# BEVERIDGE~

& DIAMOND 

# reT Karen M. Hansen 1350 I Street. NW. Suite 700
Washington. D.C. 20005-3311

Direct: (202) 789-6056

Fax: (202) 789-6190 khansen@bdlaw.com



### March 18,2010



### Via Electronic Mail and U.S. Mail

Mr. Philip 1. Ross U.S. Environmental Protection Agency Office of General Counsel 

### Pesticides and Toxic Substances Law Offce Ariel Rios North 1200 Pennsylvania Ave., N.W. Washington, D.C. 20460 Ms. Joan Harrigan-Farrelly Director, Antimicrobials Division Office of Pesticide Programs U.S. Environmental Protection Agency

Mail Code: 751 OP Washington, D.C. 20460

Re: Ashland Inc. (Ashland) Responses to EPA's Questions From February 16,2010 Meeting


### Dear Ms. Harrigan-Farrelly and Mr. Ross:



### As requested by EPA at the February 16,2010 meeting the Agency held with Ashland, Buckman and Na1co, this letter provides Ashland's comments on the written 

### questions EPA distributed at the meeting as well as the questions EPA asked during the 

### meeting. In providing these responses to EPA, we also address several points that were made by the other parties at the meeting, to the extent these points are germane to EPA's 

### questions. Our detailed comments responding to EPA's questions are presented in 

### Attachment A to this letter, with a brief summary presented below. As always, we appreciate your consideration of this information.

The issues before EPA are very simple. The bottom line is that Na1co is selling two unregistered pesticide products -- Nalcon 60615 (urea) and Na1con 60620 (ammonium 

### sulfate) -- that Na1co uses at pulp and paper mils in a chemical reaction with sodium hypochlorite to produce two new biocidal active ingredients, namely, chlorourea and 

### chloramines, respectively. These biocides are used in paper mil process water to control microorganisms -- in other words, they kill bugs. N a1co claims these two products are

merely 

### adjuvants. However, the two products are used in chemical reaction with sodium hypochlorite and, as such, are not adjuvants under FIFRA. Nalco also claims these two 

### products are stabilizers. This is also incorrect. Na1co's ammonium sulfate and urea products do not stabilize hypochlorite; instead, each precursor reacts chemically with the

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### hypochlorite to form a new and distinct biocide. Under longstanding EPA precedent of registering the precursors in such circumstances, both ofNalco's products are biocides that 

### require FIFRA registration. EPA has not reviewed and assessed any scientific data related to these products to determine that they wil not cause unreasonable risks to human health (including occupational and non-occupational exposures) or the environment. The Agency should immediately remove these products from the marketplace.

Urea rNa/con 60615):


### Na1co's urea product has not been reviewed by EPA pursuant to FIFRA. Prior to EPA's February 16th meeting, Nalco had not provided the Agency with any meaningful information regarding this product. And, at EPA's February 16 meeting, Na1co provided no information about its urea product. N alco' s representatives never mentioned chlorourea or

N a1con 60615. The three references to "urea" made by N alco during the meeting were 

### generic, and shed no light for EPA on Nalco's specific practices or claims with respect to its

urea product. Moreover, Na1co did not dispute any aspect of the urea/sodium hypochlorite chemistry facts that Ashland presented at the meeting. Indeed, throughout this entire proceeding Nalco has provided no factual, scientific or other substantive information to EPA about its urea product despite abundant opportunities to do so.

The undisputed information EPA now possesses about this product includes the following facts:

. Urea when reacted with sodium hypochlorite generates a new biocide, chlorourea. . No published toxicological data exist for chlorourea. 

### . The urea/hypo chemical reaction, if uncontrolled, creates hydrazine, a dangerous gas. . The open literature on chlorourea is relatively sparse, a fact that, from a scientific perspective, raises a red flag regarding the uncertainties associated with conducting this chemistry, for both the real-world workplace exposures and any food contact scenarios that might be relevant to the use ofNa1co's product.

. EP A has not reviewed this product for safety under FIFRA and has not reviewed the 

### use of chlorourea as a biocide or the controls necessary to prevent creation of 

### hazardous gases with such a use. As such, EPA does not have any basis to assure safety to the public and mill workers where this product is used. 

### . In the absence of an EPA-approved label and use directions that have been fully vetted under FIFRA, Nalco is selecting the amounts of chemicals and means of application of this potentially dangerous chemistry at its discretion. 

### . Information presented to EPA at the recent meeting (see Transcript, pp. 102-103)

suggests that Nalco employees may not understand the nature of the materials they are handling and how to ensure Nalco's products are used safely at mills.

Given these facts, there is no justification for EPA allowing Nalco's unregistered urea product to

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remain in the marketplace.

Despite these facts, Nalco recently asserted that it has "provided information on the urea stabilizer in prior submissions to EPA, (and) addressed the urea product at the February 16 

### meeting....." (Na1co letter to EPA dated March 10,2010). These statements are not supported

by the record. According to EPA, as of June 10, 2009, Nalco had not provided any information 

### about its urea product to the Agency (See P. Ross email to K. Hansen dated June 10,2009). 

### Nalco has elected to continue not providing such information to EPA. In fact, none ofNalco's submissions to EPA since that date address any of the information provided to EPA about

Nalco's urea product. The only Nalco communication of record we are aware of that provides

any information to EPA about Nalcon 60615 is Nalco's April 2009 letter addressing its 2008 marketing materials. Ironically, and as you know, Nalco has repeatedly asked EPA to ignore the 

### information in these marketing materials. Nalco's March 10,2010 assertion that it has "provided information on the urea stabilizer in prior submissions to EPA" is plainly at odds with the record before EPA.

As for the recent meeting, the Transcript speaks for itself: At no point during the meeting did Nalco provide an affirmative presentation with any substantive information about its urea 

### product, Nalcon 60615, and none ofNalco's answers to EPA's questions probing the true nature

ofNalco's products and claims provided any meaningful explanation of 

### this product. As noted,

none of the Nalco representatives mentioned Nalcon 60615 or chlorourea at any point in the meeting. The only remarks made on behalf ofNalco that mention urea are the following:

. An assertion that urea, like ammonia, serves as a nitrogen source and is non-pesticidaL. Mr. Goldberg, Transcript p. 75;

. In response to Mr. Jordan's question about safety, an assertion that "(a)mmonia and urea 

### both are widely-used, separately-added adjuvants." Mr. Goldberg, Transcript p. 103; and . An assertion that "ammonia and urea, they simply don't contribute an active moiety.

Therefore, they shouldn't be registered." Mr. Goldberg, Transcript p. 110.

These conclusory, unsubstantiated and generic assertions do not constitute an explanation 

### ofNalco's urea product. Contrary to its March 10 letter, Nalco's presentation at the EPA meeting failed to provide any substantive information about its urea product, let alone 

### specifically address the facts about the chemistry and biocidal active involved with Nalco's urea product.



### Ammonium sulfate rNalcon 60620):

Regarding Nalco's unregistered ammonium sulfate product, Nalcon 60620, Nalco has been less than candid with EPA in the arguments it has been advancing since first petitioning 

### EPA in 2007 and that it continued to advance at the meeting on February 16,2010. Our attached detailed comments highlight specific instances in which Nalco's claims or statements are in

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conflct with facts in the record and contradicted by federal 

### law and well-established EPA

rules and precedent. In reality, none of 

### the points Na1co has been raising with respect to its 

### ammonium sulfate product form a legitimate basis for its ongoing failure to register this 

### biocidal product under FIFRA. Not a single one ofNa1co's key claims made for its ammonium sulfate product, Nalcon 60620, stand up to factual, technical or legal analysis. To the extent that Nalco makes similar claims for its urea product, Na1con 60615, its 

### arguments would be equally unsupported.



### Sodium Hvpoclilorite (Nalcon 60735):

In addition to the violations ofFIFRA represented by Nalco's ongoing sale of 

### these 

### two unregistered biocides, Nalco's stated use of its registered sodium hypochlorite product, Na1con 60735, in chemical reaction with its ammonium sulfate and urea products, 

### constitutes a separate, ongoing violation ofFIFRA.

* * * * * *



### During the recent meeting, Na1co made a number of statements that are 

### fundamentally at odds with the requirements and purposes of FIFRA and EPA's consistent

application of 

### the law. As you know, Ashland approached EPA in large part because of

concerns about the safety issues involved with Nalco's use of unregistered biocides at pulp 

### and paper mills. Those concerns have only been compounded by Na1co's recent statements, 

### the most troubling of which we address in our attached detailed comments.



### Ashland respectfully reiterates its request for EPA's immediate action to remove both ofNa1co's unregistered biocide products from the marketplace in order to protect public 

### safety as required by FIFRA. Any action short of this jeopardizes public safety and the

integrity of 

### EPA's FIFRA program.

Best regards,



# ìf~M.~

Karen M. Hansen

EnclosuresBEVERIDGE & DIAMOND PC

Mr. Ross and Ms. Harrigan-Farrelly Via Electronic Mail and U.S. Mail

Page 5

cc:

Dennis Edwards, EPA 

### Wiliam Jordan, EPA Dr. Melba Morrow, EPA Jasmine De Vaughn, EPA Seth Goldberg, Counsel for Na1co 

### Michael Boucher, Counsel for Buckman

1333730v1 Washington 01 1971

## Attachment A To Ashland's March 18,2010 Comments to EPA:



## ASHLAND'S FEBRUARY 16,2010 HANDOUT PRESENTATION TO EPA ON THE FIFRA STATUS OF NALCO'S TWO

UNREGISTERED BIOCIDESAttachment A:



### Ashland's Comments Regarding EPA's Questions From February 16,2010 Meeting

These comments address EPA's specific questions and provide more detail about the 

### summary points set forth in Ashland's March 18, 2010 cover letter. Our comments are organized by the topics raised in EPA's questions. We first set forth below in bold type the written questions EPA distributed at the meeting followed by our responses to those 

### questions. We then set forth, also in bold type, other questions that EPA raised at the meeting followed by our responses to those questions. A copy of Ashland's February 16, 2010 presentation is included as Exhibit I for ease of reference in reviewing these
comments.



### EPA's QUESTIONS FOR INDUSTRY REPRESENTATIVES:

1. EPA regulations at 40 CFR 152.15 provide:


### ... A substance is considered to be intended for a pesticidal purpose, and thus to be a 

### pesticide requiring registration, if:

(a) the person who distributes or sells the substance claims, states, or implies (by labeling



### or otherwse):

(1) That the substance (either by itself or in combination with any other substance) can or

should be used as a pesticide; or



### (2) That the substance consists of or contains an active ingredient and that it can be used



### to manufacture a pesticide; or ...

(c) The person who distributes or sells the substance has actual or constructive knowledge that the substance will be used, or is intended to be 

### used, for a pesticidal purpose.


### In light of this regulatory text, what documentation (if any) indicates that NALCO is currently claiming, stating, or implying that ammonia, in combination with chlorine in water systems in pulp and paper mills, can be used to produce chloramine that controls microorganisms in the water? 

### What documentation (if any) indicates that NALCO knows or has constructive knowledge that customers purchasing ammonia intend to use ammonia for a pesticidal 

### purpose? How are the products used? Are they added to process water? When? How? 

### For what purpose? Are they in the process water in combination with any other

product(s)? if 

### so, what? 

### What would be the impact to the process if the products were not used or were not available for use--either in registered or unregistered form?a. Documentation and other evidence ofNa1co's claims re chloramines



### . Nalco knows its ammonium sulfate product generates chloramines Nalco is fully aware that its ammonium sulfate product, Nalcon 60620, when chemically reacted with sodium hypochlorite, produces chloramines. Nalco's own written statements demonstrate this knowledge, including:

(i) The 2008 marketing materials that Nalco has admittedly presented to customers and that are included in the February 16,2010 Buckman presentation materials (Buckman Slides 16-25). These materials contain Nalco's statement and acknowledgement that ammonium sulfate is being reacted with sodium hypochlorite to produce chloramines. 1

(ii) Nalco's early submittals to EPA in this matter acknowledge that its ammonium sulfate product when reacted with sodium hypochlorite produces chloramines, for example: "Ammonia is added to water systems treated with chlorine to sequester free chlorine, typically resulting from hypochlorous acid or chlorine gas. Hypochlorous acid is highly reactive, reacting with any and all organic materiaL. ... Such reactivity can be controlled by generating

1 We note that Nalco failed to produce these materials to EPA on February 22,2010, despite EPA's explicit request for all relevant marketing materials and despite the fact that EPA 

### questioned Nalco about these materials at the February 16 meeting. We also point out, as has been stated to EPA elsewhere, that it is clear these materials are highly relevant evidence of 

### Nalco's knowledge and intent regarding its two unregistered biocides. Nalco has admitted that it has presented these materials to customers. See Letter from S. Goldberg to M. Hardy and P. Ross, dated Apr. 28, 2009. By law, EPA is required to consider this information, as it is directly

probative of whether Nalco's claims to customers fall within EPA regulations at 40 CFR 152.15

(they do) and ofNa1co's actual and constructive knowledge about the nature of the products it is

selling to paper mills. See, e.g., N Jonas & Co. v. Us., 666 F.2d 829,833 (3d Cir. 1981) (stating that "(iJndustry claims and general public knowledge can make a product pesticidal 

### notwithstanding the lack of express pesticidal claims by the producer itself. Labeling, industry representations, advertising materials, effectiveness and the collectivity of all the circumstances

are therefore relevant"); In the Matter of Century Products, Inc., Docket No. LF. & R. IV94F007-C, 1995 EPA ALJ LEXIS 99, 1-27 (Sept. 22, 1995), at 25 (explaining that "(cJarefully drafting the name and label of the product, eliminating any references from the label, and 

### carefully wording the advertising wil not circumvent the intended purpose and subsequent use

of the product as a pesticide when there is no other useful purpose for the product."). Furthermore, Nalco's claim that these marketing materials are CBI is spurious because the

materials are clearly marked with Nalco's copyright legend, evidence in itself that Nalco had an

expectation that the materials would be publicly distributed. In sum, Na1co's claim that its 2008 marketing material is CBI, and its further suggestion that EPA ignore this information as not relevant, are both completely at odds with the facts and with FIFRA.



### - 2-chloramines." Nalco EPA submittal dated Dec. 2007, page 7 (citations omitted).2

(iii) Nalco's patent application for the ammonium sulfate product Nalcon 60620

acknowledges that chloramines are generated: "The composition of this invention comprises a

mixture of 

### polymer, free chlorine and stable chloroamines." Nalco Co. July 10, 2008 International Publication No. WO 2008/083263 AI, at 2.

(iv) The February 16 meeting transcript contains Nalco's admission to EPA that its ammonium sulfate product (Nalcon 60620) when reacted with sodium hypochlorite produces chloramines (Transcript pp. 92-93):

Mr. Ross: (Referring to Nalco's 2008 marketing materials as represented on Page 18 of 

### Buckman's Feb. 16,2010 presentation): "Now...when you add ammonia to 

### hypochlorite...you end up with chloramine? Is that correct?

Ms. Rice: "(Y)es, that is correct. They are forming different types of chloramines."

Thus, Nalco unquestionably knows that this product when reacted with sodium hypochlorite produces chloramines. Nalco wants the Agency to believe that the chloramines

generated with this product have no biocidal purposes or effect. This position, for which N a1co has provided no data or scientific basis, either before or during the EPA meeting, ignores basic chemical facts, as both Ashland's and Buckman's chemistry experts explained at the meeting. See Transcript pp. 48-51 (Dr. Brookman on behalf of Buckman) and pp. 21-29 and pp. 96-97 (Dr. Brady on behalf of Ashland).

. Nalco knows the chlolamines are biocidal active ingredients

During the above-quoted exchange with EPA at the February 16th meeting, Nalco avoided providing a direct answer to EPA's questions about the biocidal effects of chloramines and whether Nalco's marketing materials contained claims that chloramines are biocidaL. Thus, when asked a direct question by Mr. Ross about whether Nalco's 2008 marketing materials contain claims that the chloramines are biocidal, to which a "yes" or "no" response would have been appropriate, Ms. Rice instead replied:



### "in the context of the presentation (the 2008 marketing materials), 

### the purpose of this slide was to highlight the differences in 

### stabilization rates and how the effect is impacted by the types of stabilizer, and whether you are using an inorganic or an organic

stabilzer. So it was to highlight that the different programs persist 

### differently in the process to provide a different effect. So, in the context of the presentation, the slide was used to highlight those

2 The product chemistry and technical explanation that Nalco provided in this statement are inaccurate, as the comments in this letter and prior Ashland submittals demonstrate.

- 3 -subtle differences."



### Mr. Ross then asked if Ms. Rice was equating the separate substance chloramine

with stabilzed chlorine. Ms. Rice:

"Chloramine is the stabilzed intermediate."

Mr. Ross then asked a direct question to clarify what Nalco produces when it 

### reacts ammonia with chlorine. Ms. Rice:

"The chloramine is a way to deliver the chlorine biocide into the process. And because of the differences, the very subtle differences

in the persistence of these organic versus inorganic chlorinated forms, it has an impact on the overall performance of the chlorine biocide."

Transcript, pp. 93-95.

These convoluted replies utterly failed to answer Mr. Ross's straightforward question about whether Nalco is or is not claiming that the chloramines generated by its product are the 

### biocidal active in this product. Based on the well-understood chemistry as presented at the meeting that chloramines generated by chemically reacting an ammonia source with sodium hypochlorite have distinct and dominant biocidal effect, the only honest answer would have been 

### "yes." The reality is that the chloramines produced in Nalco's Nalcon 60620 are biocidal, and they are the only active biocide made by Nalco's product. See Transcript, p. 21-29 and 48-51 

### and Ashland Slide Nos. 13-15 and 20. Thus, even ifNalco tries to insist that it has not claimed this role for chloramines, the science of ammonium sulfate that is reacted chemically with sodium hypochlorite is undisputed and demonstrates that Nalco either knows or should know that chloramines are the true active biocidal ingredient in its ammonium sulfate product.



### Moreover, from a technical perspective, unaveling these and similar Nalco responses to EPA's questions reveals that Nalco either understands that chloramines serve the biocidal purpose in its ammonium sulfate product, and it simply does not want to admit this to EPA, or 

### that Nalco truly does not understand its own product chemistry, an alarming prospect. Assuming that Nalco does understand its product chemistry, the above responses may be interpreted as Nalco's acknowledgement that its Nalcon 60620 is used to generate chloramines as the new 

### active ingredient. Later statements by Ms. Rice support this conclusion. See Transcript p. 142, lines 6-15: "So what we are saying is that, essentially, there are different stabilzers that we are classifying as adjuvants that react with the chlorine, and it is the chlorine that is providing the antimicrobial effect in the process. That chlorine can be combined with the different adjuvants,

aka stabilzers, to provide varying oxidizing power, which impacts the persistence of that 

### chlorine biocide in the process." (emphasis added). In paricular, Ms. Rice's statements:

- 4 -(i) admit that the materials chemically react, which as a matter oftechnical fact, and

using EPA's regulatory definition, means they are not adjuvants;3 and (ii) admit that the final properties of the material formed are different than the parent (varying oxidizing power, different persistence) - in other words, that the product created by reacting its ammonium sulfate product with hypochlorite is a new and distinct

chemical entity, which, as noted above, Nalco has separately admitted is chloramine.4

. Nalco's claim that only the hypochlorite is biocidal is unsubstantiated
We turn next to another technically and factually flawed aspect ofNalco's position that directly relates to EPA's questions. As EPA knows, Nalco has repeatedly advanced the claim that hypochlorite is the only active ingredient in its ammonium sulfate product.5 However,despite unlimited opportunities, Nalco has never provided one shred of evidence -- data, peerreviewed scientific support, or any other information -- to demonstrate or support this claim. Instead, Nalco just keeps repeating this unsubstantiated assertion.

We believe Nalco has done so because evidence supporting its claim simply does not exist. First, based on the technical analysis that Ashland presented at the meeting, the claim that hypochlorite is the active biocide in this product cannot be true as a matter of simple chemistry. See Ashland Slides and Dr. Brady's explanation at Transcript pp. 21-29. Ashland has provided peer-reviewed examples that explore the reaction chemistry with molecules of relevance to a biological system and show that the reaction is directly from the chloramine. We are not aware

of any peer-reviewed technical literature demonstrating that in-situ reformation of hypochlorite (HOC!) is the sole, or even a significant, pathway for biocidal action of chloramine. One could interpret Ms. Rice's comments, quoted above, as reflecting a view that focuses on the chlorine "functional group" as the active ingredient -- i.e., Nalco may be arguing that Ci+, whether bound as chloramine, chlorourea, or hypochlorous acid, is just a functional group of "CL+" -- which 

### would explain Nalco's focus on "halogen." Technically, this is completely unsupportable, since incorporating a functional group into different molecular environments inexorably alters its 

### reactivity, toxicity, environmental fate and persistence, and other properties. Chemically speaking, equating a functional group within a molecule to an ingredient is absurd.

From a regulatory perspective, Nalco's approach is just as unacceptable. As we pointed out at the EPA meeting (Transcript p.20, lines 8-18), what Nalco is advocating is a view of

3 Ashland's comments below includes a detailed discussion of the adjuvant issue. 4 An example ofNalco's internal inconsistencies can be shown here, as this directly contradicts statements made in the same meeting insisting that hypochlorite is the sole and only 

### active. See, e.g., Mr. Goldberg's statement at Transcript, p. 86 ("the registered sodium hypochlorite is the active component to the system....").

5 Assuming that Nalco is making the same claims for its urea product, all of the problems with Nalco's arguments set forth in this section of Ashland's comments apply equally to Nalco's urea product.

- 5 -FIFRA in which users could at their own discretion react any new chemical precursor with

registered sodium hypochlorite without any EPA review of that new chemistry and any new biocidal actives that are generated. This ignores the reality that these chemical reactions are taking place in the first instance for the express purpose of creating different biocides withdifferent properties than hypochlorite. This view is tantamount to EPA providing a blanket preapproval of any chemistry that could be developed in the future which is based on an in-situ reaction of registered sodium hypochlorite and any molecule that can be oxidized to yield a secondary chlorinated oxidant. Such an interpretation would allow manufacturers to deploy completely uncharacterized chemistries into the workplace and the environment, in direct contravention of FIFRA and without any regulatory oversight or control by EPA. In fact, this is exactly what Nalco did when it began sellng its urea product (Nalcon 60615) in the marketplace without first completing the required registration process under FIFRA. EPA should not countenance this egregious conduct any further.

Another technically indefensible claim Nalco makes relates to its marketing materials presented at the meeting by Buckman, specifically Buckman Slide No. 15.0. This material contains information from Nalco that reflects a scientifically unsupportable hypothesis about sodium hypochlorite and cell chemistry. Buckman's expert Dr. Brookman described Nalco's apparent theory that the ammonium sulfate "carries the hypochlorous acid into the cell, where it 

### associates back into hypochlorous acid." As noted above, Ms. Rice said that chloramines function as a delivery system to put the hypochlorite into the cells. See, e.g., Transcript at pp. 94-95 ("The chloramine is a way to deliver the chlorine biocide into the process."). Ms. Rice ascribed this mechanism as reflecting "very subtle differences in the chemistry" that affect the performance of the hypochlorite, yet she failed even to hint at a basis for this proposition. As Dr.

Brookman pointed out: "We think this is not what happens. We know of no information that

suggests that this actually happens. It is much more likely, we think, that mono chloramine reacts

by itself 

### inside the biofim." Transcript, p.50-5L. Buckman is correct. Nalco's theory of selective or targeted cell penetration -- or as phrased by Nalco, that chlorine "is released inside 

### the biofilm matrix" -- is devoid of any scientific basis. In fact, from a pure solution chemistry perspective, the reversion reaction would be expected to be less favored in a cell membrane environment since it is less polar than water and the transition state is necessarily expected to go through a highly polar intermediate.

In short, Nalco has provided no evidence to support its claim that sodium hypochlorite rather than chloramine is the biocidal active generated with its ammonium sulfate product, 

### Nalcon 60620. In contrast, Ashland and Buckman have presented significant peer-reviewed evidence to the contrary. Based on the information before it, the Agency can only conclude that chloramine, not sodium hypochlorite, is the biocidal active in Nalco's product.

Finally, Nalco's answer to the question that EPA's Dr. Morrow asked at the end of the

meeting is instructive on the issue of what Nalco understands about its products' chemistries. Dr. Morrow asked Nalco if it was, in essence, equating chlorine and chloramines and chlorourea 

### as all the same thing. Transcript pp. 141-42. Ms. Rice's response admits that adding different precursors such as ammonium sulfate and urea to hypochlorite creates biocides "with varying 

### oxidizing power." Transcript p. 142. Although Nalco again failed to provide a direct response to EPA's direct question, the response it did provide reveals that at least one person at Nalco understands that new biocides are formed with the two products at issue.

- 6 -Nalco has had many months to provide an explanation of its claim that these two

products act as stabilizers or adjuvants rather than reacting with hypochlorite to create new biocidal active ingredients. As shown above, it has not done so, and the facts do not support Nalco's claims. EPA should immediately remove these unregistered biocides from the market.

b. Documentation and other evidence of Nalco's knowledge that customers purchasing Nalco's ammonia-based and urea products intend to use it for a pesticidal
purpose.
In considering customer use ofNalco's ammonium sulfate and urea products, please recall that Nalco's biocide system is considered proprietary and for that reason, is deployed and operated at a customer's paper mil by Nalco employees (this is also true for Ashland's and 

### Buckman's biocide systems). As such, the mils do not purchase an ammonium or urea product; they purchase a service supplied by Nalco in which Nalco, not the mil, uses Nalco's ammonium sulfate or urea products. As Nalco explained at the meeting, customers purchase its system, and the system in which Nalco's ammonium sulfate and urea products are used is biocidaL. Transcript at pp. 86-87.

In addition to the information listed in the discussion above, the customer data that Ashland presented at the meeting demonstrates that customers use Nalco's ammonium sulfate product for the same purposes and in the same industrial processes as they use the ammonium salt products sold by Ashland and Buckman. All of these products control microorganisms in the 

### mil process water -- that is, they kil bugs -- and that is the only reason the paper mil customers buy these products.

In particular, Ms. Chaney's remarks at the EPA meeting at Transcript pp. 29-34 and the information shown on Ashland Slide Nos. 28 and 29 demonstrate that customers use Nalco's two unregistered products in the same process waters for the same purpose as they use Ashland's 

### registered ammonium bromide product. The measurements shown on these two slides were taken at a mil process water head box in each case, showing that the addition of the biocides 

### within the mil process occurs in the very same mil equipment whether an Ashland, a Buckman

or a Nalco product is being used. Customers monitor the performance of these biocides by measuring total combined chlorine and Adenosine-tri-phosphate (ATP), again regardless of

which company's product is being used. The measurement of total combined chlorine is important to the customer because too much residual chlorine in the process water can adversely 

### impact the quality of the paper products being made and can be corrosive to mil equipment. The

measurement of 

### residual chlorine v. ATP is important to mils because it provides assurance that a desired level of biocidal control is being achieved without excess chlorine in the system. We

also note, as was discussed at the EPA meeting, that ifNalco's theory of biocidal control from only the hypochlorite were true, customers would require Nalco to monitor free chlorine, not 

### total combined chlorine. Ashland is not aware of any paper mil that requires the collection of free chlorine data.

The genesis of this EPA proceeding provides clear evidence that Nalco has long understood that its ammonium sulfate product is biocidal and that customers use this product for this purpose. Nalco's pattern ofFIFRA-avoiding conduct in this matter began with its initial communications with EPA about its ammonium sulfate product in 2005 and 2007 e-mails with

- 7 -the Antimicrobials Division. In 2005, Nalco received an answer from EPA that it liked, but

EPA's erroneous answer was based on Nalco's providing -- at best -- incomplete information.

Nalco later learned of Buckman's new competitive ammonium sulfate product and made another inquiry to EPA's Antimicrobials Division in September 2007. This time, N alco received an answer that it did not like, namely, EPA informed Nalco that its ammonium sulfate precursor would be considered biocidal when reacted with sodium hypochlorite. See email dated Sept. 19, 2007 from W. Henson to E. Brown; email dated Sept. 8, 2005 from E. Mitchell to E. Brown.

Instead of seeking to register its product with EPA, which would have been a logical and responsible next step, Nalco instead elected to petition EPA to cancel Buckman's registration. At the same time, Nalco elected to continue sellng its unregistered ammonium sulfate product using the same chemistry, producing the same active biocide, to the same customers, and for the same purposes as the two competitive ammonium salt products sold by Ashland and Buckman. Based on this history alone, it is unquestionable that Nalco fully understands that these three competitive ammonium salt based products are considered in the marketplace to be biocides that use chloramines, not sodium hypochlorite, as the active ingredient.



### c. How are the products used? Are they added to process water? When? How? For what purose? Are they in the process water in combination with any other product(s)? If so, what?

. Physical Operation
Both ofNalco's unregistered biocides are used in reaction with sodium hypochlorite toproduce new active biocidal ingredients -- chloramines, in the case of the ammonium sulfatesodium hypochlorite reaction (Nalcon 60620) and chlorourea in the case of the urea-sodium 

### hypochlorite reaction (Nalcon 60615). These are chemical reactions that occur at the mil site.

Based on Ashland's information from the marketplace, Nalco places a biocide skid in 

### proximity to the process line where the biocide is fed into the process water. Nalco employees mix sodium hypochlorite, sodium hydroxide and Nalcon 60620 (ammonium sulfate) or Nalcon 60615 (urea), which are delivered by separate lines to the Nalco OxiPro makeup skid, where they are combined. The mixture exits the skid and is diluted with water prior to injection into the 

### process water to control microbiological growth. The mixture is applied continuously to each feed point (there may be as many as 7-8 feed points treated from each skid) to maintain targeted biocidal residuals in the process (residuals are maintained between 4-7 ppm as total combined chlorine).

Nalco has tried to draw an analogy between its ammonium sulfate process chemistry and 

### its deployment at mils and the chloramine chemistry that is used in drinking water. See, e.g., Transcript pp. 74-75. This analogy is inappropriate for ammonium sulfate because the drinking water context is entirely different.6 For example, there are process differences between the

6 This analogy is also completely irrelevant for urea, since urea is not used in drinking

water disinfection.

- 8 -drinking water application for disinfection purposes and the in-situ generation of chloramines for

industrial water treatment in high chlorine demand process streams. Buckman touched upon this difference in its presentation (Buckman Slide No. 14). In drinking water treatment, regulation under the Safe Drinking Water Act (SDWA) ensures that the chloramines produced by reacting ammonium sources with hypochlorite are created at high dilution or low ppm levels. This

ensures formation of the monochloramine only, at levels deemed safe by EPA under the SDW A. As Buckman pointed out, absent FIFRA registration, control over which chloramines are created is not assured with an in-situ generation process that is executed at high concentration (~ 10-20+ wt.%). Because EPA has not reviewed Nalco's biocides under FIFRA, it has no assurance that Nalco's process is safe. Not only that, there is certainly no basis for comparing Nalco's process to drinking water chlorination that is fully regulated by EPA under a separate law. In reality, the absence of well-defined dosing protocols that EPA has reviewed and approved under FIFRA means that the exact chloramine products formed by N alco' s process are unkown to EPA. See Transcript p. 49, lines 2-17.

. Use Inconsistent with FIFRA Label
Even setting aside for a moment the complete lack of support for Nalco's assertion that the active ingredient in Nalcon 60620 and 60615 is sodium hypochlorite, Nalco's ongoing conduct remains fundamentally at odds with FIFRA because its registered hypochlorite product (Nalcon 60735) does not allow for any uses with either ammonia or urea. At the February 16 meeting and in follow up correspondence dated March 10,2010, Nalco made the untenable claim that any use of a registered pesticide not "expressly prohibited" by the label is allowed. Transcript p. 121 ("all registered sodium hypochlorite that does not expressly in the directions 

### for use prohibit mixing with ammonia allows the use of ammonia."). This assertion is legally incorrect, and notably, Nalco cites no authority for this absurd proposition. As EPA knows, and as first raised in this matter by Ashland's June 30, 2009 submission to EPA, FIFRA 

### prohibits the use of a registered pesticide "in a manner inconsistent with its labeling." FIFRA

§ 12(a)(2)(G). The statute makes unlawful the use of "any registered pesticide in a manner not permitted by the labeling," unless one of six specific exceptions can be met. FIFRA § 2( ee).

None of 

### these six exceptions are even arguably relevant to Nalco's off-label mixing ofNalcon 60735 with ammonium and urea-based products for biocidal purposes.

Indeed, as recently as September 2009, the Agency assessed a civil penalty against a company and ordered it to stop using an EPA-registered disinfectant product in the formulation of other products when such use was not specifically authorized by the registered disinfectant's labeL. In the Matter of R.N Eaton & Co., Inc., Docket No. FIFRA-07-2009-0019, 2009 EPA 

### RJO LEXIS 187 (Sept. 1,2009). See also United States v. Saul, 955 F. Supp. 1073 (E.D. Ark. 1996), afJd, 955 F. Supp. 1076 (E.D. Ark 1996) (ruling that defendant's off-label uses ofa registered pesticide did not meet any ofFIFRA's specific exceptions to prohibited conduct and 

### thus were "inconsistent" with the pesticide's labeling and in violation ofFIFRA); United States v. Tropical Fruit, s.E., 96 F. Supp. 2d 71, 79 (D.P.R. 2000) (finding use of a registered pesticide to be in violation of FIFRA when not specifically authorized on the pesticide label); In the Matter of Richard Rogness and Presto-X Co., 7 E.A.D. 235 (July 17, 1997) (ruling that off-label use of a registered pesticide constitutes a violation of FIFRA trumping any dispute over whether specific label statements are "mandatory" or "advisory").

- 9 -Nalco then advances an equally untenable claim that it does not need to comply with

EPA-required directives expressly set out on its Nalcon 60735 label, again citing no authority for this assertion. Nalco presumably has to make this argument to try to legitimize its admitted use

ofNalcon 60735 with ammonium and urea products in direct violation of that product's explicit 

### label requirement to "(mJix only with water according to label directions." As was explained at the recent meeting, Nalco employees operate the Nalco system that delivers its 

### reacted unregistered biocide product to mil process wastewater. Thus, Nalco is using Nalcon 

### 60735 with an ammonium or urea-based product in a maner inconsistent with its labeling. This is a direct violation ofFIFRA Section 12(a)(2)(G). The "Directions for Use" provided on thelabel for Nalcon 60735 are unambiguous and do not permit any uses with ammonium or ureabased products. Ashland provided a copy of this label to EPA at the February 16th meeting. Moreover, Nalco must comply with the label's mandatory, directive requirement to "mix only

with water" regardless of whether it is found in the label's "Directions for Use" or any other

section of the EPA-approved labeL. See, e.g., EPA, Pesticide Registration ("PR") Notice 2000-5 (explaining that "mandatory statements" include directions for use and precautions that direct the user to take or avoid specific actions).

. Nalco's Products are not Stabilzers or Adjuvants
Notwithstanding the fact that users (including Nalco) may not legally mix Nalcon 60735 with either ammonia or urea, Nalco has further claimed that its unregistered ammonia and urea

products operate as "stabilizers" or "adjuvants" of its registered sodium hypochlorite product. 7 

### However, like its other claims, these claims are not supported by fact or law.

o Stabilizer Issue:

The technical analysis that Ashland presented at the February 16th meeting demonstrated that its ammonium sulfate and urea, when chemically reacted with hypochlorite, do not stabilize hypochlorite, but, instead create new biocidal actives, chloramine and chlorourea. See Ashland 

### Slides and Transcript pp. 21-29. As noted above, the sparse explanations that Nalco provided EPA at the meeting regarding its product chemistry are inconsistent with basic principles of chemistry, unsupported by the open literature, and contradicted by facts in the record. And, as pointed out above, Nalco's grudging responses to EPA's direct questions indicates its understanding that the chemical reaction of ammonium sulfate with sodium hypochlorite produces chloramines. This very chemical reaction precludes reformation of hypochlorite. Nalco's products are not stabilizers.

o Adjuvant Issue:

7 Indeed, Nalco has even argued that stabilzers and adjuvants are the same thing. 

### Transcript p. 142, lines 12-13 ("adjuvants, aka stabilizers."). This is factually and technically 

### inaccurate. For the reasons provided at the EPA meeting and as explained in these comments, a stabilizer involves a chemical reaction; by definition, an adjuvant does not.



### - 10-Nalco's products also are not adjuvants. This unsubstantiated assertion was one of the



### main themes ofNalco's presentation at the February 16 meeting. See, e.g., Transcript at p. 75 

### ("there are many, many different categories of adjuvants that react..."). However, as Dr. Morrow's question regarding Nalco's definition of adjuvant demonstrated, Nalco's claim that its products are adjuvants has no factual or technical basis and is at odds with EPA's definition of

an adjuvant. In particular, Dr. Morrow asked about "a working definition of the term (adjuvant) in the context of a chemical reaction because I was always under the impression that an adjuvant is not used in a chemical reaction, to form a new product or a new chemicaL." Transcript, pp. 90-

91). Dr. Morrow's skepticism about Nalco's use of the term "adjuvant" to describe its chemical products was well-placed. Nalco's response to Dr. Morrow's question was provided by Dr. Brown, who asserted that there are "varying definitions of what adjuvants are and are not" and that "(a)n adjuvant is something that is added and that is the extent of it." Transcript p. 91. This is a particularly egregious misrepresentation of EPA's definition of adjuvant. As Nalco is obviously relying in large part for its positions on a loose meaning of the term "adjuvant" that has no basis in EPA's rule or scientific understanding, Dr. Brown's assertions reflect Nalco's cavalier attitude about the FIFRA registration requirements that apply to its two unregistered 

### biocides. As Ashland pointed out at the meeting, EPA's regulatory definition of "adjuvant" is clear and straightforward: "a compound which functions simply to enhance or prolong the

activity of an active ingredient by physical action." 40 C.F.R. Section 153.l25(a)(2)(emphasis 

### added). Nalco's two unregistered products do not enhance or prolong the performance of sodium hypochlorite by physical action. Instead, these products are chemically reacted with 

### sodium hypochlorite to produce new active biocide ingredients. EPA's definition of "adjuvant" does not include things that chemically react and therefore the Agency's rules preclude Nalco's claim that its two unregistered products are adjuvants.

Undaunted by EPA's clear rules on this point, Nalco nevertheless listed a number of irrelevant agricultural adjuvants in an apparent attempt to divert attention from the biocidal status

of its own products. On the most fundamental level, Nalco' s characterization of its products as 

### comparable to agricultural adjuvants is flawed. Contrary to Nalco's assertion, there are not "many different categories of adjuvants that react with" pesticides. Transcript p. 75, lines 4-8. In fact, no product that is truly an adjuvant wil chemically react with a pesticide; if it did, thé 

### product would not be an adjuvant, according to EPA. Nalco's statement also mischaracterizes what happens from a technical perspective when an adjuvant is used with an agricultural 

### pesticide. Thus, while adjuvants may cause the exchange of salt counterions with an ionic form of pesticides, under no circumstances do adjuvants ever react with pesticides to form covalent bonds. By contrast, the chemical reaction of ammonium sulfate or urea with sodium hypochlorite forms covalent bonds. See Ashland Slide 13 (The indication of heat generation on reaction via formation of a covalent bond is reasonably inferred from the magnitude of the reaction free energy using the estimated reaction equilibriùm constants provided on slide 13 of the Ashland Feb. 16 presentation). The relevant relationships in this regard are available in any 

### standard textbook on Physical Chemistry. Nalco has itself acknowledged that "different types of chloramines" are formed when ammonia is added to hypochlorite. See Transcript p. 93, lines 4- 

### 5. This admission, that a chemical reaction producing new chemical entities is occurring with 

### Nalco's products, precludes characterization ofNalco's products as adjuvants.

- 11 -With respect to all agricultural adjuvants, and even those adjuvant uses of ammonium

sulfate specifically referenced by Nalco throughout its presentation, covalent bonds are never formed between the adjuvant and the agricultural pesticide to produce a new active compound. In the case ofNalco's chemistry, however, the generation of chloramines is only possible by a reaction of the hypochlorite moiety of the sodium hypochlorite with the ammonium moiety (ammonia) from the ammonium sulfate or urea.s As noted, this reaction results in the formation of a covalent bond. Moreover, this reaction is not readily reversed, as the ammonium sulfate and sodium hypochlorite reaction overwhelmingly favors chloramine formation. See Ashland Slide Nos. 10-26. Thus, the nitrogen-contributing compounds in Nalco's system (ammonium sulfate or urea) that react with sodium hypochlorite are not adjuvants.

Nalco's description of an adjuvant as "something that is added, and that is the extent of it," is demonstrably incorrect, as we pointed out at the EPA meeting. See Transcript at pp. 91-92. Nalco also referenced that ASTM had developed "some methods...or definitions" regarding adjuvants. Id More precisely, ASTM International has defined "adjuvant" to mean "a material added to a tank mix to aid or modify the action of an agrichemical, or the physical characteristics 

### of the mixture." See ASTM E-1519. This definition has been long-accepted by the agriculture industry and is fully consistent with EPA's own description of adjuvants as "compounds which function simply to enhance or prolong the activity of an active ingredient by physical action" at 

### 40 C.F.R. Section 153.l25(a)(2)(emphasis added). Nalco's assertion that the ASTM definition for adjuvants is "not fully acceptable to the full ag industry" is entirely baseless. See Transcript p. 91, lines 15-17.

Equally important, Nalco's attempt to analogize its chemical reaction process to an agricultural pesticide to which adjuvants may be added in a tank mix is unsupported factually and technically. At the EPA meeting, Buckman's counsel pointedly asked Nalco's counsel to 

### identify where in Nalco's process it was claiming a tank existed. Nalco stated that it mixes or blends pesticides and adjuvants "exactly the same" as a farmer, thereby likening Nalco's proprietary industrial process involving chemical reactions to the completely irrelevant context of agricultural pesticides and adjuvants that may be used with those specific types of pesticides. When pressed, Nalco's counsel admitted that Nalco mixes its chemicals "in-line" within its

"application equipment." See Transcript pp. 122-124. Furthermore, in Nalco's description of its own process, Nalco explained that it places sodium hypochlorite into its equipment, where it is 

### mixed with the ammonium sulfate or urea. This mixture is then pushed out of the reaction container with carrier water into its customers' process waters. See Transcript p. 64, lines 3-9. This is also directly contrary to the use of adjuvants, which are added to spray tanks for "tank . 

### mixing." Nalco's products do not "mix" ammonium sulfate and hypochlorite in a "tank." Nalco's attempt to describe its product chemistry and industrial process as analogous to agricultural pesticides lacks any factual or technical support.

S In this regard, Nalco's specific comments at the meeting about the supposed moiety of 

### its product components are scientifically and factually erroneous. Examples of such assertions

include the statements made by Nalco on pages 78 and 110 of the Transcript.



### - 12-Finally, while urea may be added to a spray tank as a component ofUAN (urea

ammonium nitrate, a liquid nitrogen fertilizer), urea itself is not and has never been considered

an adjuvant. The ammonium nitrate in the UAN may act as an adjuvant if the spray tank contains hard water; by contrast, urea contributes no adjuvant activity whatsoever.



### This analysis ofNalco's arguments also reveals one more important point. At the EPA

meeting, Nalco acknowledged the importance of the chemical analysis presented by Ashland and

Buckman but brushed it off by trying to paint a picture of a huge and unprecedented effort to review the chemistries of agricultural adjuvants that would be required of EPA ifN alco' s proffered views are rejected (as they should be). See Transcript p. 77, lines 14-20 and pages 78- 79, lines 17-22 and 1-3, respectively. However, as the analysis above demonstrates, Nalco is once again wrong. The types of chemical reactions involved with the industrial biocides at issue are simply not involved with agricultural adjuvants. Thus, EPA's determination that Nalco's two unregistered products are, indeed, biocides, wil have no impact on agricultural or any other types of adjuvants. Nalco is trying to invent a chaotic scenario that is neither relevant nor plausible.

d. What would be the impact to the process if the products were not used or were not available for use--either in registered or unregistered form?

Consistent with the chemical analysis presented by Ashland at the EPA meeting and the additional information summarized above, ifNalco did not use ammonium sulfate or urea in reaction with sodium hypochlorite in its products the active ingredient in its system would be sodium hypochlorite, as it claims is the case now. Nalco's claims that the active in its two unregistered products is sodium hypochlorite is belied by its own marketing materials, which distinguish between the use of hypochlorite as the active biocide and the biocidal properties of its 

### ammonium sulfate and urea products (see, e.g., Buckman Slide 20). This is a clear recognition 

### that Ashland's chemical analysis ofNalco's two products is accurate and that without the use of ammonium sulfate and urea, Nalco would be left sellng an entirely different product, namely, sodium hypochlorite, to customers.

Pulp and paper mils have several registered biocide products available to them for microbial control in high strength process wastewaters. As such, customers have several options to select a different, FIFRA-registered product in the event that EPA requires Nalco to remove its two unregistered products from the marketplace, as Ashland has at the February 16th meeting and throughout this proceeding urged EPA to do.



### 2. What documentation (if any) indicates that the use of unregistered ammonia products 

### in water systems at pulp and paper mils poses any different human health or environmental risks compared to the use of ammonia-based products currently 

### registered under FIFRA? What basis is there for the Ashland Hercules allegation that there is a worker issue with NALCO products?

· Safety Concerns
As Ashland explained at the EPA meeting, our primary safety concern is that the risks to human health or the environment from Nalco's two unregistered biocides are unknown precisely 

### because they have not been evaluated by EPA under FIFRA. Nalco claims that its products are

- 13 -safe, but the conditions of use have not been reviewed or approved by EPA just as the potential

impacts to workers handling or exposed to Nalco's products, or to the environment from wastewater discharges that contain Nalco's products, have not been evaluated by EPA. FIFRA is designed to ensure public safety by directing that pesticide manufacturers obtain the Agency's review of these issues prior to a pesticide being introduced to the marketplace. EPA is uniquely positioned to provide this public protection by enforcing the clear requirements of FIFRA. Based on the current unregistered status ofNalco's two products, EPA cannot assure the public that these products are safe.

Paul Raymond, President of Ashland-Hercules Water Technologies, a division of Ashland Inc., participated in EPA's meeting in order to drive home the seriousness of Ashland's concerns about and commitment to product safety and stewardship. In particular, as Mr. Raymond explained at the meeting (see Transcript pp. 100-102), upon learning that Nalco had introduced its unregistered urea biocide at mils where Ashland employees work, the company developed a Safety Alert for the protection of its own employees. The company had distinct and compellng reasons for this action. First, in developing an understanding of the chemistry involved when urea is reacted with sodium hypochlorite, it became apparent to Ashland that Nalco's urea product was being used in a manner that essentially represents the front-end of industrial scale hydrazine production -- information that is available in the open literature and thus factual information that Nalco knows or should know. Hydrazine is a hazardous gas. Nalco has provided no information on its Nalcon 60615 product label to indicate that this dangerous gas may be produced or to provide instructions that would prevent the generation of 

### this gas from use ofthis product. Moreover, as Ashland has commented in prior submittals to EPA, no published toxicological data exists for chlorourea. Under OSHA, Ashland and others

similarly situated have a legal obligation to ensure their workers' safety. Because of the 

### unknown risks arising from use ofNalco's urea product and in the absence of a FIFRA review by EPA, Ashland issued the Safety Alert, which instructed Ashland employees working in mils

where Nalco was applying Nalcon 60615 to avoid these areas of the mil and to wear additional personal protection equipment (PPE) if they needed to work in or near such areas.

A key safety problem with Nalco's urea system is that any worker who does not fully 

### understand this chemistry as currently practiced by Nalco wil not be informed sufficiently to respond appropriately to real-world situations such as minor leaks within the plumbing, changes in mixing dynamics, the criticality of feed ratios, how evolved gas is vented and where it is

vented, and so on, each of 

### which can result in potentially dangerous workplace conditions. The examples of the uncertain risks from use of this product that Ashland provided at the meeting, 

### while anecdotal, demonstrate the problem that FIFRA was designed to prevent. In the situation

described by Dr. Brady, which was reported within Ashland in the normal course of business 

### unrelated to this EPA matter, it was clear that the Nalco employee collecting samples at a mil

at which Nalco's urea product was being used did not understand the nature of the material he 

### was handling or what to do when the sample container stared smoking. See Transcript pp. 102- 03. Notably, ifNalco's Nalcon 60615 urea product were registered under FIFRA, Nalco would 

### have been obligated to report this paricular situation (and any others like it) to EPA. FIFRA § 6(a)(2); 40 C.F.R. Part 159.

Indeed, although Nalco representatives complained that they were not in a position at the meeting to respond to this example, Nalco's introductory comments during its presentation had already conveyed its ultimate message to EPA on safety and environmental impacts: "just



### - 14-trust US." Nalco wants the Agency simply to believe Nalco's untested and unproven assertions

that its products are safe. The abovementioned incident is just a minor example of what can happen in the real world when such a cavalier attitude is adopted by chemical suppliers. The fact that this incident did happen belies Nalco's self-serving assertions during its presentation that it is highly concerned with product safety and product stewardship and demonstrates the types of safety concerns with Nalco' s two unregistered products that EPA should be reviewing under FIFRA. EPA surely does not intend to encourage avoidance of mandatory safety review under FIFRA simply because a company asserts it is acting responsibly, and FIFRA itself certainly does not allow for any such approach.

Moreover, to the extent that the paper mils using Nalco's unregistered biocides make paper products used for food packaging, the risks associated with human consumptive scenarios 

### involving Nalco's chemistries are also unkown.

Nalco's response to EPA's question about safety was to tell EPA that the Agency need not worry because "(aJmmonia and urea both are widely-used, separately-added adjuvants" and

that the risks of the three companies' products are "exactly the same." Transcript pp. 104-105. The first statement is irrelevant, since the ammonium sulfate and urea used in Nalco's products are not adjuvants, and disingenuous, since it suggests a denial by Nalco that chemical reactions are taking place with these products. The second statement is unsubstantiated: because Nalco's two biocides are not registered, Nalco's use and dosing of chemicals is not limited. As such, 

### the chemical reactions being deployed by Nalco at the mils are discretionary and therefore inherently less safe than the controlled and limited reactions required by the FIFRA labels for the Ashland and Buckman products. We can think of no other circumstance where EPA would accept a pesticide manufacturer's argument that it need not obtain a registration simply because the Agency had already reviewed the environmental and health effects associated with 

### comparable chemicals registered by other companies. Such an argument fles in the face of FIFRA's basic prohibition against the distribution or sale of "any pesticide that is not 

### registered" by EPA. FIFRA § 3(a) (emphasis added).

With respect to the specific chemicals that would present safety risks in any

uncontrolled reactions of urea and sodium hypochlorite, please see Ashland's proprietary analysis subject to CBI claim in the June 30, 2009 unredacted materials submitted to EPA for 

### review. We summarize the status of Ashland's CBI claim in Question 7, below.

EPA has asked whether there are differences in safety risks between the Nalco ammonium sulfate product (Nalcon 60620) and the ammonium salt products sold by Ashland 

### and Buckman. We addressed Nalco's disturbing response to EPA's question, above. Ashland's primary point is that EPA does not know that Nalco's two biocides are safe because the Agency 

### has not reviewed the safety of these products under FIFRA. As Buckman pointed out at the February 16th meeting, Nalco's reaction of ammonium sulfate and sodium hypochlorite creates chloramines, but in the absence of EPA review under FIFRA, no one knows which chloramines 

### Nalco's product produces, their concentration, effects, etc. Transcript p. 49. These uncertain risks presented by Nalco's two unregistered biocides are precisely the kind of circumstance that FIFRA is designed to avoid.

- 15 -. Environmental Concerns

Nalco has claimed that its products are environmentally superior because, according to Nalco, its products use fewer chemicals than the competitive products. Transcript pp. 58-59, 63,66 and 73. This assertion is supported with no evidence and is simply not true. Because Nalco's two products are unregistered, their labels do not limit dosages. As a result, right now Nalco employees are free to use any amount of chemicals they deem useful, in any mixing ratio, 

### without any review, limit or approval by EPA. The environmental impacts ofNalco's two unregistered products have not been evaluated by EPA under FIFRA, so the Agency curently cannot assure the public that these products can be used without presenting unreasonable risks to the environment.

Based on customer data, Nalco's claim ofless chemical usage than the competing products is also not true, at least with respect to Ashland's product (we are unable to comment on Buckman's product as we do not have this data). In particular, as shown in Ashland's February 16 presentation at Slides 22-23, the customer data collected during use ofNalco's two products reveals highly variable total chlorine residual and A TP measurements. The key data involves the total combined chlorine value, which indicates the total oxidizing biocide load that is dosed to the process water. As indicated on Slide 22 of the Ashland presentation, the dosed

oxidizing load ofNalco's ammonium sulfate-based chemistry is of the same order as that

provided by Ashland's ammonium bromide product, while the required dosage of the urea 

### based chemistry is significantly higher. The generally higher ATP levels and aerobic plate counts exhibited with the use ofNalco's ammonium sulfate and urea products belie its assertion of lower chemical usage; these data also show that at equivalent or higher application levels,

Nalco's products are less effective at biocide control. In the absence of EPA-defined dosing 

### protocols, Nalco can increase dosing levels to achieve the desired biocidal result. These data demonstrate that, contrary to Nalco's assertions that its products use fewer chemicals, its

products actually require greater chemical usage to obtain the level of biocidal control that
mils require. The Ashland product data shown on these same Slides, by comparison, demonstrates a relatively stable dosage of chemicals at levels generally below those apparently being used in the Nalco applications.

Finally, we note that Nalco's products, unlike Ashland's, use a caustic soda, sodium hydroxide, in addition to the ammonium sulfate or urea precursors and the sodium hypochlorite. This fact also contradicts Nalco's statements that its products use fewer chemicals than its 

### competitors. Nalco's claim is simply not true.



### 3. Are there any other situations, not involving ammonia, in which a substance that is inherently not pesticidally active is sold as a product to be used to react chemically with another substance to produce a third substance that is pesticidally active?



### Yes. EPA has well-established precedent for registering precursor products that, by themselves, are not pesticidally active, but when combined with a reactant, create a separate and

distinct pesticidal active. Ashland provided several examples of EPA's prior decisions in this

regard as part of its February 16,2010 presentation; see Ashland Slides 7-8. These prior EPA actions include the FIFRA registrations for sodium bromide when reacted with hypochlorite, sodium chlorate when reacted with sulfuric acid, and sodium chlorite when reacted with sodium hypochlorite or chlorine.

- 16 -In addition, EPA has pursued enforcement actions against companies who have acted in

ways practically identical to Nalco with respect to its two unregistered biocides. In the South Coast Chemical case cited in Ashland's meeting presentation (Ashland Slide 7), the manufacturer had been sellng an unregistered sodium chlorate precursor intended for on-site acidification by customers to produce biocidal chlorine dioxide, much like Nalco is now selling unregistered precursors that are key components in creating new active biocides at its customer sites. EPA alleged that South Coast Chemical, Inc.' s conduct violated FIFRA and the judge

agreed. See In the Matter of South Coast Chemical, Inc., 1986 EPA App. LEXIS 34 (Mar. 11, 1986).

Contrary to Nalco's statements, EPA's registrations of the ammonium salt products sold by Ashland and Buckman are entirely consistent with EPA precedent and FIFRA. It is Nalco's actions and theories that contradict EPA precedent and ignore FIFRA's requirements.



### 4. What urea products are you sellng? How are the products used? Are they added to process water? When? How? For what purpose? Are they in the process water in combination with any other product(s)? If so, what? What would be the impact to the process if the products were not used or were not available for use, either in registered 

### or unregistered form?

Ashland does not sell any urea products for water treatment in the pulp and paper 

### industry. Nalco is sellng an unregistered urea product (Nalcon 60615) that is reacted with sodium hypochlorite to produce a distinct biocidal active, chlorourea. As Ashland briefly explained at the February 16 meeting and has detailed in several submittals to EPA, the salient 

### features ofNalco's unregistered urea biocide in relation to EPA's questions, above, are as follows:

. Urea when reacted with sodium hypochlorite produces chlorourea, a distinct and separate 

### biocide from hypochlorite. Like the chloramines resulting from use of the ammonia products, the chlorourea resulting from the urea/hypo reaction is added to process water at the milL. Nalco's urea products are deployed by Nalco employees.

. In addition to the safety concerns summarized in Section 2, above, no toxicological data for chlorourea exists in the open scientific literature.

. Urea does not stabilize hypochlorite. Instead, urea reacts with hypochlorite to form a new chemical entity, chlorourea; as Ashland's technical analysis shows, urea when reacted with hypochlorite shows the properties of a biocide, not a stabilizer. . Urea when reacted with sodium hypochlorite is not an adjuvant, as EPA's definition of adjuvant precludes materials involved in a chemical reaction.

. Nalco's patent application for its urea product, Nalcon 60615, acknowledges the presence and biocidal role of chlorourea on this product (see Ashland Slide 5). . Customers use Nalco's urea product for biocidal control and measure its performance in

this fuction just as they do Nalco's ammonium sulfate product, Buckman's ammonium sulfate product and Ashland's ammonium bromide product.

. If urea were not reacted with sodium hypochlorite, then the biocide Nalco would be sellng and applying at the mils would simply be sodium hypochlorite.

- 17 -5. What is the purpose/intent of adding your ammonia or urea products to chlorinated



### water? What is the expected end result from the addition of ammonia with regard to antimicrobial activity and how does your product differ (in use patterns or intended outcome) from the other ammonia/urea products.

As detailed above, the sole purpose of chemically reacting the precursor chemicals ammonium sulfate or urea with sodium hypochlorite is to create a distinct and separate biocide. In the case of ammonium sulfate and hypochlorite, this new active ingredient is chloramine. In the case of urea and sodium hypochlorite, this new active ingredient is chlorourea. The technical rationale to demonstrate that these new active ingredients are created in Na1co's process was provided by Dr. Brady. See Transcript, pp. 96-97.

If these precursors were not reacted with sodium hypochlorite, then Nalco's biocide would be sodium hypochlorite. Nalco's own marketing materials, presented by Buckman at the February 16 meeting, openly acknowledge that its ammonium sulfate product, Nalcon 60620, 

### and its urea product, Nalcon 60615, are different biocides than sodium hypochlorite. In particular, Buckman Presentation Slide 20 includes the page from Nalco's 2008 marketing 

### materials entitled "Evolution of Oxidizing Biocides." Nalco shows "Sodium Hypochlorite" at the base of a diagram showing the "evolution" of various products over time. This diagram includes a number of products that follow and are separate from the sodium hypochlorite depicted as the base, including Nalco's ammonium sulfate product (Nalcon 60620) and Nalco's

urea product (Nalcon 60615). Nalco's own depiction of the two products at issue demonstrate that it fully understands that these two products and sodium hypochlorite are all distinct and 

### different biocides. This also shows Nalco's understanding that the ammonium sulfate and the urea play the key role in establishing the distinct biocidal properties of these two newer products as compared to sodium hypochlorite.

The use patterns, intended outcome and actual endpoint of all three companies' 

### ammonium based products and ofNalco's urea based product are the same -- to effectuate 

### microbial control in high organic content mil process water. All of these products are biocides and all should be registered under FIFRA. The only current difference is that Ashland and Buckman sell registered products while Nalco does not.



### 6. The Agency requests that you provide marketing materials for your product and/or any other products which have similar claims.

Ashland provided its relevant marketing materials for the registered Spectrum XD3899 

### ammonium bromide product on February 22,2010, as requested by EPA.

Ashland has learned of another company, Kemira, which appears to be introducing an 

### unregistered ammonium sulfate/hypochlorite product to mils for biocidal control while

promoting it as a "halogen stabilzer." To date, Ashland has been able to obtain two photographs of Kemira' s equipment at paper mils located in Wickliff, Kentucky and Escanaba,

Michigan and a copy of the first page of 

### Kemira's MSDS for this product. Both items are attached as Exhibit II. We have expressed concern to EPA in the past that the Agency's inaction with respect to Nalco's unregistered products and unsubstantiated claims could

- 18 -encourage other companies to follow suit. Kemira's recent market entry with an unregistered

biocide possibly premised on Nalco's faulty example suggest that this concern is valid and has

manifested in a real-world example of the consequences of EPA's inaction with respect to Nalco's two unregistered biocides.

7. Other EPA Questions from Meeting

. Status of Ashland's CBI claim

EP A asked Ashland to clarify the status of its CBI claim made for the company's

proprietary analysis of urea/hypo chemistry that was shared with EPA in Ashland's June 30, 2009 submittaL. Ashland substantiated its claim to EPA in correspondence dated September 28, 2009. We note for the record that EPA has not asked Nalco to substantiate its CBI claim for the 2008 marketing materials, and as explained in footnote 1 herein, we believe Nalco would in any event be unable to do so.



### Ashland's presentation at the EPA meeting on February 16,2010 did not include any of our CBI materiaL. The information on urea and chlorourea that Ashland presented at the meeting is all based on open, peer-reviewed scientific literature. Ashland has not and is not waiving its CBI claim for the proprietary material in its June 30, 2009 submittaL. Nalco has urged EPA to ignore this information. Ashland has urged the Agency to consider this information as it goes to

the heart of the safety issues about which EPA is, and should be, concerned. at the February 16meeting, Ashland also provided EPA with non-CBI information that is available in open, peerreviewed literature. EPA should consider all of this information in determining that N alco' s urea product, Nalcon 60615, is an unregistered biocide.

For the reasons set forth in Ashland's March 18 cover letter and those summarized in our March 1, 2010 letter to EPA, EPA should fully consider Ashland's CBI material in its decision

making with respect to Nalco's unregistered biocides. Further, in light of Nalco's remarkable failure to provide EPA with any substantive information about its urea-based product, there is no 

### basis on which to open a public comment docket with respect to the regulatory status ofNalco's urea product. EPA should focus on the information it does possess about Nalco' s urea product and immediately order it off the market pursuant to FIFRA.

. Public Docket Process

As Ashland's communications to EPA make clear, we believe any public docket EPA intends to open in this matter should not precede or preclude a decision by EPA about whether 

### Nalco's two unregistered products are biocides. They clearly are, and EPA should act in accordance with FIFRA to remove these products from the market. Our point is that EPA needs 

### to act on these two specific products now, in order to protect public safety. It can then hold a public comment period as the Agency deems warranted once this initial critical step is completed.

At the February 16 meeting EPA indicated it was considering whether to have a 30- or 

### 60-day comment period. If EPA proceeds with any public comment period, it should be brief

- 19 -and certainly no longer than 30 days, for all of the reasons provided here and in our other

correspondence to EP A.

Thank you for considering these comments.

1334001vl Washington 013421



### - 20-

## Exhibit I To Ashland's March 18,2010 Comments to EPA:

ASHLAND'S FEBRUARY 16,2010 HANDOUT PRESENTATION TO EPA ON THE FIFRA STATUS OF NALCO'S TWO

UNREGISTERED BIOCIDES

# oOverview of Ashland Presentation· Overarching context: competitive products sold byAshland, Buckman and Nalco to paper mills all beingused as biocides- Only two of three comRanies' products areregistered under FIFRA- Nalco's precursor products - ammonium sulfateand urea - are not registered- And Nalco's five registered sodium hypochloriteproducts are not approved for use with ammonia orurea (or many other chemicals) for paper mills· Nalco's primary claim is that its products arestabilizers not biocides; Ashland's presentation todayrefutes this claim- But the overall FIFRA compliance status of Nalco's productsis important and is documented in submittals to date2

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C'Are Nalco's Two Products Biocides? Yes· Key features of Nalco's 2 unregistered products- Nalcon 60620 uses ammonium sulfate + sodium hypochlorite- Nalcon 60615 uses urea + sodium hypochlorite· Precursor = ammonium sulfate, urea· Reactant = sodium hypochlorite- On-site chemical reactions occur at mills before mix added to water- EPA must ask why these chemicals are reacted and used this way· Nalco claims that the precursors ammonium sulfate and urea are notbiocidally active but instead "stabilize" the hypochlorite- Nalco has argued both that the ammonium sulfate does notenhance the chlorine (Dec. 2007) and that it does (April2009)· Technical analysis shows that these products when reacted with sodiumhypochlorite form new active biocides· These precursors require FIFRA registration4Are Nalco's Two Products Biocides? Yes· In particular, the technical analysis shows that:- Ammonium sulfate and urea in each Nalco product do not "stabilize"hypo but instead react with it- In each case, the reaction creates new active biocidal ingredients- These new active ingredients, not hypo, provide the biocidal control· In fact, new biocidal actives formed are:- Chloramines, in the case of ammonium sulfate + hypo· Nalco acknowledges that chloramines are created and.havebiocidal activity in its submissions to EPA, e.g., Dec. 2007- Chlorourea, in the case of urea + hypo· Nalco has publicly acknowledged the formation of chlorourea andthat it is an active biocide: "the active chloroureas that remain aremore effective antimicrobials..."; (patent application for Nalcon60615) (also stating that urea enhances bacterial control)· In reality, customers use both of Nalco's products as biocides5Key Factors - FIFRA Applicabilty· FIFRA 2(u) defines "pesticide" broadly- EPA's regulations focus on pesticidal purpose and intent, actual andconstructive knowledge of seller and customer· 40 CFR 152.15(a), (c)- Nalco's ammonium sulfate and urea are used "in combination with"hypo to create new biocidal actives chloramine and chlorourea· Under these well-established tests, objective evidence shows thatNalco's two products are biocides- EPA told Nalco that combining ammonium sulfate and hypo to treatwater was pesticidal (Sept. 2007)- Instead of seeking registration, Nalco challenged EPA's registrationof Buckman's competitive product (Oct. 2007)- Nalco has continued to sell its ammonium sulfate productunregistered and introduced a new urea product· FIFRA requires registration first, then sales - not the other wayaround6Key Factors - FIFRA Precedent· EPA has well-established framework for regulating biocidesformed on-site using precursors- Nalco argues that its precursors alone are not biocidal- This is irrelevant - EPA's approach looks at how the precursors arebeing used· In fact, EPA has already concluded that ammonium sulfatereacted with sodium hypochlorite forms chloramines, a distinctand active biocide- E.g., Buckman registration, Jan. 9, 2006 memo page 6· EPA's longstanding approach under FIFRA is to regulate newactive biocidal ingredients that are formed on-site throughchemical reactions by registering the precursor chemical- Indeed, EPA registered the Ameribrom and Buckman's ammoniumsalt products using this protocol- EPA framework goes back - 25 years, e.g., South Coast Chemicalcase7Key Factors - FIFRA Precedent· Other EPA registrations for precursor product in-situ biocidechemistries use this approach- Sodium bromide + hypo (e.g., EPA Reg. 1706-168, Nalco'sActobrom product)-Sodium chlorate + sulfuric acid (EPA Reg. 49620-10, EKASC BC 47)- Sodium chlorite + chlorine/hypo (EPA Reg. 9150-71, Adox8125)· Contrary to Nalco's argument, it is not sufficient under FIFRA forEPA to rely on the registration of sodium hypochlorite -- why?- First, because hypo is not the biocidal active in Nalco's two products- Second, because most hypo labels prohibit mixing with anything butwater, and especially not ammonium salts or other chemicals- Third, if EPA were to register only hypo, then EPA would neverreview the specific chemical information regarding the new biocidalactives formed and the particular precursor products· Technical analysis provides additional information supportingthese conclusions8Key Factors - FIFRA Applicability· What about EPA's Feb. 2008 Letter?- EPA's 2/08 letter to Nalco appears based onincomplete information ab9ut Nalco's ammoniumsulfate product- The letter fundamentally misstates the law- This letter does not address Nalco's urea product- Even if EPA letter were correct, Nalco could notboth sell these products to mills and abide by theletter9Key Factors -- Technical Analysis· Technical Analysis of Nalco's Two Products'Chemistry- Biocide or "stabilizer"?- Key characteristics to analyze· Position of Reaction Equilibrium· Reactivity (direct chlorination versushydrolysis to hypo)· Biocidal Activity- Mass Balance to identify the primary biocide· Analysis shows that the two product chemistries arebiocides, not stabilizers10Biocide or "stabilizer"?· According to literature, a stabilizer is a chemical that whenreacted with an 'oxidant, will allow reversion back to theoxidant chemical- Nalco claims that sodium hypochlorite lire-forms" when reacted withammonium sulfate· That type of reversion would preserve the status ofhypochlorous acid as the dominant biocide· The technical analysis that follows shows that this is notthe case11Biocide or "stabilizer"?· To evaluate Nalco's claims that its two products arestabilizers of hypo, EPA must look at:- (i) what properties one would expect a stabilizinghalogen to exhibit, and evaluate if Nalco's productchemistries exhibit these properties, and- (ii) how customers use and measure the performance ofNalco's products· This analysis demonstrates that Nalco's two products donot exhibit properties of stabilizers· Instead, these two products exhibit properties of biocides12Characteristics of Stabilizers vs. BiocidesCharacteristicStabilizerBiocideAllows reversion toReaction productReaction EquilibriumreactantdominatesReactivityDirect reaction fromDirect reaction fromHOCIreaction productBiocidal activityBiocidal activity fromBiocidal activityHOCIfrom reactionproduct13Reaction Equilibrium Demonstrates Nalco'sTwo Products are Biocides, Not StabilizersHOCI + StabilzerHOCI + NH3HOCI + Urea~ -..- ~~H20 + Stabilized chlorine productH20 + NH2CIH20 + ChloroureaEst.1 ppm total chlorine doseReaction(pH - 8)RatioCaseEquilbriumConstant(HOCI)(Product)(Product)/(HOCI)Stabilizer- 104MajorMinorc: 1componentcomponentAmmonium sulfate- 1.1 *1 013- 0.004- 0.996- 250Urea- 1 *1 013401.00Extremely high14Reaction Equilibrium Shows Nalco's TwoProducts areBiocides, not Stabilizers· The next two slides show that:- Chloramine (NH2CI) reacts directly with otherchemicals· HOCI is not involved in this reaction- Chloramine and hypo have different oxidationpotentials- Chloramine directly transfers chlorine to otherchemicals and does not go through a hydrolysisreaction to reform hypo· Stabilizers do not exhibit these chemicalproperties15NH2CI Reacts Via Direct Chlorination· MP Snyder; OW Margerum; Inorg. Chern. (1982) 21,2545-2550; "Mechanism of Chlorine Transfer fromChloramine to Amines,. Amino Acids, and Peptides"· "The results indicate that direct chlorine transferoccurs with NH3CI+ as a very active chlorinatingagent"· "Hence the chlorine transfer is direct, as given inequation 1, with a negligible amount occurring by thehydrolysis pathway"- The hydrolysis pathway is how HOCI would be generated· pH and concentration regimes studied chosen toreflect typical usage conditions16NH2CI and HOCI Have Distinct and. Different Redox Potentials· vv Rajasekharan; BN Clark; SBoonsalee; JA Switzer; Environ. Sci.Techno!. (2007) 41, 4252-4257;"Electrochemistry of Free Chlorine andMonochlor-amine and its Relevance tothe Presence of Pb in Drinking Water"· "In Figure 7, the measured equilibriumpotentials for NH2CI/CI- are morenegative than those. of the freechlorine species for pH values that arerelevant to drinking water. This is adirect indication that NH2CI is athermodynamically weaker oxidizingagent than free chlorine."17(a) ocrlillO pA'cm'(b) NH1Cl-t.37mM- -l.02.., 2.46-.-3.05-0.6 -0.4 -0.2 0.0 0.2 0~4 0.6E (V ys. SeE)Reactivity Shows Nalco's TwoProducts are Biocides not Stabilizers· The prior two slides demonstrate that:- HOCI is not responsible for the oxidant/biocidalactivity of NH2CI- HOCI and NH2CI have distin.ctly different reactivity· This is the reason NH2CI persists and is useful inhigh chlorine demand systems· These conclusions refute Nalco's theory of a"halogen stabilizer" that "re-forms" hypo18Reactivity with Chlorourea = Biocide· Examples drawn from the peer reviewed primarytechnical literature show that:- N-haloureas are known mild and selective oxidizing agents- Have a reactivity profile distinct from stronger oxidants suchas HOCI· This demonstrates that chlorourea is a primaryoxidant species that reacts directly and not viareformation of HOel19Chloro- and Bromo-ureas React viaDirect Oxidation· Selective mild oxidant of tryptophan/tyrosine residues- M Funatsu; NM Green; B Witkop; J. Amer. Chem. Soc.(1964) 86, 1846-8- Y Burstein; A Patchornik; Biochemistry (1972) 11, 4641-50.- RC Feldhoff; T Peters, Jr; Biochem. J. (1976) 159, 529-533· Mild oxidation of reaction intermediates- P Gardner; JM Park; J. Organic Chem. (1988) 53, 2984-90· Mild oxidant phosphite esters- RA Wiesboeck; J. Organic Chem. (1965) 30,3161-3· Chlorination of olefins- Y Wada; R Oda; BulL. Chem. Soc. Japan (1970) 43, 2167-217320Reactivity with Chlorourea = Biocide· The peer-reviewed literature demonstrates that HOelis not responsible for the oxidanUbiocidal activity of insitu formed chlorourea· This refutes Nalco's theory of "halogen stabilizer"21Biocidal Activity Shows Chlorourea, notHypo, is the Active Biocide in Nalcon 60615· The next slide shows that chlorourea is an activebiocide and its biocidal activity is equivalent to that ofthe NaOH/NaOCl/urea combination· This demonstrates that chlorourea, not sodiumhypochlorite, is responsible for the biocidal activity ofNalco's Nalcon 60615 urea product22Chlorourea, not hypo, is the biocidalactive in Nalcon 60615· Biocide activity ofpurified Chloroureaequivalent to that ofactive prepared viaNaOH/NaOCI/urea .combination at equalchlorourea dosing23Bactericidal Efficacyof Alkaline urea:bleach VS. Monochlorourea12.0-DAlkaline urea:bleach. Monochlorourea10.08.0".2Ü::-g 6.0iiClo..4.02.00.0 .oppm1 ppm3ppm5ppm10 ppm15 ppmTotal ChlorineCharacteristics of Stabilizers vsBiocides - Bottom LineCharacteristicStabilizerBiocideChloramineChlorourea(e.g., Nalcon(e.g., Nalcon60620)60615)ReactionAllowsReactionReactionReactionEquilibriumreversion toProductProductProductHOCIDominatesDominatesDominatesReactivityNo directDirect reactionDirect reactionDirect reactionreaction fromfrom reactionfromfromreactionproductreactionreactionproductproductproductBiocidalNo directBiocidalBiocidalBiocidalactivitybiocidalactivity fromactivity fromactivity fromactivity fromreactionreactionreactionreactionproductproductproductproduct24Biocidal Activity Shows Nalco's TwoProducts are Biocides, not Stabilizers· The next slide shows that even though chloramine is aless potent biocide than hypo, chloramine isresponsible for the biocidal activity due to its dominantconcentration· This demonstrates that chloramine is the activebiocide in Nalco's ammonium sulfate product (Nalcon60620)25Mass Balance Shows that Chloramines arethe Biocidal Active in Nalcon 60620· "chloramine is considered a weak biocide in comparison to freeavailable chlorine, requiring exposure times of 25 to 100 timesgreater than chlorine to achieve comparable inactivation"- Nalco, Inc. to EPA (Dec. 2007)· This is misleading because it suggests that chloramine is not thebiocide at work in Nalco's Nalcon 60620 product· Lower potency of chloramine but present at much higherconcentration than hypo· Chloramine is the dominant active biocide under field conditionsVariableNH2CIHOCIBiocidal Potency125 - 100Relevant2501ConcentrationsC*Activity25025-10026Key Factors - Customer Use· Customers use Nalco's two products as biocides- Paper mils use the Nalco, Buckman and Ashland products for thesame purpose- Singular purpose is to control growth of microorganisms- Following graphs use actual mill operational data that show howmills use these products in the same way· Customers measure combined chlorine and the effect onbiological activity to gauge the performance of the biocide- Customers do not measure for free chlorine, which would be presentif hypo were the biocidal active· If hypo were the biocidal active, mills would monitor for freechlorine because it is very aggressive towards paper makingchemicals, machine clothing and is also highly corrosive tometallurgy installed on the paper machine27

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### NMonitoring at Customer's Site - Mills Measure Effect ofNalco's Products on Microorganisms - Measure Adenosine-triphosphate (ATP) and Plate Count (indicators of biologicalactivity)PM1 Headbox - Total ATP and Aerobic Plate Counts100,000,000.000Nalco m 4Nalco.Urea10,000,000.000Hercules AmBr1,000,000.000100,000.0001.00010,000.0001,000.000100.00010.0000.1000.0100.001....Ol..,..........,.. . ~ . '" .t-t-t-t-to0000""M(0Õ5""N....0~....""""""èiLO(0(0to0000. .¡:.. r,'" .'r:' ...r:....¡:......i-.....oo.... '00" ..;;....äj......ëõ.......ä:;. '"00''' .00.....00... CÕ.~..ëõ.....;x ....oo.......oo......õi .....öî... ¿t. ö)......(j. '''a,~''''ëi .. '''ÒI'''ëJ,''00000000000000000000000000000N ~ ~ N ~ m ~ ~ ~ 00 ~ a M m N ro ~ ro ~ ~ ro in m a a a ~ in ~ON~~~ ~ ~e a NNN ~O ON N ~ ~ ~~ ~~ NNNN ~e~ m 0 ~ ~ N ~ N M M ~ ~ ro ~ ro 00 m 0 ~ N ~ N M ~ in in ~ 00 m00........00000000000......00000000029Technical Summary· The ammonium sulfate and urea in Nalco's products arecombined with sodium hypochlorite to form new active biocideingredients that are distinct from HOCI-' Chloramines (Nalcon 60620)- Chlorourea (Nalcon 60615)· These products do not stabilize hypo· Instead,- Chloramines are an active and chemically distinct biocide, asNalco has acknowledged in its EPA submittals- Chlorourea is an active and chemically distinct biocide, as Nalcohas acknowledged in its patent application· These in-situ generated biocides could not be made without theprecursor products ammonium sulfate and urea· These products are sold to and used by mills as biocides30Conclusions· Legal analysis: Nalcon 60620 (ammoniumsulfate product) and 60615 (urea product) arebiocides that require FIFRA registration beforebeing sold to the public· Technical analysis: these products createdistinct biocides and do not revert to sodiumhypochlorite - these products are notstabilizers· Customer use also shows Nalco's productsare used as biocides for control of. .microorganisms31Actions That EPA Should Take· EPA should remove Nalco's two unregisteredproducts from the marketplace immediately to protecthuman health and the environment· EPA should prohibit the sale of these products unlessand until Nalco applies for registration and suppliesthe necessary data, and EPA reviews those data,conducts a risk assessment and makes a registrationdecision on each product- In contrast to the careful, multi-year registration process forthe products sold by Ashland and BucKman, Narco has notsubmitted information to EPA necessary to evaluate thehuman health and environmental effects of these products· EPA should pursue appropriately strong enforcementaction against Nalco32Technical Glossary· Halo/halogen = chlorine, bromine, oxidant· Hydrolysis = reaction with water, reaction to reform hypochlorousacid· Hypo/hypochlorous acid/HOCI = sodium hypochlorite· Precursor = ammonium salt, urea· Reactant/oxidant = hypo· Reaction product/biocide = resulting chemical from reactingprecursor with hypo- Amm salt + hypo = chloramines- Urea + hypo = chlorourea· Redox potential = intrinsic driving force to undergoreduction/oxidation reaction· Substrate = precursor used in reaction33

# ..

## Exhibit II To Ashland's March 18,2010 Comments to EPA:

INFORMATION REGARDING KEMIRA'S UNREGISTERED 

## AMMONIUM SULFATE BIOCIDE PRODUCT BEING 

## SOLD AS A "HALOGEN STABILIZER"n 

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## MATERI SAFETY DATA SHEET

1. CHEMICAL PRODUCT AND COMPANY IDENTIFICATION

Product Identification Product Name: FENNOSURF 583 Chemical Family: Halogen Stabilizer CAS Number: Blend
Company Identification Kemira Chemicals, Inc. 1950 Vaughn Road Kennesaw, Georgia 30144 USA 800-347-1542 (For product information) 770-422-1250 (For emergencies) 1-800-24-9300 or 1-703-527-3887 (CHEMTREC)
1..13-996-66 (CANUTEC)



### 2. COMPOSITION/INFORMATION ON INGREDIENTS

COMPONENT LISTING:

This product contains hazardous materials as defined by the OSHA Hazard Communication Standard 29 CFR 1910.1200.

EXPOSURE GUIDELINES: No Information Available.



### 3. HAZARS IDENTIFICATION

EMERGENCY OVERVIEW:

Prolonged or repeated contact may cause skin or eye irritation. The health hazards of this product should be low under normal industrial and commercial uses.

EY: Mild transient irritation associated with excess tearing and blinking.

SKIN: A single, prolonged exposure is not likely to result in the material being absorbed through skin in harmful amounts. Prolonged or repeated skin contact may cause irritation.

INHALATION: