Federal prosecutors charged a Florida paint and coatings manufacturer with conspiring to unlawfully produce and continue sales of a bottom paint containing the pesticide tributyltin methacrylate, or TBT, and falsely representing to customers and distributors that it was in compliance with federal law.
Attorneys representing the company said in court documents that the company’s actions were always made “in good faith and without the intent or knowledge to violate the law.”
An 11-count indictment handed down in South Florida’s U.S. District Court Feb. 7 says that New Nautical Coatings Inc. — manufacturer of Sea Hawk Paints — and company executives concealed unlawful production and sales of Biocop by falsely representing to their customers and main distributor that the antifouling paint was in compliance with Environmental Protection Agency law.
The indictment said that New Nautical maintained a website stating “Biocop is a copper and tin-based copolymer formulation that blends the benefits of a hard base with TBT and copper for the highest level of antifouling protection.” The indictment states that the website went on to say “Biocop outperforms every other comparable paint that is on the market today” and “due to its pesticide content, its use is most appropriate in areas of aggressive marine growth.”
Documents filed earlier this month on behalf of New Nautical Coatings president David Norrie requesting a trial delay said the company is not guilty. U.S. District Judge Ursula Ungaro has agreed to postpone the trial until Sept. 22.
The indictment charges two companies — New Nautical Coatings Inc., doing business as Sea Hawk Paints, and Sea Hawk Refinish Line Inc., doing business as Refinish Line Auto Supplies — and four New Nautical executives: David Norrie, CEO Erik Norrie, vice president Jason Revie and sales manager Tommy Craft.
“New Nautical was prohibited from manufacturing Biocop for domestic sales after Dec. 1, 2005, the effective date of cancellation, and was prohibited from selling Biocop to anyone in the United States after Dec. 31, 2005,” the indictment said. “Contrary to EPA authorization, New Nautical continued to produce Biocop, and continued to use its sales team to sell and distribute Biocop in the Southern District of Florida and elsewhere in the United States.”
The parties involved “concealed New Nautical’s unlawful production and sales by falsely representing to their customers and their primary distributor, M.Y.D., that the Biocop sold after Dec. 31, 2005, was in compliance with EPA authorization and federal law,” the indictment read.
“By producing and selling Biocop, an unregistered pesticide, for domestic use and application, and by concealing such acts from the EPA and customers, New Nautical and Refinish Line and their co-conspirators derived pecuniary gains in excess of $2,000,000,” the indictment read.
The company “willingly” acted “to defraud the United States, that is, to impede, impair, obstruct and defeat the lawful functions of the EPA in enforcing federal environmental regulations,” the indictment said.
None of the entities listed in the indictment or their attorneys returned emails or phone calls requesting comment. However, court documents filed on behalf of David Norrie say “there are substantial legal issues raised by the government’s indictment.”
“This is a very complicated and technical issue,” said a motion filed by Michael Pasano, who is listed as David Norrie’s counsel. “The defendants have pleaded not guilty and insist that their actions were always made in good faith and without the intent or knowledge to violate the law.”
The motion that requested a trial delay said that “although Congress took no action to declare TBT illegal in the United States, in the early 2000s the EPA began pressuring TBT products registrants to surrender their registration. Facing tremendous pressure, including the EPA’s refusal to register any other New Nautical products, New Nautical reluctantly agreed to what the EPA calls a ‘voluntary cancellation,’ effective Dec. 31, 2005.”
According to the indictment, TBT-based coatings leach their constituent components into seawater. “Over time, high concentrations of TBT were found in marinas, ports, harbors and even the open seas and oceanic waters,” the indictment said. “TBT was found to have significant harmful effects on marine life, causing growth retardation, immuno-suppression and imposex, which is the development of male characteristics in females. TBT was also bio-accumulative, meaning it increased in concentration in the food chain.”
"EPA has canceled all TBT antifouling paint product registrations; cancellation of the last such registration was effective in December 2005. The effective date is the last date the product can be sold by the registrant. We expect that any remaining supplies of TBT antifouling paints have diminished greatly or been exhausted."
The motion filed by David Norrie’s defense said that “as early as 2009 or before, the EPA began investigating New Nautical and Refinish Line, and its officers and employees, relating to allegations that Biocop manufacture and sales continued after December 2005.”
“This investigation produced consensual tape recordings and a search of the business in November 2009. To date, neither any tape recordings or the materials seized during the 2009 search have been produced to the defense,” the motion said.
“There were also several grand jury subpoenas that generated records,” court documents filed by Pasano said. “These materials have not yet been produced.”