N.J., I.F.R. 2051-2100 Issued June 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
No*. 2051-2100
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).
W. Legro
Assistant Administrator for
Enforcement
Washington, D.C
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2051. In Re: Decorator Specialties Company, Inc., EPA Region I,
July 19, 1976. (I.F.&R. No. I-30C, I.D. Not. 119256 and
125065.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 135b;
135a(a)(l); 136j(aXD(E); 136j(a)(2)(L); 136(qKlMG) and 136q(2)(A).
The action pertained to a shipment made on or about August 1,
1975, from Allston, Massachusetts, to Cleveland, Ohio, and to a
product held for distribution or sale on or about July 30, 1975, at
Decorator Specialties Company, Inc., Allston, Massachusetts. The
pesticide involved was SUPER-SEAL WALL PAPER SIZE
ADHESIVE; charges included nonregistration of product and
establishment and misbranding—lack of adequate warning or
caution statement and adequate ingredient statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $200.00.
2052. In Re: Troy Chemical Company, EPA Region II, June 9,
1975. (I.F.&R. No. II-51C, I.D. Not. 117706 and 117707.)
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); 136q(l)(G); 136q(2){A) and 136q(2)(C). The action
pertained to products held for distribution or sale on April 4,1974, at
Troy Chemical Company, Newark, New Jersey. The pesticides
involved were TROYSAN 174 and TROYSAN PMDS 10; the charge
was misbranding—lack of precautionary labeling, ingredient
statement, net content statement, and name and address of
producer.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $4,000.00.
1452
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2053. In re: Troy Chemical Company, EPA Region II, June 11,
1975. (I.F.&R. No. II-52C, I.D. Not. 116867 and 114719.)
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 shipments made on
November 29 and December 21, 1973, and March 11, 1974, from
Newark, New Jersey, to Dallas, Texas, and Marietta* Georgia. The
pesticide involved was TROYSAN CMP-10-SEP; the charge was
nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $4,250.00.
2054. In Re: Troy Chemical Company, EPA Region II, June 11,
1975. (I.F.&R. No. II-55C, I.D. Nos. 114720 and 116868.)
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 shipments made on November 9 and December 19, 1973, from
Newark, New Jersey, to Dallas, Texas, and Atlanta, Georgia. The
pesticide involved was TROYSAN CMP ACETATE; 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 $4,000.00.
2055. In Re: Bonide Chemical Company, EPA Region II, July 13,
1976. (I.F.&R. No. II-121C, I.D. Nos. 107635 and 107644.)
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
products held for distribution or sale on January 22, 1975, at Bonide
Chemical Company, Yorkville, New York. The pesticides involved
1453
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were BONIDE ORCHARD MOUSE BAIT and BONIDE FLEA-TICX-
LICE-POWDER; 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 $3,560.00.
2056. In Re: Xterminator Products Corp., EPA Region II, July 27,
1976. (I.F.&R. No. II-126C, I.D. Nos. 107751, 107752 and
107753.)
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 136e(c)(l). The action pertained to products held for
distribution or sale on May 27, 1975, at Xterminator Products Corp.,
Jersey City, New Jersey. The pesticides involved were VOO DOO
NEW-ROACH MAGIC, VOO DOO ROACH POWDER and VOO
DOO WHITE MAGIC BRAND INSECTICIDE; charges included
failure to file pesticides reports and misbranding—lack of
registration number on labeling and labeling bore false and
misleading information.
The respondent signed a Consent Agreement. The Final Order
assessed a zero penalty since the firm was no longer operational and
without resources.
2057. In Re: Jet-Aer Corp., EPA Region II, July 28,1976. (I.F.&R.
No. II-118C, I.D. Nos. 117720, 117721, 117756 and
117725.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(l); 135b; 136j(a)(l}(E); 136(c)(l) and 136(q)(l)(A). The action
pertained to a shipment made between April 19, 1973, and July 29,
1974, from Paterson, New Jersey, to Spencerport, New York, and to
a product held for distribution or sale on May 24, 1974, at Jet-Aer
1454
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Corp., Paterson, New Jersey. The pesticides involved were CHEW
STOP, HEDDY INDOOR DOG AND CAT REPELLANT, G96
HUNTING DOG INDOOR & OUTDOOR DOG REPELLANT and
HEDDY OUTDOOR DOG & CAT REPELLANT; charges included
nonregistration, 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 $4,780.00.
2058. In Re: Vineland Laboratories, Inc., EPA Region II, August
9,1976. (I.F.&R. No. II-92C, I.D. No. 118125.)
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 May 15, 1974, at Vineland Laboratories,
Inc., Vineland, New Jersey. The pesticide involved was SANI-
SQUAD; the charge was misbranding—lack of required
precautionary statements.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,500.00.
2059. In Re: Hawk Industries, Inc., EPA Region II, December, 21,
1976. (I.F.&R. No. II-120C.)
This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge Bernard D. Levinson's Initial Decision.
1455
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Preliminary Statement
This is a proceeding under section 14(a) of the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended1 (FIFRA) for
assessment of civil penalties for violations of said Act. The proceeding
was initiated by complaint dated January 30, 1976, issued by the
Director, Environmental Programs Division, EPA, Region II, charging
respondent with violations of the Act.2
It is alleged that on September 25, 1975, the respondent
shipped the product known as Baygon Super Residual (Baygon) that
was not in compliance with section 12(a)(2)(A) of the Act in that
labeling required by the Act had been detached, defaced, altered, or
destroyed in whole or in part. It is also alleged that the shipment of
the product was in violation of section 12(a)(l)(E) of the Act in that it
was misbranded. In each of three separate paragraphs a different
mode of misbranding is alleged by reason of the failure of the label to
bear certain required information as follows: failure to bear the
required warning or caution statements required by section 2(q)(l)(G);
failure to bear adequate directions for use required by section
2{q)(l){F};3 failure to bear an ingredient statement required by section
2(q)(2){A).
A penalty of $1,540 was proposed to be assessed for violation
of section 12(a)(2)(A) (defacing and destroying labeling). A separate
penalty, each in the amount of $1,540, was proposed to be assessed
for each mode of misbranding. Thus, penalties in the aggregate of
$6,160 were proposed to be assessed.4
After usuccessful negotiations between representatives of the
complainant and respondent, the respondent by its president, Jerome
S. Shaw, filed an answer and requested a hearing only with respect
to the amount of penalty that should be imposed. The answer did not
deny any of the allegations of the complaint and failed to plead
specifically to any material factual allegation contained in the
complaint. Such failure constitutes a binding admission of such
allegations.9
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After issuance of the preheating letter to the parties on June 7,
1976, the respondent retained counsel. A hearing was held in the
case in Newark, New Jersey, on October 19, 1976. The complainant
was represented by Susan Levine, Esq., attorney for EPA, Region II,
and the respondent was represented by Harold Friedman, Esq., of
Newark.
The complainant has filed proposed findings of fact and
conclusions of taw and a brief in support thereof. The respondent has
filed a memorandum which includes some proposed findings and
which deals with the amount of penalties that should be imposed and
respondent's ability to pay. These have been duly considered.
Findings of Fact
1. The respondent Hawk Industries, Inc. (Hawk) is a
corporation engaged in the distribution of specialty chemical
products for cleaning activities by commercial and industrial users.
The company has a place of business in Fairfield, New Jersey. Jerome
S. Shaw is president of the company and the individual responsible
for the operations and conduct of the business.
2. Shortly before September 25, 1975, respondent received
from one of its suppliers a 55 gallon drum containing a pesticide
called Pyragon. The only labeling of the product as received by Hawk
was the label which contained the following which is required by
FIFRA: (1) warning and caution statements, as required by section
2(q)(l)(G); (2) adequate directions for use, as required by section
2(q)(l)(F); (3) an ingredient statement giving the name and
percentage of each active ingredient, as required by section
2(q)(2)(A). One of the active ingredients was a chemical called
Baygon.
3. After respondent received the container of the pesticide it
firmly superimposed on the label as received its own label which
completely covered the original label and could not be removed
without destroying the original label.
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4. The label affixed by respondent did not contain the
statements and information which appeared on the original label as
set forth in Finding 2, above. The failure of the label to bear these
statements and information resulted in the product being
misbranded.
5. The respondent's act of affixing the label above
described defaced and destroyed in substantial part labeling
required by FIFRA, in violation of section 12(a}(2)(A) of FIFRA.
6. After respondent affixed the label above described, it
shipped the product to one of its customers in Port Reading, New
Jersey, on September 25, 1975. This resulted in a violation of section
12(a)(2)(E) of FIFRA for the shipment of a pesticide which was
misbranded.
7. The respondent is subject to a civil penalty for violating
section 12(a)(2)(A) of FIFRA. In the circumstances of this case an
appropriate penalty for this violation is $100.
8. The act of shipping the pesticide which was misbranded
in the various modes described constitutes a single offense and the
respondent is subject to a civil penalty for violating section 12(aMl)(E)
of FIFRA. In the circumstances of this case an appropriate penalty for
this violation is $900.
Discussion and Conclusions
The respondent does not produce any chemicals. It purchases
products from other companies and maintains a stock and fills orders
as they are received.
Shortly before September 25, 1975, respondent received an
order from one if its customers, engaged in food production, for a
product that respondent did not carry in stock. Respondent ordered
and received a 55 gallon drum of the product from Utility Chemical
Co. (Utility), Patterson, New Jersey. The product called Pyragon was
a product that had been registered by Utility for home use in 1969
1458
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with the United States Department Of Agriculture (predecessor of
EPA for registering pesticides). The principal active ingredient was a
proprietary chemical called Baygon. In connection with the
registration of Pyragon by Utility, a label was approved which,
among other things, contained a list of and percentages of
ingredients, detailed directions for use, and required warning and
caution statements (Comp. Ex. 2). The approved label was required to
be affixed to the packaged product.
The container received by respondent had the label that had
been affixed by Utility and contained the information in the
approved label, including the name of Utility. Respondent reshipped
the product to its customer in the same container in which it was
received. In reshipping it was the desire of respondent to withhold
from its customer the name of its supplier and it superimposed its own
label over the Utility label and completely covered the latter. The
label it affixed was six inches square, on a white background which
bore the following printed matter:
For Commercial And Industrial Use Only
Warning:
Keep Out of Reach of Children
See Side Panel for Additional Cautions
HAWK INDUSTRIES, INC.
Fairfield, New Jersey 07006
Between the first line and the word "Warning" there was a
blank area of about 3-1/2 inches in which one of the respondent's
employees had typed the words "BAYGON SUPER RESIDUAL".
There was no side panel and this was the only label or labeling of the
product as shipped.
The Hawk label was tightly affixed over the Utility label and could
not be removed without destroying the Utility label. The affixing of
the Hawk label over the Utility label resulted in defacing and
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destroying in part labeling required by the Act in violation of section
12(a)(2)(A)oftheAct.
The only warning on the label affixed by Hawk was "Keep out
of reach of children". The label did not bear other warning and
caution statements which were necessary and adequate to protect
health and the environment.6 This resulted in the product being
misbranded as defined in section 2(q)(l)(G).
The label affixed by Hawk contained no directions for use.7
Section 2(q)(1)(F) of the Act requires directions for use which are
necessary for effecting the purposes for which the product is intended
and which are adequate to protect health and the environment. The
product was misbranded under this provision of the Act.
The label affixed by Hawk did not bear an ingredient statement*
and the product was misbranded under section 2(q)(2)(A) of the Act.
The only matter of controversy in the case is the amount of
penalties that should be imposed. In making this determination
section 14(a)(3) of the Act requires that there shall be considered the
appropriateness of the penalty to the size of respondent's business,
the effect on respondent's ability to continue in business, the effect on
respondent's ability to continue in business, and the gravity of the
violation. Section 168.60(b) of the rules of practice provides that in
evaluating the gravity of the violation there shall also be considered
respondent's history of compliance with the Act and any evidence of
good faith or lack thereof.
In previously decided civil penalty cases under FIFRA it has been
held that gravity of the violation should be considered from two
aspects - gravity of harm and gravity of misconduct.
As to gravity of misconduct, I conclude that the violations were
not the result of any improper motive of respondent and were not a
deliberate flouting of the requirements of the Act. They occurred as
the result of negligence of one of respondent's employees. There is no
evidence that respondent has a history of prior violations, nor is there
1460
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evidence that respondent did not act in good faith. The gravity of
misconduct was a moderate degree.
As to the gravity of harm, a well qualified witness for
complainant testified concerning the harm that could result from the
failure of the label to bear the required warning and caution
statements, directions for use, and list of ingredients. There is no
doubt that serious consequences could result and that the gravity of
harm was of a high degree.
Based on the size of respondent's business and the gravity of
the violation, penalties in excess of those herein assessed would be
appropriate. However, as will hereinafter appear, in assessing the
penalties I have relied primarily on the effect that imposition of
penalties would have on respondent's ability to continue in business
and I do not consider it necessary to dwell further on the gravity of
the violation.
As above noted, the complaint proposes that a penalty be
assessed for the violation of section 12(a)(2)(A) of the Act (defacing
and destroying labeling) and that a separate penalty be assessed for
each of three modes of misbranding for violations of section
12(a)(l)(E) of the Act (shipping a misbranded pesticide).
A penalty is properly assessable for the violation of section
12(a)(2)(A). The misbrandings were the result of the defacing and
destroying the Utility label. However, different evidence is necessary
to support the misbranding allegations and a separate penalty may
be imposed for shipping a misbranded pesticide.9 There is a question,
however, whether separat' penalties may be imposed for each mode
of misbranding.10 I am unaware of any decision, either under the
criminal or civil penalty provisions of FIFRA, that discusses this
question and I consider it appropriate to do so.
I am of the view that where there is a violation of section
12(a)(l)(E) of the Act by reason of a shipment of a particular pesticide
that is misbranded in more than one way, there is only one offense
and only a single penalty may be imposed.
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Section 12(a) of the Act which is entitled "Unlawful Acts"
provides in pertinent part as follows:
(1) Except as provided by subsection (b)," it shall be
unlawful for any person in any State to distribute, sell,
offer for sale, hold for sale, ship, deliver for shipment, or
receive and (having so received) deliver or offer to
deliver, to any person -
(E) any pesticide which is adulterated or misbranded;
Section 2 of the Act which is entitled "Definitions" in
subsections (q)(1) and (q)(2) defines "misbranded". The subsections
define or describe ten separate modes of misbranding. Included are
the three modes of misbranding, each of which is alleged in the
complaint to be a separate offense.
It is to be observed that under section 12(a)(l)(E) it is unlawful to
ship a pesticide which is misbranded and section 2(q) describes the
various modes in which a pesticide may be misbranded. The Act does
not declare that each mode of misbranding is unlawful but simply
proscribes misbranding. The offense in this case under section
12(a)(l)(E) was the shipping of a misbranded pesticide.
Section 14 of the Act is entitled "Penalties". It sets forth in
separate subsections what civil and crimal penalties may be imposed
for violations of the provisions of the Act. This section provides, in
part, as follows:
(a) CIVIL PENALTIES -
"(1) IN GENERAL. - Any registrant, commercial
applicator, wholesaler, dealer, retailer, or other
distributor who violates any provision of this Act may be
assessed a civil penalty by the Administrator of not more
than $5,000 for each offense.
(b) CRIMINAL PENALTIES -
"(1) IN GENERAL. — Any registrant, commercial
applicator, wholesaler, dealer, retailer, or other
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distributor who knowingly violates any provision of this
Act shall be guilty of a misdemeanor and shall on
conviction be fined not more than $25,000, or imprisoned
for not more than one year, or both.
Aside from the element of knowledge, which is essential to
support a criminal violation, the unlawful acts described in section 12
are the same whether a civil penalty or criminal penalty is sought to
be imposed.
I have been unable to find any cases on the civil side to assist in
my consideration of this question, but since the offenses, whether civil
or criminal, are the same (except for the element of knowledge) it
appears appropriate to consider the application of the criminal side
of the law in the resolution of the question before me, i.e., whether
each mode of misbranding is a separate violation.
In criminal cases, the question as to whether a particular act
results in single or multiple offenses arises in matters relating to
duplicity. In the criminal law an indictment or information is defective
because of duplicity when two or more distinct offenses are charged
in a single count. See, e.g. Frankfort Distilleries, Inc. v. United States,
144 F.2d 824, 832 (10th Cir. 1944). If, then, an indictment that
alleges in one count several specifics of wrongdoing is held not
duplicitous, it follows that there is a single offense charged, and that
the wrongdoings alleged refer to the various modes of accomplishing
the prohibited act. See e.g. United States v. Lennon, 246 F2d 24, 27
(2d Cir. 1957); United States*. Swift, 188 F. 92,97 (N.D. 111.1911).
Misbranding cases which closely parallel the matter now under
consideration have been prosecuted under the Federal.Food, Drug,
and Cosmetic Act (FFDCA), 21 U.S.C 331(a). See Gra/y. United
States, 174 F.2d 919 (8th Cir. 1949), cert, denied, 338 U.S. 848
(1949); Empire Oil & Gas Corp. v. United States, 136 F.2d 868 (9th
Cir. 1943). The pattern of FFDCA and FIFRA, as here pertinent, is
similar. Both prohibit shipment of misbranded (and adulterated)
articles within the purview of the respective statutes12 and in separate
sections define different modes of misbranding.13
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In the Gray case the trial court ruled that a count in an
information charging defendant with misbranding a drug by reason
of: (1) accompanying a shipment of a drug with a letter containing
false statements about the drug; (2) failing to put the true name of the
drug on the label; and (3) omitting from the label directions for use,
was not duplicitous. The appellate court upheld this ruling, 174 F.2d
at 921. Because the offense charged in the count was the
"introducing and delivering for shipment in interstate commerce of a
misbranded article", the court concluded that the count alleged a
single offense and that the information was not duplicitous. The
several acts and omissions charged against the defendant were
deemed to be specifications of the ways in which the drug was
misbranded and the offense was committed.
The same result was reached in the Empire 0/7case where it was
held that a count which alleged the shipment of a drug that was
misbranded in two different ways (false claims as to efficacy and
inaccurate statement of contents) was not duplicitous since it did not
charge more than one offense - the shipment of a misbranded drug.
The court, quoting from the Swiff case, supra, said "Duplicity may be
applied only to the result charged, and not to the method of its
attainment".
Since the structure of FFDCA and FIFRA are similar with regard
to violations for shipping misbranded articles it is logical to conclude
that the shipment of a pesticide misbranded articles it is logical to
conclude that the shipment of a pesticide misbranded in more than
one way is but a single offense and only one penalty may be
imposed.
A similar result was reached in United States v. Lennon, 246
F.2d 24 (2d Cir. 1957). The defendant was charged with filing a
fraudulent income tax return. It was alleged in a single count that the
return understated income and falsified exemptions. In rejecting the
claim of duplicity the court held that the act of filing a fraudulent
return was a single offense, even though the return could be falsified
in an unlimited number of particulars. The court said that
understatement of income and fraudulent exemptions were only
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different methods by which a single offense may have been
effectuated.
An indictment may charge alternative modes of committing an
offense and guilt may be established by proof of only one of the
modes alleged. United States v. Malinowski, 347 F. Supp. 347,
351-352 (E.D. Pa. 1972), aff'd, 472 F.2d 850 {3rd Cir.), cert, denied,
411 U.S. 970 (1973). Under this principle a respondent may be
charged with different modes of misbranding and proof of one mode
of misbranding is sufficient to establish liability.
Applying the reasoning of the above cases, I conclude that
where there is a shipment of a single pesticide that is misbranded in
more than one way there is only one offense and only one penalty
may be imposed. The various ways in which a product is misbranded
may be considered as affecting "the gravity of the violation" [section
14(a)(3)], but in any event the penalty for a single offense may not
exceed the statutory limit.
Complainant (in its memorandum, see footnote 10) cited
Pearson & Co., published in Notices of Judgment under FIFRA, No.
1478, issue of June 1975, to support the proposition that each mode
of misbranding is a separate offense for purposes of assessing a civil
penalty against the violator. The facts and holding in the Pearson
case are consistent with the conclusion that shipment of a product
misbranded in more than one way is a single offense under FIFRA.
In Pearson respondent was charged, infer alia, with shipping
misbranded and adulterated pesticides. The product Gulf States 5 %
Rotenone was deficient in its active ingredient. This deficiency
resulted in both adulteration (because strength fell below professed
quality under which it was sold) and misbranding (because amount of
rotenone present in product was less than that claimed on label).
Since the same evidence was sufficient to establish both charges,
without proof of additional facts, a single penalty was imposed on
the authority of B/ockbt/rger v. United States, 284 U.S. 299, 304
(1932). See also Tescionav. Hunter, 151 F.2d 589, 951 (10th Cir.
1945); lanellN. United States, 420 U.S. 770,785 (1975).
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Relying on the Pearson case, complainant suggests that with
regard to the product Azalea Dust, the manner in which penalties
were imposed for the violations supports its position for the
imposition of separate penalties for each mode of misbranding.
Analysis of the Pearson case supports the conclusion that separate
penalties were not imposed for different modes of misbranding.
Separate penalties were imposed for non-registration, adulteration,
and misbranding.
The product Azalea Dust was not registered and was
adulterated and misbranded. A penalty was imposed for the non-
registration violation. It was also charged that the product was
misbranded because the product bore a registration number. Since
this misbranding charge was so closely interrelated with the non-
registration charge a separate penalty was not imposed for this mode
of misbranding.
This product was deficient in an active ingredient stated on the
label. This resulted in misbranding because the label was false and
misleading [section 2(q)(l)(A)] and also resulted in adulteration
because the strength fell below the professed standard expressed on
the label [section 2(c)(l)]. Since proof of the same facts would support
both charges a single penalty was imposed which may be attributed
to the misbranding.
The product also contained an ingredient not stated on the
label. This resulted in adulteration because a substance had been
substituted for the pesticide [section 2(c)(2)] and also resulted in
misbranding because the label was false and misleading [section
2(q)(l)(A)]. Since proof of the same facts would support both charges
a single penalty was imposed which may be attributed to the
adulteration.
The proof that was necessary to support the adulteration charge
(substitution of a substance) was different from the proof that was
necessary to support the misbranding charge (deficiency of an
ingredient). Thus, it is seen that only one penalty was imposed for
misbranding and one penalty for adulteration. The imposition of two
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separate penalties was appropriate because two separate offenses
were committed.
The conclusion reached herein is not to be confused with the
principle expressed in Blockburger v. United States, 284 U.S. 299,
304 (1932) where it was said:
The applicable rule is that, "where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one is whether
each provision requires proof of an additional fact which
the other does not.
Where different modes of misbranding are charged, different
proof may be required to establish each mode of misbranding but, as
above concluded, there is only one offense and separate statutory
provisions have not been violated. Further, as above explained,
where different modes of misbranding are alleged, proof of one
mode of misbranding is sufficient to establish the offense.
Turning now to the amount of penalties that should be imposed.
Hawk Industries, Inc. was organized in October 1973. It was the
successor of Hawk Chemical Co. that was in serious financial
difficulties.
In each of the two years (ending with fiscal year September 30,
1975) that respondent has been in business it has lost money.
Although the amount of gross sales have remained approximately the
same, in the vicinity of $450,000 annually, the selling prices per unit
have increased substantially and there has been a substantial
decrease in unit sales. When respondent began operations in 1973 it
had 14 employees. Because of decline in sales this has steadily been
reduced to the present 3 full-time employees and a part-time shipping
clerk.
There is in evidence the balance sheets of respondent for the
years ending September 30, 1974, and September 30, 1975. These
show that the company had losses of approximately $18,000 and
1467
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$43,000 in each of the years respectively. The 1975 loss was incurred
despite the addition of $20,000 of capital in that year. The accrued
loss is $62,000. The current assets of the company as of September
30, 1975, were approximately $147,000" and the current liabilities
were approximately $153,000." The stockholders investment of
$40,000 has been wiped out completely by the $62,000 losses over
the two year period. It appears that the company is, in a technical
sense, insolvent. However, under favorable conditions with good
management the company may be able to survive.
The complainant offered testimony of an accountant who
compared the balance sheets of the company for the two years. He
submitted a statement entitled "Source and Application of Funds".
This measured the fluctuation of the assets and liabilities over the
two-year period. The statement does now show the overall health of
the company and whether it improved in the second year. It appears
quite clear to me that the financial condition of the company
deteriorated in the second year.
It was the opinion of the accountant that the company could pay
the amount assessed in the complaint ($6,160) and remain in business
if payments were spread out over a period of a year.1* I do not accept
this opinion. I am of the view that penalties in excess of $1,000 would
adversely effect respondent's ability to continue in business.
The misbrandings resulted from the defacing and destroying of
the original label of the product. I consider the misbranding violation
much more serious than the defacing and destroying violation. I
assess a penalty of $100 on the former and $900 on the latter.
I have considered the entire record in the case and the
arguments of the parties and based on the Findings of Fact, and
Discussion and Conclusions herein it is proposed that the following
order be issued.
1468
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17
Final Order
Pursuant to section 14(a)(l) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended [7 U.S.C. 136 l(a)(1)]
civil penalties totaling $1,000 are hereby assessed against
repondent, Hawk Industries, Inc., for the violations which have been
established on the basis of the complaint issued on January 30,1976.
Bernard D. Levinson
Administrative Law Judge
December 21,1976
1 The Act is codified in 7 U.S.C. 136 et seq. (Supp. V, 1975). A
table of parallel citations showing Statutes at Large and United
States Code is attached hereto.
3 The proceedings were conducted pursuant to the Rules of
Practice which were promulgated for the conduct of such hearings. 39
F.R. 27658 et seq., 40 CFR, Part 168.
* This section requires that the labeling contain adequate
directions for use. The charge is that the labeled not bear adequate
directions for use. (See section 2(p) for definitions of "label" and
"labeling".) As will hereinafter appear the only labeling of the
product was the label.
* The complaint as filed proposed a penalty of $2,380 for each of
the alleged violations for a total of $9,520. On motion of
complainant, this was reduced to $1,540 for each alleged violation.
5 Rules of Practice, section 168.33(d). The respondent was
advised of this provision in the prehearing letter issued by the
undersigned.
1469
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4 The approved Utility label in addition to the warning "Keep out
of reach of children" contained the following cautions:
May be harmful if swallowed, inhaled, or absorbed
through the skin. Avoid breathing of spray mist and
provide adequate ventilation of area being treated.
Contact with skin, eyes, or clothing should also be
avoided. Wash thoroughly with soap and warm water
after handling. Avoid contamination of food, utensils,
and food preparation areas. Remove pets and cover fish
bowls before spraying. If illness occurs, get prompt
medical attention. To Physician - Atropine sulfate is
antidotal. FLAMMABLE. Do not spray into or near open
flame. Do not smoke while using. Avoid excessive wetting
of plastic, rubber and asphalt surfaces such as tiles and
floor covering.
The approved Utility label contained detailed directions for use
including general directions, directions for indoor and outdoor use,
and for use to control brown dog ticks.
The approved Utility label contained a list of ingredients -
active and inert—with the percentage of each ingredient.
9 See Blockburger v. United States, 284 U.S. 299, 304 (1932);
Tesciona v. Hunter, 151 F. 2d 589,591 {10th Cir. 1945).
At the prehearing stage, at my request, counsel for complainant
submitted a memorandum of law on this point. The memorandum
supports the proposition that separate penalties may be imposed.
Subsection 12(b) sets forth certain exemptions not here
applicable.
" FFDCA, section 301 (a), 21 U.S.C 331 (a); FIFRA, section
12(aMlME).
13 FFDCA, misbranding drug, section 502, 21 U.S.C. 352; FIFRA,
misbranded pesticide, section 2(q).
1470
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14 In addition, there is an asset of $32,000 for accumulated
depreciation.
15 In addition, there are long term liabilities of approximately
$51,000 payable in a year or more.
16 It is doubtful if an Administrative Law Judge can assess a
penalty for installment payments beyond 60 days. See Rules of
Practice, section 168.60(c).
17 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
168.40(c).]
1471
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FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT,
(FIFRA) AS AMENDED
ON OCTOBER 21, 1972, 86 STAT. 973,
PUBLIC LAW 92-516
AND NOVEMBER 28, 1975, 89 STAT. 751,
PUBLIC LAW 94-140
Parallel Citations
Statutes at Large 7 U.S.C, Statutes at Large 7 U.S.C
Section 2 Section 136 Section 15 Section 136m
3
4
5
6
7
8
9
10
11
12
13
14
136a
136b
136c
136d
136e
136f
136g
136h
1361
136j
136k
1361
16
17
18
19
20
21
22
23
24
25
26
27
136n
136o
136p
136q
136r
136s
136t
136u
136v
136w
136x
136y
1472
-------
2060. In Re: Pur-All Point Products Co., Inc., EPA Region II,
December 27,1976. (I.F. & R. No. II-144C).
This civil penalty proceeding was settled by hearing. The following is
administrative Law Judge Bernard D. Levinsons's Initial Decision.
Preliminary Statement
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 a violation of said Act. The
proceeding was initiated by complaint dated July 8, 1976, issued by
the Director, Environmental Programs Division, EPA, Region II.
The complaint alleges that on June 26, 1974 the respondent
violated section 3 of FIFRA by shipping from Carlstadt, New Jersey,
to East Meadow, New York, a pesticide that was not registred as
required by the Act. The product as shipped was designated Wood
Preservative TT-W-572 B Type 2. A penalty of $2,200 was proposed
to be assessed. The respondent, by its president, Rubin Chaleff, filed
an answer and admitted that the non-registered material was
shipped as alleged. A hearing was requested only with regard to the
appropriateness of the proposed penalty.
A hearing was held in Newark, New Jersey, On October 19,
1976. The complainant was represented by Susan Levine, Esq.,
attorney for EPA, Region II, and the respondent was represented by
Mr. Chaleff. The complainant has submitted proposed findings of fact
and conclusions and a brief in support thereof. The respondent in its
answer, in prehearing exchange, at the hearing, and in a letter
submitted after the hearing has expressed its views for reduction or
complete cancellation of the proposed penalty. The submittals of
both parties have been duly considered.
1473
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Findings of Fact
1. The respondent Pur-All Paint Products Co., Inc., is a
corporation with a place of business in Carlstadt, New Jersey.
2. The respondent manufactured the product designated
Wood Preservative TT-W-572 B Type 2 which is a pesticide as
defined in section 2(u) of FIFRA. This product was not registered as
required by provisions of FIFRA.
3. On June 26, 1974, the respondent shipped 50
containers, each containing 2 gallons, of the product in question from
Carlstadt, New Jersey, to East Meadow, New York.
4. The shipment of non-registered pesticide was in violation
of section 3 of FIFRA and the respondent is subject to the imposition
of a penalty under section 14(a) of the Act.
5. Considering the size of respondent's business, the effect
on respondent's ability to continue in business, and the gravity of the
violation, it is found that a penalty of $ 1,980 is appropriate.
Discussion and Conclusions
In May 1973 the respondent was the successful bidder on an
invitation issued by a subdivision of the State of New York to furnish
a quantity of a wood preservative. The product was to contain as the
active ingredient either pentachlorophenol, in which case it was to be
marked as Composition B. Type I was to be a concentrated product,
for dilution at point of use, and Type II was to be a product ready for
use.
The respondent manufactured the product with the active
ingredient pentachlorophenol and labeled the product Wood
Preservative TT-W-572 B Type 2, This was erroneous labeling since
the "B" designated the active ingredient which should have been
copper naphthenate. The product manufactured by respondent was
not registered and on June 26, 1974, it shipped 50 containers, each
1474
-------
containing 2 gallons, to Nassau County, Department of Recreation
and Parks, East Meadow, New York. This was a violation of section 3
of FIFRA.
The label of the product (which was the only labeling) contained
only the designation of the product as "TT-W-572 B Type 2" and the
name of the respondent. The label did not contain directions for use,
warning and caution statements, an ingredient statement and other
information required by the Act [see section 2(q)]. If the product had
been registered this information would have been required in the
labeling.
In determining the amount of penalty to be assessed, section
14(a)(3) of the Act requires that there shall be considered the
appropriateness of the penalty to the size of respondent's business,
the effect on respondent's ability to continue in business, and the
gravity of the violation. Section 168.60(b) of the Rules of Practice
provides that in evaluating the gravity of the violation there .shall also
be considered respondent's history of compliance with the Act and
any evidence of good faith or lack thereof.
In the Guidelines for Assessment of Civil Penalties, 39 F.R.
27711 et seq., July 31, 1974, there are five categories as to size of
businesses [section IC(l)(b)j. Businesses of the largest size, those
having gross sales in excess of $1 million, are in Category V. The
respondent gross sales in excess of $4.5 million. The proposed
penalty in the Guidelines for a non-registration violation for a
respondent in Category V where the violation was committed without
knowledge of the registration requirements is $2,200.
The respondent urges that a penalty of $2,200 would adversely
affect its cash flow. The effect that payment of a penalty has on cash
flow is not one of the elements to be considered in imposing a civil
penalty unless it will adversely effect respondent's ability to continue
in business. The payment of the penalty in this case will not have such
an effect.
The critical area for determining the amount of the penalty in
this case is the evaluation of the gravity of the violation.
1475
-------
The purposes of registration include the following: providing
protection to the public; assisting manufacturers in complying with
the provisions of the Act; bringing to the attention of enforcemet
officials the formula, label, and claims made with respect to
pesticides before they are offered to the public; preventing false and
misleading claims; preventing worthless articles from being marketed;
and providing a means of obtaining speedy remedial action if such
articles are marketed. A great measure of protection can be accorded
directly through the registration process which, among other
purposes, is designed to prevent injury, rather than having to resort
solely to imposition of sanctions for violations after damage or injury
has been done.9
It is obvious that when an unregistered pesticide is distributed
the protective and enforcement purposes of registration are
defeated. The shipment of an unregistered pesticide, especially one
shipped without the warning and caution statements, directions for
use, and other labeling required by the Act, may be considered to be
a serious violation.9
A witness for complainant testified in detail concerning the
serious potential harm that could result from the distribution of this
product without labeling containing ingredient and precautionary
statements, directions for use, and first aid directions.
The respondent urges that it was under the impression that a
product made according to federal specifications did not have to be
registered. I do not accept this as a valid excuse. Further, the
specifications required that the shipping containers of the product
contain markings with specific precautions regarding handling of the
product and possible hazards. The containers of the product, as
shipped, contained no such markings.
As above noted, the proposed penalty of $2,200 was assessed
in accordance with the Guidelines where the respondent, in the
particular instance, had no knowledge that registration was required.
There is no evidence which would indicate that the respondent did not
act in good faith. Further, there is no evidence to indicate that the
respondent had any prior violations of FIFRA. As a mitigating factor,
1476
-------
the witness for respondent represented that the company ceased
manufacturing the product when the violation was called to its
attention. This is not a mitigating factor, since continued
manufacturing and distribution of the unregistered product would
have resulted in further violations. There was, however, very limited
distribution of the product and it was not for general sale by
respondent. In considering all of the factors regarding this violation, I
am of the view that a reduction of 10% from the penalty proposed in
the complaint is appropriate [see Guideline section IC(2)] and a
penalty of $1,980 is hereby assessed.
I have considered the entire record in the case and the
arguments of the parties and based on the Findings of Fact, and
Discussion and Conclusions herein it is proposed that the following
order be issued.
Final Order
Pursuant to section 14(a)(l) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended, a civil penalty of
$1,980 is hereby assessed against respondent, Pur-All Paint Products
Co., Inc. for the violation which has been established on the basis of
the complaint issued on July 8, 1976.
Bernard D. Levinson
Administrative Law Judge
December 27,1976
The proceedings were conducted pursuant to the Rules of
Practice which were promulgated for the conduct of such hearings. 39
F.R. 27658 et seq., 40 CFR, Part 168.
3 See Southern Mill Creek Products, Inc., Notices of Judgment
under FIFRA, No. 1479, Issue of June 1975.
1477
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* See Amvac Chemical Corporation, Notices of Judgment under
FIFRA, No. 1499, Issue of June 1975.
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
168.40(c).]
2061. In Re: Gulf Oil Corporation, EPA Region IV, June 3,1975.
(I.F.&R.No.lV-86C.)
This civil penalty proceeding was settled by hearing. The
following is Administrative Law Judge Herbert L. Perlman's Initial
.Decision and Regional Administrator Jack E. Ravan's Final Order.
Subsequent to the Regional Administrator's issuance of his Final
Order In re Gulf Oil Corp., respondent Gulf appealed the case to the
fifth circuit court of appeals. After considering briefs and arguments
by both parties, the Fifth Circuit reversed the Regional
Administrator's Final Order. Cuff Oil Corporation v. EPA, Civil No.
75-4400 (March 18,1977).
Preliminary Statement
This is a proceeding under section 14(a) of the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C.
136 1(a), 1973 Supp.), instituted, in effect, by an amended complaint
issued August 20, 1974, by the Director, Enforcement Division,
Environmental Protection Ageny, Region IV, Atlanta, Georgia. The
amended complaint charges that Respondent, Gulf Oil Corporation,
on or about January 24, 1974, shipped the pesticide Gulf Oil
Corporation/on or about January 24, 1974, shipped the pesticide
Gulf Lite Patio Torch Fuel in interstate commerce in violation of the
Act in that such product was not registered thereunder and was
misbranded because the label borne by it did not bear an ingredient
statement as required by the Act. The amended complaint proposed a
1478
-------
penalty of $2,700 for each violation or a total civil penalty of $5,400
for the violations charged therein.
On September 12, 1974, Respondent filed an answer to the
amended complaint in which it denied that Gulf Lite Patio Torch Fuel
is a pesticide or economic poison under the act and subject to
registration thereunder or that the product shipped by Respondent
was misbranded as alleged. Subsequently, Respondent also
contested the appropriateness of the proposed penalty.
After the submission of prehearing materials pursuant to section
168.36(e) of the rules of practice (39 F.R. 27656, 27663) and a
prehearing conference held January 13, 1975, an oral hearing was
held in Atlanta, Georgia, January 14, 1975, before Herbert L.
Perlman, Chief Administrative Law Judge, Environmental Protection
Agency. At the hearing, Respondent was represented by Robert W.
Ellis, Law Department, Gulf Oil Corporation, Atlanta, Georgia, and
Complainant was represented by Bruce R. Granoff and James
Sargent, Legal Support Branch, Environmental Protection Agency,
Atlanta, Georgia. One witness testified on behalf of Complainant
and Complainant introduced 2 exhibits into evidence. Two witnesses
testified for Respondent and one exhibit was received into evidence
on behalf of Respondent. In addition, 2 separate stipulations were
entered into by the parties and were received into evidence.
Subsequently, due to the deletion of a paragraph of a stipulation, the
record was, in effect, reopened for the submission of limited written
testimony. After the hearing, the parties filed briefs.
Findings of Fact
1. Respondent, Gulf Oil Corporation, is a corporation
which, at all times material herein maintained a district office and
terminal located at Jacksonville, Florida.
2. On May 9, 1972, Respondent delivered for shipment its
product Gulf Lite Patio Torch Fuel in interstate commerce from
Atlanta, Georgia, to Overland Park, Kansas.
1479
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3. On January 19,1973, Complainant advised Respondent
in writing that Gulf Lite Patio Torch Fuel bearing the claim
"CONTAINS OIL OF CITRONELLA" implies repellency of insects,
particularly mosquitoes, and is subject to, and needs to be registered
under, the Act. Respondent was further advised that interstate
shipments of this unregistered product violated the Act.
4. Subsequently, Respondent was orally at a March 23,
1973 conference and in writing informed by Complainant that the
prominence of the statement "CONTAINS OIL OF CITRONELLA" on
the label of Gulf Lite Patio Torch Fuel without qualification or
clarification makes this product subject to the Act.
5. An application for the registration of Gulf Lite Patio
Torch Fuel was received May 25, 1973. The application listed the
amount of oil of citronella as 0.1 percent and the proposed label
stated "Aids in Chasing Mosquitoes and Similar Night Flying
Insects . . . Scented with Oil of Citronella.'1 Registration was
sought on the basis of the prior registration and efficacy data of Tiki
Torch Fuel.
6. On October 9, 1973, Respondent sent experimental
data, previously requested by Complainant, supporting its claim that
Gulf Lite Patio Torch Fuel pids in repelling mosquitoes and similar
night flying insects and a label change of "chasing" to "repelling"
and "scented with" to "contains," as requested by Complainant.
7. By letter dated December 6, 1973, Complainant denied
the revised label as not acceptable because the experimental data
required clarification, demonstrated efficacy would not satisfy
consumer expectancy and the language "similar night flying insects"
was to be deleted.
8. On or about January 24, 1974, Respondent shipped its
product Gulf Lite Patio Torch Fuel in interstate commerce from
Jacksonville, Florida, to Valdosta,. Georgia. This product was
apparently contained in one gallon cans which had on the label
thereon in large conspicuous letters on the front and back panels the
words "CONTAINS OIL OF CITRONELLA". These words were
1480
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placed on the right sjde of the front and back panels at the
approximate center of the label next to a drawing of a lighted patio
torch. The size of the lettering employed is larger than all other
lettering on the label except for that of the name of the product itself
and the color of the lettering is white on a dark blue background. The
words are also separate from any other lettering on the front and
back panels. One of the side panels contains the words "with
Citronella" immediately beneath the name of the product, in smaller
type than the name or the words "CONTAINS OIL OF CITRONELLA'1
on the front and back panels. The words "with Citronella" again
appear on the second side panel of the label, in lettering similar to the
lettering employed on the other side panel, below the name of the
product. Beneath the words "with Citronella", in part, are the words
"Pleasant Odor" in smaller lettering.
9. The Gulf Lite Patio Torch Fuel shipped in interstate
commerce on or about January 24, 1974 contained 0.1 percent oil of
citronella, was not registered under the Act and the label thereof did
not contain an ingredient statement as required by the Act.
10. During the period 1970-1972 when Respondent
surveyed and entered the torch fuel market similar products were in
commerce. One unregistered product claimed on the label that it
contained oil of citronella and made no further claims. A second
unregistered product claimed on the label that it contained oil of
citronella and that it kills pesky mosquitoes and other night flying
insects. A product registered by the United States Department of
Agriculture claimed on the label that it contained 100 percent mineral
spirits and aids in chasing mosquitoes and similar night flying insects.
Corrective action was taken by Complainant with respect to all torch
fuels making pesticidal claims.
11. By letter dated September 9, 1974, Respondent's
application for registration of Gulf Lite Patio Torch Fuel received May
25, 1973 and labeled as described in Finding of Facts 5 and 6, was
denied by Complainant.
12. The labeling of the product Gulf Lite Patio Torch Fuel
currently marketed by Respondent contains no reference to oil of
1481
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citronella. This form of label was placed on the market beginning with
the 1974 marketing season.
Conclusions
The principal issue for determination in this proceeding is
^
whether the product shipped by Respondent in interstate commerce
on or about January 24, 1974 from Jacksonville, Florida to Valdosta,
Georgia, that is, Gulf Lite Patio Torch Fuel, is an "economic poison"
as defined in the act.1 Admittedly, it was not registered under the act
and the label thereon did not contain an ingredient statement as
required by the act, as charged in the amended complaint.
The term "economic poison" is defined in the Act, in part, as
"any substance or mixture of substances intended for preventing,
destroying, repelling, or mitigating any insects ..." (7 U.S.C
135(a)} (Emphasis supplied). The regulations issued pursuant to the
Act, in section 162.2(d) thereof (40 CFR 162.2(d)), define "economic
poison" to include "all preparations intended for use as
insecticides . . . Substances which have recognized commercial
uses other than uses as economic poisons shall not be deemed to be
economic poisons unless such substances are:
(1) Specifically prepared for use as economic poisons, or
(2) Labeled, represented, or intended for use as economic
poisons, or
(3) Marketed in channels of trade where they will
presumably be purchased as economic poisons."3
In addition, the regulations issued pursuant to the Act contain
an interpretation of terms included in the definition economic poison.
Section 162.101 thereof (40 CFR 162.101) reads, in part, as follows:
(a) Definition of economic poison. Under section 2a of the
Act the term "economic poison" means any substance or
1482
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mixture of substances intended for preventing, destroying,
repelling, or mitigating any insects . . .
(b) Status of products as economic poisons.
(1) A substance or mixture of substances is or is not an
economic poison depending upon the purposes for which
it is intended. Determination of intent in the marketing or
distribution of these products is therefore of major
importance. This determination will depend upon the
facts in the particular case which tend to show the
intended use of the product. In general, if a product is
marketed in a manner that results in its being used as an
economic pison, it is considered to be the intended result.
Such intentions may be either expressed or implied. It is
assumed that the distributor is aware of the purposes for
which his oroduct will be used.
(i) A product will be considered to be an economic
poison if:
(a) The label or labeling of the product bears
claims for use as an economic poison;
(b) Claims or recommendations for use as an
economic poison are made in collateral advertising
such as publications, advertising literature which
does not accompany the product, or
advertisements by radio or television; or
(c) Claims or recommendations for use as an
economic poison are made verbally or in writing by
representatives of the manufacturer, shipper, or
distributor of the product.
(ii) When all or most of the uses of a product are
for economic poison purposes, it will be considered
to be intended for use as an economic poison
unless other intentions are clearly defined.
1483
-------
Examples of products in this category are:
pyrethrum concentrates, lead arsenate, calcium
arsenate, DDT, toxaphene, pentachlorophenol,
quaternary ammonium solutions, warfarin, pival,
2,4-D, and captan ....
(3) Economic poisons include, but are not limited to:
(ii) Products intended for use both as economic
poisons and for other purposes. (Such products are
subject to all provisons of the Act including section
2a(1) under which a product is misbranded if its
labeling bears any statement which is false or
misleading concerning any of its uses or in any
other particular.)
(4) Products not considered economic poisons include:
(i) Deodorants, bleaching agents, and cleaning
agents, which bear no claims for the control of any
pests;
(ii) Embalming fluids;
(iii) Building materials, such as lumber, fiber
boards, wallpaper paste, and paints, which have
been treated to protect the material itself against
any pest and which bear no claims for protection
of other surfaces or objects;
(iv) Fabrics which have been treated to protect the
fabric itself from insects, fungi, or any other pest,
and which bear no claims for protection of other
surfaces or objects;
(v) Fertilizers and other plant nutrients; and
(vi) Preparations intended only for experimental
use to determine their value as economic poisons,
1484
-------
or their toxicity or other properties, when the user
expects no benefit in pest control.
The product involved was apparent!/ contained in one gallon
cans which had on the label thereon in large conspicuous letters on
the front and back panels the words "CONTAINS OIL OF
CITRONELA." These words were placed on the right side of the front
and back panels at the approximate center of the label next to a
drawing of a lighted patio torch. The size of the lettering employed
appears to be larger than all other lettering on the label except for
that of the name of the product itself and the color of the lettering is
white on a dark blue background which makes it prominent. The
words are also separate from any other lettering on the front and
back panels. One of the side panels contains the words "with
Citronella" immediately beneath the name of the product, in smaller
type than the name of the words referred to herein on the front and
back panels. On the second side panel of the label in letters similar to
that described for the other side panel, the words "with Citronella"
again appear below the name of the product and immediately
underneath, in part, are the words "Pleasant Odor" in smaller
lettering.
It appears to us that Gulf Lite Patio Torch Fuel, labeled as
described above, is, indeed, an economic poison subject to regulation
under the act. We so conclude on the basis of the label contained
thereon. The size and prominence of, and the placement or
positioning on the label of, the words "CONTAINS OIL OF
CITRONELLA" and the inference to be drawn from such language
mandates this result.
Oil of citronella is recognized as an insect repellent and
insectifuge. The record indicates that this is so with respect to the
understanding of specialists, including Complainant, and the general
and historical understanding of the utilization thereof. Respondent
agrees and admits that before and during World War II citronella
was probably the best known insect repellent. Research made
necessary or prompted by that war resulted in the discovery of
probably more efficacious insect repellents. This fact does not detract
from our conclusion as we know of no evidence that the common
1485
-------
understanding of that period has been totally dissipated or undone.
The fact that some of the purchasing public had not been born at that
time, an argument advanced by Respondent, is not persuasive.
Obviously, a large portion of the purchasing or consumer public was.
It is true that Complainant did not conduct a consumer survey to
measure the understanding of the purchasing public. Perhaps that
would have been helpful. It certainly was not essential. We are here
dealing, in part, with the not so distant past. Even Respondent admits
that "it is not disputed that some people would consider repellent
properties when o/c is mentioned." Also, the common dictionary
definition of the term includes its properties as an insect repellent.9
We believe that the record supports the conclusion that oil of
citronella is recognized by the public or a large segment thereof as an
insectifuge or insect repellent.
The words "CONTAINS OIL OF CITRONELLA" were
prominently displayed for some purpose. Cf. United States v. 681
Cases, More or Less, Containing "Kitchen K/enzer,"o3 F. Supp. 286
(E.D. Mo. 1945). To us, they presented a pesticidal claim and we are
of the opinion they were intentionally meant to do so (See Part II of
these Conclusions). The consuming or buying public, whether "a not
unreasonable person," "the ignorant, the unthinking and the
credulous" or "people of ordinary understanding and intelligence"
could well believe so especially as the words and the substance were
in connection with a torch fuel presumably to be utilized outdoors
during the evening hours. Cf. United States v. 681 Cases, More or
Less, Containing "Kitchen Klenzer, " supra at 288; United States v.
Article . . . Consisting of 216 Cartoned Bottles, 409 F. 2d 734 (2d
Cir. 1969); United States*. Article of Drug, Etc., 331 F. Supp. 912 (D.
Md. 1971); United States v. Articles of Drugf Etc., 263 F. Supp. 212
(D. Neb. 1967). Reference on one side panel of the label in relatively
small lettering to "Pleasant Odor" would not negative this belief. The
much more eye catching and prominent wording on the front and
back panels of the label was not qualified and had no similar
language.4
It is well settled that the intended use of a product may be
determined from its label. United States v. Article . . . Consisting of
216 Cartoned Bottles, supra at p. 739 and cases cited therein. Gulf
1486
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Lite Patio Torch Fuel was labeled, represented, or intended for use as
an economic poison pursuant to section 2a of the Act and section
162.2(d) of the regulations issued thereunder. See also section
162.101 (b)(3) and (4) of the regulations. The Court in United States v.
681 Cases, More or Less, Containing "Kitchen Klenzer," supra at p.
288, stated that "the court is at a loss to know why the claimant
would waste printer's ink (and some of it red) unless some inference
was sought by this label over and beyond that of a pure cleaning
agent." We similarly are at a loss to know why the Respondent would
waste printer's ink unless some inference was sought by the label
involved over and beyond that of a pure torch fuel. The inference was
that the product involved also functioned as an insect repellent.
Undoubtedly, as contended by Respondent, Gulf Lite Patio
Torch Fuel was basically just that, a torch fuel. However, this fact
does not alter our conclusions. The label employed tended to indicate
to the public or a significant portion thereof that this product had
additional, added or ancillary benefits, that is, insect repellency. The
pesticidal claim contained on the label by virtue of the utilization in
prominent letters of the words "CONTAINS OIL OF CITRONELLA"
and the placement of such words on the can, as described above, was
enough to make the product an "economic poison" under the act. We
find no requirement that the sole purpose of a product be for use as
an economic poison. See sections 162.101 (b){3) and (4) of the
regulations. Cf. also United States v. Article . . . Consisting of 216
Cartoned Bottles, supra and cases cited therein. To demand that this
be its major or only function is to ignore the regulations issued under
the act and the many products registered thereunder where the
pesticidal character of the product is in addition to its major purpose,
such as, for example, paint containing an insecticide or fungicide or
ceiling tile containing a bacteriocide,6 and would unduly and without
legal basis restrict the scope of the statute. Respondent's contentions
herein run counter to the well accepted principle that remedial
legislation such as the Federal Insecticide, Fungicide, and Rodenticide
Act, as amended, is to be given a liberal construction to achieve the
Congressional purpose. See e.g., United States v. An Article of
Drug . . . Bacto-Unidisk, 394 U.S. 784 (1969); United States v.
Dotterweich, 320 U.S. 277 (1943); Sunshine Anthracite Coal
Company v. Adkinsf 310 U.S. 381 (1940); McDonaldrv. Thompson,
1487
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305 U.S. 263 (1938); Piedmont & Northern Railway Company v.
Interstate Commerce Commission, 286 U.S. 299 (1932).7
II
The foregoing conclusions were based upon an assessment of
Respondent's objective intent as evidenced by what the product held
itself out to be. Cf. United States v. 681 Cases, More or Less,
Containing "Kitchen Klenzer" supra. We are of the opinion that
Respondent's subjective intent was similar.
The one fact that almost "leaps from the page" or record is the
keen awareness and concern of Respondent's employees of the
competitive products on the market when it was to merchandise Gulf
Lite Patio Torch Fuel. We find no fault with such concern, but it must
be given much weight in attempting to determine Respondent's
intentions in connection with the product involved and its labeling.
Respondent's employees had apparently surveyed the market and it
was their intent to present a product which could compete on a par or
advantageously and certainly not at a disadvantage with existing
products. Two of the competitive products, one of which stated that it
contained oil of citronella, made additional affirmative pesticidal
claims. A third product, the label of which stated it contained oil of
citronella, was also on the market. Respondent's employees were well
aware that oil of citronella was an insectifuge and, while they were
also aware that the 0.1 percent of oil of citronella to be contained in
the product would not be efficacious as an insect repellent, we do not
believe that it was their intent to feature its presence on the label for
its scenting properties only. The composition of the label negatives
any such intent and Respondent could have easily made such fact
clear on the label if it so desired. In addition, the keen interest in
competitive products makes any such conclusion totally lacking in
credibility. In fact. Respondent attempted to register a torch fuel
product containing the same insignificant amount of oil of citronella
but with more affirmative pesticidal claims knowing that the oil of
citronella was not effective. The conduct of Respondent's employees
in response to the competitive products makes its contentions herein
that its sole purpose for utilizing oil of citronella was as a perfume is
1488
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patently lacking in belief despite references to pieces of
intracompany correspondence. Rather, we believe that it was
Respondent's subjective intent as well as its objective intent, as
determined by the label involved, to make a pesticidal claim on such
label as its competitors were then doing.
Ill
By reason of Part I and Part II of these Conclusions, separately
and collectively, it is concluded that the shipment by Respondent of
the unregistered product Gulf Lite Patio Torch Fuel in interstate
commerce on or about January 24, 1974, as charged, constitutes a
violation by Respondent of sections 3a and 4 of the Act (7 U.S.C
135a(a)(l) and 135(b)) and that such product was also misbranded in
violation of section 12(a)(l)(E) of the Act (7 U.S.C. 136j(aXD(E)) in
that the label thereon did not bear the ingredient statement required
thereby. (See section 2(q)(2)(A) of the Act [7 U.S.C. 136(q) (2)(A)]).
We turn now to the difficult question of assessing the sanction to
be imposed herein. Complainant proposes the assessment of a civil
penalty pursuant to section 14(a) of the Act (7 U.S.C. 136 l(a)) of
$2,700 for each violation charged and found herein or a total of
$5,400. The parties have stipulated and agreed that such proposed
penalty is in conformance with the Civil Penalty Assessment Schedule
of July 31, 1974 (39 F.R. 27711) and is, in fact, $100 less than the
maximum allowable base penalty in each instance.*
En considering the appropriateness of the penalty to the
"gravity of the violation" (see section 14(a)(3) of the Act), the
evaluation should be made on the basis of the gravity of harm and
the gravity of misconduct. See e.g., In re Amvac Chemical
Corporation, I.F. &R. Docket No. IX-4C; In re Beaulieu Chemical
Company, I.F. & R. Docket No. IX-IOC. We find no gravity of harm to
the public in the sense of danger to health and the environment by
reason of the violations found herein. However, we do see
misrepresentation to the public to the extent that purchasers of
Respondent's product expected an efficacious insect repellent.
1489
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Of great significance in connection with the sanction to be
imposed herein is the gravity of Respondent's misconduct.
Respondent shipped the unregistered and misbranded pesticide on
January 24, 1974 with full knowledge of the requirements of the Act
and the position of Complainant with respect to the use of the
unqualified language employed on its label. We are not presented
herein with innocent shipment of an unregistered product, but, rather,
with a knowing disregard of statutory requirements. A May 9, 1972
shipment of the same product by Respondent was the subject of a
letter of citation and a conference with Complainant.9 As stated by
counsel for Complainant, registration is at the core of the statute and
persons such as Respondent have a duty to assure that products
marketed by them meet the requirements of the Act, including
registration and proper labeling. Resppndent, in effect, marketed the
unregistered product knowingly and at its peril. Under these
circumstances, we believe that the civil penalty proposed by
Complainant is appropriate. Penalties imposed upon a bankrupt
Respondent or as the result of settlement for similar violations of the
Act are not measures to be utilized or compared in a contested
proceeding. Nor do we see any selective prosecution of Respondent,
as apparently alleged, as all known violators of the Act shipping
unregistered torch fuels containing oil of citronella with pesticidal
claims were similarly proceeded against.
All contentions of the parties presented for the record have been
considered and whether or not specifically mentioned herein, any
suggestion, requests, etc., inconsistent with this Initial Decision are
denied.
OrdeP
Pursuant to section 14(a) of the Federal Insecticide, Fungicide,
and Rodenticide Act, as amended (7 U.S.C. 136 l(a)(l), 1973 Supp.),
civil penalties of $5,400 are hereby assessed against Respondent
Gulf Oil Corporation for the violations of the Act found herein.
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
1490
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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.
Herbert L Perlman
Chief Administrative Law Judge
June 3,1975
The Federal Insecticide, Fungicide, and Rodenticide Act, as
amended, (7 U.S.C. 135 etseq.) was further amended by the Federal
Environmental Pesticide Control Act of 1972 (FEPCA), 86Stat. 973, 7
U.S.C. 136 et seq., 1973 Supp. Section 4 of FEPCA provides, in
effect, that the provisions of the statute prior to such amendment and
the regulations thereunder with respect to registration would remain
in effect for a period of time which encompasses the shipment
involved herein. Consequently, we must look to the Act prior to its
1972 amendment and the regulations issued thereunder to determine
whether Respondent violated the registration requirements of the Act.
Therefore, we must determine whether Gulf Lite Patio Torch Fuel is an
"economic poison" as distinguished from a "pesticide" although, in
reality, the 1972 amendment made no pertinent substantive changes
in the definition of "pesticide" from its predecessor term.
The term "insecticide" is defined in the Act to mean "any
substance or mixture of substances intended for preventing,
destroying, repelling or mitigating any insects which may be present
in any environment whatsoever." (7 U.S.C. 135 (c)). (Emphasis
supplied). See also section 2m of the Act for the definition of the term
"insect" (7 U.S.C. 135(m)).
See, e.g., Webster's Third New International Dictionary (1967)
which defines citronella oil, as distinguished from citronella, as an
''essential oil with lemonlike odor obtained from either of two grasses
and used esp. as an insect repellent."
1491
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It should be noted in this connection that Complainant informed
Respondent prior to the marketing of the product involved that
qualifying language accompanying the words or claim involved, that
is, "contains oil of citronella for pleasant odor only" or "contains oil
of citronella as perfume only/' would take the product out from
registration under the Act.
Section 162.101 (b)(ii) is of no assistance to Respondent and, in
fact, reenforces Complainant's contentions herein as it is clear from
such section that the "product" referred to therein relates to the
active chemical ingredient and not the final or end product.
See section 162.101 (b}(4) of the regulations and Leave to
Intervene and Denial of Petition to File Appeal in In re Chapman
Chemical Company et al., I.F. & R. Dockets No. 246 et al. (May 9,
1973).
Respondent also argues matters not in the record and
Complainant, in part, responds thereto. We have not considered
matters outside the record.
Respondent's gross sales exceeded $1,000,000 in 1973 and no
evidence has been adduced that payment of the proposed civil
penalty would affect Respondent's ability to continue in business.
Nor could such evidence be adduced. (See 39 F.R. 27711,27712).
Respondent's reference to In re Beaulieu Chemical Company,
supra, in this connection is lacking in substance as the situation here is
clearly distinguishible as the prior citation involved the same product
and is utilized herein not for the purpose of assessing a respondent's
prior history of compliance, but to establish that Respondent
knowingly violated the act.
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)).
1492
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REGIONAL ADMINISTRATOR'S FINAL ORDER
On August 20, 1974, an amended complaint for civil penalties
was issued against respondent for alleged shipment of an
unregistered product and for shipping a misbrande'd product pursuant
to the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
135a(a){1) and 136j(a)(1)(E}) [hereafter "Act"] and said charges were
sustained in an initial decision rendered by Chief Administrative Law
Judge Herbert L Periman on June 3, 1975, following a hearing.
Having entered exhaustive findings of fact and conclusions of law,
Judge Periman assessed as against respondent the total sum of Five
THousand Four Hundered Dollars ($5,400.00) as penalties for the two
violations, the sum of Two Thousand Seven Hundred Dollars
($2,700.00) being assessed for each of the two charges.
Repondent filed with Region IV its "exceptions to initial
decision" on or about June 27,1975, respondent claiming its product
was not required to be registered and further claiming that the
penalties were excessive in light of the proof on hearing before Judge
Periman.
Oral argument on respondent's petition to the Regional
Administrator was held on August 20,1975, in Atlanta, Georgia, and
the respondent and the EPA complainant filed extensive briefs.
Having reviewed the transcript of the initial hearing, the
Administrative Law Judge's initial decision, the tape recorded oral
arguments in connection with respondent's appeal to the Regional
Administrator, and the briefs, it is found that the initial decision
should be sustained.
In material part, the uncontradicted proof in this case reflects as
follows:
(1) On May 9, 1972, respondent delivered for shipment its
product Gulf Lite Patio Torch Fuel in interstate commerce from
Atlanta, Georgia, to Overland Park, Kansas.
(2) On January 19, 1972, EPA complainant advised
respondent in writing that Gulf Lite Patio Torch Fuel bearing the claim
1493
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"CONTAINS OIL OF CITRONELIA" implies repellency of insects,
particularly mosquitoes, and is subject to, and needs to be registered
under, the Act. Respondent was further advised that interstate
shipments of this unregistered product violated the Act.
(3) Subsequently, respondent was informed by EPA
complainant on March 23, 1973, that the prominence of the
statement "CONTAINS OIL OF CITRONELLA" on the label of Gulf
Lite Patio Torch Fuel without qualification or clarification makes this
product subject to the Act.
(4) An application for the registration of Gulf Lite Patio
Torch Fuel was received May 25,1973.
\
(5) By letter dated December 6, 1973, complainant denied
the revised label.
(6) On or about January 24, 1974, respondent again
shipped its product Gulf Lite Patio Torch Fuel in interstate commerce
from Jacksonville, Florida, to Valdosta, Georgia.
(7) The Gulf Lite Patio Torch Fuel shipped in interstate
commerce on or about January 24,1974, contained 0.1 percent oil of
citronella, was not registered under the Act and the label thereof did
not contain an ingredient statement as required by the Act.
With respect to respondent's first claim on appeal to the effect
that the product, Gulf Lite Patio Torch Fuel, was not required to be
registered under the Act, is totally without foundation or merit. The
uncontradicted evidence clearly reflects that the labeling of the
product clearly implies insect repellency and was therefore an
insecticide subject to the Act. It should be noted in this connection
that the record reflects respondent actually sought to register this
product on May 25,1973, that the application was denied by EPA on
December 6,1973, and that respondent did not subsequently seek a
challenge to this denial under the remedies provided to it in the Act.
Respondent, as its second contention on appeal to the Regional
Administrator, asserts that the penalties assessed were
1494
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"inappropriate". In oral argument and in its brief, respondent
explains its view that the penalties were excessive, contending that
such penalties are only appropriate where a manufacturer has
incurred a previous proved violation of the Act. Respondent's view is
erroneous.
Under the Act the level of penalty to be assessed is controlled by
the "gravity of violation" as well as the appropriateness of a penalty
to the size of the business of the person charged and the effect on
such person's ability to continue in business. 7 U.S.C. Section
1361(a)(3). "Gravity of violation" has been interpreted to mean, in
part, the gravity of the misconduct charged. In Re Amvac Chemical
Corporation, I.F.&R., Docket No. IX-4-C, pp. 11, 13-15. These
elements controlling the amount of the penalty are set forth in a "Civil
Penalty Assessment Schedule" (39 Fed. Reg. No. 148, July 31, 1974,
at p. 27713) and, under the circumstances and proof of this case the
schedule would call for an assessment of Two Thousand Eight
Hundred Dollars ($2,800.00) per violation, or total penalty of Five
Thousand Six Hundred Dollars ($5,600.00).
Sub silentio the Administrative Law Judge took notice of the
economic factors to be considered in assessing the penalty against
the respondent Gulf Oil Company, and the Regional Administrator
would conclude such economic consequences to be negligible, given
the size and the known economic resources of respondent.
The undisputed facts in this case demonstrate that respondent
put into interstate commerce a shipment of an unregistered product
and a misbranded product with clear notice and knowledge of these
violations on January 24, 1974. As noted above, gravity of violation
is in no way dependent upon entry of a previous judgment of
violation but may rest upon evidence of previous, knowing
misconduct. Under the circumstances, respondent's second shipment
of an identical product giving rise to a knowing violation could not be
considered aggravating and extreme. Accordingly, while the
Regional Administrator has it within his discretion to reduce the penal
assessment, such a course of action is not dictated by the record in
this case.
1495
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Final Order
It is ordered that The Initial Decision be upheld and sustained
and that respondent be assessed a penalty in the total sum of Five
Thousand Four Hundred Dollars ($5,400.00).
Entered this 21 st day of October, 1975.
JACK E. RAVAN
REGIONAL ADMINISTRATOR
2062. In Re: Mid-America Formulators, Inc., EPA Region IV,
August 3, 1976. (I.F.&R. No. IV-156C, I.D. Not. 110563,
110600 and 116189.)
This was a civil action charging the respondent with violating the
FederaJ 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
shipment made on May 13, 1975, from Arlington, Tennessee, to
Chicago, Illinois, and to products held for distribution or sale on
January 7 and April 2, 1975, at Mid-America Formulators, Inc.,
Arlington, Tennessee. The pesticides involved were VELSICOL
PIVACIN CONCENTRATE RODENTICIDE and VELSICOL
WARFARIN CONCENTRATE RODENTICIDE 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 $280.00.
1496
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2063. In Re: Red Wing Chemical Company, Inc., EPA Region IV,
August 3,1976. (I.F.&R. No. IV-183C, I.D. No. 120875.)
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); 135a(a)(l) and 135b. The action pertained
to a shipment made on April 17, 1975, from Chattanooga,
Tennessee, to Chickamauga, Georgia. The pesticide involved was
RED WING INSECT SPRAY NEW WITH DIAZINON, charges
included nonregistration and misbranding—labels bore false or
misleading statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $320.00.
2064. In Re: Edward Leeds, both individually and d/b/a.
Cougar Chemical, Miami, Florida, EPA Region IV, August
9,1976. (I.F.&R. No. IV-176.)
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 complaint was withdrawn, since the evidence of the company's
failure to submit an initial or annual production report was
inconclusive.
2065. In Re: Blue Magic Company, EPA Region IV, August 11,
1976. (I.F.&R. No. IV-179C, I.D. Nos. 110794, 110796 and
110797.)
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); 136j(a)(l)(A); 136(q)(l)(D) and 136(q)(l)(A). The action
pertained to products held for distribution or sale on November 12,
1976, at Blue Magic Company, Wilson, North Carolina. The
1497
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pesticides involved were EASY MONDAY BLEACH, MISS
CAROLINA BLEACH and JUST DANDY BLEACH; charges included
nonregistration and misbranding—labels bore a false and misleading
product registration number and product failed to bear an
establishment registration number.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,000.00.
2066. In Re: Progress Chemical Company, EPA Region IV,
August 20, 1976. (I.F.&R. No. IV-178C, I.D. Nos. 120773
and 120774.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136(q)(2)(A); 136(q)(2)(C)(iii) and 1 36(q)(2)(C)(i). The action pertained
to shipments made on September 24, November 10 and December 2,
1975, and January 22, 1976, from Canton, Georgia, to Gainesville,
Georgia. The pesticides involved were FORMALDEHYDE
SOLUTION and FORMALDEHYDE; charges included
nonregistration and misbranding — lack of EPA establishment
number, directions for use, ingredient statement, net content
statement and name and address of manufacturer.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,260.00.
2067. In Re: Water Services, Inc., EPA Region IV, December 20,
1976. (I.F.&R. No. IV-167C)
This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge Thomas B. Yost's Initial Decision.
1498
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Preliminary Statement
This is a proceeding under Section 14(a) of the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended [7 U.S.C.
1361 (a), 1973 Supp.], instituted by a complaint issued December 24,
1975, by the Director, Enforcement Division, Environmental
Protection Agency, Region IV, Atlanta, Georgia. The complaint
charges that respondent, Water Services, Inc., was holding for sale
the product "BAF-100" on July 30, 1975, and that said product was
a pesticide was in the meaning of 7USC136(u), and that such
pesticide was adulterated in that its strength or purity fell below the
professed standard or quality under which it was sold. The complaint
proposed a penalty of $990 for the violation charged in the
complaint. On March 30, 1976, respondent filed an answer to the
complaint in which it denied that the product BAF-100 was being held
for sale or that it was packaged, labeled and released for shipment.
After the submission of pre-hearing material pursuant to Section
168.36(e) of the Rules of Practice [39 F.R. 27656, 27663], and a
prehearing conference held on October 28, 1976, an oral hearing
was held in Knoxville, Tennessee on October 28, 1976, before
Thomas B. Yost, Administrative Law Judge, Environmental Protection
Agency. At the hearing, respondent was represented by William R.
O'Neal, Knoxville, Tennessee, and complainant was represented by
Bruce R. Granoff, Legal Support Branch, Environmental Protection
Agency, Atlanta, Georgia. Two witnesses testified on behalf of
complainant and complainant introduced four exhibits into evidence
on behalf of complainant. Four witnesses testified for respondent and
two exhibits were received into evidence on behalf of respondent. In
addition, a stipulation was entered into by the parties and was
received into evidence. After the hearing, the parties filed briefs.
Findings of Fact
1. The respondent, Water Services, Inc., is a corporation
which maintains its home office and place of business in Knoxville,
Tennessee.
1499
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2. On or about July 30, 1975, Water Services, Inc., was
inspected by EPA Consumer Safety Officers, Ben Woods and William
J. Pfister. A container which bore the label "BAF-100" which had
previously been shipped from the warehouse in Knoxville to a
customer in Virginia and then returned was sampled, along with a
sample of another item which is not an issue in this case. The form
with the label "BAF-100" also bore Registration No. 10867-5, dated
July 31, 1973. The sample taken by the EPA Consumer Safety
Officers was identified as Sample No. 110999.
3. The product BAF-100 having been analyzed by accepted
procedures was found to be deficient in chloride in that the product
was represented to contain .322 % total chlorides, when, in fact, the
test revealed the product contained only .227% total chlorides
representing a deficiency of 29 %.
4. The respondent had gross sales for 1974 in excess of
$400,000 but less than $700,000, and where the adulteration
alledged in this complaint would not result in adverse effects, the
appropriate penalty assessed was $990.
Discussion
The stipulation in this matter executed between the complainant
and the respondent disposes of most of the facts in this case
concerning such matters as when the sample was obtained, whether
the analysis was accurate, and the identificaion of the sample by
product name and EPA registration number. In addition, the
companies gross sales and the appropriateness of the amount of the
penalty, if ultimately assessed, was also stipulated between the
parties.
The only fact in dispute in this case is whether or not the product
sampled and found to be deficient was, in fact, packaged, labeled,
and released for shipment as alledged in the complaint, or whether
the product sampled was sitting in a storage area and was not, in
fact, released for shipment or distribution for sale. The testimony in
this case reveals that on the date of the inspection visit to the
1500
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respondent's premises in Knoxville, Mr. Ferris, the president of the
company, was not available and the inspectors, Mr. Ben Woods and
Mr. William J. Pfister, were directed to Mr. Owen B. Loomis. Mr.
Loomis, the record shows, had at one time been the plant
superintendent, but at the time of the inspection visit was not
occupying that position, but was the plant engineer. Mr. Loomis was
familiar with the procedures involved with EPA inspections, in as
much as he was acting as the plant superintendent on a previous
inspection visit by Mr. Pfister.
Mr. Pfister testified that he advised Mr. Loomis that he was
there to inspect algaecides and fungicides and that Mr. Loomis
directed him to a storage area on the premises which contained
numerous drums of products, only two of which had any label on
them. These two products being BAF-100 and Algaecide X-20.
Samples of both of these products were obtained and Mr. Loomis
signed a receipt for samples which acknowledgement stated that the
samples were packaged, labeled and released for shipment, or
having been shipped, were being held for distribution or sale. Since
these products had been returned to the respondent by a previous
purchaser, both Mr. Pfister and Mr. Loomis were concerned about
their status and, therefore, an additional notation was made on the
receipt for samples which stated:
"The above samples were acknowledged by Mr. Brooks
Loomis as being packaged, labeled and released for
shipment. However, before shipment of these pesticides
to consignees, the container or drums will be further
labeled with the company label with the date of
shipment, including the net weight, address of the
consignee and its EPA establishment number."
The testimony of the witnesses was that no other area of the
respondents' premises were examined for purposes of obtaining
samples and that the two samples taken and referred to in the receipt
for samples were the only two products sampled on the occasion of
this visit.
1501
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Both Mr. Woods and Mr. Pfister testified that the/ expressly
advised Mr. Loomis at the time of their visit that the only products
they were interested in sampling, or, in fact, could legally be
concerned with, were those which were actually packaged, labeled
and released for shipment. Mr. Loomis testified that he did not recall
the conversation, and that if he had been so advised by the
inspectors, the only place he could have taken them was the shipping-
dock area of the facility which contains materials actually labeled
and held for pick-up by a commercial carrier.
Mr. Ferris, the president and owner of the corporation, testified
that the product, which is the subject of this hearing, was not
packaged, labeled and released for shipment. He testified that it is
the policy, practice and procedure of his company that whenever
materials are returned from a purchaser for any reason, prior to re-
shipment or re-sale of that material, it is first sent to the laboratory for
analysis to see that it still conforms to the label requirements in terms
of strength and purity and that if it does so conform, it is normally put
in with a larger batch, and drummed and packaged for later shipment
to another customer. Mr. Ferris also testified that on occasion,
products having been returned from customers are found to have
been diluted by water or other contaminants. In the case of this
sample, which weighed substantially less than the weight indicated
on the label, company policy would require that the drum be brought
up to full weight before shipping, in as much as they do not ship
materials in less than full-drum lots since their bookkeeping and
pricing practices are based on full drums and not partially full drums.
The record also indicates that the sampled material was returned to
the respondent by the original purchaser on January 25, 1974, and
that the inspection took place on July 30, 1975, approximately one
and a half years after its return to the respondent.
Mr. Chance, the foreman of the liquid mix department of Water
Services, Inc., testified that in all cases where materials are returned
to the company by a former purchaser, a sample of the returned
product is immediately taken to the laboratory for analysis, and if it is
determined that the product is adulterated or unfit for a subsequent
resale, the material is disposed of. If the material is capable of being
returned to specifications, that is normally done by placing the
1502
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returned product in the next batch made of that product and brought
up to specifications, re-drummed, and released for shipment along
with other portions of that particular batch.
The laboratory technician who operates and supervises the
laboratory analysis for Water Services, Inc., also testified that the
practice of the company was to immediately test all returned products
to determine whether or not they are capable of being returned to
specifications and then sold or disposed of as the case may be.
None of the witnesses for the respondent were able to explain
why this particular drum of returned product was not subjected to
analysis and either disposed of or re-sold as is the normal practice. In
this case, the material stayed in the warehouse area for some one and
a half years without having been subjected to any analysis. It was
pointed out that during this period, from 1974 to 1975, there had
been some changes in company personnel and that at least two plant
superintendents had been employed and discharged during this
period of time. Mr. Chance, the liquid products foreman, testified that
during the period in question between January 1974, the time of the
product's return to the company, and July 1975, the date of the
inspection and sample taking, dozens of batches of product BAF-100
had been formulated and sold.
Therefore, this case turns on the question of fact as to whether
or not this product was packaged, labeled and released for shipment,
or through over-sight or neglect had been sitting in the warehouse
area unsampled and unanalyzed and, thus, not released for shipment
or sale according to the policies and practices of the respondent
company.
The Agency based its case upon the fact that Mr. Loomis, who
signed the receipt for samples, indicated that except for further
labeling and adjustments in the net weight and the placing of an
address of customer or consignee label on the durm, the product
sampled was packaged, labeled and released for shipment. The
respondent company on the other hand, states that the product could
in no way be considered as being ready for shipment or sale in as
much as it had not been analyzed for purity and that in any event the
1503
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drum would not be shipped in its present condition since it did not
contain a full quantity of the product, but rather was only a partially-
filled drum which the company does not ship. Although the receipt for
samples and the inspection notice indicates that at the time of the
visit, and sample taking, Mr. Loomis was given the title of plant
manager, he was not, in fact, employed by the respondent company
in that capacity at the time of the inspection, but was rather the plant
engineer whose duties involve the maintenance of roiling stock of the
company and the assembly and construction of various mechanical
pumps which the respondent corporation also markets.
The complainant, based on the record in this proceedings as of
the time the complaint was issued, had, in my opinion, made out a
prima facie case against the respondent company. However, that
prima facie case is subject to rebuttal by the introduction of evidence
on the part of the respondent, which evidence was aduced in the oral
hearing had on this matter.
The complainant based its position on the fact that Mr. Brooks
Loomis, who was acting on the behalf of the respondent corporation
on the day of inspection, signed the receipt for samples which has
printed material on it indicating that the samples obtained were
packaged, labeled and released for shipment. Due to the unusual
facts of this case, additional language was written into the receipt for
samples by inspector. Ben Woods in cooperation with Mr. Loomis
which further elaborated on the status of the samples as indicated
above. In support of its position, the Agency argues that the
respondent has estopped from denying the authority of Mr. Loomis to
sign the receipt or act on the behalf of the corporation. I am, of
course, familiar with the theory of master and servant or principal and
agent, and I do not believe the record in this case indicated that the
respondent argued that Mr. Loomis was not properly acting on the
behalf of the corporation when he showed the inspectors through the
facility or directed them to the area where the samples were
utimately taken. I do not believe, however, that the theory of
principal.and agent stands for the proposition that an agent who
makes a statement which is contrary to fact binds his principal to the
acceptance of that statement when all evidence points to a contrary
conclusion. Although Mr. Loomis, at the hearing denied that the
1504
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inspectors advised him that they only wanted to inspect pesticides or
algaecides which were labeled, packaged and released for shipment,
it is more likely that such statements were made to Mr. Loomis, but
that he did not perceive their importance nor understand the
significance of what the inspectors were telling him. It was obvious
from the testimony of Mr. Loomis at the hearing that he had no idea
of the legal significance of the phrase "held for sale." In his opinion,
that phrase meant only products that had actually been sold and
were labeled with the shipping label to the purchaser and sitting on
the loading dock of the facility. Obviously, Mr. Loomis' conception of
the phrase is far narrower than that which the law and case decisions
place on such phrase. Having observed Mr. Loomis' conduct on the
witness stand and his general demeanor, I am of the opinion that he
would have signed practically anything placed before him by two
Federal inspectors and, in the instant case, did precisely that.
This conclusion is borne out by several facts. At two places on
the receipt for samples, Mr. Loomis' title was described as that of
plant manager, and Mr. Loomis was not plant manager at the time of
the inspection, had never been plant manager, since the corporation
does not use that term in describing its chief operating officer, but,
rather, uses the term plant superintendent. Mr. Loomis raised no
question about the fact that the receipt described him as plant
manager. I'm also satisfied that it is quite likely that the inspectors
did, in fact, discuss the status of the samples with Mr. Loomis, and
that MY. Loomis and inspector Ben Woods did work out the language
which appears in hand-printed form on the receipt for samples, but
that Mr. Loomis did not understand the importance or significance of
what he was signing.
Counsel for the complainant has called the Court's attention to
several pesticide decisions issued by other administrative law judges
of the Environmental Protection Agency. One of the cases cited is
Chemola Corporation, I. F. & R. Docket No. VI-21C. That case
involved a sample of a weed killer obtained from the premises of the
respondent corporation, which upon analysis showed to be
substantially deficient in the active ingredient. The product in
question is sold in concentrated form and, prior to use, is to be diluted
approximately 4-to-l. The EPA laboratory upon receiving the sample,
1505
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diluted the material in conformance with the label instructions and
found the product substantially under strength. The corporation, as a
defense, argued that the sample actually taken was a saleman's
sample which had already been diluted 4-to-l, and when the EPA
laboratory further subjected the sample to dilution, such dilution
resulted in the 16-to-l reduction in strength, as opposed to 4-to-l.
The administrative law judge in that case found that the respondent's
contentions were not substantiated by the record for a variety of
reasons, not the least of which is that the witness for the respondent
stated that, "I fully expected to give them and did feel assured that I
had given them a sample of the material that represented what was
sold." Additionally, the witnesses for the respondent testified that he
considered it "possible and even probable that the sample could have
been a diluted sample and that it could well be the diluted variety." I
feel that the Chemo/acase is distinguishable from the case at hand, in
that in this case it is the undisputed testimony of all of the
respondent's witnesses that it is the practice of that corporation to
subject returned merchandise to additional analysis to determine if
the product is still up to reported strength and, that if it is not, to
attempt to return it to proper constituents prior to re-sale or to
dispose of the product, as the case may be. In the Chemola case, the
witness for the respondent could only hypothesize that the sample
analyzed by EPA was one that was diluted for use of salesmen and
did not, in fact, represent the product in the condition under which it is
normally sold. Further, in Chemola, there is no indication that the
batch from which the sample was taken was in any way suspect or
had any distinguishing features which would have caused the
respondent corporation to be on the notice that the product should
not be sold in the form in which it was found or that it should have
been subjected to additional treatment prior to being released for
sale to customers.
In the case of, In re: Associated Chemists, Inc., I. F.&R. Docket
No. X-17C, products obtained and sampled were found to be
substantially deficient in certain active ingredients. Again, as in the
instant case, the respondent corporation's officer signed the receipt
for samples which indicated that the sample taken by the inspectors
was packaged, labeled and released for shipment or being held for
distribution or sale. In the Associated Chemists case, the respondent's
1506
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defense was that an employee had scotch-taped a hand-written note
on top of the shipping container which indicated that the contents
were not for sale. In the Associated Chemists' case, however, there
was no evidence presented to support or substantiate the
respondents' allegation that a hand-written note was, in fact, on top
of the shipping container and that none of the EPA inspectors
observed or saw the note alledgedly on top of the shipping carton,
although they were in close proximity thereto and observed the
respondent take the sample from the case at hand, in as much as the
decision to hold the products subject to the provisions of the law and
the penalties attached, thereto, was based strictly upon a question of
evidence which the administrative law judge found did not support
respondent's contention.
In the case of Elco Manufacturing Company, I. F. &R. Docket
No. III-33C, the violation was that the products were mis-labeled. The
defense of Elco, in that case, was that the labels on the samples taken
were merely for "tagging purposes" and were not the labels placed
on deliveries when sales were made, and that the proper, registered
label is placed on all containers prior to sale and delivery. In the Elco
case, however, Mr. Katz, who was the officer in charge at the time of
the inspection, knew precisely what the purpose of the inspection was
and was knowledgable and had a complete understanding of what
the terms "held for sale" meant in that on other samples taken
contemporaneously, Mr. Katz insited on writing on the receipts as to
those samples the phrase "not for sale," but he did not make this
notation in regard to the samples which were later found to be
improperly labeled. Further the reaction of Mr. Katz to the return visit
of the inspectors indicated that he fully accepted the concept that the
violation alledged did occur. For that reason, the Elco case is not on
point with the case now under discussion.
In concluding that the sampled product in this case was not, in
fact, held for sale, several factors appear to me to be determinative.
First, there was unanimity among the respondent witnesses as to the
policy and practice of that company as it pertains to the treatment
normally accorded to products returned by customers prior to the re-
sale of such products. Secondly, the fact that as of the time of the
inspection and for a substantial period preceding the inspection,
1507
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there had been a turnover in personnel at the facility in the position of
plant superintendent. From the time the product was returned to the
company until the date of the inspection, several plant
superintendents had been employed and discharged, and no person
occupied that position at the time of the inspection which accounts
for the failure to identify this returned product and subject it to the
procedures normally accomplished by the respondent company.
Thirdly, the fact that the product sat in the staging or warehouse
portion of respondent's facility for approximately one and a half
years without having been sold during a period when large quantities
of the product in question BAF-100, was formulated, drummed and
sold by the company, indicating that if the product sampled were, in
fact, being held for sale, it sould have been sold along with the other
like products of that company in the one and a half year time period.
Although the respondent corporation is certainly guilty of
negligent and, perhaps, slip-shod behavior in regard to this sampled
product, I am of the opinion that such negligence cannot change the
factual and legal character of a product as urged by complainant.
Logic and common sense would, in my judgement, substantiate the
defense offered by the respondent that the product would not be sold
in the form in which it was sampled and analyzed by the complainant,
but rather have been brought up to strength and mixed with the next
batch of such product manufactured by the respondent and later sold
in proper chemical strength.
Conclusion
Based on the record in its entirety, I am of the opinion that the
product in question, BAF-100, was not, in fact, packaged, labeled
and released for shipment or sale in its present condition without
having first been subjected to the analysis, re-drumming and other
procedures indicated by the respondent company as constituting its
practices concerning returned products.
Since the product was not packaged, labeled and released for
shipment, its condition and chemical make-up is immaterial for
purposes of this proceeding.
1508
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Having considered the entire record, and based on the findings
of fact and discussions and conclusions, herein, it is proposed that the
following order be issued.
Final Order
Pursuant to Section 14(a) of the Federal Insecticide, Fungicide,
and Rodenticide Act, as amended [7 U.S.C 1361(a)(l)], no violation
has been established on the basis of the complaint issued on
December 24,1975. The complaint is dismissed.
Dated: December 20,1976.
Thomas B. Yost
Administrative Law Judge
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).]
2068. In Re: National Scientific Co., Inc., EPA Region V, July 7,
1976. (I.F.&R. No. V-72C, I. D. No. 94230.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a)(D; 135b; 136j(a)(1}(E); 136(q)(2)(A) and 136{q)(l)(G). The
action pertained to a shipment made on January 31, 1974, from
Cleveland, Ohio, to Deerfield, Illinois. The pesticide involved was
ALGAE INHIBITOR; charges included nonregistration and
misbranding—label of the product failed to bear a proper ingredient
statement and an adequate warning or caution statement.
1509
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The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $500.00.
2069. In Re: Applegate's Drug, Store, Inc., EPA Region VI, July
6,1976. (I.F.&R. No. VI-61C, I.D. No. 108482.)
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 1, 1975, from Bentonville, Arkansas, to Westville, Oklahoma.
The pesticide involved was APPLEGATE's NO-SPROUT; the charge
was nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $420.00.
2070. In Re: March Chemical Company, Inc., EPA Region VI,
July 7,1976. (I.F.&R. No. VI-53C, I.D. No. 108370.)
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 May 19, 1976, at March
Chemical Company, Inc., Denham Springs, Louisiana. The pesticide
involved was MARCIDE 105; 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 $450.00.
1510
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2071. In Re: Auto-Chlor System of Louisiana and Southern
Mississippi, Inc., EPA Region VI, July 30, 1976. (I.F.&R.
No. VI-56C, I.D. No. 107185.)
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 March 12, 1975, at Auto-
Chlor System of Louisiana and Southern Mississippi, Bossier City,
Louisiana. The pesticide involved was AUTO-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 $750.00.
2072. In Re: Swift Agricultural Chemicals Corporation, EPA
Region VI, July 30, 1976. (I.F.&R. No. VI-72C, I.D. No.
114466.)
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)(l)(A); 136(q)(l){G); 136(q)(l)(F} and
136(q)(2)(C)(i). The action pertained to a shipment made on August
13, 1975, from Houston, Texas, to Maryland Heights, Missouri. The
pesticide involved was PAR EX CUSTOM FORMULATED
FERTILIZER; 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 warning or caution statement and lack of name and
address of manufacturer.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $6,880.00.
1511
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2073. 1n Re: Riverside Chemical Company, EPA Region VI,
August 5, 1976. (I.F.&R. No. VI-67C, I.D. Nos. 106867 and
108144.)
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
products held for distribution or sale on August 13,*1974, and August
13, 1975, at Riverside Chemical Co., Pine Bluff, Arkansas. The
pesticides involved were RIVERSIDE TOXAPHENE 6 and
RIVERSIDE ENDRIN 1.6; charges included adulteration and
misbranding—product was contaminated with an additional active
ingredient not named on the label.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,528.00.
2074. In Re: Riverside Chemical Company, EPA Region VI,
August 5,1976. (I.F.&R. No. V1-70C, I.D. No. 114916.)
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 sale on August 20, 1974, at Riverside
Chemical Company, Blytheville, Arkansas. The pesticide involved was
RIVERSIDE RAIDER 33; charges included adulteration and
misbranding—product was contaminated with an additional active
ingredient not named on the label.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $ 1,764.00.
1512
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2075. U.S. v. James D. Rice, U.S. District Court, Western District
of Texas, July 29,1976. (I.F.&R. No. VI-IP.)
This was a criminal action prepared by EPA Region VI in which the
defendant was charged in a one count information with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(2)(G). The pesticide involved was PARATHION 2% DUST,
EPA REG. NO. 1258-106. The defendant was charged with the
misuse of a registered pesticide—failure to insure that worker took
adequate safeguards as directed on the label.
The defendant entered a plea of no contest.
A fine of $250.00 was levied.
2076. In Re: Sani-Kem Corporation, EPA Region VII, August 18,
1976. (I.F.&R. No. VII-202C, I.D. No. 148105.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(1)(A) and 136a(a). The action pertained to a shipment made
on October. 17, 1975, from Kansas City, Missouri, to Springfield,
Missouri. The pesticide involved was BANISH INSECTICIDE; the
charge was nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $3,400.00.
2077. In Re: DeMert & Dougherty, Inc., EPA Region VII, August
23,1976. (I.F.&R. No. VII-201C, I.D. No. 113082.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E) and 136(q)(l)(G). The action pertained to a product held
for distribution or sale on March 9, 1976, at DeMert and Dougherty,
Inc., St. Louis, Missouri. The pesticide involved was PENTA WOOD
1513
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PRESERVATIVE CONCENTRATE; the charge was misbranding—
label lacked adequate precautionary statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,960.00.
2078. In Re: Bartels and Shores Chemical Co., EPA Region VII,
August 31, 1976. (I.F.&R. No. VII-205C, I.D. No. 148215.)
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)(l) and 136{q}(l)(A). The action pertained to
products held for distribution or sale on October 21, 1975, at Bartels
and Shores Chemical Company, Kansas City, Missouri. The pesticide
involved was PIONEER BRAND DAIRY AND STOCK SPRAY;
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 $50.00.
2079. In Re: Tecumseh Animal Clinic, EPA Region VII, August
31,1976. (I.F.&R. No. VII-198C, I.D. No. 142154.)
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 April 28, 1976, at Tecumseh Animal Clinic,
Tecumseh, Nebraska. The pesticide involved was CATTLE FLIES
AND LICE; the charge was nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $300.00.
1514
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2080. In Re: Madison Bionics, Division of Chemtrust Industries
Corporation, EPA Region IX, March 4, 1976. (I.F.&R. No.
IX-99C, I.D. Nos. 111138,111139 and 111137.)
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); 136j(a)(l)(E); 136(q)(l)(G); 136(q)(l)(F) and
136(q)(2)(C)(iii). The action pertained to products held for distribution
or sale on November 11, 1974, at Madison Bionics, Gardena,
California. The pesticides involved were LIMINATE ALGAECIDE
AND WATER CONDITIONER, PERMACIDE RESIDUAL
INSECTICIDE and CHEMPLEX DISINFECTANT DETERGENT
DEODORANT; charges included failure to file an annual pesticides
report and misbranding—lack of caution or warning statement,
directions for use and net content statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,250.00.
2081. In Re: Cutting Division of Harvest Industries, Inc., EPA
Region IX, March 18,1975. (I.F.&R. No. IX-78C.)
This civil penalty proceeding was settled by hearing. The following is
Administrative Law Judge William J. Sweeney's Initial Decision.
Initial Decision
By complaint filed on April 30, 1975, the United States
Environmental Protection Agency, Region IX, alleged that the
respondent had violated Section 12(a)(l)(A) and 12(a)(1)(E) of the
Federal Insecticide, Fungicide, and Rodenticide Act as specified in
such complaint. The respondent requested a hearing. Judge Bernard
D. Levinson was designated to preside. At his direction the parties
submitted written statements concerning the alleged violations.
Subsequently, due to the unavailability of Judge Levinson, the
undersigned was designated to preside. The hearing requested by
respondent was scheduled to commence on March 24, 1976 but was
1515
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canceled upon receipt of a letter from respondent, dated March 1,
1976, stating a willingness to submit the proceeding for decision
based on the written exchanges between the parties; it was noted
that the facts are not in dispute.
The violations specified in the complaint are that: on or about
May 2, 1974 the respondent distributed a pesticide, Mapco Neo
Sheep Dip, by causing it to be shipped from Sacramento, California,
to Reno, Nevada; the pesticide was not registered under the Act; the
pesticide was misbranded in that the label did not bear on the front
panel or the part of the label displayed under customary conditions of
purchase the warning or caution statement "Keep out of reach of
children" in a type size which was large enough, nor a signal word
such as "Caution"; and the pesticide was misbranded in that the
precautionary labeling on the front panel was not prominently placed
thereon with such conspicuousness as to render it likely to be read
under customary conditions of purchase. The penalty proposed for
the violations is $5,200, consisting of $3,200 for the failure to
register the pesticide and $2,000 for the first labeling violation
specified above. These amounts are those specified for the respective
violations under the Guidelines for the Assessment of Civil Penalties
(39 PR 2711, July 31, 1974), for violators with annual gross sales as
large as those of the respondent.
As indicated, the respondent does not dispute nor contest the
occurrence of the violations alleged in the complaint. The amount of
the penalty proposed is regarded as too severe and respondent's
submission of facts is offered as a basis for mitigating such penalty.
Evidence submitted by complainant. - In view of the admission
of violations by the respondent it is not necessary to recite in detail
the data submitted by complainant. It is clearly shown that the
pesticide was toxic and unregistered. With respect to the labeling
violation for which a penalty is proposed, it appears that the required
words "Keep out of reach of children" was type size 8 point rather
than 10 point as specified in the regulations, and that no signal
warning word, such as danger or caution, appeared on the same label
front panel. Qn a side label panel are the words Caution and
1516
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Warning, each followed by instructions, and a skull and crossbones
followed by the word Poison in large size capital letters.
It is contended by complainant that the penalty proposed,
particularly that portion thereof proposed for the failure to register
the pesticide, is warranted in view of respondent's history and the
possible damage which misuse of the sheep dip could cause. The
record shows that in 1972 the President of Cutting Division was the
Vice President and General Manager of Harvest Branch Division of
Harvest Industries, Inc. The latter division manufactures products
subject to registration under the governing statute. In 1972 the
Harvest Branch Division was charged with having made an interstate
shipment of an unregistered product, in violation of the Act. The Vice
President — General Manager replied to this charge. Also in 1972 two
other failures to register products were charged and replies were
made by the Assistant General Manager of Harvest Brand Division.
As to possible damage due to product misuse, tests made by
complainant established that the subject product is a severe ocular
and dermal irritant; such tests were made subsequent "to filing the
complaint herein.
Facts and argument submitted by respondent. — It is
respondent's ultimate contention that the facts and circumstances
surrounding the admitted violations warrant a substantial mitigation
of the proposed penalty. There is, however, no question as to
respondent's ability to pay the penalty proposed and remain in
business, nor that its annual gross sales exceed $1-million.
Mapco Neo Sheep Dip has been produced and sold by the
manufacturer since 1922. The manufacturer knows of no instance of
harm resulting from use of this product, and has never had a claim
filed against it due to use of the product. This sheep dip has been
registered in California and, at least to the time of the violations
under consideration, could be and was lawfully sold and distributed
within California.
Respondent received notice (in some manner which is not
specified of record) during September 1974 that the interstate
distribution of Mapco Neo Sheep Dip in May 1974 was a violation of
1517
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the Act; the amount distributed was six gallons valued at $17.82.
Sales personnel were immediately sent to all of respondent's
customers in Nevada and they recovered all of the subject pesticide
in stock whether or not it had been sold by respondent. As stated
earlier, the complaint was filed on April 30,1975.
In regard to the labeling violation for which a penalty is
proposed the respondent admits the deficiency but notes that the
label did publish cautionary words, although not the prescribed
words, nor the correct type size and location on the label.
Discussion. - The sole matter for decision is the appropriate
penalty to be assessed. In evaluating the penalty the only criterion
applicable to finding an amount less than proposed is the gravity of
the violation. The amount proposed is not inappropriate to the size of
respondent's business nor to the effect on respondent's ability to
continue in business. Section 168.45 of the governing rules and
regulations provides that in determining the appropriate penalty to
be assessed the Administrative Law Judge may consult and rely upon
the Guidelines for Assessment of Civil Penalties. Section IC(l)(a) of
the guidelines provides as follows:
Gravity of violation. One determinant of the amount of a
proposed civil penalty is the gravity of the violation. The gravity of
any violation is a function of (1) the potential that the act committed
has to injure man or the environment; (2) the severity of such potential
injury; (3) the scale and type of use anticipated; (4) the identity of the
persons exposed to a risk of injury; (5) the extent to which the
applicable provisions of the Act were in fact violated; (6) the
particular person's history of compliance and actual knowledge of the
Act; and (7) evidence of good faith in the instant circumstance.
The elements quoted above will be discussed in order of
presentation. (1) The failure to register the pesticide resulted in the
interstate distribution of a toxic product, with potential severe skin or
eye irritation to the handler, and which might have been refused
registration under the Act. The fact that the California manufacturer
has never had a claim made against it does not indicate a lack of
potential for injury to man. A negligent user of the product would
1518
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have no grounds for such a claim. No possible injury to the
environment is indicated from the facts of record. The labeling
violation presented no potential for injury to man. Caution and
warning notices were on the label in addition to the attention
attracting skull and crossbones, and the capitalized word Poison. (2)
It is not possible on this record to find that the product sold by
respondent would have a greater or less potential for severe injury
than some other product used for the same purposes which has been
qualified for registration under the Act. The labeling violation could
not have increased the severity of any potential injury. (3) The type of
use of Mapco Neo Sheep Dip sent to Nevada was probably for
vermin control in raising sheep. For such purpose, injury to man is not
indicated in the absence of gross negligence. (4) The identity of
persons exposed to risk or injury from the subject product if used in
Nevada would most likely be sheep herders or handlers who normally
would be experienced in using the product carefully so as to prevent
personal or animal injuries. (5) The extent to which the Act was in fact
violated was complete with respect to the failure to register the
product. The record shows that respondent was familiar with the
statute requiring registration. The failure is not indicated to be a
flouting of the law, however. Rather, it appears that the respondent
was complacent in the matter because it was not the manufacturer of
the product. The labeling violation was technical in nature. In fact the
skull and crossbones, and the large printed Poison, tends to attract
attention more forcefully than a signal word on the front panel of the
label. (6) As stated earlier, respondent knew of the Act. There is no
history of noncompliance with the Act by the Cutting Division.
However, respondent's Harvest Brand Division had not complied with
the Act in three instances shown of record. (7) The respondent showed
good faith in the instant circumstances not only by discontinuing
interstate sales of the pesticide but by recovering stocks of the
pesticide from Nevada dealers no matter whether such pesticide had
been sold by respondent or by a California competitor. The violations
resulted from negligence rather than a deliberate act of omission.
Findings and conclusions. — The respondent violated the Act as
alleged in the complaint by distributing in interstate commerce a
pesticide subject to the Act which was unregistered and improperly
labeled. The failure to register the pesticide is a grave violation.
1519
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Other facts of record, as detailed hereinbefore under the heading
discussion, are of a mitigating nature and warrant a reduction in the
maximum penalty of $3,200 proposed for such violation. It is found
that a penalty of $1,600 is adequate, fair and reasonable in the
circumstances. The labeling violation is of a technical nature, and
indeed the label used might be considered more forceful as a warning
than one meeting statutory prescription. A nominal penalty only is
warranted. It is found that the proposed penalty of $2,000 should be
reduced to $100.
Based on the foregoing findings and conclusions the following
order is entered.
Order
1. Pursuant to Section 14(a) of the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended [86 Stat. 973; 7 U.S.C.
13ol (a)], a civil penalty of $1,700.00 is hereby assessed against
Cutting Division of Harvest Industries, 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,
Region IX, a cashier's check or certified check payable to the United
States of America in such amount.
Dated: March 18,1976.
William J. Sweeney
Administrative Law Judge
1520
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2082. In Re: Swift Chemial Company, EPA Region IX, April 23,
1976. (I.R.&R. No. 112C, I.D. Nos. 92776, 111607, 113623,
113621,113620 and 111606.)
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(c)(2); 136(q)(l)(G). The action
pertained to products held for distribution or sale between November
2, 1973, and February 13, 1975, at Swift Chemical Company, Los
Angeles, California. The pesticides involved were VIGARO ROSE
SPRAY, VIGARO LIQUID DIAZINON and K-MART SNAIL AND
SLUG KILLER MEAL; charges included adulteration and
misbranding—product contaminated with an additional active
ingredient not listed on the label and lack of warning or caution
statement on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $ 11,500.00.
2083. In Re: Consan Pacific, Inc., EPA Region IX, April 28,1976.
(I.F.&R. No. IX-69C, I.D. Nos. 113807, 113808 and
113809.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(G); 136(q)(l)(E) and 136(q)(l)(F). The action
pertained to a product held for distribution or sale on or about May 8,
1974, at Consan Pacific, Inc., Whittier, California. The pesticide
involved was PHYSAN 20; the charge was misbranding—lack of
adequate warning or caution statement and adequate directions for
use.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $450.00.
1521
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2084. In Re: Consan Paicifc, Inc., EPA Region IX, April 28,1976.
(I.F.&R. No. IX-87C, I.D. No. 111173.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C
136j(a)(l)(e); 136(q)(l)(G); 136(q)(l)(E) and 136(q)(l)(F). The action
pertained to a product held for distribution or sale on or about
December 12,1974, at Consan Pacific, the., Whittier, California. The
pesticide involved was PHYSAN 20; the charge was misbranding—
lack of adequate warning or caution statement and lack of adequate
directions for use.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,100.00.
2085. In Re: Zep Manufacturing Company, EPA Region IX,
May 3,1976. (I.F.&R. No. IX-122C, I.D. No. 111164.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(aKl)(E); 136(q)(l)(A); 136(q)(2)(Q(i) and 136(q)(2){c)(iii). The
action pertained to a product held for distribution or sale on or about
November 25, 1974, at Zep Manufacturing Company, Santa Clara,
California. The pesticide involved was FORMULA 165; the charge
was misbranding—lack of net content statement, lack of name and
address of producer and labels bore a false or misleading statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $ 1,440.00.
2086. In Re: Chem-Tab Company, EPA Region IX, May 7,1976.
(I.F.&R. No. IX-126C, I.D. No. 125070.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a(a){l); 136(a){l)(E); 135b; 136(q)(2)(A) and 136(q)(l)(A). The
action pertained to a shipment made on or about July 31, 1975, from
1522
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Long Beach, California, to Warren, Michigan. The pesticide involved
was MR. O'S SUPERSANITIZING TABLETS; charges included
nonregistration and misbranding—lack of ingredient statement and
labels bore false or misleading statements.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $200.00.
2087. In Re: Bower Industries, Inc., Perma-Guard Division, EPA
Region IX, May 12, 1976. (I.F.&R. No. IX-101C, I.D. Not.
112564,112565,112566 and 112567.)
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(q)(l)(E). The action
pertained to a shipment made between June 2, 1973, and June 4,
1974, from Phoenix, Arizona, to DeSoto, Kansas. The pesticides
involved were PERMA-GUARD HOUSEHOLD INSECTICIDE D-20,
PERMA-GUARD GRAIN OR SEED STORAGE INSECTICIDE D-10,
PERMA-GUARD GARDEN AND PLANT INSECTICIDE D-21 and
PERMA-GUARD PET INSECTICIDE D-32, charges included claims
made on labels.differed in substance from those made in connection
with its registration and misbranding—lack of adequate warning or
caution statement on labels.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $2,400.00.
2088. In Re: E. W. Smith Chemical Company, EPA Region IX,
May 19,1976. (I.F.&R. No. IX-123C, I.D. No. 111336.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E); 136(q)(l)(G) and 136(q)(l)(F). The action pertained to a
product held for distribution or sale on October 7, 1975, at E. W.
Smith Chemical Company, City of Industry, California. The pesticide
1523
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involved was EMS EMSTROL; the charge was misbranding—lack of
warning or caution statement and lack of adequate directions for use.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $400.00.
2089. In Re: Thompson-Hayward Chemical Co., EPA Region IX,
June 6,1976. (I.F.&R. No. IX-127C, I.D. No. 111282.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(l)(E) and 136(q)(1)(F). The action pertained to a product held
for distribution or sale on August 21, 1975, at Thompson-Hayward
Chemical Co., Fresno, California. The pesticide involved was SUPER
MERGE 3; the charge was misbranding—lack of adequate directions
for use.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,890.00.
2090. In Re: International Paint Company, EPA Region IX, June
11,1976. (I.F.&R. No. IX-132C, I.D. No. 111615.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j[a)(1)(E) and 136(q)(l)(F). The action pertained to a product held
for distribution or sale on July 1, 1975, at International Paint
Company, South San Francisco, California. The pesticide invovled
was INTER-TOX 885 WOOD PRESERVATIVE; the charge was
misbranding—lack of directions for use.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,000.00.
1524
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2091. In Re: Auto Chlor Systems of Phoenix, EPA Region IX,
June 14,1976. (I.F.&R. No. IX-125C, I.D. No. 111727.)
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 March 12, 1975, at Auto Chlor
Systems of Phoenix, Phoenix, Arizona. The pesticide involved was
AUTO 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 $270.00.
2092. In Re: Jac Son Company, EPA Region IX, June 15, 1976.
(I.F.&R. No. IX-128C, I.D. No. 111767.)
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)(l)(D). The action
pertained to a product held for distribution or sale on October 2,
1975, at Jac Son Company, Burbank, California. The pesticide
involved was BENZ-ALL GERMICIDAL CONCENTRATE; the
charge was misbranding—lack of warning or caution statement, lack
of establishment registration number and labels bore a false or
misleading statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $870.00.
2093. In Re: Wasco Products, Inc., EPA Region IX, June 15,
1976. (I.F.&R. No. IX-129C, I.D. Nos. 125200 and 125164.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
135a{a)(l); 135b; 136j(a)(l}(E); 136(q)(l)(A) and 136{c)(l). The action
1525
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pertained to shipments made on August 26 and September 25,1975,
from Anaheim, California, to Winona and Minneapolis, Minnesota.
The pesticide involved was JIFFY FORMULA 100 WATER BED
CONDITIONER; 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 $1,518.00.
2094. In Re: Edfred Chemical Company, EPA Region IX, June
21,1976. (I.F.&R. No. IX-136C, I.D. No. 108227.)
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); 136a; 136j(a)(2)(l) and 136e. The action pertained to a
shipment made on or about October 31, 1975, from San Jose,
California, to Houston, Texas. The pesticide involved was EDFRED
SHOWER STALL AND TILE CLEANER; charges included
nonregistration of product and producing establishment.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $330.00.
2095. In Re: Engler Chemical Company, EPA Region IX, July 20,
1976. (I.F.&R. No. IX-140C, I.D. No. 111649.)
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. The action pertained to a product held for
distribution or sale on March 3, 1976, at Engler Chemical Company,
Los Angeles, California. The pesticide involved was G7 CLEANER
WAX REMOVER; the charge was nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $320.00.
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2096. In Re: Ling Fuong Industries, EPA Region IX, July 21,
1976. (I.F.&R. No. IX-121C, I.D. Nos. 111244, 111245,
111247,111248 and 111249.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(aXD(E); 136(c)(l); 136(q)(l)(A); 136(q)(l)(F); 136(q)(l)(G);
136{q}(2)(C)(i) and 136{q)(2)(C)(iv). The action pertained to shipments
made between July 12, 1974, and March 31, 1975, from Oakland,
California, to Los Angeles, California. The pesticides involved were
ANGEL CITY LAWN WEED KILLER, ANGEL CITY ROSE DUST,
ANGEL CITY 10% CHLORDANE DUST, ANGEL CITY ROSE
SPRAY and ANGEL CITY GARDEN SPRAY; charges included
adulteration and misbranding—strength or purity fell below the
professed standard of quality as expressed on its labeling, lack of
registration number, lack of warning or caution statement, lack of
directions for use, bore a false registration number and lack of name
and address of producer.
By Accelerated Decision dated July 23, 1976, Administrative Law
Judge William J. Sweeney dismissed, without prejudice, the civil
complaint issued by Region IX.
2097. In Re: Central Garden Supply, EPA Region IX, July 22,
1976. (I.F.&R. No. IX-138C, I.D. No. 111519.)
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 January 14, 1975, from South San Francisco, California, to
Reno, Nevada. The pesticide involved was COOKE PRESSURIZED
SPIDER-KILL; the charge was nonregistration.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $1,680.00.
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2098. In Re: Do It Yourself Insecticide Company, EPA Region
IX, July 26,1976. (I.F.&R. No. IX-137C, I.D. No. 111901.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(lXA); -136a; 136j(a)(1)(E); 136(q)(l)(A); 136(q)(lXG) and
136(q)(l )(D). The action pertained to a product held for distribution or
sale on February 13, 1976, at Do It Yourself Insecticide Company,
Compton, California. The pesticide involved was DO IT YOURSELF
INSECTICIDE; charges included nonregistration and misbranding—
lack of warning or caution statement, lack of producing establishment
number and labels fore a false or misleading statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $522.00.
2099. In Re: Pioneer Chemical Company, EPA Region IX,
August 4,1976. (I.F.&R. No. IX-141C, I.D. No. 111641.)
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
136j(a)(lXE); 136{q)(lXG); 136(q)(lXF) and 136WXA). The action
pertained to a product held for distribution or sale on March 2,1976,
at Pioneer Chemical Company, Los Angeles, California. The pesticide
involved was PIO RINSE 75; the charge was misbranding—lack of
warning or caution statement, lack of directions for use and labels
bore a false or misleading statement.
The respondent signed a Consent Agreement. The Final Order
assessed a civil penalty of $630.00.
2100. U.S. V. 999 units, more or less, of a product labeled in
part "Mini-Silverator Water Purifiers,** an unknown
quantity of a pesticide labeled in part, "Formula I
Silverbooster," and an unknown quantity of a pesticide
labeled in part, "Formula II Silverbooster'*. U.S. District
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Court, Northern District of California, May 7, 1976.
(I.F.&R. No. IX-IS, I.D. No. 111309.)
This was a seizure action charging the product with being in violation
of the the Federal Insecticide, Fungicide, and Rodenticide Act, 7
U.S.C. 136a(a); 136j(a)(2)(l) and 136k(a). The action pertained to a
product held for distribution or sale on August 11,1975, at American
Water Purification, Inc., Pleasant Hill, California. Charges included
nonregistration, misbranding and violation of a Stop Sale, Use or
Removal Order.
The Judgment Decree ordered a release of the property subject to re-
seizure if property not properly relabeled within 72 hours from time of
repossession by Claimant.
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Index to Notices of Judgment 2051-2100
NJ. No.
Applegate's Drug Store, Inc. (Civil) 2069
Auto-Chlor System of Louisiana and
Southern Mississippi, Inc. (Civil) 2071
Auto Chlor Systems of Phoenix (Civil) 2091
Bartels and Shores Chemical
Co. (Civil) 2078
Blue Magic Company (Civil) 2065
Bonide Chemical Company (Civil) 2055
Bower Industries, Inc. (Civil) 2087
Central Garden Supply (Civil) 2097
Chem-Tab Company (Civil) 2086
Conson Pacific, Inc. (Civil) 2083
Conson Pacific, Inc. (Civil) 2084
Cutting Division of Harvest
Industries, Inc. (Civil Hearing) 2081
Decorator Specialties Company,
Inc. (Civil) . 2051
DeMert & Dougherty, Inc. (Civil) 2077
Do It Yourself Insecticide
Company (Civil) 2098
E. W. Smith Chemical Company (Civil) 2088
Edfred Chemical Company (Civil) 2094
Edward Leeds, both individually
and d/b/a, Cougar Chemical (Civil) 2064
Engler Chemical Company (Civil) 2095
Formula I Silverbooster (Seizure) 2100
Formula II Silverbooster (Seizure) 2100
Gulf Oil Corporation (Civil Hearing) 2061
Hawk Industries, Inc. (Civil Hearing) 2059
International Paint Company (Civil) 2090
Jac Son Company (Civil) 2092
James D. Rice (Criminal) 2075
Jet-Aer Corp. (Civil) 2057
ting Fuang Industries (Civil) 2096
Madison Bionics, Division of Chemtrust
Industries Corporation (Civil) 2080
March Chemical Company, Inc. (Civil) 2070
1530
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Mid-America Formulators, Inc. (Civil) 2062
Mini-Silverator Water Purifiers
(Seizure) 2100
National Scientific Co., Inc. (Civil) 2068
Pioneer Chemical Company (Civil) 2099
Progress Chemical Company (Civil) 2066
Pur-All Paint Products Co., Inc.
(Civil Hearing) 2060
Red Wing Chemical Company, Inc.
(Civil) 2063
Riverside Chemical Company (Civil) 2073
Riverside Chemical Company (Civil) 2074
Sani-Kem Corporation (Civil) 2076
Swift Agricultural Chemicals
Corporation (Civil) 2072
Swift Chemical Company (Civil) 2082
Tecumseh Animal Clinic (Civil) 2079
Thompson-Hayward Chemical Co. (Civil) 2089
Troy Chemical Company (Civil) 2052
Troy Chemical Company (Civil) 2053
Troy Chemical Company (Civil) 2054
Vineland Laboratories, Inc. (Civil) 2058
Wasco Products, Inc. (Civil) 2093
Water Services, Inc. (Civil Hearing) 2067
Xterminator Products Corp. (Civil) 2056
Zep Manufacturing Company (Civil) 2085
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