3. In the enforcement area, EPA has taken and continues to advocate a hard line instead of a reasonable one as mandated by Congress in hearings leading up to the amended FIFRA.

Specifically, the Agency has employed a highly arbitrary system of levying fines based upon company revenues as related to the magnitude of the threat to the environment. In this system there are no provisions made for the impact this arbitrary system has upon small businessmen. (See Exhibit 2)2

Examples of the Agency's hard line approach are:

(a) the pest control company in New England which also conducts a modest business in the sale of pesticides to the public. Overall company revenues (upon which EPA bases its fines) were in excess of $2 Million. Sales of pesticides were $27 Thousand in the company's best year. EPA took samples of a product from which the company enjoyed the staggering sales total of $700 in its best year. The samples showed the products to be adulterated (that is the concentrations in the container were different from their label specifications). The owner of the company allowed that he had violated the law and volunteered to remove the product in question from the market until quality control could be checked. EPA declined his gesture of cooperation and fined him $2400, due to company revenues overall with little environmental hazard present.

(b) the formulator of pesticide products in the South who sent certain products across state lines. EPA seized samples. A check of the labels on the products showed a minor grammatical error in the labels on the products when compared to the master label. For this heinous crime, the company was fined $5000 due to its volume although there was no threat to the environment.

(c) the distributor of pesticide products in the Great Lakes area who was conducting a training class for his customers using products labelled, "Sample Only-Not For Resale". After the class the products were put on a shelf for further training use. EPA visited the establishment and seized the products in point. The proprietor signed a receipt without reading it. EPA hauled him to court for selling a product labelled as a sample. He had not realized that this is what the receipt he signed said, although it was not the case. In our opinion, EPA duped him into incriminating himself as witnesses present at the training class have testified at how the products were used for demonstration. The case is still pending to our knowledge.

4. Despite the fact that the law provided for the use of materia's with a potentially adverse impact upon the environment by those who have demonstrated their competence to use thein, EPA has apparently no faith in the certification process. This is apparent by virtue of the Agency's systematic actions in the cancellation of products and related actions. First DDT (not for environmental causes we remind you but because of a legal technicality). Then an attempt to restrict the use of certain insecticides in places they do the most good. Then four rodenticides of little use but great importance and effectiveness when needed. Then Aldrin/Dieldrin. Now Chlordane and Heptachlor not to mention a long list of agricultural products.

We feel this again emphasizes the Agency's preference for legal remedies as opposed to the other mechanisms provided for in the law.

5. In the Regulations for the Approval of State Plans for the Certification of Pesticide Applicators published on March 12, 1975, the Agency gives the states much to do if their plans are to be accepted. At the same time, the states are given no incentives or assistance to do what is required and EPA still reserves most enforcement provisions for itself. In response numerous states are rebelling and declare they will not perform according to EPA dictates. (Colorado and Utah are notable examples. They both say they will not require private applicator certification and defy EPA to deny them use of restricted use pesticides).

Despite the fact that certification is basically an examination process as proposed in the law, the Agency has seen fit to lobby for numerous enforcement provisions in the Preamble to the regulations which has now been embraced by the states. The accident reporting system is advocated as is a general provision

2 See p. 173.

for surveillance and entry to premises. This further indicates the agency's basic philosophy.

We feel that the efforts the agency is now undertaking in the certification related efforts of the states as relate to enforcement, etc. can be better manifested by affirmative action programs in the form of grants to the states to help them implement this Federally mandated program. Without Federal assistance, many states will find it difficult to implement certification plans in such a way as to materially contribute to the protection of the environment and will have to be content that they have materially protected their relationship with EPA.

SUMMARY AND CONCLUSIONS

Although there are numerous issues we could have raised in this testimony in support of our recommendation that the Agency be given a directed budget in the implementation of the amended FIFRA, we hope we have made our point.

In summary, our position is that the Agency has set itself up as an adversary to those regulated. This, in our opinion is due to the personnel structure of the Agency since its inception. It is our opinion that the Agency as an adversary discourages voluntary, affirmative action on the part of those regulated.

The recommendations we have made would compel the Agency to shift its emphasis from one of punishment as a motivator to one of motivating voluntary compliance through positive incentives such as funding education and training programs at the Federal and State levels as well as through private channels. It is our belief that the amended FIFRA is intended to protect the environment from unreasonable, adverse effects by registering pesticides and certifying ap plicators according to the degree of hazard. We feel that these objectives can never be met as long as the Agency relies on its power to punish rather than its obligation to motivate toward the objectives of the law.

We urge this Committee to consider our suggestions and to direct the Agency to modify its budget accordingly.

Results and status of pesticides enforcement December 1972 to November 1974 Total Number of Actions initiated over 24-Months Period...

3, 015

Results as of December 1974

1. Compliance obtained without initiating formal civil or criminal proceedings

2. Formal civil or criminal proceedings initiated.

EXHIBIT 1

RESULTS OF CIVIL AND CRIMINAL PROCEEDINGS, AS OF DECEMBER 1974

2.211 804

Extracted from "EPA Enforcement: Two Years of Progress", U.S. Environmental Protection Agency, Washington, D.C.

EXHIBIT 2
NOTICES

SEC. II: CIVIL PENALTY ASSESSMENT SCHEDULE-GRAVITY OF VIOLATION-SIZE OF BUSINESS-USE VIOLATIONS

Note: Action may always be taken against the holder of the experimental use permit. Roman numerals correlate to company revenues. Capital letters relate to the effects on environment. Source: Federal Register, vol. 39, No. 148-Wednesday, July 31, 1974

STATEMENT OF RICHARD L. ELDREDGE, CAE EXECUTIVE DIRECTOR, NATIONAL PEST CONTROL ASSOCIATION, INC.-BEFORE THE HOUSE AGRICULTURE COMMITTEE, MAY 16, 1975

Mr. Chairman and members of the Committee, my name is Richard L. Eldredge. I am Executive Director of National Pest Control Association, Inc., better known as NPCA. NPCA is a national non-profit trade association which represents over 2500 companies engaged in the protection of health and property by the control of insect and vertebrate pests which cohabit with man in his place of work, residence, recreation. The type of work conducted by this industry is also called structural pest control or urban/industrial pest control. Pest control of

54-495-75- -12

the type carried on by members of our industry is valuable to the national welfare due to its direct relationship to health and to its economic relationships in the protection of structures, food and fiber. It is estimated by the Bureau of Labor Statistics that the annual economic loss due to insects controlled by our industry amounts to over $4.5 billion. Without pest control it is impossible to estimate the magnitude of such damage.

Our understanding of these hearings is that this Committee will review Agency compliance with Congressional intent in the matter of PL-92-516, which amended the Federal Insecticide, Fungicide and Rodenticide Act of 1947. We feel that Agency implementation is out of phase with Congressional intent in many ways and moreover is inconsistent with the overall needs of the country. Though the Agency's actions will certainly give us an aseptic environment, we feel the cost the nation is asked to pay in broken businesses, lost jobs, unprotected crops and inflated food prices is not worth what EPA asks us to pay.

We have already testified before the House Appropriations Subcommittee reviewing EPA's request for FY 1976. We recommended that the Agency's budget for pesticides of roughly $49 million be reallocated from its proposed form to one which accomplishes the two major objectives of the amended FIFRA:

(1) Registration/reregistration of pesticides in two classes, restricted and general use and; (2) Certification of private and commercial applicators. We also recommend that enforcement and legal matters be deemphasized to allow the Agency to concentrate on its major tasks. We repeat those recommendations before this body and urge you to consider them before authorizing EPA's appropriation for FY 1976.

Our general comments are as follows:

(1) EPA's approach to implementing the amended FIFRA is in many respects inconsistent with the will of Congress as stated in the legislative history of the development and passage of the law.

(2) EPA emphasizes strong enforcement as the primary means of implementing the law as opposed to providing an atmosphere of affirmative action for those regulated.

(3) EPA's approach to implementation seems to originate in the Offices of the General Counsel and Enforcement which tell the operational divisions what to do rather than operational departments indicating what is contemplated and requesting legal opinion as to its legality. In short, we feel the Agency has produced rules and regulations which are more concerned with checking those regulated and manifesting EPA's legal authority as opposed to a sensible protection of the environment and the nation's needs.

Our specific concerns are:

(1) Despite Congressional admonitions for the Agency to use common sense in the implementation of the Law on the matter of "use inconsistent with the label", the Agency has seen fit to take a strict constructionist approach to the matter. Industry is therefore in jeopardy of inappropriate Agency interpretations of Section 12 of the law which could lead to unwarranted penalties under both civil and criminal law. Also, the public may be denied service to which it is entitled due to a lack of compliance by EPA with Congressional intent.

(2) In the matter of certification, the Agency has seen fit to transcend the apparent attentions of Congress and in regulations relating to Section 4. It has lobbied for clumsy addenda to the certification process such as the Pesticide Episode Surveillance System, right of entry, re-examination and other dubious excesses. If the Agency had been straightforward on these issues, we would not be so concerned but, the Agency has used the Federal Register as a platform in hypothesizing non-essential procedures in preambles to regulations which the states have taken as gospel in many instances, not knowing how far they must go in satisfying EPA's preoccupation with enforcement tools.

(3) Despite Congress' intention to allow the use of pesticides which may have adverse effects on the environment and applicators by those who have been certified as competent to use or supervise the use of such materials, frequently the Agency has seen fit to use pesticides as a political football and has circumvented the certification process by what we view as a premature cancellation of pesticides without giving certification a chance to do its job.

(4) Although we understand the specific intention of Congress to provide for separate standards for private and commercial applicators, we feel that EPA has distorted the original double standard for varying schemes of certification beyond original intent. We must add in all fairness that EPA has been motivated in this area by certain Congressional quarters to keep procedures for certification

of private applicators at a minimum. We have no inherent problem with this approach to private applicators, however feel that as we and other users of pesticides are not dissimilar to private applicators in the materials we use (of which we use proportionately less in quantity), then this same approach should be applied as well to commercial applicators. The intention of the law is to protect the environment. If one accepts the approaches to certifying private applicators as complying with the law's intent, then one can readily accept the same approach as viable for commercial applicators.

(5) A small portion of our regular membership and all of our allied members are concerned about the enforcement of sections of the law that deal with the actual production and distribution of pesticides to the general public. We do not feel Congress intended to provide EPA with an overpowering authority to fine willy-nilly for minor infractions of labelling requirements of negligible if any effect on the environment in reality or theory. Nor do we feel the Agency has been authorized to badger small businessmen who may have made a technical violation of the law and who voluntarily indicate their willingness to take affirmative action.

(6) It is our observation that the Office of General Counsel of EPA intends to give states as much of the work to do in the amended FIFRA as possible and as little authority. Section 4 defines what states must do to have their certification plans approved. EPA has broadened the original five requirements determined by Congress to an extensive list of requirements and "recommendations" or "alternatives". Yet states seem still to have little authority to enforce and EPA seems to have the last word. In addition, states must generate revenues in order to comply with EPA's orders, but EPA will still call the shots. This is apparently contrary to Congress' intentions that states have broad authority in the matter as long as their standards conform to Federal standards.

Despite our numerous concerns of a general and specific nature, and our general feeling of a lack of responsiveness on the part of the Agency, particularly by the Administrator who has seen fit to leave many of our commentaries and questions unanswered by himself or a member of his staff, we feel the amended FIFRA could have an overall salubrious effect if it were to be permitted to work without bureaucratic overkill on the part of the Agency. We do not join those who militate for the repeal of the amended FIFRA, nor do we call for broad and sweeping amendments to the law. We ask only that Congress reaffirm many of its intentions at the time the law was passed. We know of no broad changes in technology which change Congress' original directions. We are concerned that many state legislatures are so outraged by the approach to the implementation of the amended FIFRA taken by EPA, that they vow they will not comply with the requirements of the law and defy EPA to deny the use of restricted use pesticides. With less than eighteen months to go until all aspects of the amended FIFRA must be in place, we feel that affirmation of earlier Congressional intentions can avoid a showdown with the states which if permitted to happen could result in a diminution of our agricultural production, the loss of protection of the nation's health and of its stored commodities as well as the destruction of property.

We ask affirmation of the following in the context of the above:

(1) On September 25, 1972, my predecessor, Dr. Ralph E. Heal appeared before the Congress and stated a unique anomaly of the law as intended. If taken literally, Section 12(a) (2) (G) which states . . . shall be unlawful to use any pesticide in a manner inconsistent with its labelling", could deprive the public of protection from potentially harmful pests for which there are no registered labels despite the proven effectiveness and safety of various products for control of those pests. In addition, in many instances, pesticides may be used effectively as concentrations less than those specified on the labels. In other instances, a generic pesticide registered by numerous manufacturers for the control of a specified pest may not be registered by another company for control of the same pest. In all three instances, one can infer a technical violation of the law. In 1972, the Chairman of the Senate Committee on Agriculture and Forestry said, ". . . it is the belief of the Committee that the word "inconsistent" should be read and administered in such a way as to visit penalties only upon those individuals who have disregarded instructions on a label that would indicate to a man of ordinary intelligence that use not in accordance with such instructions might endanger the safety of others or the environment." By this interpretation, the strict constructionist approach now taken by EPA on the matter puts many applicators in our industry who are otherwise law-abiding in