Anibal Torres Sepulveda (Board decision, July 1, 2008)
In re Anibal Torres Sepulveda (EAB FIFRA Appeal No. 08-02C): Worker Protection Standard settlement approved
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Plain-English summary
Anibal Torres Sepulveda operated a coffee, citrus-fruit, and ornamental-flower facility in Puerto Rico. EPA alleged that he violated the Worker Protection Standard under FIFRA and proposed an $11,500 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 $8,625, and ordered three payments of $2,875.
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 $8,625.
- 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:
Anibal Torres Sepulveda )
Anthuriums de Puerto Rico ) Docket No. FIFRA-02-2008-5304
Road 526, Km. 2.4 )
Bo. Yayales )
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:
Anibal Torres Sepulveda )
Anthuriums de Puerto Rico ) Docket No. FIFRA-02-2008-5304
Road 526, Km. 2.4 )
Bo. Yayales )
Adjuntas, Puerto Rico, )
Respondent )
CONSENT AGREEMENT
I. PRELIMINARY STATEMENT
-
Complainant, the United States Environmental Protection Agency (“EPA”) and
Respondent, Anibal Torres Sepulveda, 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 -
Respondent, Anibal Torres Sepulveda, owns and operates a commercial coffee, citrus
fruit, and ornamental flower production facility known as Anthuriums de Puerto Rico,
located at Carr. 526, Km. 2.4, Adjuntas, Puerto Rico, and is therefore a “person” within
the meaning of section 2(s) of FIFRA, 7 U.S.C. § 136(s). -
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. -
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 $11,500. -
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. -
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. -
Respondent neither admits nor denies the findings of fact and conclusions of law set forth
in Section III of this Agreement. -
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 -
Paragraphs 1 through 90 of the Complaint are incorporated herein by reference as EPA’s
Findings of Fact in this matter. -
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 -
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. -
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. -
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. -
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 -
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. -
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 -
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 $11,500 gravity-based civil penalty. -
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
$1,725. -
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 $1,150. -
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 $8,625
for the violations alleged in this Complaint.VI. TERMS OF SETTLEMENT -
Respondent consents to the execution of this Agreement, and agrees to pay EIGHT
THOUSAND SIX HUNDRED TWENTY-FIVE DOLLARS ($8,625.00) in satisfaction
of the penalty. -
For payment of the civil penalties, Respondent shall make three (3) payments of TWO
THOUSAND EIGHT HUNDRED SEVENTY-FIVE DOLLARS ($2,875.00) 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 TWO THOUSAND EIGHT HUNDRED SEVENTY-
FIVE DOLLARS ($2,875.00) 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-02-2008-5304 P.O. Box 360277M Pittsburgh, PA 15251Alternatively, Respondent shall make each of these payments of TWO THOUSAND
EIGHT HUNDRED SEVENTY-FIVE DOLLARS ($2,875.00) 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: 021030004Each of the three checks or wire transfers should indicate that it is for In the Matter of
Anibal Torres Sepulveda, Docket No. FIFRA-02-2008-5304. -
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 -
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. -
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. -
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 eleven thousand five hundred ($11,500) dollars. Payment of this
full penalty shall be due within ten (10) days of the receipt of the demand letter. -
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. -
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. -
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 -
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 -
Each party shall bear its own costs and attorney fees in this matter.
-
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. -
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. -
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]
Anibal Torres Sepulveda
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