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19 Envtl. Admin. Dec.: Dec. U.S. Envtl. 1 (2023)

handle is hein.usfed/eadec0019 and id is 1 raw text is: GHARDA CHEMICALS INTERNATIONAL, INC. IN RE GHARDA CHEMICALS INTERNATIONAL, INC. & RED RIVER VALLEY SUGARBEET GROWERS ASSOCIATION, ET AL. FIFRA Appeal No. 23-02 ORDER DENYING MOTION FOR INTERLOCUTORY REVIEW Decided July 14, 2023 Syllabus Petitioners Gharda International, Inc. (Gharda) and a group of grower organizations filed with the Environmental Appeals Board (Board) a motion for appeal of an interlocutory order issued by an Administrative Law Judge (ALJ). The ALJ's order denied a motion to stay proceedings under section 6 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to cancel the registration of the pesticide chlorpyrifos pending the outcome of litigation in which Petitioners challenge a final rule revoking food tolerances for chlorpyrifos. The ALJ also denied Petitioner's request to certify the denial for interlocutory review. Held: The Board finds that Gharda and the grower organizations' request lacks exceptional circumstances that would warrant Petitioners' request to upend the ordinary course of litigation to review an interlocutory order on appeal. In the absence of a certification, the Board may undertake interlocutory review when the Environmental Appeals Board determines, upon request of a party and in exceptional circumstances, that delaying review would be deleterious to vital public or private interests. 40 C.F.R. § 164.100. The Board has not previously examined review of an interlocutory order under part 164. Because the Board previously has interpreted exceptional circumstances under part 22, (which uses similar language) the Board examines part 22 precedent as guidance. Exceptional circumstances under part 22 have stemmed from fact patterns that the appellate decision-maker finds compelling and essential to address prior to an initial decision. Here, nothing of that magnitude is present. Petitioners speculate that a forthcoming Eighth Circuit Court of Appeals opinion may result in overturning the Agency's final revocation rule underlying the cancellation proceeding. But critically important on these facts is that EPA must comply with the mandate of the Ninth Circuit Court of Appeals to revoke or modify chlorpyrifos food tolerances and thereafter modify or cancel related FIFRA registrations for food use in a timely fashion. VOLUME 19 1

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