Love v. Thomas

Farmers and food processors in the Pacific Northwest brought this lawsuit to enjoin the Environmental Protection Agency from suspending registrations of the pesticide dinoseb (2-sec-butyl-4, 6-dinitrophenol). Plaintiffs use products containing dinoseb or its salts in the cultivation of green peas, snap beans, cucurbits and caneberries.1 1] As counsel for the State of Oregon dramatically proclaimed at oral argument, this case "essentially is ... about whether we'll be able to have raspberries next year."

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.A. Secs. 136-136y (1980 & Supp.1987), establishes an elaborate framework for the regulation of pesticide use in the United States. No pesticide may be sold or distributed unless it is registered with the EPA. FIFRA Secs. 3(a), 12(a)(1)(A), 7 U.S.C.A. Secs. 136a(a), 136j(a)(1)(A). In order to register a pesticide, an applicant, who may be a manufacturer or user of the product, must demonstrate with sufficient scientific evidence that, "when used in accordance with widespread and commonly recognized practice[, the pesticide] will not generally cause unreasonable adverse effects on the environment." FIFRA Sec. 3(c)(5)(D), 7 U.S.C.A. Sec. 136a(c)(5)(D). After a pesticide has been registered, the EPA Administrator must issue a notice of his intent to cancel its registration or change its classification " 'whenever there is a substantial question about the safety of a registered pesticide.' " Environmental Defense Fund, Inc. v. EPA, 510 F.2d 1292, 1296 n. 4 (D.C.Cir.1975) (quoting Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 594 (D.C.Cir.1971); see FIFRA Sec. 6(b), 7 U.S.C.A. Sec. 136d(b).

Because cancellation or reclassification proceedings may take one or two years to complete,2 FIFRA authorizes the Administrator to suspend a pesticide's registration pending the outcome of the proceedings if he determines that suspension "is necessary to prevent an imminent hazard." FIFRA Sec. 6(c)(1), 7 U.S.C.A. Sec. 136d(c)(1).3 Absent an emergency, the Administrator may not issue a suspension order until he has done two things: (1) notified registrants of the pesticide that he intends to cancel the registration and that he will issue a suspension order based upon "findings pertaining to the question of 'imminent hazard,' " which he must include in the notice; and (2) given registrants an opportunity for an "expedited hearing" on "whether an imminent hazard exists." FIFRA Sec. 6(c)(1), 7 U.S.C.A. Sec. 136d(c)(1).

Dinoseb is a pesticide registered for use as an herbicide, insecticide, fungicide and desiccant, and has been used in the United States for nearly forty years. It is applied primarily as a contact herbicide to control broadleaf weeds and as a desiccant on caneberries to suppress growth that would obstruct harvesting. Decision and Emergency Order Suspending the Registrations of All Pesticide Products Containing Dinoseb, 51 Fed.Reg. 36634, 36635 (EPA Oct. 14, 1986) [hereinafter Emergency Order]; Intent to Cancel and Deny All Registrations for Pesticide Products Containing Dinoseb, 51 Fed.Reg. 36650, 36657-58 (EPA Oct. 14, 1986) [hereinafter Notice of Intent]. In October 1986 there were nearly three hundred federal registrations for pesticides containing dinoseb or its salts.

In the spring of 1986, the EPA developed doubts about the safety of dinoseb. Preliminary studies showed that dinoseb may cause serious health risks to persons exposed to it, including sterility in men and birth defects in the unborn children of pregnant women. Emergency Order, 51 Fed.Reg. at 36636-38. In October 1986, the EPA began proceedings to cancel all dinoseb registrations. See Notice of Intent, 51 Fed.Reg. at 36650. On October 7, the Administrator issued an emergency suspension order under section 6(c)(3) of FIFRA, 7 U.S.C.A. Sec. 136d(c)(3), prohibiting the sale, distribution and use of dinoseb pending the completion of the cancellation proceedings. Emergency Order, 51 Fed.Reg. at 36634, 36648.4 The order, along with a notice of intent to cancel all registrations, was mailed to the registrants of dinoseb, and was subsequently published in the Federal Register. Id. at 36634. Four registrants requested a hearing on the emergency suspension order.5 The hearing convened on October 20 before an administrative law judge but, for reasons not apparent from the record, the registrants jointly withdrew their requests ten days later.

Plaintiffs, as nonregistrant users of dinoseb, are not permitted by FIFRA to initiate an expedited administrative hearing on the suspension order.6 However, under EPA regulations they were permitted to and did petition on behalf of growers in Washington, Oregon and Idaho for a so-called "subpart D" reconsideration of the suspension. See 40 C.F.R. Secs. 164.130-133 (1986).7 The EPA denied the petitions of plaintiff Northwest Food Processors Association and others, supported by applications from the three states, with respect to green peas, snap beans and lima beans on April 1, 1987. See Denial of Hearing Concerning Application to Modify the Final Suspension Order for Pesticide Products Containing Dinoseb, 52 Fed.Reg. 11119, 11121 (EPA April 7, 1987). The EPA had not acted with regard to caneberries and cucurbits at the time the district court enjoined enforcement of the suspension order. See id. at 11120.

On April 3, 1987, with the growing season upon them, plaintiffs rushed into district court seeking relief from the EPA's suspension order. The growers' argument was quite straightforward: They simply could not grow their crops without dinoseb. Unlike farmers in other parts of the country, farmers in the Northwest have no substitutes for dinoseb. Climatic conditions and the prevalence of certain pests, black nightshade in particular, make dinoseb the only effective pesticide available on the market. For example, the farmers argued, without dinoseb there would be no caneberry crop in the Pacific Northwest, where 95 percent of the nation's commercial caneberry crop is grown. Potential crops losses would amount to $39.2 million this year. See Love v. Thomas, 668 F.Supp. 1443, 1449-50 (D.Or.1987) [hereinafter Dist.Ct. op.]; 2 Reporter's Transcript (RT) at 257.

On April 15, 1987, after a two-day hearing, the district court asserted jurisdiction on the basis of section 6(c)(4) of FIFRA, 7 U.S.C.A. Sec. 136d(c)(4). See Dist.Ct. op. at 1446, 1447. It then preliminarily enjoined enforcement of the suspension order pending completion of the EPA's cancellation proceedings, and allowed use of dinoseb subject to twelve conditions, see pp. 1363-1364 infra, patterning the injunction after the EPA's modification of its suspension order as to certain other crops, see p. 1351 n. 7 supra. The court permitted limited sales of dinoseb to growers of certain crops; prohibited uncertified applicators from using the pesticide; barred "[w]omen of child-bearing age, i.e., under the age of 45," from "any aspect of dinoseb application"; restricted the manner and extent of application of dinoseb to crops; and set standards for applicator clothing and exposure. See Love v. Thomas, No. 87-343-RE, at 2-4 (D.Or. April 15, 1987) [hereinafter Preliminary Injunction], quoted at pp. 1362-1363 infra.8 The court entered final judgment on May 1, 1987, and the EPA timely appealed.

The EPA's appeal is supported by certain intervenors, including various labor unions that represent agricultural workers ("the unions"). Plaintiffs defend the district court's judgment with the support of the State of Oregon, which intervened below.

The EPA argues that the district court lacked jurisdiction to review the suspension order. On the merits, the EPA argues that the court erred in invalidating the suspension order and enjoining enforcement. The unions support the EPA and in addition argue that the district court's order denied farmworkers equal protection because it treated men and women disparately. Plaintiffs and the State of Oregon vigorously assert that the district court had jurisdiction and urge us to uphold its judgment.

The first question we must address is that of jurisdiction.9 That turns out to be a difficult issue, requiring close analysis of a rather convoluted statutory provision. As noted earlier, when the EPA commences proceedings to cancel the registration of a pesticide, it may, at the same time, issue a notice that it intends to suspend the registration pending the outcome of the cancellation proceedings. Such suspension normally does not become effective immediately. Rather, upon receipt of the notice the registrant has five days within which to request an expedited hearing on the issue of imminent hazard. FIFRA Sec. 6(c)(2), 7 U.S.C.A. Sec. 136d(c)(2). If a hearing is requested, the suspension is automatically stayed until the matter has been heard by an administrative law judge and the Administrator, having reviewed his findings, issues a final order. Id. But "[i]f no request for a hearing is submitted to the Agency within five days of the registrant's receipt of the notification ..., the suspension order may be issued and shall take effect and shall not be reviewable by a court." FIFRA Sec. 6(c)(2), 7 U.S.C.A. Sec. 136d(c)(2) (emphasis added).

Because the expedited hearing may take a month or more,10 during which time the pesticide could continue to be used, FIFRA provides an exception to this procedure. Where the Administrator determines that an emergency exists, he may issue the suspension order "in advance of notification to the registrant." FIFRA Sec. 6(c)(3), 7 U.S.C.A. Sec. 136d(c)(3). If the EPA issues such an emergency order, many of the same procedures apply as with ordinary orders,11 but the suspension goes into effect immediately and remains in effect pending the result of the expedited hearing.

The statute provides for review in the court of appeals of a suspension order issued following a hearing, notwithstanding the fact that the cancellation proceedings may be continuing before the agency. FIFRA Sec. 6(c)(4), 7 U.S.C.A. Sec. 136d(c)(4). As to "[a]ny order of suspension entered prior to a hearing," the statute provides for "immediate review in an action by the registrant or other interested person with the concurrence of the registrant in an appropriate district court." Id.12 The scope of district court review is limited, however, to determining whether the order was "arbitrary, capricious or an abuse of discretion, or whether the order was issued in accordance with the procedures established by law." FIFRA Sec. 6(c)(4), 7 U.S.C.A. Sec. 136d(c)(4). The district court action, moreover, "may be maintained simultaneously with any administrative review proceeding under [section 6(c) ]." Id.

The EPA argues that judicial review is barred by section 6(c)(2), which provides, in what the EPA contends are the plainest possible terms, that if the registrants do not request a hearing, the suspension order becomes final and "shall not be reviewable by a court." The district court rejected this contention, noting that this is not a case where the registrants failed to request a hearing: Four registrants in fact asked for an expedited hearing but eventually decided not to go forward with the process. Giving the statute a literal reading, the court held that judicial review is not barred. See Dist.Ct. op., 668 F.Supp. 1447.

Plaintiffs do not rely on the district court's rationale. Instead, they point to the language of section 6(c)(4), which deals expressly with judicial review.13 In that section Congress provides for judicial review of two types of suspension orders, those entered after and those entered before a hearing. The latter category, plaintiffs argue, defines emergency suspension orders which, by their terms, are issued and become effective before a hearing can be held. Plaintiffs argue that if subsection (c)(2) bars judicial review, the second sentence of subsection (c)(4) becomes surplusage.

A. We find the district court's asserted ground for jurisdiction unpersuasive. While it is true that some of the registrants sought a hearing, they subsequently withdrew their requests. It is quite obvious that the provision barring judicial review where no hearing is requested applies with equal force where a hearing is first requested and the request is then withdrawn. In either case, the registrants--those persons most directly affected by the suspension order--have waived their right to administrative remedies in the form of review by an administrative law judge. There is no less a waiver when the registrant first asks for a hearing and then changes his mind than when he asks for no hearing in the first place. See Nagel v. Thomas, 666 F.Supp. 1002, 1006-07 (W.D.Mich.1987) (dinoseb registrants' request for hearing and later withdrawal thereof is the functional equivalent of no request).

B. This leaves the question whether judicial review of an emergency suspension is barred when no registrant timely requests a hearing. As is often the case where Congress drafts complex statutes, the various provisions do not fit with surgical precision. While the statute's meaning may be clear as to most of the situations it covers, cases may arise where two provisions in the same statute, or in different statutes, apparently conflict. It is then up to the courts to make sense of these apparent inconsistencies.

This is such a case. On the one hand, Congress provided for immediate judicial review of emergency suspension orders. FIFRA Sec. 6(c)(4), 7 U.S.C.A. Sec. 136d(c)(4). On the other, it provided in the most categorical terms that judicial review of suspension orders is precluded where the registrant waives its rights to an administrative hearing. FIFRA Sec. 6(c)(2), 7 U.S.C.A. Sec. 136d(c)(2). The conflict is exacerbated somewhat by the fact that judicial review of an emergency suspension order may be sought by any "interested person" with the concurrence of a registrant, while administrative review may be requested only by the registrant itself. If possible, we must give these apparently conflicting provisions a sensible reading that avoids redundancy or surplusage.

We find such a construction possible. FIFRA Sec. 6(c)(4) authorizes the district courts to review EPA orders entered "prior to a hearing." This phrase potentially embraces two categories of suspension orders: ordinary orders issued after registrants waive a hearing, and emergency orders issued before an opportunity therefor. Since ordinary orders entered after waiver of a hearing are made unreviewable under subsection (c)(2), subsection (c)(4) must authorize district courts to review emergency suspension orders, if it is to have any meaning at all.

The EPA does not seriously dispute this construction. It argues, however, that the district court may review emergency suspension orders under subsection (c)(4) only so long as they are in fact emergency suspension orders, that is, pending an opportunity for an agency hearing. If a hearing is held, the EPA's argument continues, the final suspension order is reviewable in the courts of appeals.14 If, on the other hand, a hearing is waived (as was the case here), the final suspension order is entered by operation of law and, under subsection (c)(2), is not reviewable.

FIFRA, however, provides for the issuance of a final suspension order only in those cases where there is an administrative hearing. There is no provision for entering a separate final suspension order if no hearing is held after issuance of an emergency order, and none in fact was entered in this case.15 The EPA invites us to create a procedural fiction to the effect that a final suspension order follows an emergency order whenever a hearing is waived. We see no reason for doing so. As we read the statute, when no hearing is held, the emergency suspension order simply stays in effect until the cancellation or classification proceedings are completed, or, as in this case, until stayed by the district court.

The EPA also argues that subsection (c)(3), which provides for the issuance of emergency suspension orders, by its terms incorporates subsection (c)(2), including the provision prohibiting judicial review where no registrant requests a hearing. However, the language of subsection (c)(2) indicates that this prohibition against judicial review applies only to those situations where the agency has given notice of its intent to issue a non-emergency suspension order: "If no request for a hearing is submitted to the Agency within five days of the registrant's receipt of the notification provided for by paragraph (1), the suspension order may be issued and shall take effect and shall not be reviewable by a court." FIFRA Sec. 6(c)(2), 7 U.S.C.A. Sec. 136d(c)(2) (emphasis added). In the emergency case, the suspension order has already issued and taken effect before any notice to the registrants and opportunity for a hearing. This first sentence of subsection (c)(2), unlike the other provisions of that subsection which concern hearing procedures, simply does not make sense in the emergency context and must therefore be limited to ordinary suspension orders issued after notice. Contra Nagel, 666 F.Supp. at 1007-08 (finding no jurisdiction to hear Michigan gladiolus growers' challenge to dinoseb suspension order).

The EPA's argument that the district courts' jurisdiction expires with waiver of a hearing also does not fully comport with the language or drafting history of the provision. Subsection (c)(4) authorizes the district court to enter a stay of the order "pending the Administrator's final decision with respect to cancellation or change in classification." FIFRA Sec. 6(c)(4), 7 U.S.C.A. Sec. 136d(c)(4). Had Congress meant for the district court to act only until administrative review was waived or concluded, the statute would have so provided. In fact, the Senate Agriculture and Forestry Committee reported out a bill providing precisely that: "The effect of any order of the court will be only to stay the effectiveness of the suspension order, pending hearing before the Administrator." S.Rep. No. 838, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News 3993, 4068. That provision was amended to the current form by the conference committee. See Conf.Rep. No. 1540, reprinted in 1972 U.S.Code Cong. & Admin.News 4130, 4132-33. That Congress gave the district court authority to stay suspension orders long after any administrative hearing on suspension, up to the time when the EPA has ruled on the cancellation or reclassification, strongly suggests that the district court's jurisdiction is not limited in the fashion suggested by the EPA.

We see one final anomaly in the EPA's position, albeit a minor one. Subsection (c)(4) provides that the district court action "may be maintained simultaneously with any administrative review proceeding under this section" (emphasis added). As the EPA would have us interpret the statute, judicial review could only be maintained simultaneously with administrative review because if no administrative review is sought, under the EPA's view, the right to judicial review would be cut off. We decline to change the statutory "may" to a "must."

We recognize that this issue is far from clear-cut. The EPA's position is not implausible and, quite frankly, neither side advances an entirely satisfactory construction of a statute that obviously was the product of some controversy and considerable compromise. The courts have long recognized, however, a presumption in favor of judicial review of administrative actions. See Block v. Community Nutrition Inst., 467 U.S. 340, 350-51, 104 S.Ct. 2450, 2456, 81 L.Ed.2d 270 (1984) (presumption only overcome when "the congressional intent to preclude judicial review is 'fairly discernible in the statutory scheme' "); Ruff v. Hodel, 770 F.2d 839, 840 (9th Cir.1985) ("[t]he bar to judicial review ... requires a 'persuasive reason to believe' that Congress intended to preclude judicial review") (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967)); Moapa Band of Paiute Indians v. Department of Interior, 747 F.2d 563, 565 (9th Cir.1984) ("[p]reclusion of judicial review is not lightly inferred, and usually will not be found absent a clear command of the statute"). Moreover, we construe prohibitions against judicial review narrowly. Cf. Wallace v. Christensen, 802 F.2d 1539 (9th Cir.1986) (en banc); Moapa Band, 747 F.2d at 565. In light of these considerations, we find plaintiffs' interpretation the most plausible, and hold that the district court had jurisdiction to review the EPA's suspension order.

Subsection (c)(4) provides that an emergency suspension order shall be reviewable by the district court "solely to determine whether the order of suspension was arbitrary, capricious or an abuse of discretion, or whether the order was issued in accordance with procedures established by law." We review the district court's legal determinations de novo and its factual findings for clear error. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). On the question whether an injunction was properly issued, once the facts and law are established, we review for abuse of discretion. Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 849 (9th Cir.1985).

A. As a preliminary matter, the EPA argues that the district court improperly considered evidence beyond the four corners of the administrative record. Generally, judicial review of agency action is limited to review of the record on which the administrative decision was based. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). "[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973), quoted in Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 1606, 84 L.Ed.2d 643 (1985); Friends of the Earth v. Hintz, 800 F.2d 822, 828-29 (9th Cir.1986).

We have recognized, however, certain exceptions to this general rule. The court may find it necessary to review additional material to explain the basis of the agency's action and the factors the agency considered. Friends of the Earth, 800 F.2d at 829; Asarco, Inc. v. EPA, 616 F.2d 1153, 1159-60 (9th Cir.1980). Moreover, the court may consider, particularly in highly technical areas, substantive evidence going to the merits of the agency's action where such evidence is necessary as background to determine the sufficiency of the agency's consideration. Asarco, 616 F.2d at 1160. Nonetheless, the court may not weigh the evidence to determine the correctness or wisdom of the agency's decision. Id. at 1160-61.

The statutory scheme here strongly suggests that this is an appropriate case for consideration of matters outside of the administrative record. Subsection (c)(4) carefully apportions jurisdiction to review the EPA's suspension order between the courts of appeals and the district courts: "final order[s] on the question of suspension following a hearing shall be reviewable in accordance with section 136n [in the courts of appeals]." By contrast, emergency suspension orders, issued without the benefit of an agency hearing, are to be reviewed by the district courts. A fair implication is that, where no administrative hearing has been held, the district court--a court of first instance equipped to consider evidence--may look to matters outside the administrative record. Otherwise, it would have made little sense for Congress to give the district courts jurisdiction to review emergency orders; it might as well have left all agency review in the courts of appeals. See S.Rep. 970, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News 4092, 4113 (bill vests jurisdiction over emergency orders in the district courts because, in the absence of an administrative hearing, there would be no factual record for an appellate court to review).

We therefore conclude that the district court was well within its authority in considering evidence outside the administrative record. The evidence it considered was precisely of the type that it could properly take into account in determining whether the agency acted arbitrarily or in a manner inconsistent with the statute. Moreover, the district judge carefully limited the scope of the inquiry, noting that, "[i]n considering the evidence presented outside the administrative record, I did not question the scientific merit of the EPA's decision.... Instead, I was concerned that the EPA had not considered all relevant factors...." Dist.Ct. op., 668 F.Supp. at 1448.

First, the court heard testimony from two EPA officials: Dr. James Lamb, Special Assistant to Assistant Administrator for Pesticides and Toxic Substances; and Roger Holtorf, an economist with the Economics Analysis Branch of the Benefits and Use Division of the Office of Pesticides Programs. Holtorf, the principal EPA witness, was a team leader for the dinoseb cancellation proceedings and was involved in providing information on the economic consequences of dinoseb for the suspension hearing. 2 RT at 188, 190. The district court first carefully determined that Holtorf was intimately familiar with the evaluation process carried out by the EPA. Id. at 192-93. Holtorf then testified about the information considered by the EPA on the effects of suspension and the extent of its investigation and evaluation of these effects on plaintiffs' crops. In the district court's judgment, such evidence was necessary in light of plaintiffs' contention that the EPA's fact-finding procedures were inadequate. This testimony was properly admitted as evidence necessary to explain the basis for the agency action. See Asarco, 616 F.2d at 1159-60.

Second, the district court considered evidence developed or brought to the attention of the EPA after the issuance of the suspension order, evidence pertaining to the relative efficacy of alternative pesticides in the Pacific Northwest and potential costs of the suspension. Much of this evidence was developed during plaintiffs' subpart D proceeding or in the course of the EPA's reconsideration as to other crops. See p. 1351 n. 7 supra. The court reviewed the evidence not in order to judge whether the EPA properly weighed the costs and benefits, but only to determine whether it considered them at all. So limited, the court's consideration of evidence was entirely proper. See Asarco, 616 F.2d at 1160. We turn therefore to the merits of the district court's decision.

B. The EPA may only issue a suspension order if it determines that continued use of the pesticide during cancellation proceedings would pose an "imminent hazard." The statute defines that term as a situation where continued use "would be likely to result in unreasonable adverse effects on the environment or will involve unreasonable hazard to the survival of a species declared endangered or threatened...." FIFRA Sec. 2(l ) (amended 1973), 7 U.S.C.A. Sec. 136(l ). In turn, "unreasonable adverse effects on the environment" means "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." FIFRA Sec. 2(bb), 7 U.S.C.A. Sec. 136(bb) (emphasis added). Before suspending all dinoseb registrations, the statute thus requires the EPA to consider the benefits as well as the risks of its use, including the economic consequences of suspension.16

The EPA admitted in its October 14, 1986, Notice of Intent that "[f]or some ... sites, such as green peas, snap beans, caneberries, and hops, the extent of economic impacts is uncertain." 51 Fed.Reg. at 36656. Based on this admission and other evidence, the district court found that "[b]ecause of the way in which the EPA gathered information, the impact of a ban on dinoseb on the northwest was treated in a cursory, unacceptable fashion." Dist.Ct. op., 668 F.Supp. at 1449. While concluding that dinoseb's potential dangers were properly substantiated, id. at 1448, the district court held that "the EPA did not consider all relevant factors and, hence, made a clear error of judgment resulting in [a] finding that their entry of the emergency suspension order was arbitrary and capricious." Id. at 1448-49.

After a careful review of the administrative record and the supplemental testimony before the district court, we must agree. The EPA's evaluation of the relevant factors under FIFRA was incomplete and rushed and, under the circumstances of this case, simply not adequate to justify the emergency suspension of plaintiffs' use of dinoseb.

First, the EPA gave itself insufficient time to comply with the statutory requirement that it balance risks and benefits. The EPA became especially concerned about the hazards of dinoseb in late June of 1986 when it received two studies from registrants indicating environmental risks. 1 RT at 144-45, 147. Around August 1, 1986, it ordered its Benefits and Use Division to prepare an evaluation of dinoseb, including production and usage information, a biological assessment and an economic impact assessment. 2 RT at 190, 193, 214. It established a September 1 deadline, which left what EPA economist Holtorf characterized as "a very short time frame." Id. at 190-91. The division was given only two weeks within which to evaluate nearly one hundred registered "sites," or crops, listed on dinoseb labels. 1 RT at 126; 2 RT at 197. As Holtorf testified, "roughly a couple of weeks is about all total that we had to evaluate this; and the staff available for evaluation, they were fully employed with other projects." 2 RT at 207.

Given this tight schedule, the EPA personnel responsible for evaluating the benefits of dinoseb never quite got around to studying plaintiffs' crops. The agency's standard methodology called for the staff to rank the various sites either by total acreage treated or by total pounds of dinoseb applied. With the information at hand, the EPA staff identified roughly 15 sites. 2 RT at 197. Starting with the largest crops, soybeans, peanuts and potatoes, the staff was supposed to work its way down the list until no other usages could be identified. Id. at 197, 206. However, by the sixth and seventh sites, green peas and snap beans (each of which accounted for approximately 2 percent of total dinoseb usage in the United States, id. at 197), the EPA had to stop because it ran out of staff and resources. As economist Holtorf testified, "we flat ran out of resources when we got about halfway down the list which would be roughly peas and beans.... We have a relatively small staff in relation to our work load, Your Honor. The Federal has been somewhat on a slide in terms of resources over the last few years." 2 RT at 206-07. The EPA thus never reached caneberries and cucurbits, which ranked below green peas and snap beans.

As a result of the incomplete study process, the district court found, the EPA used "scanty" data with respect to those crops, information "inconsistent with or contradicted by data readily available to, but not considered by, the EPA." Dist.Ct. op. at 1449. For example, a principal document in the administrative record, relied upon by the decision-makers, was a study titled "Dinoseb: Summary of Biological and Economic Impacts of a Suspension/Cancellation." (EPA Aug. 1986) (Plaintiffs' Exh. 1) [hereinafter August Summary]; see Dist.Ct. op., 668 F.Supp. at 1449. That document, dated August 1986 but attached to a cover memorandum dated September 2, 1986, was unfortunately both flawed and incomplete.17 It was only a less detailed version of a May 1986 document that, by its own description, was "limited in scope ... and should not be considered as a benefit analysis." Dinoseb: A Summary of Biological and Economic Effects 4 (EPA May 1986) (Plaintiffs' Exh. 62) [hereinafter May Summary]; see Dist.Ct. op. at 1449. Although Holtorf testified that "there were telephone calls made to individuals at various Land Grant universities," he also stated that "[f]rom the time of the emergency suspension activity began until the document was prepared, there was no opportunity to gather additional outside information...." 1 RT at 124.18 The district court found that "[t]he September document was not updated." Dist.Ct. op. at 1450.

The paucity of the information in the possession of the EPA when it summarily suspended use of dinoseb in the Northwest is disturbingly revealed by this document. The report states at the outset that, although the Benefits Division usually considers information from "all possible data sources" during cancellation proceedings,

due to the sensitive nature of suspension proceedings, outside resources were not used to estimate the current biological and economic impacts for either a suspension or a cancellation of dinoseb. While this impact analysis is the best that can be provided with current data limitations, it is possible that the impacts could change with new information from outside sources.

August Summary at 1-2.19 The summary's findings are woefully incomplete. They note, for example, that "[w]ith other crops, such as caneberries and hops, there is uncertainty as to the extent of impacts because of substantial data gaps." Id. at 10. They go on to state that "[t]he overall impacts from a loss of dinoseb on green peas and snap beans are not as well defined [as those for potat