Pesticide
Labels Must Warn Workers of Dangers
DuPont
Penalized for Violating Worker Protection Standard rule
Federal
law requires that pesticide labels must warn workers of risks and protections
that must be taken when applying the product.
In
a landmark decision issued April 30, 1998, an Environmental Protection Agency
judge imposed the largest administrative penalty in the
Agency’s history against E.I. DuPont de Nemours & Co. (“DuPont”) for
violating these requirements.
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WHAT
THE LAW REQUIRES:
Section
12(a)(1)(E) of the Federal Insecticide, Fungicide, Rodenticide Act, 7
U.S.C, §136j, prohibits the sale or distribution of misbranded
pesticides.
FIFRA
§2(q)(1)(G) defines a pesticide as misbranded “if the does not
contain a warning or a caution statement which may be necessary and if
complied with... is adequate to protect health and the environment.”
The
Worker Protection Standard rule, 57 Fed. Reg. 38102 (1992) (codified at
40 C.F.R., Parts 156 and 170) stipulates that protective eyewear and
other early entry personal protective equipment are necessary to lessen
“unreasonable risks” to agricultural workers from on the job
pesticide exposures. |
EPA
Administrative Law Judge Edward J. Kuhlmann ordered DuPont to pay $1.89
million for ignoring EPA orders to stop shipping pesticides with labels that
omitted protective eyewear warnings required by the Worker Protection Standard
rule (“WPS rule”). The WPS rule was enacted under the Federal Insecticide,
Fungicide and Rodenticide Act (“FIFRA”) in August 1992 to reduce the
number of pesticide-related illnesses and injuries to agricultural workers
from on the job pesticide exposures. In publishing the rule, the Agency
determined that protective eyewear and other simple safety measures would
“reduce substantially the number of pesticide-related illnesses and injuries
to agricultural employees.”
In
the complaint filed in October 1994, EPA alleged that DuPont sold and
distributed Bladex and Extrazine herbicides without the protective eyewear
label warnings required by the WPS rule. The complaint charged that DuPont
sold these misbranded herbicides on 379 occasions after receiving a written
Notice of Serious Error, which stated in bold upper case letters that DuPont “MUST NOT SELL OR DISTRIBUTE”
the products. Based on cost and pricing information obtained from DuPont
following the court order, EPA calculated that the company’s made more than
$9.4 million from sales of the misbranded pesticides.
In
his decision, Judge Kuhlmann found DuPont liable for all 379 violations
alleged by EPA. In assessing the maximum penalty allowable under federal law,
the Judge found that “Respondent’s knowing violation of an agency order
demonstrates a failure to exercise due care.” “[DuPont’s] culpability is
established by its decision not to cease shipments of the Bladex and Extrazine
products in April 1994 despite its receipt of the Notices of Serious Error on
March 16 and 22, 1994.” Kuhlmann found that DuPont’s actions created the
potential for serious
harm
to human health and the environment, stating that “[a]ctions like those taken
by Respondent in this case -- shipping pesticides with labels found by the
Agency to contain serious errors after being expressly told not to do so --
interfere with the Agency’s ability to carry out its statutory mandate to
protect human health and the environment and thus present a clear threat to
the FIFRA regulatory scheme.” DuPont’s actions “created the potential
for serious or widespread harm to human health and the environment by
preventing achievement of the basic goals of the WPS and FIFRA,” Kuhlmann
added.
In addition to the record penalty, this was the first case to
be tried under the WPS rule. When publishing the rule, EPA estimated that tens
of thousands of agricultural workers were experiencing acute illness and
injuries each year as the result of occupational exposures to pesticides. The
Agency estimates that more than 3.5 million farmworkers and other pesticide
handlers should be receiving protection today because of the WPS rule.
CASE
HIGHLIGHTS:
•
This is the first court decision involving the new FIFRA Worker Protection
Standard rule.
•
Citing Johnson-Pacific
and Sav-Mart,
Judge Kuhlmann noted in his decision that FIFRA penalties are designed to “deter future violations” and
that such deterrence includes “recovery
of economic benefit” to
take “away the economic incentive to violate the law.”
•
Judge Kuhlmann concluded that DuPont’s defiance of EPA orders, the harm to
the EPA’s regulatory program and the $9.4 million profit enjoyed by DuPont
were reasonable bases for his sweeping decision.
For
more information contact:
Mark
Garvey, (202) 564-4168 or
Robert Darnell, (202)
564-4176.