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N. Jonas & Co. v. EPA

Citation: 12 ELR 20255
No. No. 81-1682, 666 F.2d 829/(3d Cir., 12/10/1981)

The court upholds an order of the Environmental Protection Agency (EPA) finding that petitioner had failed to register a product as a pesticide in violation of § 3(a) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and assessing a civil penalty of $2,500. The court first holds that EPA correctly interpreted the definition of "presticide" as used in § 3(a) of the Act to require an objective assessment of the use a reasonable consumer would make of the product given its label, accompanying circulars, advertising representations, and the collectivity of circumstances surrounding its marketing. It then finds that the Agency's determination that petitioner's product constitutes a pesticide is supported by substantial evidence on the record. EPA is not estopped from issuing the order because there is no evidence of Agency misbehavior or discriminatory persecution of petitioner. Finally, the court rules that the $2,500 penalty was within the Agency's guidelines and not arbitrary, capricious, or an abuse of discretion.

Counsel for Petitioner
H. Ronald Klasko
Abraham & Lowenstein
1430 Land Title Bldg., 100 S. Broad St., Philadelphia PA 19110
(215) 561-1030

Counsel for Respondent
Elizabeth Yu, Donald W. Stever Jr.; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2771

Michael E Vaccaro, John C. Ulfelder
Office of the General Counsel
Environmental Protection Agency, Washington DC 20640
(202) 755-2511

Before GIBBONS and HIGGINBOTHAM, Circuit Judges, and McCUNE, District Judge*.