From Boucher Michael

Sent Friday December 19 2008 1002 PM GMT

To Edwards.Dennisepamail.epa.gov Ross.Philipepamail.epa.gov

Cc sgoldberg@steptoe.com Boucher Michael mbouchermckennalong com

Subject Nalco Company Distribution of unregistered pesticides

Attach Non-CBI submission to Dennis Edwards EPA.pdf

Dear Dennis and Phil

Attached is redacted version of CBI submission that delivered to Denniss office this morning by

courier In the package included an extra copy of the submission for Phil In addition am

sending complete and unredacted copy of the entire submission to Mr Goldberg by UPS

Please contact me with any questions that you have about this submission We look forward to

receiving your reply

Sincerely

Michael Boucher

Counsel to Buckman Laboratories Inc

McKENNA LONG ALDRIDGE LLP Attorneys at Law

Michael Boucher 1900 Street NW Suite 100

Tel 202 496-7729 Washington D.C 20006-1102

Fax 202 496-7756 United States of America

Cell 202 306-1645 Tel 202 496-7500

mbouchermckennalonq.com http//www.mckennalonq.com

ALBANY ATLANTA BRUSSELS DENVER LOS ANGELES NEW YORK PHILADELPHIA SAN DIEGO SAN FRANCISCO WASHINGTON D.C
McKenna Long Albany

A1dric1cre.LJ New York

Atlanta Philadelphia

Attorneys at law

Brussels San Diego

1900 Street NW Washington DC 20006

Denver Tel 202.496.7500 Fax 202.496.7756 San Francisco

www.mckennalong.com Los Angeles Washington DC

MICHAEL BOUCHER EMAIL ADDRESS

202 496-7729 mboucher@mckennalong.com

December 19 2008

BY HAND

Dennis Edwards Chief

Regulatory Management Branch

Antimicrobials Division Mail Stop 751 OP

Office of Pesticide Programs

U.S Environmental Protection Agency

One Potomac Yard

2777 South Crystal Drive

Arlington Virginia 22202

Re Nalco Company

Distribution and Sale of Unregistered Pesticides

Dear Dennis

We understand from Phil Ross that the Antimicrobials Division is deciding whether to

grant Nalco Companys Nalcos December 2007 petition to revoke existing registrations

of the ammonia-based products BCMW EPA Reg No 1448-432 and Busan 1215 EPA

Reg No 1448-433 which belong to our client Buckman Laboratories Inc Buckman and

whether to grant Buckmans September 2008 petition to require the registration of all

ammonia products for water treatment including but not limited to Nalcos unregistered

ammonia product Nalcon 60620 EPA must be fully and truthfully informed in making the

foregoing decisions which will have significant business and regulatory consequences

On February 2008 you wrote to Nalcos outside counsel Seth Goldberg and expressly

prohibited Nalco from distributing or selling unregistered ammonia with pesticidal claims see

Exhibit attached hereto Recently customer of Nalco provided Buckman with an

electronic copy of PowerPoint slides prepared and presented by Nalco The 15 Nalco slides

attached hereto as Exhibit and discussed in sub-paragraphs and below are new and

undeniably relevant information that bears directly on the issues before EPA in Nalcos and

Buckmans petitions This new information contradicts assertions in Nalcos December 2007

petition to the EPA and shows that Nalco violated FIFRA 12a1A perhaps knowingly by
Dennis Edwards Chief

December 19 2008

Page

distributing and selling Nalcon 60620 with pesticidal claims In other words this new

information if correct would alter the factual basis on which EPA will resolve Nalcos and

Buckmans opposing petitions and would be independently significant for purposes of FIFRA

enforcement While Nalco would argue that our allegations in sub-paragraphs and

below are based on information taken out of context the appropriate place to evaluate such an

argument is before the EPA with all of the relevant facts disclosed to the Agency We are sure

that Nalco would wish EPA to decide any factual issues in dispute fully and with finality

The slides contained in Exhibit hereto have no commercial value to Buckman

Buckman has no competitive use for them and Buckman derives no economic benefit from

having received them Buckman did not seek or request the slides and Buckman has not used

any information in the slides for any commercial or technical reason and will not do so

However Buckman must address the fact that the attached slides prepared by Nalco

contradict portions of Nalcos December 2007 petition to the EPA and also show that

violation of FIFRA has occurred may be ongoing and may be knowing violation

Specifically in Buckmans view the slides contained in Exhibit hereto are relevant to EPA for

the following reasons

Slides 41-43

In good faith Buckman provided both Nalco and its customer with an opportunity to

review the foregoing slides and to explain why they are irrelevant to EPAs enforcement of

FIFRA and the Agencys consideration of Nalcos December 2007 petition In our view

Nalcos reply was unresponsive By arguing context Nalco admitted the slides relevance By

alleging confidentiality concerns about document replete with copyright claims Nalco

appeared disingenuous If you have not seen Nalcos reply we invite Nalco to share it with you

Nalcos customer did not reply to our letter
Dennis Edwards Chief

December 19 2008

Page

Furthermore while the attached slides have no commercial value or competitive use to

Buckman and contain no obvious trade secrets we are submitting the slides to you under claim

of confidentiality in order to limit their disclosure to Nalcos customer Buckman and EPA and

thereby to prevent any further disclosure that in theory could harm Nalco or Nalcos customer

which provided the slides to Buckman Also please let us know if you plan to refer this matter

to EPA Headquarters enforcement staff for investigation so that we know whether to re-file the

relevant portions of this submission with EPA Region for investigation of apparent FIFRA

violations

We look forward to your reply and invite any questions that you may have about this

submission

Very truly yours

Michael Boucher

Counsel to Buckman Laboratories Inc

/mb

Attachments 16 pp

cc Seth Goldberg Esq

Steptoe Johnson LLP

1330 Connecticut Avenue NW

Washington D.C 20036
EXHIBIT
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON D.C 20460

FEB 2O8 OF

PREVENTIO ESTICIDES AND

TOXIC STANCES

Mr Seth Goldberg

Steptoe Johnson LLP

1330 Connecticut Avenue NW

Washington DC 20036

Subject Nalco Petition

Dear Mr Goldberg

This letter will acknowledge receipt of your December 2007 e-mail mess on

behalf of Nalco requesting that EPA reconsider its registration for two ammonia pri icts

used in connection with chlorine to treat water We are treating this communiCatiol

petition under the Administrative Procedures Act and intend to respond to it in tir

manner in collaboration with our Office of General Counsel

The petition raises several questions that the Agency will need to further

investigate before any decision can be reached During its investigation the Agenc

expects to announce receipt of and invite public comment on the petition since EP

decision may impact other companies and may raise additional issues

Until EPA makes decision on the petition the Office of Pesticide Prograi

would regard Nalcos sale and distribution of ammonia and ammonia products for in

connection with chlorine to treat water to require registration under FIFRA Section

only ifNalco makes pesticidal claim for such products Please do not hesitate to

contact me if you have any questions

Sanders Director

Antimicrobials Division 751 OP

Office of Pesticide Programs

Internet Address URL http//wwwepa.gOV

RecyclewRecyClable Printed with Vegetable Oil Based Inks on 100% Postconsumer Process Chlorine Free RecycI 9aper
EXHIBIT

NOT INCLUDED CONSISTS

WHOLLY OF CONFIDENTIAL

BUSINESS INFORMATION