citrus Mutual was forced into the position of attempting

to locate a registrant who had not received a copy of the

notice until after the publication date. Based on that

search, it uncovered a registrant, Tower Chemical Com-

pany of Clermont, Florida, which did not receive a copy of

the notice until March 1, 1979. Therefore, according to

Florida Citrus Mutual, it had 30 days from the receipt of

Tower Chemical Company’s notice, or until March 31, 1979,

to file *ts request for a hearing. Notwithstanding Florida

Citrus Mutual’s ingenuity and success in locating Tower

Chemical Company, it is unlikely that Congress intended

§6(b) to operate in this way. It seems more likely that it

intended a more objective and easily ascertainable method

of judging the timeliness of non-registrants’ hearing

request. By referencing the timeliness of such requests to

the date of publication in the Federal Register, Respond-

ent established such a method.

Conclusion

The Accelerated Decision of the Chief Administrative

Law Judge is affirmed in its entirety.

DOUGLAS M. COSTLE

Douglas M. Costle

Administrator

Dated: August 20, 1979

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.