1 15 4 https://www.nal.usda.gov/exhibits/speccoll/files/original/3ae6cdcee69db80c0dd96687b09e2d3f.pdf e53e4059870de49c746bf0bd1102ab3a PDF Text Text Item D Number °5193 Author Wessel, Milton R. Corporate Author United States of America, Environmental Protection Age RBpOrt/APtiClB TitlO Dow Moti D Ntf Scanned °n for Prehearing Conference Journal/Book Title Year 1973 Month/Day Septembers Color DBSCriDtOn NOtBS D ' n r e : 2,4,5-TrichlorophenoxyaceticAcid; I. F. & R Docket Nos. 42, 44, 45, and 48 and I. F. & R. Docket No. 295; Also included in this item are an affidavit by Milton R, Wessel, and a certificate of service. Friday, March 01, 2002 Page 5193 of 5263 �UNITED STATES OF AMERICA: ENVIRONMENTAL PROTpiefriON;, BEFORE THE ADMINISTRATOR AND THE CHIEF ADMINISTRATIVE LAW JUDGE In re: 2,4,5-Trichlorophenoxyacetic ) I.F. & R. Docket Nos. Acid . ) 42, 44, 45 and 48 and I.F. & R. Docket No. 295 DOW MOTION FOR PREHEARING CONFERENCE Registrant The Dow Chemical Company ("Dow") hereby moves the Administrator in I.F. & R. Docket No. 295, and the Chief Administrative Law Judge in I.F. & R. Docket Nos. 42, 44, 45 and 48, pursuant to the provisions of Title 40, Code of Federal Regulations, § 164.60, for Orders scheduling the prehearing conferences provided for in Title 40, Code of Federal Regulations, § 164.50, as soon as possible, to consider the following matters: 1. Identification and alignment of parties. 2. The disposition of the additional issues presented in Docket No. 295 > which matters are not at issue in Docket Nos. 42, 44, 45 and 48. 3. Consolidation. 4. The disposition of the motions and applications served June 26, 1972. 5. Trial dates. 6. Preliminary consideration of prospective witnesses, memoranda and issues. �and for such other and further relief as the Administrator and the Chief Administrative Law Judge may deem just and proper. The grounds for this motion are set forth in Paragraphs 5 through 12 of Dow's Response to the Statement of Issues in I.P. & R. Docket No. 295, served August 21, 1973, in all Dockets, and in the annexed affidavit of Milton R. Wessel, sworn to September 12, 1973PLEASE TAKE NOTICE that in accordance with the provisions of Title 40, Code of Federal Regulations, § l64.6o(b) you are required to serve and file an answer to this motion within ten days after service thereof, or within such other time as may be fixed by- the Administrator, his designee or the Chief Administrative Law Judge. Dated: New York, New York September 12, 1973 Yours, etc. KAYE, SCHO.LER, PIERMAN, HAYS & HANDLER Hearing Attorneys for The Dow Chemical Company Milton R. -Wessel, A Member of the Firm 425 Park Avenue New York, New York To: All parties as per attached Certificate of Service 10022 �UNITED STATES OF AMERICA: ENVIRONMENTAL PROTECTION AGENCY BEFORE THE ADMINISTRATOR AND THE CHIEF ADMINISTRATIVE LAW JUDGE In re: 2,4,5-Trichlorophenoxyacetic ) I.P. & R. Docket Nos. Acid ) 42, 44, 45 and 48 and I.P. & R. Docket No. 295 STATE OF NEW YORK ) : COUNTY OF NEW YORK ) ss. : AFFIDAVIT MILTON R. WESSEL, being duly sworn, deposes and says: 1. I am a member of Kayes Scholer, Fierman, Hays & Handler, Hearing Attorneys for Registrant, The Dow Chemical Company ("Dow"), and am fully familiar with all the facts and prior proceedings herein. This affidavit is submitted in support of Dow's motion for the early convening of prehearing conferences in the above Dockets. . 2, Paragraph 12 of Dow's Response to the Statement of Issues in Docket No. 295, served August 21, 1973 in all Dockets, requests the calling of early prehearing conferences. Dow's reasons therefor are set forth in Paragraphs 5 through 11, Undoubtedly the press of other matters has precluded action on this request. Some of such other matters may indeed be more �urgent than these cases in terms of the need for prompt remedial action. Nevertheless even a few hours devoted to an early prehearing conference in these matters would be of major importance in permitting the parties to prepare for a Spring hearing. 3. It may be helpful if some of the practical problems of preparation are outlined. The pleadings and other documents indicate that this case involves many issues and hundreds of potential witnesses located all over the world. Many of these persons are not in the employ of any party. Travel time and expense can be minimized if potential witnesses in the same area are interviewed at the same time. Yet until the nature of the issues is known, one cannot even anticipate who all the witnesses will be. Guidance is also needed as to the scope and form of any preliminary written witness statements which might be .required. 4. are. Indeed, we do not even know who all the parties The Environmental Defense Fund and Harrison Welford, et al., had been major anticipated adversaries', for example, but to this point they have filed neither responses to the State- . ment of Issues, nor motions to intervene in Docket No. 295Preparation and hearing will clearly be completely different if they are'not involved, or appear only in the earlier and previously consolidated Dockets (in which a motion to Intervene was made and denied, subject to renewal), or in all of the Dockets. �5. A number of organizations have filed responses seeking to become parties or to submit evidence. It is desirable that there be a division of effort among parties aligned on the same side of the issues. The same potential witnesses should not be seen two, three and four times. It would be valuable simply to have the interests and roles of the other parties identified at a prehearing conference. Yet in the absenc.e of such a conference it cannot even be known which of these applicants will ultimately be parties. And although the Hearing Clerk has been most cooperative, her facilities are not adequate to permit her to continue the present burden of making and distributing copies of documents and answering queries, on any long-term basis. 6. With the limited possible exceptions nouo-u I:* our Response to the Statement of Issues in Docket No. 295, we believe that it is entirely possible for this case to be ready for a fair hearing by next Spring. of work must be done before that time. But a great deal Much of it cannot really begin until the procedural outlines of the case have been clarified. Milton R. Wessel Sworn to before m e - t h i s 12th/ay of Septembe/ 1973. c •) x/ / Y -}/ /A -, ' - "^ , A r ^ c ( x-"-, 3 i / ./Notary• P n h l - i p . Public ™™"™™*^ . Ju aWled /Commission in N'»v ' > vwitiud . March 30i �CERTIFICATE OF SERVICE I hereby certify that a copy of the attached Motion and Supporting Affidavit of Registrant The Dow Chemical Company was served today by postage prepaid mail, upon the persons whose names and addresses are listed below: Betty J. Billings (original and two copies) Hearing Clerk Environmental Protection Agency Room E-1019 East Tower, Waterside Mall 401 M Street, S.W. Washington, D.C. 20460 Administrator, Environmental Protection Agency Washington, D.C. 20460 David D. Dominick. Assistant Administrator for Hazardous Materials Control Environmental Protection Agency Washington, D.C. 20460 Anson M. Keller, Esq. Office of the General Counsel Environmental Protection Agency Room 519 West Tower, Waterside Mall 4th and M Streets Washington, D.C. 20460 Raymond W. Fullerton, Esq. U.S. Department of Agriculture Room 2042,. South Agriculture Bldg. 12th & Independence Sts., S.W. Washington, D.C. 20250 J. Thomas Tidd, Esq., General Counsel U.S. Department of Transportation 400 7th Street, S.W. Washington, D.C. 20590 �C. E. Lombard!, Jr., Esq. * Blackwell Sanders Matheny Weary & Lombardl Five Crown Center 2^80 Pershing Road Kansas City, Missouri 64108 Attorneys for Thompson-Hayward • Chemical Company •Lindley S. DeAtley Thompson-Hayward Chemical Company P.O. Box 2383 Kansas City, Kansas 66110 Mr. R. J. Otten, Program Coordinator Amchem Products, Inc. Ambler, Pennsylvania 19002 J. 'Robert Hasness, Director of Technical Service Transvaal, Inc. P.O.. Box 69 Jacksonville, Arkansas 72076 Robert S. Bassman National Forest Products Association 1619 Massachusetts Avenue, N.W. Washington, B.C. Harry J. Breithaupt, Jr., Esq. General Counsel Association of American Railroads American Railroads Building Washington, D.C. 20036 C. W. McMillan, Executive Vice President American National Cattlemen's Association 1015 National Press Bldg. Washington, D. C. 20004 John A..Matthews, Chairman Brush Control and Range Improvement Ass'n P.O. Box 176 Abilene, Texas 79604 Don Ahrenholtz, Mgr. Colorado Farm Bureau 2211 West 27th Avenue Denver, Colorado 80217 �Acord Cantwell, Director Department of Natural Resources, Inc. Indiana Farm Bureau, Inc. 50 East Washington Street Indianapolis, Indiana 4620^1 J. J. Dwyer Engineer Environmental Control The C & 0'Railway Co. The B & 0. Railway Co. •P.O. Box 907 Huntington, West Virginia 25712 M. Chessin, Professor Department of Botany University of Montana Missoula, Montana 59801 The following, c/o Hearing Clerk Environmental Protection Agency Washington, D.C. 20460: Indiana Farm Bureau Cooperative Indiana Plant Food & Agricultural Chemical Association Mountain Lake Right-of-Way Council Ohio Farm Bureau Federation Texas Southwestern Cattle Raisers Association Dated: September 12, 1973 Milton R . V/essel � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 176 Folder The folder containing the original item. 5193 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Creator An entity primarily responsible for making the resource Wessel, Milton R. Description An account of the resource <strong>Corporate Author: </strong>United States of America, Environmental Protection Agency (EPA) Date A point or period of time associated with an event in the lifecycle of the resource September 12 1973 Title A name given to the resource Dow Motion for Prehearing Conference ao_seriesVIII https://www.nal.usda.gov/exhibits/speccoll/files/original/eb8d6d23df19a3f64410a3ac186da436.pdf 2899fc44ea5f494246acaa31547cc150 PDF Text Text item D Number °5197 Author Wessel, Milton R. CorDOratB Author United States of America, Environmental Protection Age D Not Scanned Roport/Artlclo TitlO ^ow Modification of Requests and Response to Motion to Consolidate Journal/Book Title Year 1973 Month/Day October 9 Color D Number of Images ° DBiiCriptOll NotOS 'n re: ^ne '-)ow Chemical Company, et al., ("2,4,5-T") Registrants; I. F. & R Docket No. 295 and I. F. & R. Docket Nos. 42, 44, 45, and 48. Friday, March 01, 2002 Page 5197 of 5263 �ENVIRONMENTAL PROTECTION AGENCY BEFORE THE CHIEF ADMINISTRATIVE LAW JUDGE -x In re I.P. & R. Dockets No. The Dow Chemical Company, et al., ("2,4,5-T") Registrants. 42, 44, 45 and 48 and I.P. & R. Docket No. 295 DOW MODIFICATION OF REQUESTS and RESPONSE TO MOTION TO CONSOLIDATE This submission is furnished by Registrant' The Dow Chemical Company ("Dow") in response to the Chief Administrative Law Judge's Order to File dated and filed Monday, October 1» 1973, received by certified mail Friday, October 5. It is also submitted in response to Respondent Office of Hazardous Materials Controls' Motion to Consolidate served by mail October 2, 1973. The following responses are keyed to the specific requests set forth at pages 11 - 13 of Dow's Preliminary hearing Memorandum dated June 26, 1972: Pre- �I. A. Withdrawn. B. Withdrawn. C. Not withdrawn. D. Withdrawn, subject to renewal of the application for Advisory Committee testimony in another form if agreement is not possible. E. II. A-C. Withdrawn. Modified (See below and Attachment 1). Dow is hopeful that a fair and full informal exchange of information can be agreed upon by the parties, so that the need for formal discovery can be avoided. Some preliminary such exchanges have already taken place. Dow requests that these applications be placed in suspense until the parties have met on October 19 as presently contemplated (see Attachment 1, p. 9), and a prehearing conference is conducted before the Chief Administrative Law Judge. Discussion Many developments following amendment of FIPRA, as most recently confirmed in Respondent's Motion and Response dated October 2, 1973 indicate that Respondent and Registrant Dow are now in general agreement with respect to the procedures �they consider applicable to this litigation. The only important procedural question remaining is with regard to the treatment to be accorded certain new possible scientific issues which may have been introduced in Docket No. 295- These relate to carclnogenicity, muta- genicity, sub-lethal and low level effects and the like. (Dow Motion For Prehearing Conference, Item 2, See, also, Dow Response to Statement of Issues, Paragraphs 8-11, Attachment 1, Item 4). Respondent's objection to consideration of this item is that it is considered "unclear and ambiguous" (Response, Item 6). Respondent has also stated (Response, Item l(a)), however, that the issues in both Dockets "are identical in substance." If Respondent is correct in this latter comment, even this procedural question is absent, and the Dockets may be consolidated and the case proceed to trial in April without the need for further Advisory Committee consideration, further data collection and experiment or other impediment. However, Dow does believe it would be useful to explore this issue at prehearing conference to be sure there is no misunderstanding. As indicated in Dow's Preliminary Prehearing Memorandum dated June 26, 1972, Dow's earlier applications to the Administrator, the courts and the Administrative �Law Judge, were made in order to help develop an atmosphere in which the Administrator could decide highly charged and emotional issues such as are involved in this case, in a reasoned atmosphere and without becoming subjected to unbalanced pressures. Even more important than the Eighth Circuit's decision and the amended rules of practice in this connection is the amended FIFRA. The new statute for the first time spells out the Administrator's power to conduct a formal inquiry (§ 6(b)(2)). The parties them- selves have the right to litigate as adversaries if they so choose, but the Agency is no longer required to take an antagonistic position. This.we beleive to be the best way in which to make possible a full, fair and free exploration of all the issues in traditional common law reliance upon the antagonists themselves producing the evidence, with the Agency participating essentially as impartial arbiter. Technically, of course, the earlier consolidated Docket is a cancellation proceeding under the old statute, . with Respondent aligned against Registrants. This is in contrast to the new Docket No. 295, which is a § 6(b)(2) inquiry. However, we hope that the distinction is more conceptual than real, and we believe that Respondent's Motion to Consolidate reflects its agreement. If this is �so, it should be possible to conduct a fully consolidated hearing without regard to such legal niceties as which PIPRA provision applies to which step in the procedure, what may be the effect of mid-stream changes in rules of practice on pre-existing motions and applications, the anomalous role of Environmental Defense Fund, Inc. ("EDF") as a possible party in the § 6(b)(2) inquiry but without standing in the cancellation proceeding, and the like. In short, we believe that all those involved in all these proceedings now share the common purpose that a hearing on all issues ready for trial should begin in April, with those parties opposing and those advocating 2,4,5-T aligned against each other and with Respondent coming forward with the evidence indicating the areas of concern which occasioned the inquiry but not taking adversary positions on the merits, nor otherwise participating except as it considers such participation necessary to a full and complete explication of the issues. As Attachment 1* indicates, the parties have ^Attachment 1 is a revised draft of a memorandum of the first informal meeting of the parties in preparation for an April hearing. As indicated at page 9 of the draft, the parties were to furnish comments with regard to the form of the original draft. Minor revisions of the first draft are included in Attachment 1, but some may not yet have been received. However, the memorandum does reflect the discussion at the meeting and is accurate for the purpose of this submission. �already begun informally to prepare for an April hearing in accordance with the procedures outlined above. Un- fortunately, the key anticipated 2,4,5-T opponents, the EDF* group, have not yet responded to the Statement of Issues or moved to intervene. However, on September 27, 1973 > Dow was informed by counsel for EDP that this was because of administrative oversight (see Attachment 2) and that EDP will indeed seek to participate actively as a party in the hearing.** EDP is being invited to the second informal prehearing conference of the parties, now tentatively scheduled for October 3.9 in Washington, D.C. We are hopeful that the parties will all agree on early exchanges of scientific data and experiment, risk/benefit analyses, monitoring studies,*** 2,4,5-T * It is assumed .that Harrison Wellford, Mrs. Lorraine Huber and others will appear jointly with EDP. That was the case before the Court of Appeals for the Eighth Circuit. ** Although Dow has been unable to locate a copy, it appears that substantially this same group of opponents (including Wellford and Huber but not EDF), has "previously requested that they be made parties to any hearings conducted in regard to 2,4,5-T" (see Order of Chief Hearing Examiner Denying Leave to Intervene in Dockets No. 42, 44, 45 and 48, filed June 9, 1972). ***E.G., the current "environmental and human monitoring project" which led the Assistant Administrator to request delay of hearing until April (See Notice of Intent, July 19, 1973). �evaluations and the like, to be followed by witness lists and testimony summaries. Formal requests to admit and related interrogatories should then be unnecessary and will be withdrawn, because EDP's position has already been well stated and Respondent will not be taking a position. All that would be required by way of formal prehearing procedures before the Chief Administrative Law Judge would be consideration of the joint recommendations of the parties and, possibly, resolution of the questions referred to above relating to any new and additional issues in Docket No. 295 which might require additional data collection and experiment and/or Advisory Committee evaluation. Even the interests of third par- ties who have filed responses in inadequate form or untimely can be safeguarded in fashion which should be satisfactory to them, because surely one of the primary parties will be agreeable and even anxious to offer the testimony and evidence of any responsible person, Conclusion Dow respectfully asks that its June 26, 1972 requests be modified as indicated herein, that a Prehearing Conference be convened by the Chief Administrative Law Judge in Docket No. 295 as well as in the earlier consolidated Dockets and that the two conferences be held �jointly on or before November 16, 1973Dow also requests that this submission and Paragraphs 5-12 of its Response to the Statement of Issues dated August 21, 1973, be considered its response •fto Motion to Consolidate. Dated: New York, New York, October 9, 1973Respectfully submitted, KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, Milton R. Wessel and Miriam C. Peigelson, Milton R. Wessel, • A Member of the Firm. Hearing Attorneys for The Dow Chemical Company, Registrant. and James N. O'Connor and Michael J. Traynor, Of Counsel. 425 Park Avenue, New York, New York 10022 8 �In re: 2.4,5-T The following organizations (or members or divisions thereof)which had filed formal Responses to the Environmental Protection Agency's Statement of Intent} conferred in Room 3056-S, United States Department of Agriculture on Tuesday, September 25, 1973, from a.m. until 1:00 9:00 p.m.: United States Department of Agriculture United States Department of Transportation Federal Railroad Administration Association of American Railroads Chessie System (Chesepeake & Ohio Railway and Baltimore & Ohio Railroad) Southern Railroad National Forestry Products Association Weyerhaeuser Company The Dow Chemical Company .The parties reviewed the background of the present inquiry, and agreed that it was of major importance to resolve the long pending issues promptly, and that everything should be done to meet the proposed April, 1974 date for hearing. The matter of preparing the issues for hearing was reviewed in some depth. It was agreed that overall .* there would undoubtedly be well in excess of one hundred witnesses, and that the Hearing might last a substantial period of time. Preparation by way of interviewing Attachment 1 potential �witnesses , conducting surveys and completing factual •analysis must begin p r o m p t l y . There was discussion of the difficult administrative problems being faced by the Environmental Protection Agency, and a conclusion reached that it was unlikely that a formal ore-hearing conference would be called by an Administrative Lav; Judge for some period of time. The parties agreed that if everyone proceeded in good faith, there was no reason why the failure to hold a formal pre-hearing conference need stand in the way of moving forward with preparation. None of the parties con- sidered itself either an advocate or an opponent of 2,4,5-T as such; .Dow itself as Registrant stated that it would be a 2,4,5-T proponent in the hearing only because all of its investigations confirmed that the benefits of 2,4,5-T. use far outweighed the risks and that were any adverse evidence adduced it would be the first to withdraw the product from the market. Rather it was both the view of each individual party and the consensus of all that the purpose of their participation was to insure that a complete record be developed and all relevant facts and considerations explored in sufficient depth to permit a reasoned and proper judgment. For this reason, it was desirable that all other anticipated parties be invited to a further meeting, to which hopefully a representative of the Environmental **v. .* Protection Agency's Office of General Counsel wo.uld also *.H come, at which further procedural steps might be taken. The parties present agreed upon the following course o£ preparation and action, until a formal pre-hcaring �conference was held and pre-hearing order entered: 1. Parties. For the purposes of preparation, it would be assumed that each of the parties furnishing Mr. Fullerton a statement of its intention to be a party (rather than just a witness) in the Hearing,- would be a party for purposes of preparation. Accordingly, notices of all formal motions, applications and the like would be served on all such parties. 2. Consolidation. It would be assumed that the rice and other use proceedings would be joined for purposes of a single hearing. 3. Hearing Date, It would be assumed that the Hearing would commence April 1, 1974, and that each party would prepare with that date in mind, A. jssues. It would be assumed that the issues in the consolidated Hearing would include all of the issues in the rice proceeding, as more specifically set forth in the Administrator's Orders of August 6 and November 4, 1971, and April 13, 1972, and all other uses of 2,4,5-T, such as �forestry, rights of way and rangelancl. However, as to scientific issues, only Items VA-1 and 2 (tcratogenicity and other adverse reproductive effects) would be assumed to be issues; Items VA-3-6 (mutagenicity, carcinogenicity, sub-lethal effects and delayed lethality) would not be assumed to be issues in the absence of some further indication of the evidentiary basis upon which these additional matters were based. It was pointed out that if there were any evidence in support of these latter new issues posed in Docket No. 295, it might involve a very different type of preparation, perhaps including quite long-term scientific studies, additional Advisory Committee consideration and the like, all of which might prejudice the desired April Hearing date. 5. Witness Statements. It would be assumed that summaries of the testimony of each witness would be submitted to an Adminis- trative Law Judge at some time in advance of the witness' actual testimony. It was assumed that the form of each such statement, preparation of which would begin promptly as witnesses are interviewed, would consist of a brief summary, of the witness' background, qualifications and *» conclusions, in sufficient detail to avoid surprise and permit preparation of cross-examination, but not at �such length or detail as to duplicate the witness' subsequent oral direct testimony. 6• Witness Testimony. Because witnesses have already begun to inquire with respect to date, place and other circumstances, it was assumed that in general the following procedure would apply: a. The Agency would proceed first with any evidence it desires to adduce, to be followed by any parties offering evidence to sustain respondent's burden of coming forward with evidence in opposition to continued use of 2,4,'5-T. They would be followed by Registrants, U.S. Department of Agriculture, U.S. Department of Transportation and. other federal agencies and other parties offering evidence in connection with specific uses and benefits. b. The Administrative Law Judge might be requested to permit limited exceptions to the above progress by order of parties, where a specific subject matter was being considered which cut across party lines (e.g., toxicology), or where hearings were being held in the field and it would convenience the Administrative Law Judge, the parties and the witnesses to take a number of witnesses at the same time, even though being advanced by different parties. c. It was also assumed that witness testimony would in general be taken in Washington, B.C. where the witness lived within a reasonable distance, and elsewhere in the United States where a number of witnesses might be brought together for convenience of all concerned. �7. Pa r t y Pa r t i c1pat ion. It was assumed that there would be several levels of participation. Some parties, such as USDA and Dow would undoubtedly participate fully, with hearing counsel present throughout the Hearing, examination and cross-examination on all issues except where redundant, submission of memoranda, motions, proposed findings of fact and the like. Other parties might participate only with respect to specific subject matters if they so chose, such as forestry or railroad uses, and would probably be permitted to participate if 'they wished without the need to retain outside hearing counsel. 8. Administrative Supervision. It appeared that there would be a substantial number of problems and administrative areas of concern. For the convenience of everyone, it was agreed that Raymond W. Fullerton, U.S. Department of Agriculture, Office of General Counsel, Room 2042, South Agriculture Building, 12th and Independence Streets, S.W. Washington, D.C. 20250 (tel. 202-447-6324) would be coordinating attorney. Without giving up any of its own individual rights and interests, each party would make an effort to coordinate matters through Mr. Fullerton's office. For example, experience teaches that in major litigations of �this kind, initially an effort is made to meet the convenience of all attorneys and parties in terms of calendar appointments and the like, following which it is quickly discovered that this is impossible,from which point forward no one's individual convenience can be served. Accordingly, each participant is requested to furnish Mr. Fullerton a calendar of important other commitments from October 1, 1973 to March 31, 1974, with Mr. Fullerton being authorized to communicate significant calendar problems to the Hearing Clerk or the Agency _as appropriate when new schedules are to be fixed. 9. Other Parties. It was noted that the only party which had sub- mitted a timely response opposing further use of 2,4,5-T was Professor Chessin of the Department of Botany, University of Montana. In the past, Harrison Welford, et al., Dr. Samuel Epstein and Environmental Defense Fund have indicated opposition to continued use of 2,4,5-T. An inquiry directed to Professor Chessin with regard to his participation had not yet been answered, and no one was in a position to be certain that the other previous opponents would not make a motion to intervene at some later point. It was concluded that the nature of the Hearing would be quite different if there were no substantial opponents to 2,4,5-T �In uses other than rice, and that if there were such opponents, they should be invited and encouraged to participate in these informal pre-hearing proceedings. Accordingly, it was agreed that a copy of this memorandum should be furnished to Harrison Welford, Dr. Epstein and Environmental Defense Fund (in addition to the Agency's Office of General Counsel ),with a request for advice as to whether or not such organizations or individuals wished to participate, and with an invitation to attend the next meeting of all parties. 10. Subject Matter Allocation. The matter of allocating subject matters for preparation was considered only briefly, with the following tentative outline appearing: Dow Manufacturing Toxicology and Teratology Use on rice Electric and gas pipeline utilities All other issues not specifically undertaken by another party USDA Toxicology and Teratology (USDA/Dow presentations will not be duplicative of each other) Rangeland uses, to extent not taken by other parties The need for a Rule of Reason DOT Highway and other road,canal and similar rights of way National Forestry Products Association (Weyerhaeuser) Forestry uses 8 �American Association of Railroads (Federal Railway A d m i n i s t r a t i o n , C&O, B&O and Southern Railroad) Railroad rights of way 11. Timetable: The following preparation timetable was adopted October 8, 1973 Each party to advise Mr. Fullerton whether or not he intends to participate as a party. Participating parties to furnish comments with regard to form of this memorandum before circulating to those not present. October 17, 1973 Each participating party to furnish tentative list of all witnesses it proposes to adduce,' and witnesses it anticipates will oppose such testimony. October 19, 1973 Second informal pre-hearing conference among all those who have indicated an interest in participating as parties, including Environmental Protection Agency, Office of General Counsel. December 31, 1973 All affirmative witnesses should have been interviewed by this time. February 6, 1974 Written statements in the summary form described above should be completed by this time. Wessel ;por t e T T p r o L ^ e m , �KAYE, SCHOLER, FIERMAN, HAYS & HANDLER -425 PARK AVENUE NEW Y O R K , N.Y. 1OO22 PLAZA 9 - 0 4 O O CK R LlVlNGOt STANLEY O WAXOEHG MILTON K U N C N NATHANIEL H JACKSON JOStPM G CONNOl I.V JAY O KM AM EH STANLEY 0 HOUIN5ON FRFD A F R F U N D STUART M A ^ K S SAbL E-ijfF K P O N O V C T SAUL 2. COHEN MILTON R W E S S E L D W NIMKlN W I L L I A M J. ISAACSON SMCLDON O L i E N S l S F R E D N. FIOHMAN FfiTDESiCK H. flULLEN GERALD FELLER ARNOLD I GOLCOCRG NORMAN SINHICH DONEN GLEiCK JOSHUA F. GREENBERG MH.TON j SCMUF.IIN p f i f . f i M f i s H nr. i N I Awk i K C E N E W M A N PC T l H H WML SLYMOurt G O i n f . T C I W DAVID GOLDOE HO M C L V I N MlCHAfU.SON DONALD J CUKttlt: UC rtlftAM A A-H7AMS JULIUS 0EftMAN MICMAFL M A L I N A JOEL u 7weioe.L MAHTIN S SAIMAN JOHN T. DUNNE JOHN A FRIEDMAN SIDNEY K W E S T E L STAfJLEY ROSENBERG JAY G £.TRUM A I L C N KCZOEtOM CE FiALO SODEL RONALD L UNGCR E L I 2 A 8 E T H HEAD MEN R f K UMAN S. L.WARHAFTIG September 27, 1973 JACOH S C H O L C F t JAML& f> MAI'S RICHAi'lU C r t t G C " S I D N t Y A DIAr*ONO COUN6tL EUROF^HAN OFFICE: 3.VILLA cMaE-ricnotBi* B 2 & 3 3 N C U I L L Y (PARIS), T H A ' . PAUL COR I AT JOSTPH DELATTRE 'EufJOI'tAN COUNSCL, TEL C37. 95. GO CAOLC A D D O C S S f S KAYEMACLCR N E W Y O - " K A Y E M A C L E R N EUIULY / S t > N E T C U C X NUMBERS NEW YORK C O M L S T I C ii-55i N E W Y O K ' K INT'L H3Ait3C PARIS'. LEFF.OVRf: e2»7.r John Dienelt, Esq. Environmental Defense Fund 1525 - 18th Street,.N.W. Washington, D.C. 20036 In Re: 2,4,5-T Docket No.' 295 Dear Mr. Dienelt: This will confirm ray telephone advice to you this morning that Dow will not object to EDF's petition ' to intervene as untimely, in light of the mason stated. If we do object to EDF's motion to intervene in Docket 295, it will be on substantive grounds such as were the subject of the Chief Administrative Law Judge's denial of leave to intervene in the earlier Consolidated Dockets Nos. 42, 44, 45 and 48. Enclosed is a copy of the memorandum of the meeting of certain parties which had filed timely formal responses as discussed. I look forward to working with you. Sincerely, Milton R. Wessel MRW:skl Enclosure Attachment 2 �CERTIFICATE OF SERVICE I hereby certify that a copy of the attached Modification and Response dated October 9, 1973, of Registrant The Dow Chemical Company was served today by postage prepaid mail, upon the persons whose names and addresses are listed below: Betty J. Billings (original and two copies) Hearing Clerk Environmental Protection Agency Room E-1019 East Tower, Waterside Mall 401 M Street, S.W. Washington, B.C. 20460 Timothy L. Marker, Esq. Office of General Counsel Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Raymond W. Fullerton, Esq. Office of General Counsel U.S. Department of Agriculture Room 2042, South Agriculture Bldg. 12th & Independence Sts., S.W. Washington, D.C. 20250 Gregory Wolfe, Esq. Office of General Counsel U.S. Department of Transportation 400 7th Street, S.W. Washington, D.C. 20590 Robert S. Bassman National Forest Products Association 1619 Massachusetts Avenue, N.W. Washington, D.C. Philip F. Welsh, Esq. Office of General Counsel Association of American Railroads American Railroads Building Washington, D.C. 20036 �C. E. Lombard!, Jr., Esq. Blackwell Sanders Matheny Weary & Lombard! Five Crown Center 2480 Pershlng Road Kansas City, Missouri 64108 Attorneys for Thompson-Hayward Chemical Company Lindley S. DeAtley Thompson-Hayward Chemical Company P.O. Box 2383 Kansas City, Kansas 66110 R.J. Otten, Program Coordinator Amchem Products, Inc. Ambler, Pennsylvania 19002 J. Robert Hasness, Director of Technical Service Transvaal, Inc. P.O. Box 69 Jacksonville, Arkansas 72076 C. W. McMillan, Executive Vice President American National Cattlemen's Association 1015 National Press Bldg. Washington, D. C. 2000? John A. Matthews, Chairman Brush Control and Range Improvement Ass'n P.O. Box 176 Abilene, Texas 79604 Don Ahrenholtz, Mgr. Colorado Farm Bureau 2211 West 27th Avenue Denver, Colorado 80217 Acord Cantwell, Director Department of Natural Resources, Inc. Indiana Farm Bureau, Inc. 50 East Washington Street Indianapolis, Indiana 46204 �J. J. Dwyer Engineer Evlronmental Control The C & 0 Railway Co. The B & 0 Railway Co. P.O. Box 90? Huntington, West Virginia 25712 M. Chessin, Professor Department of Botany University of Montana Missoula, Montana 59801 L. M. Leach, Manager Plant Pood Department Indiana Farm Bureau Cooperative Ass'n Inc. 47 South Pennsylvania Street Indianapolis, Indiana 46204 H. R. Glascock, Jr., Executive Vice President Society of American Foresters 1010 Sixteenth Street, N.W. Washington, D. C. 20036 W. E. Chappell, Technical Adviser Mountain Lake Right-of-Way Management Council, Inc. P.O. Box 32 Blacksburg, Virginia 24060 Curt Dunham, Director Local Activities Ohio Farm Bureau Federation, Inc. 245 North High Street Columbus, Ohio 43216 Walter J. Weber, Chairman Legislative Committee The Indiana Plant, Food and Agricultural Chemicals Association, Inc. 535 Board of Trade Building Indianapolis, Indiana 46204 E. P. Sylwester, Extension Botanist and Plant Pathologist Weed Control Specialist Professor of Botany, Iowa State University Ames, Iowa 50010 �D. W. Staniforth Weed Control Research Professor of Botany and Plant Pathology and Agronomy Iowa State University Ames, Iowa 50010 John Dienelt, Esq. Environmental Defense Fund, Inc 1525 - 18th Street, N.W. Washington, D.C. 20036 Charles A. Black, President Council for Agricultural Science and Technology Agronomy Department Iowa State University Ames, Iowa 50010 Jack Justus, Director Legislative Affairs Arkansas Farm Bureau Federation Farm Bureau Building Seventh at High Street Little Rock, Arkansas. 72203 Donald M. Millar Millar's Beauty Spray 6^1 Thompson Avenue, N.E. Salem, Oregon 97301 Billee Shoecraft KIKO Radio P.O. Box 15^3 Globe, Arizona 85501 Ida Honorof P.O. Box Sherman Oaks, California 91^03 Carl H. Stoltenberg, Dean Oregon State University School of Forestry Corvallis, Oregon 97331 Lee 0. Hunt Star Route, Box 216-C Winston, Oregon 97^96 Dated: October 9, 1973 Milton R. Wessel � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 176 Folder The folder containing the original item. 5197 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Creator An entity primarily responsible for making the resource Wessel, Milton R. Description An account of the resource <strong>Corporate Author: </strong>United States of America, Environmental Protection Agency (EPA) Date A point or period of time associated with an event in the lifecycle of the resource October 9 1973 Title A name given to the resource Dow Modification of Requests and Response to Motion to Consolidate ao_seriesVIII https://www.nal.usda.gov/exhibits/speccoll/files/original/e12d8e48a93982f76959513e4fec1741.pdf 8c1c66e8a874a2fe07e285cfc82ab081 PDF Text Text Item D Number °5198 Author Wessel, Milton R. Corporate Author United States of America, Environmental Protection Age D (jotScannBfl Report/Article Title '->ow Response to EOF Motion to Intervene Journal/Book Title Year 197S Month/Day October 15 Color D Number of Images ° DOSCrlDtOn NOtBS 'n re: 2,4,5-Trichlorophenoxyacetic Acid; I. F. & R Docket No. Friday, March 01, 2002 Page 5198 of 5263 �ENVIRONMENTAL PROTECTIjDN AGENCY BEFORE THE ADMINISTRATOR In re. : 2,4,5-Trichlorophenoxyacetic Acid . (2,4,5-T) I.F Docket No. 295 DOW RESPONSE TO EDF MOTION TO INTERVENE This submission is furnished by Registrant The Dow Chemical Company ("Dow") in response to the Motion to Intervene of Environmental Defense Fund, Inc., Consumers Union of United States, Inc., and Harrison Wellford (collectively hereinafter referred to as "EDF"), served by mail on October 9, 1973. As previously stated in Dow's Modification of Requests, also served by mail on October 9, 1973, EDF has for some time been the principal opponent of continued V registration and use of 2,4,5-T.w Accordingly, and without admitting any of the allegations of the Motion to Intervene, Dow has no objection to the granting of EDF's Motion to Intervene. �Dated: New York, New York O c t o b e r 15, 1973 Respectfully submitted, KAYE, SCHOLER, FIERMAN, HAYS & HANDLER Milton R. Wessel, A Member of the Firm. Hearing Attorneys for The Dow Chemical Company, Registrant. 425 Park Avenue New York, New York 10022 Milton R. Wessel and Miriam C. Feigelson,and James N. O'Connor and Michael J. Traynor, Of Counsel �CERTIFICATE OF SERVICE I hereby certify that a copy of the attached Dow Response to EDF Motion To Intervene dated October 15, .1973, of Registrant The Dow Chemical Company was served today by postage prepaid mail, upon the persons whose names and addresses are listed below: Mr. R.J Otten Manager, Regulatory Affairs Amchem Products, Inc. Ambler, Pennsylvania 19002 Harry J. Breithaupt, Jr., Esq. General Counsel, Law Department Association of American Railroads American Railroads Building Washington, D.C. 20036 J.Thomas Tidd, Esq. General Counsel U.S. Department of Transportation Washington, D.C. 20590 Timothy L. Harker, Esq. Office of the General Counsel U.S. Environmental Protection Agency Washington, D.C. 20460 John F. Dienelt, Esq. Environmental Defense Fund 1525 - 18th Street, N.W. Washington, D.C. 20"036 Robert S. Bassman, Esq. Environmental Counsel National Forest Products Association 1619 Massachusetts Ave., N.W. Washington, D.C. 20036 Lindley S. DeAtley Senior Vice President Thompson Hayward Chemical Co P.O. Box 2383 Kansas City, Kansas 66110 J. Robert Hasness Director of Technical Services Transvaal, Inc. P.O. Box 69 Jacksonville, Arkansas 72076 Alfred R. Nolting, Esq. Office of the General Counsel U.S. Department of Agriculture Washington, D.C. . ^ - ^ ^ ^ / V v ' / Dated: October 15, 1973 Milton R. Wessel � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 176 Folder The folder containing the original item. 5198 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Creator An entity primarily responsible for making the resource Wessel, Milton R. Description An account of the resource <strong>Corporate Author: </strong>United States of America, Environmental Protection Agency (EPA) Date A point or period of time associated with an event in the lifecycle of the resource October 15 1973 Title A name given to the resource Dow Response to EDF Motion to Intervene ao_seriesVIII https://www.nal.usda.gov/exhibits/speccoll/files/original/1125fb0754a548dca68f0516c81b0c89.pdf 1a85adfea1e377ed403d5c22fdf75fd0 PDF Text Text Item D Number °5214 Author Wessel, Milton R. Corporate Author The Dow Cnemic D Not Scanned al Company Report/Article TitlB Environmental Protection Agency (EPA) Before the Administrator, In re: 2,4,5 -Trichlorophenoxyacetic Acid (2,4,5 -T), F.I.F.R.A. Docket Number 295, et al., Dow Prenearing Memorandum (No. 4) Journal/Book Title Year 1974 Month/Day March 21 Color Number of Images D 43 Desoripton Notes Friday, March 01, 2002 Page 5214 of 5263 �ENVIRONMENTAL PROTECTION AG BEFORE THE ADMINISTRATO In re 2,4,5-Trichlorophenoxyacetic Acid (2,4,5-T) ) ) ) ) FIFRA DodSS3yEJai!J&5l5, et al. DOW PREHEARING MEMORANDUM (NO. 4) This memorandum is submitted in compliance with the direction of the Chief Administrative Law Judge at the first Prehearing Conference, as modified by the Order dated February 20, 1974. It will be organized as follows: A. Witnesses Dow anticipates calling to testify at the Hearing during its affirmative case. B. Dow responses to March 11, 1974 submissions of other parties. C. Dow Proposed Agenda for March 26, 1974, Prehearing Conference. A. Dow Witnesses. The following identifies the witnesses whom Dow presently anticipates calling to testify at the Hearing during Dow's affirmative case. It includes a sum- mary of anticipated testimony in the form requested by the Chief Administrative Law Judge. �Most of the listed witnesses are toxicologists, analytical chemists or other scientists in Dow's employment. Ordinarily only one witness has been named in each area, in order to avoid cumulative testimony. However it may be necessary at some later time to request permission to add or substitute one or more other scientists in the same specialty to testify with regard to the same subject matter, for corroboration or because of the unavailability of a witness on account of illness or other special circumstance. The primary difference between the new witness or witnesses and the person listed will be in background and qualifications. Any such request will be made as promptly as possible. In addition to the specific area of testimony identified in connection with each witness, as supplemented by the bibliography,* each witness will testify with regard to the fundamentals of his own specialty. Thus, for example, witnesses in the teratology area will testify regarding research methodology and witnesses testifying with respect to analytical chemistry will describe the problems incident to distinguishing true findings from background interference or "noise". Documents listed in the bibliographies which Dow intends to offer into evidence during its affirmative case will be included in Dow's third Document Repository submission, to be made shortly. However, copies of any bibliography references will be furnished to any party now on request, including those which will probably be used by the witness only for purposes of illustration (such as sample forms). �Dow's identification of anticipated witnesses is based in part upon the January 18 and March 11 submissions of Respondent and EDF. Those submissions set forth posi- tions and identify issues. To the extent that Respondent's and EDF's evidence at the Hearing materially extends beyond these earlier submissions, it may of course be necessary for Dow to request permission to call additional witnesses. Dow's witness list is also based in part upon the January 18 and March 11 submissions of parties aligned with registrants. Those parties have identified the areas for which they are assuming primary responsibility and in which they expect to adduce evidence. The March 21 submissions of such parties will identify the witnesses they intend to call. To the extent that Dow considers that the lists of witnesses to be called by such parties may not entirely cover the evidentiary areas concerned, it may wish to call additional witnesses. For example, in its January 18 submission AFBF indicated that it intended to assume responsibility for the introduction of evidence bearing on the rice use/benefit area and that it expected to call 3-5 farmer witnesses in this connection. Dow in its January 18 submission stated that it had been preparing this area and expected to call 20 to 30 witnesses, but that it would defer to AFBF. The disparity between the anticipated numbers of Dow and AFBF witnesses may have been because Dow's estimate �included many others besides farmers, such as aerial applicators, distributors and university extension personnel. Dow has not identified any rice use/benefit witnesses below, but may wish to supplement this list after it reviews the AFBP March 21 submissions to the extent such other categories of witnesses are not included. It will do so in its April 5, 1974 submission. Name: E. L. Bjerke Address: Senior Research Chemist Residue Research Ag-Organics Department Dow Chemical U.S.A. P. 0. Box 1706 Midland, Michigan 48640 Background: MS - Organic Chemistry Area of Testimony; Mr. Bjerke will testify regarding 2,4,5-T, TCDD and 2,4,5-Trichlorophenol residues in milk. Bibliography: DD160, DD164 Name: E. H. Blair Address: Director, Health and Environmental Research Dow Chemical U.S.A. 2020 Dow Center Midland, Michigan 48640 Background: Ph.D. - Organic Chemistry Area of Testimony; Dr. Blair will testify regarding the history and organization of the Dow 2,4,5-T �effort. He will introduce each of the scientific and other areas involved and identify its relationship to the whole. Bibliography: 1973. Modern Methods of Research and Analysis (Dow, Rev. Ed. 1973). Other samples of Dow internal environmental and informational materials, including the weekly "Reports Received Bulletin" and monthly "R&D Document Summaries". Blair, E. H. 1971. Editor, Chlorodioxins — Origin and Fate. A Symposium sponsored by Div. of Pesticide Chemistry ACS. Advances in Chemistry Series 120. 1973. American Chemical Society. Chemistry in the Economy — Pesticides. Social and Economic Impacts. Chapter 11, p. 226-43. Name: Warren B. Crummett Address: Research Scientist Technical Manager Analyses Laboratory Dow Chemical U.S.A. 574 Building Midland, Michigan 48640 Background: Ph.D. - Chemistry Area of Testimony: Dr. Crummett will testify regarding the interpretation of data suggesting the presence of chemical compounds at extremely low levels (parts per trillion) �and findings with respect to TCDD levels in current manufacture and in residue research, Bibliography: DD112 (also EPA1). Exchange of correspondence between C.W. Collier and others regarding Dec. 13, 1973 EPA conference considering low level (ppt) analyses. Name: James L. Emerson Address: Pathologist, Dept. of Pathology and Toxicology Indianapolis Division Life Science Dept. Dow Chemical U.S.A. P. 0. Box 68511 Indianapolis, Indiana 46268 Background: D.V.M., M.S., Ph.D. Pathology Area of Testimony: Dr. Emerson will testify regarding 2,4,5-T teratology studies in rats and rabbits. Bibliography: DD13 (also EPA1 and USDAl-6), DD180 (also EPAl and EDF15). Name: Perry J. Gehring Address: Director, Toxicology Laboratory Health and Environmental Research Dow Chemical, U.S.A. 1803 Building Midland, Michigan 48640 Background: D.V.M., Ph.D. Pharmacology Area of Testimony: Dr. Gehring will testify regarding the toxicology of 2,4,5-T and TCDD, including specifically accumulation and the differences between the effects �of large and normal doses. Bibliography: DD27, DD31, DD34, DD36, DD41, DD42, DD43, DD44, DD52, DD123 (also EPA1, EDF35, USDA1-27), DD155, DD156, DD157, DD159, DD176 (same as DD123), DD178, DD180 (also EPA1 and EDF15), DD181. Albert, A. (1968) Selective Toxicity, Methuen & Co., LTD, London, 4th Ed. Gessner, P.K., Parke P.V. and Williams, R.T. (1961) Studies in detoxication. 86. The metabolism of '''C-labeled ethylene glycol. Biochem. J. 79:482-489 Goldenthal, E.I. "Goldenthal Letter" Acting Deputy Director, Office of New Drugs, Bureau of Medicine, Food and Drug Administration, Washington, D.C. 26204. Dated July 15, 1968, sent to every pharmaceutical and industrial Company in the United States. Greig, John. 1973. Personal communication dated 9th April, Kanna, S. and Fang, S.C. Metabolism of !*C-labeled 2,4-dichlorophenoxyacetic acid in rats. J. Agr. Food Chem. 14:500-503, 1966. Matsumura, A. The fate of 2,4,5-trichlorophenoxyacetic acid in man. Jap. J. Ind. Hit. 12:20-25, 1970. McChesney, E.W., Golberg, L., Parekh, Russell, J.C. and Min, B.E. Reappraisal of the toxicology of ethylene glycol. II. Metabolism studies in laboratory animals. Fd. Cosmet. Toxicol. 9:21-28. Quinn, G.P., Axelrod, J. and Brodie, B.B. (1958) Species, strain and sex differences in the metabolism of hexobaritone, amidopyrine, antipyrine and aniline. Biochemical Pharmacol. 1:152. Vos, J.G., Moore, J.A., and Zinkl, J.G. Toxicology of 2,3,7,8-tetrachlorodibenzo-p-dioxin(TCDD) in C-57B1/6 mice. Tox. Appl. Pharmacol. (In Press). Weil, C.S., Carpenter, C.P. and Smyth, H.F. Urinary bladder calculus and tumor response following either repeated feeding or diethylene glycol or calcium oxalate stone implantation. Med. Sur. 36:66-67, 1967, �Name: Milton E. Getzendaner Address: Research Manager Residue - Environmental - Metabolism Ag-Organics Department Dow Chemical U.S.A. P. O. 1706 Midland, Michigan 48640 Background: Ph.D. - Organic Biochemistry Area of Testimony; Dr. Getzendaner will testify regarding 2,4,5-T and TCDD residue levels in grass and certain other food crops. Bibliography: DD48, DD49, DD51, DD108, DD120, DD127, DD148-151, DD153, DD157, DD160, DD161, DD164-173 (DD173 also EPA5), DD174, DD175, DD188. Anonymous, Agr. Res. 21, No. 4, p. 6 (1972). Getzendaner, M.E., Down To Earth 28, No. 1 pp. 24-29 (1972). Miller, P.W. Report of The Dow Chemical Company, GH-C 650 (April 26, 1973). Statistical abstracts of the U.S. 1972, 3rd Annual Edition, U.S. Dept. of Commerce, Bureau of Census (1972). New York 7-9 million, Queens Borough 2.0 million =9.9 million people. Name: Harold Gordon Address: Director, Corporate Medical Department Dow Chemical U.S.A. 2030 Dow Center Midland, Michigan 48640 Background: M.D. Area of Testimony; Dr. Gordon will testify regard- �ing studies of employees exposed to 2,4,5-T during production operations. Bibliography: DD50 Name: James Robert Grumbles Address: Field Specialist - Herbicides Ag-Organics Department Dow Chemical U.S.A. Lubbock, Texas 79408 Background: Ph.D., Range Management Area of Testimony: Dr. Grumbles will testify regarding the rangeland use of 2,4,5-T. Name: David J. Jensen Address: Research Scientist Residue Research Ag-Organics Department Dow Chemical U.S.A. P. 0. Box 1706 Midland, Michigan 48640 Background: Ph.D. - Biochemistry Area of Testimony: Dr. Jensen will testify regarding residues of 2,4,5-T and TCDD in meat. Bibliography: DD36, DD48, DD49, DD108, DD121, DD164, DD165, DD167, DD169, DD173 (also EPA5), USDA-2-3. Bache, C.A., D.J. Lisk, D.G. Wagner, and R.G. Warner. J. Dairy Sci. £7, 93 (1964), Clark, D.E., J.E. Young, R.L. Younger, L.M. Hunt, and J.K. McLaran. J. Agr. Food Chem. 12, 43 (1964). �Clark, D.E. Private Communication (1973). Khanna, S. and S.C. Fang. 500 (1966). J. Agr. Food Chem. 14, Khanna, S., V. Rao, and S.C. Fang. "Metabolism of C11*-Labeled 2,4-D and Plant transformation Products of 2,4-D in Rats." Presented at the 20th Northwest Regional Meeting of the American Chemical Society in Corvallis, Oregon (June, 1965). Klingman, D.L., C.H. Gordon, G. Yip, and H.P. Burchfield. Weeds 14^, 164-167 (1966). Lisk, D.J., W.H. Gutenmann, C.A. Bache, R.G. Warner, and D.G. Wagner. J. Dairy Sci. 46, 1435 (1963). Maxie, E.G., M.V. Bradley, and B.J. Robinson. Amer. Soc. Hort. Sci. 81_, 137 (1962). Morton, H.L., F.S. Davis, and M.G. Merkle. Science 16, 88 (1968). Proc. Weed Slife, K.W., J.L. Key, S. Yamaguchi, and A.J. Crafts. Weeds 1 . 29 (1962). 0, Yip, G. and R. Ney. Weeds 14, 167 (1966). Name: Julius E. Johnson Address: Vice-President, The Dow Chemical Company Manager, Life Sciences Department 2030 Dow Center Midland, Michigan 48640 Background: Ph.D. - Biochemistry Area of Testimony: Dr. Johnson will testify regarding the overall Dow effort in the environmental area, including its Ecology Council, its Product Stewardship policy and the need for application of the rule of reason in all aspects of corporate management and operations. 10 �Bibliography: Dow organization chart. 1973 Annual Report. Name: Eugene E. Kenaga Address: Associate Scientist Health and Environmental Health Research Dept. Dow Chemical U.S.A. P. 0. Box 1706 Midland, Michigan 48640 Background: M.A. - Entomology Area of Testimony; Mr. Kenaga will testify regarding evaluation of the impact of 2,4,5-T and TCDD on the environment, particularly fish and wildlife. Bibliography: DD103, DD105, DD106, DD107, DD109 DD110. Young, A.L., C.E. Thalken, W. E. Ward and W. J. Cairney. 1974. The Ecological Consequences of Massive Quantities of 2,4-D and 2,4,5-T Herbicides — Summary of a Five Year Field Study. Presented at Weed Science Society of America, Las Vegas, Nevada, 14 February 1974. Abstract No. 164. Young, A.L., E.L. Arnold and A.M. Wachinaki. 1974. Field Studies on the Soil Persistence and Movement of 2,4-D, 2,4,5-T and TCDD. Presented at Weed Science Society of America, Las Vegas, Nevada, 13 February 1974. Abstract No. 226 Name: D. J. Kilian Address: Director Industrial Medicine, Toxicology, 11 �and Biomedical Research Laboratory Dow Chemical U.S.A. Freeport, Texas 77541 Background: M.D. Area of Testimony: Dr. Kilian will testify regarding the non-mutagenicity of 2,4,5-T based on karyotyping studies of exposed Dow workers. Name: Richard J. Kociba Address: Research Pathologist - Toxicology Laboratory Health and Environmental Research Dow Chemical U.S.A. 1803 Building Midland, Michigan 48640 Background: D.V.M., Diplomat, American Veterinary Pathologists Ph.D. - Pathology Area of Testimony; Dr. Kociba will testify regarding the toxicity of 2,4,5-T and TCDD based on ninety-day studies of repeated oral doses on rats. Bibliography: DD43, DD44, DD181 Name: Horst G. Langer Address: Associate Scientist Dow Chemical U.S.A. Eastern Research Laboratory P. 0. Box 400 Wayland, Massachusetts Background: Diploma in Chemistry D.Sc. - Chemistry Technical University, Braunschweig, Germany 12 01778 �Area of Testimony: Dr. Langer will testify regarding the formation of TCDD from thermal stress of 2,4,5-T under ordinary environmental conditions. Bibliography: DD101 (also EPA1, EDF3), DD154 (also EPAl, EDF4), EDF38 (also EPAl), EPA2 (also EDF5). Langer, H.G., et al., Chlorodioxins - Origin and Fate, E.H. Blair, ed., Advances in Chemistry Series, pp. 26-32 (1973) Name: Fumio Matsumura Address: Professor of Insect Toxicology Dept. of Entomology University of Wisconsin Madison, Wisconsin 53703 Background: Ph.D. - Zoology Area of Testimony: Dr. Matsumura will testify regarding the bioaccumulation and degradation of TCDD. Bibliography: DD129 (also EPAl and EDF36) Name: Donald D. McCollister Address: Manager, Product Registration Section Health and Environmental Research Dow Chemical U.S.A. P. 0. Box 1706 Midland, Michigan 48640 Background: B.S. - Industrial Chemistry Area of Testimony: Mr. McCollister will testify regarding the mammalian toxicology of 2,4,5-T registration and cancellation proceedings; and label and use precautions. 13 �Bibliography: DD30, DD36, DD41, DD42, DD43, DD44, DD45, DD46, DD47, DD108, DD174, DD182-187. Name: Robert E. Naegele Address: Manager, Ag-Organics Department Dow Chemical U.S.A. P. 0. Box 1706 Midland, Michigan 48640 Background: B.S. - Engineering M.S. - Organic Chemistry Area of Testimony: Mr. Naegele will testify regarding the marketing of 2,4,5-T. Name: Jesse M. Norris Address: Research Specialist in Toxicology Health and Environmental Research Dow Chemical U.S.A. 1803 Building Midland, Michigan 48640 Background: M.S. - Zoology Area of Testimony Ms. Norris will testify regarding toxicological studies of TCDD and, to the extent in issue, the relative toxicological properties of the other dioxins which may occur in 2,4,5-T. Bibliography: DD3, DD24, (also EPA27, EDF7, USDA 1-35), DD28, DD52, DD53, DD180 (also EPA1 and EDP15), USDAl-16, EPA 22, EPA 24. 14 �Allen, J.R. (1964). The role of "toxic fat" in the production of hydropericardium and ascites in chickens. Amer. J. Vet. Res. 25, 1210. Ames, S.R., Swanson, W.J. and Harris, P.L. (1960). Studies on a factor causing pericardial edema in chicks and its occurrence in some oleic acids. Fed. Proc. 19, 323 — Abstract. Brew, W.B. and Dore, J.B. (1959). Characterization of a type of unidentified compound producing edema in chicks. J. of A.O.A.C. 42, 120. Cantrell, J.S., Webb, N.C. and Mabis, A.J. (1969). The identification and crystal structure of a hydropericardium-producing factor: 1,2,3,7,8,9-hexachlorodibenzo-p-dioxin. Acta Cryst. B25, 150. Cunningham, H.M. and Williams, D.T. 1972. Effect of tetrachlorodibenzo-p-dioxin on growth rate and synthesis of lipids and protein in rats. Bull. Env. Contain, and Toxicol. ]_' 45* Dunahoo, W.S., Edwards, H.M Jr., Schmittle, S.C. and Fuller, H.L. 1959. Studies on toxic fat in the rations of laying hens and pullets. Poultry Sci. 38(3), 663. Flick, D.F., Winbush, J. and Friedman L. 1963. Bioassay of chick edema factor. J. of A.O.A.C. 46, 406. Flick, D.F., Firestone, D. and Higginbotham, G.R. 1972. Studies of the chick edema disease, 9. Response of chicks fed on single administered synthetic edema-producing compounds. Poultry Sci. 51, 2026. Metcalfe, L.D. (1972). Proposed source of chick edema factor. J. of A.O.A.C. 55, 542. MeCune, E.L., Savage, J.E. and O'Dell, B.L. (1962). Hydropericardium and ascites in chicks fed a chlorinated hydrocarbon. Poultry Sci. 41, 295. Milnes, M.H. (1971). Formation of 2,3,7,8-tetrachlorodibenzo-dioxin by thermal decomposition of sodium 2,4,5-trichlorophenate. Nature 232, 395. Schulz, K.H. (1968). Clinical picture and etiology of chloracne. Arbeitsmedizin-Sozialmedizin- 15 �Arbeitshygiene 3, 25. Schwartz, L. (1936). Dermatitis from synthetic resins and waxes. Am. J. Pub. Health 26, 586. Scott, L.C. 1960. The cause of alimentary toxemia in chickens, toxic fat — its effect on swine performance. J. Am. Vet. Med. Assoc. 137, 258. Tomita, M., Ueda, S. and Narisada, M. (1959). Dibenzop-dioxin derivatives. XXVII. Synthesis of polyhalodibenzo-p-dioxin. Chem. Abst. 53, 13152. Vos, J.G. and Beems, R.B. (1971). Dermal toxicity studies of technical polychlorinated biphenyls and fractions thereof in rabbits. Toxic. Appl. Pharmac. 19, 617. Vos, J.G. and Koeman, J.H. (1970). Comparative toxicologic studies with polychlorinated biphenyls in chickens with special reference to porphyria, edema formation, liver necrosis, and tissue residues. Toxic. Appl. Pharmac. 17, 656. Vos, J.G., Koeman, J.H., Van der Maas, H.L., ten Noever de Brauw, M.c. and De Vos, R.H. (1970). Identification and toxicological evaluation of chlorinated dibenzofurans and chlorinated naphthalene in two commercial polychlorinated biphenyls. Pood Cosmet. Toxicol. 8, 625. Wootton, J.C. and Alexander, J.C. (1959). Some chemical characteristics of the chick edema disease factor. J. of A.O.A.C. 42, 141. Yartzoff, A., Firestone, D., Banes, D., Horwitz, W., Friedman, L. and Nesheim, S. (1961). Studies of the chick edema factor. II. Isolation of a toxic substance. J. Amer. Oil Chem. Soc. 38, 60. Name: Virgil B. Robinson Address: Director, Dept. Pathology and Toxicology Indianapolis Division Life Sciences Dept. Dow Chemical U.S.A. P. 0. Box 68511 16 �Indianapolis, Indiana 46268 Background: M.S., D.V.M., Ph.D. - Comparative Pathology Area of Testimony: Dr. Robinson will testify regarding the teratogenicity studies of 2,4,5-T on rats and rabbits. Bibliography: DD13 (also EPA16 and USDA1-6) Choudhury, B. and Robinson, V. B. Clinical and Pathologic Effects Produced in Goats by the Ingestion of Toxic Amounts of Chlordan and Toxaphene. Am. J. Vet. Res., 11 (1950):50-57. Cooperrider, D. E., Robinson, V. B. and Staton L. Dioctophyma Renale in a Dog. J.A.V.M.A., 124 (1954):381-383. Johnston, R. V., York, C. J., Robinson, V. B. Brueckner, A. H., and Burch, G. R. Immunology of Canine Distemper. Vet. Med. August (1959):405-412. Johnston, R. V., Robinson, Virgil, and Mayer, Karl. Use and Abuse of Modified Live Virus Vaccines. Allied Veterinarian (May-June) 1958. Molello, J. A., Gerbig, C. G., and Robinson, V. B. Toxicity of [4,4'-(Isopropylidenedithio)bis(2,6-dit-butylphenol)j, Probucol, in Mice, Rats, Dogs and Monkeys: Demonstration of a Species-Specific Phenomenon. Toxicology and Applied Pharmacology, 24_, 590-593 (1973). Newberne, James W., Robinson, Virgil B., and RisingMoore, Fred. Hemolytic Anemia in Baby Pigs—Report of a Case. J.A.V.M.A. 129; 8 (1956) 361-363. Newberne, J. W., Johnston, R. V., and Robinson, V. B. Studies on Clinical and Histopathological Aspects of Feline Panleukopenia (Infectious Enteritis). Southwestern Vet., 1(3 (1957) Winter Issue. Newberne, J. W., Robinson, V. B., and Bowen, N. E. Histological Aspects of Klossiella equi in the Kidney of a Zebra. Am. J. Vet. Res., 19:71 (1958). 17 �Newberne, J. W., and Robinson, V. B. Malignant Lymphoma in the South American Chinchilla. North Am. Vet., 3£ (1957):362-372. Newberne, J. W., Johnston, R. V., Robinson, V. B, York, C. J., and Sanders, E. F. Recent Studies, on the Properties of a Nonvirulent Living Hog Cholera Vaccine. Vet. Med., 5^4 (1959): 41-47. Newberne, J. W., and Robinson, V. B. Spontaneous Tumors in Primates. Am. J. Vet. Res., 21: 80 (1960) 150-155. Newberne, J. W., Robinson, V. B., Estill, Lilah, and Brinkman, D. Granular Structures in Brains of Neurologically Normal Dogs. Am. J. Vet. Res., 21_: 84 (1960) 782-786. Newberne, J. W., Robinson, V. B., and Alter, Mary L. Incidence of Infectious Bovine Rhinotracheitis and Bovine Virus Diarrhea. Vet. Med., 56: 9 (1961) 395. ~ Robinson, Virgil B. Instrumentation for Scientific Excellence in Veterinary Medical Laboratories. Proc. 67th Ann. Meeting U. S. Livestock Sanit. Assn., Veterinary Laboratory Diagnosticians Conference (1963). Robinson, Virgil B. and Kay, John. Experiments with Phenothiazine in the Treatment of Horses for Strongyles. Vet. Med., 36 (1941). Robinson, Virgil B. and Mossinger, A. V. Effects of H (mustard gas) Contamination for War Dogs. Chemical Warfare Service, Medical Research Division, Edgewood Arsenal, Maryland. Report No. 33, 3 June, 1944. Robinson, Virgil B. Nasal Granuloma: A Report of Two Cases in Cattle. Am. J. Vet. Res., 12 (1951): 85-89. Robinson, Virgil B. and Schell, Fred G. Blastomycosis in a Dog. N. Am. Vet., 32 (1951):555-558. Robinson, Virgil B., McVicker, D. L., and Peterson, J. C. Some Aspects of the Epizootiology of Histoplasmosis in Two Boxer Breeding Kennels. J.A.V.M.A., 119 (1951):195-200. 18 �Robinson, Virgil B. and McVicker, D. L. The Pathology of Canine Histoplasmosis as Seen in Twenty-one Spontaneous Cases. Am. J. Vet. Res., 13. (1952): 214-219. Robinson, Virgil B. Correct Laboratory Diagnosis Begins with You. Allied Veterinarian (May-June) 1956. Robinson, V. B., Newberne, J. W., and Brooks, D. M. Distemper in the American Raccoon (Procyon Lotor). J.A.V.M.A., 131 (1957):276-278. Robinson, Virgil B. Rabies in Animals. J. Ind. State Med. Assn. 52: 9 (1959) 1443-1465. Robinson, V. B., Newberne, J. W., and Mitchell, F. E. Vaccination of Pregnant Cattle with Infectious Bovine Rhinotracheitis Vaccine. Vet. Med. 56; 10 (1961) 437-440. Robinson, V. B. Organization and Function of a Veterinary Medical Laboratory. Proc. 65th Ann. Meeting U. S. Livestock Sanit. Assn., Veterinary Laboratory Diagnosticians Conference (1961), Pages 493-498. Robinson, Virgil B. and Ehrenford, Frank A. Hepatic Lesions Associated with Liver Fluke (Platynosomum fastosum) Infection in a Cat. Am. J. Vet. Res. 23_: 97 (1962) 1300-1303. Robinson, Virgil B. Personnel Classifications and Appropriate Qualifications for Veterinary Medical Laboratories. Proc. 66th Ann. Meeting U.S. Livestock Sanit. Assn., Veterinary Laboratory Diagnosticians Conference (1962). Robinson, Virgil B. and Emerson, James L. Handling Hazardous Chemicals, J.A.V.M.A., Vol 161, No. 11, 1512-1566. Thompson, D. J., Warner, S. D., and Robinson, V. B. Teratology Studies on Orally Administered Chloroform in the Rat and Rabbit. In Press. Weaver, L. C., Gardier, R. W., Robinson, V. B. and Bunde, C. A. Comparative Toxicology of Iron Compounds. Am. J. Med. Sc., 241; 3 (1961). 19 �Whaley/ A. E., Robinson, V. B., Newberne, J. W., and Sipple, W. L. Bovine Encephalemeningitxs Associated with Erysipelas Infection. Vet. Med., 53 (1958) 475, York, C. J., Johnston, R. V., and Robinson, V. B. Vaccines in the Control of Leptospirosis in Cattle and Swine. Proc. Am. V. M. A. Meeting (August) 1955. Name: Verald K. Rowe Address: Research Scientist Health and Environmental Research Dow Chemical U.S.A. 1803 Building Midland, Michigan 48640 Background: M.S. Biochemistry Sc.D. (honorary) Area of Testimony: Dr. Rowe will testify regarding the toxicology of 2,4,5~T and TCDD generally, as foundation for the testimony of scientists in specific areas. Bibliography: DD20 (also USDAl-34), DD24 (also EPA27, EDF7, USDAl-35), DD25, DD41, DD52, DD180 (also EPAl and EDF15), EDF11. Adams, Irish, Spencer and Rowe, Industrial Medicine, Jan. 1941, "The Response of Rabbit Skin to Compounds Reported to Have Caused Acneform Dermatitis." Lehman, A.J. 1952. Chemicals In Foods: A Report to the Association of Food and Drug Officials on Current Developments. Part II. Pesticides. Association Food and Drug Officials of U.S. 16(2) p. 49. Lehman, A.J. 1952. Chemicals in Foods: A Report to the Association of Food and Drug Officials on Current Developments. Part V. Pathology. 20 �p. 130. Name: Bernard A. Schwetz Address: Senior Research Specialist Toxicology Laboratory Health and Environmental Research Dow Chemical U.S.A. 1803 Building Midland, Michigan 48640 Background: D.V.M., Ph.D. - Pharmacology Area of Testimony; Dr. Schwetz will testify regarding the effects of 2,4,5-T and, to the extent in issue, the chlorinated dibenzo-p-dioxins, on the developing embryo and fetus. Bibliography: DD1 (also EDF21), DD3 (also EPA17, EDF22 and USDAl-5), DD4, DD5 (also EPA18), DD6 (also EPA19), DD7, DD13 (also EPA16 and USDAl-6), DD14 (also USDAl), DD15, DD16, DD17 (also USDAl-2), DD18, DD19 (also USDAl-19), DD20 (also USDAl-34), DD21, DD22, DD23, DD24 (also EPA27, EDF7, USDA1-35), DD25, DD27, DD28, DD52, DD163 (also USDA1-29, EDFl) DD180 (also EPA1 and EDF15), DD181. Stotzer and Niggerschutzer, Private Communications, Dec. 10, 1970 and June 18, 1971. Name: Maurice Seevers Address: Professor Emeritus Department of Pharmacology (Retired) School of Medicine University of Michigan Ann Arbor, Michigan 48106 Background: M.D., Ph.D. - Pharmacology Area of Testimony: Dr. Seevers will testify to the 21 �"dose response" and "no effect" level concepts and the extrapolation of observed effects to probable effects at other levels of activity, Bibliography: "Perspective Versus Caprice In Evaluating Toxicity of Chemicals in Man," 153 Jo. of AMA 1329-33 (Dec. 12, 1953). Name: Rudolph H. Stehl Address: Senior Analytical Specialist Dowanol Laboratories Dow Chemical U.S.A. 574 Building Midland, Michigan 48640 Background: Ph.D. - Analytic Chemistry Area of Testimony; Dr. Stehl will testify regarding the difficulty of identifying compounds at extremely low levels (e.g., parts per trillion) and the formation of TCDD as the result of the thermal stress of 2,4,5~T. Bibliography: DD102, DD112 (also EPA1), DD133, DD179, DD188, DD189 (EPA4). Name: James M. Theis Address: Technical Manager Herbicides Technology Center Dow Chemical U.S.A. ACPD Administration 834 Building Midland, Michigan 48640 Background: B.Sc. - Chemical Engineering Area of Testimony: Mr. Theis will testify regarding the levels of TCDD in Dow's current 2,4,5-T production. Bibliography: Sample forms of Dow production 22 �records. Name: Sylvan H. Wittwer Address: Assistant Dean College of Agriculture and Natural Resources and Director, Michigan Agricultural Experiment Station Professor of Horticulture Michigan State University East Lansing/ Michigan 40823 Background: Ph.D. - Horticulture Area of Testimony: Dr. Wittwer will testify regarding the use of 2,4,5-T for maximum production of food crops. Bibliography: Wittwer, S.H. January 4, 1974. Maximum Production Capacity of Food Crops. Submitted for publication to Bioscience January 4, 1974. Wittwer, S.H. 1970. Maximizing Agricultural Production. Research Management 13(2) 89-110. 23 �B. Dow Responses to March 11, 1974 Submissions. The January 18, February 22 and March 11 exchanges of memoranda have gone far towards identifying and refining the ultimate issue in this proceeding, which is application of the rule of reason to a number of subsidiary questions. Although it may seem at this point that there will be important questions of fact to be resolved, we do not expect these to persist through the Hearing. They appear to be the result of continuing research and investigation, inadequate earlier disclosure (some of which may be an unfortunate incident of the traditional adversary legal context in which these questions arise) and, perhaps, mistake. If that is so, the parties should be able to resolve them by agreement. Strong as emotions and feelings may be in this and similar kinds of cases, we believe the instances of deliberate misstatement or misrepresentation will be few and far between.* In final analysis, the issue for determination by the Administrative Law Judge, as with the Alaskan pipeline, We regret the tone of some of the exchanges in the memoranda. It may be characteristic of the adversary approach in the ordinary plaintiff vs. defendant litigation, but here it may serve to intimidate scientists (including even those in the employ of a party), who in the past have understandably hesitated to leave their laboratories for fear of just this kind of unpleasantness. We need their unfettered participation in this proceeding, and are hopeful that all parties will refrain from challenging integrity and collateral conduct, except on a reasonably founded basis. 24 �the construction of a nuclear power plant and similar problems in our over crowded, technology-oriented society, will be whether the conceded benefits outweigh the conceded risks from the viewpoint of society as a whole — not of any single person. Obviously that delicate balancing judgment may properly change as a consequence of an oil embargo or a food shortage. Unfortunately, our traditional adversary legal process — the only one we have at this time — tends to pose issues in simplistic black and white terms: guilty or not guilty, right or wrong, liable or not liable. The memoranda submitted in this case thus far to some extent do the same. Although the "no risk" theory has been dropped, at least in name, the March 11 submissions still appear to take a similar approach by contending, for example, that Dow has not demonstrated a "no effect" level, or that Dow has not shown there to be "no jeopardy" resulting from 2,4,5-T use. We hope this statement will not be quoted out of context, but we submit that such tests cannot be met. There are no absolutes in science; there is no such thing as "no effect" or "no jeopardy" in the lay sense in which Respondent uses these terms. Everything has a cost, including not marketing a product or using precious research resources to negate a possibility where the resources might be better employed to 25 �evaluate (never completely "negate") a more serious possibility. Nor is this case EOF vs. Dow, except in the procecural mold in which it has been cast by tradition. If the product at issue is cancelled, no one can market it and — far more important — no one can buy or use it. Until we develop some better legal method for resolving issues of this kind (which include civil rights, antitrust and other societal issues calling for the balancing of a myriad of intangible interests and values), the Administrative Law Judge must expect that the parties will marshall the evidence for him to judge, will examine and cross-examine the witnesses and perhaps — although we hope all will try to avoid it — will occasionally indulge in legal jockeying. But despite this, there is a third party standing in the wings — the public — which is the only one which will ultimately win or lose this case. It may be helpful to consider application of the rule of reason to several of the important questions posed by the memoranda. 1. Legal Burdens; The memoranda discuss at considerable length the traditional concepts of "burden of coming forward" with evidence and ultimate "burden of proof." In the usual litigation, these are concepts to be applied by the 26 �trier of fact in making a decision as to who wins and who loses. If the party with the burden of coming forward (never quantified precisely) doesn't sustain it, he loses; if he does, the party with the burden of proof (50% plus) must then sustain it or lose. But in this case, these burdens translate into the question "Who does what?" Just how much evidence must there be to justify the effort required by long-term carcinogenicity or mutagenicity research, and who should do it? When new analytical methods make it possible to detect residues down to the ppt (parts per trillion) level, who should conduct the research necessary to evaluate the new findings? ment? Should it be Govern- Registrants? Respondent correctly states that the Adminis- trator's Scientific Advisory Committee, in approving continued 2,4,5-T use, recommended certain additional studies. But assuming such studies are appropriate (a determination itself dependent upon a rule of reason evaluation), who should do it? Had the Administrator accepted the Committee's Report contingent upon a further submission by registrants at some later time, Dow would have been faced with a rule of reason de- 27 �cision — is the research justified in light of all the proper considerations? But the Administrator rejected the Report and continued the cancellation. This posed a different issue to registrants — is immediate research by them justified in light of all the proper considerations, including the Administrator's adverse determination? Or should they rely on Government to conduct it? Or await the outcome of the litigation? Dow of course has continued research, and has most recently determined to initiate additional research as the result of the scientific evaluations made at the March 8-9 Scientific Conference in Washington. And Respondent has also recognized a burden in this area. It has already in its January 18 memorandum furnished data not previously disclosed. It is still conducting environmental monitoring projects and other studies which should be helpful in arriving at a balanced risk/benefit judgment in this case. Perhaps the results of these ongoing efforts may indicate that the need for further work is sufficiently great to justify imposing an additional burden on registrants; or that continuing governmental monitoring is called for; or that work can reasonably be stopped — at 28 �least until some new scientific discovery comes along I * Nor can these efforts be evaluated simply in terms of their economic costs. For example, Respondent seeks Dow's cooperation in research of TCDD residues in human fat. (See second footnote, EPA March 11 memorandum, page 2.) As earlier described by Respondent, however, this work called for a surgical procedure on a human population. Unless Respondent has new information of which Dow is not yet informed or proposes a non-surgical approach, we question the justification of surgical sampling of humans. But that, again, is a decision for application of the rule of reason by the Administrative Law Judge. 2. No Effect. Respondent emphasizes that Dow has not satisfactorily established a "no effect" level We hope there will be no "sandbagging" in this proceeding, with the holding back of test data or results of monitoring studies to spring on some scientist in cross-examination. The result would not only negate the scientific method (for who can deal with new esoteric scientific data off-the-cuff?), but serve to frighten the scientific community away from participating in this and future cases. Data should be disclosed as soon as properly evaluated and ready. 29 �with respect to the use of 2,4,5-T. Although as elsewhere, even scientists in the employ of the same party sometimes use the term with different meanings, the better use of "no effect" is as a technical scientific phrase to characterize the results of certain specific experimental observations. However, Respondent appears to use the term in its lay sense, to mean that the environmental residue levels which may result from use of the product have absolutely "no" adverse toxicological effect. Again we hope we will not be quoted out of this context, but in true science there simply is no such thing as "no effect" in the above sense. Although Respondent objects to Dow's use of qualifying terms throughout — and Dow does, and must continue to do so* — the correct lay phrase should be "no significant effect" or "no Indeed, on occasion to avoid redundancy, the January 18 Dow memorandum uses the term "no effect" without a qualifying description. Throughout, however, the term is intended to be used with the qualifications to which Respondent objects. 30 �substantial effect" or "no detectable effect" or "no observed effect" or "no reported effect" or "no discernible effect" or "no untoward effect." tainty is impossible. Cer- When the older participants in this proceeding went to school/ they learned the principle of the "conservation of matter." But it wasn't so, and something else won't be so tomorrow. We may now be down at ppt detection levels; but perhaps even before this case is finished, we will be at ppq (parts per quadrillion). What then? The most science can give us is a confidence level, statistically arrived at, which can be evaluated. For example, a teratology study employing certain protocols and using certain specified dosages of a compound in 100 mice, discloses certain results. Those results can be extrapolated to larger populations of mice, but only within certain confidence levels, not with certainty. Extrapola- tion can also be made to higher or lower doses, and to different species — rats, rabbits and humans. But never with certainty — always with some open area of doubt and risk. The rule of reason decisions to be made under these circumstances are whether the work done thus far is sufficient to have reduced the level of 31 �doubt and risk below the benefits of use; whether the additional work required to reduce the level of risk even further is worth its associated costs and other detriments; and, if so, whether such risks and doubts are sufficient to require that the added effort be undertaken by registrants (which would otherwise be prohibited from marketing the product) or by Government. Here again there is not as much difference between the parties as might at first appear. Government has assumed the burden of conducting what is within the scientific community popularly called "mega mouse" research at the National Center for Toxicological Research (NCTR) facility in Pine Bluff, Arkansas. A target goal has been set to achieve a confidence level of 1 in 10,000, requiring something like 800,000 test animals, although at present it appears that a more realistic near-term objective will be 1 in 1,000. Work of this kind seems clearly beyond the realistic present economic capacity of any single registrant — although the rule of reason cautions that perhaps one day even that may change. Respondent is correct that terms need definition. As with "no effect", "dose response" is a 32 �phrase used rather widely by toxicologists, but not always with the same meaning; the very different terms "bio-accumulation" and "bio-concentration" are sometimes used interchangeably in memoranda of even the same party (see EOF March 21 memo, pp. 1819); the same is true of such words as "teratology"* and "accumulation." An effort should certainly be made at the Hearing to see that words are employed uniformly. But an observation is an observation, assuming the validity of the methodology employed and the integrity of the researcher. The question of whether it is a "teratogenic" observation is simply another way of trying to identify and quantify the nature and degree of the risk involved. It will be of critical importance throughout this proceeding for the parties to try to see that conclusory terms of this kind are properly explained. We can live with different usages if the differences are identified. Respondent appears to define teratology to include death, on the ground that it "must be considered the ultimate malformation." (EPA March 11 memo, p.5). This is not one of the usual definitions. 33 �3. Economics; Application of the rule of reason in this litigation cannot be divorced from any legitimate societal value, including economics. Registrants such as Dow are constantly faced with decisions which require the same kinds of balancing of conflicting interests as are involved in the main case itself. Some earlier registrants, in- eluding Hercules which was a party here at one time, decided to withdraw completely; even those still involved in the present stage concluded not to oppose suspension of certain uses of the product, such as around the home. When the evidence is all in, it will be obvious that those continuing on here have considered a factor in their rule of reason decision to proceed in addition to the use of 2,4,5-T itself.* That is of course the opportunity which S 6(b)(2) of the new statute affords to develop some better method for resolving these kinds of issues in a rational manner, placing We hope the Administrative Law Judge will also conclude at the end of this proceeding, that Dow's research effort has been far above and beyond the call of what should be expected in the routine registration. 34 �the burdens where they should be and eliminating the adversarial "entrapment" kind of approach designed to "win" but not necessarily to achieve the greatest benefit for society. In fashioning such a procedure, we hope the Administrative Law Judge will not consider that the scientific research and even legal effort expended by those aligned with registrants in this case should be replicated in every similar proceeding. 4» Teratology. Although we do not suggest that Respondent has conceded away any issue, a reading of the EPA and EDF briefs suggests that the significant risk areas requiring evaluation in this proceeding all concern teratology -— the possibility of human birth defects resulting from the TCDD contaminant in 2,4,5-T as presently marketed. With respect to all other questions — carcinogenicity, mutagenicity, other dioxins — the most that is really contended is that additional study is required. Additional research would be nice, of course, although perhaps an unjustified luxury, but we do not think the evidence as outlined by EPA and EDF is sufficient to call for its conduct by Dow. Whether it is the best use of limited Government resources is a question which 35 �government itself must decide. But the rule of reason approach suggests that at this point a determination can be made on the memoranda themselves that the matter for consideration in this case should be the balancing of the risk/benefit equation in terms of possible human birth defects resulting from exposure to the TCDD contaminant in 2,4,5-T. As the results of additional Government and other research are received, some of which are well under way, we would hope to continue to work with Respondent, where appropriate assuming the responsibility to undertake more effort as indicated. Perhaps one day even less toxic products will be developed, or new scientific method will suggest new approaches. Litigation of issues as tenuous as those other than teratology is not the proper way even under today's inadequate procedures. Undoubtedly there will be extremists who testify here, perhaps on both sides, but we hope there will be no serious factual issues. We believe that the task for the Administrative Law Judge will be to evaluate the process by which the scientist comes to the essentially societal 36 �conclusion that "The risk is (or is not) acceptable." We do not let the surgeon do this for us in open heart surgery; we do not let the attorney do this for us in the plea of guilty to crime; we cannot let the scientist do this for us in deciding whether the food, right-of-way and forestry benefits of 2,4,5-T outweigh its risks. But to effectively perform the function requires that the scientist clearly divorce what is scientific observation and accepted scientific opinion from bias and emotion, and that he quantify his conclusions in terms we can understand ("In 4,000 similar open heart surgical procedures, 3% of the patients died and 87% recovered to the same level of activity and health as before the attack"). If this can be accomplished in this proceeding, everyone will win, for justice will have been done.* * The foregoing discussion is limited to that appropriate to a further pinpointing of the issues, and is not intended to be responsive to all the evidentiary contentions. Thus, for example, Respondent interprets Dow's reference to "environmental use levels" as meaning ".01 ppm [TCDD] in the technical material," (EPA memo, March 11, p. 13), where the relevant figure should be .1 ppm in the product used, or less. All of this is the subject for evidence and summary argument, not prehearing memoranda which are the product of trial counsel's vigorous but not necessarily scientifically qualified efforts. Our silence or failure of response should not be considered admission to any of these evidentiary statements. 37 �C. Dow Proposed Agenda for March 26, 1974, Prehearing Conference. The matters which Dow requests be considered at the Second Prehearing Conference are the following: 1. Limitation of Issues (Dow Prehearing Memorandum (No. 3), p. 15.) 2. Privilege (id., p. 20). 3. Consolidation 4. Notice (id., p. 25). 5. Further schedule (id., Draft Response (id., p. 21). attached to Exhibit E, 1(4) . 6. Hearing Date (id., p. 22). We wish to comment further than the above references only with respect to the date for Hearing. We are most hopeful that the Administrative Law Judge will adhere to the present April 23, 1974 date. There are many reasons, which can be argued at the March 26 Prehearing Conference if there is opposition. But the most important and overriding reason, which warrants emphasis now even before any opposition is noted, is the effect of any significant delay on the participation of third party witnesses, most of whom will probably be called to testify by parties other than Dow. An April Hearing date has been the target beginning ever since last July, when it was fixed by the Assistant Administrator. The interest of many non-party scientists, and of the parties themselves, has been mounting as the time 38 �approaches. This was most recently evidenced by the enthu- siasm apparent at the USDA/Dow March 8-9 2,4,5-T scientific conference in Washington, D.C. Experience teaches that one cannot maintain such attention for too long a period; the surfer must capture the crest of the wave before it breaks. We urge the Administrative Law Judge to adhere to the April 23, 1974 date for commencing the Hearing in this proceeding. CONCLUSION From the inception of this proceeding as the result of the Administrator's August 6, 1971, order, an effort has been made informally, by negotiation, and formally, by litigation, to eliminate its adversarial government vs. registrants character. The enactment of § 6{b)(2) of the new statute finally affords an exceptional and perhaps unique opportunity to conduct a true scientific inquiry, not an adversary litigation. If it is successful, it could be the forerunner of similar approaches to many of the important questions of today and tomorrow. We hope the FIFRA § 6(b)(1) rice use/benefit portion of this proceeding will be recognized as an anachronism, made necessary by the limitations of the old statute. With respect to all other 2,4,5-T uses, the Administrator has made no determination except that this 39 �inquiry is warranted. We hope the Agency, and the parties, will pursue the Administrator's non-adversarial role. The issues for decision include whether additional research effort is required in a number of areas and, if so, which party has the burden of carrying each project forward. Until final determination, each party has necessarily decided for itself which such work it will undertake. In some instances the results have not yet been published, and some are still being disclosed. Because new data may continue to be presented even during the Hearing (we hope not for the purpose of "surprise"), it is especially important that the parties avoid inflexible or final adversarial positions at this time. Finally, no party will "win" or "lose" if 2,4,5-T is approved or banned. Even were Dow to bow out (which it has no intention of doing), the public is entitled to a fair and proper conclusion as to whether it may use the product. It should be the function of the parties to help fashion a proceeding under this new statute, in which science can present its data and conclusions fully and in scientific fashion, without the calumny, invective and charge of improper motivation which have sometimes characterized other proceedings. Dow — and everyone — will win if at the end it can be properly concluded that a just and equitable balancing of all the risks and all the 40 �benefits was conducted. The integrity of the process itself is the most important issue of all. Dated: New York, New York, March 21, 1974. Respectfully submitted, KAYE, SCHOLER, FIERMAN, HAYS & HANDLER. Hearing Attorneys for Registrant, The Dow Chemical Company. 425 Park Avenue, New York, New York 10022. Additional Address for Hearing 1625 I Street, N.W., Suite 707, Washington, D.C. 20006. Tel. 202-833-9430 Miriam C. Feigelson, Michael J. Traynor and Milton R. Wessel, of Counsel. 41 �CERTIFICATE OF SERVICE I hereby certify that a copy of the attached Dow Prehearing Memorandum (No. 4), dated March 21, 1974 was served today by postage prepaid mail, upon the persons whose names and addresses are listed below: Amchem Products, Inc. Ernest G. Szoke, Chief Counsel Brookside Avenue Ambler, Pennsylvania 19002 American Farm Bureau Federation William J. Kuhfuss, President 225 Touhy Avenue Park Ridge, Illinois 60068 Association of American Railroads Harry J. Breithaupt, Jr., Esq. General Counsel Law Department American Railroads Building Washington, D.C. 20036 Environmental Defense Fund, Inc. Consumers Union of United States, Inc, Harrison Wellford William A. Butler, Esq. 1525 18th Street, N.W. Washington, D.C. 20036 Environmental Protection Agency Timothy L. Barker, Esq. Office of General Counsel 401 M Street, S.W. Washington, D.C. 20460 National Forest Products Association William D. Rogers, Esq. Richard Wertheimer, Esq. Arnold & Porter 1229 Nineteenth Street, N.W. Washington, D.C. 20036 �Thompson-Hayward Chemical Company C. E. Lombard!, Jr., Esq. Blackwell Sanders Matheny Weary & Lombard! Five Crown Center 2480 Pershing Road Kansas City, Missouri 64108 Transvaal, Inc. J. Robert Hasness Director of Technical Services P. O. Box 69 Jacksonville, Arkansas 72076 United States Department of Agriculture Raymond W. Fullerton, Esq. Alfred R. Nolting, Esq. Margaret Bresnahan Carlson, Esq. Office of the General Counsel 12th & Independence Sts., S.W. Washington, D.C. 20250 United States Department of Transportation J. Thomas Tidd, Esq. General Counsel Washington, D.C. 20590 Dated: Washington, D.C. March 21, 1974 ^ Milton R. Wessel � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Alvin L. Young Collection on Agent Orange Description An account of the resource <p style="margin-top: -1em; line-height: 1.2em;">The Alvin L. Young Collection on Agent Orange comprises 120 linear feet and spans the late 1800s to 2005; however, the bulk of the coverage is from the 1960s to the 1980s and there are many undated items. The collection was donated to Special Collections of the National Agricultural Library in 1985 by Dr. Alvin L. Young (1942- ). Dr. Young developed the collection as he conducted extensive research on the military defoliant Agent Orange. The collection is in good condition and includes letters, memoranda, books, reports, press releases, journal and newspaper clippings, field logs and notebooks, newsletters, maps, booklets and pamphlets, photographs, memorabilia, and audiotapes of an interview with Dr. Young.</p> <p>For more about this collection, <a href="/exhibits/speccoll/exhibits/show/alvin-l--young-collection-on-a">view the Agent Orange Exhibit.</a></p> Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Box The box containing the original item. 177 Folder The folder containing the original item. 5214 Series The series number of the original item. Series VIII Subseries I Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Creator An entity primarily responsible for making the resource Wessel, Milton R. Description An account of the resource <strong>Corporate Author: </strong>The Dow Chemical Company Date A point or period of time associated with an event in the lifecycle of the resource March 21 1974 Title A name given to the resource Environmental Protection Agency (EPA) Before the Administrator, In re: 2,4,5 -Trichlorophenoxyacetic Acid (2,4,5 -T), F.I.F.R.A. Docket Number 295, et al., Dow Prehearing Memorandum (No. 4) ao_seriesVIII