Officer adopted the initial decision as the Agency's final decision, together with the findings, conclusions and reasons in support there of. Reabe then applied for attorney's fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. §504, and the Agency's implementing regulations, 40 CFR § 17 (1984). The presiding officer issued his Decision Denying Application For Fees and Expenses (Decision Denying Application For Fees) on July 26, 1983.3 It is that decision which is being appealed here. The Chief Judicial Officer, as the Administrator's delegatee, has the authority to decide this appeal pursuant to 40 CFR §§ 17.27 and 22.30 (1984). For the reasons set forth below, the presiding officer's Decision Denying Application For Fees is affirmed. DISCUSSION An applicant may receive an award for fees and expenses in connection with a proceeding brought against it by EPA if it “prevails," unless the position of EPA as a party to the proceeding is substantially justified or unless special circumstances make the The presiding officer dismissed the charges of violating the two label warnings against breathing or inhaling Parathion or Sevin. With respect to those two label warnings, he stated: These statements appear to be on the label to protect from expo- The presiding officer dismissed all remaining charges except the charge of violating the Parathion label prohibition relating to keeping all unprotected persons and children away from areas where there is danger of drift. For that charge Reabe was assessed a civil penalty of $600. 3 An initial determination by an ALJ on an application for attorney's fees is referred to as a "recommended" (rather than an "initial") decision in the Agency's EAJA regulations, 40 CFR § 17.26 (1984). As used in 40 CFR § 17.26 (1984), that term has no particular significance. A recommended decision on attorney's fees is treated the same way as an initial decision for purposes of the Agency's appeal procedures. In the Matter of Robert Ross & Sons, Inc., TSCA Appeal No. 82–4, n. 7 (Jan. 28, 1985). award sought unjust.4 40 CFR § 17.6(a) (1984). The test of whether or not Agency action is substantially justified is essentially one of reasonableness; it is incumbent upon EPA to show that it possessed facts from which it could reasonably believe that the law had been violated.5 See Decision Denying Application For Fees, pp. 6, 7. Facts in EPA's possession at the time of the civil penalties proceeding included statements of several adults who were present at the day care center at the time of spraying and who made observations and experienced physical symptoms consistent with exposure to Parathion, Sevin or Kocide.6 Decision Denying Application For Fees, p. 8. Their statements are enlightening. Ms. Goggin, a teacher who was present stated: I could feel and taste a very foreign substance that— 4 In the presiding officer's view, Reabe "prevailed" within the meaning of the EAJA and its implementing regulations since certain of the charges against it were dismissed. However, Reabe lost on one of the charges brought against it. In other words, considering all the charges, Reabe prevailed only partially. The issue raised is whether such a party can be considered a “prevailing party" as that term is used in the EAJA, or whether it must prevail on all charges brought against it, particularly if the charges, as here, arise out of the same transaction (e.g., aerial spraying of a pesticide) and involve alleged violations of the same statutory provision (e.g., FIFRA § 12(a)(2)(G)). Preliminary research on this issue indicates that its resolution is complicated. For one thing, the EAJA contains no definition of the term "prevailing party." Moreover, compelling arguments can be advanced on either side of this issue. (For a discussion of partially prevailing parties and attorney's fees under the fee-splitting provisions of the Civil Rights Act, see Hensley v. Eckerhart, U.S. 103 S.Ct. 1937 (1983)). Accordingly, since resolution of this issue is not necessary to reach an ultimate result in this case, I elect not to review it at this time. Rather, I prefer to review it when and if it arises in a future case on appeal where it has a more direct impact on the ultimate outcome of the controversy, and can be fully briefed by the parties. 5 The presiding officer denied Reabe's request for attorney's fees because he found that although Reabe prevailed on the charges which were dismissed, the Agency's position with respect to those charges was substantially justified. The "special circumstances" exemption will be discussed at length later in this decision. 6 Present at the adjoining day care center at the time of the spraying were five young children between the ages of two and six and approximately fifteen adult women. Four of the adults were teachers, one was the cook, and the remainder were participating in a "Young Child Development" class. Another teacher who was present, Ms. Erickson, reported that at the time of the spraying, "there was a slight breeze coming up the path and it smelled like some kind of insecticide, something like that." The next day she had a sore throat and a runny nose which persisted for about a week. Tr. 109-116. Ms. Goldsmith, a day care aide who was present, stated she smelled and tasted something in the air which she described as having a "mediciney" smell, and a "chalky" taste. She experienced a constriction in her chest and throat. After a few days she had a sore throat and her eyes watered and burned. Tr. 129-132, 134. Others present gave similar testimony. Luz Mata heard others say, "it smells awful." The next day she developed a sore throat. Tr. 143-149. Magdalena Flores observed, "there was like dust and it tasted bitter and sour" inside the building. Later in the day she had a stomach ache and cramps lasting all night and the next day. Tr. 150-52, 157. Dorothy Kramlich smelled an "unusually, pungent odor" inside the building which persisted for several hours. Tr. 200203, 206. However, in rebuttal Reabe submitted urine and blood samples of those present at the center during spraying as well as test data from two samples of vegetation on the day care center property which purported to show that the center's environs were not exposed to the pesticide mixture sprayed on the adjoining bean field. In other words, the test data purported to show that drift had not occurred. Although the presiding officer relied on this scientific evidence and found that drift had not occurred (or at least that EPA Region V failed to demonstrate that drift had occurred by a preponderance of the evidence), the Region, in light of the questions surrounding the test data's reliability, had good reason to reject the test data "The way the vegetation samples were collected and handled casts doubt on the reliability of the negative test results. First, the samples were collected a full two days after the spraying had occurred. Then they were transported in an automobile for an hour under conditions of high temperature and humidity. The samples were finally frozen, but not packed in ice, for a four hour trip to the lab. Under these circumstances one would expect the pesticides to break down and negative test results would not be surprising. The blood and urine tests were analyzed by Dr. Donald Morgan, an Associate of Preventive Medicine and Environmental Health at the University of Iowa. He did not analyze the samples for the presence of Kocide. Moreover, the fact that the urine test results were negative is inconclusive since both Sevin and Parathion are rapidly metabolized and excreted. Initial Decision, p. 9. Finally, Dr. Morgan's conclusion that some of the physical symptoms previously described were likely not attributable to drifting of Parathion and Sevin seems irrelevant in light of his admission Continued in favor of the many, consistent statements of those present during spraying indicating the likelihood that drift had occurred. Clearly, the Region had good reason to believe that drift had occurred and the labels' prohibitions against drift 8 had been violated. Therefore, as the presiding officer found, EPA's action charging Reabe with violation of the labels' prohibitions against drift was substantially justified. Also, the presiding officer found the Region's interpretation of the two similar label warnings against breathing Parathion and Sevin to be substantially justified. (See n. 2, supra.) The warning on the Sevin label read: HARMFUL IF INHALED * * * Avoid Breathing of The warning on the Parathion label is similar. Under the Region's interpretation, Reabe would be in violation of the label warnings against breathing or inhaling Parathion or Sevin if its spray drifted, and as a result, anyone breathed or inhaled the spray dust. Contrary to the Region's interpretation, these warnings appear to be on the label to protect those who handle or use the pesticides in question from exposure, and not to protect others from exposure to drift resulting from misapplication. See Initial Decision, p. 12. Accordingly, I am not convinced that the Region's interpretation of the label warnings against breathing or inhaling Sevin or Parathion was substantially justified since it stretches the meaning of these label warnings beyond what was intended. In any event, if the presiding officer erred when he found the Region's interpretation of these two label warnings to be substantially justified, it was harmless error. For even if the Region's interpretation is not substantially justified, it is justified by the EAJA's "special circumstances" exemption which allows an agency latitude to advance "that it was possible that they could have been related to some other chemical in the spray such as copper compound or Xylene (which may have been used as a carrier of pesticides)." Initial Decision, p. 11. 8 The various labels' prohibitions against drift are as follows: Do Not Apply When Weather Conditions Favor Drift (Parathion Do Not Allow This Material to Drift Onto Neighboring Crops or Do Not Apply When Weather Conditions Favor Drift From Areas in good faith the novel but credible extensions and interpretations of the law that often underlie vigorous enforcement efforts, without being deterred by the prospect of attorney's fees and expenses under the EAJA, should it fail to prevail. H.R. Rep. No. 1418, 96th Cong., 2d Sess. 10-11 (1980), reprinted in 1980 U.S. Code Cong. & Ad. News, 4984-90; see also H.R. Conf. Rep. No. 96-1434, 96th Cong., 2d Sess. 21-22 (1980), reprinted in 1980 U.S. Code Cong. & Ad News, 5010-11. Here, there is no reason to question the presiding officer's finding that the Region's interpretation of these two label warnings was being advanced in good faith. Moreover, as the presiding officer stated, the Region's interpretation was a credible (if not a substantially justified) interpretation, particularly in light of the fact that, being remedial in purpose, "label statements should be broadly construed to prohibit all consequences that could be inherent therein." (Citation omitted.) Decision Denying Application For Fees, p. 10. Accordingly, even if not substantially justified, the Region's interpretation of the two label warnings against breathing Parathion and Sevin fall within the special circumstances exemption of the EAJA. Therefore, Reabe is not entitled to an award of attorney's fees under the EAJA for defending against the charges that it violated these warnings.9 REABE'S ARGUMENTS ON APPEAL On appeal Reabe makes three arguments, all of which are made in a summary fashion. 10 First, Reabe argues that the presiding officer's Decision Denying Application for Fees is in "error because it does not address the That leaves one charge for discussion. Unlike the other five, this remaining charge was not dismissed. The presiding officer assessed a $600 penalty against Reabe for failing to abide by a requirement on the Parathion label which states: Keep All Unprotected Persons and Children Away From Treated Areas or Where There is Danger of Drift. Since Reabe failed to "prevail" on this charge, it, of course, has no legitimate claim to an award of attorney's fees incurred in association with defending this charge. See Bartholomew v. Watson, 665 F.2d 910, 914 (1982); Muscari v. Quinn, 614 F.2d 577, 579–581 (1980). 10 For some reason which is not evident, Reabe has misstyled its Notice of Appeal as a "Motion to Reconsider." Generally, motions for reconsideration are directed to the tribunal originally deciding a controversy; when a party wishes review of an original decision by an appellate tribunal it generally files an appeal, i.e., Notice of Appeal and Supporting Briefs. See 40 CFR § 22.30 (1984). |