510 F.2d 1292 | D.C. Cir. | 1975
Opinion for the Court filed by Circuit Judge LEVENTHAL.
This case involves the validity of an order issued by the Administrator of the Environmental Protection Agency (EPA) on October 1, 1974, suspending the registration and prohibiting the manufacture and sale
The validity of the suspension of registration is attacked by Shell Chemical Company, the sole United States manufacturer of the pesticides, which raises general questions as to the basis of the order and stresses the importance of these pesticides for the 1975 corn crop. It is also attacked by Florida Citrus Mutual (FCM), an association of citrus growers, and by the Secretary of Agriculture;
The Environmental Defense Fund (EDF) and the National Audubon Society attack the EPA’s decision to permit continued sale and use of existing stocks.
The court has taken into account the need for an expeditious determination, and has, to the extent permitted by its other pressing obligations, expedited the appeal and oral argument, and the issuance of its opinion. While the court has set forth its reasons it has not provided a full elaboration. The court has considered, though it has not spelled out in detail, all the contentions of the various petitioners. It rejects those contentions except that, in the case of the point raised by EDF, the court remands the record for further consideration.
I. THE ORDER
On December 3, 1970, EDF first petitioned EPA for the immediate suspension of aldrin/dieldrin and the initiation of cancellation proceedings for all existing registrations. On March 18, 1971, the Administrator issued notices of intent to cancel, under § 4 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), for all products containing the pesticides, on the basis of his finding that “a substantial question as to the safety” of the chemicals existed.
Cancellation hearings began before Chief Administrative Law Judge (ALJ) Perlman on August 7, 1973. Twelve months into the hearings, on August 2, 1974, the Administrator issued a notice of intent to suspend on the ground that evidence developed since December 1972 indicated that the continued use of aldrin/dieldrin presented an “imminent hazard” to the public. Shell and USDA requested a public hearing on the suspension question. The hearing began before ALJ Perlman on August 14, 1974, and was concluded on September 12, 1974. ALJ Perlman recommended suspension, and, on October 1, 1974, the Administrator suspended the registrations.
We will first develop the general purpose and validity of the order, with a broad overview of its reasoning and the supporting evidence. Then we shall turn to certain particular objections presented by the parties.
II. GENERAL VALIDITY
Turning first to the broad question of validity raised by cases like this, the court concludes: The EPA’s order is a rational exercise of discretion, rather than arbitrary agency action. It is supported by the reasoning of the agency, and by substantial evidence in the record.
A. The Scope of Judicial Review
The primary challenge raised by Shell, FCM, and the USDA goes to the adequacy of the evidentiary basis of the EPA’s finding that aldrin/dieldrin presents “an imminent hazard [to man] during the time required for cancellation.”
We have cautioned that the term “imminent hazard” is not limited to a concept of crisis: “It is enough if there is substantial likelihood that serious harm will be experienced during the year or two required in any realistic projection of the administrative process.” Environmental Defense Fund, Inc. v. EPA, supra, 150 U.S.App.D.C. at 360, 465 F.2d at 540 (emphasis added). “FIFRA confers broad discretion” on the Administrator to find facts and “to set policy in the public interest.” Wellford v. Ruckelshaus, 142 U.S.App.D.C. 88, 91, 439 F.2d 598, 601 (1971). See also Environmental Defense Fund, Inc. v. EPA, supra, 150 U.S.App.D.C. at 354, 465 F.2d at 534 (1972). It does not require the Administrator to establish that the product is unsafe, but places “[t]he burden of establishing the safety of a product requisite for compliance with the labeling requirements ... at all times on the applicant and registrant.” Environmental Defense Fund, Inc. v. EPA, supra, 150 U.S.App.D.C. at 352, 465 F.2d at 532.
Section 16(b) of FIFRA defines the scope of judicial review of EPA orders made after public hearing:
The court shall consider all evidence of record. The order of the Administrator shall be sustained if it is supported*77 by substantial evidence when considered on the record as a whole.8
The standard of “substantial evidence” means
something less than the weight of the evidence . . . [T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.9
In applying this principle to review of a suspension decision, this court has said, “the function of the suspension decision is' to make a preliminary assessment of evidence, and probabilities, not an ultimate resolution of difficult issues. We cannot accept the proposition that the Administrator’s findings . [are] insufficient because controverted by respectable scientific authority. It [is] enough at this stage that the administrative record contain[s] respectable scientific authority supporting the Administrator.” Environmental Defense Fund, Inc. v. EPA, supra, 150 U.S.App. D.C. at 357, 465 F.2d at 537.
B. Carcinogenicity of Aldrin/Dieldrin
Although the cancellation hearing encompasses a broad range of issues concerning the effect of aldrin/dieldrin on the environment as well as on human beings,
I. Mice Data
Shell attacks the Administrator’s reliance on mice data on the ground that the inadequacy of present knowledge regarding cancer and the difficulty of extrapolating from mice to men render his decision speculative.
The Administrator’s failure to determine a threshold level of exposure to aldrin/dieldrin does not render his determination improper, for he has concluded that the concept of a threshold exposure level has no practical significance where carcinogens are concerned. This is due in part to the irreversibility and long latency period of carcinogens. “[W]here the matter involved is as sensitive and fright-laden as cancer,”
The validity of extrapolation to humans from data derived from tests on animals is also a matter within the agency’s expertise. There was testimony before the Administrator to support such extrapolation,
Shell claims that tests based on mouse data are not substantial evidence, because mouse livers are unusually susceptible to cancer. Still, Shell’s data—of statistically significant incidence of malignant liver tumors—were in strains of mice that were, as was noted by the Administrator, unusually resistant to such tumors.
2. Conformance with Prior Agency Orders
Shell stresses EPA’s two earlier refusals to suspend the registration of aldrin/dieldrin despite evidence of its carcinogenicity in mice, and attacks the order under review as an unexplained departure iron prior agency policy. To begin, an agency is not required to adhere to a prior policy with iron rigidity; all that the law requires is that it explain the reasons for its modification.
The EPA’s decision makes it clear that what changed here was not EPA’s
3. Rat Data
The Administrator cited data that he interpreted as indicating a “strong probability” that aldrin/dieldrin is a carcinogen in rats. The rat data was derived from three tests, two by the FDA and one confirmatory test from Shell’s Tun-stall laboratories. At least six witnesses reviewing these studies found a carcinogenic effect or a strong probability of one.
Shell characterizes the Administrator’s conclusion as a departure from the ALJ that is insufficiently explained. The difference between the ALJ and the Administrator does not concern evidentiary facts, but is rather a difference in policy concerning the program which the facts warrant — peculiarly a matter for the Administrator to determine. The ALJ was “hesitantly unwilling at this time to find that dieldrin is conclusively a carcinogen in the rat although there are indications that this is so.”
G. Causal Connection To Contamination of Man
Shell further challenges the Administrator’s finding that an “imminent hazard” exists on the ground that the Administrator failed to establish a causal connection between the uses of aldrin/dieldrin that Shell defends (primarily implantation in the ground soil at the base of plants) and the ingestion of pesticide residues by humans. Shell claims that human exposure has resulted primarily
The record supports the EPA’s finding of “substantial likelihood” that serious harm will result from the uses defended by Shell.
Treatment of corn soil insects has consistently been the most prominent use of the pesticides since 1955.
EPA’s conclusion that the prohibition of the predominant use would reduce the likelihood of increased exposure is not unreasonable. It is supported by the evidence of record as follows: Aldrin/dieldrin are highly mobile and persistent chemicals that are not lost by dilution in the inorganic components of the environment. The pesticides persist in the soil for several years, where they are absorbed by the roots and transported to the aerial parts of crops, such as soybeans, which are rotated with corn. Many of these products are important feed components for animanls. The pesticide residues are thus incorporated, directly and indirectly, into the milk, meat, poultry, and soy products consumed by humans.
Shell sees inconsistency in EPA’s exemption from suspension of the use of soil-implanted aldrin/dieldrin as a termiticide. EPA explains that, when used for this purpose, the pesticide is buried deep beneath the surface of the land, where it remains undisturbed for years. When used for crop protection, however, aldrin/dieldrin is applied to the top few inches of the soil, in lands typically subject to frequent disturbance through plowing and disking.
There is substantial evidence, plainly sufficient to support the suspension order, at least where, as here, the registrant has failed to come forward with proof showing that no causal connection exists. Shell did not even protest the evidence on causal connection in its argument to the ALJ. Nor did it contest the ALJ’s finding of a causal relationship in its objections filed with the Administrator. The ALJ’s causation findings are the implied assumption of the Administrator’s order. His failure to be explicit on the point yields no basis for legal attack, especially in view of the lack of objection on this ground.
D. Minor Uses
Shell, FCM, and USDA claim that the Administrator has failed to show evidence of the existence of an “imminent hazard” and a causal connection for each suspended use of aldrin/dieldrin. They would place the burden on the agency to bring forth material on each crop and each geographical area touched by the suspension order. But “it is not necessary to have evidence on a specific use or area in order to be able to conclude on the basis of substantial evidence that the use of [a pesticide] in general is hazardous.” Environmental Defense Fund, Inc. v. EPA, supra, 160 U.S.App.D.C. at 130, 489 F.2d at 1254. “Reliance on general data, consideration of laboratory experiments on animals, etc.,” has been found to provide a sufficient basis for an order cancelling the registration of a pesticide. Id. The
Most of the minor uses either share the critical factor of implantation in the soil close to the ground surface,
E. Risk-Benefit Analysis
Shell, FCM and the USDA further challenge the Administrator’s finding that the benefits derived from the suspended uses of aldrin/dieldrin do not outweigh the harms done.
The responsibility to demonstrate that the benefits outweigh the risks is upon the proponents of continued registration.
a heavy burden on any administrative officer to explain the basis for his decision to permit the continued use of a chemical known to produce cancer in experimental animals.35
In our 1972 opinion, Environmental Defense Fund, Inc. v. EPA, supra, we said that “a mere recitation of a pesticide’s uses does not suffice as an analysis of benefits” where the EPA has refused to initiate suspension proceedings despite evidence of carcinogenicity and a submission that alternative pest control mechanisms exist. We sought a further “elucidation of basis” from the agency to ensure that the evidence of harm was indeed outweighed by benefits flowing from the continued use of the pesticide. Where, as in that case, the agency declines to act in the face of evidence of carcinogenicity it bears the burden of justifying its lack of action:
By definition, a substantial question of safety exists when notices of cancellation issue. If there is no offsetting claim of any benefit to the public, then the EPA has the burden of showing that the substantial safety question does not pose an “imminent hazard” to the public.
150 U.S.App.D.C. at 359, 465 F.2d at 539. In the present case, in contrast, the agency has decided to act, and the burden is on the registrant to establish that continued registration poses no safety threat.
1. Use on Corn
The Administrator’s conclusion that alternative methods are sufficiently efficacious in controlling corn pests is supported by data from studies comparing aldrin/dieldrin treatment of black cutworms and wireworms with other techniques,
The finding that adequate alternatives will be available for the 1975 planting season is supported by evidence that other chemical pesticides are being produced and nonchemical techniques are available. Alternatives are not available in equal volume, say petitioners. However, the Administrator has determined that no pound-for-pound substitution is necessary because aldrin/dieldrin has been overused in the past as a prophylactic measure and because the threat of corn soil insects is greatly reduced at this time — a conclusion supported by the evidence and one that will not be disturbed by this court. Shell protests that the certain post-emergent treatments impose a much greater work burden on the farmer. When the subject is risk of cancer, convenience may be relevant but it does not weigh heavy in the scales.
Testimony that carbamate and organophospate alternatives do not share the persistence, lipidsolubility, and bioconcentration in animal or human tissues characteristic of aldrin/dieldrin — and thus do not pose the same cancer risk— supports the finding that the alternatives are environmentally suitable.
2. Minor Uses
USD A and FCM challenge the Administrator’s failure to provide extensive. risk-benefit analysis for each crop and each geographical area for which aldrin/dieldrin has been suspended. They fault the order on the grounds that it makes conclusory findings for minor uses without discussing the contrary evidence and that it lacks substantial record evidence to support its rationale. However, the expedited nature of the suspension proceeding imposes limitations on the degree of detail that can be expected from the Administrator’s findings at this stage of the administrative process. A more careful exploration of the availability of alternatives for minor uses would be contemplated for the final determination on cancellation vel non, but we cannot demand an extended discussion of the evidence for every use at this emergency, provisional stage.
The record evidence as to the relative risks and benefits of each use is a mixed bag, but it provides substantial support for the Administrator’s conclusion. The order cites California experience with alternative pesticides that have proved effective against Fuller’s Rose Beetle, the Florida citrus pest controlled by aldrin/dieldrin, and there is also evidence that effective foliar sprays will be available for use should an emergency arise during the suspension period. Moreover, aldrin/dieldrin is used on less than 5 percent of the total citrus acreage, and the ALJ noted that much of that use was a kind of “just in case” insurance, applied even in the absence of knowledge that the pest exists in the pertinent grove. As to other crops, the record indicates, for example, that effective registered alternatives are available; that, in the case of pineapples and cranberries, aldrin/dieldrin offer multi-year protection, so the benefits of past applications will continue; and that the present over supply in the cranberry market diminishes the prospect of hardship from the suspension in regard to that crop.
3. Heptachlor as an Alternative
Shell protests that heptachlor/chlordane, pesticides that demonstrate carcinogenicity in mice and are stored in human tissue in the same levels as aldrin/dieldrin, will, in practice, be used in place of the suspended pesticides. Because heptachlor presents an identical cancer risk, Shell argues, the Administrator’s suspension of aldrin/dieldrin does not “prevent” an imminent hazard as required by the statute. Heptachlor is also the subject of cancellation proceedings. There is no law that says that all evils must be attacked at the same time and at the same rate. So far as the public interest is concerned, it suffices to note that there is evidence that heptachlor is not available in large amounts comparable to aldrin/dieldrin stocks of past years, so that, in any event, the EPA suspension will achieve a total reduction in the use of harmful pesticides.
III. OTHER CHALLENGES
A. Challenge to Findings as Incomplete
Shell and the other petitioners contend that the Administrator’s findings are too incomplete to be adequate for a suspension order. This is not a substantial evidence case, they put it, so much as a challenge to the insufficiency of the
Under § 6(c)(2) of FIFRA, the Administrator has a maximum of seven days
Under these circumstances, we think it sufficient that there is substantial evidence in the record and that the court is able to discern the fair import of the Administrator’s reasoning.
Perhaps a paradigm of petitioners’ extremism and contentiousness is the objection that the Administrative Procedure Act requires findings of the agency “on all the material issues” and that the Administrator’s opinion is not “salvageable” by reference to the discussion of the ALJ.
In our view, it is a matter not for condemnation, as was suggested in argument, but for commendation, that the Administrator’s opinion consumes only 45 pages, whereas the AU wrote 109 pages. It would have been desirable for the Administrator to have said explicitly what is clearly implicit in and indeed suffuses his entire opinion, that he accepts the ALJ’s findings and reasoning except where a difference in commentary is made explicit. But, in the case of a suspension order issued under such time pressure, we cannot stand on ceremony to the extent of vacating the order, or remanding for further findings because this was not recited in so many words.
B. Procedural Challenges
We turn, finally, to the point most ardently pressed by Shell at argument, and adopted by the other petitioners, that the EPA Order is tainted by ex parte communications in that members of the agency’s enforcement staff, who
Suspension and cancellation hearings are separate proceedings in the respect, critical here, that the decisions in the two proceedings are made under different legal standards.
Congress has not accepted the view that the possibilities of unfairness require prohibition of an administrative structure that permits the same agency to issue the notice that begins a proceeding and to make the ultimate determination.
In this case the agency respected the internal separation of functions provided by Congress in its combination of fairness and pragmatism; there is no claim of consultation between the agency’s “prosecutors” and the agency head except on the issue whether to issue a new notice — whether to start a suspension proceeding. There is no allegation of communication between “prosecutor” and agency head regarding the final decision in either the cancellation proceeding or the suspension proceeding.
The Administrator’s indications in the Notice that he is “persuaded that there exists an ‘imminent hazard’ ” and that he finds that “a situation exists in which the manufacture of Aldrin and Dieldrin during the coming months will be ‘likely to result in unreasonable adverse effects’ on man and the environment”
Because the suspension hearing was expedited,
C. Exemption of Existing Stocks
EDF charges that the EPA’s decision to exempt the sale and use of existing stocks of aldrin/dieldrin from the general suspension is arbitrary and capricious. EPA has responded that this decision was based on an assumption that no appreciable and realistically retrievable stocks existed at the time of the order, and that any denial of procedural rights was harmless error. EPA counsel have informed us that EPA was presented in January 1975 with estimates that approximately 5 percent of the total 1974 amount of aldrin granules will be available for use in 1975, and that EPA intends to investigate the matter further, an ongoing re-evaluation that is entirely appropriate.
We affirm the agency’s suspension order of October 1, 1974, except for the exemption of the sale and use of existing stocks. The record is remanded for further consideration of that issue.
So ordered.
. The suspension order covered all pesticide products containing aldrin or dieldrin for which appeals had been filed from EPA’s June 26, 1972, notice of cancellation. Certain minor uses — the dipping of roots or tops of non-food plants, subsurface ground insertions for termite control, and mothproofing by those manufacturing processes that utilize the pesticide in a closed system — were exempted
Registrants had previously agreed to delete label directions concerning aerial applications and use for control of fire ants, and to withdraw dust formulation registrations.
. Aldrin and dieldrin are the common names of two chemical compounds of the chlorinated hydrocarbon family. Aldrin is used in much greater quantities. In 1972, almost twelve million pounds of aldrin were used, while only about 700,000 pounds of dieldrin were used. Joint Appendix in Nos. 74,2113, 74,-2114, 75,1092 (J.A.), at 1311. In the soil, aldrin quickly breaks down into dieldrin. The primary use of aldrin and dieldrin today is in the control of com pests, specifically, the wireworm and the black cutworm. The primary corn pest, the rootworm, is largely resistant.
. The Secretary of Agriculture is represented by his own counsel, since the Department of Justice is representing EPA.
. The relevant section is now § 6(b) of FIFRA, 7 U.S.C. § 136d(b) (Supp. II, 1972).
“ . . . FIFRA requires the Secretary to issue cancellation notices and thereby initiate the administrative process whenever there is a substantial question about the safety of a registered pesticide.” Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 84, 439 F.2d 584, 594 (1971).
. Essentially the same standard is now incorporated in § 6(c) of FIFRA, see 7 U.S.C. § 136d(c) (Supp. II, 1972). The Administrator found that “the substantial question of the safety of these registrations is primarily raised by theoretical data, while review of the evidence from the ambient environment indicates that such potential hazards are not imminent in light of the present registrations.” EPA, “Reasons Underlying the Registration Decisions Concerning Products Containing DDT, 2, 4, 5-T and Aldrin and Dieldrin,” March 18, 1971, J.A. 23.
. Under the terms of the Act applicable at the time, the report of the Advisory Committee was to issue before the commencement of the administrative hearings. § 4(c), 78 Stat. 190 (1964). That provision was amended in 1972 to provide that the hearing examiner could, at his own option or at the request of any party, refer relevant questions of scientific fact to a Committee of the National Academy of Sciences. § 6(d), 7 U.S.C. § 136d(d) (Supp. II, 1972).
. If no request for a hearing is made, the suspension order takes effect and is not reviewable by a court. § 6(c)(2), 7 U.S.C. § 136d(c)(2) (Supp. II, 1972).
. For § 16(b), see 7 U.S.C. § 136n(b) (Supp. II, 1972). In Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). Chief Justice Hughes described “substantial evidence” as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
. Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). See also Environmental Defense Fund, Inc. v. EPA, 160 U.S.App.D.C. 123, 127, 489 F.2d 1247, 1251 (1973). “[A] court may [not] displace the [agency’s] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).
. Testimony on the non-human health effects of aldrin/dieldrin on marine and freshwater aquatic organisms, birds, land mammals, and soil invertebrates was presented at the cancellation proceeding. Administrator’s Opinion (A.O.) at 7 n. 1.
. A.O. 7.
. A.O. 23.
. Environmental Defense Fund, Inc. v. EPA, supra, 150 U.S.App.D.C. at 358, 465 F.2d at 538.
. Public Service Commission v. FPC (Texas Gulf Coast Area Rate Cases), 159 U.S.App. D.C. 172, 196, 487 F.2d 1043, 1067 (1973) (Leventhal, J., dissenting), vacated and remanded, 417 U.S. 964, 94 S.Ct. 3167, 41 L.Ed.2d 1136 (1974).
. E, g,, J.A. 1997-98 (testimony of Dr. Upton); J.A. 916 (testimony of Dr. Heston); J.A. 905 (testimony of Dr. Farber).
. Environmental Defense Fund, Inc. v. Ruckelshaus, supra, 142 U.S.App.D.C. at 86 n. 41, 439 F.2d at 596 n. 41.
. See note 30 infra and accompanying text.
. A.O. 21.
. A.O. 17.
. City of Chicago v. FPC, 128 U.S.App.D.C. 107, 115, 385 F.2d 629, 637 (1967), cert. denied, 390 U.S. 945, 88 S.Ct. 1028, 19 L.Ed.2d 1133 (1968); New Castle County Airport Commn. v. CAB, 125 U.S.App.D.C. 268, 270, 371 F.2d 733, 735 (1966), cert. denied, sub nom. Board of Transportation v. CAB, 387 U.S. 930, 87 S.Ct. 2052, 18 L.Ed.2d 991 (1967); Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 238, 230 F.2d 204, 206, cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956).
. J.A. 675-78. The EPA also points out that the original pathology had reported the appearance of “morphologically benign” tumors, a finding that would be considered more meaningful today, for the once significant distinction between benign and malignant tumors has lost much of its validity. EPA Br. at 75 n.89.
. Bell v. Goddard, 366 F.2d 177, 181 (7th Cir. 1966).
. EPA Ex. 38C, p. 3, cited in Shell R. Br. at 9 n.12.
. EPA Ex. 40, J.A. 448-49 (Dr. Saffiotti); EPA Ex. 42, J.A. 714-21 (Dr. Reuber); EPA Ex. 48, at 3, J.A. 939 (Dr. Firminger); EPA Ex. 52, J.A. 1023 (Dr. Fears); EDF Ex. 33, J.A. 340 — 41 (Dr. Epstein); J.A. 1991 (testimony of Dr. Farber).
. ALJ Recommended Decision, at 56-57.
. A.O. 23.
. Shell Br. at 8. See also Shell Ex. Ill, J.A. 1310.
. A.O. 3; Shell Ex. Ill, J.A. 1310.
. A.O. 3.
. EPA Ex. S — 7, J.A. 1158-64.
. The data show dieldrin residues during these years averaging 0.27 ppm, 0.29 ppm, and 0.24 ppm. EPA Ex. 47 (E>r. Kutz), Tables 1 and 2, J.A. 925-26; EPA Ex. S-15, J.A. 1261.
. E.g., USDA Ex. 33, at 12 (use of basal sprays on bananas); USDA Ex. 11, at 2 (use of foliar sprays on cranberries), cited in EPA Br. at 88 n. 98.
. Compare Shell Br. at 44 — 45.
. E.g., Environmental Defense Fund, Inc. v. EPA, supra, 150 U.S.App.D.C. at 352, 465 F.2d at 532; Environmental Defense Fund, Inc. v. Ruckelshaus, supra, 142 U.S.App.D.C. at 82 n. 22, 439 F.2d at 592 n. 22.
. Environmental Defense Fund, Inc. v. Ruckelshaus, supra, 142 U.S.App.D.C. at 86 n. 41, 439 F.2d at 596 n. 41.
. E. g„ EPA Ex. 71, J.A. 1121-25; EPA Ex. 61, J.A. 1092-93; EPA Ex. 61, J.A. 1097-98.
. Approximately 1.5 million additional pounds of heptachlor/chlordane will be available for corn use in 1975, as compared to 7.6 million pounds of aldrin (assuming 1975 aldrin/dieldrin corn use would be the same as the 1974 use). EPA Br. 105.
. The Administrator in this case took eight days, but his failure to meet the deadline was not protested by the parties.
. A.O. 1.
. Where the record is complex and the time for explication brief, we think it particularly important to note that “judicial review is conducted on the basis of the record as a whole, so that rather conclusory findings can . be redeemed by resort to a detailed factual record.” National Air Carrier Ass’n v. CAB, 141 U.S.App.D.C. 31, 41, 436 F.2d 185, 195 (1970).
. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971).
. Shell R. Br. at 2.
. See Environmental Defense Fund, Inc. v. EPA, supra, 150 U.S.App.D.C. at 357, 465 F.2d at 537; Environmental Defense Fund, Inc. v. Ruckelshaus, supra, 142 U.S.App.D.C. at 81, 439 F.2d at 591.
. This view was proposed by Messrs. McFarland, Stason and Vanderbilt, in their additional views that accompanied the Report of the Attorney General’s Committee on Administrative Procedure. See Administrative Procedure in Government Agencies, Sen. Doc. No. 8, 77th Cong., 1st Sess. 203 (1941).
The only agency for which this view was made a legal requirement is the National Labor Relations Board.
. The Administrative Procedure Act, 5 U.S.C. § 554(d) (1970), only prohibits participation or advice in the “decision, recommended decision, or agency review.”
. Notice of Intention to Suspend, J.A. 76.
. 7 U.S.C. § 136d(c)(1) (Supp. II, 1972). Section 6(c)(1) provides that a “notice [of intent to suspend] shall include findings pertaining to the question of ‘imminent hazard.’ ”
Compare FTC v. Cinderella Career and Finishing Schools, Inc., 131 U.S.App.D.C. 331, 338, 404 F.2d 1308, 1315 (1968), where this court held that the FTC could issue a press release stating that it found “reason to believe” the law had been violated soon after the issuance of a complaint.
. The August 2, 1974, Notice provided for a 15-day hearing, but only 14 of the 15 days were used.
. EPA had called 66 witnesses; EDF, 31; USDA, 12; and the user groups, 15.