Nalco Company (Board decision, January 29, 2013)
In re Nalco Company (EAB FIFRA Appeal No. 12-01C): $225,000 civil penalty approved
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Plain-English summary
Nalco Company was the respondent in a Federal Insecticide, Fungicide, and Rodenticide Act matter involving pesticide products distributed to pulp and paper mills. The Consent Agreement states that EPA alleged Nalco distributed three products that were not registered as pesticides under FIFRA. Nalco neither admitted nor denied the allegations and agreed to resolve the matter through the Consent Agreement. The Board ratified the agreement, ordered immediate compliance with its terms, and approved a $225,000 civil penalty. The released order does not describe any additional remedy beyond the agreement and penalty.
Decision snapshot
- Cited authorities: 40 C.F.R. §§ 22.18 and 152.15; 7 U.S.C. §§ 136, 136f, 136g, 136j, 136l, 136mm, and 1361; 31 U.S.C. § 3717
- Outcome: The Consent Agreement was ratified and a $225,000 civil penalty was approved.
- Key point: The EAB made a negotiated FIFRA penalty settlement effective through a Final Order.
Full text (EPA EAB public release)
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BEFORE THE ENVIRONMENTAL APPEALS B ~ JAN 292m3
UNITED STATES ENVIRONMENTAL PROTECTIO G[NCY
WASHINGTON, D.C.
CLERK ENVIRONME~PP1ALS BOARD .
INITIALS ~
In re: )
)
Nalco Company )
) Docket No. FIFRA - HQ-2013-5000
)
Respondent )
)
----------)
FINAL ORDER
Pursuant to 40 C.F .R. § 22.l8(b) & (c) of EPA's Consolidated Rules of Practice, the
attached Consent Agreement resolving this matter is incorporated by reference into this Final Order and is hereby ratified.
The Respondent is ORDERED to comply with all terms of the Consent Agreement,
effective immediately.
So ordered.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ENVIRONMENTAL BOARD
WASHINGTON, D.C.
)
IN THE MATTER OF: )
) Docket No. FIFRA~HQ~2013~5000
Nalco Company )
)
Respondent. )
--------------------------)
CONSENT AGREEMENT
Complainant, and Company (HNalco") to this action consent to the Consent Final Order ("CAFO") before taking testimony and without adjudication of any or fact herein.
I. NATURE OF ACTION
1. This is a commenced and "'v••"'..""......'....
Federal Rodenticide
amended, 7 § 1361(a), Consolidated
Administrative Assessment of Civil Penalties and the RevocationlTermination or
Suspension Permits ("Consolidated Rules") as at 40 C.F.R. Part
action civil penalties pursuant to Section 14(a)
settlement
before any ....."'u.....,..
violation or any issue of
13(b), Complainant and Respondent
eS}:lonaerlt hereby to comply with the terms
II. THE PARTIES
3. Director Waste and Chemical Enforcement
"''''A.U,",''''. Office torcernerlt and Assurance, is "',...,,,,.,...,
by lawful delegation to institute administrative actions brought by
Environmental Protection to Section FIFRA.
Respondent is Na1co Company, a wholly owned "UtI".""""'" Inc organized
J...J""J.U'v,
and/or existing under State of Delaware. principal place of
business is at 160 I Naperville,
PRELIMINARY
-
Respondent certifies It IS full compliance with ..",,,'...,:>,r-T to violations alleged in
Consent Agreement. -
Respondent stipulates Complainant has jurisdiction over the subject matter of this
Consent Agreement. -
Respondent waives any dejtenses it might have as to venue jurisdiction.
-
Pursuant to 40 C.F.R. § to contest the allegations
its right to "VI..''''"A a judicial or
administrative resolved by, this
Consent Agreement. -
Respondent neither admits nor denies EPA's allegations, findings of fact and conclusions
of law set forth in IV and V of this Consent Respondent enters
this Consent Agreement to compromIse a claim.IV. AND REGULATORY BACKGROUND -
2(s) of as any individual,
partnership, """'V,,",'" persons whether
incorporated or not. -
Section 2(u) ofFIFRA, 7 § 136(u), and 40 §1 define a "pesticide," in
as any substance or mixture of substances intended for n r.... " ... n destroying,
repelling, or mitigating any -
Section 2(mm) ofFIFRA, 7 U.S.C. § 136(mm), defines "antimicrobial pesticide" as a
that is intended to (i) sanitize, reduce, or growth or
development of microbiological organisms; or (ii) protect industrial
oroices:ses or systems,
...v ....'u...,"', or deterioration va.... ""'....~ec1[lOn 2(gg) of FIFRA, 7 § 136(gg), and 40 C.F.R. § state that "distribute
or means to distribute, for sale, hold for distribution, hold for shipment,
ship, deliver for shipment, shipment, or receive and so received)
deliver or offer to deliver.214. Section 3(a) of FIFRA, 7 U.S.C. § 136(a) states that no person in any State may distribute
or sell to any person any pesticide that is not registered.15. Section 12(a)(1)(A) ofFIFRA, 7 U.S.C. § 136j(a)(1)(A), states it shall be unlawful for any person in any state to distribute or sell to any person any pesticide that is not registered under 136(a) of this title or whose registration has been canceled or suspended, except to the extent that distribution or sale otherwise has been authorized by the Administrator under this subchapter.16.40 C.F.R. § 152.15 states that "No person may distribute or sell any pesticide product that
is not registered under the Act. ... A substance is considered to be intended for a
pesticidal purpose, and thus to be a pesticide requiring registration, if: (a) The person who
distributes or sells the substance claims, states, or implies (by labeling or otherwise): (1)
That the substance (either by itself or in combination with any other substance) can or
should be used as a pesticide; or ... (c) The person who distributes or sells the substance
has actual or constructive knowledge that the substance will be used, or is intended to be
used, for a pesticidal purpose."17. Section 14(a)(1) ofFIFRA, 7 U.S.C. § 136/(a)(1), authorizes the EPA Administrator to assess a civil penalty against any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who violates any provision ofFIFRA. The maximum statutory civil penalty is $6,500 for each offense that occurred after March 15,2004 through January 12,2009, and $7,500 for each offense occurring after January 12,2009. V. EPA ALLEGATIONS OF FACT AND CONCLUSIONS OF LAW 1-
Respondent is a "person" as defined at Section 2(s) ofFIFRA, 7 U.S.C. § 136(s).
-
Respondent is a registrant and other distributor subject to the civil penalty provisions of
Section 14(a)(1) ofFIFRA, 7 U.S.c. § 136/(a)(1). -
At all times relevant to this Consent Agreement, Respondent distributed or sold three
products: 1) Nalco 60620 (20% ammonium sulfate), 2) Nalco 60615 (15% urea), and 3)
Nalco 60630 (30% urea) to pulp and paper mills. -
At all times relevant to this Consent Agreement, Respondent owned or operated a place
of business located at 1601 West Diehl Road, Naperville, IL 60653. -
On or about December 9, 2009, EPA inspected Respondent's facility at 1601 West Diehl
Road, Naperville, IL 60653 in accordance with FIFRA sections 8 and 9, 7 U.S.C. §§
136f; 136g.
-
1 Respondent neither admits nor denies EPA's allegations, and enters into this Consent Agreement to settle and compromise a disputed claim.
3
· On or 23,2009, Respondent provided EPA with sales distribution
records for 60615 60620 showing Respondent's or distribution
products from July 2009 up to and including November 2009.
On 29, 2010, an administrative order, pursuant to 13 of
FIFRA (FIFRA-HQ-2011 which Respondent's
products but allowed Respondent to continue products
conditions pending EPA registration.
On or about January 1 2011, Respondent provided with and distribution
records for Nalco 60615,60620, and 60630 Respondent's sale or distribution
its products from December 2009 up to and including December 2010.
all times relevant to this Consent Agreement, Respondent's products, Na1co 60615,
60620 and 60630, were not under FIFRA as pesticides.
On or about 29, 2011, . . . . V "p'JH'-''"'U received registration for Nalco 6061
60620, and 60630.
EPA that at aU times relevant to Consent
promotion ofNalco 6061 60620, and 60630 and/or knowledge of how those
products would used met at 40 § 152.15, and caused those products
to "pesticides" as that term is at Section 2(u) of 7 § 136(u).
with Respondent's claims that the products were promoted and marketed
for use as "adjuvants" and, therefore, were not "pesticides." EPA determined that
Respondent's products are pesticides under 40 § 152.15 and not "adjuvants" as
claimed by Respondent.
on the EPA that to June 2011, sold or
distributed Nalco 15, 60620 and 60630 on multiple occasions without in
violation of Section 12(a)(l)(A) ofFIFRA, 7 U.S.C. § 136j(a)(1)(A).
VI. TERMS OF SETTLEMENT
-
Respondent consents to '''"''''''>''''' and to its terms,
consents, for the purposes of the civil penalty set forth
Section VII.compliance with the terms of this CAFO fully all claims orcivil causes of action arising the conduct alleged in Section V.
-
Compliance with this CAPO shall not a defense to any subsequent action EPA may
commence pursuant to law or for violations occurring after the date of
'"'5'UUI,HJLL"this Consent Agreement, or any violations not alleged in this Consent
4Agreement "",,,," .....,>£1 prior to the this Consent
executed by -
Nothing in this CAPO is intended to, nor shall be construed to r......" .. ,,'tt> in any way to
criminal RespondentCIVIL PENALTYComplainant has a penalty pursuant to the statutory penalty factors in
14(a)(4) of 7 U.S.C. § 1 and EPA's Response
Federal .....,,,,v,.v,,",,,,, Fungicide, Rodenticide December -
penalty agreed upon by the settlement purposes is $225,000.
-
Not more than sixty (60) days following Order by the
cmllrolnm,ental Appeals Board, Respondent shall ""Hr,,,,"a. Dispatch a"'....",..."'. or certified in the amount $225,000, made payable to the order "Treasurer, United of America" and bearing the case docket number 3-5000, to following a ........ ..,"'.>. Environmental Protection Agency and Penalties Cincinnati Finance Center P.O. Box 979077 S1. Louis, MO 63197-9000 or b. Make an electronic payment by wire in the amount $225,000 with the nr.T<>Tu\n "Nalco Civil Penalty Docket No. 3-5000" by the following Reserve Bank York ABA = 021030004 Account = 68010727 SWIFT address FRNYUS33 Street NY 10045 Field Tag 4200 of the Fedwire .......;)"..F"... should read 68010727 Environmental Protection Agency" -
ensure a record compliance with LOllSeltlt Agreement, Respondent
forward a copy of the to the of:5Hearing Clerk
Environmental Protection Agency
1200 Pennsylvania N.W. (Mail Code 1900C)
Washington, DC 20460-0001Mosley Environmental Agency 1200 Pennsylvania N.W. (Mail Code Washington, DC 20460-0001 -
If Respondent to pay the civil penalty $225,000 within (60) calendar days of
the execution Final Order, Respondent pay an additional penalty of
$5,000 per plus interest, at judgement rate in 31
U.S.C. § 371 effect on the ofthe Final
Complainant the stipulated penalty. Complainant may
excuse or Complainant determines in sole discretion,
that failure to exercise of good and due
diligence. If are due, Complainant will dispatch to
Respondent a letter via certified return receipt which specifies
the total amount due and owed by Respondent, including any allowed by law.
Within fourteen (14) calendar days following Respondent's such demand letter,
Respondent shall the stipulated penalty manner specified in this Section. -
If to remit the or any stipulated
may refer matter to the United States of
Justice to recover such amount by action in court under Section 14(a)(5) of FIFRA,7 § 1361 (a)(5). The validity, amount and appropriateness the civil penalty are not reviewable in a collection -
This civil penalty is not deductible for federal tax purposes.
VIII. OTHER -
Nothing relieve Respondent duty to comply with
provisions of with other applicable state, and tribal,
and regulations. -
This CAFO shall both Parties. This Party's officers, Olflectl)rs.
and assigns. The ,..,rt'''''''C'U'La'''_~ representative
or she is duly to represents and bind the
or she repiresent:s.644. This shall bind Parties in full upon execution of the Final Order by the
Environmental Appeals Board. -
obligations this CAPO shall when Respondent paid
civil penalty, and any applicable interest or charges, as specified in Section VII the
Consent Agreement in accordance with Final Order.Each party to its own costs and <>ttr.rn"',, in this matter.
7WE AGREE TO THIS:
FOR COMPLAINANT:
(~)
~jJ~-< Q·~a
Rosemarie A. Kelley, Director
/2-1 \i ll L..-.
Date
Waste and Chemical Enforcemen ivision
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
Kim ~eY-AdViSor
Waste and Chemical Enforcement Division
Date
11- 2( - 7-0/2
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
8
FOR RESPONDENT:
Date
Vice President and General Counsel
Nalco Company
1601 West Diehl Road
Naperville, IL 60653
21 ~~v' ~'2.,..
Date
Counsel for Nalco Company
Crowell & Moring LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004
9
CERTIFICATE OF SERVICE
I certify that the foregoing Final Order in the Matter ofNalco Company, Docket No.
FIFRA-HQ-2013-5000, were filed and copies of the same were mailed to the parties as indicated below:
Via Interoffice Mail and Facsimile:
Kim Wilson
Waste and Chemical Enforcement Division (MC-2249A)
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., NW
Washington, DC 20460
Fax No. (202) 564-0022
Via U.S. Certified Mail and Facsimile:
Warren Lehrenbaum
Crowell & Moring LLP
101 Pennsylvania Ave., NW
Washington, DC 20004
Fax. No. (202) 628-5116
~~ Secretary
JAN 2 9 2013
Dated:_ _ _ _ _ _ __
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