## From Boucher Michael 

### Sent Friday 

### December 192008 

### 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

### morningby courier Inthe

### package included 

### an extra 

### copy of thesubmission forPhil In addition 

## am sending complete 

### and unredacted 

### copy ofthe entire submission to

## MrGoldberg by

# UPS
Please contact 

## mewithanyquestions 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 Fax202 496-7756 United States ofAmerica 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

# McKennaLong 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



## BYHAND Dennis 

### Edwards Chief Regulatory 

### Management Branch Antimicrobials Division Mail Stop 751OP 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 ofUnregistered 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 ofthe ammonia-based products 

# BCMWEPA 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

## EPAand shows that Nalco violated 

### FIFRA 

# 12a1A perhaps knowingly byDennis 

### Edwards Chief 

### December 19 2008 Page

distributing and selling Nalcon 60620 with pesticidal claims In other 

### words this 

### new information ifcorrect 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 ofcontext the appropriate place to evaluate such an argument is before the

# EPAwith all ofthe relevant facts disclosed to the

### Agency 

# We are sure that Nalco would wish 

## EPA to decide any factual issues in dispute fully andwith 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 ortechnical 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 

### wasunresponsive 

## By arguing context Nalco admitted the slides relevance 

## By alleging confidentiality concerns about document replete with copyright claims Nalco appeared disingenuous Ifyou have not seen 

### Nalcos reply

## we invite Nalco to share itwith

## you Nalcos customer did not reply to our letterDennis 

### 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 aresubmitting the slides to you under claim ofconfidentiality in order to limit their disclosure to 

### Nalcos customer 

## Buckman and

# EPAand thereby to prevent any furtherdisclosure that in theory could 

### harmNalco or

### Nalcos customer which provided the slides to 

## Buckman Also please let us 

### know ifyou plan to refer this matter to 

## EPA Headquarters enforcement staff for investigation so that 

## weknow whether to re-filethe 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 

## mayhave 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

# MrGoldberg This letter will acknowledge receipt ofyour

### December 2007 e-mail 

### mess on behalfofNalco requesting that

## EPA reconsider its registrationfortwo 

### ammonia pri icts used in connection with chlorine to treat water 

# We aretreating this communiCatiol petition under the Administrative Procedures Act and intend to respond to it in tir 

### manner in collaboration with ourOffice ofGeneral Counsel 

### The petition raises several questions that the

### Agency willneed to further investigate before any decision can bereached During its investigation the 

### Agenc expects to announce receipt 

### ofand invite public 

### comment 

## on the petition since 

### EP decision 

## mayimpact other companies and

## may raise additional issues
Until 

## EPAmakes decision onthe petition the Office ofPesticide Prograi 

### would regard 

### Nalcos sale and distribution of

### ammonia and 

### ammonia products for in connection with chlorine to treat water to require registrationunder

## FIFRA Section only ifNalco 

### makes pesticidal claim for such products Please do not hesitate to contact 

## me ifyou have any questions

Sanders Director Antimicrobials Division 

### 751

# OP Office ofPesticide Programs

Internet Address URL http//wwwepa.gOV RecyclewRecyClable Printed with Vegetable Oil Based Inks on 100% Postconsumer Process Chlorine Free RecycI 9aper

# EXHIBIT NOTINCLUDED CONSISTS 

# WHOLLYOFCONFIDENTIAL BUSINESS

# INFORMATION