UNITED STATES ENVIRONMENTAL PROTECTION AGENCY BEFORE THE ADMINISTRATOR

In the Matter of: ) ) FMC Corporation ) DOCKET NO: FIFRA-03-2015-0248 1735 Market Street ) Philadelphia, PA 19103 )

) Respondent )

Complainant’s Reply to Respondent FMC Corporation’s Opposition to Complainant’s Motion for Partial Accelerated Decision as to Liability for Violations 1-12,273 of the

Complaint

TABLE OF CONTENTS I. Introduction………………………………………………………………………………1

II. Standard of Review for Accelerated Decision: Burdens of Moving and Non-Moving Parties…………………………………………………………………2

III. Complainant is Entitled to Partial Accelerated Decision as to Liability

for Violations 1 through 12,273 of the Complaint

A. There Are No Genuine Issues of Material Fact and Complainant is Entitled to Judgement as a Matter of Law that Respondent’s Direct Mail, Print and Website Materials Constituted “Advertisements” and that Respondent’s Conduct with Regard to Such Material Constituted “Advertising”……………………………………………………………3

B. There Are No Genuine Issues of Material Fact and Complainant is Entitled to Judgement as a Matter of Law that Respondent Did Not Include the RUP Classification in its Direct Mail, Print and Website Materials……………………………………………………………………10

C. There Are No Genuine Issues of Material Fact and Complainant is Entitled to Judgement as a Matter of Law that Respondent Committed 12,273 Individual Acts of Advertising…………………………………11

IV. Conclusion………………………………………………………………………………16

FMC RUP Magazine advertisements…………… ………………………………..Attachment 1

TABLE OF AUTHORITIES

FEDERAL CASES

In re J. Phillip Adams, 13 E.A.D. 310 (EAB 2007) ……………………………………………...8 Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)……………………………………………….2 In re Aylin, Inc., et al, 2016 EPA ALJ LEXIS 39 (ALJ, March 24, 2016)

(Order Denying Complainant’s Motion for Partial Accelerated Decision)……………….2 In re BWX Technologies, Inc., 9 E.A.D. 61 (EAB 2000)…………………………………………3 In re Carbon Injection Systems, LLC, 2016 EPA App. LEXIS 7 (EAD, Feb. 2, 2016)………...4,6 Charpentier v. Godsil, 937 F.2d 859 (3d Cir. 1991) ……………………………………………...9 In the Matter of Chase, 2012 EPA ALJ LEXIS 18 (ALJ, June 21, 2012) (Order

on Complainant’s Motion for Partial Accelerated Decision) …………………………….4 In re Chase, 2014 EPA App. LEXIS 29 (EAD, Aug. 1, 2014) …………………………………..6 In re Clarksburg Casket, 8 E.A.D. 496 (EAB 1999)……………………………………………...2 In re Green Thumb Nursery, Inc., 6 E.A.D. 782 (EAB 1997) …………………………………..2 King v. National Industries, Inc., 512 F.2d 29 (6th Cir. 1995). …………………………………..4 In re Lazarus, Inc., 7 E.A.D. 318 (EAB 1997) …………………………………………………...8 In re Liphatech, Inc., Docket No.: FIFRA-05-2010-0016,

2014 EPA ALJ LEXIS 12 (ALJ, March 12, 2014)………………………………….9,12,13 In re Liphatech, Inc., 2011 EPA ALJ LEXIS 5, (ALJ, May 6, 2011) (Order on Motions

for Accelerated Decision Regarding Alleged Violations of FIFRA § 12(a)(2)(E))…..…10 In re Mayes, 12 E.A.D. 54 (EAB 2005)…………………………………………………………..6 In re Martex Farms, S.E., 13 E.A.D. 464 (EAB 2008) ………………………………………….15 Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92 (1st Cir. 1997) (1st Cir. 1997)…………………..4 Simon v. United States, 891 F.2d 1154 (5th Cir. 1990)………………………………………….. 9 Ways v. City of Lincoln, 206 F. Supp. 2d 978 (D. Neb. 2002)……………………………………4

FEDERAL STATUTES

7 U.S.C. § 136j(a)(2)(E)…………………………………………………………………..…passim

FEDERAL RULES OF CIVIL PROCEDURE

Fd. R. Civ.P. 56………………………………………………………………………………… 2,4

FEDERAL REGULATIONS

40 C.F.R. § 22.15………………………………………………………………………………… 8 40 C.F.R. § 22.20………………………………………………………………………………..2,3 40 C.F.R. § 22.24…………………………………………………………………………….........3 40 C.F.R. § 152.168………………………………………………………………………... passim

I. Introduction Complainant, the Director of the Land and Chemicals Division, United States Environmental

Protection Agency, Region III (“Complainant”) has met its burden for Partial Accelerated

Decision as to Respondent FMC Corporation’s (“Respondent”) liability for violations 1 through

12,273 of the Complaint. Specifically, Complainant has met its burden of production as the

moving party by citing to Respondent’s admissions in its Answer to the Complaint; other

materials in the record, including admissions and documents submitted by Respondent, and the

affidavit of Christine Convery, which show that no genuine dispute of material fact exists as to

Respondent’s liability for the 12,273 violations of Section 12(a)(2)(E) of FIFRA, 7 U.S.C.

§ 136j(a)(2)(E), alleged in the Complaint concerning Respondent’s illegal advertisements of its

restricted use pesticide (“RUP”) F9047-2 EC Insecticide, EPA Reg. No. 279-9545.

Memorandum of Law in Support of Complainant’s Motion for Partial Accelerated Decision as to

Liability for Violations 1-12,273 of the Complaint (“Complainant’s Memo”). Contrary to the

assertions in Respondent FMC Corporation’s Opposition to Complainant’s Motion for Partial

Accelerated Decision as to Liability for Violations 1-12,273 of the Complaint (“Respondent’s

Opposition”), Respondent has failed to meet its burden as the non-moving party to cite to

materials in the record or show that the materials cited by EPA do not establish the absence of a

genuine dispute with regard to any of the facts material to either party’s theory of liability under

Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), with respect to those 12,273 violations.

For the reasons set forth in Complainant’s Memo and herein, Complainant has established

that it is entitled to judgement as a matter of law and seeks an Order granting partial accelerated

decision in its favor, in full or in part, as to liability for the 12,273 violations of Section 12(a)(2)(E)

of FIFRA, 7 U.S.C. § 136j(a)(2)(E), alleged in the Complaint.

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II. Standard of Review for Accelerated Decision: Burdens of Moving and Non-Moving Parties

Section IV. of Complainant’s Memo addresses the standard of review for accelerated

decision. Complainant’s Memo at 8-10. As described therein, the standard for motions for

accelerated decision under 40 C.F.R. § 22.20 of the Consolidated Rules of Procedure is similar to

the standard for motions for summary judgment under Rule 56 of the Federal Rules of Civil

Procedure (“FRCP”). Id. Consistent with Rule 56 jurisprudence, Complainant – as the moving

party - bears the burden of showing that no genuine issue of material fact exists and that it is

entitled to judgment as a matter of law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970);

In re Clarksburg Casket, 8 E.A.D. 496, 501–502 (EAB 1999) (citing In re Green Thumb

Nursery, Inc., 6 E.A.D. 782, 793 (EAB 1997)). In order to do so, Complainant must first meet

its burden of production by “citing to particular parts of materials in the record” or by “showing

that the materials cited do not establish the . . . presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.” In re Aylin, Inc., 2016 EPA ALJ

LEXIS 39, at *12-13 (Order Denying Complainant’s Motion for Partial Accelerated Decision)

(quoting FRCP(c)(1)). After Complainant has satisfied this burden of production, the burden

shifts to the Respondent – the nonmoving party - to show that a genuine dispute of material fact

exists by similarly “citing to particular parts of materials in the record” or by “showing that the

materials cited do not establish the absence . . . of a genuine dispute or that an adverse party

cannot produce admissible evidence to support the fact.” Id. Though the ultimate burden of

persuasion remains with the movant, the Environmental Appeals Board (“EAB”) has noted

“neither party can meet its burden of production by resting on mere allegations, assertions, or

conclusions of evidence” and further that “parties opposing summary judgement must provide

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more than a scintilla of evidence on a disputed factual issue to show their entitlement to a trial or

evidentiary standard of the case.” In re BWX Technologies, Inc., 9 E.A.D. 61, 75-76 (EAB

2000).

The Consolidated Rules of Practice further provide:

If an accelerated decision . . . is rendered on less than all issues or claims in the proceeding, the Presiding Officer shall determine what material facts exist without substantial controversy and what material facts remain controverted. The partial accelerated decision . . . shall specify the facts which appear substantially uncontroverted, and the issues and claims upon which the hearing will proceed.” 40 C.F.R. § 22.20(b)(2).

Under 40 C.F.R. § 22.24(b) of the Consolidated Rules of Procedure, “[e]ach matter of

controversy shall be decided by the presiding Officer upon a preponderance of the evidence.”

40 C.F.R. § 22.24(b).

III. Complainant is Entitled to Partial Accelerated Decision as to Liability for Violations 1 through 12,273 of the Complaint

A. There Are No Genuine Issues of Material Fact and Complainant is Entitled to

Judgement as a Matter of Law that Respondent’s Direct Mail, Print and Website Materials Constituted “Advertisements” and that Respondent’s Conduct with Regard to Such Material Constituted “Advertising”

Section V.B. of Complainant’s Memo sets forth the facts that underly Complainant’s position

that Respondent’s direct mail, print and website materials constitute “advertisements” under 40

C.F.R. § 152.168, and that Respondent’s conduct in regard to such materials constituted

“advertising” under Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E). Complainant’s

Memo at 11-13. Such facts include legally binding admissions in Respondent’s Answer,

admissions and supporting documentation provided by Respondent outside the pleadings, and

information obtained through EPA’s investigation. Complainant’s Memo at 11-13. Respondent

has raised no genuine issue with respect to any of these underlying facts.

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Complainant submits that the undisputed facts in the record are sufficient for the

determination of whether Respondent’s direct mail, print and website materials are regulated

“advertisements” and that proposed testimony suggested by Respondent is neither required nor

appropriate. EPA’s 40 C.F.R. § 152.168 advertising regulations were promulgated in their

current form in May 4, 1988 and contain no definition of the term “advertisement.” 53 Fed. Reg.

15986 (May 4, 1988). In cases such as this where there is no governing legal definition of a

particular term, the EAB has held that such term should be readily defined based on its

“ordinary, contemporary, common meaning” and often relies on dictionaries in interpreting

regulatory language. In re Chase, 2014 EPA App. LEXIS 29, at *24 (EAD, Aug. 1,

2014)(quoting In re Mayes, 12 E.A.D. 54, 86 (EAB 2005) (uses various dictionary definitions for

guidance to define the term “annual”)); In re Carbon Injection Sys., LLC, 2016 EPA App.

LEXIS 7, 47-48 (EAD, Feb. 2, 2016). Though there are many sources to choose from1,

Complainant submits that Respondent’s direct mail, print and website materials at issue in this

case fall under common dictionary definitions of “advertisements”, and more importantly when

analyzed more closely are clearly of a nature that were intended to be regulated under 40 C.F.R.

§ 152.168. Because neither “advertisement” nor “advertise” are terms of art or complex

1 See e.g., “Advertisement” is defined as: “1. the act or process of advertising; 2. a public notice, especially one published in the press or broadcast over the air” (http://www.merriam-webster.com/dictionary/advertisement); “[a] notice or announcement in a public medium promoting a product, service, or event or publicizing a job vacancy” (http://www.oxforddictionaries.com/us/definition/american_english/advertisement); “a paid notice that tells people about a product or service” (http://dictionary.cambridge.org/us/dictionary/english/advertisement).

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scientific terms, Respondent’s intention to call its expert witness Mr. George Orme to offer

testimony as to what these terms mean is inappropriate. Respondent’s Opposition at 5-6; Orme

Declaration at ¶7; See In re: Carbon Injection Systems, LLC, 2016 EPA App. LEXIS 7, at *45

(E.A.D. Feb. 2, 2016)(finding that “the ALJ erred by relying on an industry expert’s testimony

concerning the common, ordinary meaning of the regulatory term “energy” given the general

presumption against expert testimony on legal questions in judicial proceedings”); Nieves-

Villanueva v. Soto-Rivera, 133 F.3d 92, 99 (1st Cir. 1997); Ways v. City of Lincoln, 206 F. Supp.

2d 978, 991 (D. Neb. 2002) aff'd, 331 F.3d 596 (8th Cir. 2003) (holding that “expert testimony

that purports to explain the legal meaning of a term is forbidden * * *, but testimony defining a

term of art [in an ordinance] as it is used within a given field may be allowed”).

Further, while Respondent’s Opposition argues for “a case-by-case inquiry based on factual

evidence outside of the evidence included in the pre-hearing submissions,” it fails to identify the

additional factual evidence it would seek to introduce. Respondent’s Opposition at 7-8.

Accordingly, Respondent has not met its burden to show that a genuine dispute of material fact

exists as a party opposing a motion for summary judgement “may not raise an issue of fact by

merely referring to the proposed testimony of possible witnesses. . . . An affidavit stating what

the attorney believes or intends to prove at trial is insufficient to comply with the burden placed

on a party opposing a motion for summary judgment under [FRCP] 56.” In the Matter of Chase,

2012 EPA ALJ LEXIS 18, at *53-54 (ALJ, June 21, 2012) (Order on Complainant’s Motion for

Partial Accelerated Decision) (quoting King v. National Industries, Inc., 512 F.2d 29, 33-34 (6th

Cir. 1995)).

Complainant’s “ad-hoc” analysis in Section V.C. of Complainant’s Memo of Respondent’s

direct mail, print and website materials shows, by the preponderance of the evidence, that each of

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these materials constitute “advertisements” under 40 C.F.R. § 152.168, and that Respondent’s

conduct in regard to such materials constituted “advertising” under Section 12(a)(2)(E) of

FIFRA, 7 U.S.C. § 136j(a)(2)(E). Complainant’s Memo at 15-25. Certainly, not all

communications from pesticide registrants conveyed by brochure, pamphlet, broadcast media or

other form specified 40 C.F.R. § 152.168 are regulated “advertisements” (e.g., SEC-required

communications and Material Data Safety Sheets (MSDS)). Respondent’s Opposition at 6;

Orme Declaration at ¶7. The fact that the direct mail, print and website materials at issue in this

case were each in a form specified in 40 C.F.R. § 152.168 was but one of several bases, in

addition to an analysis of their content, context, and use, supporting Complainant’s position that

they constitute regulated “advertisements”. Complainant’s Memo at 15-25.

Contrary to Respondent’s assertion, no factual inquiry must be made as to whether the direct

mailers were “offered to purchasers.” Respondent’s Opposition at 7. Respondent has admitted

in its Answer that it “caused direct mailer(s) about F9047-2 EC Insecticide, EPA Reg. No. 279-9545

to be sent to individuals associated with various agricultural farms (“farm/grower consumers”) in

March 2012,” and that it “caused direct mailer(s) about F9047-2 EC Insecticide, EPA Reg. No. 279-

9545 to be sent to individuals associated with retailers in Respondent’s product distribution chain

(“retail purchasers”) in March 2012.” Complaint and Answer at ¶¶ 22 and 32. As there can be no

question that farm/grower consumers or retail purchasers are potential purchasers (versus

stockholders, first responders, etc.), this issue has been determined conclusively and requires no

further evidence. Additionally, as previously noted in these proceedings, 40 C.F.R. 152.168(b) is

an inclusive – not exclusive – list, and therefore not all “regulated” advertisements are explicitly

listed. See Complainant’s Rebuttal PHE at 3.

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Respondent misconstrues Complainant’s view as to the significance of FMC’s responses to

EPA’s Request for Information letters. Unlike admissions in Respondent’s Answer to the

Complaint - which are legally binding, the information provided by FMC in its answers to EPA’s

Information Request letters are viewed as evidence to be considered and weighed by the trier of

fact, akin to party admissions. As shown in Section C. of Complainant’s Memo, FMC’s initial

identification of its direct mail, print and website materials as being responsive to EPA’s request

for “promotional and advertising materials” is just one of several bases, including an analysis of

the content, use and form of each of the materials themselves, that support Complainant’s

argument that such materials constitute “advertisements” under 40 C.F.R. § 152.1682.

Complainant’s Memo at 15-25.

Respondent implies that FMC may not have been clear as to the purpose of EPA’s

Information Request Letters or as to the scope of “promotional and advertising” information

requested at the time of its responses. Respondent’s Opposition at 9. Complainant notes,

however, that at no time did FMC ask EPA for clarification on either of these issues, nor did it

provide caveats in any of its responses to reflect such uncertainty. See Cx25, and CX27. Even

after receiving EPA’s May 7, 2014 “Show Cause” letter advising FMC of suspected violations of

Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), FMC failed to revise its previous July

18, 2013 response and used the following language to describe its direct mail and print materials

in a July 15, 2014 response:

2 In fact, several of the materials identified by FMC as being responsive to EPA’s request for “promotional and advertising materials” which also did not include the RUP classification were not included in the Complaint. See Convery Declaration at 3, fn 1.

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a. F100-22694-01_Stallion_DM-Vs3-X1A.pdf was a print advertisement that was mailed to growers in March 2012;

b. F100-22694-02_Stallion_DM-Retailers-X1A.pdf was a print advertisement that was mailed to retailers in March 2012;

c. F100-22333-1_Stallion_PrintAd_ProgressiveForageGrower-X1A.pdf was a print advertisement that appeared in the April, May and June 2012 editions of Progressive Forage Grower magazine; and

d. F100-22333-1_Stallion_PrintAd_Sunflower-X1A.pdf was a print advertisement that appeared in the March and April 2012 editions of The Sunflower magazine.

Convery Declaration at ¶¶ 8 and 10; CX25 at EPA 0681- EPA 0682; CX27 at EPA 0755-EPA 0756; See also Convery Declaration at ¶ 14; CX29 (describing direct mailers as “advertisements” in its July 21, 2015 response).

This conduct suggests that Respondent did not believe at the time that it ‘cast too broad of a

net’ in responding to EPA’s Information Request letters, and Complainant wholly rejects

Respondent’s contentions that it should have instead “unilaterally defined EPA’s terms and

fought production” or that it is being unfairly “punished” for cooperating with EPA’s compliance

investigation – rather than for its own violative conduct. Respondent’s Opposition at 10-11.

Respondent’s defenses do not bar entry of a judgement for Complainant. Respondent’s

Opposition raises for the first time affirmative defenses on due process/First Amendment/fair

notice grounds in regard to EPA’s failure to define the terms “advertisement” and “advertising.”

Respondent’s Opposition at 11-13. Respondent’s defense(s) were not timely raised and should

be denied on procedural grounds. As the Consolidated Rule of Practice require Respondent in

its Answer to state “[t]he circumstances or arguments which are alleged to constitute the grounds

of any defense,” Respondent waived such defenses by failing to raise them in its Answer or Pre-

Hearing Exchange, or to move to amend its Answer to include them. 40 C.F.R. § 22.15(b). J.

Phillip Adams, 13 E.A.D. 310, 326 n. 19 (EAB 2007) (“Although the Federal Rules do not

themselves clearly address the question of waiver, the courts have found that because the rules

are clear in terms of when defenses must be asserted, courts have the authority to treat untimely

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defenses as waived.”); In re Lazarus, Inc., 7 E.A.D. 318, 331 (EAB 1997) (“The general rule is

that failure to include an [affirmative] defense in the answer constitutes a waiver of that defense”

(citing Charpentier v. Godsil, 937 F.2d 859, 863 (3d Cir. 1991) and Simon v. United States, 891

F.2d 1154, 1157 (5th Cir. 1990))).

Respondent’s due process/First Amendment/fair notice defenses should fail on substantive

grounds as well. EPA’s 40 C.F.R. § 152.168 advertising regulations have been promulgated in

their current form since May 4, 1988. 53 Fed. Reg. 15986 (May 4, 1988). Though the

regulations do not include a definition of “advertisement,” the term itself is a not a technical term

or a term of art and its general meaning and ubiquitous manifestations are so widely understood

and recognized that Respondent should have been easily able to understand the conduct that was

prohibited, particularly with respect to its direct mailers and magazine print ads (i.e., violations

1-12,271 of the Complaint). To the extent Respondent had any uncertainty about the

applicability of EPA’s 40 C.F.R. § 152.168 regulation as to its advertising activities, it had over

25 years to inquire and seek clarification from the Agency. Indeed, Respondent was put on

further notice of EPA’s interpretation of “advertisements” and “advertising” on May 14, 2010

(i.e., well before the first advertising violation alleged in the Complaint), the date on which EPA

filed a complaint against Liphatech, Inc., for similar advertising violations of Section 12(a)(2)(E)

of FIFRA, 7 U.S.C. § 136j(a)(2)(E). See In re Liphatech, Inc., Docket No.: FIFRA-05-2010-

0016, 2014 EPA ALJ LEXIS 12 (ALJ, March 12, 2014).

Moreover, Respondent’s “adequate notice” argument is specious and belied by its own

history. Respondent’s Opposition at 12-13. A review of the materials submitted as part of

FMC’s July 18, 2013 response, as well as publically accessible advertisements for other FMC

RUPs, show that FMC clearly considered the very same type of direct mail and print

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“communications” as those at issue in violations 1-12,271 of the Complaint to be regulated

“advertisements”3.

B. There Are No Genuine Issues of Material Fact and Complainant is Entitled to Judgement as a Matter of Law Finding that Respondent Did Not Include the RUP Classification in its Direct Mail, Print and Website Materials

Respondent’s Opposition raises no issues of fact concerning whether its direct mail, print and

website materials included the required RUP classification. Respondent essentially reprises and

expands the legal argument included in its prehearing exchange that it constructively complied

with 40 C.F.R. § 152.168 . . . because all its “communications contained ‘a statement of’ the

restricted use classification by referring the reader to the product label.” Respondent’s

Opposition at 14. See also Respondent’s PHE at 19. As previously argued by Complainant,

this argument is without merit and should be dismissed on the same grounds as the Chief

Administrative Law Judge did in the Liphatech case. In re Liphatech, Inc., Docket No.: FIFRA-

05-2010-0016, 2011 EPA ALJ LEXIS 5, at *27-31 (ALJ, May 6, 2011) (Order on Motions for

Accelerated Decision Regarding Alleged Violations of FIFRA § 12(A)(2)(E)), See

Complainant’s Memo at 27-29; Complainant’s Rebuttal PHE at 4-5. Respondent argues that

Complainant’s reliance on this case is misplaced because some of the advertisements at issue

3 See e.g., CX25 at EPA 0697 and EPA 0699 (2013 print ads, “Stallion is a restricted use pesticide” along left-hand side of page); EPA 0706-EPA 0707 and EPA 0708-EPA 0709 (2013 direct mailers, “Stallion is a restricted use pesticide” on back side along bottom). See also http://mydigimag.rrd.com/publication/?i=141748 (January 2013 issue of Citrus and Vegetable Magazine, page 24, “Mustang, Chariot, and Gladiator are restricted use pesticides” along right-hand side of page); http://mydigimag.rrd.com/publication/?i=200828 (March 2014 issue of Citrus and Vegetable Magazine, page 5, “Mustang is a restricted use pesticide” along right-hand side of page); http://www.progressiveforage.com/digital_edition/2013/02/ (February 1, 2013 issue of Progressive Forage Grower magazine, page 12, “Stallion is a restricted use pesticide” along left-hand side of page); http://soygrowers.com/wp-content/uploads/2013/01/americansoybean_fall2013_fnl_web.pdf (Fall 2013 issue of American Soybean, page 2, “Hero Insecticide and Capture LFR are restricted use pesticides” along bottom of page). Note: for convenience, print copies from these websites are attached (Attachment 1).

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were radio broadcasts in which the audio references to the label (on which was included the RUP

statement) were “fleeting.” Respondent’s Opposition at 14. However, Complainant notes that

the regulatory required language is virtually identical for printed materials as for broadcast

advertising:

The requirement may be satisfied for printed material by inclusion of the statement “Restricted Use Pesticide,” or the terms of restriction, prominently in the advertisement. The requirement may be satisfied with respect to broadcast or telephone advertising by inclusion of the spoken words “Restricted use pesticide [sic],” or a statement of the terms of restriction. 40 C.F.R. § 152.168(c) (emph. added).

Therefore the Liphatech analysis is clearly applicable to the instant facts despite the

different advertising media at issue. Moreover, even assuming, arguendo, that Respondent did

constructively comply by “cross-referencing,” Complainant contends that the miniscule font size

of its “cross-reference” is analogous to the “fleeting” references in Liphatech’s radio

advertisements.

C. There Are No Genuine Issues of Material Fact and Complainant is Entitled to Judgement as a Matter of Law Finding that Respondent Committed 12,273 Individual Acts of Advertising

Contrary to Respondent’s assertion, there is no dispute as to the material facts for

determining the number of violations of Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E),

alleged in the Complaint. Section V.F. of Complainant’s Memo sets forth facts in the record

showing that Respondent caused the following acts of advertising: 9,645 direct mailers sent to

individual farm/grower consumers, 2,622 direct mailers sent to individual retail purchasers, ads

printed in three (3) issues of Progressive Forage Grower magazine, an advertisement printed in

a single issue of The Sunflower magazine, a testimonial sell sheet posted on Respondent’s

website on the product’s webpage, and an article posted on the PRWeb online news distribution

and publicity website. Complainant’s Memo at 31-37. These are the facts that are material to

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Complainant’s legal position as to the number of advertising violations, and Respondent has

raised no genuine issue with respect to any of these facts.

Alternatively, Respondent posits based on these same undisputed facts (assuming advertising

is proved) that there are only four violations: “one violation for FMC’s decision to cause the

Stomp Plate to be included in periodicals, one violation for FMC’s decision to cause the Stomp

Plate to be included in the direct mailer, and two violations associated with FMC’s decision to

cause the two website communications to be posted.” Respondent’s Opposition at 4. Other than

to assert that all of its direct mail and magazine advertisements “involve[d] a single design

“plate” . . . that displayed a horseshoe imprint on soil and stated “stomp more” insects (the

“Stomp Plate”),” Respondent provides no statutory basis or argument for its legal position on the

number of violations. Respondent’s Opposition at 1.

Section V.E. of Complainant’s Memo describes how FIFRA’s statutory provisions, purpose

and recent case law4 indicate that the ‘unit of violation’ under Section 12(a)(2)(E) of FIFRA, 7

U.S.C. § 136j(a)(2)(E), ought to be based on each individual act of advertising. Complainant’s

Memo at 29-30. Not only does Respondent’s position miss the mark as to the relevant act that

determines the unit of violation Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), which is

to advertise, it is wholly inconsistent with the consumer protection goals of FIFRA’s advertising

provisions as it would permit 12,267 individual acts of violative advertising through direct mail –

4 In a similar case involving violative radio and magazine advertisements, the Respondent proposed basing the “unit of violation” under Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), on the number of different radio stations and publications that contained or aired the advertisement (i.e., 10), the failure to include RUP language in advertising generally (i.e., 1), the number of versions of violative radio and print ads (i.e., 6), the number of States the violative advertisements were broadcast or distributed (i.e., 6), and the medium the advertisement was run (i.e., 2) but the Chief Administrative Law Judge found “no indication in the statutory language that unlawful advertisements should be grouped on anything less than a per advertisement basis.” Liphatech, 2014 EPA ALJ LEXIS at *220.

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each failing to state the pesticide product’s RUP classification and thus communicate the risks

and limitations inherent with its purchase and use to potential purchasers – to be penalized as a single

decision5. Though Complainant disagrees with Respondent’s creative construction as to the

number advertising violations, the facts on which this number of violations is based are not in

dispute.

Respondent accuses Complainant of “inexplicably ignor[ing] facts already in the record

about returned and duplicative direct mailers.” Respondent’s Opposition at 4. Complainant

asserts that these facts have been thoroughly considered and simply found to be irrelevant to its

legal position as to the number of advertising violations for purposes of liability, which is based

on the number of individual acts of advertising (i.e., the number of instances Respondent caused

a direct mailer to be sent to an individual farm/grower consumer (i.e., 9,645) or an individual

retail purchaser (i.e., 2,622)). Complainant’s Memo at 31-35. Though Complainant maintains

that liability attached at the time each direct mailer was sent, it notes that the direct mailers

Respondent represents as being “returned” (as reflected in Rx061, and referenced in Rx076) have

been specifically excluded for purposes of penalty. Complainant’s Rebuttal PHE at 10.

Respondent represents that “after removing mailers that were sent to one or more individuals

associated with the same agricultural farm and returned direct mailers,” there were 6,379

intended agricultural farm recipients; and that “after removing direct mailers that were sent to

one or more individuals associated with the same retailer as well as returned direct mailers,”

5 In addressing this very issue, the Chief Administrative Law Judge in Liphatech noted “[i]f this tribunal were to find that each advertisement did not constitute a separate violation of FIFRA section 12(a)(2)(E), that interpretation would not deter a party who unlawfully advertises a registered pesticide once from continuing to publish or broadcast the unlawful advertisement as many times as it desires because the penalty would remain the same.” Liphatech, 2014 EPA ALJ LEXIS at *251

14

there were 346 intended retailer recipients, and refers to the removed mailers as “duplicates6.”

Respondent’s Opposition at 4-5. After completing this exercise, however, Respondent provides

no statutory basis or legal argument for using only this subset of violative mailers to determine

the number of advertising violations and thus also appears to “ignore” these facts about returned

and duplicative direct mailers. Complainant submits that to the extent this subset of violative

mailers have any relevance, it would be for purposes of penalty only, not liability.

As Complainant does not dispute Respondent’s factual representations described above, there

is no need to call its expert witness Mr. George Orme “to offer testimony on the reduction in

numbers due to the returned and duplicate mailers.” Respondent’s Opposition at 5; Orme

Declaration at ¶8. Likewise, there is no need for this Court to consider Respondent’s expert’s

proposed testimony “about the other factors that typically are taken into account, such as mail

that is not delivered, mail that is not read, and the different ways that mail is read or potentially

6 As noted in its Rebuttal Prehearing Exchange, Complainant finds Respondent’s use of the term “duplicates” to be both erroneous and misleading. See Rebuttal PHE at 2. Respondent identifies as “duplicates” mailers sent to all individuals, beyond the first individual, that are associated with the same agricultural farm or the same retailer (i.e., the names of the individuals whose names have been shaded in grey or yellow on the “Retailer List” in Tab A and “Grower List” in Tab C” in RX061.) In counting only the mailer sent to the first individual associated with a grower or retailer regardless of how many mailers were actually sent, Respondent is essentially counting the number of growers and retailers. By way of example, Respondent would identify as duplicates and remove the three (3) direct mailers sent to: Moe Smith associated with Red Grower Farm, Jack Doe associated with Red Grower Farm, and Alice Doe associated with Green Retailer in the table below notwithstanding the fact that direct mailers that failing to state the pesticide product’s RUP classification were sent to all six (6) potential purchasers:

COMPANY_NAME FIRST_NAME LAST_NAME 1 Red Grower Farm Many Jones 2 Red Grower Farm Moe Smith 3 Red Grower Farm Jack Doe 4 Blue Retailer Bob Smith 5 Green Retailer Ted Jones 6 Green Retailer Alice Doe

15

used” as such testimony does not bear on any genuine issue of material fact under either party’s

theory of liability7. Respondent’s Opposition at 5; Orme Declaration at ¶8.

Though Respondent asserts that the number of violations alleged by EPA is “internally

inconsistent, unreasonable, arbitrary and capricious,” Sections V.E. and F. of Complainant’s

Memo clearly show that the number of violations alleged in the Complaint is consistent with

applicable law and policies, and directly corresponds with the evidence. Respondent’s

Opposition at 3; Complainant’s Memo at 29-37. It is well settled that the number of violation

with which an agency chooses to charge a Respondent in a particular matter is within its

prosecutorial discretion. See Martex Farms, S.E., 13 E.A.D. 464, 488 (EAB 2008) (citing B&R

Oil Co., 8 E.A.D. 39, 51 (EAB 1998) (‘[C]ourts have traditionally accorded governments a wide

berth of prosecutorial discretion in deciding whether, and against who, to undertake enforcement

action.”)) Here, Complainant exercised prosecutorial discretion in alleging the number of

violations for the magazine advertisements based on the particular issues of Progressive Forage

Grower and The Sunflower magazines and not the individual copies of each issue that were

likely circulated to subscribers8. Despite any perceived “internal inconsistencies” by

Respondent, the number of violations alleged in the Complaint for Respondent’s direct mailers

advertisements is consistent with applicable law and policies; directly corresponds with the

7 As discussed in Section V. F. of Complainant’s Memo, Complainant maintains that liability under Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), attached at the time each direct mailer was sent (i.e., the time it committed the unlawful act). Complainant’s Memo at 31-37. Though arguably possibly relevant for purposes of penalty, expert testimony as to the rate direct mail is generally delivered, read or used is not probative to the determination of liability, and hence, irrelevant to Complainant’s Motion. 8 According to https://lists.nextmark.com/market;jsessionid=1B3716C365F97DEB13FD6FF969EF4F1A? page=order/online/ datacard&id=308822, Progressive Forage Grower magazine has over 37,000 subscribers, consisting of farmers, hay and silage producers, alfalfa growers, and mid-level managers that plant, manage, and harvest a variety of grasses, silage, and hay products for livestock feed. According to https://www.sunflowernsa.com/ magazine/Advertising/, The Sunflower magazine goes to over 20,000 readers, 92% of which are sunflower growers.

16

evidence, taking into account the volume, breadth and uniquely direct and personalized nature of

the direct mailer advertisements; and is within Complainant’s prosecutorial discretion.

IV. Conclusion

Respondent has not satisfied its burden under the Consolidated Rules of Practice to defeat

Complainant’s fully supported Motion for Partial Accelerated Decision because it failed to

identify any facts that are in dispute – or substantially controverted – regarding the violations of

Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), alleged in the Complaint.

As explained in Complainant’s Memo and herein, the facts are undisputed as to the

elements Complainant must prove as part of its prima facie case for the alleged advertising

violations. There is no factual dispute – only a legal dispute – whether Respondent’s direct

mail, print, and website materials constitute “advertisements” within the meaning of Section

12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E), and 40 C.F.R. § 152.168. Similarly, there is no

factual dispute that each of Respondent’s direct mail, print, and website material failed to bear

“Restricted Use Pesticide” or a statement of the terms of restriction, only a legal dispute as to

whether such materials otherwise complied with the requirements of 40 C.F.R. § 152.168 and

Section 12(a)(2)(E) of FIFRA, 7 U.S.C. § 136j(a)(2)(E).

There is also no factual dispute as to the number of individual acts of advertising – even

as to the direct mailers, which are based on Respondent’s own statements and documentation.

As matter of law, this Court should find that Respondent violated Section 12(a)(2)(E) of FIFRA,

7 U.S.C. § 136j(a)(2)(E), by illegally “advertising” its restricted use pesticide F9047-2 EC

Insecticide EPA Reg. No. 279-9545 on 12,273 occasions. To the extent any consideration is

given to the number of so-called “duplicate” or returned mailers, it should be deferred to the

penalty phase of this matter as such facts do not in any way bear on liability.

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2012 U.S. forage statistics

Legend

3,900

3,000

698

45

475

190

20

$74,717

18Oklahoma

5,073 +88.7%

4

3

30

26

28

-33.3%

State ranking-

all forage production

All forage production

(in thousands of tons)

Percentage

increase/decrease

in forage production

2011-2012

State ranking-

alfalfa yield

State ranking-

alfalfa acres

Percentage

increase/decrease of

alfalfa new plantings

2011 hay receipts as a

percentage of state’s

total farm receipts

State ranking-

other hay yield

State ranking-

silage yieldAlfalfa yield

(in thousands of tons)

Alfalfa acres

(in thousands of acres)

Alfalfa new plantings

(in thousands of acres)

2011 hay receipts

annual total

(in thousands of dollars)

Other hay yield

(in thousands of tons)

Other hay acres

(in thousands of acres)

Silage acres

(in thousands of acres)

Top 3 ag commodities

Silage yield

(in thousands of tons)

State ranking-

other hay acres

State ranking-

silage acres

Source: Crop Production 2012 Summary Report, USDA, NASS

Statistical ties are represented by the same numerical ranking.

Apples, Dairy, Wheat

Greenhouse, Hay, Potatoes

1,026

380

1,750

70

1,960

400

70

$375,305

20Washington

4,898 -15.7%

25

29

20

235%

12

1627.3%

Greenhouse, Cattle/calves, Dairy

1,364

620

864

32

1,710

380

58

$348,745

23Oregon

3,938 -5.8%

Alaska

22,000 total hay acres were

harvested in 2012, up 15.8%

from 2011. 27,000 tons of hay

were produced in 2012, up

22.7% from 2010.

2011 hay receipts annual

total (in thousands of dollars)

totaled $3,600, 11% of total

farm receipts.

19

21

27

322%

15

18+16.0%

Dairy, Almonds, Grapes

2,160

600

11,263

425

6,555

950

130

$1,318,827

2California

20,338 -24.6%

9

23

2

73%

1

6-3.7%

Cattle/calves, Hay, Dairy

280

175

156

6

1,056

240

20

$149,541

37Nevada

1,492 -9.0%

38

36

41

4322%

19

24-16.7%

Dairy, Cattle/calves, Potatoes

600

300

5,940

220

4,160

1,040

140

$555,781

7Idaho11,720 -5.7%

30

33

6

118%

2

5

Dairy, Cattle/calves, Hay

336

160

1,232

56

2,050

500

55

$248,178

25Utah3,618 -12.3%

37

38

23

242%

11

13-21.4%

Dairy, Lettuce, Cattle/calves

216

45

1,204

43

2,100

250

65

$244,930

27Arizona

3,520 +21.2%

41

46

24

286%

10

23+18.2%

Cattle/calves, Dairy, Pecans

255

85

2,000

80

1,100

200

30

$159,968

28New Mexico

3,399 +4.9%

40

42

17

224%

18

25+36.4%

Cattle/calves, Corn, Dairy

1,136

710

3,200

160

2,625

750

70

$380,262

13Colorado

6,961 +6.7%

23

18

13

175%

4

9

Cattle/calves, Hay, Hogs

560

400

770

35

1,330

475

40

$147,966

29Wyoming

2,660 -8.3%

32

27

29

3011%

17

14+25.0%

-26.3%

Wheat, Cattle/calves, Hay

1,120

700

840

42

3,000

1,500

85

$270,704

19Montana

4,960 -22.4%

24

19

28

298%

3

2+6.3%

Wheat, Soybeans, Corn

1,350

900

1,350

100

1,806

1,290

53

$67,123

21North Dakota

4,506 -39.7%

20

13

22

19.9%

14

3-1.9%

Corn, Cattle/calves, Soybeans

1,500

1,250

4,800

600

2,590

1,850

100

$165,500

8South Dakota

8,963 -25.4%

17

9

8

22%

5

1

Corn, Soybeans, Hogs

1,530

900

6,650

350

2,465

850

200

$149,201

6Minnesota

12,325 -12.3%

16

13

5

8.8%

6

7+11.1%

Corn, Hogs, Soybeans

697

410

4,875

325

11Iowa8,339 +1.6%

28

7

.3%

9

+35.3%Dairy, Corn, Cattle/calves

600

400

14,210

980

2,415

1,050

390

$74,902

1Wisconsin

24,045 -16.9%

30

27

1

110%

7

4

Dairy, Corn, Soybeans

465

310

3,600

240

1,386

660

95

$69,117

14Michigan

6,837 -31.7%

35

32

12

10.9%

16

11+5.6%

-9.3%

Broilers, Cattle/calves, Turkeys

976

610

240

15

52

20

2

$27,889

40West Virginia

1,268 -17.2%

26

22

39

37.6%

33

32-50.0%

Greenhouse, Blueberries, Horses/mules

194

88

104

8

66

17

3

$7,332

45New Jersey

364 -0.5%

42

41

43

42.7%

31

33+50.0%

Greenhouse, Dairy, Aquaculture

97

51

440

22

21

7

1

$5,737

43Connecticut

558 +18.0%

45

44

35

361%

37

38

0%Dairy, Corn, Greenhouse

1,725

1,150

8,075

475

902

410

110

$72,984

4New York

12,959 -9.5%

14

11

3

41%

23

15+29.4%

+100%

0%

Potatoes, Dairy, Aquaculture

192

120

400

25

14

10

2

$9,276

42Maine

606 -12.9%

43

40

36

351%

40

35

Dairy, Cattle/calves, Maple products

270

150

1,539

81

53

35

6

$12,368

30Vermont

2,380 -8.8%

39

39

21

213%

32

30

Dairy, Greenhouse, Apples

89

47

260

13

10

5

1

$4,589

46New Hampshire

359 -8.4%

46

45

37

392%

41

41

0%

Dairy, Corn, Cattle/calves

1,938

1,020

7,920

440

1,040

400

90

$113,687

5Pennsylvania

12,464 +3.9%

11

12

4

61%

20

16+28.6%

Greenhouse, Cranberries, Dairy

120

60

247

13

22

9

1

$6,884

44Massachusetts

389 +5.1%

44

43

38

391%

35

37

0%Corn, Soybeans, Dairy

1,350

750

3,200

200

980

350

65

$89,102

16Ohio6,040 +3.8%

20

16

13

141%

22

19

Greenhouse, Dairy, Aquaculture

13

7

20

1

2

1

0

$824

48Rhode Island

35 -30.0%

48

48

48

48.4%

42

42

0%

Broilers, Greenhouse, Corn

385

175

1,045

55

129

30

5

$30,130

36Maryland

1,559 +1.0%

36

36

26

251%

30

31

Broilers, Corn, Soybeans

26

10

85

5

16

6

2

$2,242

47Delaware

127 +4.1%

47

47

44

45.2%

39

40Broilers, Hogs, Turkeys

1,638

655

510

30

22

7

1

$48,219

32North Carolina

2,170 -7.1%

15

20

34

33.5%

35

38

0%

Corn, Soybeans, Hogs

50

250

1,980

220

990

330

44

$38,511

24Illinois

3,714 -19.4%

34

34

18

11.2%

21

20

Broilers, Soybeans, Corn

1,950

750

140

10

0

0

0

$20,783

33Mississippi

2,090 +10.4%

10

16

42

41.4%

43

43

0%

0%

Cattle/calves, Soybeans, Broilers

3,500

1,750

540

45

51

15

2

$83,457

22Tennessee

4,091 -11.5%

5

7

33

261%

34

34

Broilers, Turkeys, Greenhouse

550

250

225

15

0

0

0

$11,412

41South Carolina

775 -2.9%

33

34

40

372%

43

43

0%

Horses, Broilers, Corn

4,400

2,200

1,125

90

522

180

27

$135,694

15Kentucky

6,047 -8.4%

3

4

25

203%

25

+8.0%

27

Greenhouse, Oranges, Tomatoes

736

320

660

33

0

0

0

$28,580

38Florida

1,396 +19.9%

27

31

31

31.3%

43

43

0%

Broilers, Cattle/calves, Chicken eggs

2,236

860

72

6

0

0

0

$26,455

31Alabama

2,308 +17.5%

8

15

46

43.5%

43

43

0%

Broilers, Cattle/calves, Dairy

2,684

1,220

2,550

150

349

85

10

$108,352

17Virginia

5,583 +6.4%

6

10

15

184%

29

29-28.6%

+44.4%+76.0%

Soybeans, Corn, Cattle/calves

4,760

3,400

1,760

220

494

260

30

$129,864

12Missouri

7,074 -3.0%

2

2

19

111%

26

22

0%

Corn, Soybeans, Hogs

665

350

2,125

170

812

280

40

$65,715

26Indiana

3,602 -16.3%

29

30

16

16.6%

24

21

Broilers, Soybeans, Rice

1,728

1,440

21

3

20

10

1

$56,722

35Arkansas

1,769 -22.1%

13

8

47

47.7%

38

35

Cane for sugar, Corn, Soybeans

1,242

460

75

5

0

0

0

$23,820

39Louisiana

1,317 +40.3%

22

25

45

45.7%

43

43

0%

Cattle/calves, Corn, Soybeans

1,800

1,800

4,400

550

2,272

770

120

$140,570

9Nebraska

8,668 -2.0%

12

6

9

3.6%

8

8

Cattle/calves, Corn, Wheat

2,520

2,100

4,050

450

1,820

650

80

$164,939

10Kansas

8,422 -2.7%

7

5

1%

13

-5.9%

0%

Cattle/calves, Hogs, Broilers

3,900

3,000

698

45

475

190

20

$74,717

18Oklahoma

5,073 +88.7%

4

3

30

268%

28

26-33.3%

Cattle/calves, Cotton, Dairy

9,000

5,000

3,610

190

490

100

10

$253,563

3Texas13,112 +74.7%

1

1

11

1515%

27

28

Broilers, Cotton, Chicken eggs

1,450

580

630

30

0

0

0

$56,016

34Georgia

2,080 -7.5%

18

24

32

33.7%

43

43

0%

29,123

18,225

48,127

3,104

37,099

11,535

1,146

$5,066,709

West region totals

116,248 -6.5% 38,706

20,743

65,323

4,275

14,950

5,757

1,243

$1,585,847

East region totals

134,670 -8.8%

67,829

38,968

113,450

7,379

52,049

17,292

2,389

$6,652,556

National totals

250,918 -7.8%

Alfalfa

17,292

Other hay

38,968

Silage

7,379

Greenchop

2,770

Combined total

66,409

Total U.S. forage acres

Combined total

250,918Alfalfa3.0 tons/acre

52,049

Other hay

1.7 tons/acre

67,829

Silage15.4 tons/acre

113,450 Greenchop

6.4 tons/acre

17,590

Total U.S. tons harvested

in thousands of acres

in thousands of tons

Cattle/calves, Hogs, Broilers8%

26

AMBRACOAmerican Brazilian Company

0%

-16.7%

2,117

730

115

$75,983

1026

9

1210

5-60.4%

Corn, Cattle/calves, Soybeans

Cattle/calves, Dairy, Corn

Corn, Soybeans, Broilers

PolyExcel, LLCCommitted to Excellence!

+7.7%

-23.1%

+14.3%

+100%

2012 U.S. forage statistics inside!

Find your free copy of this 6-page, pull-out forage stats poster in the center of this issue.

3,900

3,000

698

45

475

190

20

$74,717

18Oklahoma5,073 +88.7%

4

3

30

26

28

-33.3%

State ranking- all forage production

All forage production(in thousands of tons)

Percentage increase/decrease in forage production 2011-2012

State ranking- alfalfa yield

State ranking-alfalfa acres

Percentage increase/decrease of alfalfa new plantings

2011 hay receipts as a percentage of state’s

total farm receipts

State ranking-other hay yield

State ranking-silage yield

Alfalfa yield (in thousands of tons)

Alfalfa acres(in thousands of acres)

Alfalfa new plantings(in thousands of acres)

2011 hay receipts annual total

(in thousands of dollars)

Other hay yield(in thousands of tons)

Other hay acres(in thousands of acres)

Silage acres(in thousands of acres)

Top 3 ag commodities

Silage yield(in thousands of tons)

State ranking-other hay acres

State ranking-silage acres

Cattle/calves, Hogs, Broilers

8%

26

night and left the hay tinder-box dry. One of the growers who understood alfalfa hay arrived on the scene early one morning to fi nd that his custom harvesting crew had baled all night in too-dry conditions. He fi red them on the spot. “But we have to bale every night to keep up,” was the excuse. Th e grower countered that they had just turned early-cut, high-test dairy alfalfa into junk feeder hay.

Th ere are times custom operators are available who will do a quality harvesting job, and there are times they are not. Th is is a consideration to make when looking at the purchase

of haying machinery. Th is is a heartbreaker for someone just getting into the hay-growing business. If custom operators are not willing to take the time to make your hay top-quality, there is another option. Th at is to sell it either standing or in the windrow. Th is option usually is less lucrative than having a whole stack of super-premium hay to sell, but you do not take the risk of too-dry baling conditions or of a rainstorm reducing the quality of your hay. In most areas, this option is available either with or without a “rain” clause. Rain insurance is also available, at least in central

Washington State. Th is cuts down on the sales of Tums and Rolaids during the hay-making time of the year.

In “aiming for the moon” as to hay quality, it helps to understand what the markets are for premium hay of the kind you grow. Th is can be a moving target, and it can be a case of “in the eye of the beholder.” If the top-dollar hay in your area goes to a dairy, a feed store, an exporter or to a feedlot, ask those people what they want. It may surprise you to learn that with corn and soybean prices going up, feedlot operators will gladly pay more for hay higher in protein than

hay that is just a roughage fi ller. To hit a target, you need to know where the target is and its distance from you.

Every person I have ever known who is involved in any way with buying hay will take the time to answer one question from any hay grower. Th at question is, “What do I need to do to make my hay worth more money?” Th en listen to the answers, don’t make excuses, don’t get mad and try not to argue too much.

My answers to the above question over the years have been some of these:

• “Your hay needs to be more uniform. In the same stack, you have premium and feeder hay and everything in between.”

• “When you think your hay is ready to bale, go fi shing for a day or two instead. You are baling it with too much stem moisture.”

• “You need to cut it by the maturity of the plant and not by the number of days since the last cutting. If the weather is 105 degrees and windy, the alfalfa will mature faster than in cool weather.”

• “You need to watch the dew moisture closer at baling so you get the leaves inside the bale – and even better, all still attached to the stem. If the stems are dry, you can bale at a higher total moisture than if you are trying to bale with stem moisture.”

• “You need to improve your stack yards or hay barns. Elevate the base of the stack area and cover it with coarse drain rock. Th at will keep most of the bottom bales dry most of the time. Hay trucks need to be able to get in and out of your hay storage area most of the year.”

I fully realize that neither you nor I can control the weather. I fully realize there are times when you must bale too wet or too dry. I hope you don’t ever need to bale too wet and too dry at the same time; if you do, fi re insurance would be a better buy than rain insurance. Th ere is a reason why the “5 percent” hay is only that small a percentage of all production. I have a gut feeling that if more growers understood what it took to make the “5 percent” hay, there could easily be more of it. FG

Aim for the moon, cont’d from page 9

I have a gut feeling that if more growers understood what it took to make the ‘5 percent’ hay, there could easily be more of it.

FG WESTERN MAIN

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10 Progressive Forage Grower Issue 2 • February 1, 2013

1 Fall 2013 I American Soybean I

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FALL 2013

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UNITED ST A TES

ENVIRONMENTAL PROTECTION AGENCY

BEFORE THE ADMINISTATOR

In the Matter of:

FMC Corporation,

Respondent.

) ) ) ) )

Docket No.: FIFRA-03-2015-0248

CERTIFICATE OF SERVICE

I hereby certify that, on the date below, copies of COMPLAINANT'S REPLY TO RESPONDENT FMC CORPORATION'S OPPOSITION TO COMPLAIANT'S MOTION FOR PARTIAL ACCELERATED DECISION AS TO LIABILITY FOR VIOLA TIO NS 1 THROUGH 12,273 OF THE COMPLAINT were served upon the persons listed in the manner indicated.

Original and one copy via the OALJ E-filing System

Sybil Anderson, Headquarters Hearing Clerk

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Kathryn E. Szmuszkovicz Daniel B. Schulson Beveridge & Diamond PC 1350 I Street, N.W., Suite 700 Washington, DC 20005-3311

S£1' 1 6 2016

Date �� Senior Assistant Regional Counsel U.S. EPA, Region III