that standard should be one of "clear error." In other words, in exercising my discretion to accept or reject Respondent's existing stocks proposal 12 (which normally would be reviewed "in house" without opportunity for public comment), Respondent's recommendation should be accepted unless those who object to it are able to persuade me that it is clearly erroneous, i.e., erroneous as a matter of fact, law, or policy, and therefore should be rejected. 13 This is the basic standard of review that appears in Agency regulations governing numerous other licensing decisions where there is no statutory right to an evidentiary hearing. 14 In the present instance, AFFI has failed to persuade me that the settlement represents clear error and therefore should be rejected. 15 Respondent's rationale for the settlement 16 contains a detailed analysis of the risks and benefits that would be presented by sale and use of existing stocks under the restrictions and other terms of the proposed cancellation order. In my opinion, Respondent's rationale fully satisfies the substantive statutory standard for an existing stocks determination, which appears in FIFRA §6(a)(1) as follows: * [T]he Administrator may permit the continued sale 12 Although the cancellation order containing the existing stocks proposal is the product of a settlement, the existing stocks provisions were drafted entirely by EPA. EPA Rationale at 6. 13 The burden of demonstrating that the existing stocks determination should be rejected (or subjected to further scrutiny) properly belongs on those who object to the staff's determination, because ordinarily the staff's recommendation would not be open to outside comment until after it had been accepted and become final. 14 See 40 CFR § 124.19 (1987) (appeals of hazardous waste treatment, storage, and disposal permits under the Resource Conservation and Recovery Act, underground injection control (UIC) permits under the Safe Drinking Water Act, and prevention of significant deterioration (PSD) permits under the Clean Air Act). 15 Because the settlement is contingent upon its acceptance in the form presented by the parties in the joint motion, any revision of its terms would constitute its rejection. Nevertheless, as the Respondent has suggested, the Administrator may communicate any concerns about the terms of the existing stocks proposal to the parties (EPA and the two registrants) so that they can consider amending the settlement to allay the concerns. As stated in the text above, however, I see no clear error in the existing stocks proposal; therefore, I see no need to refer it back to the parties for possible amendment. 16 EPA Rationale for Settlement, dated January 13, 1988. Respondent further explained the rationale and responded to AFFI's criticisms on two separate occasions in this proceeding. See Respondents' Reply to AFFI Objections to Joint Motion for Accelerated Decision at 10-16 (dated February 11, 1988); Respondent's Memorandum Responding to AFFI's Exceptions, Etc. at 14-26 (dated April 7, 1988); see also EPA Response to Ex Parte Communication (dated April 12, 1988). Together with the rationale itself the responses form a detailed and well justified articulation of the reasons why EPA is able to conclude that the existing stocks proposal will not cause unreasonable adverse effects on the environment and is otherwise consistent with the purposes of FIFRA. In fact, they show that the depth of the Agency's review in making the proposal is probably the most rigorous this Agency has ever undertaken for a small number of minor crops in a single geographical region. 17 It is readily apparent that Respondent has given full consideration to all of AFFI's concerns or criticisms and has refuted or addressed them as the case may be. There is no compelling reason to look behind Respondent's recommendation respecting existing stocks. 18 I therefore conclude that the recommendation is in the public interest. Furthermore, I adopt Respondent's rationale (together with supporting responses) as the Agency's final statement of reasons in support of the existing stocks proposal in the proposed cancellation order. The NRDC et al. and the NWFPA are not parties to this proceeding but are nevertheless seeking to have their exceptions to the settlement considered in the final decisionmaking process. In response, Respondent correctly points out that the applicable procedural rules, 40 CFR § 164.102, make no provision for the filing of exceptions to an accelerated decision by non-parties. However, although I am not aware of any legal reason for not applying these rules exactly as they are written, I have the prerogative to relax a procedural requirement if no prejudice will result to any party and if the circumstances appear to warrant it. 19 In the case of NWFPA, there is no compelling reason to relax the rules because NWFPA has not shown any legitimate reason for seeking late entry in the proceeding 17 Respondent's Memorandum at 19. 18 See notes 12 and 15 supra. 19"It is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it."" American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970) (quoting NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764 (8th Cir. 1953)); see Rockwell International Corporation, TSCA Appeal No. 87-5, at 2, n.2 (CJO October 23, 1987) (non-party allowed to request certification of interlocutory appeal under rules permitting certification only "upon motion of a party”). and its interests are not substantially different from those of AFFI. I therefore deny NWFPA's motion to file comments (together with its motion to file them out of time). NRDC's situation is distinguishable because some individual members that make up this group of petitioners had sought to intervene earlier but their requests to do so were denied by the presiding officer. 20 Also, NRDC's views are not represented by any other party insofar as the existing stocks proposal is concerned. Therefore, I believe it is appropriate to relax the rules to allow NRDC's objections to be received as a non-party amicus curiae. As to the substance of the objections, NRDC makes two general arguments: it opposes, as unlawful, gender-specific restrictions on use of existing stocks, as were prescribed earlier in the October 7, 1986 suspension order, 51 FR 36634 (October 14, 1986); and it claims any continued use of existing stocks for even a limited time period poses unacceptable risks to workers generally (and to their families and neighbors), not only to pregnant women. The first argument is countered by the fact that the proposed cancellation order no longer contains any gender-specific restrictions but instead replaces them with warnings that the product poses hazards to male reproduction and unborn children and that all reasonable efforts should be made to prevent exposure of women of childbearing age. These are supplemented by genderneutral restrictions respecting when workers can re-enter treated areas and with a host of specific label directions governing application procedures and protective equipment. NRDC's second argument is countered by its failure, in my opinion, to weigh adequately the risks of limited dinoseb use against its benefits, for the crops and time periods in question. NRDC has not convinced me that the limited and short-term availability of existing stocks is unjustified in view of the controlled circumstances under which they will be used and the benefits they afford while affected growers and others make the transition to alternatives. Consequently, I am not persuaded by NRDC's arguments.21 For the reasons stated, the accelerated decision is affirmed 22 and all remaining dinoseb registrations are cancelled in accordance 20 The individuals who had previously sought unsuccessfully to intervene in the proceeding did not request, as the rules expressly authorize, that the presiding officer's adverse ruling be certified to the Administrator for a "speedy [interlocutory] appeal." See 40 CFR § 164.31(c). 21 In view of the foregoing, Respondent's and AFFI's separate requests to file responses to NRDC's exceptions are denied. 22 In accordance with 40 CFR § 164.91 (1987), an accelerated decision may be rendered in favor of Respondent whenever “(7) [t]here is no genuine issue of any with the terms of the cancellation order accompanying this decision.23 The cancellation order shall become effective at the date and time it is filed with the hearing clerk.24 material fact and * the respondent is entitled to judgment as a matter of law; or (8) [s]uch other and further reasons as are just." 23 The cancellation order accompanying this decision supersedes the cancellation order executed by the presiding officer on March 11, 1988. Today's order is identical in content to the one submitted by EPA, Cedar, and Drexel as part of the joint motion requesting an accelerated decision in EPA's favor. The March 11 order never became effective as a result of the appeal of the accelerated decision. See 40 CFR § 164.91(b); 40 CFR § 164.90(b). 24 AFFI's motion for leave to file its reply, etc., dated April 21, 1988, is denied. IN THE MATTER OF CITY OF FAYETTEVILLE, NPDES Appeal No. 88-1 REMAND ORDER Decided June 28, 1988 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: The Attorney General of the State of Oklahoma (on behalf of various Oklahoma parties), "Save the Illinois River" (STIR), and the Oklahoma Wildlife Federation have each petitioned for review of a January 12, 1988 Initial Decision upholding an NPDES permit. EPA Region VI issued the permit to the City of Fayetteville, Arkansas, under the Clean Water Act, 33 U.S.C.A. §§ 1251-1376 (CWA), for discharges from the City's sewage treatment plant.1 Region VI and various Arkansas parties have filed responses opposing the petitions for review. The three petitions together raise a variety of issues, but only two issues warrant discussion: (1) whether the ALJ properly dismissed the issue of the ability of the new plant technology to ensure compliance with the permit; and (2) whether the ALJ applied the proper legal standard in deciding whether discharges under the permit would violate Oklahoma's water quality standards. 1 See Oklahoma's "Notice of Appeal and Petition for Review" (Feb. 18, 1988); "Petition for Review By Save the Illinois River (STIR)" (Feb. 16, 1988); Oklahoma Wildlife Federation's "Notice of Appeal and Petition for Review" (Feb. 18, 1988). The Oklahoma Wildlife Federation adopted in full and incorporated by reference the Notice of Appeal and Petition for Review filed by the Oklahoma Attorney General. 2 See EPA Region VI Reply Brief to the Petition for Review Filed by Save the Illinois River (STIR) (March 2, 1988); EPA Region VI Reply Brief to the Petition for Review filed by the Oklahoma Attorney General (March 4, 1988); Response of BWD to Notice of Appeal and Petition for Review Filed on Behalf of STIR (March 4, 1988); Response of BWD, the Arkansas Attorney General, ADPC & E, and the City of Fayetteville to Notice of Appeal and Petition for Review filed by the Oklahoma Attorney General (March 8, 1988). |