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
                            1272

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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
                            1273

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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
                             1281

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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
                             1283

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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
                             1287

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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.
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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
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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
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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
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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
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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
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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-
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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.
                            1306

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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.,
                            1307

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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
                            1308

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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.
                             1309

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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.
                             1310

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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.
                            1311

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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
                            1312

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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
                            1314

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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.
                           1317

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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
                              1318

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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
                              1319

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