Rohm & Haas Company, Appellant, v. United States Environmental Protection Agency, and Walter C.barber, and Mobil Oil Corporation, Appellees, 651 F.2d 176 (3d Cir. 1981)

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US Court of Appeals for the Third Circuit - 651 F.2d 176 (3d Cir. 1981) Argued May 22, 1981. Decided May 26, 1981

James J. Binns, Philadelphia, Pa., Patrick M. Raher, David J. Hayes, David A. Kikel, Washington, D.C., for appellant Rohm and Haas Company; Robert P. Vogel, Regulatory Counsel, Rohm and Haas Company, Philadelphia, Pa., of counsel.

David Richman, Pepper, Hamilton & Scheetz, Philadelphia, Pa., A. Duncan Whitaker, Mark D. Wegener, Ray A. Jacobsen, Jr., Howrey & Simon, Harold Himmelman, Cynthia A. Lewis, Beveridge & Diamond, Washington, D.C., for intervenor-defendant Mobil Oil Corporation; Thomas J. Winans, Deborah E. Lynch, Mobil Oil Corp., New York City, of counsel.

Before GIBBONS, GARTH and SLOVITER, Circuit Judges.



Rohm & Haas Company appeals from a judgment in favor of the defendants in its action against the Environmental Protection Agency et al., in which Mobil Oil Corporation intervened as a defendant. Rohm & Haas sought an injunction against the issuance to Mobil of an Experimental Use Permit (EUP) for experimental use of Mobil's product Tackle as a pesticide for soybeans. Rohm & Haas contends, and the defendants do not dispute, that the Environmental Protection Agency, in approving experimental use of Tackle, relied on information in the agency's file with respect to Rohm & Haas's product Blazer, which like Tackle contains the active ingredient acifluorfen. Such reliance, Rohm & Haas contends:

(1) violates Section 5 of the Federal Fungicide and Rodenticide Act, 7 U.S.C. § 136c in that EUP's may not be issued in reliance on data submitted by anyone but the applicant; and

(2) violates restrictions on the use of submitted data in Section 3(c) (1) (D) of the Federal Fungicide and Rodenticide Act, 7 U.S.C. 136a(c) (1) (D).

Rohm & Haas also contends that the agency should have permitted additional time for public comments in response to its May 5, 1981 Federal Register Notice of Mobil's application for the EUP.

Upon filing its notice of appeal Rohm & Haas moved for an injunction pending appeal, and alternatively for accelerated disposition of the appeal after oral argument, on the briefs filed with the trial court. All parties agreed to a disposition of the appeal on the submissions to date. We heard oral argument on the merits of the appeal on May 22, 1981.

We affirm the judgment appealed from, essentially for the reasons set forth in the comprehensive opinion of the trial court.