N.J., I.F.R. 1901-1950 Issued November 1976
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF ENFORCEMENT
OFFICE OF GENERAL ENFORCEMENT
PESTICIDES AND TOXIC SUBSTANCES
ENFORCEMENT DIVISION
NOTICES OF JUDGMENT UNDER THE FEDERAL
INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
Nos. 1901-1950
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
responsible 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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1901. In Re: Connecticut Aerosols, Inc., EPA Region I, March 31,
1976. (I. F. & R. No. I-26C, I.D. No. 106726.)
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)(c). The action pertained to a shipment
made on August 26, 1974, from Milford, Connecticut, to Clinton,
Connecticut. The pesticide involved was NEW ERA AFRICAN
VIOLET AND HOUSE PLANT INSECT SPRAY; the charge was
misbranding—the pesticide was an imitation of, or was sold under
the name of, another pesticide.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $4,500.00.
1902. In Re: Hooker Chemicals & Plastics Corp., EPA Region II,
February 19, 1976. (I. F. & R. No. II-77C, I.D. No. 110177.)
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)(l)(E); 136(q)(l)(G); 136(q)(l)(E) and 136(q)(2)(C)(i).
The action pertained to a shipment made on October 14, 1974, from
Niagara Falls, New York, to Prairie, Mississippi. The pesticide
involved was TECHNICAL MIREX, charges included nonregistration
and misbranding in that the label lacked caution or warning
statement, signal word, directions for use and name and address of
producer.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $9,300.00.
1903. In Re: L & A Juice Co., EPA Region II, February 19, 1976.
(I. F. & R. No. II-52C, I.D. No. 118120.)
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 shipment
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made on December 1, 1973, from L & A Juice Co., Brooklyn, New
York, to Greenbrugh Natural Food, New York, New York. The
pesticide involved was NATURE-PLUS NATURAL INSECTICIDE
INSECT KILLER; the charge was misbranding—labeling for product
made false or misleading safety claims.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $850.00.
1904. In Re: Nationwide Chemical, EPA Region II, February 19,
1976. (I. F. & R. No. 103C, I.D. No. 107723.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(1); 136j(a)(l)(E) and 136(q)(1)(G). The action pertained to a
shipment made on February 6, 1975, from Brooklyn, New York, to
Edison, New Jersey. The pesticide involved was DORECIDAL;
charges included composition differed in substance from the
representations made in connection with its registration and
misbranding—lack of adequate precautionary labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,700.00.
1905. In Re: F & W Bearing Service, Inc., EPA Region II, March
2,1976. (I. F. & R. No. II-44C, I.D. No. 119113.)
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)(1)(A) and 136(c)(l). The action pertained to a
shipment made on November 2, 1973, from Middletown, New York,
to Danbury, Connecticut. The pesticide involved was TAS ORA-VAC
SANITIZER; chargers included adulteration and misbranding—
strength or purity fell below the professed standard of quality as
expressed on its labeling.
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The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $350.00.
1906. In Re: Chem Power, Inc., EPA Region II, March 10, 1976.
(I. F. & R. No. II-36C, I.D. No. 104622.)
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)(l)(E) and 136(q)(l)(A). The action pertained to a
shipment made on March 21, 1973, from Cedar Knolls, New Jersey,
to Gretna, Louisiana. The pesticide involved was TREE & SHRUB
SPRAY; charges included nonregistration and misbranding—
labeling bore false or misleading statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,000.00.
1907. In Re: Chem Power, Inc., EPA Region II, March 10, 1976.
(I. F. & R. No. II-37C, I.D. No. 104611.)
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)(l)(E) and 136(q)(l)(A). The action pertained to a
shipment made on July 30, 1973, from Cedar Knolls, New Jersey, to
Harvey, Louisiana. The pesticide involved was CHEM-POWER
WEED & GRASS KILLER; charges included nonregistration and
misbranding—labels bore false and misleading claims.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,500.00.
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1908. In Re: Chem Power, Inc., EPA Region II, March 10, 1976.
(I. F. & R. No. II-38C, I.D. Nos. 104613 and 104614.)
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)(l)(E); 136(q)(l)(A) and 136(c)(1). The action
pertained to shipments made on July 11 and 30, 1973, from Cedar
Knolls, New Jersey, to Gretna, Louisiana. The pesticide involved was
FORMULA NO. 19-10 ROOM FRESHNER, charges included
nonregistration, misbranding and 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 $2,500.00.
1909. In Re: Elco Manufacturing Company, EPA Region III, June
4,1975. (I. F. & R. No. III-33C)
This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge Frederick W. Denniston's Initial Decision.
By Complaint dated February 26, 1974, as amended by Motion
approved November 8, 1974, the Director of the Enforcement
Division, Environmental Protection Agency, Region III, alleged that
Elco Manufacturing Company had violated the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended (86 Stat. 973; 7 U.S.C.
136 et seq.) (FIFRA herein). Specifically, it was alleged that Elco held
for sale the products Dursban Insecticide 1E and Dursban Insecticide
2E which had improper labels, and a civil penalty of $5,000 was
proposed to be assessed.
Following a prehearing exchange of proposed evidence,
hearing was held in Pittsburgh, Pennsylvania, on November 26,
1974. Proposed Findings and Briefs were filed on March 3, 1975, and
replies on March 17, 1975.
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With its Proposed Findings, Respondent submitted an Errata
proposing corrections of the transcript, to which no objections have
been filed. Those proposed changes should be granted, except as to
Item 14, which should be Page 226, line 23 - Change
"remunerazation" to "a summarization."
Pursuant to permission granted at the hearing (Tr. p. 215),
Respondent also tendered with its Proposed Findings, a statement of
gallons of Dursban IE and 2E sold from 1969 through 1974. This
statement is received as a late-filed exhibit and Respondent's Exhibit
No. 12 is assigned thereto.
Respondent has been represented by Eugene B. Strassburger III,
of Strassburger & McKenna, of Pittsburgh, Pennsylvania, and
Complainant by Peter J. Smith of Philadelphia, Pennsylvania.
Findings of Fact
1. Pursuant to a prior telephonic communication, Sherman
Lotchaw, Consumer Safety Officer in EPA, Region III, visited the
establishment of Elco Manufacturing Company, Sharpsburg,
Pennsylvania, on August 21, 1973, for the purpose of conducting an
establishment inspection pursuant to Section 9(a) of FIFRA [7 U.S.C.
136g(a)].
2. Mr. Latchaw conferred with Mr. Harry Katz, President of
Elco, who supplied copies of 20 to 30 existing product labels which
Latchaw compared with copies of the EPA approved labels. This took
about 2 to 3 hours. There were no discrepancies between the
approved labels for Dursban IE and Dursban 2E, and those supplied
by Mr. Katz.
3. At Latchaw's request, Katz then took the former into the
warehouse area so that he could draw physical samples and inspect
all products packaged, labeled and readied for shipment. A Notice of
Inspection form was given to Katz at the same time stating the reason
for the inspection was to obtain "samples of any pesticides or
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devices, packaged, labeled, and released for shipment and samples
of any containers or labeling for such pesticides or devices.1'
4. Latchaw was then taken, by his request, to the warehouse
area to obtain the physical samples, by Katz or one of his employees.
Within 25 to 50 feet of the office approximately six stacked cartons
were pointed out to Latchaw as containing Elco Dursban IE and 2E.
Samples were also taken of other products which are no longer here
in issue.
5. After opening the cartons, Latchaw removed two one-
gallon bottles each of Elco Dursban IE and 2E. One of each was
bagged and sealed for submission to the EPA Chemical Laboratory; a
duplicate of each was also bagged and sealed and given to Mr. Katz
as a duplicate sample. Latchaw prepared a Receipt for Samples
covering ten items, including the Elco Dursban IE and 2E, which
included the following statement which was called to the attention of
Mr. Katz:
The undersigned acknowledges that the following
samples were obtained from pesticides or devices that were
packaged, labeled, and released for shipment; or having been
shipped, are being held for distribution for sale.
Mr. Katz indicated there would be no charge for the samples taken.
He insisted, however, that one of the products listed was not held for
sale and at his request Latchaw noted on the receipt as to that item,
"Not for sale." Mr. Katz then signed the receipt.
6. Later the same day, Latchaw compared the labels on the
two Dursban samples and found they did not agree with the accepted
registered labels. Each of the labels on the samples omitted portions
of the precautionary instructions and failed to include portions of the
directions for use contained on the approved labels.
7. On the next day, August 22, 1973, Mr. Latchaw returned
to Elco's establishment and informed Mr. Katz of the different labels,
who, after inspecting a jug of the Elco Dursban, obtained a correct
label and placed it on that jug, explaining that it was not on the jug
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because it was a larger label and looked too awkward. Mr. Katz,
although expressing concern over the prospect of a possible fine for a
violation, did not contend the labels on the bottles were merely for
identification purposes, or that the two products were not offered for
sale, shipment, or deliver/. Neither Mr. Katz nor any Elco employees
indicated the labels on the samples were for training purposes or that
they were not the correct labels for those products.
8. The approved labels of both Dursban products contained
the following precautionary statements, which are wholly lacking on
the sample labels:
WARNING
May be fatal if swallowed. May be absorbed through
skin. May be injurious to eyes and skin.
Do not get on skin or in eyes. Wash thoroughly after
handling. Do not wear contaminated clothing. Avoid
breathing vapors or spray mist. Keep away from food,
feedstuffs and water supplies. Keep container closed.
Keep away from heat and open flame.
Flush contaminated eyes with plenty of water and get
medical attention.
Note to physician: Active ingredient is a cholinesterase
inhibitor. Treat symptomatically. Atropine is an antidote.
Keep Out of Reach of Children and Animals Combustible
Liquid.
9. Dursban is in EPA's.toxicity category II, because of its
acute oral toxicity (LD50) of 50 to 500 milligrams. The LD50 is the
amount of a single dose of the chemical necessary to kill 50% of any
test animal population. This is determined from toxicity data
submitted by the company submitting the chemical for evaluation by
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EPA. In the case of Dursban, the data was submitted by the Dow
Chemical Company.
10. The toxicity of Dursban is the result of its physiological
effect. Specifically, Dursban is an organic phosphate compound that
acts on the nervous system as a cholinesterase inhibitor.
Cholinesterase is an enzyme in the nervous system. It is responsible
for the breakdown of acetylcheline, another enzyme which is
necessary in the transmission of impulses through the nervous system.
Inhibition of cholinesterase causes a buildup of acetylcholine. The
symtoms of such a buildup include convulsions, respiratory inhibition
and cardiac arrest.
11. The absence of precautionary statements relating to the
toxicity of these products would probably leave the user unable to
determine the toxicity category of these products. Furthermore, it is
the policy of EPA to require such precautionary labeling even if the
products are intended for use by pest control operators only. This is
because EPA does not assume that operators would necessarily have
more knowledge concerning a particular product's toxicity than the
general public.
12. For the foregoing reasons, the labels on the samples did
not sufficiently provide for the protection of human health.
13. The approved labels also contain "Directions for use" of
both products on lawns and turf for the control of chinch bugs and
web worms, together with application rates and dilution tables, which
directions and uses are not contained on the sample labels. The
dilution rates for Dursban IE and 2E are different due to their
different degrees of concentration. Improper dilution or use of an
improper rate of application could result in the products being
ineffective and in the possibility of unnecessary environmental
contamination from repeated efforts by the user to obtain desired
results.
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Discussion and Conclusions
The defense of Elco in essence, is that the labels on the samples
taken were merely for "tagging" purposes and were not the labels
placed on deliveries when sales are made; that the samples taken
were not being held for sale; and that the registered label is placed
on all containers prior to sale and delivery.
Elco and Mr. Katz, its President, have exercized leadership in
organizing a training program for the Western Pennsylvania Pest
Control Association. Mr. Katz and other Elco employees have
conducted training courses for the Association, instructing in correct
labeling of products, among other things. According to Katz, the
labels on the samples were printed for use in the training sessions,
and to reduce the size, certain portions of the approved labels were
omitted. As difficulty was experienced in identifying bottles of the
Dursban product, because markings rubbed off, and because the
training labels were available, the latter were utilized as "tags" or
identification, according to Katz. Such use was further justified by
Katz as being due to the fact that the approved label was so large it
protruded freestanding 1 1/2 inches above the body of the jug,1 and
became messy if the contents were poured in or out, as was
sometimes done.
Partial corroboration of Katz1 testimony is found in the
testimony of four pest control operators in the area who obtained
their supplies by purchase of Elco Dursban 1E or 2E, and represented
a substantial portion of Elco's total sales of these products. In a
general way they confirmed the use of the constructed label at
training sessions but insisted the registered label was on the deliveries
they received. None, however, was in a position to account for all
their receipts of deliveries. Other Elco employees testified the correct
registered label was on shipments when they went out; but again,
they were unable to speak as to all shipments.
Finally, Katz justified the delivery of the samples to Latchaw and
the signing of the receipt for samples, as having been done with the
"understanding" that Latchaw knew the correct labels were to be
affixed to the products before sale and delivery because Latchaw
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had reviewed the labels as part of his initial review during the
inspection.
Unfortunately, these explanations do not agree with what
occurred contemporaneously with the events and must be rejected.
While the language of the Receipt for Samples is ambiguous it
reproduces Section 9(a) of FIFRA which uses the words "held for ...
sale" as does Section 12(a)(l). In any event, the purpose of the
samples taken was clearly obvious to Katz who insisted on a write-in
on the receipt of "Not for Sale11 with respect to another unrelated
product covered by the receipt. Moreover, the reaction of Katz to the
return visit of Latchaw fully accepted the concept that a violation had
occurred.
Accordingly, Respondent's proposed finding No. 28, that
Dursban was never held for sale without the proper label attached is
unsupported by the record and must be rejected.
It is concluded, therefore, that Respondent did hold for sale Elco
Dursban 1E and 2E, as alleged.
The Penalty. Complainant has computed proposed assessments
by use of the Civil Penalty Assessment Schedule designed to produce
comparability of penalties (39 F.R. 27711).
Complainant proposes to assess two separate amounts against
each of the two products, of $1,250 each, for a total of $5,000.
Respondent contends generally that this is excessive and proposes in
the alternative $500, in the event it is found to have violated the Act.
Under the heading of Labeling Violations, Section One (2)
Deficient Precautionary Statements: Lacks Required Precautionary
Labeling - for a Category II concern as is Respondent, the penalty of
$1,250 is prescribed where (A) Adverse Effects are Highly Probable.
This would properly apply to each of the two products and would
amount to $2,500. As to the second charge, resulting from the
elimination of the Lawn and Turf usages and accompanying dilution
and use directions, Complainant proposes application of Section
Three of the Labeling Use Violations - 1. Inadequate Directions for
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Use, A. Likely to Result in Mishandling or Misuse, for which Category
2 specified $1,250. In this instance, however, the use itself was not
specified on the incorrect label, and it is not perceived how this could
lead to a likelihood of mishandling or misuse. It would therefore
appear more appropriate to apply "C. Not likely to result in
mishandling or misuse" for which a penalty of $300 is prescribed, or
$600 for the two products.
The resulting figure accordingly is $3,100 but in view of
mitigating circumstances here present, in the judgment of the
Presiding Officer, this figure should be lowered by the 40%
negotiating margin approved by the Schedule for settlement
purposes. Here, the violations are clearly the result of carelessness
rather than by venality or intent to deceive or defraud and
Respondent's past record and immediate correction when advised of
the violations, indicate examplary conduct on its part. Moreover,
Respondent has shown leadership in instructing other users in the
pesticide field.
Ultimate Conclusion
It is found that Respondent violated the provisions of FIFRA as
charged and that a civil penalty of $1,860 should be assessed
against it.
ORDE&
1. Pursuant to Section 14(a) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended (86 Stat. 973; 7 U.S.C.
1361 (a)), a civil penalty of $1,860 is hereby assessed against
Respondent Elco Manufacturing Company.
2. Payment of the full amount of the civil penalty assessed
shall be made within sixty (60) days of the service of the final order
upon Respondent by forwarding to the Regional Hearing Clerk a
cashier's check or certified check payable to the United States of
America in such amount.
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3. The corrections proposed by Respondent of the transcript
of the November 26, 1974, hearing are approved and the transcript
is CORRECTED accordingly, except that at page 226, line 23,
"remunerazation" should be changed to "a summarization".
4. The late-filed exhibit of Dursban sales, is identified as
Respondent's Exhibit No. 12, and is received in evidence.
Frederick W. Denniston
Administrative Law Judge
June 4, 1975
1 An attempt by Complainant to show that such a label would not be
approved was ruled irrelevant; in any event, the question is mooted
by the fact that Respondent has ceased formulation of the two
products.
7 Unless appeal is taken by the filing of exceptions pursuant to section
168.51 of the rules of practice, or the Regional Administrator elects
to review this decision on his own motion, the order shall become the
final order of the Regional Administrator. [See section 168.46(c)).
1910. In Re: Lebanon Chemical Corp., EPA Region III, February
24,1976. (I. F. & R. No. III-60C, I.D. No. 117304.)
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[c)(l) and 136(q)(l)(A). The action pertained to a
product held for distribution or sale on July 12, 1974, at Lebanon
Chemical Corp., Lebanon, Pennsylvania. The pesticides involved were
LEBANON ROSE and FLORAL SPRAY, charges included
adulteration and misbranding—strength or purity fell below the
professed standard of quality as expressed on its labeling.
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The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,700.00.
1911. In Re: Miller-Morton Co., EPA Region III, March 15, 1976.
(I. F. & R. No. III-89C, I.D. No. 109124.)
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(c)(l) and 136(q)(l)(A). The action pertained to a
product held for distribution or sale on April 15, 1975, at Miller-
Morton Co., Richmond, Virginia. The pesticide involved was
SERGENT'S SKIP-BATH QUICK DOG CLEANER; charges included
adulteration and misbranding—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 $1,700.00.
1912. In Re: Chapman Chemical Company, EPA Region IV, July
29,1975. (I. F. & R. No. IV-67C, I.D. No. 104559.)
This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge Martin E. Jones' Initial Decision and EPA
Region IV Administrator's Final Order and Amended Final Order.
Initial Decision
This proceeding was initiated upon the issuance of a complaint
dated February 5, 1974, by the Director, Enforcement Division,
Environmental Protection Agency, Region IV, which charged the
above respondent with violations of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended, 7 U.S.C. 136 et seq.
(FIFRA) and sought the assessment of a civil penalty of $5,000 under
Section 14(a) of the Act, U.S.C. 136 l(a). The respondent filed a
timely answer on February 7, 1974, and requested a hearing which
was held in Memphis, Tennessee, on November 22, 1974.
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The complaint alleges that respondent violated the Act in that
on or about July 2, 1973, it shipped in interstate commerce from
Jackson, Mississippi, to Monroe, Louisiana, the pesticide "BHC-1"
that was misbranded. Misbranding is alleged under 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(G); 136lq)H)(F}; and 136(q)(2)(C)(iv) in that the
label did not bear any warning or caution statements, directions for
use, ingredient statement or registration number assigned. None of
said assignments are independently assessable because no one
assignment requires an element of proof not required by the other.
The drum was stenciled with the product name, "BHC-1", the Lot
Number "669743"; and the weight "461 net". The Act requires that
the drum containing said pesticide should have borne the label
accepted in connection with its registration on April 28, 1966, under
Reg. No. 1022-144.
Pursuant to Section 168.36, subsections (a) and (e), of the Rules
of Practice, the parties were requested on April 11, 1974, to
correspond with the Honorable Frederick W. Denniston,
Administrative Law Judge, for the purpose of accomplishing some of
the objectives of a prehearing conference. Said correspondence
appears in the record.
The purpose of the hearing was to resolve the single factual
issue of whether Chapman Chemical Company shipped in interstate
commerce a pesticide in a container which did not bear a proper label
and thus was misbranded within the meaning of 7 U.S.C. 136j(a) and
40CFR162.108.
On the basis of the entire record, including the briefs of the
parties, I hereby make the following:
Findings of Fact
1. Respondent, Chapman Chemical Company, at all times
pertinent to this action, maintained a manufacturing plant and office
located at Memphis, Tennessee, and was at said location engaged in
the interstate marketing of pesticides, including the pesticide "BHC-1
EMULSIFIABLE CONCENTRATE".
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2. The product "BHC-1 EMULSIFIABLE CONCENTRATE",
hereinafter "BHC-1", manufactured by respondent, is a registered
pesticide whose label was accepted on April 28, 1966, under EPA
Reg. No. 1022-144.
3. It is stipulated by the parties that gross sales of Chapman
Chemical Company were in excess of $1,000,000 for the year 1973.
4. In manufacturing BHC-1 to be shipped in a 55-gallon
drum container the procedure adopted by Chapman, since 1968, or
earlier, is:
A. To affix the approved label early in the manufacturing
process, using an adhesive manufactured by H. B. Fuller Company
and recommended for use on drums, to be stored outside.
B. When the drums are selected for shipment, the order
picker normally identifies the product through its label.
C. Upon shipment, it is the duty of the warehouse
foreman to check the labels thereon to insure proper labeling, even
though periodic inspections of merchandise to be shipped, including
checking for proper labeling, is made by the plant superintendent.
5. At some time prior to July 1, 1973, the 55-gallon drum in
question was shipped to Jackson, Mississippi, for storage there in the
warehouse of Superior Transfer and Storage Company (Superior).
6. On or about July 2, 1973, Superior, pursuant to an
understanding with respondent, shipped in interstate commerce from
its warehouse to respondent's customer in Monroe, Louisiana, the
pesticide BHC-1, in a 55-gallon drum which, on inspection by EPA on
August 14, 1973, was found not to have a registered label affixed to
the container.
7. The 55-gallon drum of BHC-1, which was the first drum
that had been ordered by the customer, Reed and Sons Hardwood,
Inc. (Reed), since 1972, was delivered by Red Ball Motor Freight, Inc.,
of Jackson, Mississippi, on July 5, 1973, and was stored lying on its
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side on the open ground for about five weeks of the period following
deliver/ and prior to the time of said inspection.
8. The aforesaid drum containing BHC-1, at the time of said
inspection, was located on a wood rack (or "cradle") lying on its side,
in close proximity to the ground and had been on said rack for
approximately seven to ten days.
9. At the time of inspection it was determined that said 55-
gallon drum of BHC-1 contained no glue particles or vestige of an
approved registered label; and nowhere on the ground in the general
area was anything observed which looked like a pesticide label. The
drum did, however, contain stenciling on the top of the drum which
read, "669743 461 net BHC-1", and the inked-in address label which
read, "Reed & Sons, Monroe, La. From: Chapman Chemical/500
Ford, Jackson, Ms".
10. In the same general area as the aforementioned drum at
Reed's yard, also lying on its side in the open and exposed to the
elements, was another 55-gatlon drum of BHC-1 bearing what
appeared to be a proper paper label of respondent. This drum had
been at the Reed premises since at least 1972 (when Reed bought out
Walter Kellogg Lumber Company who purchased said other drum of
BHC-1) and most likely had the same adhesive applied to its label.
11. Subsequent to the issuance of the Complaint of February
5, 1974, respondent stated that it immediately checked all drums,
over which they had direct control, not only to verify that they were
labeled, but also to insure that the adhesive had created a durable
bond between the label and the drum. Respondent's Material Control
Manager confirmed said procedure and further stated that every
drum label was covered with a second coat of adhesive to prolong the
label's resistance to severe weather conditions, and that the second
coat was applied merely as a precaution.
12. Tests comparing the weathering characteristics of the
polyvinyl acetate emulsion adhesive previously used with other
adhesive formulations show that under continued ond intense
weather conditions neophrene latex adhesives maintain a secure
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bond longer than the other materials tested. Respondent's Material
Control Manager testified that he never observed an instance where
a label had been totally removed from a drum as a result of
mishandling. Chapman subsequently switched to H. B. Fuller's #813
neophrene latex adhesive in early March 1974, and has been using
this material since that date.
13. No evidence was introduced that anyone personally
observed whether or not the 55-gallon drum of BHC-1 bore a
registered label while in the Superior warehouse prior to shipment, at
the time of shipment, or later.
14. Superior, a public warehouse used by respondent since
197?, was, prior to its shipment to Reed, entrusted with the storage
and shipment of the 55-gallon drum of BHC-1 in question.
15. On this record, the carrier, Red Ball Motor Freight, Inc.,
could have identified the drum of BHC-1 as containing an insecticide
from the stenciling appearing on the top of the drum; the bill of lading
prepared by Superior described what it had requested the carrier to
ship, namely, insecticide.
16. The Manager of Reed testified that his Company and its
predecessor had used BHC-1 for many years and Its employees were
familiar with its use.
17. The Manager, further testified that the drum, on the date
inspected by EPA, was "neither real clean nor real dirty or covered
with a bunch of stuff. There was some dust on it, of course."
18. By letter dated February 7, 1974 (Respondent's Exhibit B)
the office manager of Superior advised respondent that: "...let me
assure you that we never ship any item from our warehouse
unlabeled. The shipment of BHC-1 going to Reed and Sons
Hardwood Company in Monroe, Louisiana, was most assuredly
labeled. This is the only way our workers know what item they are
pulling from stock...".
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19. Chapman Chemical Company has never received a
complaint that any drum of BHC-1 shipped by it was unlabeled when
it was received by the user.
20. On June 22, 1973, the U. S. District Court for the Western
District of Tennessee, accepted respondent's plea of "nolo
contendere" to counts of a criminal information charging respondent
with four violations of FIFRA in 1970 and two violations in 1972,
which consisted of non-registration of product shipped in four
instances and misrepresentation as to the composition of the product
shipped in the remaining counts, for which respondent was penalized
a total of $500.
Conclusions
At the hearing conducted on November 22, 1974, in Memphis,
Tennessee, the factual issue to be resolved was, as now, whether
Chapman Chemical Company shipped, in interstate commerce, a
pesticide in a container without a proper registered label affixed
thereon, and which was thus misbranded within the meaning of 7
U.S.C. 136j(a) and 40 CFR 162.108. As proof of the same facts will
establish all of the violations charged, respondent is subject to the
imposition of but one penalty should such determination be in the
affirmative [Blockburger vs. U.S., 284, U.S. 299, 304 (1932); 39 FR
27711, Section I(B)(2)].
The complainant proposed to assess and now urges assessment
of a civil penalty of $5,000. This was based on the civil penalty
schedule for violations of Section 14(a) of FIFRA, 7 U.S.C. 136 1.
Thus it must be here determined, first, whether or not respondent
shipped BHC-1 in interstate commerce in violation of the Act, and,
second, if such finding is in the affirmative, what, if any, penalty is
appropriate.
Respondent stresses that, on this record, it is shown that the 55-
gallon drum of BHC-1 was shipped by Chapman with a label—and
with a label which had been properly affixed. However, respondent
1275
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seeks to rely strongly on the weakness of complainant's case. There
was no direct evidence that the drum was shipped by Chapman
without a label either when shipped from Memphis to Superior or by
Superior to Reed. There was no testimony as to whether or not a
proper label appeared on said drum when it was delivered to'Reed.
Lacking also was any direct evidence that a label had at any time
been removed or that the handling of the drum, after delivery, was of
such severity that a label properly affixed on the drum would have
become removed.
We conclude that complainant made a prim a facie showing that
respondent shipped, in interstate commerce, from Jackson,
Mississippi, to Monroe, Louisiana, a 55-gallon drum of its product,
BHC-1, without a proper label thereon. It is admitted that the drum,
when officially inspected by EPA on the premises of customer, Reed,
on August 14, 1973, did not bear a registered label. The evidence
further shows that the drum showed no evidence of glue particles or
any vestige of the approved registered label. Nowhere on the
ground, in the general area, were any particicles sighted which
looked like remmants of said label. It should be here mentioned that
certain markings did appear on the top of the drum. Stenciled thereon
was "669743 461 Net BHC-1". The inked-in address label was also
on the drum which read: "Reed and Sons, Monroe, La. From:
Chapman Chemical, 500 Ford, Jackson, Ms.".
To rebut the presumption raised, respondent presented
evidence, first, that the drum of respondent's product was shipped
from a warehouse in Jackson, Mississippi.
The evidence clearly shows that Superior has been entrusted by
Chapman with the storage and shipment of Chapman products for a
period of many years. Superior's new warehouse was constructed in
1971 after a fire destroyed the structure utilized by it prior to that
time. The evidence definitely established an arrangement (of which
customers are advised) whereby orders can be placed with and
shipment obtained from Superior. Under the arrangement, product
(e.g., the 55-gallon drum of BHC-1 here in question) is shipped to and
sotred in Superior's warehouse prior to sale to customers. We are not
here concerned with whether any failure to affix the proper label
1276
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required by the Act occurred at Memphis or at Jackson because the
distinction is inconsequential. It is clear that the law contemplates
that shipment from Jackson was as much the responsibility of
respondent as was the shipment from its Memphis plant. And it
matters not whether Superior be categorized as an agent or as an
independent contractor (United States vs. Parfait Power Puff Co.,
163 F 2d 1008, 1010(3), citing United States vs. Dotterweich, 320
U.S. 277, 64 S.Ct. 134,88 L. Ed. 48).
In the interest of procuring distribution of its product in
interstate commerce, respondent chose to use the facilities of, and
entrusted Superior to act in its behalf. The acts of the instrumentality
/bus created are controlled, in the interest of public policy, by
imputing any of its acts, which contravene the law, to its creator and
imposing a penalty upon the latter. This principle is applicable though
respondent may not be conscious of any wrongdoing. Rather than to
subject an innocent and wholly helpless public to such hazard, it is
more equitable to hold responsible the respondent who, at least, has
the opportunity of informing itself (U.S. vs. Dotterweich, supra).
The following statement in Parfait, supre, I.e. 1010(3) is
appropriate in the instant case:
"Defendant may not put into operation forces
effectuating a placement in commerce of a prohibited
commodity in its behalf and then claim immunity because
the instrumentality it has voluntarily selected has failed to
live up to the standards of the law."
Nor is Superior's letter of February 7, 1974 (Respondent's
Exhibit B) determinative of the issue presented. Obviously, it was
responsive to correspondence from, and possibly contact by,
respondent on or about the date stated. While it is not here
suggested that duplicity was practiced, it is readily apparent that the
same statement is subject to more than one interpretation, and
therefore little weight can be accorded it. If it's writer was capable of
giving testimony under oath to the effect that the drum when shipped,
had a registered label affixed, then such testimony should, and likely
would, have been elicited at the hearing and there subjected to cross-
1277
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examination. The more reasonable interpretation to be accorded said
exhibit is that the drum contained markings sufficient to advise their
workers as to what item they were pulling from stock. It is
unquestioned that the net weight and "BHC-1" were stenciled on top
of the drum. This was sufficient for the preparation of the bill of
lading showing the product shipped-insecticide. This information
could be considered labeling, as would the inked-in address "label"
but the presence of a registered label is not thereby established.
Considerable testimony was devoted to proof of on-site
conditions at the Reed premises, with the suggestion of the possibility
that a label affixed to the drum prior to and at the time of delivery
was subsequently removed and obliterated. The general area where
the drum remained on the ground for some five weeks was unpaved
and can be typified generally as a varying mixture of dirt, sawdust,
ashes, and bark, with the presence also of cinders, blowing sawdust,
and steam. It is suggested that extremely rough (if not abusive)
treatment to the drum is indicated in testimony of Mr. Terrell, Reed's
Manager. Mr. Terrell indicated he had not observed the drum prior to
its inspection by EPA on August 14, 1973, and therefore could not
state whether the drum contained a label or not. He stated that on the
date of inspection the drum had been transferred to a rack or cradle
(either by two or more men rolling it to and lifting it onto the rack, or
with a forklift). He did not know if the drum was otherwise rolled
around, or if it stayed in one position. The condition of the drum was;
by him, described as "neither real clean nor real dirty or covered with
a bunch of stuff. There was some dust on it, of course". Mr. Terrell
further testified that rainfall was far above average during the six
weeks preceeding the EPA inspection. The drum likely was subjected
to blowing chip dust (and sawdust) but not to wood chips which would
not blow that far. Steam was emitted from a steam line estimated ot
not more than 30-feet away from where the drum in question was
stored.
The foregoing evidence creates an inference that the drum in
question could possibly have been subjected to rough handling and
treatment. However, when considered with other evidence
hereinbelow outlined, the record as a whole shows that the absence
of a proper label is not attributable to its handling after delivery, but
1278
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to the fact that a proper registered label was not affixed to the drum
when said commodity was shipped in interstate commerce.
It is not disputed that:
1. On the top of said drum, in addition to the stenciled
markings, heretofore mentioned, was an inked-in address label which
at the time of said inspection was intact and the inspector was able to
observe therefrom the complete names and addresses of both the
shipper and customer. While the type or quality of adhesive used to
affix said address label to the drum is not developed in this record,
the effect of steam, emitted on the premises, and the unseasonably
heavy rainfall experienced during the weeks proceeding inspection,
would be aptly demonstrated by the condition of the address label.
2. The label affixed by respondent to another 55-gallon
drum which was subjected to the same handling and exposure (but
over a much longer period) still bore what appeared to be a proper
paper label of respondent on the said date of inspection, and no
degree of removal or obliteration was noted.
3. The evidence presented by respondent, hereinafter more
fully set forth, is persuasive that their approved registered labels are
affixed to their shipping containers with top quality adhesive
recommended by its manufacturer for use on drums to be stored
outside. From respondent's own evidence, I conclude that, if a proper
label had been affixed to said drum at any time prior to shipment, the
label or some vestige thereof would have thereafter appeared on said
drum. Its Material Control Manager has never observed an instance
where a label has been totally removed from a drum as a result of
mishandling.
Respondent points out that, under the procedure adopted by it,
the registered label is affixed to the drum container prior to filling the
drum. On page 6 of its brief is outlined nine (9) inspections which a
Chapman drum container must pass from time of manufacture until it
comes to rest on the premises of the customer. The testimony offered
by respondent described normal procedures and the witnesses were
adamant in their belief that the drum in question could not have been
1279
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shipped without a registered label affixed. However, no direct
testimony was elicited from any witness who personally observed or
inspected the container here in question for the presence of a
registered label thereon.
The procedures adopted and practiced by respondent are
admirable and commendable as is their continuing effort to use
highest quality adhesive and alert their personnel in Memphis and
elsewhere as to the importance of proper labeling in accordance with
the Act. The evidence of respondent's good faith in this regard is
persuasive and convincing. However, it does not necessarily follow
from the fact that respondent ordinarily exercises great care, that
departures from the usual practice were never made. [Tingey vs. E. F.
Houghton, 30 CAL 2d 97, 179 P.2d 807; Gall vs. Union Ice Co., 239
p.2d48(1951)].
From the foregoing we find, and here hold, that the evidence of
respondent falls short of effectively rebutting complainant's prima
facie case, and that respondent is subject to assessment of an
appropriate civil penalty against it for commission of the violation so
charged.
Civil Penalty
Section 14(a)(3) [7 U.S.C. 136 l(a)(3)] provides in pertinent part:
In determining the amount of the penalty the
Administrator shall consider the appropriateness of such
penalty to the size of the business of the person charged,
the effect of the person's ability to continue in business,
and the gravity of the violation.
Thus, Congress intended that the penalty should fit the offender
as well as the offense.
Since, on this record, it is found that respondent is subject to the
assessment of a civil penalty for the violation charged
("misbranding"), the Administrative Law Judge must make an
1280
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independent judgement as to the appropriateness of the penalty to
be assessed. [IN THE MATTER OF AMVAC CHEMICAL
CORPORATION, I.F.&R. No. IX-4C, Docket No. 141.7(P)].
The first factor required by the statute to be considered in
determining the amount of the penalty is the size of respondent's
business. It is stipulated by the parties that in 1973 respondent's sales
exceeded $1,000,000. For the purpose of considering this factor and
the second, hereinbelow, it is noted that the President of respondent,
in correspondence forwarded in the course of the Prehearing
procedure, pursuant to Section 168.36(e) (39 FR page 27663), stated
that said gross sales for 1973 were, in fact, $3,456,563 and that 70
people were employed by it.
The second factor to be considered is respondent's ability to
continue in business. No testimony was elicited relative to this
consideration during the course of the November 22, 1974, hearing.
However, again taking notice of said correspondence of respondent's
President, he stated in his letter of March 6, 1974, that his company,
though having sales of over $3 million, experienced a loss in 1973 of
approximately $225,000 and that their bank credit at writing
exceeded $300,000. In his letter of April 25, 1974, he again
confirmed the amount of their sales in 1973, and that the net loss,
after various credits arising out of the acquisition and consolidation
of the two companies, was expected to be $78,000. He was of the
opinion that an assessment of the magnitude proposed would have a
real and detrimental effect on respondent's ability to continue in
business.
The facts mentioned, particularly the reported loss are not
meaningful unless the reason for same is also considered and it is
determined whether losses are to be contemplated from future
operation of the company. With reference to the loss of 1973,
respondent's President included in his letter of February 7, 1974,
(page 2 thereof) the following statement:
"I believe it is also pertinent to advise you that a key
program of the new management has been to reduce the
mammalian toxicity of the company's products. One
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reason for our large losses in 1973 was the research
expenditure made in order to develop these products.
The new products should be commercialized this Spring."
The above statement is indicative that respondent is optimistic
and forward-looking. The loss can be typified as one of a
nonrecurring nature. In the premises, though temporary
inconvenience may result, we are unable to find that payment of the
penalty herein assessed will affect the respondent's ability to
continue in business.
The third factor to be considered in determining the amount of
the penalty, is the gravity of the violation. In our view, the penalty
should fit both the violation and the respondent; that is, we should
consider the gravity of harm possibly attendant to members of the
public because of said violation and the seriousness of the misconduct
of respondent in so violating the Act.
As stated in the AMVAC Chemical case, supra:
"As illustrative of the degree of gravity of harm, it is
apparent that a violation involving the marketing of a
highly toxic pesticide that is not registered is much more
serious than a violation in which the label of a registered
pesticide fails to bear the registration number."
In the instant case, shipment of BHC-1 without the applicable
warnings and precautionary statements poses a definite hazard to
those who might come in contact with it. The gravity of harm is
referrable not only to those persons who, under the evidence, are
actually and obviously affected by the absence of cautionary
language resulting from the "misbranding" charged, but to those
persons who conceivably can be, or might have been, so affected by
such omission. Before its delivery to Reed, said drum of BHC-1 was
under the control of respondent, Superior's employees and the driver
of the carrier who transported said product. On arriving at Reed, said
drum remained on their premises which suggests that most of the
persons to be affected were Reed employees (knowledgeable
concerning the character of and the hazards inherent in the product)
1282
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with the possibility that patrons and other persons might on occasion
frequent said premises. There is no evidence in the record concerning
the accessibility of said area to members of the public but the
presence of equipment such as a debarker, a boiler room, steam lines
and water trough suggest that few members of the public would have
occasion to frequent the location. However, further evidence
revealed that the "other drum" had possibly been on the premises
since 1970, and therefore, we can reasonably contemplate that the
drum here in question might remain there for a comparable period.
The hazard to persons unfamiliar with the properties of BHC-1 is
amplified as the time within which the product remains on said
premises is increased. In like manner, the gravity of respondent's
violation becomes more apparent.
As stated, we must consider gravity of misconduct in addition to
considering gravity of harm.
The AMVAC case, supra, states:
"As to gravity of misconduct, matters which may be
properly considered include such elements as intent (to
violate) and attitude of respondent; knowledge of
statutory and regulatory requirements; whether there was
negligence and, if so, the degree thereof; position and
degree of responsibility of those who performed the
offending acts; mitigating and aggravating
circumstances; history of compliance with the Act; and
good faith or lack thereof. It is observed that the Rules of
Practice specify these last two elements as those that
may be considered in evaluating the penalty." [Section
168.53(b) there cited is now 168.60(b)(2)].
While, under the law, respondent is responsible for the violation
charged, we find its attitude and that of its well-informed
management to be excellent. The record makes a positive showing
that respondent has devised an excellent procedure to prevent future
violations such as that here considered. On the whole, consideration
of the conduct of respondent's operation is most favorable. The
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violation, while of a serious nature, was not intentional, and we find
the likelihood of recurrence of such violations to be minimal.
Complainant cites respondent's history of compliance with
reference, particularly, to the information filed by the U.S. Attorney,
in six counts, charging respondent with the sale of a non-registered
product in four instances (twice in 1970 and twice in 1972) and with
sale of product whose composition was different from that
represented in connection with the registration of its label, (two
charges in 1970). in June 1973, a plea of nolo contendere was
tendered to and paid by the respondent. It is noted not only that the
nature and character of the charges there differ materially from those
here considered, but that the date of said occurrences are somewhat
remote. Consequently, particularly in view of the honest and
forthright manner in which respondent's president exhibits a good
faith attempt to foreclose any possibility of like violation in the future,
we conclude that little weight should be accorded the unfavorable
aspects suggested by its compliance history.
On consideration of all facts contained in this record and
pursuant to Rule 168.46(b), 39 FR 27664, we have determined that
the sum of $1,800 is an appropriate penalty to be assessed against
respondent for its violation of the Act, in the particulars charged.
The proposed Finding of Fact and Conclusions, Briefs and
Arguments submitted by the parties have been considered. To the
extent that they are consistent with Findings of Fact and Conclusions
herein, they are granted, otherwise they are denied.
Having considered the entire record and briefs of counsel and
based on the Findings of Fact and Conclusions herein, it is proposed
that the following Order be issued.
1284
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Final Order
Pursuant to Section 14(a) of the Federal Insecticide, Fungicide and
Rodenticide Act, a civil penalty of $1,800 is assessed against the
respondent, Chapman Chemical Company, for violations of said Act
as set forth in the complaint dated February 5, 1974.
Marvin E. Jones
Administrative Law Judge
February 21, 1975
FINAL ORDER
This proceeding was initiated upon the issuance of a Complaint
dated February 5, 1974, by the Director, Enforcement Division,
Environmental Protection Agency, Region IV, which charged the
above Respondent with violations of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended, 7 U.S.C 136 ef seq.
(FIFRA) and sought the assessment of a civil penalty of $5,000 under
Section 14(a) of the Act, U.S.C. 136 l(a). The Respondent filed a
timely answer on February 7, 1974, and requested a hearing which
was held in Memphis, Tennessee, on November 22, 1974. •
After thorough consideration of the issues of fact and law raised
at the hearing. The Honorable Marvin E. Jones, Administrative Law
Judge, issued an Initial Decision on February 21, 1975, containing
assessment of $1,800. On April 1, 1975, timely Exceptions to the
Initial Decision were filed by the Respondent, and, on May 7, 1975,
the Complaintant, pursuant to an extension of time granted on March
14, 1975, timely filed a Reply Brief responding to the Exceptions of
Respondent to the Initial Decision.
1285
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This Final Order, pursuant to the provisions of 40 CFR 168.51
and 168.60, is based on a thorough review of the hearing transcript,
the Initial Decision, the Respondent's Exceptions and Brief in Support
of Respondent's Exception, and the Complainant's Reply Brief to the
Respondent's Exceptions.
The Respondent's request for oral argument is hereby denied
because its Exceptions raised no substantially different issues than
those raised prior to the Initial Decision. The Findings of Fact and
Conclusions contained in the Initial Decision, dated February 21,
1975, are adopted with the following exceptions:
1. Finding of Fact No. 20 was not relied upon or given
consideration in this determination; and
2. Respondent's Exception No. V is sustained, and the
conclusion contained in the second sentence of numbered paragraph
on page 9 of the Initial Decision is omitted and was not given further
consideration.
This decision is based on specific disagreement with
Respondent's Exceptions to the Findings of Fact No. 6, No. 7, No. 15
and No. 17, and Respondent's Exceptions to Concusions No. I, No. II,
No III, No. IV, No. VI, No. VII, and No. VIII.
Final Order
Pursuant to Section 14(a) of the Federal Insecticide, Fungicide
and Rodenticide Act, a civil penalty of $1,500.00 is assessed against
the Respondent, Chapman Chemical Company, for violations of said
Act as set forth in the Complaint dated February 5, 1974.
Dated this 19th day of May, 1975.
Jack E. Ravan
Regional Administrator
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AMENDED FINAL ORDER
Upon reconsideration of the Final Order, as requested by the
Complainant on Ma/ 22, 1975, the Final Order is amended as
follows:
The determination contained in the first paragraph of the
Conclusions on page 5 of the Initial Decision is found to be invalid
and inconsistent with the provisions of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended, 7 U.S.C., etseq.
Discussion
Exception is taken to the conclusion that the separate
allegations of misbranding contained in the Complaint could not be
individually penalized with separate assessments because of the
language in section B(2) of EPA's "Guidelines for the Assessment of
Civil Penalties Under Section 14(A) of the Federal Insecticide,
Fungicide, and Rodenticide Act, As Amended," at 39 FR 27711, July
31,1974.
An exception is being taken to the conclusion in the Initial
Decision in the first paragraph of the Conclusions on page 5, because
of a material difference in the characterization of EPA's Guidelines
as stated in the Initial Decision: "As proof of the same facts will
establish all of the violations charged, respondent is subject to the
imposition of but one penalty should such determination be in the
affirmative [Blockburger vs. U.S., 284, U.S. 299, 304(1932); 39 FR
27711, Section I(B)(2)]." The material difference is that the Initial
Decision characterizes the single assessment test as whether the same
facts will prove both assessments, whereas the Guidelines establish
the test as whether "each provision requires an element of proof not
required by the other."
A review of the parallel criminal doctrine of double jeopardy
indicates that a similar test is used to determine the legality of
separate criminal penalties when those penalties are alleged based
on one criminal act. The explanation of the test of whether there can
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be two separate charges is clearly set forth in Robbins vs. U.S.t 476 F.
2d 26 (10 Cir. 1973) as follows: "The well-settled rule is, that for the
double jeopardy provision to apply, the offense charged and tried in
the first count and the offense charged in the second count must be
identical in law and fact. The test for determination whether the
offenses charged are identicaf is whether the facts alleged in one, if
offered in support of the other, would sustain a conviction. Where
one count requires proof of a fact which the other count does not, the
separate offenses charged are not identical, even though the charges
arise out of the same acts." Citations included Pereira vs. United
States, 347 U.S. 1, 74 S. Ct. 358, 98 L Ed. 435 (1954).
The proper interpretation of EPA's Guidelines, which are only
guidelines and not binding upon the Administrative Law Judge or the
Regional Administrator, is that multiple civil assessments arising out
of the same set of facts would be improper only in the event all
offenses for which assessments are to be made required identical
elements of proof as distinguished from situatons where the same set
of facts would prove separate offenses which, in fact, include some
elements of proof different in each offense charged.
Amended Final Order
Pursuant to the provisions of the Act, the Final Order dated
February 21, 1975, is hereby amended, this the 29th day of July,
1975.
Jack E. Ravan
Regional Administrator
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1913. In Re: Atlantic Fertilizer and Chemical Company, EPA
Region IV, October 22, 1975. (I. F. & R. No. IV-134C, I.D.
No. 110656.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(2)(L). This action pertained to the firm's failure to submit a
pesticides annual report.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $500.00.
1914. In Re: Time Chemical, Inc., EPA Region IV, February 17,
1976. (I. F. & R. No. IV-158C, I.D. No. 110201.)
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); 136(q)(2)(A) and 136(q)(D). The action
pertained to a shipment made on May 22, 1975, from Atlanta,
Georgia, to Montgomery, Alabama. The pesticide involved was S &
K BRAND SANACLOR CHLORINATED CLEANER, charges
included nonregistration and misbranding—lack of adequate
ingredient statement and lack of EPA establishment number.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,240.00.
1915. In Re: Wilson Aerosol Company, EPA Region IV,
February 17, 1976. (I. F. & R. No. IV-148C, I.D. No.
117089.)
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(c](1). The action pertained to a product held for
distribution or sale on March 19, 1975, at Wilson Aerosol Company,
Spring Hope, North Carolina. The pesticide involved was
LIGHTNING HOUSEHOLD INSECT SPRAY, the charge was
1289
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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 $510.00.
1916. In Re: Aero Mist, Inc., EPA Region IV, March 3, 1976. (I.
F. & R. No. IV-121C, I.D. No. 116981.)
This was a civil action in which the respondent was charged 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
shipment made on November 27, 1974, from Marietta, Georgia, to
Moncks Corner, South Carolina. The pesticide involved was
VAPASEPTIC AIR SURFACE DISINFECTANT; the charge was
misbranding—product ineffective when used as directed.
The firm signed a Consent Agreement merging this action with the
action taken under I.F.&R. No. IV-118C, I.D. No. 116981, N.J. No.
1776. No further civil penalty was assessed.
1917. In Re: Carolina Chemicals, Inc., EPA Region IV, March 8,
1976. (I. F. & R. No. IV-163C, I.D. No. 111065.)
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 a product held for
distribution or sale on May 6, 1975, at Carolina Chemicals, Inc., West
Columbia, South Carolina. The pesticide involved was FLIGHT
BRAND 5% ROTENONE(CUBE); 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 $1,260.00.
1290
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1918. In Re: Par ram ore and Griffin Seed Co., Inc., EPA Region
IV, March 16, 1976. (I.F. & R. No. IV-108-C, I.D. Nos.
116480,116481,116482, and 116489.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136(q)(l)(F); 136j(a)(l)(E}; 136(c)(l) and 136(q)(l)(G). The action
pertained to products held for distribution or sale on July 24 and 25,
1975, at Parramore and Griffin Seed Co., Inc., Valdosta, Georgia.
The pesticides involved were PEAS & VEGETABLE DUST, 5%
MALATHION DUST, 10% CHLORDANE DUST and DOWFUME
W-40; charges included adulteration and misbranding—strength or
purity fell below the professed standard of quality as expressed on its
labeling, lack of adequate directions for use, lack of adequate
caution statements and failed to bear the assigned registration
number.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $6,960.00.
1919. In Re: Coastal Chemical Corporation, EPA Region IV,
April lf 1976. (I.F. &R. No. IV-171-C, I.D. No. 116704.)
This was a evil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(c)(2) and 136(q)(l)(D). The action pertained to a
product held for distribution or sale on November 26, 1974, at
Coastal Chemical Corporation, Greenville, North Carolina. The
pesticide involved was CYTHION 5-EC INSECTICIDE THE
PREMIUM GRADE MALATHION; charges included adulteration
and misbranding—product was contaminated and lack of EPA
establishment number.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,000.00.
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1920. In Re: Cumberland Manufacturing Company, EPA Region
IV, April 1,1976. (I.F. & R. No. IV-168-C, I.D. No. 110976).
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 a product sold on
May 5, 1975, to Crowell and Harris Company, Nashville, Tennessee.
The pesticide involved was CMC CONCENTRATED CHLORINE
BLEACH; 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 $1100.00.
1921. In Re: Sheff Chemical & Supply Company, EPA Region IV,
April 1,1976. (I.F. & R. No. W-154-C, I.D. No. 116424.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide , and Rodenticide Act, 7 U.S.C.
136j(a)(2)(A); 136j(a)(l)(E) and 136(q)(D). The action pertained to a
product held for distribution or sale on January 20, 1975, at Sheff
Chemical & Supply Company, Bradenton, Florida. The pesticide
involved was NO-GRO LIQUID CONCENTRATE; charges included
altering the required labeling of the product and misbranding—lack
of EPA establishment number, lack of adequate directions for use and
labels bore unaccepted claims.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $365.00.
1922. In Re: Chemscope Corporation, EPA Region VI, June 20,
1975. (I.F. & R. No. VI-13C, I.D. No. 88612.)
This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge Frederick W. Denniston's Initial Decision.
1292
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By complaint, dated November 26, 1973, the Director,
Enforcement Division, Environmental Protection Agency, Region VI
(Complainant), alleged that Chemscope Corporation (Chemscope)
violated the Federal Insecticide, Fungicide, and Rodenticide Act, as
amended (86 Stat. 973, 7 U.S.C. 135) (FIFRA), by shipping the
product "Garbage Can Spray & Deodorizer", an unregistered
pesticide, from Dallas, Texas, to Fayetteville, N.C., on or about July
6, 1973. By answer, dated December 15, 1973, Chemscope
contended the product in question was properly registered but that it
had been improperly labeled through error.
Hearing was held on October 8 and 11, 1974, in Dallas, Texas.
Chemscope was represented by William Woodburn of Dallas, Texas
and Complainant by Harless Benthul and Stan Curry, also of Dallas.
Findings of Fact
1. Respondent, Chemscope Corporation (Chemscope), of
Dallas, Texas, is engaged in the manufacture, sale and distribution of
chemical products, including pesticides, and has 45 products
registered with EPA under FIFRA. It, or a preceding partnership, has
been in business for over 9 years.
2. On March 7, 1973, Cape Fear Janitorial Supplies
Company of Fayetteville, North Carolina, by its Order No. 2984,
ordered several products including, so far as here pertinent, "Private
Label - 6/1 gal. Garb Spray.'"
3. An employee of Chemscope thereafter prepared an order
form for truck shipment of the Cape Fear order, including "6-gal-
347OL — Garbage Can Spray & Deodorizer — Chemscope." The
shipment was made on July 6, 1973, on an invoice No. 12654,
covering "6 gal. - Garbage Can Spray & Deordorizer."
4. On July 12, 1974, one day after the arrival of the
shipment to Cape Fear, an EPA Inspector surveyed the Cape Fear
establishment and obtained a one-gallon container from the
shipment, herein called "sample", which bore an unregistered label.
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A Collection Report No. 88612 was prepared and ultimately this
proceeding was instituted.
5. The sample label designated the product as "Garbage
Can Spray & Deodorizer," with an ingredients statement as follows:
"0,0-diethyl 0 -(2-isoprophyl-4-methyl-6- pyrimidinyl)
phosphorothioate* .500% Pyrethrins .050%. Technical
Piperonyl Butoxide** .100% N-octyl Bicycloheptene
Dicarboximide .167%. Petroleum Distillate 99.183%
*Known as Diazinon **Equivalent to .080%
(Buty 1 carbity 1) (6-Propy 1 piperony 1) Ether and .020 % of
related compounds."
The labeling also stated "This product is a blend of deodorizing
compounds and insecticides designed for the complete maintenance
and cleaning of garbage cans and refuse storage areas. . ." In the
directions for use it was stated, in part, "For insect infested areas,
daily application may be necessary." Cautionary statements were
included, but there was no identification of the manufacturer or
distributor and no EPA registration number.
6. The record is undisputed that Respondent made the
shipment in question with unregistered labels containing insecticide
claims and directions for use, in violation of Section 3(a)(l) of FIFRA[7
U.S.C. 135a(a)(l)].' The record does not disclose the exact nature of
the contents of the sample and shipment, although Respondent's
witness, Alan B. Hesker, assumed it was Chemscope's "Diazinon
500," a registered insecticide, hereinafter discussed, and Respondent
so contended in its answer to the complaint.
7. Respondent contends the shipment in question was the
result of mistake and has not been repeated. The mistake, in fact a
series of mistakes, involved Chemscope's "Diazinon 500" a
registered insecticide,3 and its "Garbage Can Spray & Deodorizer",
an unregistered product.3
8. Respondent had no copy of the original order by Cape
Fear but a copy of the order in the files of the latter discloses the
1294
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order of March 7, 1973 was for "6/1 gal. Garb Spray" as well as for
items not here in issue; also included was a notation "Private Label."
An employee of Chemscope trascribed this onto the order form
previously noted as "6/1 GAL. Garbage Can Spray & Deodorizer"
and added as "formula number -3470L." In addition, under "Label
Design & Color" was noted "Chemscope."
9. In its card file of formulas, Respondent maintained two
bearing the designation 3470L, for unexplained reasons, and
apparently this was due to error. One was for its product "Garbage
Can Spray & Deodorizer" a product which Respondent states is not
required to be registered, and which according to the formula,
contains oil of lemongrass, and IPA, among its active ingredients. The
other is for "ATCO Garb Spray" which contains "Diazinon 4-S and
Concentrate # 1" and is registered as a supplementary registration
under Chemscope Diazinon 500, EPA Registration No. 9143-22,
with Atco Manufacturing Co. as the distributor.
10. A Chemscope employee, Alan B. Hesker, with the
Company since February 1972, and now in charge of all labeling or
graphic arts section, was a trainee in the labeling function under
supervision of its then head of labeling, in the Spring of 1973, when
the Cape Fear order was received. Working from the transcription of
the order referred to in Paragraph 8 above, Hesker prepared a new
"private" label for the Cape Fear shipment. His reason for doing so
was not explained of record, since the order he worked from specified
"Chemscope" label, which was already in existence and no
identification of either Cape Fear or Chemscope was placed on the
new label.
11. In constructing the new label, Hesker combined parts of
the registered label of Chemscope1 s "Diazinon 500" and of the
unregistered label of its "Chemscope Garbage Can Spray &
Deodorizer." Thus, he used essentially the label of the latter product;
added the ingredient statement of "Diazinon 500" (but not its EPA
registration number); changed the description of the Garbage Can
Spray from "This product is a blend of deodorizing compounds and
cleaners. . ." to "This product is a blend of deodorizing compounds
and insecticides"(underscoring supplied) and added a caution from
1295
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the "Diazinon 500" label: "Residual Type - Do not use as a space
spray far effective control repeat as necessary." The name and
address of Chemscope, which appeared on both the unregistered
"Garbage Can Spray Deodorizer" and on "Diazinon 500", were
removed, but, as noted. Cape Fear was not substituted in its place.
12. Hesker explained his actions as being because the
customer specified the product Diazinon which he wanted as a
Garbage Can Spray & Deodorizer even though the Cape Fear order
did not confirm this assertion. The transcribed order had the addition
of formula 3470L added to it. But the formula of that number for
Garbage Can Spray & Deodorizer was for a wholly different product
containing no diazinon and the inexplicable duplicating number
which did contain diazinon was a supplementary registration only for
ATCO, and on its face was only for 55 gallon drums which were not
involved in the Cape Fear order.
13. Chemscope labeling activities at the time of the Cape
Fear order were under the supervision of Joseph Hutchinson, a
partner and co-owner of Respondent, and continued until nearly the
time of shipment 4 months later when Clifford Duke, the principal
owner, exercized a buy-out agreement.
Conclusions
That a shipment was made in violation of the registration
provisions of FIFRA is beyond question. The only question is whether
the "mistake" claimed by Respondent should operate in bar of a
penalty, and, if not, the appropriate amount of the penalty.
While the "mistake" in some circumstances might be accepted,
here is an exceptional series of mistakes and unjustified assumptions
by an employee just learning his duties, and apparently devoid of any
supervision by responsible management of the company. It is self
evident that to accept such as justification would be virtually to
destroy the possibility of effective enforcement. In this case
Respondent has approximately 45 registered products and had made
a number of supplementary registrations. There has been
1296
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correspondence between Chemscope and EPA or its predecessor
USDA, since at least August 1970 on various aspects of registration.
Respondent is fully knowledgeable as to FIFRA and EPA procedures
for registrations and supplemental regisrations. The attempts to put
the blame on an unsupervised, inexperienced employee therefore
merits neither condonation nor mitigation; nor does it exemplify
"good faith" as contended by Chemscope.
Proposed Penalty: Chemscope contends the assessment
proposed by.the complaint of $2,800.00 is grossly out of proportion
and that its payment would have an adverse effect on its business,
which it contends is insolvent.
Dealing with the latter issue first, the claim is unfounded. Its
claimed insolvency is based on its accountant's statement indicating
a net worth deficit of $2,761.35 as of June 30, 1973. This resulted
from a "one-shot" transaction by which Clifford R. Duke exercised
the right to buy out the other corporate owner Joseph Hutchinson, but
instead of himself purchasing it, had the corporation do so as treasury
stock, utilizing the corporate funds. The accounting report contained
a note with respect to this transaction that included the statement:
"In the opinion of management net income at the date of issue of
report has increased retained earnings in an amount in excess of the
impairment [of stated capital caused by the stock purchase] at
statement date [September 18, 1973]." More significantly, while the
1974 annual report had been completed it was not offered in
evidence nor were the results disclosed. Hence, the claim that
Chemscope is insolvent must be rejected.
The next question is as to the amount of gross sales per year, as
this is a factor in the determination under the guidelines adopted for
purposes of uniformity. Sales of $ 1,000,000.00 or more are classified
as Category III under those guidelines. Based on a Dun & Bradstreet
report, which was its only specific information available to
complainant. Chemscope had reported sales well beyond the
$1,000,000.00 mark. Respondent took violent exception to such use
of a Dun & Bradstreet report, even though Chemscope itself obtains
such reports on its own customers. Such reports are commonly used
for such purposes and, lacking better data, would be acceptable
1297
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evidence of financial information. Where, as here however,
independently audited data is supplied, a more reliale source is
provided and should take precedence.
The Certified Public Accountant who audits Chemscope supplied
a letter dated December 6, 1973, stating that sales for the twelve
months ending June 30, 1973, were $995,027.56, even though the
audited annual statement that period indicated sales of
$1,017,407.82. According to the CPA, the larger figure included
freight charges billed to customers in the amount of $17,012.70,
which in his opinion should be excluded from the sales figure; he also
removed an amount of $5,377.56 from the sales figure as
representing inter-company sales to Container Supply Incorporated,
of which Clifford R. Duke is President and Jimmy Burns is Vice-
Presldent. Both are also employees of Chesmscope. Container
Supply, however, does not distribute any Chemscope products, and it
does not appear in either the assets and liabilities or operating
statements of Chemscope, nor does the record indicate any
legitimate basis for excluding sales to Container Supply from the
Chemscope statement. As the expenses associated with the sales of
$5,377.56, amounted to $7,580.00, they are made at a substantial
loss. Absent better justification, no valid reason appears to justify the
exclusion of the Container Supply sales from Chemscope revenues. It
is important to note moreover, that the CPA, while recommending the
exclusion of the freight charges and Container Supply sales from the
1973 sales figures, was unable to state whether this had been done
for the 1974 figures which had already been audited. But even the
exclusion of the so-called "inter company" sales reduces the figure
only marginally below the $1,000,000.00 figure for Category III;
nevertheless, as noted below, Respondent will be treated as in
Category II.
The financial data fails to demonstrate that the payment of an
assessment as much as $2,800.00 would affect Chemscope's ability
to continue in business, even based on the 1973 data, but especially
in the absence of the 1974 data which was available but was
undisclosed. Its effect would, of course, be adverse but would not
threaten continued operation.
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Complainant determined the proposed penalty by classifying
the offense as a Registration Violation, for nonregistration with
"Knowledge/no application submitted" which the schedule proposes
for a Category III company, an amount of $2,800-3,200.
Complainant selected the minimum of this range. For a Category II
company, this amount would have been $1,900-2,300.
Merged into the construction of the schedule of penalties and
reflected therein are the statutory elements of Section 14 of the Act,
i.e., size of business, the ability to continue in business, and the
gravity of the violation. Gravity consists of two elements, that of
harm and of misconduct. Compare Amvac Chemical Corporation, I.F.
& R. Docket No. IX-4C.4 The potential harm to the public in this
instance is nonexistent, as the incorrect label reproduced not only the
precautionary statements of the registered label for Oiazfnon 500,
but an additional one.
As to gravity of misconduct, a different situation is presented.
The distribution of products containing hazardous substances with
improper or unregistered labels possesses the potential for great
harm. Respondent's misconduct here must be gauged against the fact
that it is a substantial organization, long experienced and
knowledgeable in registration procedures. Yet it placed full
responsibility for ensuring proper labeling in the hands of an
inexperienced employee, without supervision. While Respondent
acknowledges it cannot disclaim responsibility for its employees'
actions, it in effect urges that the incident be considered "Mr.
Hesker's unauthorized actions." The ultimate argument that the
incident is of a "relatively minor nature'1 bespeaks a callous attitude
toward the Act and justifies a substantial penalty.
In order to avoid further contention as to the measurement of
the sales of Respondent for purposes of applying the penalty
schedule, in spite of the considerations stated above, Respondent will
be considered to be in Category II, but rather than selecting the
bottom of the range specified, the facts here justify imposition of the
maximum. Therefore, in the exercise of the discretion vested by 40
CFR 168.46 (b) of the Rules, the penalty will be fixed at $2,300.00.
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Proposed Final Order
1. Pursuant to Section 14(a) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended [86 Stat. 973; 7 U.S.C.
136 l(a)], a civil penalty of $2,300.00 is hereby assessed against
Respondent Chemscope Corporation.
2. Payment of the full amount of the civil penalty assessed
shall be made within sixty (60) days of the service of the final order
upon Respondent by forwarding to the Regional Hearing Clerk a
cashier's check or certified check payabfe to the United States of
America in such amount.
Frederick W. Denniston
Administrative Law Judge
June 20, 1975
1 Pursuant to Section 4 of the Federal Environmental Pesticide Control
Act of 1972 (86 Stat. 973), the registration provisions of the prior Act
are still in effect.
2 Diazinon is O.O-diethyl 0-(2-isoproypyl-4-methyl-6-pyimidinyl)
phosphorothioate.
For purposes of this decision, it is assumed but not decided that
Respondent's assertion that the product does not require registration,
is correct.
4 Initial Decision July 11, 1974; adopted by Final Order of October
31,1974.
5 Unless appeal is taken by the filing of exceptions pursuant to section
163.51 of the Rules (40 CFR 168.51), or the Regional Administrator
elects to review this decision on his own motion, the order may
1300
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become the final order of the Regional Administrator [See 40 CFR
168.46(c)],
1923. In Re: Calgon Corporation, EPA Region VII, September
26,1975. (I.F. & R. No. VII-102C.)
This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge Frederick W. Denniston's Accelerated
Initial Decision.
By Complaint, dated April 1, 1975, the Chief of the Pesticides
Branch, EPA Region, VII, alleges that Calgon Corporation has
violated the provisions of the Federal Insecticide, Fungicide, and
*Rodenticide Act, as amended, (86 Stat. 973; 7 U.S.C. 136) (FIFRA
herein), in connection with a shipment of SYN-SOL CLEANER-
SANITIZER, from St. Louis, Mo., to Newark, N.J., on August 8, 1974.
Following a denial of the allegations by Calgon Corporation,
and a preheating exchange of evidence, a hearing was held in St.
Louis, Mo., on September 9, 1975.
At the hearing, Calgon Corporation was represented by Jack R.
Mennis, Senior Attorney, of Pittsburgh, Pa., and the Complainant, by
James Vieregg and Daniel J. Shiel, of Kansas City, Missouri.
By letter dated August 12, 1975, the Presiding Officer
requested Complaincnt to file a brief on the question of whether a
Technical Bulletin must physically accompany a shipping container.
Such a brief was filed on September 2, 1975 and Calgon replied on
September 9, 1975.
At the hearing, Calgon moved for the issuance of an
Accelerated Decision under 40 CFR 168.37 of the Rules. The Motion,
which was taken under advisement, is hereby granted pursuant to
168.37(a)(2).
A brief date of October 13, 1975, was specified with replies
due on October 23, 1975. In view of the issuance of this Accelerated
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Decision such need not1 be filed but the parties may file exceptions
pursuant to 40 CFR 168.51 (a).
Findings of Fact
The following facts were stipulated:
1. Respondent had gross soles (total business revenues from
all business operations) For the prior fiscal year which exceeded
$1,000,000.00.
2. Respondent is the registrant for the pesticide, SYN-SOL
CLEANER-SANIT1ZER, which bears EPA Registration No. 2914-33.
3. The approved registered label affixed to the pesticide,
SYN-SOL CLEANER-SANITIZER, contains the language "SEE
TECHNICAL BULLETIN FOR USE DIRECTIONS."
4. The Technical Bulletin referred to on the approved
registered label was accepted on April 30, 1969, under FIFRA.
5. Respondent on August 8, 1974, shipped (one) three
hundred fifty pound drum of the pesticide, SYN-SOL CLEANER-
SANITIZER, from St. Louis, Missouri, to American Bakeries Company,
Newark, New Jersey.
6. The above referenced pesticide did not have affixed to it
a Technical Bulletin bearing directions for use, during shipment on the
above-referenced shipment.
7. A Technical Bulletin accepted in accordance with
registration, bearing use directions for the above-referenced
pesticide, was received by American Bakeries Company, Newark,
N.J., on or about August 27, 1974.
Additional facts disclosed of record are:
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8. American Bakeries received the shipment of the drum on
August 14, 1974. Its representative, John Taylor, testified that on or
about August 6, 1974, he requested a copy of the Technical Bulletin
from the sales representative, but did not receive it until August 27,
1974. While first contending a portion of the August 14 shipment was
used prior to receipt of the Bulletin, Taylor later expressed
uncertainty.
9. The sales representative of Calgon, Doug Parks, testified
that the Technical Bulletin for SYN-SOL, had been supplied to Taylor
in connection with previous orders which had been placed in July
1972 and May 1973 and positively identified July 18, 1972, as the
date the first one had been given and another in July 1974. Taylor,
while uncertain as to whether he previously had a Technical Bulletin
and acknowledging it is possible, stated he did not have one in his
possession in August 1974. From the standpoint of the demeanor of
the witnesses, each appeared sincere in their beliefs and Taylor
conceded Parks may have previously supplied the Technical Bulletin
prior to August 27, 1974, and he may have been unable to find it.
10. In view of the certainty of Parks' testimony and of the
uncertainty of Taylor's, it must be concluded that Taylor had received
a Technical Bulletin at least once prior to August 27, 1974.
Conclusions
The record is silent as to why EPA approved a separate
document containing directions for use, herein for convenience
referred to as a Technical Bulletin, although not so designated on its
face. The so-called Technical Bulletin is a single page 8 1/2" x 11",
the same size as the label itself. Being used on a large drum
containing in excess of 300 Ibs. of dry powder, there is ample space
for adhering the Bulletin as well as the label to the surface. Moreover,
in approving the Bulletin, EPA specified no conditions as to its display
or use and no regulation has been cited which does so.
It is understandable that a Technical Bulletin in the form of a
pamphlet or consisting of many pages, could not readily be affixed to
1303
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a large drum with any certainty of its safe arrival after shipment. But
no justifiable reason appears for the separation of label and use
instructions in this case. It is noted that in February 1975, Respondent
submitted a revision of the label to combine them into a single docu-
ment, and this was approved by EPA.
The label in question prominently displayed in large letters, the
statement "See Technical Bulletin for use Directions." While there is
conflicting testimony as to whether John Tayior of American Bakeries,
the receiver of the shipment, had received a Technical Bulletin in
connection with earlier purchases of SYN-5OL in 1972 and 1973, it is
clear that upon receiving the shipment here in question on August 14,
1974, Taylor was aware of the need for the Technical Bulletin,
requested it of the manufacturer, and at least partially withheld use
of the product until he received it 13 days later. While this may be
poor customer relations, the question here is whether any statute or
regulations were violated.
In its Special Hearing Brief on the subject, Complainant
contends that "If a product's label incorporates use directions by
reference to another document and the consumer has not been
provided such document prior to or concurrent with receipt of such
product, the product is also misbranded." (Brief, p. 10). But the EPA
regulations do not so state and no source for this contention is
offered.
The only pronouncements of EPA on this subject appear to be
the interpretations embraced in 40 CFR Part 162. Section 162.105(d)
specifies that directions for use shall appear on the labeling, which
"includes the label which is affixed to the product plus all printed or
graphic matter which accompanies the product at any time.
Directions for use may appear on the label or on accompanying
leaflets or circulars." The precise meaning of "accompanies" or
"accompanying" is not stated. It is noted however, that the same
regulation provides an exception with respect to "well known
economic poisons which are sold in containers of ... 50 pounds or
more of a solid intended primarily for use after dilution" provided
"there is readily available general knowledge of the composition,
methods of use, and effectiveness of the product." Moreover, Section
1304
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162.108(d), an Interpretation with respect to labels for large
containers, such as the drum here involved, provides an almost
identical exemption from the directions for use requirement on "well
known economic poisons which are sold in containers of ... 50
pounds or more of a solid intended primarily for use after dilution."
Witness Taylor described SYN-SOL as a chlorine type sanitizer and
that these have been well known for many years.
Complainant's testimony did not direct itself to whether Sec.
162.105 (c)(l), 162.105(c)(2), or 167.108(d}(2) applied in this case,
but there is nothing in the testimony to indicate the product here is not
a "well-known" economic poison. Even- if it be assumed those
exemptions do not apply, however, there is no provision in the
regulations or in the specific approval as to how the Technical Bulletin
which EPA has approved for a separated use, should "accompany11
the shipment of the product. A 300 pound or larger drum must be
shipped by freight or its equivalent, whereas the single-page, letter-
sized bulletin would necessarily move by mail or other means and
could not, in its separated form, physically accompany the drum.
The absence of articulation of the meaning of "accompanying"
in the EPA regulations is particularly significant in the ligt of Kordel v.
United States, 335 U.S. 345 (1948), and United States v. Urbuteit,
335 U.S. 355 (1948), which hold, in effect, that it is immaterial
whether the description of uses directly follows a shipment. It is true,
no doubt, that EPA could by general regulation, or in the approval of
a separate document, as here, specify precise conditions as to the
display or availability of the document. But EPA has not done so, and
by approving a separate Technical Bulletin without specifying how it
should be brought to the attention of users, itself created an anomaly
as to the meaning of "accompanying" since it could not mean a
physical accompaniment. To attempt to create a requirement
incapable of fulfillment, by retroactive adoption of an interpretation
not heretofore announced and in a punitive action would be
Draconian in the extreme.
Parenthetically, it should be noted that Complainant offered
testimony indicating the economic damage or potential dangers to a
user inherent in the absence of adequate directions for use of SYN-
1305
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SOL. But a number of these dangers are not dealt with in the
directions for use approved by EPA and, at best, can only be inferred.
For the foregoing reasons, the Complaint is DISMISSED.
Frederick W. Denniston
Administrative Law Judge
September 26, 1975
1924. In Re: Thorns-Proestler Company, EPA Region Vllr
January 28,1976. (I.F. & R. No. VII-145C, I.D. No. T14293.)
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 or
about April 22, 1975, from Davenport, Iowa, to Rock Island, Illinois.
The pesticide involved was STUARTS BLEACH; the charge was
nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,188.00.
1925. In Re: Chem-Fab-Co Company, EPA Region VII, January
30r 1976. (I.F. & R. No. VII-158C, I.D. No. 102375.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, U.S.C.
135a(a)(l) and 135b. The action pertained to a shipment made on
April 24, 1975, from Mission, Kansas, to Kansas City, Missouri. The
pesticide involved was KLEEN-BRITE BATHROOM CLEANER
WITH AMMONIA; the charge was nonregistration.
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The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $ 118.00.
1926. In Re: Nova Products, Inc., EPA Region VII, February 1,
1976. (I.F. & R. No. VII-130C, I.D. No. 112571.)
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 October 16, 1974, at Nova Products, Inc.,
Kansas City, Kansas. The pesticide involved was MALATHION 57-
WE; the charge was misbranding-lack of adequate warning or
precautionary statements.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $400.00.
1927. In Re: Biotechnics, Inc., EPA Region VII, February 19,
1976. (I.F. & R. No. VII-169C, 1.0. No. 114370.)
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
March 5, 1975, from Omaha, Nebraska, to Rockport, Missouri. The
pesticide involved was COMPOUND RLB-2 SPECIAL; the charge
was nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $297.00.
1928. In Re: Chevron Chemical Company, EPA Region VII,
February 19,1976. (I.F. & R. No. VII-147C, I.D. Nos. 110706
and 113215.)
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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136j(a)(2)(J); 135a(a)(l) and 135b. The action pertained to shipments
made on October 21, November 21 and December 2, 1974, and
March 10, 1975, from Maryland Heights, Missouri, to Caldwell,
Idaho, and Memphis, Tennessee. The pesticides involved were
ORTHOCIDE DIELDRIN 60-75 SEED PROTECTANT, and a product
labeled in part "MALATHION TECHNICAL", "TECHNICAL
MALATHION 95" and "MALATHION TECHNICAL 95%". The
charges included nonregistration and the shipment of a product in
violation of a suspension order.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,200.00.
1929. In Re: Dr. MacDonald's Vitamiied Feed Company, EPA
Region VII, February 19,1976. (I.F. & R. No. VII-164C, I.D.
No. 148601.)
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)(C). The action pertained to a product held
for distribution or sale on October 9, 1975, at Dr. MacDonald's
Vitamized Feed Company, Fort Dodge, Iowa. The pesticide involved
was DR. MACDONALD'S LARV-X SUPER BEEF VY-O-LATOR
MINERAL FEED MEDICATED; the charge was misbranding—lack
of warning or caution statement on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $648.00.
1930. In Re: St. Louis Paint Manufacturing Company, St. Louis,
Missouri, EPA Region VII, March 11, 1976. (I.F. & R. No.
VII-175C, I.D. No. 74984.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenricide Act, 7 U.S.C.
136j(a)[2)(L); 136e(c)(l)(A); 136e(c)(l)(B) and 136e(c)(l)(Q. The action
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pertained to the firm's failure to submit a pesticides annual report in a
timely manner.
The civil complaint was withdrawn after the respondent proved the
report was lost in the mail.
1931. In Re: Midwest Chemical Company, Harlan, Iowa, EPA
Region VII, March 12, 1976. (I.F. & R. No. VII-179C, I.D.
No. 74981.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(2)(L); 136e(c)(l)(A); 136e(c)(l)(B) and 136e(c)(l)(C). The action
pertained to the firm's failure to submit a pesticides annual report in a
timely manner.
The civil complaint was withdrawn after learning that the respondent
had ceased operations at their establishment in Harlan, Iowa.
1932. En Re: General Drug and Chemical Corporation, Kansas
City, Kansas, EPA Region VII, March 15, 1976. (I.F. & R.
No. VII-176C, I.D. No. 74982.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(2)(L); 136e(c)(l)(A); 136e(c)(l)(B) and 136e(c)(l)(C). The action
pertained to the firm's failure to submit a pesticides annual report in a
timely manner.
The civil complaint was withdrawn after the respondent provided
evidence that the report had been mailed prior to the February 1,
1976, deadline.
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1933. In Re: Zing Products, Inc., EPA Region VII, March 15,
1976. (I.F. & R. No. VIM72C, I.D. No. 125529.)
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 August 20,
1975, from St. Louis, Missouri, to Chicago, Illinois, The pesticide
involved was ZING ALGAE STRIPPER; the charge was
nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $118.00.
1934. In Re; Shepard Labs, Div. of Nebraska, Omaha,
Nebraska, EPA Region VII, March 22, 1976. (I.F. & R. No.
VII-182C, I.D. No. 74988.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136jla)(2)lc); 136e(c)(l)lA); 136elc)(l)(B) and 136e{c}(l)[Q. The action
pertained to the firm's failure to submit a pesticides annual report in a
timely manner.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $432.00.
1935. In Re: Derrick Soap Products, St. Louis, Missouri, EPA
Region VII, March 23, 1976. (I.F. & R. No. VII-180C, I.D.
No. 74985.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(2)(L); 136e(c)(l)(A); 136e(c)(l)(B) and 136e(c)(l)(Q. The action
pertained to the firm's failure to submit a pesticides annual report in a
timely manner.
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The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $172.00.
1936. In Re: Midland Laboratories, EPA Region VII, March 24,
1976. (I.F. & R. No. VI1-163C, I.D. No. 125488.)
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
September 19, 1975, from Dubuque, Iowa, to Elkhart Lake,
Wisconsin. The pesticide involved was MIDLAND FLUSH TABS
TOILET BOWL CLEANER; the charge was nonregistration.
Respondent provided evidence that product was registered by Allied
Block Chemical Company, but had not secured supplemental
registration for respondent. In view of this, the Civil Complaint was
withdrawn and a Warning Letter issued in its place.
1937. In Re: Tax Corporation of America, d/b/a American Dish
Co., EPA Region VII, March 24, 1976. (I.F. & R. No. VII-
165C, I.D. No. 148101.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(A) and 136a(a). The action pertained to a product held for
distribution or sale on October 15, 1975, at Tax Corporation of
America, d/b/a American Dish Service Company, Kansas City,
Missouri. The pesticide involved was SANITIZER 5% AVAILABLE
CHLORINE FOR INDUSTRIAL DISHWASHING ONLY; the charge
was nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $653.00.
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1938. In Re: Levenson Chemical Company, Omaha, Nebraska,
EPA Region VII, March 25,1976. (I. F. & R. No. VII-177C.
I.D. No. 74989.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodentfcide Act, 7 U.S.C
136jla)(2)tL); 136e(c)(l)(A); 136e(c)(l)[B) and 136e(c)ll)(C). The action
pertained to the firm's failure to submit a pesticides annual report in a
timely manner.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $588.00.
1939. In Re: American Salt Company, Lyons, Kansas, EPA
Region VII, March 26, 1976. (I. F. & R. No. VII-173C, I. D.
No. 74991.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(2}(L); 136e(c)(l)(A); 136e(c}[l)(B) and 136e(c)( 1 )(C). The action
pertained to the firm's failure to submit a pesticides annual report in a
timely manner.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,728.00.
1940. In Re: Techne Corporation, EPA Region VII, March 30,
1976. (I. F. & R. No. VII-170C, I. D. Nos. 114638, 114642
and 114650.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)lE); 136(q)(l)(A); 136(c)(1) and 136qll)(F). The action
pertained to products held for distribution or sale on June 2, 1975, at
Techne Corporation, St. Joseph, Missouri. The pesticides involved
were LOUSE-X, TECHNE RAT AND MOUSE KILLER and TECHNE
MALATHION EMULSIFIABLE, charges included adulteration and
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misbranding—strength or purity fell below the professed standard of
quality as expressed on its labeling and label lacked adequate
directions for use.
The respondent signed a Consent Agreement. The Final Order
assessed a civil peantly of $3,720.00.
1941. In Re: Ragland Mills, Inc., Neosho, Missouri, EPA Region
VII, April 12, 1976. (I. F. & R. No. VII-174C, I. D. No.
74986.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodentlcide Act, 7 U.S.C.
136j(a)(2)(L); 136e(c)(l)(A); 136e(c)(l)(B) and 136e(c)(l)(C). The action
pertained to the firm's failure to submit a pesticides annual report in a
timely manner.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $500.00.
1942. In Re: Nicolet Products, EPA Region IX, January 23,1976.
(L F. & R. No. IX-114C, I. D. No. 125412.)
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 135(b). The action pertained to a shipment made on or
about July 17, 1975, from Phoenix, Arizona, to Wilmot, Wisconsin.
The pesticide involved was HALAZON WATER PURIFICATION
TABLETS; the charge was nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $132.00.
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1943. In Re: Ben A. Milner, d/b/a Fields of California, EPA
Region IX, February 2,1976. (I. F. & R. No. IX-80C, I. D. No.
113835.)
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 product held for distribution or
sale on July 9, 1974, at Ben A. Milner, d/b/a Fields of California,
Long Beach, California. The pesticide involved was SEPTICAL
GERMICIDE, DISINFECTANT, SANITIZER AND DEODORANT:
the charge was claims for 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 $250.00.
1944. In Re: Moyer Chemical Company, Inc., EPA Region IX,
February 4, 1976. (I. F. & R. No. IX-79C, I. D. No. 113615.)
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(c)(l) and 136(q)(l)(A). The action pertained to a
product held for distribution or sale on or about August 8, 1974, at
Moyer Chemical Company, San Jose, California. The pesticide
involved was DIBROM 4 DUST; the charges included adulteration
and misbranding—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 $1,000.00.
1945. In Re: Valley Chemical Company, Inc., EPA Region IX,
February 6, 1976. (I. F. & R. No. IX-83C, I. D. No. 113619.)
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)(2)(A); 136(q)(2)(C)(i) and 136(q)(2)(C)(ii). The
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action pertained to a shipment made on May 3, 1974, from Imperial,
California, to Yuma, Arizona. The pesticide involved was VALLEY
BRAND .2% GRAIN BAIT FOR POCKET GOPHERS; the charge
was misbranding—lack of an adequate ingredient statement; name
and address of producer, registrant or person for whom produced and
name, brand or trademark on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $300.00.
1946. In Re: Skasol, Inc., EPA Region IX, February 27, 1976. (I.
F. & R. No. IX-113C, I. D. Nos. 111218 and 111219.)
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) and 136(q)(2)(C)(iii). The
action pertained to products held for distribution or sale on January
21, 1975, at Skasol, Inc., San Francisco, California. The pesticides
involved were MICROBIOCIDE NO. 8 and MICROBIOCIDE NO. 2,
the charge was misbranding—lack of adequate precautionary
statement, lack of net content statement and labels bore a false or
misleading statement, since the product was overf ormulated.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $480.00.
1947. In Re: Laboratory Automated Chemicals Company,
Gardena, California. EPA Region IX, March 4, 1976. (I. F.
&R.No.lX-91C.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(2)(L). The action pertained to the firm's failure to submit a
pesticides annual report.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $250.00.
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1948. In Re: Puregro Company, EPA Region IX, March 18,1976.
(I. F.&R. No. IX-110C, I. D.Nos. 111736 and 111737.)
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(c)(l). The action pertained to
shipments made on January 20 and October 4, 1974, from Casa
Grande and Tolleson, Arizona, to Blythe, California. The pesticides
involved were TOXAPHENE 8 LIQUID and PERTHANE 4EC; the
charges included nonregistration, misbranding- and 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 $6,318.00.
1949. In Re: Chem Mark of King County, Inc., EPA Region X,
February 11,1976. (I. F. & R. No. X-33C, I. D. No. 107361.)
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(c)(l). The action pertained to a
product held for distribution or sale on July 9, 1975, at Chem Mark of
King County, Inc., Seattle, Washington. The pesticide involved was
CHLOR; charges included adulteration and misbranding—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 $180.00.
1950. In Re: Red Star Poison Co., EPA Region X, February 27,
1976. (I. F. & R. No. X-24C, I. D. No. 113469.)
This was a civil action charging respondent with violating the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C 136j(a)(l)(E)
and 136q(l)(A). The action pertained to a product held for
1316
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distribution or sale on June 15, 1974, at Red Star Poison Co.,
Woodburn, Oregon. The pesticide involved was RED STAR
POISONED GRAIN FOR GROUND SQUIRRELS AND MICE; the
charge was misbranding—product not effective in killing mice when
used as directed.
The respondent signed a Consent Agreement. The Final Order
assessed a civil peanlty of $168.00.
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Index to Notices of Judgment 1901-1950
NJ. No.
Aero Mist, Inc. (Civil) 1916
American Salt Company (Civil) 1939
Atlantic Fertilizer and Chemical
Company i(Civil) 1913
Ben A. Milner, d/b/a Fields of
California (Civil) 1943
Biotechnics, Inc. (Civil) 1927
Calgon Corporation (Civil Hearing) 1923
Carolina Chemicals, Inc. (Civil) 1917
Chapman Chemical Company
(Civil Hearing) 1912
Chem-Fab-Co Company (Civil) 1925
Chem Mark of King County, Inc. (Civil) 1949
Chem Power, Inc. (Civil) 1906
Chem Power, Inc. (Civil) 1907
Chem Power, Inc. (Civil) 1908
Chemscope Corporation (Civil Hearing) 1922
Chevron Chemical Company (Civil) 1928
Coastal Chemical Corporation (Civil) 1919
Connecticut Aerosols, Inc. (Civil) 1901
Cumberland Manufacturing Company
(Civil) 1920
Derrick Soap Products (Civil) 1935
Dr. MacDonald's Vitamized Feed
Company (Civil) 1929
Elco Manufacturing Company
(Civil Hearing) 1909
F & W Bearing Service, Inc. (Civil) 1905
General Drug and Chemical
Corporation (Civil) 1932
Hooker Chemicals & Plastics
Corp. (Civil) 1902
L & A Juice Co. (Civil) 1903
Laboratory Automated Chemicals
Company (Civil) 1947
Lebanon Chemical Corp. (Civil) 1910
Levenson Chemical Company (Civil) 1938
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Midland Laboratories (Civil) 1936
Midwest Chemical Company (Civil) 1931
Miller-Morton Co. (Civil) 1911
Moyer Chemical Company, Inc. (Civil) 1944
Nationwide Chemical (Civil) 1904
Nicolet Products (Civil) 1942
Nova Products, Inc. (Civil) 1926
Parramore and Griffin Seed
Co., Inc. (Civil) 1918
Puregro Company (Civil) 1948.
Ragland Mills, Inc. (Civil) 1941
Red Star Poison Co. (Civil) 1950
St. Louis Paint Manufacturing
Company (Civil) 1930
Sheff Chemical & Supply Company (Civil) 1921
Shepard Labs, Div. of Nebraska (Civil) 1934
Skasol, Inc. (Civil) 1946
Tax Corporation of America, d/b/a
American Dish Co. (Civil) 1937
Techne Corporation (Civil) 1940
Thoms-Proestler Company (Civil) 1924
Time Chemical, Inc. (Civil) 1914
Valley Chemical Company, Inc. (Civil) 1945
Wilson Aerosol Company (Civil) 1915
Zing Products, Inc. (Civil) 1933
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