AMVAC Chemical Corporation (Board decision, August 22, 2023)

Plain-English summary

The case concerns a notice of intent to suspend the registration of Technical Chlorthal Dimethyl, a pesticide, under section 3(c)(2)(B)(iv) of FIFRA. After a prior remand for a hearing, the Administrative Law Judge dismissed the petitioners' objections, approved the notice, and ordered the registration suspended when the Initial Decision and Order became final. The parties told the Environmental Appeals Board that they would not file exceptions and that AMVAC and EPA's Office of Pesticide Programs had reached a settlement. The Board declined to review the case on its own initiative, so the Initial Decision and Order became a final order on August 22, 2023. No civil penalty is imposed in this order.

Decision snapshot

• Cited authorities: 7 U.S.C. § 136a(c)(2)(B)(iv); 40 C.F.R. §§ 164.90, 164.101, and 164.103
• Outcome: The EAB declined sua sponte review, and the ALJ's Initial Decision and Order approving the notice of intent to suspend became final.
• Key point: When no party files exceptions and the EAB declines its own-initiative review, the underlying initial decision becomes a final order under the applicable FIFRA regulations.

Full text (EPA EAB public release)

                                                                       F I L E D
                                                                           Aug 22, 2023
                                                                      Clerk, Environmental Appeals Board
                                                                      INITIALS ________________________
                 ENVIRONMENTAL APPEALS BOARD
        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C.


                                            )
                                            )

In re AMVAC Chemical Corporation; )
Grower-Shipper Association of Central )
California; J&D Produce; Ratto Bros., Inc.; FIFRA Appeal No. 23-(01) and Huntington Farms )
)
Docket No. FIFRA-HQ-2022-0002
)
)

          ORDER DECLINING TO EXERCISE SUA SPONTE REVIEW

   This case arises from a notice of intent to suspend (“NOITS”) the registration of the

pesticide Technical Chlorthal Dimethyl pursuant to section 3(c)(2)(B)(iv) of the Federal

Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). 7 U.S.C. § 136a(c)(2)(B)(iv). This is

the second time the Environmental Appeals Board (“Board”) has considered the NOITS. In the

first case, Petitioners sought review of an accelerated decision by the Administrative Law Judge

(“ALJ”). In re AMVAC Chemical Corp., 18 E.A.D. 769, 771 (EAB 2022). The Board remanded

the case to the ALJ to conduct a hearing. Id. at 796. After conducting a hearing, on May 16,

2023, the Administrative Law Judge (“ALJ”) issued an Initial Decision and Order dismissing

Petitioners’ objections to the NOITS, approving the NOITS, and suspending the registration

effective upon the Initial Decision and Order becoming final. In re FIFRA Section 3(c)(2)(B)

Notice of Intent to Suspend Dimethyl Tetrachloroterephthalate (DCPA) Technical Registration,

Docket No. FIFRA-HQ-2022-0002 at 64 (ALJ May 16, 2023) (Initial Decision and Order).

   Following the ALJ’s Initial Decision and Order, the parties filed a motion with the Board

seeking an extension of time to file exceptions while they pursued settlement discussions, which

the Board granted. Order Granting Joint Motion to Extend Deadline to File Exceptions and

Appeal Brief (May 31, 2023). AMVAC and the Office of Pesticide Programs (“OPP”) entered

into a Settlement Agreement and the parties filed joint motions requesting that the Board enter a

final decision incorporating the terms of the Settlement Agreement and retaining jurisdiction to

adjudicate disputes arising under the Settlement Agreement. Joint Motion for Entry of Final

Decision (June 16, 2023); Renewed Joint Motion for Entry of Final Decision (June 27, 2023).

The Board ultimately denied the motions because, among other things, the relief requested was

“broader than the scope of the issues adjudicated by the [ALJ]” and would have required the

Board to “undertake resolution of new disputes that have not yet arisen.” Order Denying

Renewed Joint Motion for Entry of Final Decision 2 (July 7, 2023). The Board further extended

the deadline for filing exceptions to August 18, 2023, to allow the parties to pursue settlement

under an alternate framework. Order Granting Joint Motion to Extend Time for Filing Notice of

Exceptions and Appeal Briefs (July 25, 2023).

   On August 18, 2023, the parties notified the Board that none of the parties intended to file

exceptions to the ALJ’s Initial Decision and Order. Joint Notice that No Appeals Will Be Filed 1

(Aug. 18, 2023). The parties further stated that AMVAC and OPP have reached a settlement

agreement that does not require the Board or ALJ to retain jurisdiction and requested that the

Board decline review of the Initial Decision and Order as soon as practicable. Id. at 1-2. No

party has filed exceptions, the Board has reviewed the record and ruled on motions as reflected

above, and the Board is declining to review the case on its own initiative. See 40 C.F.R.

                                            -2-

§ 164.101(b).1 Accordingly, the Initial Decision and Order becomes a final order on this date,

August 22, 2023, pursuant to 40 C.F.R. §§ 164.90(b), .101(b), .103.

   So ordered.2


                                                 ENVIRONMENTAL APPEALS BOARD

Dated: ____
Aug 22, 2023 By: ______
Kathie A. Stein
Environmental Appeals Judge

1
In the Board’s Orders extending the deadline for filing extensions, the Board also extended the deadline for sua sponte review in order to preserve the normal interval between the deadline for exceptions and the Board’s deadline to accept or decline sua sponte review. See, e.g., Order Granting Joint Motion to Extend Deadline to File Exceptions and Appeal Briefs 3 n.1 (July 25, 2023). The Board’s last Order extended the sua sponte review deadline to September 7, 2023. Id. 2 The three-member panel deciding this matter consists of Environmental Appeals Judges Aaron P. Avila, Mary Kay Lynch, and Kathie A. Stein.
-3-

                           CERTIFICATE OF SERVICE

   I certify that copies of the foregoing Order Declining to Exercise Sua Sponte Review in

the matter of AMVAC Chemical Corporation; Grower-Shipper Association of Central California; J&D Produce; Ratto Bros., Inc.; and Huntington Farms, FIFRA Appeal No. 23-(01) were sent to the following persons in the manner indicated:

By Email:

Hume M. Ross Erin S. Koch Tracy A. Heinzman Forrest Pittman Keith A. Matthews Pesticides and Toxic Substances Law Office WILEY REIN LLP Office of General Counsel 2050 M Street NW U.S. Environmental Protection Agency Mail Washington, DC 20036 Code 2310A Email: [email protected] 1200 Pennsylvania Avenue NW Email: [email protected] Washington, DC 20460 Email: [email protected] Email: [email protected]
Email: [email protected]

Cristen S. Rose
HAYNES BOONE Susan L. Biro, Chief Administrative Law 800 17th Street NW Judge Washington, DC 20006 Attn: Mary Angeles, Headquarters Hearing
Clerk
U.S. Environmental Protection Agency
Office of Administrative Law Judges
Email: [email protected]

        Aug 22, 2023

Dated: ____ ______
Emilio Cortes
Clerk of the Board