Imágenes de páginas
PDF
EPUB

Following that decision, Montrose Chemical Corp. of California, a basic producer of DDT, filed a motion for leave to intervene, which motion was granted. Thereafter, Montrose Chemical Corp. sought to file with the Secretary of Agriculture evidence to be considered by him in making the decision which he had been directed by the court to make. They were advised that there was no proceeding pending before the Secretary and that under these circumstances there was no procedure through which such evidence could be accepted or considered.

The National Agricultural Chemists Association, which I represent, filed a motion for leave to file a brief amicus directed solely to the jurisdiction of the court.

On June 29, 1970, the Secretary of Agriculture, acting through Dr. Bayley, issued a statement concluding that the scientific evidence now available does not establish that the use of DDT constitutes an imminent hazard to human health. The statement discussed in detail the reason for this conclusion and listed the material, consisting of in excess of 200 reports and articles which had been considered by the Secretary in reaching this conclusion.

Following this determination, the court again received briefs. With their brief, petitioners submitted an appendix of 634 pages listing or reproducing the material upon which it relied to support their contention that the order of the Secretary was not supported by evidence. This appendix included both the articles and reports which had been submitted originally to the Secretary plus additional data which they subsequently added to the record. The briefs submitted upon behalf of the Secretary of Agriculture in turn relied upon the articles and reports which had been considered by the Secretary in reaching his decision. The brief of intervenor Montrose was accompanied by an appendix of 113 pages listing various reports and articles upon which it relied.

Thus, the court had before it a mass of articles, reports, affidavits, newspaper clippings, et cetera, which had been submitted ex parte by the petitioners, by the Secretary of Agriculture, and by intervenor Montrose. No other interested parties, including registrants of other pesticides containing DDT, farmers who use pesticides, or other interested groups had had the opportunity to present evidence. No one had had the apportunity to test the validity of any of the material by examining into the credentials of the authors, the manner in which data had been collected, the manner in which conclusions were drawn from the data, the bias of the authors, et cetera.

I ask that the committee particularly bear in mind the type of record upon which the court based its jurisdiction and made its review because this is a pivotal issue.

On January 7, 1971, the panel of the court acting by a 2-to-1 decision entered a second opinion in which it reaffirmed its jurisdiction to review the order of the Secretary, held that the Secretary had not satisfactorily explained the basis for his decision not to suspend all registrations of DDT, and directed the Secretary to cancel the registration of all remaining uses of DDT.

In a dissenting opinion, Judge Robb, the third judge, stated:

In my view the majority opinion substitutes the judgment of this court for the judgment of the Secretary in a matter committed to his discretion by law. This action is taken without the benefit of any administrative hearing in which

the validity of the petitioner's forebodings and the soundness of the Secretary's discretionary action might be tested. In effect, the court is undertaking to manage the Department of Agriculture. Finding nothing in the statutes that gives us such authority, I respectfully dissent.

On January 15, 1971, the Administrator of EPA, to whom FIFRA enforcement had been transferred by Reorganization Plan No. 3, announced that pursuant to direction of the court he was canceling all remaining registrations of pesticides containing DDT and that his Agency would conduct a review to determine whether or not all remaining registrations of DDT would be suspended. In making this announcement he states:

We have decided not to request the Justice Department to challenge the court order. The question is not whether the court's decisions are right as a matter of law but rather the public's right to a full and open hearing of the controversy surrounding the continued use of DDT and 2,4,5-T.

In his statement of March 18, 1971, the Administrator announced that pursuant to the direction of the court he had reviewed the question of whether all remaining uses of DDT should be suspended and that based upon this review he had concluded that no suspension of such products is warranted pending a completion of the administrative review proceedings.

The correctness of this decision is now back before the court of appeals again. Any further review which it conducts most of necessity be based upon the ex parte record before it.

The second proceeding paralleled the one relating to DDT in all respects except for the identify of the petitioning groups and the product involved.

On April 20, 1970, the Secretary of Agriculture announced the immediate suspension of the registration of liquid formulations of the herbicide 2,4,5-T for uses around the home and on lakes, ponds, and ditch banks, and issued a notice of cancellation of certain other formulations of 2,4,5-T for use around the home and on food crops for human consumption.

On April 29, 1970, Mr. Harrison Wellford, director of a task force of the Center for Study of Responsive Law, of which Ralph Nader is the managing trustee, and a group of other petitioners petioned the Secretary of Agriculture to immediately suspend all remaining uses of 2,4,5-T. The petition was accompanied by a number of documents consisting of a number of press releases, a letter to the editor of the New Yorker, two articles from the New Yorker, testimony before congressional committees, an affidavit, and a number of other similar documents.

When the Secretary of Agriculture declined to suspend all remaining uses, the petitioners on July 10, 1970, filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit asking that the court review the decisions of the Secretary. It invoked the jurisdiction of the court on the basis of the decision of the threejudge panel in EDF v. Hardin. Based upon his experience in the EDF case, the Secretary of Agriculture agreed to submit to the court a statement of his reasons for refusing to suspend all remaining registrations of 2,4,5-T. In the statement subsequently reported to the court, the Secretary concluded that there was no justification for suspending any additional registrations of 2,4,5-T products.

59-044-71-28

In a companion opinion to its DDT decision of January 7, 1971, the court held again by a 2-to-1 decision that the Secretary had not satisfactorily explained his decision not to suspend all remaining registrations of products containing 2,4,5-T, directed that he again consider this questionand that he issue cancellation notices for all such remaining registrations-Wellford v. Ruckelshaus, No. 24434. On January 15, 1971, the EPA administrator announced that he was canceling all remaining registrations containing 2,4,5-T pursuant to the order of the court and that EPA would again consider whether or not such registrations should be suspended.

In his March 18, 1971, statement, the administrator concluded: After careful consideration of the petitioners' allegations and of all other relevant factors, the administrator has determined that for the reasons detailed below, the uses of 2,4,5-T which have not been suspended shows no imminent threat to the public and should be permitted to continue during the pendency of the administrative proceedings now in progress.

Again, their decision is back before the court. If the court elects to consider it further, again it will review it on the ex parte records consisting of artiteles from the New Yorker magazine, affidavits, newspaper clippings, et cetera.

Against this background, I ask the committee to consider the statutory basis upon which these two proceedings were conducted because S. 745, unless it is amended, would reenact substantially the same procedure. Section 4(d) of FIFRA, the judicial review section, must be read in conjunction with section 4 (c).

Section 4 (c) of FIFRA specifies review procedures which are available to a person whose application for registration is refused initially, or to a person whose registration is either suspended or canceled. The review procedures of section 4 (c) of FIFRA, in these specific instances, and in these instances only, provides for a right of review by public hearing before the Administrator, either after or without prior reference to an advisory committee.

The public hearing is held before a hearing officer with the right of any interested parties to participate, to present evidence, and to crossexamine witnesses. The statute requires that the Secretary must base his decision on substantial evidence of record made at such hearing and shall set forth detailed findings of fact upon which his order is based. It is upon the basis of this record that the judicial review provisions of section 4(d) accords a right of judicial review. This appears indisputably clear when the first two sentences of section 4(d) of FIFRA-4(g) of S. 745—are read together.

In a case of actual controversy as to the validity of any order under this section, any person who will be adversely affected by such order may obtain judicial review by filing in the U.S. Court of Appeals * * * petition praying that the order be set aside in whole or in part. A copy of the petition shall be forthwith transmitted by the clerk of the court, to the Secretary * * * and thereupon the Secretary shall file in the court the record of the proceedings on which he based his order, as provided in section 2112 of title 28.

The type of order which this section authorizes a court to review is a record of the proceedings on which he based his order as is provided in section 2112 of title 28. Section 2112 of title 28 refers to a record of the type that is made in a hearing as authorized by section 3(c) of FIFRA, namely, one at which interested parties have the right to present evidence, to cross-examine witnesses and upon which the hear

ing officer must make a decision based upon the evidence of record. The existence of such a record to be certified to the court is a jurisdictional prerequisite under section 4(d) of FIFRA.

There was no such record to be reviewed by the Court of Appeals in the two proceedings which I have discussed. There had been no cancellation of suspension orders to trigger administrative proceedings in which such a record could be made. In these two proceedings the court vested itself with jurisdiction by: (1) considering a decision arrived at informally by the Secretary not to suspend or cancel registrations of products containing DDT and 2,4,5-T as an "order" entered under section 4, and (2) directing the Secretary to make a record upon which his decision was based to be certified by the court.

In introducing the discussion of this subect of judicial review, I stated that in my opinion the precedent established by these two proceedings, if allowed to continue, would seriously jeopardize the administration of this act.

Let me conclude this discussion by stating more specifically why I believe this to be the case.

The rationale of these two decisions would permit any person who considers himself to be aggrieved by any action of the Administrator to file a petition requesting that the Administrator take specific action. The two-judge panel of the court here has said in effect that if a petition to suspend or cancel the registration of a product is supported by evidence that raises a substantial doubt, the Secretary must either suspend or cancel or both.

There are many groups such as the petitioners in these two proceedings who publicly and openly take the view that a particular pesticide or group of pesticides should be banned.

It would be no problem for them to support a petition with data which in their opinion raises substantial doubt as to whether the registration should be continued.

If such a petition and supporting data were filed, the Administrator would have two choices: (1) to either suspend or cancel the registrations and thereby institute a formal administrative proceeding regardless of whether he considered such action to be warranted, or (2) defend his position before the court of appeals in a proceeding similar to the two I have reviewed.

Under the rationale of its decisions, the court could decline to take jurisdiction only upon a determination that the evidence relied upon by the petitioners does not raise a substantial doubt.

The court in such an instance could arrive at this conclusion only by reviewing the scientific data furnished ex parte and substituting its own appraisal for the judgment of the Administrator.

A more serious impact, if such review proceedings were to be allowed, would be that the court inevitably would be reviewing a decision based upon a record supplied ex parte by an interested person or group of persons. It would be a record to which other interested parties would not have had an opportunity to contribute.

The amendment which we have proposed to the first sentence of section 4(g) at page 25 would correct this situation merely by specifying that the judicial review authorized by that section is limited to the review of an order which is issued by the Administrator following a public hearing. This would merely affirm what I am confident

is the intent of section 4(d) of FIFRA and the comparable section 4(g) of S. 745.

Thank you, Mr. Chairman, and members of the committee.

Senator ALLEN. Thank you, Mr. Conner.

Senator Curtis?

Senator CURTIS. Mr. Conner, has any court ever defined "imminent hazard"?

Mr. CONNER. Yes, Senator Curtis. The Court of Appeals for the Seventh Circuit in Chicago in the recent case to which I referred, Nor-Am Agricultural Products, Inc., I believe it is, against the Secretary of Agriculture, came as near to defining it as any court did.

I have a copy of that decision here which I will be glad to submit for the record.

I did not review the history of that litigation very thoroughly. There were three decisions that were involved and in between the three decisions they did deal fairly substantially with trying to define the term "imminent hazard."

Senator CURTIS. And how about a "substantial question"?

Mr. CONNER. No, no; I think that that has not been defined.
Senator CURTIS. It would be rather difficult.

Mr. CONNER. Yes; it would be, and I think that that is a case where it would have to be dealt with on a case-to-case basis as Administrator Ruckelshaus indicated in his March 18, 1971, statement.

There are, of course, judicial decision that define the terms "substantial evidence" or "substantial evidence of record," but I think that would not be quite applicable here.

Senator CURTIS. There is quite a difference between "substantial evidence" and "substantial question."

Mr. CONNER. Yes, I think so.

Senator CURTIS. Is part of the thrust of your contention this: that because these decisions involve many people and their rights as well as the health and public welfare of many people, that action should only be taken after full hearing and cross-examining-cross-examination of the parties on both sides?

Mr. CONNER. That is right, Senator Curtis, and I think the best illustration of it was the follow-through on the DDT case in which our court of appeals assumed jurisdiction and when eventually the Administrator, pursuant to direction of the court, announced his intention to consider the cancellation of all DDT registrations, all remaining DDT registrations, and invited public comment, in response to that he received comment from over 500 different groups or individuals as against in the proceeding which I indicated there were only three parties that had an opportunity to present evidence. That is, the Environmental Defense Fund, which initiated the petition, supported by their ex parte evidence, the Secretary of Agriculture submitting the articles that he considered, and Montrose Chemical Co. submitting the evidence that they asked be considered. That was all that was before the court.

Senator CURTIS. Well, the situation could switch around to where the individuals and the general public might be greatly prejudiced by an ex parte record, isn't that true? It is a protection to both sides.

Mr. CONNER. That is right. There is one exception to that, that I think is illustrated by the other proceeding, Nor-Am Chemical pro

« AnteriorContinuar »