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MOBAY CHEM. CORP. v. COSTLE

June 12, 1981

MOBAY CHEMICAL CORPORATION, Plaintiff,
v.
Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, Defendant



The opinion of the court was delivered by: MCCUNE

MEMORANDUM

We consider defendant EPA's Motion to Vacate and Dissolve Injunction issued by Judge Elmo B. Hunter of the United States District Court for the Western District of Missouri.

 Judge Hunter granted declaratory and injunctive relief to plaintiff, Mobay Chemical Corporation (Mobay), from the operation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.A. §§ 136-136y (1980) in certain respects. He issued his order on March 14, 1978. See Mobay Chemical Corp. v. Costle, 447 F. Supp. 811, 834-35 (W.D.Mo.1978). On September 30, 1978, FIFRA was amended. Many of the amendments altered provisions of FIFRA which had been the subject of Judge Hunter's order.

 On June 29, 1979, defendant filed the instant motion pursuant to Fed.R.Civ.P. 60(b). It asserted that the amendments now authorized what the injunction prohibited. It contends that it is unnecessary and inequitable for the injunction to operate in the face of the 1978 amendments.

 By order filed February 26, 1981, Judge Hunter transferred the defendant's Motion to Vacate and Dissolve to this court.

 Judge Hunter's 1978 order contains 14 paragraphs, 5 of which defendant seeks to have deleted or modified.

 In Paragraph No. 9, Judge Hunter

 
ORDERED that defendant, his officers, agents, employees and representatives be, and they are hereby, forever and permanently enjoined from considering or using any information, research and test data submitted by plaintiff to the Administering Agencies on or after January 1, 1970, which contains or relates to trade secrets or other confidential or privileged commercial or financial information in support of any application for registration in which an applicant seeks to rely on such data until such time as defendant shall have obtained the express written permission of plaintiff.

 Section 3(c)(1)(D), as amended in 1978, permits EPA to use data submitted on or after January 1, 1970, by an applicant to support other applications without the permission of the data submitter, unless the data submitter is eligible for the exclusive use provision found in § 3(c)(1)(D)(i), 7 U.S.C.A. § 136a(c)(1) (D)(i). We have today found § 3(c)(1)(D) to be valid. Consequently, we delete Paragraph No. 9 from Judge Hunter's order.

 In Paragraph No. 3, Judge Hunter

 
ORDERED that the portion of this action involving the question of which portions of the information, research and test data submitted by plaintiff in support of applications for registration or tolerances contain or relate to trade secrets or commercial or financial information which is privileged or confidential be, and it is hereby, remanded to the Administrator of the Environmental Protection Agency for his determination under the proper legal standard set forth herein.

 At the time of the order, no data could be relied on pursuant to § 3(c)(1)(D) if they were protected from disclosure by § 10(b), the trade secrets provision. The 1978 amendments removed this qualification from § 3(c)(1)(D), however. Consequently, EPA need not make this determination ...


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