AMERICAN VANGUARD CORP. v. JACKSON
803 F.Supp.2d 8 (2011)
AMERICAN VANGUARD CORPORATION, Plaintiff,
Lisa JACKSON, Administrator, United States Environmental Protection Agency, et al., Defendants.
No. 10-cv-1459 (RCL).
United States District Court, District of Columbia.
August 17, 2011.
ROYCE C. LAMBERTH, Chief Judge.
Last Autumn, the U.S. Environmental Protection Agency ("EPA" or the "Agency") issued a Stop Sale, Use or Removal Order ("SSURO") to plaintiff American Vanguard Corporation ("AMVAC"). The SSURO instructed AMVAC to cease the manufacture and distribution of a pesticide marketed by the company to golf courses throughout the United States, and mandated that the company destroy all remaining stockpiles of the product. EPA insists that AMVAC was selling a pesticide that deviated from the formula registered with, and approved by, the Agency. AMVAC, however, protests that EPA has known about the full chemical composition of the pesticide since 1993, and has repeatedly approved the distribution of the product in its current state. Wherever the truth lies, one fact is beyond dispute: the SSURO was signed by Rosemarie A. Kelley, the Director of the Agency's Waste and Chemical Enforcement Division ("W & C Division"). AMVAC argues that Director Kelley lacks legal authority to issue the SSURO, rendering the Agency's action legally infirm. The Court agrees, and will therefore vacate the SSURO and remand this matter to EPA for additional proceedings.
The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA" or the "Act"), 7 U.S.C. §§ 136 et seq., governs the manufacture and sale of various potentially toxic agricultural products by mandating that "no person . . . may distribute or sell to any person any pesticide that is not registered." Id. § 136a(a). Under the FIFRA, EPA is charged with maintaining and enforcing a licensing scheme for all products that meet the statutory definition of "pesticide" found in § 136(u) of the Act. Id. As part of this process, EPA regulations instruct that any entity wishing to register a pesticide must furnish the Agency with certain information, including the identification of any "[i]mpurities of toxicological significance associated with the active ingredient." 40 C.F.R. § 158.320(c).
AMVAC, a manufacturer and distributor of various agricultural products, markets a pesticide product whose active ingredient is Technical Grade PCNB.1 The product-which has been a registered pesticide under the FIFRA since October 9, 1985, P's App. 108, Ex. 3 to Motion for Summary Judgment, Oct. 15, 2010 [17-3]2—prevents the accumulation of "snow mold," and is sold primarily to golf courses for use on fairways and greens during the winter months. Id. at 332. In 1993, AMVAC discovered that an impurity—referred to as Impurity X3—is created during the
manufacturing process for Technical Grade PCNB, and remains part of the product sold by the company. Id. at 83. Both sides agree that AMVAC immediately reported the presence of Impurity X to EPA, Answer ¶ 16, Oct. 26, 2010; at this point, however, their stories diverge. According to AMVAC, EPA designated the information for a "routine non-expedited review," P's App. 112, and—over the next fifteen years—repeatedly approved updates and amendments to the Technical Grade PCNB formula registered with the Agency without ever questioning the omission of Impurity X from AMVAC's submissions. Id. at 113-19. According to EPA, however, it was never aware that Impurity X was present in manufactured Technical Grade PCNB in all instances, and only became aware of potential problems with the composition of the product as marketed after the results of studies in both Australia and Canada were made public in late 2009. But in whatever manner the parties arrived at this point, the following is clear: On August 12, 2010, the Director of EPA's W & C Division sent an SSURO concerning Technical Grade PCNB to AMVAC. Id. at 68-74. The SSURO instructs AMVAC to "cease the distribution, sale, or use of Technical Grade PCNB" and all related products, and demands that the company "submit a written proposal for proper disposition of all violative pesticide products." Id. at 73. According to the SSURO, the presence of Impurity X in tested samples of AMVAC's Technical Grade PCNB products alerted EPA to the possibility that the version of the pesticide sold publicly by AMVAC differs chemically from the formula registered with the Agency, in violation of the FIFRA. Id. at 72.