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13 Nat. Resources L. Newsl. 1 (1981)

handle is hein.journals/trends13 and id is 1 raw text is: RECENT DEVELOPMENTS UNDER THE THREE SUPREME COURT FEDERAL INSECTICIDE, FUNGICIDE CLEAN WATER ACT AND RODENTICIDE ACT CASES THIS TERM Legislative Developments On December 17, 1980, President Carter signed Public Law No. 96-539 (H.R. 7018) extending the Federal In- secticide, Fungicide and Rodenticide Act (FIFRA) un- til September 30, 1981. It authorizes $77,500,000 for FIFRA programs in FY 1981, and includes several amendments to FIFRA. First, the bill contains a two-house veto provision. It amends section 25(a) of FIFRA to require the Adminis- trator to submit proposed rules and regulations under FIFRA for review by Congress at the time that they are promulgated. If Congress adopts a concurrent resolu- tion disapproving a proposed rule or regulation under FIFRA within 90 days of continuous session of Con- gress after its promulgation, the rule or regulation will not become effective. FIFRA rules and regulations will become effective at the end of 60 days of continuous ses- sion of Congress after promulgation if neither House has adopted, and no committee has reported, a resolu- tion of disapproval. The law provides for expedited judicial review of the constitutionality of the Congres- sional veto provision. The other amendments are an outgrowth of a study conducted by the General Accounting Office (GAO) of the procedures employed by the EPA in issuing the 1979 emergency suspension order for the herbicide 2,4,5-T. Section 25(d) of FIFRA, 17 U.S.C. § 136w(d), has been amended to authorize the chairman of the FIFRA Scientific Advisory Panel (SAP) to create temporary subpanels on specific projects. The subpanels may in- clude scientists who are not regular members of the SAP. In addition, amended section 25(d) now provides that, whenever the EPA Administrator exercises his authority immediately to suspend the registration of a pesticide to prevent an imminent hazard, he shall promptly submit such decision to the SAP for comment as to the impact of the suspension decision on health and the environment. Section 25(d) of FIFRA requires the EPA Administrator to submit proposed cancella- tion and suspension actions to the SAP for comment. Section 6(b) of FIFRA provides, however, that if the Administrator determines that suspension of a (continued on page 4) The United States Supreme Court is deciding Clean Water Act (CWA) cases with increasing frequency. This term (1980-81) the Court will decide three CWA cases. The Court has already issued its opinion in one, EPA v. National Crushed Stone Ass ni, 101 S. Ct. 295 (1980), see Natural Resources Law Newsletter, January 1981, and has heard oral argument in the other two. A. EPA v. National Crushed Stone Assn, 101 S. Ct. 295 (1980) EPA generally bases its national best practicable tech- nology (BPT) limits for an industrial category on data from plants which EPA has judged to be representative in terms of the relevant technical, engineering, and cost characteristics. EPA includes a variance clause in each BPT regulation so that an individual plant may show it is fundamentally different from the plants EPA examined in setting the national limits. In such a case, a new BPT limit may be set for that plant. In 1974, EPA published national BPT limits and a variance clause for the steam electric power industry. The variance clause did not permit consideration of two basic types of economic factors: (1) cost differentials and (2) affordability. In its 1976 decision in Ap- palachian Power Co. v. Train, 545 F.2d 1351, the Fourth Circuit rejected the steam electric variance clause because EPA excluded both cost and afford- ability. With respect to affordability, the Fourth Circuit ordered EPA to include in the BPT variance clause allowance for the factors listed in section 301(c) of the CWA. This section authorizes variances from more stringent best available technology (BAT) limitations where a discharger cannot afford the BAT limit and is making reasonable further progress toward the Act's no discharge goal. With respect to costs, the court ordered EPA to include in the variance clause allow- ance for the general BPT factors listed in section 304(b)(1)(B) of the Act, which include total cost. EPA added both affordability and cost factors to the steam electric BPT variance clause to comply with the Appalachian decision. With respect to all other indus- (continued on page 6) Copyright © 1981 American Bar Association Produced by the ABA Press

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