EPA Pesticide Enforcement to Focus on Imports and Supplemental Distribution

Date: Sep 29, 2011

On September 19, 2011, Rosemarie Kelley, EPA's Director of Waste and Chemical Enforcement, presented EPA's chemical and pesticide enforcement priorities to the Pesticides, Chemical Regulation, and Right-to-Know committee of the ABA. She emphasized that EPA will focus on pesticide imports and supplemental distribution products. A second point of focus will be increased capture of economic benefits for violations of the Toxic Substance Control Act.

EPA plans to work with the U.S. Customs Service to more closely track pesticide imports to identify non-compliant products such as unregistered or misbranded pesticides. Ms. Kelley provided as an example the recent Millipore settlement, in which the company agreed to pay a $526,500 penalty for importing chlorine tablets, a pesticide, and pesticide devices used for water purification, without filing Notice of Arrival forms, which are required under FIFRA.

Ms. Kelley also stated that EPA plans to more closely scrutinize supplemental distribution products to address discrepancies between the label of the distributor product and that of the basic registrant. She cited as an example a recent matter involving Eau Claire Co-op Oil, in which the distributor agreed to pay a civil penalty for the sale of herbicide-fertilizer combination products with stick-on labels that contained the incorrect percentage of active ingredient in the product.  In this case, EPA also levied a civil penalty against the basic registrant. Under FIFRA, a supplemental distributor is considered the agent of a basic registrant, and as a result both parties are held jointly and severally liable for any violations related to the distributor's products.

Ms. Kelley also discussed focus areas for EPA's regional enforcement teams, which include:

· Fumigant/fumigation – EPA intends to improve applicator compliance with label statements and use directions for fumigant pesticides.

· Worker safety – Regions are encouraged to support state misuse actions with federal enforcement to protect agricultural farm workers and applicators from pesticide exposure.

· Retail marketing – EPA intends to make retailers more aware of their compliance obligations, including that it is unlawful to sell an unregistered or misbranded pesticide product. [Keller and Heckman LLP notes that EPA has targeted retail markets over the past several years, particularly EPA Region II. See related story "EPA Targeting Retailers Under FIFRA", September 23, 2010.]

· Container/containment – EPA intends to ensure effective implementation of the new container/containment requirements.

If you have any questions about these issues or EPA pesticide enforcement, please contact Mike Novak at novak@khlaw.com.