decided as amended december 22 1981.: December 10, 1981.
ON PETITION FOR REVIEW OF AN ORDER OF THE ENVIRONMENTAL PROTECTION AGENCY
Before Gibbons and Higginbotham, Circuit Judges, and McCUNE, District Judge.*fn*
N. Jonas & Co. (Jonas) petitions for review of a final order of the Environmental Protection Agency (EPA) assessing a $2,500 civil penalty against appellant for failure to register its product Scorch as a pesticide under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. This Court has jurisdiction to review the Agency's actions pursuant to Section 16(b) of the Act, 7 U.S.C. § 136n(b). We conclude that the EPA order is supported by substantial evidence and we affirm.
Jonas produces and distributes chemicals for swimming pool sanitation and maintenance. One of these products, Scorch, is Jonas' repackage of the Pennwalt Corporation's chemical Sentry. Sentry is registered with EPA as a bactericide and oxidizing agent. 7 U.S.C. § 136a(a). It is composed of 65% calcium hypochlorate, providing free chlorine in water, and 35% inert ingredients.
In September 1975 Jonas filed an application to register Scorch as a pesticide. Regulations enacted contemporaneously by requiring producers to submit the necessary data with their application, had made it more difficult to obtain new registrations. 40 C.F.R. § 162.6 et seq. To support the registration, Jonas relied on its supplier Pennwalt, which furnished the needed information to the EPA in November 1975. By January 1976, Jonas concluded that the new regulations had effected a "freeze" on new registrations. Thereupon, on the basis of a cursory and unofficial inquiry of the EPA,*fn1 it started to market Scorch without registration. The unregistered label eschewed pesticidal claims and contained a disclaimer stating "SCORCH IS NOT TO BE USED FOR DAILY DISINFECTION OR ALGAE CONTROL OF YOUR POOL."
In mid-February 1976, the EPA product manager for chlorinated products became aware of the unregistered marketing and informed Jonas that it ought to register Scorch as a pesticide. The company, nevertheless, continued to make shipments under the unregistered label until mid-June 1976. Meanwhile, on March 1, 1976, it filed a supplemental registration for Scorch based on Pennwalt's product "Pennswim Big Shot." 40 C.F.R. § 162.6(b)(4). Approval was granted on April 7, 1976 and the company started marketing Scorch with a label indicating that Scorch could serve as an algaecide as well as oxidizer.*fn2 The company thus, for a two-month period, distributed Scorch in two types of packages. The registered Scorch label made algaecidal claims and had an environmental warning while the unregistered Scorch label did not, otherwise the registered and unregistered Scorch packages were undifferentiable.
The EPA, in June 1976, initiated an enforcement action seeking civil penalties against Jonas for marketing Scorch without registration. A hearing was held in Philadelphia before Administrative Law Judge Nissen on March 14-17, 1978. The ALJ issued his Initial Decision, I.F. & R. No. III-121C, finding Scorch to be a pesticide and assessing Jonas a $2,500 penalty for failure to register under FIFRA. This was affirmed by the EPA Regional Judicial Officer in a Final Decision and Order issued June 28, 1979, and Jonas petitioned for review.
While the petition for review was pending, Jonas discovered EPA Policy and Criteria Notice 2050.1 which it considered to be favorable. This Court granted the EPA's motion for remand to determine the validity of PCN 2050.1 and its impact on the EPA order. A hearing was held on July 14, 1977 before ALJ Nissen. He issued an Initial Order on Remand adopting his July 27, 1978 decision by reference and determining that PCN 2050.1 did not change the earlier conclusions. (R.App:1) The Regional Judicial Officer in turn affirmed the ALJ in a Final Decision and Order dated April 9, 1981. (R.App:13).
Jonas filed this second petition for review asserting that Scorch is an oxidizing agent intended to clean out organic wastes in a pool and is not a pesticide; that the EPA applied the wrong legal standard; that there is no substantial evidence to support the EPA's order; that the EPA was estopped from proceeding against Jonas; and that the penalty was excessive.
The fulcrum of this case is whether Scorch is a pesticide. If it is, then Section 3(a) of the Act, 7 U.S.C. § 136a(a), clearly mandates registration. The statute defines pesticide:
"The term "pesticide' means (1) any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any pest, and (2) any substance or mixture of substances intended for use as a plant regulator, defoliant, or disiccent ..."
7 U.S.C. § 136(u). The Administrator has published regulations under FIFRA elaborating on the statutory definition:
(a) Determination of intent of use. A substance or mixture of substances is a pesticide under the Act if it is intended for preventing, destroying, repelling or mitigating any pest. (See Section 2(u) of the Act and § 162.3(ff).) Such intent may be either expressed or implied. If a product is represented in any manner that results in its being used as a ...