Case 1:21-cr-00140-JMS Document 4-2 Filed 12/09/21 Page 1 of 4 PageID #: 32
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`EXHIBIT B
`FACTUAL BASIS
`For many years, defendant MONSANTO COMPANY (referred to as
`“Monsanto” or “defendant”) has been a large agrochemical and
`biotechnology company. Monsanto’s multinational business operations
`include locations on the Hawaiian Islands of Maui, Molokai, and Oahu
`that Monsanto has used to grow both conventional and genetically
`modified seed crops. As part of Monsanto’s operations, Monsanto’s
`employees have purchased and sprayed various “restricted use
`pesticides” on the seed crops.
`The Federal Insecticide, Fungicide, and Rodenticide Act
`(“FIFRA”) regulated the registration, sale, distribution, and use of
`pesticides. Under FIFRA, pesticides were classified as general use
`pesticides or “restricted use pesticides.” A “restricted use
`pesticide” could not be purchased or used by the general public and
`could only be used by a certified applicator due to the possible
`adverse effects to the environment and injury to applicators or
`bystanders that could result.
`For years Monsanto occasionally sprayed and stored Penncap-M, a
`pesticide that contained methyl parathion as the sole active
`ingredient, on its research and seed crop locations on Oahu, Maui,
`and Molokai. Penncap-M had been classified as a restricted use
`pesticide under FIFRA. In March 2010, however, two manufacturers of
`Penncap-M voluntarily sought the cancellation of Penncap-M’s FIFRA
`registrations. Subsequently, on July 27, 2010, the Environmental
`Protection Agency (“EPA”) issued a cancellation order (“the
`cancellation order”) that canceled the FIFRA registrations for
`Penncap-M, prohibited all sale and distribution of end-use Penncap-M
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`EXHIBIT B
`FACTUAL BASIS
`For many years, defendant MONSANTO COMPANY (referred to as
`“Monsanto” or “defendant”) has been a large agrochemical and
`biotechnology company. Monsanto’s multinational business operations
`include locations on the Hawaiian Islands of Maui, Molokai, and Oahu
`that Monsanto has used to grow both conventional and genetically
`modified seed crops. As part of Monsanto’s operations, Monsanto’s
`employees have purchased and sprayed various “restricted use
`pesticides” on the seed crops.
`The Federal Insecticide, Fungicide, and Rodenticide Act
`(“FIFRA”) regulated the registration, sale, distribution, and use of
`pesticides. Under FIFRA, pesticides were classified as general use
`pesticides or “restricted use pesticides.” A “restricted use
`pesticide” could not be purchased or used by the general public and
`could only be used by a certified applicator due to the possible
`adverse effects to the environment and injury to applicators or
`bystanders that could result.
`For years Monsanto occasionally sprayed and stored Penncap-M, a
`pesticide that contained methyl parathion as the sole active
`ingredient, on its research and seed crop locations on Oahu, Maui,
`and Molokai. Penncap-M had been classified as a restricted use
`pesticide under FIFRA. In March 2010, however, two manufacturers of
`Penncap-M voluntarily sought the cancellation of Penncap-M’s FIFRA
`registrations. Subsequently, on July 27, 2010, the Environmental
`Protection Agency (“EPA”) issued a cancellation order (“the
`cancellation order”) that canceled the FIFRA registrations for
`Penncap-M, prohibited all sale and distribution of end-use Penncap-M
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`Case 1:21-cr-00140-JMS Document 4-2 Filed 12/09/21 Page 2 of 4 PageID #: 33
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`as of August 31, 2013, and further prohibited all use of existing
`stocks of end-use Penncap-M as of December 31, 2013.
`In addition to publishing notices about the cancellation order
`in the Federal Register, the EPA also sent an email notice of the
`cancellation order to an email listserv. This email notice was
`received by Monsanto’s regulatory compliance department in April
`2010. Due to the ban on Penncap-M, knowingly spraying Penncap-M on
`any of Monsanto’s seed crop fields on or after December 31, 2013,
`would constitute a criminal violation of FIFRA.
`Further, because of the Penncap-M ban, as well as Monsanto’s
`receipt and knowledge of the cancellation order, any Penncap-M in
`excess of one kilogram (2.2 pounds) that Monsanto knowingly stored
`after December 31, 2013, had to be managed as an acute hazardous
`waste in compliance with the Resource Conservation and Recovery Act
`(“RCRA”). Monsanto knew that Penncap-M had the substantial
`potential to be harmful to others and to the environment.
`In July of 2013 Monsanto had stopped spraying Penncap-M at its
`location on Molokai. From March 2013 through August 2014, Penncap-M
`appeared on lists of chemicals to be disposed of at the Molokai
`location. Nevertheless, during that period Monsanto’s Molokai
`location knowingly stored 180 pounds of Penncap-M hazardous waste,
`which it ultimately disposed of with a licensed hazardous waste
`disposal company on September 17, 2014.
`By virtue of its stop-use use date and Monsanto’s prior
`decision to stop using Penncap-M, as of December 31, 2013, at the
`latest, the Penncap-M stored by Monsanto on Molokai was an acute
`hazardous waste under RCRA. Moreover, because Monsanto had
`generated and stored more than one kilogram (2.2 pounds) of Penncap-
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`Case 1:21-cr-00140-JMS Document 4-2 Filed 12/09/21 Page 3 of 4 PageID #: 34
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`M at its Molokai location, Monsanto’s Molokai site was deemed under
`RCRA to be a Large Quantity Generator of a hazardous waste. As a
`result, Monsanto knowingly stored an acute hazardous waste in
`violation of RCRA’s prohibition against knowingly storing a
`hazardous waste without a permit.
`During 2013, prior to the December 31, 2013, stop use date,
`Monsanto sprayed and stored Penncap-M on its research and seed crop
`locations on Maui. On July 15, 2014, after Monsanto employees had
`been notified of Penncap-M’s stop use date, Monsanto knowingly
`sprayed Penncap-M on two acres of corn seed research crops at its
`Valley Farm location on Maui. At the time of that spraying,
`defendant was aware that years earlier the re-entry interval for
`Penncap-M, which was the period of time that had to elapse before
`workers could re-enter an area where Penncap-M was sprayed, had been
`increased from five to thirty-one days. Nevertheless, approximately
`seven days after the July 15, 2014, spraying, Monsanto’s employees
`were told to and did re-enter the site where the Penncap-M had been
`sprayed.
`Shortly after its July 2014 spraying of Penncap-M, Monsanto
`took steps to identify which of its sites had Penncap-M and,
`ultimately, to dispose of the Penncap-M at the following Maui
`locations –- Valley, Maalaea, and Piilani. Nevertheless, on or
`about July 21, 2014, Monsanto knowingly stored approximately 111
`gallons of Penncap-M hazardous waste among its Valley, Maalaea, and
`Piilani sites without having the required permit to store the
`hazardous waste at any of those locations.
`Because Monsanto generated and stored more than one kilogram
`(2.2 pounds) of Penncap-M waste at each of its Maui sites, each of
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`Case 1:21-cr-00140-JMS Document 4-2 Filed 12/09/21 Page 4 of 4 PageID #: 35
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`Monsanto’s Maui sites was deemed a Large Quantity Generator of
`hazardous waste under RCRA and was required, but failed, to obtain a
`permit for hazardous waste storage and disposal. The Penncap-M
`stored at Monsanto’s Maui sites after December 31, 2013, was an
`acute hazardous waste under RCRA.
`To facilitate the disposal of its Penncap-M hazardous waste,
`between July and September 2014 Monsanto consolidated its supplies
`of Penncap-M at its Valley location. The Penncap-M hazardous waste
`stored at each of Monsanto’s Maui sites was also considered a
`“hazardous material” under the Hazardous Materials Transportation
`Act (“HMTA”). As a result, in order to transport Penncap-M on a
`highway to its Valley site, Monsanto was required to use a shipping
`manifest that identified the hazardous material being transported.
`When it transported its Penncap-M hazardous waste to its Valley
`site, however, Monsanto knowingly failed to use a shipping manifest
`as required under the HMTA. Moreover, Monsanto’s Valley site did
`not have a permit under Title 42, United States Code, Chapter 82,
`Subchapter III or pursuant to Title I of the Marine Protection,
`Research, and Sanctuaries Act to treat hazardous waste.
`Accordingly, Monsanto knowingly transported its Penncap-M hazardous
`waste to its Valley site, a facility that defendant knew was not
`licensed to accept such hazardous waste.
`Ultimately, on October 21, 2014, Monsanto knowingly disposed of
`approximately 2,250 pounds of waste which included Penncap-M,
`Carbaryl, and Carbofuran hazardous waste, and several other wastes,
`from its Valley site using a licensed hazardous waste disposal
`company.
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