ELR Citation: ELR 20778
No(s). 535-88 L (Cl. Ct. Aug 18, 1989)

The court holds that an agreement requiring the Environmental Protection Agency (EPA) to process expeditiously a claim under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for indemnification of losses on stocks of the pesticide, Dinoseb, existing at the time the Dinoseb registration was cancelled, does not entitle the manufacturer to payment until the Attorney General certifies the payment. The court also holds that the Contract Disputes Act (CDA) interest provision does not apply to this contract. EPA cancelled the Dinoseb registration and negotiated an agreement under which the manufacturer consented to the cancellation in return for EPA's expeditious processing of the indemnification claim. EPA acted expeditiously and certified to the Attorney General that the manufacturer was entitled to indemnification, but an association of growers and food processors filed suit in district court challenging the cancellation. The association claimed Dinoseb was essential to certain crops grown in the Pacific Northwest. The Attorney General, contending that the litigation barred finality of the cancellation order, refused to certify payment to the manufacturer. The manufacturer brought this suit for immediate payment and interest. The court holds that EPA fulilled its obligations by acting expeditiously to determine that the manufacturer qualifies under FIFRA for indemnification. The agreement expressly accounted for the type of delay that prevented immediate payment. The court holds that only the Attorney General can certify the third-party litigation as final. The court also holds that the agreement is not a contract for the disposal of property as defined by the CDA and, therefore, the manufacturer is not entitled to interest.

Counsel for Plaintiff
Allen T. Malone
Apperson, Crump, Duzane & Maxwell
One Commerce Sq., Ste. 2110, Memphis TN 38103
(901) 525-1711

Counsel for Defendant
Donald A. Carr, Acting Ass't Attorney General
Susan Smith, Eileen T. McDonough
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-3763