From Wersinger Kate kwersingersteptoe.corn

Sent Wednesday April 29 2009 822 PM GMT

To Boucher Michael rnboucherrnckennalong corn

Cc Edwards.Denniseparnail.epa.gov Hardy.Michaeleparnail epa.gov

philip.rossepa.gov

Subject

Attach Nalco.pdf

Nalco.pdf Mr Boucher At the request of Mr Ross attached is

public disclosure copy of document submitted yesterday in further

support of Nalcos petition to cancel Buckmans ammonia products

Please let me know if you have any questions

Best regards

Kate Wersinger

Legal Executive Assistant

to Elizabeth Brown

and Seth Goldberg

Steptoe Johnson LLP

1330 Connecticut Avenue NW

Washington DC 20036-1795

202 429-6214

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Nalco.pdf

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STEPT0E jOHNSON

AlT ORNEYS AT LAW

Seth Goldberg 1330 Connecticut Avenue NW

202429.6233 Washington DC 20046-3795

sgoldbergsteptoe.com Tel 202.429.3000

Fax 202.429.3902

steptoe.com

April 28 2009

By Hand Delivery

Public Disclosure Copy

Michael Hardy

Dennis Edwards

Antimicrobials Division

Office of Pesticide Programs 7504P 751 OP

U.S Environmental Protection Agency

One Potomac Yard

2777 South Crystal Drive

Arlington VA 22202

Philip Ross

Senior Attorney

Pesticides and Toxic Substances Law Office 2333

United States Environmental Protection Agency

Washington DC 20460

Dear Messrs Hardy Edwards and Ross

am writing on behalf of Nalco Inc in response to letter dated December 19 2008 that

Michael Boucher sent you alleging that Nalco has been making pesticidal claims for ammonia

and that those claims are somehow relevant to EPAs consideration of Nalco petition to cancel

the registrations EPA has granted to Buckman for ammonia used to stabilize chlorine in water

treatment systems This letter contains trade secret confidential business information

Since Nalco brought the ammonia issue to the attention of EPA in 2007 and petitioned for

cancellation of the registration for ammonia that EPA granted to Buckman Nalco has

consistently explained that ammonia is stabilizer or adjuvant and that the active ingredient in

water treatment systems is Chlorine As with many inert ingredients or adjuvants it enhances

the stability and therefore the effectiveness of the chlorine but is not by itself active This is

explained in our October 27 2007 initial letter to EPA and December 2007 petition to cancel

Buckmans registration for ammonia as an antimicrobial the Petition or Nalcos Petition In

fact as Nalco has previously pointed out ammonia is good source of food for microorganisms

and therefore would function as pro-microbial if it were used alone in water system See

Nalcos Petition at Section II and cited references in EPA Guidance Manual Alternative

Disinfectants and Oxidants April 1999

WASifi NC NEW YORK CFOCAG0 PHOLrOX LOS ANGELES CENTURY COY LONDON BRUSSO
Messrs Hardy Edwards and Ross USEPA STEPTOE JOH NSON

April 28 2009

Page of

Public Disclosure Copy

Nalco categorically rejects Buckmans claim that it has taken position at odds with the

scientific facts and regulatory precedent that ammonia and other stabilizers used in chlorinebased water treatment systems are not pesticides and do not require registration Nalco called

this situation to the attention of EPA Nalco performed extensive research to document the

scientific principles that underlie the effectiveness of stabilized chlorine in water treatment and

EPAs long recognition of the fact that only the active ingredient in stabilized chlorine and

similar systems has been required to be registered by EPA This information should provide the

basis for EPAs decision on Nalcos Petition to Cancel Any statements that may or may not

have been said in presentation are irrelevant to EPA consideration of the petition to cancel

Buckmans registrations Nalco continues to believe the petition represents the only correct

interpretation of FIFRA in this context and urges EPA to grant it promptly

Below Nalco responds to Mr Bouchers assertions regarding statements made by Nalco

representatives the significance of any such statements the importance of the pending petition to

cancel and the unlawful manner in which Buckman obtained and is attempting to use

confidential business information that is the property of Nalco and its customer

Once you have had an opportunity to review this letter in the event you have any remaining

questions concerning stabilized chlorine chemistry the understanding of Nalco and its customer

of the roles of the components of such system or the statements made in connection with the

presentation Nalco will be pleased to have the appropriate personnel meet with you

Nalco Customer Presentations and Statements Regarding Ammonia

In his letter of December 19 Mr Boucher appears to claim that excerpts from presentation that

Nalco gave to somehow are inconsistent with the correct view that ammonia

is not pesticide Nalco is perplexed by this claim

As explained above Nalco has consistently maintained that ammonia and other stabilizers are

not pesticides but stabilize chlorine to enhance its persistence in particular systems Nothing in

the presentation Nalco gave to is inconsistent with that view Nalco believes

these slides are entirely consistent with its position that ammonia and other stabilizers are not

pesticides In fact Nalco voluntarily requested review of this confidential presentation by Mr

Michael Hardy to confirm that the highly technical presentation was consistent with FIFRA

Mr Hardy suggested minor wording changes to three slides

to ensure that the information would not be taken out of context if

only the slides were available Nalco has incorporated those suggestions going forward

However Nalco submits that nothing in the confidential presentation claims that ammonia is

pesticidal Simply put ammonia is not pesticide Nalco has no reason to claim ammonia or

any chlorine stabilizer is an active ingredient It did not make any such claim and will not in the

future
Messrs Hardy Edwards and Ross USEPA

April 28 2009

Page of

Public Disclosure Copy

STEPT0E JOF1NSON

Response to Specific Claims in Mr I3ouchers Letter

The specific portions of certain slides Mr Boucher refers to do not support his claim that Nalco

was asserting ammonia is pesticide

Specifically in relation to the excerpted slides the following context and comments are provided
Messrs Hardy Edwards and Ross USEPA

April 28 2009

Page4of6

Public Disclosure Copy

STEPT0E JOHNSONL

Overall the confidential presentation Nalco representatives gave to Nalcos customer

provided extensive information on stabilized chlorine water treatment

systems including not only the history of stabilized chlorine but also the attributes of number

of proprietary stabilization systems marketed by Nalco Throughout the active ingredient is

chlorine Therefore nothing Nalco presented to its customer is inconsistent with the science

regulatory history and precedent that Nalco pointed out to EPA

As explained above Nalcos statements do not alter the science or agency precedents which

demonstrate that ammonia is not an active ingredient Therefore even ifMr Boucher is
Messrs Hardy Edwards and Ross USEPA ST Jo SON

April 28 2009

Page of

Public Disclosure Copy

assumed to be correct which he is not Nalcos statements are irrelevant to EPAs consideration

of Nalcos petition to cancel Buckmans registration

Importance of Nalcos Petition to Cancel

Nalco filed its petition to cancel Buckmans registration on December 2007 Unfortunately

since then we have noted that EPA has granted other registrations for ammonia compounds used

in water treatment including July 15 2008 amendment to the registration of Busan 1215 EPA

Reg No 1448-443 to add new use in industrial water systems These new actions demonstrate

the importance of EPA resolving this issue in scientifically valid and regulatorily consistent

manner Nalco believes the only resolution that can be supported is to cancel the registrations

issued to Buckman for ammonia compounds used to stabilize chlorine used in water treatment

Nalco is willing to meet with EPA to further explain the positions in its written submissions

including the technical regulatory and legal reasons indicating that EPA granted Buckmans

registrations on the basis of incomplete information

Ammonia and other stabilizers for halogen-based pesticides clearly fall within the category of

adjuvants These types of materials are not active ingredients and have never been considered as

such previously Should EPA change the definition or interpretation of what constitutes

pesticide to include any separately sold adjuvant would result th complete disruption of all

pesticide markets not just those using halogen-based pesticides in water treatment systems

including most drinking water systems in the United States There is no basis for limiting the

change to stabilizers in water treatment systems For example claim that an adjuvant provides

better dispersion or adhesion and thus would improve pesticides efficacy would require

registration of that adjuvant as pesticide product under revised interpretation Certainly any

consideration of such broadly applicable and disruptive change should be performed

transparently through formal process and should include both scientific input and input from the

many potentially affected stakeholders

Buckmans Unlawful Use of Other Companies Confidential Business Information

Buckmans conduct in obtaining the presentation Nalco gave to and its use of

other companies confidential trade secret information should be considered by EPA in

evaluating the credibility of Buckmans position Buckman obtained the materials it uses to

support its letter illicitly It possesses confidential business information of Nalco arid

without the permission of either company This unethical conduct should be

considered by EPA in evaluating not only the strength of Buckmans claims but also Buckmans

fitness to hold pesticide registrations at all Nalco is pleased to provide EPA with complete

information about its products and the claims it makes for them In fact Nalco sought and

received input from EPA on the presentation obtained improperly by Buckman This

information is Nalco trade secret information Nalco has not and will not share this information

with its competitors including Buckman Because Buckman seeks to use this illicitly-obtained

information for its commercial gain and to have EPA act as its agent in doing so Nalco
Messrs Hardy Edwards and Ross USEPA STEP 10 jo SO

April 28 2009

Page6of6

Public Disclosure Copy

respectfully requests that EPA not consider any of the information provided to it by Buckman

inform Buckman of that fact and commence proceeding to take appropriate disciplinary action

against Buckman for its unethical conduct

Please contact me in case of questions and to discuss the results of your review

Si erely

Seth Goldberg