&EPA
ABOUT
Enforcement Alert
United States
Environmental Protection
Agency
Office of Enforcement and
Compliance Assurance
(2201A)
EPA300-N-98-004
August 1998
Enforcement Alert
Office of Regulatory Enforcement
August 1998
Pesticide Labels Must Warn
Workers of Health Risks
The Enforcement Alert is
published periodically by
EPA's Office of Regulatory
Enforcement. It informs
and educates the public
and regulated community
of important environmental
enforcement issues, recent
trends and significant
enforcement actions.
This information should
help the regulated
community anticipate and
prevent violations of
federal environmental law
that could otherwise lead
to enforcement action.
See Page 2 for useful EPA
Websites and additional
resources.
Eric V. Schaeffer
Director, Office of
Regulatory Enforcement
DuPont Penalized for
Violating Worker
Protection Standard rule
Federal law requires that pesticide
labels must warn workers of risks and
protections that must be taken when
applying the product.
In a landmark decision issued April
30, 1998, an Environmental Protection
Agency judge imposed the largest
administrative
penalty in the
Agency's history
against E.I. DuPont
de Nemours & Co.
("DuPont") for vio-
lating these re-
quirements.
WHAT THE LAW REQUIRES:
Section 12(a)(l)(E) of the Federal Insecticide,
Fungicide, Rodenticide Act, 7 U.S.C, §136j,
prohibits the sale or distribution of misbranded
pesticides.
EPA Administra-
tive Law Judge Ed-
ward J. Kuhlmann
ordered DuPont to
pay $1.89 million
for ignoring EPA
orders to stop ship-
ping pesticides with labels that omit-
ted protective eyewear warnings re-
quired by the Worker Protection Stan-
dard rule ("WPS rule"). The WPS rule
was enacted under the Federal Insecti-
cide, Fungicide and Rodenticide Act
("FIFRA") in August 1992 to reduce
the number of pesticide-related ill-
nesses and injuries to agricultural
workers from on the job pesticide ex-
posures. In publishing the rule, the
Agency determined that protective
eyewear and other simple safety mea-
sures would "reduce substantially the
number of pesticide-related illnesses
and injuries to agricultural employees."
http://www. epa.gov/oeca/enfalert
FIFRA §2(q)(l)(G) defines a pesticide as
misbranded "if the does not contain a warning or a
caution statement which may be necessary and if
complied with... is adequate to protect health and
the environment."
The Worker Protection Standard rule, 57 Fed.
Reg. 38102 (1992) (codified at 40 C.F.R., Parts 156
and 170) stipulates that protective eyewear and
other early entry personal protective equipment are
necessary to lessen "unreasonable risks" to
agricultural workers from on the job pesticide
exposures.
In the complaint filed in October
1994, EPA alleged that DuPont sold and
distributed Bladex and Extrazine her-
bicides without the protective eyewear
label warnings required by the WPS
rule. The complaint charged that
DuPont sold these misbranded herbi-
cides on 379 occasions after receiving
a written Notice of Serious Error, which
stated in bold upper case letters that
DuPont "MUST NOT SELL OR DIS-
TRIBUTE" the products. Based on
__ cost and pricing
information ob-
tained from
DuPont follow-
ing the court or-
der, EPA calcu-
lated that the
company's made
more than $9.4
million from
sales of the mis-
branded pesti-
cides.
In his deci-
sion, Judge
Kuhlmann found
DuPont liable for all 379 violations al-
leged by EPA. In assessing the maxi-
mum penalty allowable under federal
law, the Judge found that
"Respondent's knowing violation of an
agency order demonstrates a failure to
exercise due care." "[DuPont's] culpa-
bility is established by its decision not
to cease shipments of the Bladex and
Extrazine products in April 1994 de-
spite its receipt of the Notices of Seri-
ous Error on March 16 and 22, 1994."
Kuhlmann found that DuPont's ac-
tions created the potential for serious
continued on Page 2
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Enforcement Alert
harm to human health and the environ-
ment, stating that "[a]ctions like those
taken by Respondent in this case —
shipping pesticides with labels found
by the Agency to contain serious errors
after being expressly told not to do so -
- interfere with the Agency's ability to
carry out its statutory mandate to pro-
tect human health and the environment
and thus present a clear threat to the
FIFRA regulatory scheme." DuPont's
actions "created the potential for seri-
ous or widespread harm to human
health and the environment by prevent-
ing achievement of the basic goals of
the WPS and FIFRA," Kuhlmann added.
In addition to the record penalty, this
was the first case to be tried under the
WPS rule. When publishing the rule,
EPA estimated that tens of thousands
of agricultural workers were experienc-
ing acute illness and injuries each year
as the result of occupational exposures
to pesticides. The Agency estimates that
more than 3.5 million farmworkers and
other pesticide handlers should be re-
ceiving protection today because of the
WPS rule.
CASE HIGHLIGHTS:
• This is the first court decision involving
the new FIFRA Worker Protection
Standard rule.
• Citing Johnson-Pacific and Sav-Mart,
Judge Kuhlmann noted in his decision
that FIFRA penalties are designed to
"deter future violations" and that such
deterrence includes "recovery of
economic benefit" to take "away the
economic incentive to violate the law."
• Judge Kuhlmann concluded that
DuPont's defiance of EPA orders, the
harm to the EPA's regulatory program
and the $9.4 million profit enjoyed by
DuPont were reasonable bases for his
sweeping decision.
For more information contact:
Mark Garvey, (202) 564-4168 or
Robert Darnell, (202) 564-4176.
EPA's Audit Policy
EPA's Audit Policy reduces
and, in some cases, eliminates
penalties for companies that
voluntarily disclose and
correct violations of federal
law. For more information
about the Audit Policy, see
EPA's Audit Policy Website at:
http://www. epa.gov/oeca/
auditpolhtml
Enforcement Alert
Editor: Virginia Bueno, (202) 564-8684.
bueno. Virginia @epamail. epa.gov.
Layout & design: Sarah Weaver,
weaver.sarah<3>epamail.epa.gov.
Useful Websites
EPA HOMEPAGE
http://www.epa. gov/epahome
OFFICE OF ENFORCEMENT AND
COMPLIANCE ASSURANCE (OECA)
http: //www. ep a. gov/oeca/index. html
OFFICE OF REGULATORY
ENFORCEMENT (ORE)
http://www.epa.gov/oeca/ore.html
ORE'S OFFICE OF TOXICS &
PESTICIDES ENFORCEMENT
DIVISION
http://www.epa.gov/oeca/ore/tped/
OFFICE OF PESTICIDES,
PREVENTION AND TOXIC
SUBSTANCES (OPPT)
http://www.epa.gov/internet/oppts/
OPPT'S OFFICE OF PESTICIDE
PROGRAMS
http: //www. ep a. gov/pesticides/
OPPT'S PESTICIDE APPLICATOR
AND WORKER SAFETY
HOMEPAGE: http://www.epa.gov/
oppfeadl/work_saf/
NATIONAL AGRICULTURE
COMPLIANCE ASSISTANCE
CENTER
http://www.ine.gov/oeca/aghmpg.html
NATIONAL CENTER FOR
ENVIRONMENTAL PUBLICATIONS
AND INFORMATION (NCEPI)
CATALOG:
http: //www. ep a. gov/ncepihom/
catalog.html
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Environmental Protection Agency
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