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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