ELR Citation: ELR 20935
No(s). 84-20508 (8th Cir. Aug 20, 1985)

The court holds that the Environmental Protection Agency's (EPA's) assessment of a $5,000 penalty for mislabeling of a tank containing Telone II in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) was supported by substantial evidence and that a two-and-one-half-year delay in the processing of an administrative appeal did not violate statutory and regulatory requirements.

The court first holds that the assessment order was supported by substantial evidence. Although the court notes defendant's arguments that the violation was not serious and that proper labels had been given to the purchasers of the chemical, it emphasizes that the scope of its review is very narrow. The administrative law judge had used the proper penalty criteria and had carefully reviewed the stipulated facts in considering the gravity of the violation. The court concludes that it cannot say that the agency abused its discretion in assessing the penalty.

The court also holds that EPA's two-and-one-half-year delay in processing defendant's appeal of the administrative law judge's decision was not unreasonable within the provisions of the Administrative Procedure Act. The court limits its review of the agency's action to evidence of record. Defendant failed to make any record on the issue of delay and did not show that it was prejudiced by the delay, and the court holds it cannot sustain defendant's argument based solely on the allegations contained in its brief.

Counsel for Petitioner
Robert C. Guenzel
Crosby, Guenzel, Davis, Kessner & Kuester
400 Lincoln Benefit Bldg., 134 S. 13th St., Lincoln NE 68508
(402) 475-5131

Counsel for Respondents
Michael W. Steinberg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3144