Microban Products Co. (Board decision, May 10, 1999)

Plain-English summary

EPA alleged that Microban Products Co. committed 32 FIFRA violations through sales or distributions of a registered pesticide. The ALJ found five violations based on documents containing unapproved effectiveness claims, and EPA sought immediate EAB review of that ruling. The Board held that EPA had not shown exceptional circumstances or that delaying review would be contrary to the public interest. The Board denied interlocutory review and expressly left the merits of the violation count undecided.

Decision snapshot

• Cited authorities: 7 U.S.C. § 136j(a)(1)(B); 40 C.F.R. § 22.29(c).
• Outcome: EPA's motion for interlocutory review denied, without a ruling on the merits of the underlying violation count.
• Key point: Immediate review is available only in exceptional circumstances when delaying review would be contrary to the public interest.

Full text (EPA EAB public release)

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C.

_______
)
In re: )
)
Microban Products Co.
) FIFRA Appeal No. 99-1
)
Docket No. 98-H-01
)
____ ___)

ORDER DENYING MOTION FOR INTERLOCUTORY REVIEW

On March 22, 1999, the U.S. Environmental Protection

Agency ("EPA") filed a motion for interlocutory appeal with

the Environmental Appeals Board from the February 18, 1999

ruling of Administrative Law Judge William B. Moran

("Presiding Officer") in the above-referenced matter.

Microban Products Company ("Microban") filed its opposition to

EPA’s motion for interlocutory appeal on March 29, 1999. On

March 31, 1999, EPA moved for leave to file a reply to

Microban’s opposition. On April 6, 1999, Microban then filed

a motion opposing EPA’s motion for leave to file a reply. The

Board denied EPA’s motion to file a reply by order dated April

12, 1999.

In his ruling, the Presiding Officer rejected EPA’s

assertion that Microban had committed 32 violations of section 2

12(a)(1)(B) the Federal Insecticide, Fungicide, and

Rodenticide Act ("FIFRA"), 7 U.S.C. § 136j(a)(1)(B), based on

32 sales or distributions of the registered pesticide,

Microban Additive "B." See Order Determining Number of

Violations and Ruling on Respondent’s Motion for Accelerated

Decision as to Penalty at 9-10 (Feb. 18, 1999). The Presiding

Officer concluded that Microban had committed five violations

based on five documents containing unapproved claims regarding

the effectiveness of Microban Additive "B." Id.

In this instance, EPA seeks interlocutory review of the

following issue: Whether "individual sales and shipments of a

pesticide cannot trigger independent violations under Section

12(a)(1)(B) of the Federal Insecticide, Fungicide, and

Rodenticide Act (FIFRA) unless the unapproved claims

physically accompany the pesticides during each sale and

shipment." See Complainant’s Motion for Interlocutory Appeal

at 1 (March 22, 1999). Pursuant to 40 C.F.R. § 22.29(c),

where a Presiding Officer denies certification, interlocutory

appeal will be granted only where the Board determines "in

exceptional circumstances, that to delay review would be

contrary to the public interest." EPA has asserted that the

Board should take review now, but EPA has failed to convince

us that such
 3

exceptional circumstances exist. EPA’s motion for

interlocutory appeal is therefore denied. 1

So ordered.

Dated: 5/10/99
ENVIRONMENTAL APPEALS

BOARD

By: /s/
Kathie A. Stein
Environmental Appeals Judge

1
The Board notes that this order does not, nor should it be construed to, rule on the merits of the Presiding Officer’s decision to limit Microban’s liability to five (5), rather than thirty-two (32), violations of FIFRA section 12(a)(1)(B). CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order in the matter of Microban Products Co., FIFRA Appeal No. 99-1, were sent to the following persons in the manner indicated:

By Certified Mail
Return Receipt Requested:

Gerald Yamada, Esq.
Paul, Hastings, Janofsky & Walker LLP
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004

Mark Borodin, Esq.
Attorney Advisor
U.S. Environmental Protection Agency
Toxics and Pesticides Enforcement Division 401 M Street, S.W. (2245-A)
Washington, DC 20460

Robert W. Darnell, Esq.
U.S. Environmental Protection Agency
Toxics and Pesticides Enforcement Division 401 M Street, S.W. (2245-A)
Washington, DC 20460

Dated: 5/10/99
/s/
Annette Duncan
Secretary