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Karen M. Hansen

1350 I Street, N.W.

Suite 700

Washington, D.C. 20005-3311

Direct: (202) 789-6056

Fax: (202) 789-6190

khansen@bdlaw.com

March 1,2010

Via Electronic 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: Request for Immediate Stop Sales Orders for Nalco's Unregistered Urea and

Ammonium Sulfate Biocides

Dear Mr. Ross and Ms. Harrigan-Farrelly:

On behalf of Ashland I would like to thank the Agency for meeting with us and the other

parties on February 16,2010. The purpose of this letter is to address one of the issues that EPA

sought comment on, namely, whether the urea product being sold by Nalco should be treated in

the Agency's review process the same as Nalco's ammonium sulfate product. The answer is that

(1) EPA should treat Nalco's two unregistered products -- the urea-based Nalcon 60615 and its

ammonium sulfate product, Nalcon 60620 -- the same in terms of ordering their immediate

removal from the marketplace, and (2) EPA should exclude urea from any public comment

process on ammonium sulfate products that EPA still intends to pursue.

The Agency possesses substantial evidence that both ofNalco's products are being sold

and used as biocides without FIFRA registration. In addition, the marketing materials submitted

by Nalco to EPA on February 22, 2010 demonstrate that Nalco is promoting use of both of these

products in a manner that violates FIFRA's labeling requirements. Specifically, Nalco's

marketing materials for both Nalcon 60615 (urea) and Nalcon 60620 (ammonium sulfate)

encourage combination with registered sodium hypochlorite products, including Nalco's Nalcon

60735, the labels for which prohibit mixing with ammonia and other chemicals. Nalco's

admitted practices violate FIFRA's requirement to use pesticides only in accordance with the

product's approved labeL. We urge EPA to take the stop sales action now.

Washington, D.C. Maryland New York Massachusetts New Jersey Texas Californio
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Mr. Ross and Ms. Harrigan-Farrelly

Via Electronic Mail

Page 2

Furthermore, EPA's question, and the substantial evidence before the Agency

demonstrating that both ofNalco's products are unregistered industrial biocides, continue to

raise for us the fundamental propriety of EPA's plan to engage in a public comment process

while these products are still in the marketplace and present undefined risks to the public,

including people who work at the mills where these products are sold. As you know, Ashland's

prior communications to EPA indicate our strongly held view that a opening a public docket to

seek comment on an individual company's failure to seek FIFRA registration for its biocidal

product is an unwarranted action, given the weight of evidence before EPA that Nalco's two

products are biocides. We have stated that any such public comment process, if appropriate at

all, should occur only afer EPA first protects public safety by removing these unregistered

biocides from the marketplace. Proceeding as EPA has stated it plans will encourage other

companies to first initiate product sales and then demand that EPA engage in a public comment

period before seeking FIFRA registration. We doubt that EPA intends this result; FIFRA

certainly does not countenance this sequence of action.

Therefore, we continue to encourage EPA to reconsider its stated plans to open a public

docket as its next step, in light of all of the information EPA possesses, including that presented

by all of the parties at the February 16,2010 meeting. Furthermore, if EPA still decides to

pursue a public comment process, the docket should be limited to the ammonium sulfate issues

on which EPA believes it needs further input from the public and should not include urea.

The remainder of this letter summarizes the key reasons EPA should take these actions

now.

1. Stop sales order is the appropriate next step under FIFRA

First and foremost, EPA possesses substantial evidence that N alco' s urea product, Nalcon

60615, is a biocide. EPA is authorized to issue a stop sale, use, removal and seizure order

("SSURO") whenever the Agency has "reason to believe" that a pesticide has been or is intended

to be distributed or sold in violation ofFIFRA. FIFRA § 13(a). Ashland brought the urea

biocide to EPA's attention in October 2008 and since that time has submitted substantive

information to EPA that demonstrates that Nalcon 60615 is being sold and used as a biocide. By

contrast, Nalco has provided EPA with no information regarding this product, according to EPA.

Indeed, Nalco's presentation at EPA's February 16,2010 meeting failed to address its urea

product chemistry and instead discussed urea only in the unrelated context of agricultural crop

adjuvants. Nalco's urea product, Nalcon 60615, is not used as an adjuvant; it is used in chemical

reaction with sodium hypochlorite to produce the active biocide chI oro urea, as Ashland's

February 16, 2010 presentation and prior submittals consistently demonstrate. Thus, the weight

of evidence before the Agency clearly indicates that Nalcon 60615 is a biocide, that Nalco is

selling this product without a FIFRA registration, and that EPA has ample basis for acting, now,
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Mr. Ross and Ms. Harrigan-Farrelly

Via Electronic Mail

Page 3

to stop the sale of this product by Nalco.l Any doubts EPA may still possess about this product

should be resolved in favor of public safety, not Nalco.

2. Public comment process, if any, should follow stop sales and exclude urea

EP A has had this issue under advisement for well over a year without taking this action,

as Ashland has requested from the start. Subsequent to providing the initial information to EPA

about this unregistered product in October 2008 and, as requested by EPA at that time, Ashland

has consistently updated the Agency when additional information about the biocidal nature of

this product became available. In contrast, Nalco has submitted no information to the Agency

explaining its claims regarding this product, according to EPA. Even at the parties' recent

February 16 meeting with the Agency -- specifically arranged by EPA to allow each party an

express opportunity to frame its positions and claims -- Nalco's presentation failed to include any

explanation of its urea product chemistry or why Nalco is claiming it as a stabilizer (indeed,

Nalco's presentation contained no apparent scientifically based support for the position that its

products are something other than biocides). Buckman also has not commented specifically on

Nalco's urea product.

Under these circumstances, inviting public comment on the urea biocide issue is

inappropriate. Instead, EPA should act on the substantial evidence before it that Nalcon 60615 is

sold and used as a biocide.

Other reasons exist for EPA to act on this issue now and to limit the public docket to the

ammonium sulfate issues. Although EPA has stated that the drinking water concerns raised by

Nalco for the ammonium sulfate product are not among the issues the Agency intends to decide

in this proceeding, we expect Nalco to continue to raise these extraneous issues, just as it

attempted to do at the EPA meeting on February 16th. Urea is not used in drinking water

disinfection, including Nalco's Nalcon 60615 product. Nalco's continuing silence regarding its

own urea-based product, notwithstanding repeated opportunities to provide information to EPA,

renders unwarranted and unnecessary any Agency effort to solicit wider public comment on this

issue.

3. Requested actions

In sum, Ashland hereby urges EPA to immediately order Nalco to stop sales ofNalcon

60615 and Nalcon 60620 pursuant to the authority vested in EPA to protect public health and the

environment under FIFRA. We also request that EPA decide any other issues regarding Nalcon

60615 separately from any public docket that the Agency intends to open to take comment on

any ammonium sulfate issues.

i Each of these statements applies with equal force to Nalco's ammonium sulfate product, Nalcon 60620. As noted

above, Ashland believes the proper and prudent course is for EPA to remove both products from the marketplace

immediately.
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Mr. Ross and Ms. Harrigan-Farrelly

Via Electronic Mail

Page 4

Thank you for your time and attention to this matter. Please let me know if you have any

questions regarding the information in this letter.

cc:

Dennis Edwards, EPA

William Jordan, EPA

Melba Moore, EPA

Michael Boucher, Counsel for Buckman

Seth Goldberg, Counsel for Nalco

1328210vl Washington 013421

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Karen M. Hansen