E.I. du Pont de Nemours and Company

Plain-English summary

E.I. du Pont de Nemours and Company asked the Environmental Appeals Board to reconsider a remand concerning alleged inconsistencies between pesticide label sections and Worker Protection Standard labeling requirements. DuPont argued that the Board lacked authority to remand an issue it viewed as new and that the label inconsistency could not support a misbranding claim. The Board denied reconsideration. It explained that the remand did not dictate the result, preserved the Presiding Officer's ability to consider motions about the issue, and allowed the parties to present their views and appeal an adverse ruling. The Board also held that 40 C.F.R. § 22.30 did not bar the remand.

Decision snapshot

• Cited authorities: 40 C.F.R. § 22.30 and § 22.30(c)
• Outcome: DuPont's motion for reconsideration was denied, and the remand remained available for appropriate consideration.
• Key point: The EAB's remand authority can include receiving evidence on issues that become relevant after an appeal, while preserving a full and fair opportunity to be heard.

Full text (EPA EAB public release)

              BEFORE THE ENVIRONMENTAL APPEALS BOARD
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C.



                              )

In re: )
)
E.I. du Pont de Nemours and )
Company ) FIFRA Appeal No. 98-2
)
Docket No. FIFRA-95-H-02. )
)

             ORDER DENYING MOTION FOR RECONSIDERATION
                   OF DECISION AND REMAND ORDER



 Appellant E.I. Du Pont De Nemours and Company (“DuPont”) has

moved for reconsideration of the Board’s Decision and Remand Order,

dated April 3, 2000 (the “Order”). See Motion for Reconsideration of

Decision and Remand Order (“Motion”). DuPont requests that “the

Board revise its Order by rescinding the remand of the %label

inconsistency& issue to the Presiding Officer.” Motion at 1. By

referring to the remand of the “label inconsistency” issue, DuPont

refers to our statement that:

 In addition, on remand, the Presiding Officer may
 consider, as part of the question of the evidence bearing
 upon the labels’ alleged compliance with the WPS-labeling
 standards, whether the labels at issue in this case show a
 facial non-compliance with the language requirements of
 the WPS regulations in that the labels contain an internal
 inconsistency.

Order at 41. DuPont argues that reconsideration is appropriate on

the grounds, first, that the Board allegedly “does not have
the authority to remand issues that were never raised in the

underlying proceedings,” and second, that the label inconsistency

issue allegedly cannot state an actionable claim for misbranding.

Motion at 1. DuPont cites 40 C.F.R. § 22.30 in support of its

contention that the Board does not have authority to remand issues

that allegedly were not raised by the parties or the Presiding

Officer in the underlying proceeding.1

 The Toxics and Pesticide Enforcement Division, Office of

Regulatory Enforcement, Office of Enforcement and Compliance

Assurance, U.S. Environmental Protection Agency (“Pesticide

Enforcement”) has filed a response to DuPont’s Motion. See

Complainant’s Response to Respondent’s Motion for Reconsideration of

Decision and Order (“Response”). Pesticide Enforcement opposes

DuPont’s request for reconsideration on three grounds. First,

Pesticide Enforcement argues that the factual question of label

consistency is not a separate and new issue from the misbranding

violation that was alleged in the complaint. Response at 1. Second,

Pesticide Enforcement disputes DuPont’s statement that the Board has

raised an issue that was never the subject of this enforcement

action. Id. at 1-2. Instead, Pesticide Enforcement contends (a)

that label inconsistency is part of the evidence of misbranding and

 1
 DuPont restates these same arguments in a reply brief that it

filed on May 11, 2000, see Reply in Support of Motion for
Reconsideration of Decision and Remand Order (May 11, 2000), which we
have considered in rendering our decision today.

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(b) testimony was adduced at the evidentiary hearing regarding the

language that was to appear in both parts of the label and the

relationship between them and Pesticide Enforcement discussed the

issue of inconsistency in its oral argument. Id. Third, Pesticide

Enforcement argues that, by highlighting the fact of inconsistency,

“the Board did not open the door for DuPont to reargue its case

before the Board at this time,” but that the parties should have the

opportunity to address this issue before the Presiding Officer. Id.

at 2-3.

 Upon consideration, DuPont’s Motion is denied.     In the case of

In re Hardin County, RCRA (3008) Appeal No. 92-1, slip op. (Feb. 4,

1993), this Board considered the question of what matters are

properly included in a remand. In that case, the movant had argued

that the Board’s remand order effected an amendment of the Agency’s

complaint and that the Board did not have such authority under 40

C.F.R. § 22.30. In denying reconsideration, the Board held that the

remand order had not amended the complaint, but instead merely

directed that factual findings be made on an issue that the Board

determined was an unsupported assumption of the presiding officer’s

ruling (those same factual issues may also have supported a finding

of an alternative violation). The Board’s remand order had directed

that if the facts proved contrary to the presiding officer’s

assumption, the case “may proceed” as if the presiding officer had

not entered the dismissal order that was the subject of the appeal.

                                3

In rejecting the motion for reconsideration, the Board held that in

allowing the case to proceed in those circumstances, the Board only

intended “that the proceedings should pick up where they left off

• • • with either party free to pursue whatever legal strategies it

deems best.” Hardin County, slip op. at 6. The Board, in other

words, did not dictate any particular outcome on the strategies that

the parties might pursue. On the issue of whether the Board’s remand

authority is limited by 40 C.F.R. § 22.30(c), the Board stated that

“[t]his particular procedural rule is but one subsection of a broader

set of rules governing Appeals from initial decisions, and its

purposes are largely self-evident and straightforward – namely,

affording parties a full and fair opportunity to present their views,

whether orally or in writing, before any final decision is reached by

the Board.” Id. at 8-9.

 In the present case, our conclusions on the merits of DuPont’s

reconsideration motion are largely the same as our observations in

Hardin County. In particular, it was not our intention, when we

stated that the Presiding Officer “may consider” the inconsistency in

the labeling on remand, to foreclose the Presiding Officer from

entertaining and ruling upon any motions filed by the parties that

might seek to limit the scope of the Presiding Officer’s

consideration of the inconsistency, or even whether it might or might

not be appropriate for the Presiding Officer to consider the

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inconsistency. In other words, we intended to state that the

Presiding Officer may consider the inconsistency on remand if

otherwise appropriate. If the Presiding Officer determines that

consideration should not be given to the inconsistency, or determines

that consideration should only be given under narrowly defined

circumstances, the Presiding Officer will have complied with the

terms of the remand, “and whichever party is aggrieved by the ruling

will presumably appeal it to the Board, which will rule upon the

propriety of the matter at that time.” Hardin County, slip op. at 7-

8. To us, the inconsistency became apparent as a result of the

toxicity considerations that underlie each of the two protective

labeling requirements, since the regulations require each of the

labeling requirements to be based on the pesticide’s toxicity.

However, we are not seeking to determine in advance how the

inconsistency should be considered, if at all.2

  We do, however, conclude that there is no merit to DuPont’s

argument that 40 C.F.R. § 22.30 somehow limits this Board’s authority

to reference in its remand order the issue concerning the language

appearing in the two parts of the products’ label.

  2
 As further clarification in this regard, we do not intend to

preclude the Presiding Officer from determining, in the first
instance, (i) whether the labels contain an internal inconsistency,
facial or otherwise, in that a protective eyewear warning is used in
one part of the label and omitted in another, or (ii) whether the WPS
regulations require the same level of eye protection warning in both
parts of the label. It suffices for purposes of a remand that we
have noted an apparent inconsistency in the labeling and an apparent
conflict with the WPS regulations.

                               5

Our observation, which DuPont requests be stricken from the Order,

was made based upon facts in the administrative record – including

the labeling submitted with DuPont’s applications for amended

registration, CX 6, CX 7, CX 8, CX 9, which DuPont has admitted

contain the same WPS language as appeared on the products that were

shipped in April 1994. Further, as noted by Pesticide Enforcement,

testimony was adduced at the evidentiary hearing regarding the

language that was to appear in both parts of the label and the

relationship between them, Response at 2-3, and Pesticide Enforcement

noted at oral argument before this Board that the labels contained an

inconsistency in the language of the two parts of the label.

Transcript of Oral Argument (Sept. 29, 1999) at 36. Thus, DuPont’s

assertion that issues regarding the different language in the two

parts of the label were not raised prior to this Board’s Order is

incorrect.

 Moreover, until this Board ordered that DuPont’s proffered

evidence (which allegedly shows that its products are toxicity

category III) should be admitted into the record of this proceeding,

the evidence in the record showed that the products are toxicity

category II, which is fully consistent with the protective eyewear

warning that appears in the Hazards to Humans section of the

labeling. Thus, any argument that the labeling is misbranded as a

result of the language in the Hazards to Humans section was not

available prior to the entry of the Remand Order. DuPont’s

                                6

contention that such issues may not be considered on remand, in

effect, would allow it to both submit evidence into the record for

the first time on remand in an effort to demonstrate that one part of

the label (the Agricultural Use Requirements box) complies with the

WPS regulations and simultaneously preclude the Presiding Officer

from considering whether other parts of the label (including the

Hazards to Humans section) are not in compliance with the WPS

regulations in light of the newly admitted evidence. There is no

rule of law or logic that would preclude consideration of such

matters based merely on the procedural context that DuPont obtained

the admission of its evidence by a ruling of this Board after appeal.

Had DuPont successfully obtained the same ruling from the Presiding

Officer during the original evidentiary hearing, there would have

been nothing to prevent the Presiding Officer from considering, as

appropriate, whether the Hazards to Humans section of the labeling

was consistent with the WPS regulations. No different result should

obtain if the ruling is the result of a remand. Certainly, section

22.30 does not dictate such an absurd result. Indeed, the preamble

to the original version of the consolidated rules of practice noted

that the grant of remand authority in 40 C.F.R. § 22.30(c) was

specifically intended to include “the authority to remand the case to

receive evidence relating to issues new to the proceeding.” 45 Fed.

Reg. 24,360, 24,362 (Apr. 9, 1980), quoted in Hardin County, slip op.

at 9 (emphasis added).

                              7

In addition, the objective of section 22.30(c) that, before a

final decision is made, all parties should be afforded a full and

fair opportunity to present their views, Hardin County, slip op. at

8-9, will be satisfied in this case by the opportunity for the

parties to present their views to the Presiding Officer with a right

to appeal any adverse ruling to this Board. Accordingly, we reject

DuPont’s contention that 40 C.F.R. § 22.30 bars us from including in

our remand the “label inconsistency” issue and related matters for

consideration by the Presiding Office if otherwise appropriate.

 So ordered.

                                  ENVIRONMENTAL APPEALS BOARD

Date: 5/17/00 By: /s/
Ronald L. McCallum
Environmental Appeals Judge

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CERTIFICATE OF SERVICE

 I hereby certify that copies of the foregoing Order Denying

Motion for Reconsideration of Decision And Remand Order, in the
matter of E.I. du Pont de Nemours and Company, FIFRA Appeal No. 98-2,
were sent to the following persons in the manner indicated:

Certified Mail Kenneth W. Weinstein
Return Receipt Requested Latham & Watkins
(and copy by facsimile): 1001 Pennsylvania Ave., N.W.
Suite 1300
Washington, D.C. 20004-2505
Telecopier: (202) 637-2201

Pouch Mail (and facsimile): Mark Garvey
U.S. EPA, Office of Regulatory
Enforcement Toxics and
Pesticides Enforcement Div.
Ariel Rios Building
1200 Pennsylvania Ave, N.W.
Washington, D.C. 20044
Telecopier: (202) 564-0035

Dated: 5/17/00 /s/
Annette Duncan
Secretary