Summary of a Recent
Judicial Development in
Environmental Law

FIFRA's Provisions Are Not Applied Retroactively

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Morgan v. Powe Timber Co., 367 F. Supp. 2d 1032 (S.D. Miss. 2005), the United States District Court for the Southern District of Mississippi granted in part and denied in part a former facility owner's motion for summary judgment. Plaintiffs brought action against the former owner of a wood processing facility, seeking damages for injuries Plaintiffs sustained from exposure to wood-treating chemicals. The court held that Plaintiffs' claims against the owner for failure to convey warnings from the United States Environmental Protection Agency (EPA) regarding the handling of treated wood products were not entirely preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Background

Defendant operated a wood processing facility in Mississippi. Id. at 1034. Eighty-one Plaintiffs brought the instant action against Defendant alleging wrongful death and other personal injuries stemming from exposure to various chemicals contained in Defendant's treated wood products. Id. After treating and processing the wood, Defendants sold the by-products, such as spare wood chips, to the public "for use as an alternative fuel source for heating and cooking." Id. Plaintiffs claimed that Defendant "knew or should have known of the dangerous propensity of the wood chips to cause harm to those who might be exposed to the wood chips, [but] failed to provide reasonable, adequate and timely warnings of the hazards associated with exposure to treated wood." Id.

Arguments

Defendant argued that Plaintiffs' claims were preempted by FIFRA because the claims were based on a failure to warn; therefore, Defendant motioned for summary judgment. Id. at 1040.

Plaintiffs disputed FIFRA's application to their claims, arguing the following:

(1) FIFRA preemption extend[ed] only to manufacturers, sellers and distributors of EPA registered pesticides and [did] not extend to 'applicators' such as [Defendant]; (2) FIFRA [did] not apply to the products at issue because treated wood products [were] exempt from all provisions of FIFRA pursuant to the treated articles exemption codified at 40 C.F.R. § 152.25; (3) [Defendant] never sought to register any product with the EPA and there [was] no EPA-approved warning label applicable to the products of [Defendant] to which FIFRA preemption would apply; and (4) alternatively, all of plaintiffs' claims [did] not arise from [Defendant's] failure to warn so that even if FIFRA preemption applied to [P]laintiffs' failure to warn claims, FIFRA [did] not preempt [P]laintiffs' claims against [Defendant] for negligence in the sale of treated wood chips or for the sale of an unreasonably dangerous product.
Id. at 1041.

Analysis and Holdings

The court addressed each of Plaintiffs' arguments in turn. First, the court addressed Plaintiffs' argument that treated wood was exempt from FIFRA pursuant to 40 C.F.R. § 152.25. Id. at 1041-42. Defendant argued that the provision had no relevance to the present dispute because it was enacted eight years after Defendant sold the facility. Id. at 1042. Agreeing with Defendant, the court held that "application of the treated articles exemption to [Defendant's] conduct predating its enactment would have an impermissible retroactive effect." Id.

Next, the court addressed Plaintiffs' assertion that FIFRA extended to manufacturers, sellers, and distributors of EPA-registered pesticides, but did not extend to applicators like Defendant. Id. at 1043-44. After considering the parties' arguments, the court agreed with Defendant, holding that FIFRA's preemption analysis "focuses not on whom the legal duty [was] imposed, but on whether the legal duty constitute[d] a state law requirement to provide information in addition to or different from the label." Id. at 1044 (quoting Taylor AG Indus. v. Pure-Gro, 54 F.3d 555, 561 n.3 (9th Cir. 1995)). For this reason, Plaintiffs could not escape preemption solely based on Defendant's status as an applicator. Id.

The court then addressed Plaintiffs' assertion that their claims were not all based on a failure to warn. Id. at 1045. Specifically, Plaintiffs pointed to their claims for strict liability and negligence in selling an unreasonably dangerous product. Id. They reasoned that such claims were not based on failure to warn because no warning would have made the wood chips safe for the end use intended by Defendant, and therefore the claims could not be preempted by FIFRA. Id. Because Defendant failed to put forth any evidence "as to whether warnings of any kind could have made the wood chips reasonably safe for any use," the court was "unable to conclude as a matter of law that FIFRA preempt[ed] plaintiffs' putative negligence and strict liability claims." Id.

The case was decided on March 24, 2005.