List of Attachments
Attachment A Declaration of Claudia Niess
Attachment B Proposed Findings of Facts and Conclusions of Law Attachment A:
Declaration of Ms. Claudia Niess UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 5
In the Matter of: ) ) LIPHATECH, INC. ) MILWAUKEE, WISCONSIN ) Docket No. FIFRA-05-2010-0016 ) Respondent. ) )
DECLARATION OF MS. CLAUDIA NIESS
State of Illinois County of Cook
I, Claudia Niess, declare and state as follows:
1. The statements made in this declaration (which consists of five pages) are based on my personal knowledge.
2. In 2005, I received a Bachelor of Science degree in Environmental
Engineering from Northwestern University.
3. I am currently employed as an Environmental Engineer and I am credentialed as an Enforcement Officer with the Pesticides/Toxics Compliance Section of the
Chemicals Management Branch, Land and Chemicals Division, U.S. EPA, Region 5.
The Pesticides/Toxics Compliance Section was formerly known as the Pesticides &
Toxics Enforcement Section. I have been employed as an Environmental Engineer and
Enforcement Officer in this capacity since 2005.
4. As an Environmental Engineer and Enforcement Officer in the
Pesticides/Toxics Compliance Section, my duties include conducting inspections and other investigative work to determine compliance with the Federal Insecticide, Fungicide
1 and Rodenticide Act (FIFRA), as well as other environmental statutes. I have conducted approximately 50 inspections under FIFRA.
5. My involvement with the case of In the Matter of Liphatech, Inc.. started in
January 2008 when Region 7 contacted Region 5 to inform Region 5 of potential violations relating to a Liphatech, Inc. (Liphatech) product, “Rozol Pocket Gopher Bait
II” (Alternate name: “Rozol Pocket Gopher Burrow Builder Formula”) (hereinafter
Rozol), EPA Registration Number (EPA Reg. No.) 7173-244, to control black-tailed prairie dogs in the states of Kansas, Nebraska, Wyoming, Colorado, Texas and
Oklahoma. See Complainant’s Initial PrehearinR Exchange, CX 8.
6. Since at least 1988, U.S. EPA, Region 5 has entered into a continuing
Cooperative Agreement with the Wisconsin Department of Agriculture, Trade and
Consumer Protection (WDATCP), (as permitted under Section 23 of FIFRA), under which WDATCP conducts inspections and other investigations of suspected violations of
FIFRA on behalf of U.S. EPA within the State of Wisconsin.
7. After Region 5 received this referral from Region 7, I was assigned to be the case officer for the Liphatech matter.
8. On April 15, 2008, Region 5, I requested WDATCP to conduct an inspection at the Liphatech facility located at 3600 West Elm Street, Milwaukee, Wisconsin. See
Complainant’s Initial Prehearing Exchange, CX 13.
9. As a result of Region S’s request, WDATCP conducted an inspection at the
Liphatech facility on June 2 through 19, 2008. See Complainant’s Initial Prehearin
Exchange, CX 14 and 14a.
10. I received an inspection report from WDATCP which documented the
2 results of WDATCP’s inspection at Liphatech’s facility on June 10 through 19, 2008. See
Complainant’s Initial Prehearin’ ExchanRe, CX 14 and 14a.
11. The WDATCP inspection report included documentation that WDATCP collected from Liphatech at the June 19, 2008 inspection.
12. This documentation included the actual copies of print advertisements that are the subject of Counts 2,118 through 2,140 of the Complaint, which included:
A. The October 2007 issue of Cattle Guard, See Complainant’s Initial
Prehearin’ Exchan,’e, CX 14a, bates stamped numbers (#) 285-286;
B. The October 2007 issue of Kansas Stockman, See Complainant’s
Initial Prehearin’ Exchange, CX 14a, # 290;
C. The November 2007 issue of Kansas Stockman, See Complainant’s
Initial PrehearinR ExchanRe, CX 14a, #291;
D. The January 2008 issue of Kansas Stockman, See Complainant’s
Initial Prehearin’ Exchan’e, CX 14a, # 292;
E. The February 2008 issue of Kansas Stockman, See Complainant’s
Initial Prehearin’ Exchancte CX 14a, # 293;
F. The October 2007 issue of Nebraska Cattleman, See Complainant’s
Initial Prehearing Exchange, CX 14a, # 295;
G. The November 2007 issue of Nebraska Cattleman, See Complainant’s
Initial Prehearing Exchange, CX 14a, # 296;
H. The December 2007 issue of Nebraska Cattleman, See Complainant’s
Initial Prehearing Exchange, CX 14a, # 297;
3 I. The January 2008 issue of Nebraska Cattleman, See Complainant’s
Initial Prehearin2 ExchanRe. CX 14a, # 298;
J. The February 2008 issue of Nebraska Cattleman, See Complainant’s
Initial Prehearin’ Exchange, CX 14a, # 299;
K. The February 2008 issue of Oklahoma Cowman, See Complainant’s
Initial Prehearin,’ Exchange, CX 14a, # 300-301;
L. The October 2007 issue of The Cattleman, See Complainant’s Initial
Prehearing ExchanRe, CX 14a, # 303;
M. The November 2007 issue of The Cattleman, See Complainant’s
Initial Prehearinj Exchange, CX 14a, # 304;
N. The March 2008 issue of The Cattleman, See Complainant’s Initial
Prehearin Exchan2e, CX 14a, # 305;
0. The April 2008 issue of The Cattleman, See Complainant’s Initial
Prehearin,’ Exchange, CX 14a, # 306;
P. A copy of the print advertisement that appeared in the February 16,
2008 through April 5, 2008 weekly issues of WyomingLivestock Roundup, See
Complainant’s Initial Prehearin Exchange, CX 14a, # 328-330.
See copies of each of these print advertisements attached to this declaration.
13. I reviewed each of these print advertisements.
14. Each of these print advertisements did not include the words “restricted use pesticide.”
15. Each of these print advertisements did not include any language that resembled a term of restriction for the Rozol restricted use product such as “For retail 4 sale to and use only by Certified Applicators or persons under their direct supervision and only for those users covered by the Certified Applicator’s Certification.”
16. The assertions I make in this declaration are truthful, and, if called to testify as a witness, I am prepared to testify under oath to the accuracy of the observations and statements contained in this declaration, based on my personal knowledge.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on: kfl, 2010 By: ‘diaNies En ironmental Engineer Enforcement Officer
5 Print Advertisements Referenced in Paragraph 12 of
Ms. Claudia Niess’ Declaration
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Eatandrun Dr. Dale Rollins, a wildlife specialist with the Texas Coop erative Extension Service in San Angelo, refers to what he calls the “eat and run lifestyle” of quail. “Anytime they’re out feeding, they’re vulnerable to predators,” he says. So naturally it is advan tageous to minimize that amount of time as much as possible. With the crop, “they can fill up (with food) then digest later,” says Rol lins. Anyone who’s cleaned a quail has seen the crop bulging out at the base of the neck after remov ing the head. If not already vis ible, the contents can be pushed out for a closer look by working the bolus of food matter between your thumb and forefinger.
sighting ... usuaiiy a coincidence ... not a reproducible skill.
For your first few attempts, it will pay off to carry a few sand - Approved under Special Local Nee4 In order to use this product for the (SLN)24(c) Prairie Dog Bait label for control of Black-Tailed Praine Dogs. wich baggies with you to bring use in the states of Colorado, Kansas, •youmust have a 24(c) Prairie Dog home samples for more conve I- Nebraska, Texas and Wyoming. Bait label in your possession. nient identification. Rollins says he prefers an empty shotgun LIPHIIECH. Ph: 888.331-79(0 ww.Ilph’tech.com. shell box or envelope; leaving the craw contents in a baggie causes Proven Single Application Effectiveness them to mold pretty quickly, he BURROW BUILDER points out. From here, things get a little more challenging. The most rug ged quail terrain in the driest year could still hold a multitude of plant diversity, so complete knowledge of available seeds is Cattle Feeders probably impractical for the aver “Wecare about what age hunter. we do for you” In his book Bobwhites in the Rio Grande of Texas, Val Lehman SamKirk• SteveSims• BobSims www.redbrangus.org lists more than 70 plant types YouDeserve the Genetic Edge found in crop, or Box1682,Hereford,Texas79045 a craw, survey International RedBrangus BreedersAssociation completed on the King Ranch in (806)364-4034 P.O.Box690771• SanAntonio,Texas78269 the early 1950s. 210-696-8506 The variety included small NT 100 NOVEMBER2007 The Cattleman thecattlemanmagazine.com )
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his .Ltle. In addition to BVD,Wikse believes the animals are in quarantine, so e Gulf Coast cattle should be tested for Neospora they can get both a primary and ienium and, says caninum, which is also a chronic, a booster dose for the infectious re not realty satisfied lifetime infection. agents before they enter the herd. .ct amount of zinc going into Animals with Neospora anti Step No. 3 is to implement ) de in Texas.” Beef cattle nutri bodies in their blood are more like management tactics to minimize tionists, he says, are in agreement lyto suffer an abortion, particularly the spread of infectious agents that a supplement with all the im on their first and second pregnan within your herd. One strategy is portant trace minerals — calcium, cies. Only purchase animals from to eliminate vectors; for instance, phosphorus, magnesium, manga well-managed, reputable herds, Neospora is spread by coyotes and nese, copper, selenium and zinc — and quarantine newly purchased foxes. should be out in the pasture at all animals for at least 30 days, with On the ranch in central Tex times. no nose-to-nose contact. as, he says, “The first time we put The second step is to keep in He recommends ranchers start traps out, they got four foxes on fectious agents out of your herd. their vaccination programs while that ranch... Identify and cull car rier animals.” And No. 4, Wikse says, is to maintain a high level of specific re sistance by vaccinating. He believes herds should be vaccinated against five infectious agents: L. hardjo bovis (“It’s really widespread; we
• statewide averages Texas ... range from 2 to 4 percent.
have very favorable conditions in LioYD the South”), BVD, 1BR, vibriosis, ) and trich when it’s been identified in the herd, or in herds that are at high risk for infection. That would include those that lease bulls, or commingle with other herds — for instance, Wikse says, in the Western states, “herds that use the BLM grazing in the summertime, or they let their cattle go to the mountains, they’ll com monly put about five herds togeth er in this one region.” But the key to it all, he be lieves, is good management, and the herd in central Texas is a case in point. “I’ve been associated as an advisor — I’m not the main vet I... I . ; ‘: _ 1’ -:-“ erinanan for the herd — for five or six years,” Wikse says, “and we’re controlling abortions very nicely in Approved under Special Local Needs In order to use this product for the that herd. It (SLN) 24(c) Prairm Dog Bait label for control ot Black-Tailed Prairie Dogs, has excellent manage use in the states of Colorado, Kansas, you must have a 24(c) Prairie Dog ment, a biosecurity program; we’re Nebraska. Texas and Wyoming. Bait label in your possession. controlling the infectious reproduc tive diseases, and they have a good ) nutritional program.” The good news is a properly Proven Single Application Effectiveness implemented program to control iozoiBURROW BUILDER abortions in beef herds wnun.. 50 APRIL2008 The cattleman thecattlemanmagazine.com EPAOO3O6
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Proposed Findings of Fact and Conclusions of Law UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
IN THE MATTER OF: )
Liphatech, Inc. ) Milwaukee, Wisconsin ) Docket No. FIFRA-05-2010-0016 ) ) Hon. Barbara A. Gunning Respondent. )
Proposed Findin2s of Facts and Conclusion of Law
A. Proposed Findings of Facts
1. At all times relevant to the Complaint, Respondent owned a place of business at 3600
West Elm Street, Milwaukee, Wisconsin, 53209.
2. During calendar years 2007 and 2008, Respondent was the registrant of “Rozol Pocket
Gopher Bait II” (Alternate name: “Rozol Pocket Gopher Burrow Builder Formula”)
(hereinafter, “Rozol”), EPA Registration Number (EPA Reg. No.) 7173-244.
3. Upon registration of Rozol, EPA Reg. No. 7173-244, and at all times relevant to this
Complaint, Rozol, EPA Reg. No. 7173-244, was classified as a restricted use product
under Section 3(d), of FIFRA, 7 U.S.C. § 136a(d).
4. Rozol, EPA Reg. No. 7173-244, was classified as a restricted use product under Section
3(d) of FIFRA, 7 U.S.C. § 136a(d), because of its potential secondary toxicity to nontarget organisms.
5. As a result of its classification as a restricted use product, Rozol, EPA Reg. No. 7173-
244, can only be sold to and be used by Certified Applicators or persons under the direct
supervision of Certified Applicators and only for users covered by the Certified
Applicator’s certification.
6. During calendar years 2007 and 2008, Rozol, EPA Reg. No. 7173-244, was also
registered under the authority of Section 24(c) of FIFRA, 7 U.S.C. § 136v(c), to control
black-tailed prairie dogs under “Special Local Needs” supplemental labels for the States
of Kansas, Nebraska, Wyoming, Colorado, Texas and Oklahoma.
7. Respondent contracted with Golden Plains AG Network to broadcast radio
advertisements regarding Rozol, EPA Reg. No. 7173-244, on the radio station, KXXX-AM
in Colby, Kansas, on 120 occasions from on or about October 8, 2007 to on or about
December 21, 2007.
8. On 120 separate occasions, from on or about October 8, 2007 to on or about December
21, 2007, KXXX-AMbroadcast one of the four versions of the radio advertisement
regarding Rozol, EPA Reg. No. 7173-244, on behalf of Respondent without the inclusion
of the spoken words “restricted use pesticide” or a statement of the terms of restrictions
for Rozol, EPA Reg. No. 7173-244.
9. Respondent contracted with Western Kansas Broadcast to broadcast radio advertisements
regarding Rozol, EPA Reg. No. 7173-244, on the radio station, KBUF in Garden City,
Kansas, on 229 occasions from on or about January 15, 2008 to on or about March 2,
2008.
10. On 229 separate occasions, from on or about January 15, 2008 to on or about March 2,
2 2008, KBUF broadcast one of the four versions of the radio regarding Rozol, EPA Reg.
No. 7173-244, on behalf of Respondent without the inclusion of the spoken words
“restricted use pesticide” or a statement of the terms of restrictions for Rozol, EPA Reg.
No. 7173-244.
11. Respondent contracted with High Plains Radio to broadcast radio advertisements
regarding Rozol, EPA Reg. No. 7173-244, on the radio stations, KICX-FM, KBRL-AM,
KRKU-FM, and KJBL-FM all in McCook, Nebraska; KFNF-FM, in Oberlin, Nebraska;
KADL-FM, in Imperial, Nebraska; and KSTH-FM, in Holyoke, Nebraska, on 1,521
occasions from on or about September 26, 2007 to on or about December 31, 2007.
12. On 1,521 separate occasions, from on or about September 26, 2007 to on or about
December31, 2007, KICX-FM, KBRL-AM,KRKU-FM, and KJBL-FM all in McCook,
Nebraska; KFNF-FM, in Oberlin, Nebraska; KADL-FM, in Imperial, Nebraska; and
KSTH-FM, in Holyoke, Nebraska, broadcast one of the four versions of the radio
advertisement regarding Rozol. EPA Reg. No. 7173-244, on behalf of Respondent
without the inclusion of the spoken words “restricted use pesticide” or a statement of the
terms of restrictions for Rozol, EPA Reg. No. 7173-244.
13. Respondent contracted with KGNC-AM and KXGL-FM to broadcast these radio
advertisements regarding Rozol, EPA Reg. No. 7173-244, on the radio stations, KGNC
AM and KXGL-FM in Amarillo, Texas, on 247 occasions from on or about November 12,
2007 to on or about April 26, 2008 (See Attachment H).
14. On 247separate occasions, from on or about November 12, 2007 to on or about April 26,
2008, KGNC-AM and KXGL-FM in Amarillo, Texas, broadcast one of the four versions
of the radio advertisement regarding Rozol, EPA Reg. No. 7173-244, on behalf of
3 Respondent without the inclusion of the spoken words “restricted use pesticide” or a
statement of the terms of restrictions for Rozol, EPA Reg. No. 7173-244.
15. Respondent contracted with Colorado Cattlemen’s Association to print an advertisement
regarding Rozol, EPA Reg. No. 7173-244, in its publication of Cattle Guard in October
2007.
16. The October 2007 issue of Cattle Guard included an advertisement regarding Rozol,
EPA Reg. No. 7173-244.
17. The print advertisement in the October 2007 issue of Cattle Guard regarding Rozol, EPA
Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
18. The print advertisement in the October 2007 issue of Cattle Guard regarding Rozol, EPA
Reg. No.7173-244, failed to include any statements of the terms of restrictions of Rozol,
EPA Reg. No. 7173-244.
19. Respondent contracted with Kansas Livestock Association to print advertisements
regarding Rozol, EPA Reg. No. 7173-244, in its monthly publication of Kansas Stockman
from October 2007 through February 2008.
20. The October 2007 issue of Kansas Stockman included an advertisement regarding Rozol,
EPA Reg. No. 7173-244.
21. The print advertisement in the October 2007 issue of Kansas Stockman regarding Rozol,
EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
22. The print advertisement in the October 2007 issue of Kansas Stockman regarding Rozol,
EPA Reg. No. 7173-244, failed to include any statements of the terms of restrictions of
Rozol, EPA Reg. No. 7173-244.
23. The November 2007 issue of Kansas Stockman included an advertisement regarding
4 Rozol, EPA Reg. No. 7173-244.
24. The print advertisement in the November 2007 issue of Kansas Stockman regarding
Rozol, EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
25. The print advertisement in the November 2007 issue of Kansas Stockman regarding
Rozol, EPA Reg. No. 7173-244, failed to include any statements of the terms of
restrictions of Rozol, EPA Reg. No. 7173-244.
26. The January 2008 issue of Kansas Stockman included an advertisement regarding Rozol,
EPA Reg. No. 7173-244.
27. The print advertisement in the January 2008 issue of Kansas Stockman regarding Rozol,
EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
28. The print advertisement in the January 2008 issue of Kansas Stockman regarding Rozol,
EPA Reg. No. 7173-244, failed to include any statements of the terms of restrictions of
Rozol, EPA Reg. No. 7173-244.
29. The February 2008 issue of Kansas Stockman included an advertisement regarding
Rozol, EPA Reg. No. 7173-244.
30. The print advertisement in the February 2008 issue of Kansas Stockman regarding Rozol,
EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
31. The print advertisement in the February 2008 issue of Kansas Stockman regarding Rozol,
EPA Reg. No. 7173-244, failed to include any statements of the terms of restrictions of
Rozol, EPA Reg. No. 7173-244.
32. Respondent contracted with Nebraska Cattlemen, Inc., to print advertisements regarding
Rozol, EPA Reg. No. 7173-244, in its monthly publication of Nebraska Cattleman from
October 2007 through February 2008.
5 33. The October 2007 issue of Nebraska Cattleman included an advertisement regarding
Rozol, EPA Reg. No. 7173-244.
34. The print advertisement in the October 2007 issue of Nebraska Cattleman regarding
Rozol, EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
35. The print advertisement in the October 2007 issue of Nebraska Cattleman regarding
Rozol, EPA Reg. No. 7173-244, failed to include any statements of the terms of
restrictions of Rozol, EPA Reg. No. 7173-244.
36. The November 2007 issue of Nebraska Cattleman included an advertisement regarding
Rozol, EPA Reg. No. 7173-244.
37. The print advertisement in the November 2007 issue of Nebraska Cattleman regarding
Rozol, EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
38. The print advertisement in the November 2007 issue of Nebraska Cattleman regarding
Rozol, EPA Reg. No. 7173-244, failed to include any statements of the terms of
restrictions of Rozol, EPA Reg. No. 7173-244.
39. The December 2007 issue of Nebraska Cattleman included an advertisement regarding
Rozol, EPA Reg. No. 7173-244.
40. The print advertisement in the December 2007 issue of Nebraska Cattleman regarding
Rozol, EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
41. The print advertisement in the December 2007 issue of Nebraska Cattleman regarding
Rozol, EPA Reg. No. 7173-244, failed to include any statements of the terms of
restrictions of Rozol, EPA Reg. No. 7173-244.
42. The January 2008 issue of Nebraska Cattleman included an advertisement regarding
Rozol, EPA Reg. No. 7173-244.
6 43. The print advertisement in the January 2008 issue of Nebraska Cattleman regarding
Rozol, EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
44. The print advertisement in the January 2008 issue of Nebraska Cattleman regarding
Rozol, EPA Reg. No. 7173-244, failed to include any statements of the terms of
restrictions of Rozol, EPA Reg. No. 7173-244.
45. The February 2008 issue of Nebraska Cattleman included an advertisement regarding
Rozol, EPA Reg. No. 7173-244.
46. The print advertisement in the February 2008 issue of Nebraska Cattleman regarding
Rozol, EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
47. The print advertisement in the February 2008 issue of Nebraska Cattleman regarding
Rozol, EPA Reg. No. 7173-244, failed to include any statements of the terms of
restrictions of Rozol, EPA Reg. No. 7173-244.
48. Respondent contracted with Oklahoma Cowman to print an advertisement regarding
Rozol, EPA Reg. No. 7173-244, in its publication Oklahoma Cowman in February 2008.
49. The February 2008 issue of Oklahoma Cowman included an advertisement regarding
Rozol, EPA Reg. No. 7173-244.
50. The print advertisement in the February 2008 issue of Oklahoma Cowman regarding
Rozol, EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
51. The print advertisement in the February 2008 issue of Oklahoma Cowman regarding
Rozol, EPA Reg. No. 7173-244, failed to include any statements of the terms of
restrictions of Rozol, EPA Reg. No. 7173-244.
52. Respondent contracted with The Cattleman to print advertisements regarding “Rozol,”
EPA Reg. No. 7173-244, in its monthly publication of The Cattleman in October 2007,
7 November 2007, March 2008 and April 2008.
53. The October 2007 issue of The Cattleman included an advertisement regarding Rozol,
EPA Reg. No. 7173-244.
54. The print advertisement in the October 2007 issue of The Cattleman regarding Rozol,
EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
55. The print advertisement in the October 2007 issue of The Cattleman regarding Rozol,
EPA Reg. No. 7173-244, failed to include any statements of the terms of restrictions of
Rozol, EPA Reg. No. 7173-244.
56. The November 2007 issue of The Cattleman included an advertisement regarding Rozol,
EPA Reg. No. 7173-244.
57. The print advertisement in the November 2007 issue of The Cattleman regarding Rozol,
EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
58. The print advertisement in the November 2007 issue of The Cattleman regarding Rozol,
EPA Reg. No. 7173-244, failed to include any statements of the terms of restrictions of
Rozol, EPA Reg. No. 7173-244.
59. The March 2008 issue of The Cattleman included an advertisement regarding Rozol,
EPA Reg. No. 7173-244.
60. The print advertisement in the March 2008 issue of The Cattleman regarding “Rozol,”
EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
61. The print advertisement in the March 2008 issue of The Cattleman regarding Rozol, EPA
Reg. No. 7173-244, failed to include any statements of the terms of restrictions of Rozol,
EPA Reg. No. 7173-244.
62. The April 2008 issue of The Cattleman included an advertisement regarding Rozol, EPA
8 Reg. No. 7173-244.
63. The print advertisement in the April 2008 issue of The Cattleman regarding “Rozol,”
EPA Reg. No. 7173-244, failed to include the words “restricted use pesticide.”
64. The print advertisement in the April 2008 issue of The Cattleman regarding Rozol, EPA
Reg. No. 7173-244, failed to include any statements of the terms of restrictions of Rozol,
EPA Reg. No. 7173-244.
65. Respondent contracted with Wyoming Livestock Roundup, to print advertisements
regarding Rozol, EPA Reg. No. 7173-244, in its weekly publication of the Wyoming
Livestock Roundup from February 16, 2008 through April 5, 2008.
66. The February 16, 2008 weekly issue of WyomingLivestockRoundup included an
advertisement regarding Rozol, EPA Reg. No. 7173-244.
67. The print advertisement in the February 16, 2008 weekly issue of WyomingLivestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include the words
“restricted use pesticide.”
68. The print advertisement in the February 16, 2008 weekly issue of WyomingLivestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include any statements of
the terms of restrictions of Rozol, EPA Reg. No. 7173-244.
69. The February 23, 2008 weekly issue of WyomingLivestock Roundup included an
advertisement regarding Rozol, EPA Reg. No. 7173-244.
70. The print advertisement in the February 23, 2008 weekly issue of WyomingLivestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include the words
“restricted use pesticide.”
71. The print advertisement in the February 23, 2008 weekly issue of WyomingLivestock
9 Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include any statements of
the terms of restrictions of Rozol, EPA Reg. No. 7173-244.
72. The March 1, 2008 weekly issue of Wyoming Livestock Roundup included an
advertisement regarding Rozol, EPA Reg. No. 7173-244.
73. The print advertisement in the March 1, 2008 weekly issue of Wyoming Livestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include the words
“restricted use pesticide.”
74. The print advertisement in the March 1, 2008 weekly issue of Wyoming Livestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include any statements of
the terms of restrictions of Rozol, EPA Reg. No. 7173-244.
75. The March 8, 2008 weekly issue of Wyoming Livestock Roundup included an
advertisement regarding Rozol, EPA Reg. No. 7173-244.
76. The print advertisement in the March 8, 2008 weekly issue of Wyoming Livestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include the words
“restricted use pesticide.”
77. The print advertisement in the March 8, 2008 weekly issue of Wyoming Livestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include any statements of
the terms of restrictions of Rozol, EPA Reg. No. 7173-244.
78. The March 15, 2008 weekly issue of WyomingLivestock Roundup included an
advertisement regarding Rozol, EPA Reg. No. 7173-244.
79. The print advertisement in the March 15, 2008 weekly issue of Wyoming Livestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include the words
“restricted use pesticide.”
10 80. The print advertisement in the March 15, 2008 weekly issue of WyomingLivestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include any statements of
the terms of restrictions of Rozol, EPA Reg. No. 7173-244.
81. The March 22, 2008 weekly issue of WyomingLivestock Roundup included an
advertisement regarding Rozol, EPA Reg. No. 7173-244.
82. The print advertisement in the March 22, 2008 weekly issue of WyomingLivestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include the words
“restricted use pesticide.”
83. The print advertisement in the March 22, 2008 weekly issue of WyomingLivestock
Roun4up regarding Rozol, EPA Reg. No. 7173-244, failed to include any statements of
the terms of restrictions of Rozol, EPA Reg. No. 7173-244.
84. The March 29, 2008 weekly issue of WyomingLivestock Roundup included an
advertisement regarding Rozol, EPA Reg. No. 7173-244.
85. The print advertisement in the March 29, 2008 weekly issue of WyomingLivestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include the words
“restricted use pesticide.”
86. The print advertisement in the March 29, 2008 weekly issue of WyomingLivestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include any statements of
the terms of restrictions of Rozol, EPA Reg. No. 7173-244.
87. The April 5, 2008 weekly issue of WyomingLivestock Roundup included an
advertisement regarding Rozol, EPA Reg. No. 7173-244.
88. The print advertisement in the April 5, 2008 weekly issue of WyomingLivestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include the words
11 “restricted use pesticide.”
89. The print advertisement in the April 5, 2008 weekly issue of WyomingLivestock
Roundup regarding Rozol, EPA Reg. No. 7173-244, failed to include any statements of
the terms of restrictions of Rozol, EPA Reg. No. 7173-244.
B. Proposed Conclusions of Law
1. At all times relevant to the Complaint, Respondent was a “person” as defined at Section
2(s) of FIFRA, 7 U.S.C. § 136(s).
2. At all times relevant to the Complaint, Respondent was a “registrant” as defined at
Section 2(y) of FIFRA, 7 U.S.C. § 136(y).
3. On or about October 8, 2007 to on or about December 21, 2007, Respondent violated
Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), on 120 separate occasions by
broadcasting 120 separate radio advertisements on KXXX-AMregarding Rozol, EPA Reg.
No. 7173-244, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
4. On or about January 15, 2008 to on or about March 2, 2008, Respondent violated Section
12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), on 229 separate occasions by
broadcasting 229 separate radio advertisements on KBUF regarding Rozol, EPA Reg. No.
7173-244, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
5. On or about September 26, 2007 to on or about December 31, 2007, Respondent violated
Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), on 322 separate occasions by
broadcasting 322 separate radio advertisements on KICX-AMregarding Rozol, EPA Reg.
12 No. 7173-244, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
6. On or about September 26, 2007 to on or about December 31, 2007, Respondent violated
Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), on 322 separate occasions by
broadcasting 322 separate radio advertisements on KBRL-AMregarding Rozol, EPA Reg.
No. 7173-244, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
7. On or about September 26, 2007 to on or about December31, 2007, Respondent violated
Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), on 60 separate occasions by
broadcasting 60 separate radio advertisements on KRKU-FM regarding Rozol, EPA Reg.
No. 7173-244, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
8. On or about September 26, 2007 to on or about December 31, 2007, Respondent violated
Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), on 296 separate occasions by
broadcasting 296 separate radio advertisements on KJBL-FM regarding Rozol, EPA Reg.
No. 7173-244, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction. On or about September 26, 2007 to on or about
December 31, 2007, Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C.
§ 136j(a)(2)(E), on 139 separate occasions by broadcasting 139 separate radio
advertisements on KFNF-FM regarding Rozol, EPA Reg. No. 7173-244, which did not
include either a statement “Restricted Use Pesticide” nor a statement of the terms of
restriction.
9. On or about September 26, 2007 to on or about December 31, 2007, Respondent violated
13 Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), on 60 separate occasions by
broadcasting 60 separate radio advertisements on KADL-FM regarding Rozol, EPA Reg.
No. 7173-244, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
10. On or about September 26, 2007 to on or about December 31, 2007, Respondent violated
Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), on 322 separate occasions by
broadcasting 322 separate radio advertisements on KSTH-FM regarding Rozol, EPA Reg.
No. 7173-244, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
11. On or about November 20, 2007 to on or about April 26, 2008, Respondent violated
Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), on 188 separate occasions by
broadcasting 188 separate radio advertisements on KGNC-AM regarding Rozol, EPA
Reg. No. 7173-244, which did not include either a statement “Restricted Use Pesticide”
nor a statement of the terms of restriction.
12. On or about November 20, 2007 to on or about April 26, 2008, Respondent violated
Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), on 59 separate occasions by
broadcasting 59 separate radio advertisements on KXGL-FM regarding Rozol, EPA Reg.
No. 7173-244, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
13. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the October 2007 issue of Cattle Guard,
which did not include either a statement “Restricted Use Pesticide” nor a statement of the 14 terms of restriction.
14. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the October 2007 issue of Kansas
Stockman, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
15. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the November 2007 issue of Kansas
Stockman, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
16. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the January 2008 issue of Kansas
Stockman, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
17. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the February 2008 issue of Kansas
Stockman, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
18. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the October 2007 issue of Nebraska
Cattleman, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
19. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the November 2007 issue of Nebraska
15 Cattleman, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
20. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the December 2007 issue of Nebraska
Cattleman, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
21. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the January 2008 issue of Nebraska
Cattleman, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
22. Respondent violated Section 12(a)(2)(E) of F1FRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the February 2008 issue of Nebraska
Cattleman, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
23. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the February 2008 issue of Oklahoma
Cowman, which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
24. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the October 2007 issue of The Cattleman,
which did not include either a statement “Restricted Use Pesticide” nor a statement of the
terms of restriction.
25. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
16 advertising Rozol, EPA Reg. No. 7173-244, in the November 2007 issue of The
Cattleman which did not include either a statement “Restricted Use Pesticide” nor a
statement of the terms of restriction.
26. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the March 2008 issue of The Cattleman,
which did not include either a statement “Restricted Use Pesticide” nor a statement of the
terms of restriction.
27. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the April 2008 issue of The Cattleman,
which did not include either a statement “Restricted Use Pesticide” nor a statement of the
terms of restriction.
28. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the February 16, 2008, weekly issue of
WyomingLivestock Roundup, which did not include either a statement “Restricted Use
Pesticide” nor a statement of the terms of restriction.
29. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the February 23, 2008, weekly issue of
WyomingLivestock Roundup, which did not include either a statement “Restricted Use
Pesticide” nor a statement of the terms of restriction.
30. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the March 1, 2008, weekly issue of
WyomingLivestock Roundup, which did not include either a statement “Restricted Use
Pesticide” nor a statement of the terms of restriction.
17 31. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the March 8, 2008, weekly issue of
Wyoming Livestock Roundup, which did not include either a statement “Restricted Use
Pesticide” nor a statement of the terms of restriction.
32. Respondent violated Section 12(a)(2)(E) of FWRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the March 15, 2008, weekly issue of
WyomingLivestock Roundup, which did not include either a statement “Restricted Use
Pesticide” nor a statement of the terms of restriction.
33. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in’the March 22, 2008, weekly issue of
WyomingLivestock Roundup, which did not include either a statement “Restricted Use
Pesticide” nor a statement of the terms of restriction.
34. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the March 29, 2008, weekly issue of
WyomingLivestock Roundup, which did not include either a statement “Restricted Use
Pesticide” nor a statement of the terms of restriction.
35. Respondent violated Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), by
advertising Rozol, EPA Reg. No. 7173-244, in the April 5, 2008, weekly issue of
Wyoming Livestock Roundup, which did not include either a statement “Restricted Use
Pesticide” nor a statement of the terms of restriction.
18 ______,
— — 5
fl1’j—j 1 •u1 In the Matter of Liphatech, Inc. Docket No. FIFRA-05-2010-0016
CERTIFICATE OF SERVICE
I hereby certify that the original and one true, accurate and complete copy of
Complainant’s Combined Motion for Accelerated Decision as to Counts 1 through 2,140
of the Complaint and Response in Opposition to Motion of Respondent for Partial
Accelerated Decision on an Issue of Liability in Favor of Respondent With Respect to the
Alleged Violations of § 12(a)(2)(E) of FIFRA Set Forth in Counts 1 through 2,117 of the
Complaint and Memorandum of Law in Support of Complainant’s Motion and
Response, together with a true, accurate and complete copy of the Declaration of Claudia
Niess, were filed with the Regional Hearing Clerk, U.S. EPA, Region 5, on the date
indicated below, and that true, accurate and complete copies were sent to the Honorable
Barbara Gunning, Administrative Law Judge, via Pouch Mail, and Mr. Michael H.
Simpson, Counsel for Respondent, Liphatech, Inc., via UPS overnight delivery, on the
date indicated below:
Dated in Chicago, Illinois, h5/d day of 2010.
Gar . Ste bauer
U. . EPA egion5
• ode C-14J 77 West Jackson Blvd. Chicago, IL 60604 (312) 886-4306
2