N.J., I.F.R. 1951-2000 Issued January 1977
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. 1951-2000
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).
/
.CAtS'
(7 ff
Stanley W. Legro
Assistant Administrator for
Enforcement
Washington, D.C.
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1951. In Re: Middlebrook Lancaster, Inc., EPA Region II, April 8,
1976. (I.F. & R. No. II-42C, I.D. No. 93539.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(1). The action pertained to a shipment made on January 26,
1973, from Brooklyn, New York, to Harrisburg, Pennsylvania. The
pesticide involved was NUTRINE FORMALDEHYDE SOLUTION;
the charge was nonregistration.
The Default Order issued September 18, 1974, assessed a civil
penalty of $3,000.00. An amended Final Order on Default was
issued on April 8, 1976, which did not assess a civil penalty since the
firm had filed for bankruptcy.
1952. In Re: Thompson Hay ward Chemical Company, EPA
Region IV, April 22, 1976. (I.F. & R. No. IV-160C, I.D. No.
110977.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l); 136j(a)(1)(E); 136(c)(l) and 136(q)(l)(G). The action
pertained to a shipment made on May 21, 1975, from Muscle Shoals,
Alabama, to Nashville, Tennessee. The pesticide involved was
SODIUM HYPOCHLORITE SOLUTION; charges included directions
for use differed from the representations made in connection with its
registration, adulteration and misbranding—its strength or purity fell
below the professed standard of quality as expressed on its labeling
and labels failed to bear required warning or caution statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,260.00.
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1953. In Re: Thompson Hay ward Chemical Company, EPA
Region IV, April 22, 1976. (I.F. & R. No. IV-161C, I.D. Nos.
110259, and 110261).
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(G) and 136(c)(1). The action pertgined to
products held for distribution or sale on May 13, 1975, at Thompson
Hayward Chemical Company, Fayetteville, North Carolina. The
pesticides involved were FERMATE DUST and 4% MALATHION
DUST; charges included adulteration and misbranding—its strength
or purity fell below the professed standard of quality as expressed on
its labeling and labels failed to bear required warning or caution
statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,200.00.
1954. In Re: Beaver Sales and Service, EPA Region IV, May 17,
1976. (I.F. & R. No. IV-182C, I.D. No. 110218.)
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 136(c)(l). The action pertained to a product held for
distribution or sale on September 4, 1975, at Beaver Sales and
Service, Gadsden, Alabama. The pesticide involved was
BEAVERCIDE ODORLESS DISINFECTANT; charges included
nonregistration and adulteration—its strength or purity fell below the
professed standard of quality as expressed on its labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $4,000.00.
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1955. In Re: Hart Hardware Company, EPA Region IV, May 17,
1976. (I.F. & R. No. IV-175C, I.D. No. 120862.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(2)(G). The action pertained to a product used on September
11, 1975, by Hart Hardware Company, Nashville, Tennessee. The
pesticide involved was HOOKER SODIUM CHLORATE WEED
KILLER; EPA Reg. No. 935-10.
The respondent was charged with using the pesticide in a manner
inconsistent with its labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $300.00.
1956. In Re: Mclnnis Laboratories, EPA Region IV, June 1,1976.
(I.F. & R. No. IV-157C, I.D. No. 110528.)
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 September 3, 1975, at Mclnnis Laboratories,
Meridian, Mississippi. The pesticide involved was MCINNIS ANTI-
FLY; the charge was adulteration—54% deficient in phenothiazine.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $420.00.
1957. In Re: Athea Laboratories, Inc., EPA Region V, July 2,
1975. (I.F. & R. No. V-223C, I.D. No. 112164.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l); 135b; 136j(a)(l)(E) and 136(q)(l)(G). The action pertained
to a shipment made on January 11, 1974, from Milwaukee,
Wisconsin, to Columbus, Nebraska. The pesticide involved was
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MARC-143 PRO-TEC; charges included nonregistration and
misbranding— inadequate warning or caution statements.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,432.00.
1958. In Re: Mid State Chemical and Supply Corp., EPA Region
V, October 10, 1975. (I.F. & R. No. V-241C, l.D. No.
107078.)
This was a civil action in which the respondent was charged with
violating the Federal Insecticide, Fungicide, and Rodenticide Act, 7
U.S.C 135(a)(a)(l); 136j(a)(l)(E); 136(q)(l)(G); 136(q)(2)(C) and
136(q)(2)(A). The action pertained to shipments made on August 22
and September 10, 1974, from Indianapolis, Indiana, to Louisville,
Kentucky. The pesticide involved was HY-CLOR; charges included
nonregistration and misbranding—inadequate caution statement,
lack of an ingredient statement and lack of a net content statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $726.00.
1959. In Re: Time Chemical, Inc., EPA Region V, October 16,
1975. (I.F. & R. No. V-237C, l.D. No. 114532.)
This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge Bernard D. Levinson's Initial Decision.
This is a proceeding under section 14(a) of the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended (FIFRA) for
assessment of a civil penalty for alleged violations of the Act. The
proceeding was initiated by Complaint issued on April 14, 1975 by
the Director, Enforcement Division, Region V, EPA (Complainant)
against Time Chemical, Inc., with a place of business in Chicago,
Illinois (Respondent).
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The Complaint alleges that on September 11, 1974, the
Respondent delivered for shipment from Chicago to Kansas City,
Missouri, the pesticide called Mokan Chlorinated Porcelain Cleaner
(Mokan) that failed to comply with the provisions of the Act in that it
(1) was not registered as required by the Act; (2) was misbranded in
that the label did not bear the signal word "Caution" and the
statement "Keep out of reach of children" and (3) was misbranded in
that the label did not bear an ingredient statement.' The penalty
proposed to be assessed was $3,200 based only on the non-
registration charge.
The Respondent by Jerome A. Goldman, its Vice President and
General Manager, filed an answer and requested a hearing. A
hearing was held in Chicago, Illinois, on August 21, 1975. The
Complainant was represented by Chester V. Sawyer, Esq., attorney,
Enforcement Division, EPA, Region V and Respondent was
represented by Mr. Goldman.
The Respondent, in its answer and at the hearing, admitted the
charges, and sole purpose of the hearing was to consider the
appropriateness of the penalty. It is Respondent's position that the
proposed penalty of $3,200 is excessive in the circumstances and
should be reduced to $1,000 or less. The Complainant submitted
proposed findings of fact, conclusions and a brief in support thereof.
The Respondent submitted a statement to support a reduction of the
proposed penalty and also a reply brief to the documents submitted
by Complainant. These have been duly considered.
Findings of Fact
1. The Respondent Time Chemical, Inc., is a corporation with
a plant and place of business in Chicago, Illinois. It also has a plant in
Atlanta, Georgia. The company is a manufacturer of detergents and
sanitation chemicals for industrial and institutional use. Its gross sales
in 1974 were approximately $8,800,000.
2. The Respondent manufactured the product called Mokan
Chlorinated Porcelain Cleaner (Mokan) which was represented on the
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label as a disinfectant and sanitizer. The label also made the claim
that the product "Kills bacteria". The product was a pesticide within
the meaning of the Federal Insecticide, Fungicide, and Rodenticide
Act, as mended (FIFRA).
3. The product Mokan was not registered as required by
FIFRA.
4. On September 11, 1974, the Respondent shipped from
Chicago, Illinois, to Kansas City, Missouri, fifty cases of Mokan, each
case containing 18 cans of two pounds each. The label of the
containers did not bear the signal word "Caution" or the statement
"Keep out of reach of children" as required by the applicable
regulations then in effect (40 CFR 162.9(a)). The product was
misbranded within the meaning of section 2(q)(l)(G) of FIFRA.
5. The Respondent is subject to assessment of penalties
under section 14(a) of FIFRA for violations of section 12(a)(l)(E) of the
Act and 7 U.S.C. 135a(a)(l) as continued in effect by section 4 of
Federal Environmental Pesticide Control Act of 1972, 86 Stat. 998.
Conclusions and Reasons
In determining the appropriateness of the penalty the statute
and regulations require that the following factors be considered: size
of respondent's business; effect on respondent's ability to continue in
business; and gravity of the violation. In evaluating the gravity of the
violation the regulations require that the following be considered:
history of respondent's compliance with the Act; and good faith or
lack thereof. The Respondent does not contend that its ability to
continue in business will be affected if it is required to pay the
proposed penalty.
The Respondent's gross sales in 1974 were approximately
$8,800,000. While it is not what would be considered one of the
giant corporations, it is a relatively large company. As to size of
company it falls into category V (annual gross sales exceeding a
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million dollars) as set forth in the Guidelines for the Assessment of
Civil Penalties under FIFRA. (39 F.R. 27711, July 31, 1974).
It has been held in other cases under section 14(a) that "gravity
of the violation" should be considered from two aspects—gravity of
harm and gravity of misconduct.
As to gravity of harm there should be considered the
actual or potential harm or damage, including severity,
that resulted or could result from the particular
violation....
As to gravity of misconduct, matters which may be
properly considered include such elements as intention
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.2
The Respondent company has been in business for about 28
years. It has 17 pesticides registered of which 11 are currently being
produced. It is well aware of the requirements for registering
pesticides.
The failure to register the pesticide in question was not a
deliberate or intentional violation. It appears that it was the intention
of Respondent to market this product as a cleanser without any
pesticide claims. The preparation of the label in question with
pesticide claims was due to the negligence or lack of qualifications of
one of Respondent's employees for which Respondent is legally
responsible. However, the distribution of an unregistered pesticide
may be considered to be one of the more serious violations under the
Act. It is obvious that when an unregistered pesticide is distributed
the enforcement and protective purposes of registration are
defeated. Where a pesticide is not registered, the regulatory officials
do not have the opportunity to eliminate unwarranted claims, to
require such precautionary warnings as may be necessary, and to
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keep the channels of commerce free of products that may have
unreasonable risks to man or the environment.
The Respondent has a history of citations and warning letters for
violations of the Act.9 Between 1968 and April 1973, 55 samples of
Respondent's products were collected resulting in 25 citations and 3
warning letters. Between June 10, 1968 and December 28, 1971,
two warning letters and four citations were issued to Respondent for
non-registration of chlorinated cleaners or chlorinated dishwashing
compounds. The citation of December 28, 1971 resulted in a criminal
prosecution in the U.S. District Court for the Northern District of
Illinois, Eastern Division on which the Respondent, on September 9,
1974, was found guilty on four counts and was fined $3000.
Under the Guidelines the penalty to be assessed on a firm of this
size for a non-registration violation—"Knowledge/No Application
Submitted"—is $3200. The Respondent, through the individual who
had ultimate responsibility for marketing the product in question, had
knowledge that such a product with pesticide claims was required to
be registered.
The preparation of the label with pesticide claims was not a
deliberate or intentional violation. The product was of a low order of
toxicity and could properly have been marketed without pesticide
claims and registration as a pesticide would not have been required.
Further, the Respondent upon learning of the violation acted promptly
to prevent further shipments of the product by its customer and it
furnished the customer with new labels and paid for relabeling. These
may be considered as mitigating factors. On the other hand we have
as an aggravating factor the history of warning letters and citations
and the criminal conviction in September 1974 for similar violations.
I am of the view that the mitigating and aggravating factors
balance each other and that the assessment of a civil penalty of
$3200 according to the schedule in the Guidelines was appropriate.
It is noted that no penalty was assessed for failure of the (abet to
bear the signal word "Caution" or the statement "Keep out of reach
of children". While such warnings are required even on the least
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dangerous pesticides, the decision not to assess a penalty for this
mode of misbranding was undoubtedly prompted because of the low
order of toxicity of the product. I do not disturb the decision of the
enforcement officials in this regard.
I conclude that a civil penalty of $3200 is appropiate for the
violations set forth in the Complaint of April 14, 1975, and
recommend that a civil penalty in said amount be assessed against
Respondent.
Proposed Final Order
1. Pursuant to section 14(a) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended, a civil penalty of $3200
is hereby assessed against Respondent, Time Chemical, Inc., for the
violations of the Act set forth in the Complaint dated April 14, 1975.
2. Payment of the full amount of the civil penalty assessed shall
be made within 60 days of the service of the final order upon
Respondent by forwarding to the Regional Hearing Clerk a cashier's
or certified check payable to the United States of America.
Bernard D. Levinson
Administrative Law Judge
October 16, 1975
At the hearing counsel for Complainant acknowledged that the
label did bear an ingredient statement. However, he stated that the
charge was inadequate and should have charged that the ingredient
statement did not appear on that part of the label that is generally
facing the public when the product is placed on the shelf. Because of
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the deficiency in pleading the undersigned is disregarding this charge
of misbranding.
Quoted from Initial Decision of AU tn re Amvac Chemical
Corporation, I.F. & R. Docket No. IX-4C, July 11, 1974.
A citation was issued for a serious violation and indicated that
criminal action was contemplated. A warning letter was sent for a
violation not considered serious enough to warrant criminal action but
required corrective action by the recipient.
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)).
1960. In Re: Blue Grass Chemical Specialties, Inc., EPA Region
V, October 22,1975. (I.F. & R. No. V-249C I.D. Nos. 116649
and 116650.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.5.C.
135a(a)(l); 135b; 136j[a)(l)(E); 136(q)(l)(G}; 136(q](lJlF); 136[q)(2)(D)
and 136(q)[2)(A). The action pertained to shipments made on August
22 and 26, 1974, from New Albany, Indiana, to Louisville, Kentucky.
The pesticides involved were BAC-C and BG-BT; charges included
nonregistration and misbranding—failure to bear adequate warning
or caution statement, failure to bear an ingredient statement,
inadequate directions for use and failure to bear required symbols or
statements.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1250.00.
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1961. In Re: Globe Chemicals, Inc., EPA Region V, October 22,
1975. (I.F. & R. No. V-80C, I.D. No. 94094.)
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)(2} and 136(q}(l)(A). The action pertained to a
product held for distribution or safe on September 10, 1973, at Globe
Chemicals, Inc., Toledo, Ohio. The pesticide involved was UNI-CIDE
101 MALATHION-LETHANE FOGGING CONCENTRATE;
charges included adulteration and misbranding—strength or purity of
the product fell below the professed standard of quality under which
it was sold.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1140.00.
1962. In Re: Stan Sax Corporation, EPA Region V, November
10,1975. (I.F. & R. No. V-215C, I.D. No. 106235.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q){l)(G); l36(q)(l)(A) and 136(c)(l). The action
pertained to a-product held for distribution or sale on December 4,
1973, at Stan Sax Corporation, Detroit, Michigan. The pesticide
involved was SE-BAX 125 QUATERNARY AMMONIUM; charges
included adulteration and misbranding—quality of the product fell
below the professed standard and lack of adequate warning or
precautionary statements.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3000.00.
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1963. In Re: Hawkins Chemical, Inc., EPA Region V, December
5, 1975. (I.F. & R. No. V-229C, I.D. Nos. 115266, 115293,
115294 and 115295.)
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); 136(q)(2)lA); 135a(a)(l); 135b; 136[q)(l)(G)
and !36(qKl)(A). The action pertained to shipments made on April 1
and 2 and July 17, 1974, from Minneapolis, Minnesota, to Superior,
Wisconsin, and to a product held for distribution or sale on July 11,
1974, at Lynde Company, Minneapolis, Minnesota. The pesticides
involved were ALGI-BAN, ODOR FRESH, ZINGO SEWER
CLEANER and KILO-MOSQUITO SPRAY; charges included
nonregistration, adulteration and misbranding—quality of the
product fell below the professed standard, false registration number,
inadequate ingredient statement and inadequate warning or caution
statements.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $4600.00.
1964. In Re: Amaza Laboratories, Inc., EPA Region V, February
12,1976. (I.F. & R. No. V-243C, I.D. No. 116089.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(A) and 136(c)(l). The action pertained to a
product held for distribution or sale on November 6, 1974, at Amaza
Laboratories, Inc., Cleveland, Ohio. The pesticide involved was
AMAZA DISINFECTANT CLEANER; charges included misbranding
and adulteration—strength or purity of the product fell below
professed standard of quality.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $968.00.
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1965. In Re: Howe Chemical,Inc.,EPA Region V, February 18,
1976. (I.F. & R. No. V-91C, I.D. Nos. 93988 and 93989.)
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(c)(2) and 136(q)(lJ(A). The action pertained to
products held for distribution or sale on August 24, 1973, at Howe
Chemical, Inc., Minneapolis, Minnesota. The pesticides involved were
HOWE'S AGRICULTURAL INSECTICIDE FUNGICIDE and
HOWE'S MANZATE; charges included adulteration and
misbranding—strength or purity of the products fell below the
professed standard of quality.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $500.00.
1966. In Re: Elanco Products Company, Division of Efi Lilly and
Company, EPA Region V, February 24,1976. (I.F. & R. No.
V-46CJ.D. No. 102509.)
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}(2) and 136(q)(1)(A). The action pertained to a
shipment made on January 9, 1973, from Minneapolis, Minnesota, to
Waterloo, Iowa. The pesticide involved was GREENFIELD EXCEL
SPOT WEED KILLER; charges included adulteration and
misbranding—strength or purify of product fell below the professed
standard of quality under which it was sold.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $250.00.
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1967. In Re: H-O-H Chemicals, Inc., EPA Region V, February 24,
1976. (I.F. & R. No. V-235C, I.D. Nos. 115967,115976, and
115977.)
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(aHl)(E); 136(q)[l)(G); 136(q)(2}(D} and
136(q)(2)(A). The action pertained to shipments made on July 8 and
August 8, 1974, from Palatine, Illinois, to West Allis and Milwaukee,
Wisconsin. The pesticides involved were C-408-A LIQUID
COOLING TOWER TREATMENT, A-120 LIQUID ALGAECIDE
and A-200 LIQUID BIOCIDE; charges included nonregistration,
misbranding and adulteration—failure to bear proper ingredient
statements and strength or purity below professed standard.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3247.00.
1968. In Re: Continental Chemical Corporation, EPA Region V,
March 10,1976. (I.F. & R. No. V-248C, I.D. No. 114984.)
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)(F) and 136(c)(l). The action pertained to a
shipment made on September 5, 1974, from Terre Haute, Indiana, to
Chicago, Illinois. The pesticide involved was PINE AROMA; charges
included misbranding and adulteration—inadequate directions for
use and strength or purity fell below professed standard.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1750.00.
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1969. In Re: Hub States Corporation, EPA Region V, March 25,
1976. (I.F. & R. No. V-231C, I.D. No. 87426.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l); 135b; 136j(a)(l)(E) and 136(q)(l)(A). The action pertained
to a product held for distribution or sale on August 19, 1973, at Hub
States Corporation, Indianapolis, Indiana. The pesticide involved was
SELECTIVE WEED AND BRUSH KILLER; charges included
nonregistration and misbranding—labels bore a false and misleading
registration number.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3000.00.
1970. In Re: Sanitary Supply Company, EPA Region VI, April
26,1976. (I.F. & R. No. VI-64C, I.D. No. 107229.)
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 22, 1975, at Sanitary
Supply Company, Beaumont, Texas. The pesticide involved was
SANCO MINT ODOR 7; 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 $550.00.
1971. In Re: Turco Products, EPA Region VI, May 4,1976. (I.F. &
R. No. VI-57C, I.D. No. 107306.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(A)(l)(E) and 136(q)(l)(A). The action pertained to a product held
for distribution or sale on August 6, 1975, at Turco Products,
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Houston, Texas. The pesticide involved was TURCO ZEAL; 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 $1450.00.
1972. In Re: Progressive Electronics Corporation, EPA Region
VI, May 10,1976. (I.F. & R. No. VI-73C, I.D. No. 111021.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(F). The action pertained to a product held for distribution or
sale on May 2, 1975, at Progressive Electronics Corporation, Dallas,
Texas. The device involved was ELECTRONIC MOSQUITO
REPELLER; the charge was misbranding—product was ineffective
when used as directed.
The civil complaint was withdrawn since the firm was no longer in
business.
1973. In Re: Poly-Chem, Inc., EPA Region VI, June 3, 1976. (I.F.
& R. No. VI-66C, I.D. No. 108363.)
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). The action pertained to a product held for distribution or
sale on May 7, 1975, at Poly-Chem, Inc., New Orleans, Louisiana.
The pesticide involved was PINE SCENT DISINFECTANT; the charge
was misbranding—product was ineffective when used as directed.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $490.00.
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1974. In Re: Sifers Chemicals, Inc., EPA Region VII, October 15,
1975.(I.F.&R.No.VII-119C)
This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge Bernard D. Levinson's Initial Decision.
By Complaint dated May 12, 1975 the Chief, Pesticides Branch,
Environmental Protection Agency, Region VII (hereinafter
Complainant), charged Sifers Chemicals, Inc., of Kansas City,
Missouri1 (Hereinafter Respondent), with a violation of section
12(a)(2)(L) of the Federal Insecticide, Fungicide, and Rodenticide Act,
as amended (FIFRA) in that it, as a pesticide producer, failed to
submit to the Administrator (of EPA) the information required by
section 7(c) of the Act and regulations thereunder. The Complaint,
issued pursuant to section 14 of the Act, proposed to assess a civil
penalty of $3200. The Respondent filed a response to the Complaint
and, in effect, objected to the assessment of the proposed penalty.
This response was considered as a request for hearing. Hearing was
held in Kansas City, Missouri, on August 20, 1975. The Complainant
was represented by Patrick K. Monahan and Daniel J. Shiel, Legal
Branch, EPA, Region VII and the Respondent was represented by Don
S. Sifers, President of the Respondent Company. The Complainant
filed proposed findings of fact, conclusions and order, and also a
brief in support thereof. The Respondent did not file any documents
of such nature. These documents filed by Complainant have been
duly considered.
Section 7(a) of the Act requires that establishments producing
pesticides be registered with the Administrator. Section 7(c) requires
the producer operating a registered establishment to submit certain
information within 30 days after it is registered and thereafter to
keep the information current by submitting annual reports as the
Administrator may require by regulation.
The regulation issued under this section of the Act is found in 40
CFR Part 167, section 167.5 (38 F.R. 36557, November 6, 1973). It
requires information as to the types of pesticides produced, the past
year's amount of production and the sales or distribution of each
product, and the amount of current production of each product. (This
1336
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latter requirement is viewed as a forecast and furnishes the Agency
with the producer's intended production volume). The reports are
required to be filed annually on or before February 1.
The Respondent does not dispute the fact it failed to file the
annual report as required by the regulation. The evidence showed
that on January 28, 1975, the Regional Office of EPA (Region VII,
Kansas City, Missouri) sent a notice to Respondent informing it of the
requirement to file the annual report, enclosing the report form and
instructions for completing the form. The notice stated that the form
must be completed and returned to the Regional Office within 30
days of receipt or by February 1, whichever is later. The notice and
enclosures were received at the lola, Kansas, office of Respondent on
January 30, 1975.
The report form not having been completed and filed by May
12, 1975, the Complaint that initiated this case was issued. The
testimony of Mr. Sifers that the completed report was filed within a
few days after the Complaint was received by Respondent is not
disputed and Complainant acknowledges that the report was
submitted within a few days after the Respondent received the
Complaint.
The proposed penalty of $3,200 was based on the Guidelines
for Assessment of Civil Penalties as published in the Federal Register
on July 31, 1974 (39 F.R. 27711) as modified by an interim deviation
notice issued on April 22, 1975.
Section 14(a)(3) of FIFRA states 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 on the person's ability to continue in business,
and the gravity of the violation.
Section 168.60(b)(l) of the Rules of Practice also enumerates
these three criteria and section 168.60(b)(2) adds two other factors to
be considered in evaluating the gravity of the violation — (1)
1337
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respondent's history of compliance with the Act and (2) good faith or
lack thereof.
The Guidelines were issued to provide direction to Agency
personnel assessing civil penalties and "are designed to insure to the
extent practicable, that generally comparable penalties will be
assessed in different regions for similar violations." The Rules of
Practice (sec. 168.46(b)) provide that the AU may consult and may
rely on the Guidelines but that he "may at his discretion increase or
decrease the assessed penalty from the amount proposed to be
assessed in the Complaint."
Since the size of the Respondent's business is one of the factors
that must be considered, the Guidelines have utilized five size
gradations based on a respondent's annual sales. The categories
based on gross sales for the prior fiscal year are as follows: I - less
than $100,000; II - between $100,000 and $400,000; III - between
$400,000 and $700,000; IV - between $700,000 and $1,000,000;
V-over $1,000,000.
The Guidelines, as published in the Federal Register, for the
type of violation here involved proposes $5,000 for a category V firm
and $1,250 for a category II firm. These amounts were reduced by a
memorandum entitled "Interim Deviation from Civil Penalty
Assessment Schedule" dated April 22, 1975 from the Director,
Pesticides Enforcement Division to the Region Enforcement Division
Directors. The reduction in the two categories mentioned was to
$3,200.00 and $800.00 respectively.
The Guidelines provide that in negotiating for settlement the
Agency may take into consideration mitigating factors and where
reduction would serve the public interest, the Agency may lower the
proposed penalty as much as 40%. The interim deviation
memorandum of April 22,1975 included the following:
The complaint should propose to assess the full amount of
the appropriate penalty by size-of-business in
accordance with the revised schedule specified herein.
Should the report be filed within the pendency of a civil
1338
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proceeding, the proposed penalty may be mitigated as
much as forty per cent if the region feels such action is
warranted based on the facts of the case.
The proposed penalty of $3,200 was based on Complainant's
information and belief that Respondent's gross sales for 1974 were in
excess of $1,000,000 which would place it in category V. This
information, at the time the civil penalty assessment was made,
appeared to be reliable. However, the evidence at the hearing, which
I consider credible and on which I rely, showed that Respondent's
gross sales for 1974 were in the range of category II for which the
proposed penalty in the interim deviation memorandum is $800.
The Complainant in its prehearing exchange of evidence
acknowledged that a review of Respondent's record of compliance
with the Act revealed no past violations. The Respondent's failure to
file the report was not o deliberate flouting of the law but, I find, was
due to negligence. The report was filed within a few days after the
Respondent was served with the Complaint.
While the Administrative Law Judge is not bound by the
Guidelines or the recommendation of those charged with
enforcement in the circumstances of this case, where the report was
filed within a few days after the Complaint was issued and there is no
history of prior violations, I am of the view that a 40% reduction from
the $800 penalty for a firm in category II as set forth in the
momorandum of April 22, 1975, is an appropriate penalty and a
penalty of $480 is hereby assessed.
Although the evidence shows that the Respondent sustained a
substantial operating loss in 1974,1 find that payment of the penalty
herein assessed will have no adverse effect on its ability to continue in
business.
The foregoing includes the Administrative Law Judge's Findings
of Fact, Conclusions and reasons therefor.
Proposed Final Order1
1339
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1. Pursuant to section 14(a) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended, o civil penalty of $480
is hereby assessed against Respondent, Sifers Chemicals, Inc., for the
violation of the Act found herein.
2. Payment of the full amount of the civil penalty assessed
shall be made within 60 days of the service of the final order upon
Respondent by forwarding to the Regional Hearing Clerk a cashier's
or certified check payable to the United States of America.
Bernard D. Levinson
Administrative Law Judge
October 15,1975
This company has a sales and business office in Kansas City,
Missouri, and a plant in lola, Kansas.
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)).
1975. In Re: Southwest Grease and Oil Company, EPA Region
VII, April 12, 1976. (I.F. & R. No. VII-168C, I.D. No.
113044.)
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 shipment
mode on or about July 23, 1975, from Omaha, Nebraska, to South
Omaha, Nebraska. The pesticide involved was SOS MALATHION
1340
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BACKRUBBER OIL; 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 $1,500.00.
1976. In Re: Cole Chemical Company, St. Louis, Missouri, EPA
Region VII, April 27,1976. (I.F. & R. No. VIM SBC, I.D. No.
74996.)
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 respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $300.00.
1977. In Re: Adroit Chemical Pest Control, St. Johns, Missouri,
EPA Region VII, April 15,1976. (I.F. & R. No. VIM87C, I.D.
No. 74995.)
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 respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $100.00.
1341
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1978. In Re: Mar-Pok Midwest, Inc., St. Louis, Missouri, EPA
Region VII, April 15,1976. (I.F. * R. No. VII-184C, I.D. No.
74992.)
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.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $100.00.
1979. In Re: J. E. Flannrgan Chemical Company, Sutherland,
Nebraska, EPA Region VII, April 16, 1976. (I.F. & R. No.
VII-186C, I.D. No. 74994.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
l36j(a)[2)(L); 136e(c)(l)(A); 136e(c)0)(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 $172.00.
1980. In Re: Dow Chemical, U.S.A., EPA Region VII, April 20,
1976. (I.F. & R. No. VII-134C, I.D. No. 114379.)
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 October 17,
1974, from North Kansas City, Missouri, to McCook, Nebraska. The
pestide involved was DOW TORDON 22K WEED KILLER; the
charge was misbranding—claims made for the product and the
directions for use differed in substance from the representations
made in connection with its registration.
1342
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The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $ 1,800.00.
1981. In Re: Midland Research Laboratories, Inc., EPA Region
VII, April 21, 1976. (I.F. & R. No. VIM 71C, I.D. No.
148655.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(G) and 136(c)(l). The action pertained to a
shipment made on September 10, 1975, from Lenexa, Kansas, to
Kansas City, Missouri. The pesticide involved was CHEMI-CAL 605;
charges included adulteration and misbranding—strength or purity
fell below the professed standard of quality as expressed on its
labeling and lack of adequate warning or caution statement on
labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $622.00.
1982. In Re: Lite Weight Products, Inc., EPA Region VII, May
27,1976. (I.F. & R. No. VII-178C, I.D. No. 102360.)
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) and 136(c)(l). The action
pertained to a shipment made on August 19, 1975, from Kansas City,
Kansas, to Kansas City, Missouri. The pesticide involved was SUP-
RO CHLORDANE 10% GRANULAR; charges included directions
for use differed in substance from the representations made in
connection with its registration, adulteration and misbranding—
strength or purity fell felow the professed standard of quality as
expressed on its labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $270.00.
1343
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1983. In Re: Contract Packaging, Inc., EPA Region VII, June 8,
1976. (I.F. & R. No. VII-192C, I.D. No. 125209.)
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
May 15, 1974, from Norwalk, Iowa, to Le Sueur, Minnesota. The
pesticide involved was OSBORN 5VV-T BOMB; the charge was
nonregistration.
The civil complaint was withdrawn after the respondent provided
information demonstrating that the product in question was in fact
registered at the time of shipment.
1984. In Re: Packaging Unlimited, EPA Region IX, January 6,
1976. (I.F. & R. No. IX-49C, I.D. No. 90773.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(1); 135b; 136j(a)(l)(e)and 136(q)(2)(A). The action pertained
to a shipment made on November 5, 1973, from El Monte, California,
to Dallas, Texas. The pesticide involved was PLUMBER SAVER
LIQUID DRAIN OPENER; charges included nonregistration and
misbranding—lack of ingredient statement on labels.
The complaint against Packaging Unlimited was dismissed since they
were an agent for Days-Ease Home Products Corporation who
accepted full responsibility for the violations. (See Notice of
Judgment No. 1746.)
1985. In Re: The Mogul Corporation, EPA Region IX, February
6,1976. (I.F. & R. No. IX-104C, I.D. No. 111186.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136jla)(l)(E) and 136(q)(l)(G). The action pertained to a product held
for distribution or sale on January 8, 1975, at The Mogul
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Corporation, Los Angeles, California. The pesticide involved was
MOGUL A-421; the charge was misbranding—lack of adequate
warning or caution statement on labels.
The complaint was dissmissed after it was determined that the
pesticide MOGUL A-421 was not being held for sale by the
respondent as alleged in the complaint.
1986. In Re: Colorado International Corporation, EPA Region
IX, February 9, 1976. (I.F. & R. No. IX-62C, I.D. No.
113852.)
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 and 136j(a)(l)(E). The action pertained to a
shipment made on or about May 31, 1973, from Long Beach,
California, to Denver, Colorado. The pesticide involved was AM-T
90%; charges included non-registration and misbranding—lack of
adequate warning or caution statement, lack of directions for use,
lack of name and address of producer, registrant or person for whom
manufactured and lack of ingredient statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,500.
1987. In Re: Luseaux Laboratories, Inc., EPA Region IX,
February 13,1976. (I.F. & R. No. IX-105C, I.D. Nos. 111134,
111135and 111 136.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136(q)(l)(G); 136(q)[l)(A); 136j(a)(l)(E) and 136(q)ll)(F). The action
pertained to products held for distribution or sale on November 11,
1974, at Luseaux Laboratories, Inc., Gardena, California. The
pesticides involved were LUSEAUX LUCLOR, LUSEAUX SUPR-
SAN and LUSEAUX QT-550; the charge was misbranding—lack of
directions for use, lack of warning or caution statement, labels bore
1345
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false or misleading statement regarding safety of product and
product bore incorrect establishment number.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,695.00.
1988. In Re: Chemifax Company, EPA Region IX, February 18,
1976. (I.F. & No. IX-81C, I.D. No. 113847.)
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). The action pertained to a product held for distribution or
sale on July 25, 1974, at Chemifax Company, La Mirada, California.
The pesticide involved was SPEARMINT
DEODORANT/DISINFECTANT ALL PURPOSE 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 $ 1,800.00.
1989. In Re: Blue Cross Laboratories, EPA Region IX, March 23,
1976. (I.F. & R. No. IX-106C, I.D. No. 125377.)
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); 136q(2)(A) and 136q(l)(G). The action
pertained to a shipment made on March 27, 1975, from North
Hollywood, California, to Wauwatosa, Wisconsin. The pesticide
involved was DUST FIGHTER; charges Included nonregistration and
misbranding—lack of adequate caution statement and adequate
ingredient statement on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a Civil Penalty of $2,200.00.
1346
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1990. In Re: Bonewitz Chemicals, Inc., EPA Region IX, April 14,
1976. (I.F. & R. No. IX-118C, I.D. No. 111271.)
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); 136i(a)(l)(E) and 136{q)(2)(C)(v). The action pertained to
a product held for distribution or sale on July 16, 1975, at Bonewitz
Chemicals, Inc., Turlock, California. The pesticide involved was BON-
A-CIDE; the charge was misbranding—inadequate directions for use
and lack of assigned registration number.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $ T ,680.00.
1991. In Re: Gordon C. Dampier and Associates, EPA Region IX,
April 14,1976. (I.F. & R. No. IX-117C, I.D. No. 111620.)
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
June 27, 1975, from Santa Ana, California, to Phoenix, Arizona. The
pesticide Involved was AQUA PURE; the charge was
nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $500.00.
1992. In Re: Masury-Columbia Company, EPA Region IX, April
14, 1976. (I.F. & R. No. IX-115C, I.D. Nos. 111152, 111153
and 111154.)
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(qJ(l)(G). The action pertained to
products held for distribution or sale on November 14, 1974, at
Masury-Columbia Company, Glendale, California. The pesticides
involved were POWERSOFT GERMICIDAL BOWL CLEANER,
1347
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CLEANICIDE GERMICIDAL CLEANER and SPRING-DAY
GERMICIDAL CLEANER; charges included claims and directions for
use differed in substance from the representations made in
connection with its registration and misbranding—lack of adequate
precautionary statements on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $4,000.00.
1993. In Re: Go wan Company, EPA Region IX, April 29, 1976.
(I.F. & R. No. IX-108C, I.D. No. 111735.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C
135a(a)(1) and 135(b). The action pertained to a shipment made on
September 4, 1976, from Calipatria, California, to Yuma, Arizona.
The pesticide involved was ORTHO SEVIN BAIT; the charge was
nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,100.00.
1994. In Re: Dexol Industries, Inc., EPA Region IX, May 18,
1976. (I.F. & R. No. IX-45C, I.D. Nos. 92855, 92856 and
90611.)
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)(2); 136(c)(l) and 136[q)(l)(A). The action
pertained to a product held for distribution or sale on September 20,
1973, at Dexol Industries, Inc., Torrance, California. The pesticide
involved was DEXOL ROSE SHIELD; charges included adulteration
and misbranding—strength or purity fell below the professed
standard of quality as expressed on its labeling and contaminated
with an additional active ingredient.
1348
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The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,670.00.
1995. In Re: Standard Oil of California, EPA Region IX, May 24,
1976. (I.F. & R. No. IX-119C, I.D. No. 111739.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
T36j(a](lKEJ; T36(q](l)(G|; 13cXq)(2KC)(v) and 736(q)(l}(F). The action
pertained to a product held for distribution or sale on or about April
16, 1975, at Standard Oil of California, San Diego, California. The
pesticide involved was CHEVRON WEED KILLER 349; the charge
was misbranding—lack of adequate warning or caution statement,
lack of adequate directions for use and lack of assigned registration
number on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,700.00.
1996. In Re: Alcor Products, EPA Region IX, June 11, 1976. (I.F.
AR.No. IX-124C,LD.Nos. 111320 and 111321.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)[l)(A) and 136(c)(l). The action pertained to a
product held for distribution or sale on or about September 8, 1975,
at Alcor Products, City of Industry, California. The pesticide involved
was REPEL; charges included aldulteration and misbranding—
strength or purity fell below the professed standard of quality as
expressed on it labeling.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $140.00
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1997. In Re: Associated Chemists, Inc., EPA Region X,
November 10,1975. (I.F. & R. No. X-17C.)
This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge William J. Sweeney's Initial Decision and
EPA Region X Administrator's Final Order.
INITIAL DECISION
Preliminary Statement
By Complaint dated January 3, 1975, the Director of the
Enforcement Division, Environmental Protection Agency, Region X,
alleged that Associated Chemists, Inc., hereinafter called Associated,
had violated the Federal Insecticide, Fungicide and Rodenticide Act,
as amended [86 Stat. 973; 7 USC 136 et. seq.], hereinafter called
FIFRA. Specifically, it was alleged that Associated held for sale the
product Quill-Cleaner-Disinfectant-Deodorizer-Fungicide, hereinafter
called Quill, which was misbranded and adulterated, and a civil
penalty of $2,800 was proposed to be assessed.
On July 15, 1975, an adjudicatory hearing was conducted in
Portland, Oregon, at which Respondent was represented by Thomas
Guilbert of Davies, Briggs, Strayer, Stoel and Boley of Portland,
Oregon, and Complainant by John Y. Hohn of Seattle, Washington.
Findings of Fact
1. Pursuant to a prior written communication, Kendall N.
Covert, Consumer Safety Officer in EPA, Region X, visited the
establishment of Associated, Portland, Oregon, on March 26, 1974,
for the purpose of conducting an establishment inspection and
sample collection pursuant to Section 9(a) of FIFRA [7 USC 136g(a)].
2. Mr. Covert conferred with Mr. Nass, Vice President and
Manager of Associated, about the firm's registered pesticide
products to determine if there was any present desire on the part of
Associated to change the registered status of any of these products
{TR. 15, line 15). During this conversation Mr. Nass made no
1350
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indication of intent to change the active registered status of the
product Quill (TR. 15, line 25).
3. At Mr. Covert's request, Mr. Mass took Mr. Covert into
the warehouse area of the facility so that Mr. Covert could draw
physical samples and inspect all products packaged, labeled and
readied for shipment. Before entering the warehouse area Mr. Covert
handed a Notice of Inspection form to Mr. Nass at the same time
repeating that the reason for the inspection (as written on the Form)
was to obtain "...samples of any pesticides or devices, packaged,
labeled, and released for shipment, and samples of any containers or
labeling for such pesticides or devices." (Exhibit No. 1)
4. In the warehouse area approximately 26 feet from the
order desk, four cardboard shipping boxes were pointed out to Mr.
Covert as containing Quill (TR. 18, line 9).
5. Under Mr. Covert's observation, either Mr. Nass or his
assistant removed two one-gallon bottles (jugs) from the shipping
containers (TR. 17, line 23). One of these bottles was labeled by the
assistant and placed with other samples gathered for Mr. Covert into
a box. The other jug of Quill was retained as a duplicate sample by
Mr. Nass. Mr. Covert prepared a Receipt for Samples form, which
covered six items, including Quill, and which included the following
handwritten statement:
"The undersigned acknowledges that the following
samples were obtained from pesticides that were
packaged, labeled, and released for shipment; or having
been shipped are being; held for distribution or sale;"
Mr. Nass signed this receipt (Exhibit No. 2).
6. Mr. Covert forwarded the sealed container of Quill to the
EPA laboratory in San Francisco where it was tested for chemical
content. The product Quill, as tested, was found to contain 0.038
mm/gm total quaternary ammonium salts [Exhibit No. 3). The label
that was attached to the product (Exhibit No. 4) claimed a content of
alkyl (60% C14, 30% C16, 5% C12, 5% C18) dimethyl benzyl
1351
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ammonium chlorides 1.6% and alky I (68% 012,32% C14) dimethyl
ethylbenzyl ammonium chlorides 1.6% which is the same as 0.085
mm/gm when calculated as total quaternary ammonium salts.
Therefore, the product was 55% deficient in total quaternary
ammonium salts. (Exhibit No. 3).
7. A product that is lacking quaternary ammonium salts is
less effective as a disinfectant and fungicide (Guilbert, April 3 letter).
In some applications an ineffective disinfectant-fungicide may fail to
kill organisms which contribute to disease (Guilbert, April 3 letter).
The approved label claims effectiveness against staphylococcus
aureus, a "very discomforting" disease (TR. 23, line 15).
8. Associated had gross sales in excess of $1,000,000
during the calendar year 1974 (Exhibit No. 5).
DISCUSSION AND CONCLUSIONS
The defense of Associated in essence is that the product Quill
was not being held for sale at the time Mr. Covert acquired the
sample on March 26, 1974.
Associated and Mr. Mass, its Vice President, stated that the
sample of Quill obtained by EPA was one gallon of a single, and only,
55 gallon drum of Quill manufactured by the Company. At the time of
manufacture the Quill was poured into 24 one-gallon plastic jugs
which were placed into shipping boxes (4) without labels as is the
Company's practice with all their products. The remainder of the Quill
was stored in a drum.
The four shipping boxes containing Quill were placed in an area
near an area occasionally used by Associated to store products held
for rework. An employee scotch-taped a handwritten note on the top
shipping container which indicated that the contents were not for
sale. At the time of Mr. Covert's inspection the note was not visible.
Unfortunately, the action taken by Associated did not prevent
Mr. Nass from being of the opinion that Quill was being held for sale
1352
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on the 26th of March, 1974 (TR. 47, line 3). Mr. Nass knew the
purpose for Mr. Covert's sample gathering inspection and delivered
the gallon of Quill while under the opinion that it was at that time
being held for sale. This opinion must have been implicitly shared by
Ms. Cole, Associated'* order clerk and only other witness, who might
have been the individual who helped Mr. Nass deliver the Quill to Mr.
Covert. It is therefore concluded that Respondent did hold for sale
Quill and the Quill was adulterated as alleged.
The Penalty. Complainant has computed the proposed
assessments by use of the Civil Penalty Assessment Schedule
designed to produce comparability of penalties (39 F.R. 27711, July
31,1974).
Complainant proposed to assess a single penalty against
Associated in the amount of $2,800. Under the heading "Analytical
Test Results Formulation Violations", Section 1. Chemical
Deficiencies, D. Inefficacious, for a Category V, as is Respondent, the
penalty of $2,800 is prescribed where the product is partially
inefficacious. This is a proper application of the assessment schedule.
However, in view of mitigating circumstances here present, this figure
should be lowered by 30 percent to $1,960, which amount is within
the negotiating margin approved by the Schedule for settlement
purposes. The violation is clearly the result of inexcusable
carelessness rather than an intent to market a product substantially
deficient in active ingredient.
UL TIMA TE CONCLUSION
It is found that Respondent violated the provisions of FIFRA as
charged and that a civil penalty of $1,960 should be assessed
against it.
ORDER
1. Pursuant to Section 14(a) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended [86 Stat. 973; 7 USC
1353
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136 1(aJ], a civil penalty of $1,960 is hereby assessed against
Associated Chemists, Inc.
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.
Dated: September 2, 1975
William J. Sweeney
Administrative Law Judge
FINAL ORDER
This is an appeal by Associated Chemists, Inc. (hereafter
"Associated") pursuant to 40 CFR 168.51 from an Initial Decision of
Administrative Law Judge William J. Sweeney, dated September 2,
1975, in this proceeding. Associated appeals the reduced assessment
of a civil penalty in the amount of $1,960.00 and challenges the
ultimate conclusion of Judge Sweeney that Associated violated the
Federal Insecticide, Fungicide and Rodenticide Act, as amended [86
Stat. 973; 7 USC 136 ef. seq.} (hereafter "FIFRA"}. Judge Sweeney
concluded that Associated held for sale its product "Quill" (hereafter
"the product1'), and that the product was adulterated as alleged by
the Environmental Protection Agency [hereafter "EPA"). In
accordance with EPA's regulations, 40 CFR 168.51(c), each of
Associated's exceptions, is addressed separately below.
1. Associated's Exceptions to the Initial Decision
a. The Initial Decision is deficient as a matter of law in
that there are inadequate findings of fact to support the
1354
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ultimate conclusion, in violation of the Administrative
Procedure Act. [Initial Decision pp. 2-4.]
In this exception Associated contends that Judge
Sweeney failed to make a finding of fact that the product was "held
for sale." However, in the Discussion and Conclusions portion of the
Initial Decision, p. 5, the following statement is made: "It is therefore
concluded that Respondent did hold for sale Quill and the Quill was
adulterated as alleged." Since the question of whether or not
Associated held the product for sale was the main issue iri dispute and
since this is a mixed issue of law and fact, it was appropriate for
Judge Sweeney's decision on this matter to be set forth as a
conclusion rather than a finding of fact.
Furthermore, I find that there are adequate findings of
fact to support the ultimate conclusion. Specifically, under Findings of
Fact, Judge Sweeney set out in Finding 3that Associated's agent was
notified that the purpose of EPA's Consumer Safety Officer's visit
was to obtain samples of pesticides packaged and released for
shipment, in Finding 4 that the product was located near an order
desk, and in Finding .5that the product was removed from a shipping
container and acknowledged by an agent of Associated, in writing,
as being a sample of a product which was packaged and released for
shipment or was being held for distribution or sale. It seems quite
clear to me that Finding 4 or Finding ^independently could support
Judge Sweeney's conclusion that the product was held for sale. In any
event, with Finding 3describing the circumstances of the transaction,
the combination of Findings 3, 4, and 5 more than adequately sets
forth the recitation of facts needed under the Administrative
Procedure Act to support the Judge's conclusion.
b. The Initial Decision makes assertions of fact about
which there is no evidence in the record, in violation of
the Administrative Procedure Act. [Initial Decision p. 5;
Tr. p. 29,45,54-55.]
c. The Initial Decision makes assertions of fact contrary to
uncontradicted testimony in the record, in violation of the
Administrative Procedure Act. [Initial Decision p. 5; Tr. p.
1355
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29, lines 6-8; p. 35, lines 7-13; p. 36, line 11- p. 37, line
3; p. 40, lines 17-20; p. 45, lines 12-19; p. 48, line 18-
p. 49, line 4; p. 51, lines 21-25; and pp. 51-57, line 11.]
In these exceptions Associated is challenging Judge
Sweeney's conclusion that the product was held for sale as being
without a basis in the record and being contrary to uncontradicted
testimony in the record. The Judge's specific finding that a note
attached to the product's container (indicating that the contents were
not for sale) was not visible at the time of the inspection, is also
challenged in this exception.
In regard to the visibility of the note, the record contains
sufficient evidence to support Judge Sweeney's conclusion. Mr.
Covert, the EPA inspector who stood two-to-three feet from the case
containing the product, did not recall seeing a sign affixed to the case
(Tr. pp. 28-29} nor did Mr. Mass, vice-president of Associated, who
believed that he actually pulled the jug from the carton (Tr. p. 45,
lines 23-25; p. 47). In the absence of any contradictory testimony
regarding the visibility of the note, the testimony of Mssrs. Covert and
Mass was an adequate basis for Judge Sweeney's conclusion that the
note was not visible at the time of Mr. Covert's inspection.
Associated argues that Judge Sweeney's conclusion that
the product was held for sale is not supported by the evidence in the
record because there was a note attached to the top of the shipping
container indicating that the contents were not for sale, the opinion of
Mr. Mass as to the status of the product is an insufficient basis for the
conclusion, and there is no evidentiary support for extending Mr.
Mass's opinion to Ms. Cole, the shipping clerk.
While the Initial Decision acknowledges that a note had
been placed on the shipping container, as discussed previously,
Judge Sweeney concluded that the note was not visible at the time of
the inspection. To insure that the adulterated product was not sold,
either deliberately or as a result of confusion on the part of an
employee, Associated had a responsibility to see that the shipping
container was properly marked. The mere placement on a shipping
container of a note, which was not plainly visible, did not fulfill
1356
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Associated'* duty to safeguard against the sale of adulterated
products nor was such action sufficient to refute EPA's contention that
the product was held for sale.
In regard to Associated's contention that Mr. Nass's
opinion regarding the status of the product is irrelevant to the
question of whether the product was held for sale, both the basis and
potential impact of Mr. Nass's opinion must be considered. Mr. Mass
apparently believed the product was held for sale because he did not
see any note to the contrary on the container and did not check the
records (Tr. p. 45, lines 23-25; p. 51, lines 21-25). Furthermore, the
product was stored in shipping containers (Tr. p. 48, lines 6-15) and
apparently was on a list of the firm's registered products (Tr. p. 15,
lines 15-23; p. 46, lines 24-25). As a result of his opinion regarding
the status of the product, Mr. Mass stated that he would have sold a
gallon of the product had he been requested to do so (Tr. p.47, line
22- p. 48, line 1). The fact that none of this product had ever been
sold by Associated, the fact that retail sales from the factory are not
in the normal course of business, and the fact that Mr. Mass is not
generally involved with filling orders, did not prevent Mr. Nass from
being of the opinion that the product was held for sale. Mr. Nass's
opinion, which was reasonable under the circumstances and which
could have resulted in an actual sale of the product, is relevant to the
question of whether the product was held for sale and his testimony
fully supports Judge Sweeney's affirmative answer to this question.
Associated argues that Judge Sweeney's conclusion that
Mr. Nass's opinion as to the status of the product must have been
implicitly shared by Ms. Cole Js unwarranted and directly
contradicted by the record. Mr. Nass recalls that Ms. Cole labeled the
product on the inspection day. Such action on the part of Ms. Cole
does imply that she also believed the product was held for sale.
However, Ms. Cole's inability to recall the inspection, her opinion that
the product was in the rework section of the plant, and her belief that
she would not have filled an order for the product because she had
marked the container for rework, support Associated's contention
that Mr. Nass's opinion cannot be extended to Ms. Cole. But even if it
is assumed that Ms. Cole did not believe the product was held for
sale, Mr. Nass's contrary opinion, in conjunction with the apparent
1357
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basis for his opinion discussed previously, constituted sufficient
evidence to support the conclusion that the product was held for sale.
d. The Initial Decision misconstrues as a matter of law the
jurisdictional requisites of the Federal lnsecticidef
Fungicide andRodenticide Act.
In setting forth this exception, Associated argues that the
opinion of an officer of a corporation that a product is "held for sale"
does not confer jurisdiction upon EPA to impose a civil penalty under
FIFRA. According to Associated such jurisdiction only exists if the
product was in fact held for sale. Associated claims that the Initial
Decision failed to recognize this distinction and is, therefore,
defective as a matter of law.
Assuming that Associated's interpretation of the law Is
correct, the Initial Decision does make the necessary jurisdictional
finding that the product was, in fact, held for sale (Tr. p. 5). The
opinion of Mr. Nass on the subject was clearly considered significant
in the Initial Decision's finding on this issue. However, as discussed
previously, the record contains other evidence which explains the
basis for Mr. Mass's original opinion and this further evidence
independently supports the conclusion of Judge Sweeney that the
product was "held for sale" in violation of FIFRA. Since Judge
Sweeney presided at the hearing and was familiar with the evidence
presented, it may be presumed that he considered all the facts
relevant to the central issue.
2. Findings of Fact
The Findings of Fact set forth in the Initial Decision in
paragraphs 1 through 8 are accepted.
3. Discussion and Conclusion
The conclusion of the Initial Decision that Associated held
an adulterated product for sale, and the reasons therefore, with the
exception of the finding that Ms. Cole implicitly shared Mr. Mass's
opinion regarding the status of the product, are accepted.
1358
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4. Civil Penalty
The assessment in the Initial Decision of a civil penalty in
the amount of $ 1,960 is accepted.
5. Ultimate Conclusion
It is found that Associated violated the provisions of
Section 12(a)(l)(E) of FIFRA and that a civil penalty of $1,960 should
be assessed.
ORDER
1. Purusuant to Section 14(a) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended [86 Stat. 973; 7 USC
136 1(a)], a civil penalty of $1,960 is hereby assessed against
Associated Chemists, Inc.
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 Associated by forwarding to the Regional Hearing Clerk a
cashier's check or certified check, payable to the United States of
America in such amount.
Dated: November 10, 1975
Clifford V. Smith, Jr., Ph.D., P.E.
Regional Administrator
1998. In Re: Gibson-Homans Co., EPA Region X, April 12,1976.
(I.F. & R. No. X-15C, I.D. Nos. 93252 and 93254.)
1359
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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(b)(l); 136j(a)(l)(e) and 136(c)(l). The action pertained to
a product held for distribution or sale on February 6, 1974, at Pioneer
Building Specialties Co., Portland, Oregon. The pesticide involved
was PIONEER BRAND 5% PENTON and PIONEER BRAND
COPPER NAPHTHENATE; the charge was adulteration-its strength
or purity fell below the professed standard of quality.
Gibson-Homans, as guarantor, pled guilty as per Complaint and
agreed to Order setting $750.00 assessment.
1999. In Re: Daly's, Inc., EPA Region X, April 19,1976. (I.F. & R.
No. X-28C, I.D. Nos. 107354 and 107355
This was a civil action in which the respondent was charged with
violating the Federal Insecticide, Fungicide, and Rodenticide Act, 7
U.S.C. 135(a)(l) and 135b. The action pertained to a shipment made
on August 26, 1974, from Seattle, Washington to Portland, Oregon.
The pesticide involved was BENITE; the charge was nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $440.00.
2000. In Re: Pace National Corporation, EPA Region X, May
24, 1976. (I.F. & R. No. X-22C, I.D. Nos. 106680, 113160,
and 113309.)
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); 136(c)(l) and 136(q)(l)(A). The action pertained
to a product held for distribution or sale on March 27, 1974, at Pace
National Corporation, Kirkland, Washington. The pesticides involved
were TERGICIDE G GERMICIDAL DETERGENT, SHIELD BRITE S-
300, and MAGNOLIA WEEDS AND FEEDS; charges included
adulteration and misbranding—strength or purtiy felt felow the
professed standard of quality as expressed on its labeling.
1360
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The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,400.00.
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Index to Notices of Judgment 1951-2000
N.J. No.
Adroit Chemical Pest Control (Civil) 1977
Alcor Products (Civil) 1997
Amaza Laboratories, Inc. (Civil) 1964
Associated Chemists, Inc. (Civil
Hearing) 1984
Athea Laboratories, Inc. (Civil) 1957
Beaver Sales & Service (Civil) 1954
Blue Cross Laboratories (Civil) 1990
Blue Grass Chemical Specialties,
Inc. (Civil) I960
Bonewitz Chemicals, Inc. (Civil) 1991
Chemifax Company (Civil) 1989
Cole Chemical Company (Civil) 1976
Colorado International Corporation
(Civil) 1987
Continental Chemical Corporation
(Civil) 1968
Contract Packaging, Inc. (Civil) 1983
Daly's, Inc. (Civil) 1999
Dexol Industries, Inc. (Civil) 1995
Dow Chemical, U.S.A. (Civil) 1980
Elanco Products Company, Division
of Eli Lilly and Company (Civil) 1966
Gibson-Homans Co. (Civil) 1998
Globe Chemicals, Inc. (Civil) 1961
Gordon C. Dampier and Associates
(Civil) 1992
Gowan Company (Civil) 1994
Hart Hardware Company (Civil) 1955
Hawkins Chemical, Inc. (Civil) 1963
H-O-H Chemicals, Inc. (Civil) 1967
Howe Chemicals, Inc. (Civil) 1965
Hub States Corporation (Civil) 1969
J. E. Flannigan Chemical Company
(Civil) 1979
Lite Weight Products, Inc. (Civil) 1982
Luseaux Laboratories, Inc. (Civil) 1988
1362
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Mor-Pok Midwest, Inc. (Civil) 1978
Masury-Columbia Company (Civil) 1993
Mclnnis Laboratories (Civil) 1956
Mid State Chemical and Supply
Corp. (Civil) 1958
Middlebrook Lancaster, Inc. (Civil) 1951
Midland Research Laboratories, Inc.
(Civil) 1981
Mogul Corporation, The (Civil) 1986
Pace National Corporation (Civil) 2000
Packaging Unlimited (Civil) 1985
Poly-Chem, Inc. (Civil) 1973
Progressive Electronics Corporation
(Civil) 1972
Sanitary Supply Company (Civil) 1970
Sifers Chemicals, Inc. (Civil
Hearing) 1974
Southwest Grease and Oil Company
(Civil)
Stan Sax Corporation (Civil) 1962
Standard Oil of California (Civil) 1996
Thompson Hay ward Chemical Company
(Civil) 1952
Thompson Hayward Chemical Company
(Civil) 1953
Time Chemical, Inc. (Civil Hearing) 1959
Turco Products (Civil) 1971
1363
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