I.F.R. 1601-1650 Issued January 1976
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF ENFORCEMENT
OFFICE OF GENERAL ENFORCEMENT
PESTICIDES ENFORCEMENT DIVISION
NOTICES OF JUDGMENT UNDER THE FEDERAL
INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
Nos. 1601-1650
Notices of Judgment report cases involving seizure actions
taken against products alleged to be in violation, and criminal and
civil actions taken against firms or individuals charged to be respon-
sible for violations. The following Notices of Judgment are approved
for publication as provided in Section 16(d) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136n).
Stanley W. Legro
Assistant Administrator
for Enforcement
Washington, D.C.
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1601. In Re: Astor Exterminating Company, EPA Region I,
January 22, 1975. (I.F&R. Nos. 1-11C and I-15C, I.D. Nos.
102863,102868 and 102861.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(A); 136(q)(l)(G); 136[q)(2)(C)(iii); and
136(q)(2)(C)(v). The action pertained to products held for distribution
or sale on December 16, 1973, at Astor Exterminating Company,
Charlestown, Massachusetts. The pesticides involved were ASTOR-X
75% CHLORDANE EMULSION CONCENTRATE, ASTOR-X SAP-
BRAND VAPORIZING CONCENTRATE, and ASTOR-X RE-SIST-
O-SPRAY; the charge was misbranding—lack of adequate warning
or caution statement on labels, lack of adequate net content
statement on labels, and lack of assigned registration number on
labels.
The respondent signed a Consent Agreement. The Final Order
assessed a penalty of $1,950.00.
1602. U.S. v. Sudbury Laboratory, Inc., U.S. District Court,
Massachusetts, Criminal No. 72-59(b), May 18, 1973.
(I.F.&R. Nos. l-C-5 and l-C-7, I.D. Nos. 96076 and 69472.)
This was a criminal action prepared by EPA Region I charging the de-
fendant in a three count information with violating the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 135a(a)(1);
135a(a)(5); 135b; and 135(z)(l). The action pertained to shipments
made on March 13 and July 22, 1971, from Sudbury, Massachusetts,
to East Providence, Rhode Island, and Landover, Maryland. The
pesticides involved were SUDBURY CHAPERONE SQUIRREL RE-
PELLENT and CHAPERONE LIVESTOCK SPRAY; charges included
nonregistration and misbranding—labels bore false or misleading
statements.
The defendant entered a plea of nolo contendere to count 1. The
remaining counts were dismissed.
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A fine of $250.00 was levied.
1603. U.S. v. Delro Industries, Inc., U.S. District Court,
Massachusetts, Criminal No. 74-215-F, December 6, 1974.
(I.F.&R. No..l-C-9, I.D. Nos. 96116, 96117, 96114, 96115,
and 96157.)
This was a criminal action prepared by EPA Region I charging the de-
fendant in a 13 count information with violating the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 135a(a)(l);
135a(a)(5); 135b; 135ala)(2)(c); 135(z)(2)[d); 135(z)(l); 135(y);
135(z)(2)(e); and 135(o). The action pertained to shipments made on
April 8, April 22 and October 18, 1972, from Springfield,
Massachusetts, to Newington and South Windsor, Connecticut. The
pesticides involved were AQUAMAID E-Z TABS STABILIZED
CHLORINE TABLETS, AQUAMAID ALGAECIDE 10, AQUA-
MAID SHOCK TREATMENT, AQUAMAID QUICK DISSOLVE E-
Z TABS STABILIZED CHLORINE TABLETS, and AQUAMAID
WINTERIZER; charges included claims made for products differed in
substance from the representations made in connection with their re-
gistration, nonregistration, adulteration and misbranding—its
strength or purity fell below the professed standard of quality as ex-
pressed on its labeling and labels failed to bear a net content
statement.
The defendant entered a plea of guilty to counts 3, 5, 6, 9 and 12.
The remaining counts were dismissed.
A fine of $2,300.00 was levied.
1604. In Re: Holder Corp., EPA Region III, December 11, 1974.
(I.F.&R. No. III-48C, I.D. Nos. 93543, 93550, 93551, and
93555.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136(q)(2)(C)(v); and
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136(q)(2)(C)(iii). The action pertained to a product held for distribution
or sale on January 11, 1974, at Holder Corp., Huntington, West
Virginia. The pesticides involved were CABELL'S SEVIN 50-W,
RHODO ROACH RIDDER, CABELL'S TOMATO DUST, and NEW
KLANE; the charge was misbranding—lack of adequate warning or
caution statement on labels, lack of assigned registration number on
labels, lack of net content statement on labels and labels bore false or
misleading claims.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,500.00.
1605. In Re: Eastern Shore Lobs, Inc., EPA Region III, January 2,
1975. (I.F.&R. No. III-44C, I.D. No. 104280.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(1)(E) and 136(q)(1}(A). The action pertained to a product held
for distribution or sale on September 25, 1973, at Eastern Shore
Labs, Inc., Laurel, Delaware. The pesticide involved was NEW ESL
QUAT 20; the charge was misbranding—labels bore false or
misleading claims.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,500.00.
1606. In Re: Amchem Products, Inc., EPA Region III, January 9,
1975. (I.F.&R. No. III-59C, I.D. No. 117548.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(1)(E) and 136(q)(1)(F). The action pertained to a product held
for distribution or sale on April 4, 1974, at Amchem Products, Inc.,
Ambler, Pennsylvania. The pesticide involved was EMULSAMINE
2,4,5-T; the charge was misbranding—labels failed to bear
adequate directions for use.
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The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $ 1,000.00.
1607. In Re: Commercial & Industrial Prods. Co., EPA Region III,
January 24, 1975. (I.F.&R. No. III-53C, I.D. Nos. 93583,
93584 and 93585.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l}; 135b; 136j(a)(l)(E); and 136(q)(l)(A). The action
pertained to a product held for distribution or sale on January 22,
1974, at Commerical & Industrial Prods. Co., Childs, Pennsylvania.
The pesticides involved were CIPCO PINE A-TROL, CIPCO PINE
OIL DISINFECTANT COEF. 5, and PYNOCIDE PINE ODOR
DISINFECTANT; charges included nonregistration and
misbranding—labels bore false or misleading claims.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $500.00.
1608. In Re: Standard Chlorine of Delaware Co., Inc., EPA
Region III, March 21, 1975. (I.F.&R. No. III-58C, I.D. No.
119127.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l); 135b; 136j[a)(l){E); 136(q)(l)(G); 136(q)(2)(A); and
136(q)(2)(C)(i). The action pertained to a shipment made on February
27, 1974, from Delaware City, Delaware, to Woburn, Massachusetts.
The pesticide involved was PARADICHLOROBENZENE 300 612;
charges included nonregistration and misbranding—lack of warning
or caution statement on labels, lack of adequate ingredient statement
on labels, and lack of statement on labels giving the name and
address of the producer, registrant, or person for whom
manufactured.
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The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,400.00.
1609. In Re: CMC, Inc., d/b/a Cumberland Manufacturing Co.,
EPA Region IV, February 12, 1975. (I.F.&R. No. IV-90-C,
I.D. No. 116369.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l). The action pertained to a shipment made on April 10,
1974, from Nashville, Tennessee, to Quincy, Flordia. The pesticide
involved was SWAN CITRONELLA OIL; the charge was
nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,800.00.
1610. In Re: Monsey Products Company, EPA Region IV,
February 13,1975. (I.F.&R. No. IV-105-C, I.D. No. 110431.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135(a)(l); 135b; 136j(a)(l)(E); 136(q)(l)(G); and 136(q)(2)(A). The
action pertained to a shipment made on September 11, 1974, from
Rock Hill, South Carolina, to Athens, Georgia. The pesticide involved
was GUARDSEAL CREOSOTE WOOD PRESERVING
COMPOUND (DARK); charges included nonregistration and mis-
branding—lack of warning or caution statement and lack of
adequate ingredient statement on labels.
The Final Order Upon Default assessed a civil penalty of $480.00.
1611. In Re: M. J. Daly Company, Inc., EPA Region IV, March 6,
1975. (I.F.&R. No. IV-96-C, I.D. No. 115502.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
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135a(a}(l) and 135b. The action pertained to a shipment made on
May 8, 1974, from Ludlow, Kentucky, to Cincinnati, Ohio. The
pesticide involved was DARK CREOSOTE WOOD
PRESERVATIVE; the charge was nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,000.00.
1612. In Re: Old South Sales Company, EPA Region IV, March
6,1975. (I.F.&R. No. IV-101-C, I.D. No. 116539.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l) and 135b. The action pertained to a shipment made on
April 22, 1974, from Andalusia, Alabama, to Chattanooga,
Tennessee. The pesticide involved was OLD HICKORY RAT &
MOUSE BAIT PROLIN; the charge was nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $120.00.
1613. In Re: Gold Kist, Inc., EPA Region IV, March 7,1975.
(I.F.&R. No. IV-106-C, I.D. Nos. 116777 and 116778.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E) and 136(c)(l). The action pertained to products held for
distribution or sale on May 8, 1974, at Gold Kist, Inc., Cordele,
Georgia. The pesticides involved were GO GETTUM and ONE-
SHOT Z-P DUST; the charge was adulteration—strength or purity
fell below the professed standard of quality as expressed on its
labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3220.00.
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1614. In Re: O. M. Scott & Sons Company, EPA Region V,
November 13, 1974. (I.F.&R. No. V-202C, I.D. No. 94070.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(A) and 136(c)(l). The action pertained to a
product held for distribution or sale on August 24, 1973, at O. M.
Scott & Sons Company, Marysville, Ohio. The pesticide involved was
SCOTTS HALTS PLUS FOR ESTABLISHED LAWNS; charges in-
cluded adulteration and misbranding—strength or purity of product
fell below the professed standard as represented in labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1250.00.
1615. In Re: Amway Corporation, EPA Region V, December 20,
1974. (I.F.&R. No. V-l 1C, I.D. No. 87313.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l); 136j(a)(1)(E); and 136(q)(l)(A). The action pertained to a
shipment made on May 10, 1973, from Ada, Michigan, to Madison,
Wisconsin. The pesticide involved was AMWAY GERMICIDAL
CONCENTRATE; charges included claims differed from those made
in connection with the registration of the product and misbranding—
labels bore false or misleading safety claim.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $500.00.
1616. In Re: Chesebrough-Ponds, Inc., EPA Region V, December
31,1974. (I.F.&R. No. V-203C, I.D. No. 102294.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l}; 135b; 136j(a)(l)(E); 136(q)(l)(G); and 136(q)(l)(F). The
action pertained to shipments made on July 26 and August 23, 1973,
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from Monticello, Indiana, to Kansas City, Missouri. The pesticide
involved was ANTISEPTIC AND GERMICIDE TINCTURE
SOLUTION 1:750; charges included nonregistration and
misbranding—inadequate precautionary statement and directions
for use on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $ 1875.00.
1617. In Re: Copesan Services, Inc., EPA Region V, December
31,1974. (I.F.&R. No. V-204C, I.D. No. 94319.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E) and 136(q)(l)(A). The action pertained to a product held
for distribution or sale on August 29, 1973, at Copesan Services, Inc.,
Milwaukee, Wisconsin. The pesticide involved was WIL-KIL READY-
TO-USE RAT AND MOUSE BAIT; the charge was misbranding—
product was not fully effective for purposes claimed.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $250.00.
1619. In Re: Ventron Corporation, EPA Region V, December 31,
1974. (I.F.&R. No. V-209C, I.D. No. 116501.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l}; 135b; 136j(a}(l)(E); 136(q)(l)(G); and 136(q)(2)(A). The
action pertained to a shipment made on March 20, 1973, from
Chicago, Illinois, to Louisville, Kentucky. The pesticide involved was
G-4 TECHNICAL; charges inc'uded nonregistration and mis-
branding—inadequate precautionary statements and lack of
ingredient statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2500.00.
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1619. In Re: Century Industries Corporation, EPA Region V,
January.13, 1975. (I.F.&R. No. V-59C, I.D. Nos. 93578 and
104527.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l); 135b; 136j(a)(l)(E); 136(q)(2)(A); 136(q)(l)(G); and
136(q)(l)(F). The action pertained to shipments made on December 8,
1972, and February 14, 1973, from New Waterford, Ohio, to
Montgomeryville and Cheltenham, Pennsylvania. The pesticides
involved were GIRARD LIQUID CRESOTE OIL and CENTURY 5%
PENTA WOOD PRESERVER; charges included nonregistration and
misbronding—lack of an ingredient statement, lack of adequate
caution or warning statement, and lack of adequate directions for use
on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,000.00.
1620. In Re: Chemed Corporation, EPA Region V, January 13,
1975. (I.F.&R. No. V-210-C, I.D. No. 115469.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E) and 136(q)(l)(G). The action pertained to a product held
for distribution or sale on March 13, 1974, at DuBois Chemicals, Div.
of Chemed Corp., Sharonville, Ohio. The pesticide involved was
DUBOIS CL-9 SANITIZER; the charge was misbranding—in-
adequate precautionary statements on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $720.00.
1621. In Re: Science Products Company, Inc., EPA Region V,
January 13, 1975. (I.F.&R. No. V-79C, I.D. Nos. 87352 and
93649.)
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This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(A) and 136(c)(l). The action pertained to
shipments made on January 19 and April 23, 1973, from Chicago,
Illinois, to Florence, Kentucky, and St. Paul, Minnesota. The pesticide
involved was SCIENCE GLADIOLUS AND BULB DUST; charges in-
cluded adulteration and misbranding—in one instance the strength or
purity fell below the professed standard of quality expressed on its
labeling and in the other instance the strength or purity exceeded the
professed standard of quality expressed on its labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1000.00.
1622. In Re: Great Lakes Biochemical Co., Inc., EPA Region V,
January 17,1975. (I.F.&R. No. V-51C, I.D. Nos. 93903 and
93907.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l); 136j(a)(1)(E) and 136(q)(l)(A). The action pertained to
products held for distribution or sale on July 25, 1973, at Great Lakes
Biochemical Co., Inc., Milwaukee, Wisconsin. The pesticides involved
were ALGIMYCIN PLL-C and ALGIMYCIN GLB-X; charges in-
cluded claims differed from those made in connection with the re-
gistration of the product and misbranding—labels bore false or
misleading safety claim.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $500.00.
1623. In Re: Twinoak Products, Inc., EPA Region V, January 17,
1975. (I.F.&R. No. V-207C, I.D. No. 114960.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E) and 136(q)(1)(G). The action pertained to a product held
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for distribution or sale on February 27, 1974, at Twinoak Products,
Inc., Batavia, Illinois. The pesticide involved was 120 DAY
AUTOMATIC BOWL CLEANER; the charge was misbranding—
inadequate precautionary statements on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1800.00.
1624. In Re: Physicians and Hospitals Supply Company, EPA
Region V, January 20, 1975. (I.F.&R. No. V-75C, I.D. No.
94396.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7
U.S.C..136j(a)(l)(E); 136(q)(l)(G); 136(q)(l)(F); 136(q)(l)(A); and
136(q)(2)(C)(v). The action pertained to a product held for distribution
or sale on September 20, 1973, at Physicians and Hospitals Supply
Company, Minneapolis, Minnesota. The pesticide involved was
CREDOL; the charge was misbranding—lack of adequate caution
statement on labels, lack of adequate directions for use on labels,
lack of assigned registration number on labels and labels bore a false
or misleading safety statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2500.00.
1625. In Re: Lenter Enterprises, Inc., EPA Region V, February
10,1975. (I.F.&R. No. V-82C, I.D. No.. 117178.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(1); 135b; 136j(a)(l)(E); and 136(q)(l)(A). The action
pertained to a shipment made on March 21, 1974, from Bloomfield
Hills, Michigan, to Decatur, Georgia. The pesticide involved was
WAX PATIO TORCH; charges included nonregistration and
misbranding—labels bore a false registration number implying that
the product was registered.
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The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $300.00.
1626. In Re: S. C. Johnson and Sons, Inc., EPA Region V,
February 18,1975. (I.F.&R. No. V-098C, I.D. No. 87191.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E) and 136(q)(l)(A). The action pertained to a product held
for distribution or sale on July 23, 1973, at S. C. Johnson and Sons,
Inc., Racine, Wisconsin. The pesticide involved was JOHNSON'S
KNOCK-OUT BACTERICIDE #1; the charge was misbranding—
labeling bore a false or misleading safety claim.
The Default Order assessed a civil penalty of $750.00.
1627. In Re: Velsicol Chemical Corporation, EPA Region V,
February 26, 1975. (I.F.&R. No. V-220C, I.D. No. 111476.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(G) and 136(q)(2)(A). The action pertained to a
shipment made on June 3, 1974, from Marshall, Illinois, to Casa
Grande, Arizona. The pesticide involved was TECHNICAL
CHLORDANE LIGHT; the charge was misbranding—inadequate
precautionary statements and lack of ingredient statement.
The Default Order assessed a civil penalty of $4800.00.
1628. In Re: Mihelich Nurseries, EPA Region V, March 7, 1975.
(I.F.&R. No. V-055C, I.D. No. 97890.)
This was a civil action charging the respondent wigh violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E) and 136(q)(l)(G). The action pertained to a product held
for distribution or sale on August 22, 1973, at Mihelich Nurseries,
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Warren, Michigan. The pesticide involved was CLOVER KILL; the
charge was misbranding—inadequate precautionary statements on
labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $630.00.
1629. In Re: New Plant Life Division, Charles O. Finley and
Company, Inc., EPA Region V, March 7, 1975. (I.F.&R. No.
V-094CJ.D. No. 115421.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E) and 136(q)(l)(G). The action pertained to a product held
for distribution or sale on April 9, 1974, at New Plant Life Division,
Charles O. Finley and Company, Inc., La Porte, Indiana. The pesticide
involved was NEW PLANT LIFE INSECTICIDE AND LEAF SHINE;
the charge was misbranding—inadequate precautionary statements
on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $500.00.
1630. In Re: Stauffer Chemical Company, EPA Region VI,
March 13,1975. (I.F.&R. No. VI-23C, I.D. No. 90948.)
This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge Frederick W. Denniston's Initial Decision.
By complaint, filed April 10, 1974, pursuant to 40 C.F.R.
168.30, Environmental Protection Agency, Region VI (Complainant)
alleged there was reason to believe that Stauffer Chemical Company
(Respondent) had violated the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), as amended [7 U.S.C. 135-135k; as
amended, 86 Stat. 973, 7 U.S.C. 136-136y (1972)]. Specifically, it
was alleged that on or about April 13, 1973, Respondent shipped the
product "CHLORDANE 8-E" from Houston, Texas, to Shreveport,
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Louisiana, and that the claims on the product's label did not conform
to the registered label, in violation of 7 U.S.C. 135a(a)(l). A civil
penalty assessment of $1,900.00 was proposed.
By amended complaint, filed August 15, 1974, accepted by
Order of September 4, 1974, the proposed assessment was increased
to $2,900.00.
By Answer, filed May 10, 1974, and amended Answer, dated
September 24, 1974, Satuffer denied the alleged violation and
requested a formal hearing, which was held in Houston, Texas, on
October 9, 1974, at which Stauffer was represented by Gary Ford,
Attorney, of Westport, Connecticut, and complainant was rep-
resented by Harless Benthul and Stan Curry, Attorneys, of Dallas,
Texas. Proposed Findings and Briefs, pursuant to 40 C.F.R. 168.45,
were filed by complainant and respondent, and replies were filed on
February 6, 1975.
Situs of Hearing: Initially, a controversy arose as to the location
of the hearing which Stauffer had requested. Stauffer first requested
that the hearing be held in Richmond, California, where it maintains
offices. When advised that it would appear that Houston, Texas, was
the proper site for the hearing, it then requested the hearing be held
in Westport, Connecticut, where its corporate headquarters are
located. Thereupon, the Notice of Hearing, dated September 6,
1974, specifying Houston, Texas, as the place of hearing was issued.
By Motion, dated September 30, 1974, Stauffer objected to Hous-
ton, Texas, as the place of hearing, citing Section 14(a)(3) of FIFRA
which specifies that hearings in this type of case must be held in the
"county, parish, or incorporated city of the residence of the person
charged." Certification of the Hearing Order to the Regional
Administrator for decision was requested. In the Motion, it was
contended the "residence" of Stauffer, is Wilmington, Delaware, as
it was incorporated in that state (although a hearing at that city was
not specifically requested). The Motion for a Certification was denied
by Order of October 4, 1974. The reasons for such denial are therin
stated and are reaffirmed hereby. Respondent did not renew
objection to the hearing site in its Proposed Findings and Brief.
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FINDING OF FACT
A. Stipulated Facts
1. On or about April 13, 1973, Stauffer (Respondent) shipped
the product "CHLORDANE 8-E" from Houston, Texas, to Sheveport,
Louisiana, consigned to Planters Seed Company.
2. Said product is a pesticide within the meaning of FIFRA [7
U.S.C. 136(u)].
3. The claims which appear on the label on said sample of ship-
ment, which relate to control of cut worms and mole crickets, do not
appear on the registered label [Reg. No. 476-875].
4. The dosage rates for termite control which appear on the
sample label differ from those on the registered label.
5. The claims made on the sample label regarding control of
mole crickets and cut worms, which do not appear on the registered
label, would be acceptable to EPA, and in the application of the Civil
Penalty Assessment Schedule in effect at the time of the issuance,
Complainant referred to Section 2(B) [claims would be acceptable]
rather than Section 2(A) [claims unacceptable] in the category
"Labeling Violations." Stated otherwise, the product would be
effective in the control of cut worms and mole crickets if those claims
had been made as part of Stauffer's registration.
6. Respondent, Stauffer Chemical Company, is a corporation in-
corporated under the laws of the State of Delaware, with its principal
office located in Westport, Connecticut, and manufactures a number
of pesticides.
B. Additional Facts
7. Mr. Edward Bunch, an employee of the Pesticide Registration
Division of EPA and its predecessor U.S. Department of Agriculture,
for many years, conducted tests of termite preparations at the Belts-
ville Research Center of USDA for eleven or twelve years and
1098
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subsequently reviewed labeling for registration and enforement
cases.
8. Bunch prepared the Enforcement Case Review (EPA Ex. No.
9) which led to this proceeding. He found the sample label did not
conform to the registered label in that it bore claims for cut worms
and mole crickets that do not appear on the registered label; in
addition, the termite directions of the sample label do not provide a
dosage rate of 1 gallon per linear foot for deep trenches, also
appearing on the registered label.
9. The dosage rate on the sample label for termites would not be
effective for deep trenches, but would be effective for shallow
trenches of 15" to 18" deep. The greater amount of dirt from the
deeper trenches, which must be saturated, requires enough liquid to
accomplish that. The deep trenches require four gallons per five linear
feet, slightly less than one gallon per foot, rather than the one-half
gallon per foot stated on the sample label.
10. The registered label specifies a rate of one gallon per linear
foot for a 30" trench, which represents the regular laboratory policy
for dosage rates of this type. A Department of Agriculture pamphlet
on Subterranean Termites (Home and Garden Bulletin No. 64)
specifies a similar treatment, as does a bulletin put out by Velsicol,
the manufacturer of Chlordane.
11. A Summary of Registered Agricultural Pesticide Chemical
Uses, issued by the U.S. Department of Agriculture lists dosages for
many agricultural crops but does not include termite control.
12. EPA is in the process of preparing, but has not completed, a
compendium of pesticides including the dosage rates for termite
control, but permanent record cards are maintained containing this
information for EPA use which have not been communicated to
registrants.
13. Mr. Terrell Hunt of the Pesticides Enforcement Division of
EPA explained the methods by which the Agency's civil penalty
assessment schedule was constructed, to include the statutory factors
1099
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of (1) size of business of the person charged, (2) his ability to continue
in business, and (3) the gravity of the violation. The application of the
schedule to the facts of this case indicate assessment for a Category
III firm (gross sales in excess of $1,000,000.00 a year), for labeling
violations, Section Two (2) (B) — claims would be acceptable — of
$600 to $900; for Section Three, (2)(D)(2) — Partially Inefficacious
(Economic Fraud) — the assessment would be from $2,300.00 to
$2,700.00, or together, the range would be from $2,700.00, or
together, the range would be from $2,700.00 (the amount proposed)
to $3,600.00.
14. John Saylor, Stauffer's Labeling Registrar, supplied data
from the company files on the registration of the product in issue and
a related product.
15. By letter of July 14, 1971, EPA approved the registration of
STAUFFER CHLORDANE 8-E, USDA Reg. No. 476-875 in response
to a company submission dated April 28, 1971. The approval was
conditioned on stated modification being made in the label. The
formula of the approved product was 71.4 percent Chlordane Techni-
cal and 24 percent Xylene Range Aromatic Solvent, and 4.6 percent
Inert Ingredients.
16. By letter of July 13, 1971, EPA also approved the registra-
tion of STAUFFER CHLORDANE 8-E USDA Reg. No. 476-493, in
response to a company submission dated April 28, 1971. The
approval was conditioned on stated modifications being made in the
label. The formula of this product was somewhat similar, consisting of
72.3 percent Chlordane Technical, 22.3 percent Petroleum
Hydrocarbon Solvent, and 5.4 percent Inert Ingredients. The principal
difference between the two products is in the solvent utilized, but as
to each eight pounds of technical Chlordane per gallon, is provided.
Stauffer has the two products because in California and the West it
can buy the petroleum hydrocarbon solvent at a lower price than
xyelene, whereas in the East and Southwest the reverse is true. In its
regionalized operations, Stauffer marketed the two products in the
same manner, i.e., the Reg. 476—493 product is distributed in the
West Coast area and the product here in issue Reg. No. 476-875 is
distributed in the East and Southwest.
1100
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18. In the shipment here in issue, from Houston, Texas, to
Shreveport, Louisiana, the label was printed in Weslaco, Texas, in the
Southwest sales and manufacturing region. The person in charge of
the printing apparently took a West Coast label and its crop and
insect clains, which differed from the eastern U.S. claims, and
erroneously had it printed and they were applied to the shipment here
in issue from Stauffer's former plant and warehouse in Houston, a
facility which is being phased out.
19. The West Coast label, which had been approved by EPA,
contained a dosage rate in termites of half a gallon per linear foot in
a trench 1 to 2 feet deep. It also provided that for buildings with deep
footings, trenches should be 30" deep, but no mention was made of
an increased dosage rate.
20. By letter of June 17, 1974, subsequent to the filing of the
present complaint, EPA requested that Stauffer revise the label for
Reg. No. 476-493 (the West Coast product) to "provide for a dosage
rate of 1 /2 gallon per linear foot for trenches up to 15 inches deep
and 1 gallon per linear foot for trenches exceeding this depth. A 30"
trench should be provided for buildings with deep footings."
21. After the EPA complaint was filed, Stauffer took corrective
measures and sent out 44 Mail-O-Grams to its distributors, made a
number of telephone calls, printed new labels, relabeled 315 5-gallon
cans, and 2793 1 -gallon cans, incurred freight costs for the return of
the products for relabeling and reshipping to distributors, for which it
incurred an estimated cost of $1,782.51 for corrective measures. The
responsibility for printing labels has now been consolidated into the
Richmond, California, office to prevent further mistakes such as here
occurred.
CONCLUSIONS
The fact of violation in this proceeding is uncontested. The sole
question is whether the act committed may be viewed as two offenses
for which two separate penalties may be imposed, and hence, the
proper total penalty to assess. Additionally, Stauffer argues that,
under the facts, no penalty should be imposed.
1101
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Both complainant and respondent treat the violation as falling
under Section 3(a)(l) of the 1947 FIFRA(7 U.S.C. 135) as continued in
effect by Section 4(b) of the Federal Environmental Pesticide Control
Act of 1972 (PL. 92-516, 86 Stat. 973). That Section reads in
pertinent part, as follows:
Sec. 3a It shall be unlawful for any person to ... ship ... any of
the following:
(1) Any economic poison which is not registered pursuant
to the provisions of Section 4 of this Act, or any economic poison
if any of theclaims made for its use differ in substance from the
representations made in connection with its registration, or if the
composition of an economic poison differs ... [underscoring
supplied to significant language]
Each of the offenses alleged by complainant falls within the
underscored clause. While the construction of the Act suggests that
the underscored clause constitutes a single statutory offense — and
both of the alleged offenses fall wholly within the clause — it need
not here be decided if the two elements of the underscored clause
constitute a single statutory offense.1 In any event, the peculiar facts
of this case, as set out below, justify the conclusion that, in effect,
only a single penalty is appropriate.
Stauffer had two properly approved registrations for a product
of the same name and generally of similar content, one distributed on
the West Coast and the other in the Southwest and East Coast, the
latter product being here involved. An employee in printing a supply
of labels for the East Coast product somehow garbled portions of the
text of the approved West Coast label into that used on the label for
the East Coast product. These labels were thereupon affixed to the
shipment here in question, resulting in the acknowledged violation.
After learning of the error, Stauffer took corrective action, including
recall and relabeling of stocks in the hands of distributors.
The West Coast label, which called for a dosage rate of 1/2
gallon per linear foot, had EPA approval, although subsequent to the
institution of this proceeding, it advised Stauffer to amend the
dosage of the West Coast product for termite use to that of the East
1102
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Coast. That the "error" of EPA in accepting the 1/2 gallon dosage
rate for the West Coast product, in spite of the obvious weight of
authority that the 1 gallon (or 4/5 gallon) rate is necessary in deep
trenches, and its subsequently requested correction, somehow con-
tributed to Stauffer's offense, as urged in its proposed findings is
wholly without merit. Accordingly, its proposed findings Nos. 7 and
14 are rejected.
Also, Stauffer's proposed finding No. 13 concerning EPA's
failure to have published a compendium of uses and dosage rates, is
rejected because, while factually correct, it has no bearing on the
present issue.
With regard to the mistaken addition to the label of the
cutworm and mole cricket usage and dosage (from its West Coast
label), EPA had already approved it for the West Coast label and has
stipulated that it would have been accepted for the East Coast label,
had it been submitted. As heretofore found, the civil assessment
schedule takes into account the several factors of appropriateness as
to related size of business, effect on the ability to continue in
business, and the gravity of the violation. In considering the
"gravity" factor it has also been held that there are elements of
gravity of harm and of misconduct to be considered. Compare Amvac
Chemical Corporation, I.F.&R. Docket No. IX-4C.2 In this instance,
there is neither potential harm nor misconduct involved and, even if
considered a separate offense from the termite dosage rate discussed
below, it would appear appropriate to assign a zero penalty.
Moreover, it is noted that the item in the Civil Assessment Penalty
Code which serves as the basis of the $600.00 penalty proposed,
appears under the grouping. "Section Two: Unwarranted Statements
with Respect to Product Safety." Complainant does not explain or
justify the classification of this act as relating to product safety.3
Accordingly, there will be considered only the appropriateness
of the penalty to be assessed for the offense as to the inadequate
dosage rate for termite treatment in deep trenches. This offense is
properly classified as "Section Three: Directions for Use ... 2.
Directions for use Materially differed from those accepted in connec-
tion with products Registration ... Inefficacious (Economic Fraud)... 2.
1103
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Partial." For this the penalty proposed in the former schedule is
$2,300.00 to $2,700.00, "and the complaint proposed the bottom of
that range.
Buyers of the product involved herein, had they observed the in-
structions in deep trench application, would have been subjected to
economic fraud because the applications would have been in-
efficacious and, hence, wasted. Further, having gone to the expense
of such treatment, extensive damage might result before the
inefficacy of the treatment was discovered. Hence, the infraction is of
a serious nature. In this case, however, the record does not disclose
that any actual usage occurred, that the company took remedial
action promptly, and that the violation was a result of mistake in
printing the label rather than intended desire to defraud.
Under the circumstances, the penalty assessed herein is deter-
mined by applying a 40 percent reduction (an authority now vested in
regional enforcement offices of EPA by the New Civil Penalty
Assessment Schedule.)
The proposed Findings and Conclusions of the parties have been
considered herein and, to the extent they are inconsistent with the
foregoing, they are denied.
PROPOSED FINAL ORDEft
Pursuant to Section 14 (a)(l) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended (86 Stat. 973; 7 U.S.C.
136 l(a)(l), a civil penalty of $1,380.00 is assessed against Stauffer
Corporation for violations of the said Act which have been es-
tablished on the basis of the amended complaint herein, filed August
15,1974.
Frederick W. Denniston
Administrative Law Judge
1104
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March 13, 1975
It is noted that'had reliance been placed on the 1972
amended FIFRA Act (86 Stat. 975; 7 U.S.C. 136), the two
"offenses" would apparently fall under separate provi-
sions, i.e., additional claims not registered
(Sec. 12(a)(l)(B), and inadequate directions for use
Sec. 12(a)(1)(E) and Sec. 2(q)(F)).
Initial Decision July 11, 1974; adopted by
Final Order of October 31, 1974.
The more recent Guidelines, published July 18, 1974,
39 F.R. 27711, specifies the same classification with
some modification of the assigned penalties.
While no financial or gross sales data was submitted
of record, Stauffer has not questioned its classifica-
tion as having sales in excess of $1,000,000.00-annually.
Unless appeal is taken by the filing of exceptions
pursuant to 40 C.F.R. 168.51, or the Regional Adminis-
trator elects to review the initial decision on his own
motion, the order may become the final order of the
Regional Administrator.
Correction of Initial Decision
By Motion filed April 2, 1975, Complainant has called attention
to an error in the quotation of section 3(a)(l) of the 1947 version of
the Federal Insecticide, Fungicide, and Rodenticide Act. Accordingly,
on page 9 the quotation in the Initial Decision dated March 13, 1975,
is corrected to read as follows:
1105
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Section 3(a) It shall be unlawful for any person to ... ship
... an/ of the following:
(1) Any economic poison which is not registered pursuant
to the provisions of Section 4 of this Act, or any economic
poison if any of the claims made for it or any of the
directions for its use differ in substance from the
representations made in connection with its registration,
or if the composition of an economic poison differs ....
[underscoring supplied to significant language]
With respect however, to the suggested change in the text of
the decision following the quotation, this request is denied as the
typographical omission referred to did not change the Presiding
Officer's interpretation stated in the context of the decision.
In view of the correction made, and in the event the parties view
the Initial Decision differently because of that change, the date for
the filing of exceptions pursuant to section 168.51 of the rules is
extended until April 22, 1975.
In all other respects the Initial Decision as corrected is
reaffirmed.
Frederick W. Denniston
Administrative Law Judge
April 8, 1975
1631. In Re: Chemola Corporation, EPA Region VI, May 14,
1975. (I.F.&R. No. VI-21C, I.D. No. 90750.)
1106
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This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge Frederick W. Denniston's Initial Decision
and EPA, Region VI Regional Administrator's Final Order.
INITIAL DECISION
Preliminary Statement
1. By complaint filed March 14,1974, the Director, Enforcement
Division, Environmental Protection Agency (EPA), Region VI, alleged
that on September 14, 1973, Chemola Corporation (Chemola) held
for sale the product "Desco Weed Killer," and that analysis of a
sample of that product taken on that date, contained 4.13 percent
Sodium Chlorate and 2.43 percent Sodium Metaborate, instead of
the 18.5 percent and 10 percent respectively, of those chemicals as
claimed on its label. Consequently, adulteration of the product,
prohibited by Section 12(a)(1)(E), of the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) (86 Stat.973; 7 U.S.C.
136j(a)(l)(E) was alleged. A civil penalty of $1500.00 was proposed
to be assessed.
2. By Answer, filed April 1, 1974, Chemola denied the allega-
tions and requested a hearing. Hearing was held in Houston, Texas,
on October 11, 1974, at which Complainant (EPA) was represented
by Stan Curry and Harless Benthul, of the EPA Regional Staff, and
Respondent, by Russell T. Van Keuren, of Houston. Proposed Findings
and Briefs were filed January 13, 1975, and a reply was filed by
complainant on January 29,1975.
3. Respondent markets a product known as "Desco Weed
Killer." It is a pesticide within the meaning of FIFRA and its label is
registered with EPA as No. 546-1. According to its registered label
its active ingredients are 18.5 percent Sodium Chlorate and 10.0 per-
cent Sodium Metaborate (or expressed as elemental boron, 1.644
percent). Samples of the product taken in the course of an EPA
inspection on September 14, 1973, were analyzed and found to
contain an average of 4.13 percent of Sodium Chlorate and 2.43
percent of Sodium Metaborate. It is Respondents' contention that
1107
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inadvertently it had supplied samples of its product ordinarily sold in
concentrated form, with a dilution ready for application.
Findings of Fact
1. Ralph Jones and James Halliday, EPA employees inspected
Respondents' place of business in Houston, Texas, on September 14,
1973. Jones identified himself to the secretary of receptionist who di-
rected him to Herman K res see, Jr., the Technical Director of
Respondent, as the one in charge.
2. Kressee arranged for an employee to bring a one-gallon can
of the product to the front of the building; Kressee then gave the
sample to Jones, who had Halliday compare the label on the can with
a copy of the registered label. Prior to that review a Notice of In-
spection form was filled out by Halliday and given to Mr. Kressee.
3. Because Jones ordinarily collects samples from the parent
stock himself, he asked to see the lot from which the sample was
taken. Kressee took Jones to the rear and asked an employee named
Dean where the sample had originated. Dean indicated a 55 gallon
drum and said the material was from it. The drum was the only one
having a label on it, although there were five or six drums in close
proximity. A hurried inspection indicated the label on the drum was
the same as on the sample delivered to Jones in the office.
4. Jones then returned to the reception area where a Receipt for
Samples form was issued to Kressee which read "1/1 gal metal can
of Desco Weed Killer, Reg. No. 546-1. No Batch Numbers." Further,
a Notice of Inspection was issued to Kressee, which stated the reason
for the Inspection was "For the purpose of inspecting and obtaining
samples of any pesticides or devices, packaged, labeled, and re-
leased for shipment, and samples of any containers or labeling for
such pesticides or devices." The sample taken was identified, sealed,
and transmitted to the Bay St. Louis Laboratory.
5. The analysis, the results of which are unquestioned, indicated
only 4.13 percent Sodium Chlorate (77.7 percent deficient) and 2.43
percent Sodium Metaborate (75.7 percent deficient).
1108
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6. Prior to the inspection visit on September 14, 1973, EPA had
received no reports of deficiency in the product nor had it had been
reported as a danger to the environment, and the EPA inspectors
made no check of the history of the product. The prior practice of the
predecessor agency. Department of Agriculture, had been to get a
list of customers and to check samples at destination.
7. Jones could not recall whether the drum he was shown bore
indications that it had been sealed. He indicated, however, that the
drum was stacked over another drum and that it was the only drum
with the Desco label.
8. Prior to July, 1973, inspections of the type here were made
only at dealers or distributors after movement had been made in in-
terstate commerce, but on that date inspections of manufacturing
plants were commenced. In this case, no follow-up inspections were
made of consumers or of the efficacy of the product.
9. The Report of Analysis showing the deficiencies in ingredients
in the samples, dated December 18, 1973, was supplied to Chemola
Corp., but nothing was heard from it by EPA until March 19, 1974,
after the formal complaint initiating this proceeding was filed.
Normally, a prompt response is recieved from the recipients of un-
satisfactory reports.
10. The civil penalty proposed is $1,500.00. This was
determined by the application of an assessment schedule distributed
by EPA to the Regions on October 2, 1973, intended to give account
to the standards set out in Section 14(a)(3) of FIFRA, and to insure
uniform assessments. These standards include size of business and
ability to continue in business, and the gravity of the violation. In
applying these schedules, EPA considered the company as falling in a
size II firm, with sales between $200,000.00 to $1,000,000.00 gross
sales a year; and the analytical test results, as being in the category
"chemical deficiency — B. Partially ineffective," for which a range of
assessment of $1,500.00 to $1,900.00 is provided. The penalty
proposed is the minimum of that range.
1109
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11. About two years prior to the inspection in this case,
inspectors from the U.S. Department of Agriculture inspected
Respondents place of business and checked its label but did not take
samples indicating, rather, that samples would be taken at its
customers of recent months.
12. The barrel from which the sample was taken was in an
inconvenient location in the manufacturing area due to the fact that a
fire had required file cabinets and other paraphernalia to be stored in
space ordinarily used for manufacturing purposes. The drum was not
moved from the pile in the presence of Kressee and Jones, but Dean
presented Kressee with an unlabeled 1 gallon can which he said had
come from the drum. After Jones inspected the label on the drum,
Kressee instructed Dean to put a label on the sample and bring it to
the office. Dean then went into the print shop, obtained a label and
affixed it to the can. Dean had also gone into the shipping de-
partment where all kinds of samples are kept; Kressee contends he
saw Dean take the sample can from those shelves.
13. Chemola sells the product in concentrated form which is
recommended for dilution of one gallon of concentrate to foru gallons
of water. Kressee had personally observed that such properly diluted
Desco used around the plant had been efficacious.
14. According to Kressee, some Chemola salesmen, for
convenience, carry the product in already diluted form. Accordingly,
if the sample was diluted four to one, and was then diluted again in
accordance with the label instructions, it would be at sixteen to one,
at which it would not kill weeds. Kressee did not originally assume the
sample had been diluted because not all of the salesmen used the
diluted form; however, he considered it entirely possible and even
probable "it was a diluted sample and that it could well be" the
diluted variety.
15. While Kressee was concerned when he received the Report
of Analysis of the sample in late December 1973 or January 1974 he
discussed it only with the Chemola Chief Chemist and requested the
latter to determine whether any understrength products had been
manufactured or shipped in order that a full explanation might be
1110
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given later to EPA. He did not, however, discuss it with Mr. Shaw the
President of Chemola, nor did he think it necessary to take the matter
up with EPA, as he did not know what EPA would do and the Report
did not say to respond to it.
16. Chemola was merged into Hi-Port Industries of Highland,
Texas, as of April 1974 and Chemola does not now exist as a sep-
arate corporation. The President of Chemola, Herman Shaw, is now
President of the Successor Hi-Port industries. Chemola's total sales
were $620,000, and net profit of $5,700 in 1972, and $905,000,
with net profit of $18,839 in 1973. Sales of Desco Weed Killer in
1973 were $25,074, on which net sales were $18,021.68, involving
six customers. With the merger, Desco Weed Killer has been eliminat-
ed from its line and sales discontinued.
17. None of Chemola's regular six customers for Desco Weed
Killer has ever complained of the product. Shaw considers the product
would be ineffective if diluted 16 to 1 and he would expect to have
heard complaints from its customers.
18. Julian Dean, the individual who supplied the sample to
Kressee is no longer with Chemola, his services having been
involuntarily terminated in February, 1974, and his present
whereabouts are not known to Shaw.
Conclusions
The essential facts are undisputed. Chemola's representative,
Kressee, gave the EPA inspectors what was represented by Kressee to
be a sample held for sale of DESCO Weed Killer. Analysis of that
sample indicated it was substantially deficient in chemical content.
Chemola contends, however, that the sample delivered was a diluted
sample intended for salesmen's demonstrations, and not a product
held for sale. The record does not, however, support.this contention.
Chemola makes much of the fact that in a prior inspection by
EPA's predecessor, no samples were taken and they were advised
such would be done at the customers place of business. The EPA
Inspector, Jones, stated, however, that since July, 1973, inspection
1111
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had been made at points of production. Accordingly, the prior
practice is of no significance.
Chemola also contends that becuase Mr. K res see was in a hurry,
the "sloppy method of this inspection" is explainable. While it would
undoubtedly have been better practice for Jones to have drawn the
sample himself under these circumstances, there is no absolute
requirement that this be done. Kressee directed the obtaining of the
sample and delivered it to Jones labeled and with the representation
and intent that it was their product held for sale.
Moreover, Chemola would fault the EPA chemist who analyzed
the sample for not requiring an efficacy test which it contends would
have indicated its effectiveness. As pointed out in Complainant's
Reply Brief, the chemist was only to chemically analyze the sample
submitted which was done, and the accuracy of his results were
stipulated by Chemola.
Of the five proposed findings by Respondent, three deal with
alleged failures of Complainant to test for efficacy, to verify the re-
sults by obtaining further samples from Chemola's customers, and to
alert its analytical chemist as to the directions for use. All three
proposed findings are rejected as irrelevant to the issues in the
complaint and not required under the statute. Accordingly, proposed
findings No. 2, 3 and 4 are rejected. Its proposed finding No. 1 that
the sample was not "packaged, labeled, and ready for shipment" as
defined in Section 9(a) of FIFRA, is not supported by the record and is
refuted by the specific statement of witness Kressee that "I fully
expected to give them and did feel assured I had given them a sample
of the material that represented what was sold" (Tr. p. 94). In any
event, the prohibited acts are defined in Section 12 of the Act.
Proposed Finding No. 1, accordingly, is also rejected. Finally, Finding
No. 5, would fault the inspectors for failing to provide a sample that
"they knew" had actually come from a previously unopened drum.
This finding must also be rejected in the light of the specific re-
presentations of witness Kressee.
The Proposed Finding of Fact submitted by Complainant have
essentially been accepted in their entirely herein.
1112
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Accordingly, it is concluded that Chemola Corporation, on
September 14, 1973, held for sale the product Desco Weed Killer.
EPA Registration No. 546-1, as alleged in the complaint, in violation
of Section 12(a)(l)(E) of the Federal Insecticide, Fungicide, and
Rodenticide Act [86 Stat. 973; 7.U.S.C. 136j(a)(l)(E)].
Proposed Penalty Respondent has not questioned the size of the
proposed $1,500.00 assessment, which was established by reference
to an agencywide shedule which takes into account the size of the
business and the nature of the violation. There is no question that
Chemola (or its sucessor) can continue in business after payment of
the assessment. With regard to the gravity of the violation, it is
apparent that, while economic harm wouldjesult from the sale of the
adulterated product, no health hazard was created by the violation.
Moreover, there are no known instances of violations by this company
and no complaints have been registered by customers. Accordingly,
the proposed assessment of $1,500.00, is appropriate.
Proposed Final Order
Pursuant to Section 14(a)(l) of the Federal Insecticide, Fungi-.
cide, and Rodenticide Act, as amended, 186 Stat. 973; 7 U.S.C 136
l(a)(l), a civil penalty of $1,500.00 is assessed against Chemola
Corporation, for violations of the said Act which have been
established on the basis of the complaint, herein filed March 14,
1974.
Frederick W. Denniston
Administrative Law Judge
February 27, 1975
1 Unless appeal is taken by the filing of exceptions
pursuant to 40 C.F.R. 168.51, or the Regional Adminis-
trator elects to review the initial decision on his own
motion, the order may become the final order of the
1113
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Regional Administrator.
FINAL ORDER
Preliminary Statement
1. By Complaint filed March 14, 1974, the Director,
Enforcement Division Environmental Protection Agency (EPA), Region
VI, alleged that on September 14, 1973, Chemola Corporation
(Chemola) held for sale the product "Desco Weed Killer" and that
anlaysis of a sample of that product, taken on that date, contained
4.13 percent Sodium Chlorate and 2.43 percent Sodium Metaborate,
instead of the 18.5 percent and 10 percent, respectively, of those
chemicals as claimed on its label. Consequently, adulteration of the
product, prohibited by Section 12(a)(l)(E) of the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) [86 Stat. 973; 7 U.S.C.
136j(a)(l)(E)] was alleged. A civil penalty of $1,500.00 was proposed
to be assessed.
2. By Answer filed April 1, 1974, Chemola denied the
allegations and requested a hearing. Hearing was held in Houston,
Texas, on October 11, 1974, at which Complainant (EPA) was re-
presented by Stan Curry and Harless Benthul of the EPA regional
staff, and Respondent by Russell T. Van Keuren of Houston. Proposed
Findings and Briefs were filed January 13, 1975, and a reply was
filed by Complainant on January 29, 1975.
3. On March 24, 1975, Respondent filed its appeal of the Initial
Decision to the Regional Administrator, and on April 3, 1975,
Complainant's reply to Repondent's appeal was similary filed.
4. Respondent markets a product known as "Desco Weed
Killer." It is a pesticide within the meaning of FIFRA and its label is re-
gistered with EPA as No. 546-1. According to its registered label, its
active ingredients are 18.5 percent Sodium Chlorate and 10.0
percent Sodium Metaborate (or expressed as elemental boron, 1.644
percent). Samples of the product taken in the course of an EPA in-
spection on September 14, 1973, were analyzed and found to con-
tain an average of 4.13 percent of Sodium Chlorate and 2.43 percent
1114
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of Sodium Metaborate. It is Respondent's contention that
inadvertently it had supplied samples of its product ordinarily sold in
concentrated form, with a dilution ready for application.
Findings of Fact
1. Ralph Jones and James Halliday, EPA employees, inspected
Respondent's place of business in Houston, Texas, on September 14,
1973. Jones identified himself to the secretary or receptionist, who
directed him to Herman Kressee, Jr., the technical director of
Respondent, as the one in charge.
2. Kressee .arranged for an employee to bring a one-gallon can
of the product to the front of the building; Kressee then gave the
sample to Jones, who had Halliday compare the label on the can with
a copy of the registered label. Prior to that review, a Notice of
Inspection form was filled out by Halliday and given to Mr. Kressee.
3. Because Jones ordinarily collects samples from the parent
stock himself, he asked to see the lot from which the sample was
taken. Kressee took Jones to the rear and asked an employee named
Dean where the sample had originated. Dean indicated a 55-gallon
drum and said the material was from it. The drum was the only one
having a label on it, although there were five or six drums in close
proximity. A hurried inspection indicated the label on the drum was
the same as on the sample delivered to Jones in the office.
4. Jones then returned to the reception area where a Receipt for
Samples form was issued to Kressee which read: "1/1 gal metal can
of Desco Weed Killer, Reg. No. 546-1. No Batch Numbers." Further,
a Notice of Inspection was issued to Kressee which stated the reason
for the inspection was "for the purpose of inspecting and obtaining
samples of any pesticides or devices, packaged, labeled, and
released for shipment, and samples of any containers or labeling for
such pesticides or devices." The sample taken was identified, sealed
and transmitted to the Bay St. Louis laboratory.
1115
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5. The analysis, the results of which are unquestioned, indicated
only 4.13 percent Sodium Chlorate (77.7 percent deficient) and 2.43
percent Sodium Metaborate (75.7 percent deficient).
6. Jones could not recall whether the drum he was shown bore
indications that it had been sealed. He indicated, however, that the
drum was stacked over another drum and that it was the only drum
with the Desco label.
7. Prior to July 1973, inspections of the type here were made
only at dealers or distributors after movement had been made in
interstate commerce, but on that date inspections of manufacturing
plants were commenced. In this case, no follow-up inspections were
made of consumers or of the efficacy of the product.
8. The Report of Analysis showing the deficiencies in ingredients
in the Samples, dated December 18, 1973, was supplied to Chemola
but nothing was heard from it by EPA until March 19, 1974, after the
formal Complaint initiating this proceeding was filed.
9. The civil penalty proposed is $1,500.00. This was determined
by the application of an assessment schedule distributed by EPA to
the Regions on October 2, 1973, intended to give account ot the
standards set out in Section 14(a)(3) of FIFRA and to insure uniform
assessments. These standards include size of business and ability to
continue in business, and the gravity of the violation. In applying
these schedules EPA considered the company as falling in a size II
firm, with gross sales between $200,000 to $1,000,000 a year; and
the analytical test results as being in the category "chemical
deficiency — B. Partially ineffective," for which a range of
assessment of $1,500 to $1,900 is provided. The penalty proposed is
the minimum of that range.
10. The barrel from which the sample was taken was in an incon-
venient location in the manufacturing area due to the fact that a fire
had required file cabinets and other paraphernalia to be stored in
spece ordinarily used for manufacturing purposes. The drum was not
moved from the pile in the presence of Kressee and Jones, but Dean
presented Kressee with an unlabeled one-gallon can which he said
1116
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had come from the drum. After Jones inspected the label on the drum,
Kressee instructed Dean to put a label on the sample and bring it to
the office. Dean then went into the print shop, obtained a label and
affixed it to the can. Dean had also gone into the shipping
department where all kinds of samples are kept; Kressee contends he
saw Dean take the sample can from those shelves.
11. Chemola sells the product in concentrated form which is re-
commended for dilution of one gallon of concentrate to four gallons
of water. Kressee had personally observed that such properly diluted
Desco used around the plant had been efficacious.
12. According to Kressee, some Chemola salesmen, for
convienience, carry the product in already diluted form. Accordingly,
if the sample was diluted four to one and was then diluted again in
accordance with the label instructions, it would be at sixteen to one,
at which it would not kill weeds. Kressee did not originally assume the
sample had been diluted because not all of the salesmen used the
diluted form; however, he considered it entirely possible and even
probable "it was a diluted sample and that it could well be" the
diluted variety.
13. While Kressee was concerned when he received the Report
of Analysis of the sample in late December 1973 or January 1974, he
discussed it only with the Chemola chief chemist and requested the
latter to determine whether any understrength products had been
manufactured or shipped in order that a full explanation might be
given later to EPA. He did not, however, discuss it with Mr. Shaw, the
president of Chemola, nor did he think it necessary to take the matter
up with EPA as he did not know what EPA would do and the report
did not say to respond to it.
14. Chemola was merged into Hi-Port Industries of Highland,
Texas, as of April 1974 and Chemola does not now exist as a
separate corporation. The president of Chemola, Herman Shaw, is
now president of the sucessor Hi-Port Industries. Chemola's total sales
were $620,000, and net profit of $5,700 in 1972, and $905,000,
with net profit of $18,839 in 1973. Sales of Desco Weed Killer in
1973 were $25,074 on which net sales were $18,021.68, involving
1117
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six customers. With the merger, Desco Weed Killer has been
eliminated from its line and sales discontinued.
15. Julian Dean, the individual who supplied the sample to
Kressee, is no longer with Chemola, his services having been in-
voluntarily terminated in February 1974, and his present where-
abouts are not known to Shaw.
Conclusions
The essential facts are undisputed. Chemola's representative,
Kressee, gave the EPA inspectors what was represented by Kressee to
be a sample held for sale of Desco Weed Killer. Analysis of that
sample indicated it was substantially deficient in chemical content.
Chemola contends, however, that the sample delivered was a diluted
sample intended for salesmen's demonstrations and not a product
held for sale. The record does not, however, support this contention.
Chemola makes much of the fact that in a prior inspection by
EPA's predecessor no samples were taken and they were advised
such would be done at the customer's place of business after
shipment. The 1972 amendments to FIFRA expand federal jurisdiction
to intrastate pesticides; therefore, in July 1973 EPA began a proce-
dure whereby pesticide samples are collected at the production point
rather than the retail establishment to insure protection of the public
from unsafe or ineffective pesticides. This procedure was observed by
the inspectors at Respondent's plant on the date in question. Previous
inspections by EPA's predecessor at Respondent's plant involved
primarily the gathering of information which would reveal where
interstate samples might be collected from customers of the
Respondent. The two procedures were entirely different and were
conducted for different purposes.
Chemola also contends that because Mr. Kressee was in a hurry
the "sloppy method of this inspection" is explainable. While it would
undoubtedly have been better practice for Jones to have drawn the
sample himself under these circumstances, there is no absolute
requirement that this be done. Kressee directed the obtaining of the
1118
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sample and devivered it to Jones, labeled and with the representation
and intent that it was their product held for sale.
Moreover, Chemola would fault the EPA chemist who anal/zed
the sample for not requiring an efficacy test, which it contends would
have indicated its effectiveness. As pointed out in Complainant's
Reply Brief, the chemist was only to chemically analyze the sample
submitted, which was done, and the accuracy of his results were
stipulated by Chemola.
Of the five proposed findings by Respondent, three deal with
alleged failures of Complainant to test for efficacy, to verify the
results by obtaining further samples from Chemola's customers, and
to alert its analytical chemist as to the directions for use. All three
proposed findings are rejected as irrelevant to the issues in the Com-
plaint and not required under the statute. Accordingly, Proposed
Findings Nos. 2, 3 and 4 are rejected. Its Proposed Finding No. 1,
that the sample was not "packaged, labeled, and ready for ship-
ment," as defined in Section 9(a) of FIFRA, is not supported by the
record and is refuted by the specific statement of witness Kressee that
"I fully expected to give them and did feel assured I had given them a
sample of the material that represented what was sold" (Tr. p. 94). In
any event, the prohibited acts are defined in Section 12 of the Act.
Proposed Finding No. 1, accordingly, is also rejected. Finally,
Proposed Finding No. 5 would fault the inspectors for failing to
provide a sample that "they knew" had actually come from a
previously unopened drum. This finding must also be rejected in light
of the specific representations of witness Kressee, and the testimony
by witness Jones (Tr. p. 26) that he "did not observe it" in response to
the question as to whether or not the seal was still on the drum when
he viewed it. Respondent's ten proposed findings of fact and
conclusions of law contained in the appeal of March 24, 1975, are
likewise rejected inasmuch as they do not add to the arguments and
findings previously made. Where EPA inspectors take a sample that
turns out adverse to the interests of the manufacturer, it is possible for
the argument to be advanced that the sample was inaccurately taken
and that the manufacturer should not be held responsible since its
representatives had no opportunity to supervise submission of the
sample to EPA and thus be assured of its accuracy as a sample;
1119
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however, since the manufacturer in this case did completely manage
and handle submission of the sample, they cannot later disavow the
representations made to EPA as to its accuracy.
The Proposed Findings of Fact submitted by Complainant have
essentially been accepted in their entirety herein.
Accordingly, it is concluded that Chemola Corporation, on
September 14, 1973, held for sale the product "Desco Weed Killer,"
EPA Registration No. 546—1, as alleged in the Complaint, in violation
of Section 12(a)(l)(E) of the Federal Insecticide, Fungicide, and
Rodenticide Act [86 Stat. 973; 7 U.S.C. 136j(a)(l)(E)].
The penalty assessed below was established by reference to an
Agency-wide schedule which takes into account the size of the
business and the nature of the violation. There is no question that
Chemola (or its successor) can continue in business after payment of
the assessment. With regard to the gravity of the violation, it is
apparent that while economic harm would result from the sale of the
adulterated product, no health hazard was created by the violation.
Moreover, there are no known instances of violations by this company
and no complaints have been registered by customers. Accordingly,
the proposed assessment of $1,500.00 is considered appropriate.
Final Order
Pursuant to Section 14(a)(l) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended [86 Stat. 973; 7 U.S.C.
1361(a)(l)], and upon consideration of the above Findings of Fact
and Conclusions of Law, and of the entire record herein, after
evaluating the gravity of the violation and appropriateness of the
penalty proposed, it is this 14 day of May, 1975.
ORDERED that the Respondent, Chemola Corporation, pay a
civil penalty in the amount of one thousand five hundred dollars
($1,500.00.) within sixty (60) days of receipt of this Order, said
penalty to be paid by cashier's or certified check payable to the
United States of America and forwarded to the Regional Hearing
Clerk, Environmental Protection Agency, Region VI, 1600 Patterson,
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Suite 1100, Dallas, Texas 75201. Said penalty is assessed against
Chemola Corporation for violations of the said Act which have been
established on the basis of the Complaint herein filed March 14,
1974.
George J. Putnicki
for Regional Administrator
EPA, Region VI
1632. In Re: James Varley & Sons, EPA Region VII, November
19, 1974. (I.F.&R. No. VII-68C, I.D. Nos. 93882 and
102492.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(1)(E); 136(q)(l)(G) and 136(q)(l)(A). The action pertained to
shipments made on March 28 and July 13, 1973, from St. Louis,"'
Missouri, to Sioux City, Iowa, and Detroit, Michigan. The pesticides
involved were HARRIS RUST-GO CLEANER FOR PORCELAIN/
ENAMEL AND METALS and BEAVER BUG OUT FOGGER
INSECTICIDE; the charge was misbranding—lack of adequate
warning or caution statement on labels and labels bore a false or
misleading safety claim.
The respondent signed a Consent Agreement. The7Final Order
assessed a civil penalty of $2898.00.
1633. In Re: Norden Laboratories, Inc., EPA Region VII, January
7, 1975. (I.F.&R. No. VII-78C, I.D. Nos. 102677 and
112509.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l}; 135b; 136j(a)(l)(E); 136(q)(l)(A); and 136(q)(l)(G). The
action pertained to a shipment made on July 11,1974, from Lincoln,
1121
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Nebraska, to North Kansas City, Missouri, and to a product held for
distribution or sale on or about October 9, 1973, at Norden
Laboratories, Inc., Lincoln, Nebraska. The pesticides involved were
MITOX OINTMENT and LINSPRAY CONTAINS LINDANE;
charges included nonregistration, composition of the product differed
significantly from that represented in connection with its registration,
and misbranding—lack of adequate warning or caution statements
on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $5,500.00.
1634. In Re: Adco, Incorporated, EPA Region VII, January 9,
1975. (I.F.&R. No. VII-81C, I.D. Nos. 91593, 91595, 91597,
91598, and 116372.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(G) and 136[q)(l)(F). The action pertained to
shipments made on June 12 and October 17, 1973, from Sedalia,
Missouri, to Griffin, Georgia, and to a product held for distribution or
sale on December 14, 1973, at Adco, Incorporated, Sedalia,
Missouri. The pesticides involved were ADCO OFLYO DESTROYS,
ADCO PET SHAMPOO, ADCO KLENSE CONCENTRATE,
WEEVIL-GO FOOD INSECTICIDE MILL SPRAY, and ADCO JET
CONCENTRATED SURFACE MILL SPRAY; the charge was mis-
branding—lack of adequate warning or caution statement on labels
and lack of adequate directions for use on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $5,160.00.
1635. In Re: PBI-Gorden Corporation, EPA Region VII, January
28,1975. (I.F.&R. No. VII-84C, I.D. No. 112824.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
1122
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136(q)(l}(A) and 136j(a)(l)(E). The action pertained to a product held
for distribution or sale on June 3, 1974, at FBI-Gordon Corporation,
Kansas City, Kansas. The pesticide involved was GORDON'S NEW
LAST MEAL RAT AND MOUSE KILLER; the charge was
misbranding—the product would not be effective in killing rats and
mice when used as directed on labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,680.00.
1636. In Re: Economy Products, Inc., EPA Region VII, January
29, 1975. (I.F.&R. No. VII-62C, I.D. No. 1 13889.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136(q)[2)(A)(i); 136(q)(2)(C)(i); 1 36(q)(2)(CJ(iv); and 136(n). The action
pertained to a shipment made on August 2, 1973, from Shenandoah,
Iowa, to Denver, Colorado. The pesticide involved was BEST 4
SERVIS BRAND TOXAPHENE; charges included adulteration and
misbranding — strength or purity of product fell below the professed
standard of quality as represented on its labeling, labels bore false or
misleading safety claims, and labels failed to bear adequate warning
or caution statement, adequate directions for use, ingredient
statement, name and address of producer, and the assigned
registration number.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $500.00.
1637. In Re: Farmland Industries, Inc., EPA Region VII, February
12, 1975. (I.F.&R. No. VII-80C, I.D. Nos. 87533, 112126,
112180,112222,112527,112673, and 112680.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l); 136(c)(l); 136j(a)(l)(E); 136(q)(l)(A); 136(q)(l)(F); and
1123
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136(q)(l)(G). The action pertained to shipments made on October 15,
1973, March 18, 1974, and April 24, 1974, from North Kansas City,
Missouri, to Des Moines, Iowa, and Omaha, Nebraska, and to
products held for distribution or sale on November 19, 1973, and
May 20 and 21, 1974, at Farmland Industries, Inc., North Kansas
City, Missouri. The pesticides involved were COOP MALATHION
DUST 4%; 5% SEVIN DUST; COOP BEEF CATTLE SPRAY
EMULSIFIABLE CONCENTRATE; TOXAPHENE EMULSION
CONCENTRATE; COOP LINDANE EMULSION CONTAINING
5% LINDANE; COOP WEED-OUT 2,4-D AMINE 4 POUND; and
COOP METHOXYCHLOR "50" WETTABLE POWDER AND
DUST BASE; charges included nonregistration, claims differed from
those represented during registration, adulteration and mis-
branding—strength or purity fell below the professed standard of
quality as represented on its labeling and lack of adequate warning
or caution statement on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $18,000.00.
1638. In Re: Patterson Chemical Co., EPA Region VII, February
12,1975. (I.F.&R. No. VII-83C, I.D. No. 112145.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l). The action pertained to a shipment made on or about
June 3, 1974, from Kansas City, Missouri, to Council Bluffs, Iowa. The
pesticide involved was PATTERSON'S 5% SEVIN DUST; the charge
was claims for the product differed in substance from the
representations made in connection with its registration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $950.00.
1639. In Re: Promico, Inc., EPA Region VII, February 12, 1975.
(I.F.&R. No. VII-86C, I.D. Nos. 112177 and 112178.)
1124
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This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(A) and 136(c)(l). The action pertained to
products held for distribution or sale on May 23, 1974, at Promico,
Inc., Eagle Grove, Iowa. The pesticides involved were LAND O
LAKES FELCO FLY-GON BLOCK MEDICATED and KATTLE
KANDY BAR FLY HI BOOT BLOCK MEDICATED; charges in-
cluded adulteration and misbranding—its strength or purity fell be-
low the professed standard of quality as expressed on its labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,000.00.
1640. In Re: Dymon, Inc., EPA Region VII, February 13, 1975.
(I.F.&R. No. VII-76C, I.D. Nos. 112483 and 112486.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(A) and 136(c)(l). The action pertained to
'products held for distribution or sale on June 12, 1974, at Dymon,
Inc., Kansas City, Kansas. The pesticides involved were VITREOUS
BOWL CLEANER and CHLOROXY NO. 8; charges included
adulteration and misbranding—its strength or purity fell below the
professed standard of quality as expressed on its labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,000.00.
1641. In Re: Kesco Sales Fairway, Inc., EPA Region VII,
February 13, 1975. (I.F.&R. No. VI1-91C, I.D. No. 105749.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l); 135b; 136j(a)(l)(E); and 136(q)(l)(A). The action
pertained to a shipment made on or about September 3, 1974, from
Shawnee Mission, Kansas, to Blue Springs, Missouri. The pesticide
involved was BUGMASTER MODEL H CRYSTALS; charges in-
1125
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eluded nonregistration and misbranding— labels bore a false or
misleading registration number implying that the product was
registered.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $500.00.
1642. In Re: Royal Bond, Inc., EPA Region VII, March 12, 1975.
(I.F.&R. No. VII-93C, I.D. No. 114306.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(A) and 136(c)(l). The action pertained to a
product held for distribution or sale on September 10, 1974, at Royal
Bond, Inc., St. Louis, Missouri. The pesticide involved was STERILE
DISINFECTANT CLEANER DEODORIZER VIRUCIDE FUNGICIDE;
charges included adulteration and misbranding—its strength or
purity fell below the professed standard of quality as expressed on its
labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,080.00.
1643. In Re: Springfield Water Conditioning, EPA Region VII,
March 12,1975. (I.F.&R. No. VII-75C, I.D. No. 112496.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(A) and 136(c)(l). The action pertained to a
product held for distribution or sale on June 26, 1974, at Springfield
Water Conditioning, Springfield, Missouri. The pesticide involved
was HY-TEST SODIUM HYPOCHLORITE; charges included
adulteration and misbranding—its strength or purity fell below the
professed standard of quality as expressed on its labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $280.00.
1126
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1644. In Re: Scholl Chemical, Inc., EPA Region VIM, August 5,
1974. (I.F.&R. No. VIII-4C, I.D. No. 90630.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(A) and 136(c)(l). The action pertained to a
shipment made on May 11, 1973, from Monte Vista, Colorado, to Al-
buquerque, New Mexico. The pesticide involved was 4%
MALATHION DUST; charges included misbranding and
adulteration—strength or purity fell below the professed standard or
quality as expressed on its labeling under which it was sold.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1500.00.
1645. In Re: American Fertilizer and Chemical Company, Inc.,
EPA Region VIII, August 28,1974. (I.F.&R. No. VIII-8C, I.D.
No. 102070.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide 'Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(A) and 136(q)(l}(F). The action pertained to a
product held for distribution or sale on February 27, 1974, at
American Fertilizer and Chemical Company, Inc. Henderson,
Colorado. The pesticide involved was PHILLIPS 66 MILLER KILLER;
the charge was misbranding—product was overformulated and label
did not bear adequate directions for use.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2500.00.
1646. In Re: Lystads, Inc., EPA Region VIII, October 7, 1974.
(I.F.&R. No. VIII-5C, I.D. No. 92688.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l){A) and 136(c)(l). The action pertained to a
1127
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product held for distribution or sale on October 22, 1973, at Lystads,
Inc., Grand Forks, North Dakota. The pesticide involved was
STERISOL SANITIZER; charges included adulteration and
misbranding—strength or purity fell below the professed standard of
quality as expressed on its labeling under which it was held for sale.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1200.00.
1647. In Re: Franklin Laboratories, Inc., A Division of American
Home Products, Inc., EPA Region VIII, December 4, 1974.
(I.F.&R. No. VIII-10C, I.D. No. 102072.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(1)(E); 136(q)(l)(A) and 136(q)(l)(G). The action pertained to a
product held for distribution or sale on or about March 21, 1974, at
Franklin Laboratories, Inc., Denver, Colorado. The pesticide involved
was SPINOSE EAR TICK TREATMENT; the charge was mis-
branding—product was overformulated and the label did not bear
adequate caution statements.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,000.00.
1648. In Re: Balcom Chemicals, Inc., EPA Region VIII, December
5, 1974. (I.F.&R. Nos. VIII-7C and VIIM1C, I.D. Nos.
102039 and 112608.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)n); 135b; 136j(a)(l)(E); 136(q)(l)(F); and 136(q)(l)(A). The
action pertained to a product held for distribution or sale on January
30, 1974, at Balcom Chemicals, Inc., Greeley, Colorado. The
pesticides involved were SURE KILL DIELDRIN EMULSIFIABLE
CONCENTRATE and 50 PARATHION EM INSECTICIDE; charges
included nonregistration, adulteration and misbranding—inadequate
1128
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directions for use and another substance had been substituted wholly
or in part for the named ingredient.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2200.00.
1649. In Re: Pueblo Chemical and Supply Company, EPA
Region VIII, January 17, 1975. (I.F.&R. No. VIII-12C, I.D.
No. 112608.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C
136j(a)(l)(E) and 136(q)(l)(A). The action pertained to a product held
for distribution or sale on March 6, 1974, at Pueblo Chemical and
Supply Company, Pueblo, Colorado. The pesticide involved was
SURE KILL DIELDRIN EMULSIFIABLE CONCENTRATE; the charge
was misbranding—labels bore a false or misleading statement re-
garding the safety of the product.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1200.00.
1650. In Re: R & M Exterminators, EPA Region X, January 28,
1975. (I.F.&R. No. X-16C, I.D. No. 93099.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E) and 136(q)(l)(A). The action pertained to a product held
for distribution or sale on January 29, 1974, at R & M Exterminators,
Tyler, Washington. The pesticide involved was FIELD RODENT BAIT;
the charge was misbranding—product was not effective when used
as directed on labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $700.00.
1129
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Index to Notices of Judgment 1601 - 1650
N.J. No.
Adco, Incorporated (Civil) 1634
Amchem Products, Inc. (Civil) 1606
American Fertilizer and Chemical
Company, Inc. (Civil) 1645
Am way Corporation (Civil) 1615
Astor Exterminating Company (Civil) 1601
Balcom Chemicals, Inc. (Civil) 1648
CMC, Inc., d/b/a Cumberland
Manufacturing Co. (Civil) 1609
Century Industries Corporation (Civil) 1619
Chemed Corporation (Civil) 1620
Chemola Corporation (Civil Hearing) 1631
Chesebrough-Ponds, Inc. (Civil) 1616
Commercial & Industrial Prods. Co.
(Civil) 1607
Copeson Services, Inc. (Civil) 1617
Delro Industries, Inc. (Criminal) 1603
Dymon, Inc. (Civil) 1640
Eastern Shore Labs, Inc. (Civil) 1605
Economy Products, Inc. (Civil) 1636
Farmland Industries, Inc. (Civil) 1637
Franklin Laboratories, Inc., A Division
of American Home Products, Inc. (Civil) 1647
Gold Kist, Inc. (Civil) 1613
Great Lakes Biochemical Co., Inc.
(Civil) 1622
Holder Corp. (Civil) 1604
James Varley & Sons (Civil) 1632
Kesco Sales Fairway, Inc. (Civil) 1641
Lenter Enterprises, Inc. (Civil) 1625
Lystads, Inc. (Civil) 1646
M. J. Daly Company, Inc. (Civil) 1611
Mihelich Nurseries (Civil) 1628
Monsey Products Company (Civil) 1610
New Plant Life Division, Charles O.
Finley and Company, Inc. (Civil) 1629
Norden Laboratories, Inc. (Civil) 1633
1130
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O. M. Scott & Sons Company (Civil) 1614
Old South Sales Company (Civil) 1612
FBI-Gordon Corporation (Civil) 1635
Patterson Chemical Co. (Civil) 1638
Physicians and Hospitals Supply Company
(Civil) 1624
Promico, Inc. (Civil) 1639
Pueblo Chemical & Supply Company
(Civil) 1649
R & M Exterminators (Civil) 1650
Royal Bond, Inc. (Civil) 1642
S. C. Johnson and Sons, Inc. (Civil) 1626
Schall Chemical, Inc. (Civil) 1644
Science Products Company, Inc. (Civil) 1621
Springfield Water Conditioning (Civil) 1643
Standard Chlorine of Delaware Co., Inc.
(Civil) 1608
Stauffer Chemical Company (Civil Hearing) 1630
Sudbury Laboratory, Inc. (Criminal) 1602
Twinoak Products, Inc. (Civil) 1623
Velsicol Chemical Corporation (Civil) 1627
Ventron Corporation (Civil) 1618
1131
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