issue is denied. We fear a stay would slow or halt discovery needed by the plaintiff to persuade the administrator of the EPA to initiate action as well as to further her cause in the special review process. In fact, the very nature of the special review process suggests that discovery should go forward. Without information derived therefrom, the EPA might be left with data from only one of the litigants -- Chemlawn. Additionally, allowing discovery to go forward will minimize delay at a later date should this court decide that the EPA has had ample time in which to render a result. If we halt discovery now, we could add a year or more to the eventual resolution of this lawsuit.
While not granting defendant's motion to stay, this court strongly urges plaintiff to start the administrative ball rolling, and our decision not to grant a stay assumes that she will do so. Discovery should continue coterminous with the EPA review. If this court should later determine that because of the duration of the EPA review Roberts is being prejudiced, a trial date will be set and the case will proceed accordingly. Meanwhile, we will continue to hold status conferences in order to supervise discovery and be kept apprised of the review progress.
It should be stressed that in all the above cases a stay was granted for a maximum of nine months, and most deferred to ongoing proceedings. Those courts reasonably expected a decision from the administrative agency within the specified time period. We have no comparable expectation here. According to the GAO, the quickest period in which the EPA could complete the special review is two years -- and that estimates the delay for a single evaluation. Here, however, disputes exist over the safety of eight separate pesticides as well as their various mixtures and combinations (pl. mem. in resp. at 5 n.1). Given how rarely courts have been asked to invoke primary jurisdiction in the face of such potentially large delays, we feel our departure from the norm is justified.
We first noted our preference for administrative relief, but we have expressed our concern with the potential delay. For the moment, those fears excuse plaintiff from exhausting her administrative remedies. Echoing one of the conventional exceptions, the Tenth Circuit has stated that "nor will exhaustion of administrative remedies be required where it would result in irreparable harm. This is especially true where time is crucial to the protection of substantive rights and administrative remedies would involve delay." R. E. Martinez et al. v. Richardson et al., 472 F.2d 1121, 1125 (10th Cir. 1973); see also Walker v. Southern Ry. Co., 385 U.S. 196, 198, 17 L. Ed. 2d 294, 87 S. Ct. 365 (1966) (results of a congressionally-initiated inquiry that administrative relief could take up to ten years justified excusing exhaustion); Smith et al. v. Illinois Bell Telephone Co., 270 U.S. 587, 591, 70 L. Ed. 747, 46 S. Ct. 408 (1926) (agency delay of two years in action challenging telephone rate schedule justified excusing exhaustion); New Mexico Association for Retarded Citizens v. State of New Mexico, 678 F.2d 847, 850 (10th Cir. 1982) (delay in suits challenging government treatment of handicapped individuals in the public schools justified excusing exhaustion); Camenisch v. University of Texas, 616 F.2d 127, 133 (5th Cir. 1980) vacated on other grounds, 451 U.S. 390, 68 L. Ed. 2d 175, 101 S. Ct. 1830 (1981) (delay in reviewing requests by handicapped students for special treatment by the university justified excusing exhaustion). Plaintiff alleges that the requisite irreparable harm would befall her during any administrative delay (pl. mem. in resp. at 7). Verification of that contention will have to await further factual development for at this stage we take all well-pleaded allegations as true.
Ryan concludes that "the unique factual setting of this case requires Ryan to exhaust administrative remedies." Ryan v. Chemlawn, supra, slip op. at 1. We again choose to exercise our discretion differently. The cases invoked thereafter recognize that "were the prescribed administrative procedure" shown "to be inadequate to prevent irreparable injury," courts should decline to require exhaustion. Babcock and Wilcox Co. v. Marshall, 610 F.2d 1128, 1138 (3d Cir. 1979) (citations omitted); see also Bethlehem Steel Corp. v. E.P.A., 669 F.2d 903, 907 (3d Cir. 1982) ("Another exception to the exhaustion requirement [is] applied when irreparable injury will result unless the court promptly intervenes in the administrative process. . . .") (citation omitted). We disagree with Judge Conlon only in our application of the facts to that judicially-created exception. As previously mentioned, we take as true plaintiff's allegation of the requisite irreparable harm. That representation compels us to deny defendant's motion to require the exhaustion of administrative remedies.
For the foregoing reasons, defendant's motion to dismiss is denied, as is its motion, in the alternative, to stay these proceedings.