ELR Citation: ELR 21311
No(s). 90-2905 (RCL) (D.D.C. Mar 12, 1991)

The court rules that the Environmental Protection Agency (EPA) acted within its discretion under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Organotin Antifouling Paint Control Act (OAPCA) in issuing a data call-in notice to all tributyltin (TBT) manufacturers and antifoulant paint suppliers. Manufacturers of TBT and suppliers of antifouling paint challenged the legality of EPA's data call-in notice requiring compliance with a 10-year TBT monitoring program. The court first holds that the proper standard of judicial review is deference to the agency's reasonable construction of its statutory authority. The court then concludes that since Congress did not consider the precise issue of whether EPA is solely responsible for gathering and monitoring data, EPA reasonably interpreted OAPCA and FIFRA as allowing the task of data collection to be placed on registrants. The court next finds that EPA did not violate the Administrative Procedure Act (APA) notice-and-comment rulemaking requirements. The court observes that the data monitoring requirements might best have been promulgated after notice and comment, but holds that EPA did not abuse its discretion by using the informal adjudicatory rulemaking process. Further, that the data call-in notice resembles a "rule" within the meaning of APA §551(4) does not dispositively establish that the data call-in is a rule. The court next finds that EPA's data call-in notice afforded the manufacturers adequate procedural protections. The court holds that EPA was not required under FIFRA §2(bb) to perform a cost-benefit analysis of the consequences of issuing the data call-in notice, and the agency provided adequate scientific rationales for the principal technical features of the TBT monitoring program.

Counsel for Plaintiffs
Mark E. Newell, Robert M. Sussman
Latham & Watkins
1001 Pennsylvania Ave. NW, Ste. 1300, Washington DC 20005
(202) 637-2200

Counsel for Defendant
Bradley Campbell
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000