EPA v. MEHERRIN AGRICULTURE & CHEMICAL COMPANY

Case summary

12/17/19 - CONSENT AGMT AND FINAL ORDER ISSUED, ASSESSING A PENALTY OF $8300, DUE WITHIN 30 DAYS. ALLEGATIONS: RESPONDENT OWNS AND/OR OPERATES SEVERAL EPA-REGISTERED ESTABLISHMENTS IN THE SOUTHEASTERN U.S. WHERE PESTICIDE PRODUCTS ARE PRODUCED, DISTRIBUTED AND/OR SOLD. ON OR ABOUT MAY 2, 2017, AN INSPECTOR AUTHORIZED BY EPA CONDUCTED A PESTICIDE PRODUCER ESTABLISHMENT INSPECTION AT A MEHERRIN AG FACILITY LOCATED AT 5724 SYDNEY ROAD, BELHAVEN, NC. ON OR ABOUT MAY 5, 2017, THE INSPECTOR CONDUCTED A FOLLOW UP INSPECTION AT RESPONDENT'S COMPANY HQs LOCATED AT 413 MAIN STREET, SEVERN, NC. ON OR ABOUT MAY 12, 2017, THE INSPECTOR CONDUCTED A SECONDARY FOLLOW UP INSPECTION AT THE HOME OF A CUSTOMER OF MEHERRIN AG, LOCATED IN BATH, NC. THE INSPECTOR COLLECTED PHOTOGRAPHS AND STATEMENTS FROM RESPONDENT AND THE CUSTOMER THAT INDICATED TO EPA THAT THERE APPEARED TO BE ISSUES WITH RESPONDENT'S COMPLIANCE WITH THE STANDARDS FOR REPACKAGING PESTICIDE PRODUCTS INTO REFILLABLE CONTAINERS AS PROMULGATED UNDER 40 CFR PART 165, SUBPART D. 40 CFR 165.70(e)(3) REQUIRES THAT REFILLERS WHO ARE NOT REGISTRANTS MUST REPACKAGE A PESTICIDE PRODUCT ONLY INTO A REFILLABLE CONTAINER THAT IS IDENTIFIED ON THE DESCRIPTION OF ACCEPTABLE CONTAINERS FOR THE PESTICIDE PRODUCT PROVIDED BY THE REGISTRANT. EVIDENCE OBTAINED DURING THE INSPECTIONS INDICATES THAT RESPONDENT DISTRIBUTED OR SOLD THE PESTICIDE ROUNDUP POWER MAX II CONTAINED WITHIN A REFILLABLE CONTAINER NOT LISTED ON THE PRODUCT REGISTRANT'S LIST OF APPROVED CONTAINERS ON AT LEAST ONE OCCASION FROM ITS BELHAVEN FACILITY. FURTHERMORE, THE CONTAINER WAS NOT DURABLY MARKED WITH A SERIAL NUMBER OR OTHER IDENTIFYING CODE AS REQUIRED UNDER 40 CFR 165.45(d) AND DID NOT COMPLY WITH THE STANDARDS FOR OPENINGS AS DESCRIBED UNDER 40 CFR 165.45(e). 40 CFR 165.70(e)(5) REQUIRES, IN PART, THAT REFILLERS MUST HAVE AT THEIR ESTABLISHMENT BEFORE REPACKAGING A PESTICIDE PRODUCT INTO ANY REFILLABLE CONTAINER FOR DISTRIBUTION OR SALE, ALL OF THE FOLLOWING: (1) A WRITTEN CONTRACT WITH THE PESTICIDE PRODUCT REGISTRANT TO REPACKAGE THE PESTICIDE PRODUCT AND TO USSE THE LABEL OF REGISTRANT'S PESTICIDE PRODUCT; (2) THE PESTICIDE PRODUCT'S LABEL AND LABELING; (3) THE REGISTRANT'S WRITTEN REFILLING RESIDUE REMOVAL PROCEDURE FOR THE PESTICIDE PRODUCT. EVIDENCE OBTAINED DURING THE INSPECTIONS INDICATES THAT RESPONDENT WAS UNABLE TO DEMONSTRATE THAT IT HAD THE RECORDS CORRESPONDING TO (1), (3), AND (4) UPON REQUEST OF THE INSPECTOR AT ITS BEHALVEN FACILITY. EVIDENCE OBTAINED DURING THE INSPECTIONS INDICATES THAT RESPONDENT REPACKAGED THE PESTICIDE PRODUCT ROUNDUP POWER MAX II INTO A REFILLABLE CONTAINER THAT (1) DID NOT HAVE A TAMPER-EVIDENT DEVICE INTACT AND (2) WAS LABELED FOR A DIFFERENT FORMULATION, ROUNDUP POWER MAX , WITHOUT CONDUCTING THE REQUIRED RESIDUE REMOVAL PROCEDURE ON AT LEASE OE OCCASION AT ITS BELHAVEN FACILITY. EVIDENCE INDICATES THAT A REFILLABLE CONTAINER LABELED FOR ROUNDUP POWER MAX WAS DISTRIBUTED OR SOLD FROM ITS BELHAVEN FACILITY CONTAINING THE ROUNDUP POWER MAX II PESTICIDE PRODUCT AND THAT THE CONTAINER'S LABEL DID NOT BEAR AN EPA ESTABLISHMENT NUMBER OR A NET CONTENTS STATEMENT AS REQUIRED ON AT LEAST ONE OCCASION. EVIDENCE INDICATES THAT SUCH RECORDS WERE NOT BEING GENERATED BY RESPONDENT AT THE TIME OF THE INSPECTION AT ITS BELHAVEN FACILITY. BASED ON THE FOREGOING, EPA ALLEGES RESPONDENT FAILED TO COMPLY WITH SECTIONS 19(e) AND (f) OF FIFRA, AND THE REGULATIONS PROMULGATED AT 40 CFR 165, SUBPART D. EVIDENCE INDICATES THAT RESPONDENT DISTRIBUTED OR SOLD A PESTICIDE (ROUNDUP POWER MAX II) FROM ITS BELHAVEN FACILITY THAT WAS MISBRANDED IN THAT IT (1) WAS IN IMITATION OF, OR WAS OFFERED FOR SALE UNDER THE NAME OF, ANOTHER PESTICIDE (ROUNDUP POWER MAX); (2) DID NOT BEAR THE REGISTRATION NUMBER ASSIGNED UNDER SEC 7 TO EACH ESTABLISHMENT IN WHICH IT WAS PRODUCED; (3) DID NOT BEAR THE NET WT OR MEASURE OF THE CONTENT AT ONE OCCASION.

Defendants (1)

• MEHERRIN AGRICULTURAL & CHEMICAL COMPANYNamed in complaintNamed in settlement

Facilities (1)

• MEHERRIN SYDNEY

  5724 SYDNEY RD, BELHAVEN, NC, 27810

  Registry ID: 110038222170

Statutes cited

• FIFRA 12A2S — Violate Regulations Under 3(a) or 19
• FIFRA 12A1E — Adulterated/Misbranded

Enforcement conclusions (1)

• MEHERRIN AGRICULTURE & CHEMICAL COMPANYentered 2019-12-17

  Primary law: FIFRA

  Federal penalty: $8,300

Timeline (4 milestones)

• 2019-12-17Complaint Filed/Proposed Order
• 2019-12-17Final Order Issued
• 2020-01-13Enforcement Action Data Entered
• 2020-01-21Enforcement Action Closed