Hercules, Inc. v. EPA

598 F.2d 91 (D.C. Cir. 1978)


The EPA passed regulations pertaining to toxaphen and endrin. These regulations grew out of 553 notice and comment rule-making proceedings. Pre-1976 internal rules barred an administrator or the presiding officer in a hearing from consulting with any person or party on a fact at issue. In 1976, the EPA changed that rule deleting the ex parte contact rule as unnecessary. Instead, the EPA allowed the administrator to get such staff assistance deemed appropriate to review the record and to file a tentative decision thereon. The EPA conducted the present proceedings under the new rules and its chief officer, Marple, was assigned to aid the Administrator in preparing a final decision. Marple, as part of her job then contacted five different persons to aid in getting the tentative ruling out by the mandated deadline. Marple claimed that the contacts were for the sole purpose of properly understanding and interpreting the record. Hercules, (P) contends that such staff contacts were impermissible and offended the principles underlying, the Home Box Office decision and are inconsistent with fundamental notions of fairness, implicit in due process. EPA contends that Congress expressly sanctioned staff contacts under section 554(d) and 553, 556 and 557.