Gilberto Roman Gonzalez (Board decision, July 1, 2008)

Plain-English summary

Gilberto Roman Gonzalez operated the Finca Roman commercial coffee facility in Adjuntas, Puerto Rico. EPA alleged that he violated the Worker Protection Standard under FIFRA and proposed a $7,500 civil penalty. The parties settled without a hearing, with conditions requiring compliance reports, documentation of a pesticide application, and related Worker Protection Standard measures. The Board approved the settlement, reduced the penalty to $5,625, and ordered three payments of $1,875.

Decision snapshot

• Cited authorities: 7 U.S.C. § 136j(a)(2)(G), 7 U.S.C. § 136l(a)(2), 7 U.S.C. § 136l(a)(3), and 40 C.F.R. part 170
• Outcome: The Consent Agreement was approved, the Respondent was ordered to comply with its conditions, and the civil penalty was set at $5,625.
• Key point: The settlement required documented future compliance with the Worker Protection Standard in exchange for a reduced penalty.

Full text (EPA EAB public release)

                     BEFORE THE UNITED STATES
                ENVIRONMENTAL PROTECTION AGENCY

                           IN THE MATTER OF:

Gilberto Roman Gonzalez )
Finca Roman ) Docket No. FIFRA-02-2008-5303
Carr. 526, Km. 1.2 )
Adjuntas, Puerto Rico, )
Respondent )

                              FINAL ORDER

Pursuant to 40 C.F.R. § 22.18(c) of EPA’s Consolidated Rules of Practice, the Consent
Agreement resolving this matter is hereby approved and incorporated by reference into this
Consent Order. The Respondent is hereby ORDERED to comply with all of the terms of the
Consent Agreement, effective immediately upon receipt by Respondent of this Consent
Agreement and Consent Order.

So ORDERED, this 1st day of July, 2008.

[signature illegible]
Judge, Environmental Appeals Board

                     BEFORE THE UNITED STATES
                ENVIRONMENTAL PROTECTION AGENCY

                           IN THE MATTER OF:

Gilberto Roman Gonzalez )
Finca Roman ) Docket No. FIFRA-02-2008-5303
Carr. 526, Km. 1.2 )
Adjuntas, Puerto Rico, )
Respondent )

                         CONSENT AGREEMENT

                     I. PRELIMINARY STATEMENT

1. Complainant, the United States Environmental Protection Agency (“EPA”) and
   Respondent, Gilberto Roman Gonzalez, having agreed to settle this matter, consent to the
   terms of this Consent Agreement (“Agreement”), and before the taking of any testimony
   and without the adjudication of issues of law or fact herein, agree to comply with the
   terms of this Agreement and attached proposed Final Order hereby incorporated by
   reference.

                         II. JURISDICTION
   

2. Respondent, Gilberto Roman Gonzalez, owns and operates a commercial coffee
   production facility known as Finca Roman, located at Carr. 526, Km. 1.2, Adjuntas,
   Puerto Rico, and is therefore a “person” within the meaning of section 2(s) of FIFRA, 7
   U.S.C. § 136(s).

3. The Agency initiated this proceeding for the assessment of a civil penalty pursuant to
   Section 14(a)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7
   U.S.C. § 136l(a)(2), by issuing an administrative Complaint and Notice of Opportunity
   for Hearing (“Complaint”), dated October 26, 2007.

4. The Complaint, incorporated herein by reference, alleged that Respondent failed to
   comply with the Worker Protection Standard (“WPS”), codified at 40 C.F.R. Part 170, in
   violation of Section 12(a)(2)(G) of FIFRA, 7 U.S.C. § 136j(a)(2)(G), and proposed a
   penalty of $7,500.

5. Respondent filed a Motion Requesting Extention [sic] of Time to Answer the Complaint,
   incorporated herein by reference, dated December 3, 2007, requesting a hearing pursuant
   to FIFRA Section 14(a)(3), 7 U.S.C. § 136l(a)(3), and 40 C.F.R. § 22.15(c), and filed an
   Answer, incorporated herein by reference, dated January 15, 2008.

6. To avoid the disruption of orderly business activities and expense of protracted and costly
   litigation, Respondent, for purposes of this proceeding: (1) admits that EPA has
   jurisdiction over the subject matter alleged in the Complaint; and (2) waives his right to
   request a judicial or administrative hearing on any issue of law or fact set forth in this
   Agreement and his right to appeal the proposed Final Order accompanying this
   Agreement.

7. Respondent neither admits nor denies the findings of fact and conclusions of law set forth
   in Section III of this Agreement.

8. In recognition of the cooperation shown to the government by Respondent and his
   willingness to settle this matter without further litigation, EPA agrees to mitigate the civil
   penalty assessment, set forth in the Complaint, as described in Section V below.

            III. EPA’S FINDINGS OF FACT AND CONCLUSIONS OF LAW
   

9. Paragraphs 1 through 46 of the Complaint are incorporated herein by reference as EPA’s
   Findings of Fact in this matter.

10. EPA asserts that EPA’s Findings of Fact in this matter constitute violations of FIFRA
    Section 12(a)(2)(G), 7 U.S.C. § 136j(a)(2)(G), for which a civil penalty may be assessed
    pursuant to FIFRA Section 14(a)(1), 7 U.S.C. § 136l(a)(1).

                     IV. CONDITIONS OF SETTLEMENT
    

11. Respondent has agreed to provide Complainant, within sixty (60) days of issuance of a
    Final Order, a report providing the detailed steps he has taken to come into full
    compliance with FIFRA § 12(a)(2)(G) and the Worker Protection Standard (“WPS”) at
    40 C.F.R. Part 170. This report shall explain Respondent’s practices and procedures for
    ensuring compliance with all aspects of the WPS regulations as set forth in the Worker
    Protection Standard Compliance Report template attached hereto as Appendix A.

12. Respondent has agreed to provide Complainant, within sixty (60) days of issuance of a
    Final Order, an affirmation by Respondent that he has personally read and understands
    the following documents, provided by Complainant: (a) WPS regulations at 40 C.F.R. Part
    170; (b) “How to Comply with the Worker Protection Standard for Agricultural
    Pesticides”; and (c) “Patrono! Trabajador Agricola! Como Puede Protegerse de los
    Plaguicidas?” A template for Respondent’s Affirmation is attached hereto as Appendix
    B.

13. Respondent has agreed to provide Complainant, within sixty (60) days from the date of
    issuance of a Final Order, documentation of the most recent pesticide application done at
    Respondent’s farm and provide evidence of how the application complied with FIFRA
    and the WPS, which shall include documentation of: (a) what pesticide application
    information was displayed for workers and for handlers; (b) where on the farm it was
    displayed; (c) when the pesticide application information was displayed; (d) all
    decontamination supplies that were provided to workers and handlers during the pesticide
    application and where they were supplied (including information on decontamination
    supplies provided at the mixing site and the decontamination site); and (e) the personal
    protective equipment that was provided to the handlers. This requested information will
    demonstrate that Respondent has, in good faith, taken measures to fully comply with
    requirements of FIFRA and the WPS.

14. Respondent shall submit the information requested in paragraphs 11-13 to the following
    persons:

                          Danielle C. Fidler
                          U.S. Environmental Protection Agency
                          Office of Special Litigation and Projects
                          1200 Pennsylvania Avenue, NW
                          MC-2248A, Ariel Rios South Room 4150F
                          Washington, DC 20460
    
                          and
    
                          Adrian Enache
                          U.S. Environmental Protection Agency
                          USEPA Facilities - Mail Code 500MS500
                          Raritan Depot
                          2890 Woodbridge Avenue
                          Edison, NJ 08837-3679
    

15. Should the information provided by Respondent under Paragraph 13 indicate a new
    violation of FIFRA or the WPS, Respondent shall be liable for a stipulated penalty of
    $800 per violation.

16. Respondent shall pay any stipulated penalties to Complainant within sixty (60) days of
    receipt of written demand to Respondent from Complainant. A demand for the payment
    of stipulated penalties will identify the particular violation(s) to which the stipulated
    penalty relates, the stipulated penalty amount that Complainant is demanding for each
    violation, and the grounds upon which the demand is based. Payment of any stipulated
    penalties shall follow the procedures set forth in Paragraphs 22 and 23.

                              V. CIVIL PENALTY
    

17. Section 14(a) of FIFRA, 7 U.S.C. § 136l(a), authorizes a civil penalty of up to $1,000.00
    (one thousand dollars) for each violation of FIFRA. Pursuant to the Federal Civil
    Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, as amended by the Debt
    Collection Improvement Act of 1996, 31 U.S.C. § 3701, and regulations promulgated
    pursuant thereto at 40 C.F.R. Parts 19 and 27, see 69 Fed. Reg. 7121 (February 13, 2004),
    this amount was increased to $1,100. See Memorandum from Stephanie P. Brown,
    Acting Director of Toxics and Pesticides Enforcement Division, “Penalty Policy
    Supplements Pursuant to the 2004 Civil Monetary Penalty Inflation Adjustment Rule,”
    dated June 5, 2006. Pursuant to the July 2, 1990 Enforcement Response Policy for the
    Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (hereinafter “FIFRA ERP”)
    and the October 21, 1997 Interim Final Penalty Policy for the FIFRA Worker Protection
    Standard (WPS) (hereinafter “WPS Penalty Policy”), the Agency proposed in its
    Complaint in this case a $7,500 gravity-based civil penalty.

18. The FIFRA ERP permits a reduction in civil penalties for settlements for cooperation by
    the respondent and good faith efforts to comply with FIFRA, where such a reduction
    would serve the public interest. Complainant finds that Respondent’s efforts to settle this
    matter without further litigation merit a penalty reduction of fifteen percent (15%), or
    $1,125.

19. The FIFRA ERP permits a further reduction of penalty where a respondent agrees to
    perform certain environmentally beneficial acts in exchange for a reduction in penalty,
    referred to by the FIFRA ERP as a “Settlement with Conditions.” Respondent has agreed
    to comply with the terms of settlement above, which require Respondent to take steps to
    assure compliance not only with those provisions of FIFRA alleged in the Complaint, but
    to ensure across-the-board compliance with FIFRA and the WPS in the future. As part of
    these conditions, Respondent agrees to provide Complainant with an audit of a future
    pesticide application and to pay stipulated penalties should there be any FIFRA violations
    associated therewith. These steps will not only benefit the environment by assuring
    pesticides are properly used, but will reduce risks to human health by assuring
    Respondent has documented procedures for assuring compliance with the WPS. In
    exchange for agreeing to these conditions, Complainant has agreed to reduce the
    proposed penalty an additional ten percent (10%), or $750.

20. Consistent with the relevant penalty policies and based on the facts presented above, the
    gravity of the violations alleged herein, the size of Respondent’s business, Respondent’s
    ability to continue in business in light of the proposed penalty, Respondent’s willingness
    to abide by the conditions of settlement set forth herein, and such other matters as justice
    may require, Complainant proposes that Respondent be assessed a total penalty of $5,625
    for the violations alleged in this Complaint.

                        VI. TERMS OF SETTLEMENT
    

21. Respondent consents to the execution of this Agreement, and agrees to pay FIVE
    THOUSAND SIX HUNDRED TWENTY-FIVE DOLLARS ($5,625.00) in satisfaction
    of the penalty.

22. For payment of the civil penalties, Respondent shall make three (3) payments of ONE
    THOUSAND EIGHT HUNDRED SEVENTY-FIVE DOLLARS ($1,875.00) each within
    four (4) months, eight (8) months, and twelve (12) months of the issuance of a Final
    Order. Each of the three payments shall be made by sending a cashier’s check or a
    certified check in the amount of ONE THOUSAND EIGHT HUNDRED SEVENTY-
    FIVE DOLLARS ($1,875.00) made payable to the “Treasurer of the United States of
    America,” to the following address:

                          United States Environment Protection Agency
                          Hearing Clerk
                          Docket No. FIFRA-02-2008-5303
                          P.O. Box 360277M
                          Pittsburgh, PA 15251
    

    Alternatively, Respondent shall make each of these payments of ONE THOUSAND
    EIGHT HUNDRED SEVENTY-FIVE DOLLARS ($1,875.00) via wire transfer by using
    the following instructions:

                          Name of Beneficiary:              EPA
                          Number of Account for deposit:    68010099
                          The Bank Holding Acct:             Treas_NYC
                          The ABA routing Number:             021030004
    

    Each of the three checks or wire transfers should indicate that it is for In the Matter of
    Gilberto Roman Gonzalez, Docket No. FIFRA-02-2008-5303.

23. Respondent shall forward copies of each of these checks or wire transfers to EPA, within
    five (5) days of payment, to the attention of:

                          Danielle C. Fidler
                          U.S. Environmental Protection Agency
                          Special Litigation and Projects Division
                          1200 Pennsylvania Ave, NW
                          Ariel Rios Building, Room 4150F
                          Washington, DC 20460
    
                          and
    
                          Clerk, Environmental Appeals Board
                          U.S. Environmental Protection Agency
                          MC 1103B
                          1200 Pennsylvania Avenue, NW
                          Washington, DC 20460
    

24. Pursuant to 31 U.S.C. § 3717, EPA is entitled to assess interest and penalties on debts
    owed to the United States and a charge to cover the cost of processing and handling a
    delinquent claim. Interest will therefore begin to accrue on the civil penalty from the date
    of entry of the Final Order, if the penalty is not paid by the date required. Interest will be
    assessed at the rate of the United States Treasury tax and loan rate in accordance with
    40 C.F.R. § 13.11. A charge will be assessed to cover the costs of debt collection,
    including processing and handling costs and attorney fees. In addition, a penalty charge
    of twelve percent (12%) per year compounded annually will be assessed on any portion of
    the debt that remains delinquent more than ninety (90) days after payment is due.

25. Respondent’s obligations under this Agreement shall end when it has paid the civil
    penalty, as required by Section VI of this Agreement and the Final Order, and has
    complied with its obligations under Section IV of this Agreement.

26. If the Respondent fails to meet all of its obligations under this Agreement within one year
    of the execution of the Final Order, the Complainant may send a demand letter for the full
    gravity-based penalty of seven thousand five hundred ($7,500) dollars. Payment of this
    full penalty shall be due within ten (10) days of the receipt of the demand letter.

27. For the purposes of state and federal income taxation, Respondent shall not be entitled,
    and agrees not to attempt, to claim a deduction for any civil penalty payment made
    pursuant to the Final Order. Any attempt by Respondent to deduct any such payments
    shall constitute a violation of the Agreement.

28. All of the terms and conditions of this Agreement together comprise one agreement, and
    each of the terms and conditions is in consideration for all of the other terms and
    conditions. In the event that this Agreement (or one or more of its terms and conditions)
    is held invalid, or is not executed by all of the signatory Parties in identical form, or is not
    approved in such identical form by the EAB or its designated representative then the
    entire Agreement shall be null and void.

29. The parties agree that the Respondent preserves all of its rights should this Agreement be
    voided in whole or in part. The parties further agree that Respondent’s obligations,
    agreements and waivers under this Agreement will cease, and be null and void with no
    effect, should this Agreement be rejected by the Environmental Appeals Board (“EAB”).

                VII. Reservation of Rights and Settlement
    

30. This Agreement and the Final Order, when issued by the EAB, and upon payment by
    Respondent of the civil penalty in accordance with Section VI and completion of the
    Conditions of Settlement in Section IV, shall resolve only the federal civil and
    administrative claims specified in this Agreement. Nothing in this Agreement and the
    Final Order shall be construed to limit the authority of EPA and/or the United States to
    undertake any action against Respondent, in response to any condition which EPA or the
    United States determines may present an imminent and substantial endangerment to the
    public health, welfare, or the environment. Furthermore, issuance of the Final Order does
    not constitute a waiver by EPA and/or the United States of its right to bring an
    enforcement action, either civil or criminal, against Respondent for any other violation of
    any federal or state statute, regulation, or permit.

                           VIII. Other Matters
    

31. Each party shall bear its own costs and attorney fees in this matter.

32. The provisions of this Agreement and the Final Order, when issued by the EAB, shall
    apply to and be binding on the Complainant, and the Respondent. When executed by the
    EAB, the Final Order shall have the same force and effect as defined in 40 C.F.R. § 22.3.
    The Respondent shall remain responsible for the completion of all work required under
    this Agreement and the satisfaction of all of its terms.

33. Nothing in this Agreement shall relieve Respondent of the duty to comply with all
    applicable provisions of FIFRA or other applicable federal, state or local environmental
    laws or statutes, nor shall it restrict EPA’s authority to seek compliance with any
    applicable environmental laws, nor shall it be construed to be a ruling on, or a
    determination of, any issue related to any federal, state, or local permit.

34. The undersigned representatives of each party to this Agreement certify that each is duly
    authorized by the party whom he represents to enter into these terms and bind that party
    to it.

                          FOR Complainant:
    

[signature]
Bernadette Rappold
Director, Special Litigation and
Projects Division
U.S. Environmental Protection Agency

                          FOR Respondent:

[signature illegible]
Gilberto Roman Gonzalez

Certificate of service

I hereby certify that copies of the foregoing Final Order and Consent Agreement, in the
matter of Gilberto Roman Gonzalez, Docket No. FIFRA-02-2008-5303, were sent to the
following persons in the manner indicated:

Certified Mail
Return Receipt Requested: Alberto L. Ramos Law Offices
P.O. Box 750
Mercedita, Puerto Rico 00715-0750

Inter-Office Mail: Bernadette Rappold, Director
Special Litigation and Projects Division (2248A)
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Dated: JUL 2 [illegible]

Annette Duncan
Secretary