Attorneys' Legal Judgments Not Reportable Under FIFRA Adverse Effects Rule, EPA
Says
The Environmental Protection Agency
does not require pesticide makers to report to the agency their
attorneys' professional legal judgments as an opinion or conclusion
under adverse-effects reporting regulations
Subject: Attorneys' Legal Judgments Not Reportable Under FIFRA Adverse Effects Rule, EPA Says---
Date: Thu, 23 Nov 2000 18:14:25 -0500
From: Stephen Tvedten <steve@getipm.com>
Organization: Get Set Inc. (www.getipm.com)
To: Paul Helliker <phelliker@cdpr.ca.gov>
Director, State of
California, Department of Pesticide Regulation
Dear Mr. Helliker,
I thought you might like to read an interesting article entitled:
Attorneys' Legal Judgments Not Reportable Under FIFRA Adverse
Effects Rule, EPA Says - Karen L. Werner - Daily Report for Executives,
25sep00.
The Environmental Protection Agency does not
require pesticide makers to report to the agency their attorneys'
professional legal judgments as an opinion or conclusion under
adverse-effects reporting regulations, the agency said in a Sept. 15
guidance document and Sept. 20 court filing.
"Opinions and conclusions rendered as the
professional legal judgment of an attorney are not relevant to EPA's
assessment of the risks or benefits of a pesticide and are not required
to be reported under part 159," EPA said in the guidance, a
Pesticide Registration notice, which accompanied its court filing.
However, EPA said, "[t]o the extent that the
attorney engages in activities that do not necessarily call for the
professional legal judgment of an attorney, the attorney's opinions and
conclusions may become reportable under part 159."
The guidance was filed as part of a case that
centers on the interpretation of a portion of EPA's adverse-effects
reporting regulations. These regulations generally require pesticide
registrants to report "additional factual information regarding
unreasonable adverse effects on the environment" to EPA that are
associated with pesticides, including studies or incidents, learned of
after the products are registered by EPA.
The guidance document was filed with the U.S.
District Court for the District of Columbia as part of a pending lawsuit
(American Crop Protection Association v. EPA, D.D.C., No.
1:00CV00811(JR), 9/20/00).
It is in the form of Pesticide Registration Notice
2000-8, on reportability of attorneys' opinions and conclusions under 40
C.F.R. Part 159 and FIFRA Section 6(a)(2).
Suit Challenges Rule
The American Crop Protection Association, the
Chemical Manufacturers Association, and the American Corporate Counsel
Association filed the suit in May, asking the court to declare part of
the EPA adverse-effects reporting regulation invalid. The challenged
regulation is 40 C.F.R. Section 159.158(a), part of rules designed to
implement Section 6(a)(2) of the Federal Insecticide, Fungicide, and
Rodenticide Act.
That regulation, the groups said, requires
companies to disclose "opinion information" about pesticide
adverse effects, and threatens information that is protected by the
attorney-client privilege.
The groups alleged the regulation exceeds the
statutory authority granted to EPA, and it requires that
"opinions" be reported if they are relevant to the agency's
evaluation of the risks and benefits of a pesticide.
However, in a cross-motion for summary judgment,
EPA said its rule does not infringe on attorney-client privilege or on
the attorney work-product doctrine.
The agency said in a supporting memorandum that the
rule does not require registrants to report communications with their
attorneys. Otherwise reportable, underlying facts provided to an
attorney are not protected by the attorney-client privilege, however,
EPA said. Communications, not opinions, of experts and attorneys are
protected by the privilege, the agency said.
Privileged Information
FIFRA Section 6(a)(2) gives the agency the
authority to require reporting of privileged information, but the
regulation that implements that section does not use that full
authority, the agency said.
In their case, the industry groups have overstated
the reach of the 6(a)(2) rule, and its possible impact on
attorney-client privilege and the work-product doctrine, EPA said.
"When both the Rule and the privileges are properly understood, it
is clear that no privileged material is required to be reported,"
EPA added.
EPA needs information under 6(a)(2) to protect
human health and the environment from unsafe pesticides, and expert
opinion information is "integral" to the agency's ability to
carry out its statutory mandate, the agency said in its memorandum
supporting its cross-motion. It is hard to separate fact from opinion,
particularly in scientific matters, the agency said.
EPA cannot rewrite FIFRA to suit its
"perceived regulatory needs," the industry groups said.
Oral arguments are scheduled for Oct. 26 on the
summary judgment motions, Seth Goldberg, of Steptoe & Johnson, an
attorney for the industry groups, told BNA Sept. 21.
Facts Versus Opinion
The 1997 final rule implementing 6(a)(2)
requirements requires that registrants report opinion information, the
industry groups said in a memorandum supporting their summary judgment
motion.
In its interpretation of 6(a)(2), the industry
groups said EPA has too broadly interpreted the law, and ignored that it
is "factual" information that must be reported under FIFRA
6(a)(2). The agency does not have statutory authority to require
submission of opinion information under FIFRA 6(a)(2), the groups added.
Congress did not limit reporting under 6(a)(2) to
"facts," EPA said, but to "factual information,"
which can include certain opinions. Expert opinions are important to
EPA's duties in registering and regulating pesticides, the agency added.
Also, receipt of a communication of an opinion on an unreasonable
adverse effect is a fact, EPA added.
Section 6(a)(2) should be narrowly construed to
protect common law privileges, such as attorney-client privilege and the
work-product doctrine, the industry groups said. Under the agency's
rule, privileged information must be submitted, they added, such as
opinions rendered by companies' non-testifying experts or attorneys in
the defense of product liability cases.
The privileged information submitted under the rule
will be available to the public, including adverse parties in
litigation, the industry groups said. As a result of disclosure to EPA,
adverse parties could argue that registrants have waived a privilege
that would have protected the information from disclosure in court, the
groups said.
However, EPA said expert opinions used in defense
of registrants' product liability cases are only reportable to EPA under
certain conditions. They must be reported if they are not just
reconfirmation of information or opinions already reported, if they are
a conclusion of an adverse effect of a product, or if they are within
other categories of information reportable under 40 C.F.R. 159.165.
The industry groups said the rule requires
information protected by the attorney-client privilege and work-product
doctrine to be reported, including opinions "relevant to the
assessment of risks and benefits" of a pesticide if they are given
by a person retained of employed by a registrant, from whom the
registrant sought an opinion, and who is an expert. This includes
attorneys and experts, they added.
Blanket Privilege Exception Unworkable
In its memorandum, EPA said there should be no
"blanket privilege exception" from adverse-effects reporting
requirements, EPA added, because registrants are strongly motivated to
find reasons not to disclose adverse effects information about products.
Also, EPA said, both the attorney-client privilege
and work-product doctrine must be narrowly construed. The only opinions
protected by the work-product doctrine would be attorneys' legal
opinions prepared in anticipation of litigation, EPA said.
The work-product doctrine is intended to protect
the work of an attorney--or documents prepared by the attorney or
someone working on his or her behalf, in anticipation of
litigation--that could disclose the attorney's mental impressions,
conclusions, opinions, or legal theories, EPA said. Expert reports are
not protected under the work-product doctrine, EPA said.
Even when the work-product doctrine applies, EPA
meets the standard for compelling disclosure of information, because
there is a "substantial need" for the information, and it is
an "undue hardship" on EPA if it is required to get the
information from other sources, the EPA memo said.
Statutory Obligation
EPA has a statutory obligation under FIFRA to
protect health and the environment from unreasonable adverse effects
associated with pesticide use, the memo said. The agency cannot
independently follow up on "incomplete information" provided
on about 20,000 registered pesticides, EPA said. EPA receives about
8,500 studies on pesticides per year, the agency said.
The burden is instead on pesticide registrants
to show that benefits of a pesticide outweigh its risks, the agency
said. (If there were really risk/benenfit analysis
there would be no "registered" POISONS.)
Congress declared that information about adverse
effects must be available to the public in Section 10(d)(1) of FIFRA,
EPA added.
Waiver Process Already Provided
EPA has provided a process for consideration of
case-by-case requests for a waiver of 6(a)(2) reporting requirements,
the agency said in its memo.
No registrant has approached EPA asking for a
waiver of reporting requirements, and the agency has not learned of any
problems with litigation since the rule was finalized in September 1997,
EPA said.
According to the industry groups, however, EPA has
said it would be unlikely to grant an exemption unless it knows some
detail about what information is covered by the request. Revealing the
information would mean registrants could waive their privilege in trying
to obtain the EPA exemption, the groups added.
However, EPA said the nature of information can be
described without providing the substance.
Ultimately, the industry groups said, attorneys
would be hampered in preparing cases for litigation because of fear the
information could be used against them by opposing parties, because of
the EPA rule.
EPA said that if the court invalidates the
regulation, the agency will be inundated with information that obscures
the information that deserves "prompt attention."
Well Mr. Helliker, it seems to me only the
guilty worry about the truth coming out - what do you think? Don't you believe the public has the right to know?
Will your "registered" POISONS be any
"safer", if we do not know what is KILLING us?
Respectfully,
Stephen L. Tvedten
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