AMVAC Chemical Corporation (Board decision, March 10, 2015)
In re AMVAC Chemical Corporation (EAB FIFRA Appeal No. 15-01C): $34,320 recordkeeping settlement
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Plain-English summary
AMVAC Chemical Corporation, a pesticide company based in Newport Beach, California, agreed to resolve an EPA enforcement action under FIFRA. EPA alleged that AMVAC failed to retain required raw data for pesticide studies, submitted false compliance statements about laboratory practices, and failed to file Notices of Arrival before two pesticide shipments entered the United States. AMVAC neither admitted nor denied the allegations, waived its rights to a hearing and appeal, and agreed to pay a $34,320 civil penalty within 60 days after execution of the Final Order. The Environmental Appeals Board ratified the settlement and made the order effective immediately. Late payment could trigger an additional stipulated penalty of $5,000 per day plus interest under the agreement.
Decision snapshot
- Cited authorities: 7 U.S.C. §§ 136f, 136j, 136l; 40 C.F.R. §§ 12.110, 12.112, 22.18, 160.3, 160.29, 160.35, 169.2
- Outcome: The Consent Agreement was ratified, AMVAC was ordered to comply with its terms, and a $34,320 civil penalty was assessed.
- Key point: The Final Order makes a negotiated FIFRA settlement binding without an adjudication of the alleged violations.
Full text (EPA EAB public release)
F I L E D
MAR 10, 2015
Clerk, Environmental Appeals Board
INITIALS [illegible]
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In re: )
)
AMVAC Chemical Corporation ) Docket No. FIFRA-HQ-2015-5007
FINAL ORDER
Pursuant to 40 C.F.R. § 22.18(b)-(c) of EPA's Consolidated Rules of Practice, the
attached Consent Agreement resolving this matter is incorporated by reference into this Final Order and is hereby ratified.
The Respondent is ORDERED to comply with all terms of the Consent Agreement,
effective immediately. The Respondent is assessed a civil penalty of Thirty Four Thousand Three Hundred and Twenty Dollars ($34,320), and shall make payment in accordance with the provisions set forth in the Consent Agreement.
So ordered. 1
ENVIRONMENTAL APPEALS BOARD
Kathie A. Stein
Environmental Appeals Judge
1
The two-member panel ratifying this matter is composed of Environmental Appeals
Judges Leslye M. Fraser and Kathie A. Stein.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ENVIRONMENTAL APPEALS BOARD
WASHINGTON, D.C.
IN THE MATTER OF:
AMVAC Chemical Corporation
Respondent.
Docket No. FIFRA-HQ-2015-5007
CONSENT AGREEMENT AND FINAL ORDER
CONSENT AGREEMENT
Complainant, United States Environmental Protection Agency ("EPA") and Respondent, AMVAC Chemical Corporation ("AMVAC"), agree to this action and consent to the entry of this Consent Agreement and Final Order ("CAFO") before taking testimony and without any adjudication of any issues of law or fact herein.
I. NATURE OF ACTION
-
This is a civil administrative action commenced under section 14(a) of the Federal
Insecticide, Fungicide, and Rodenticide Act ("FIFRA" or the "Act"), as amended, 7
U.S.C. § 136l(a) and the Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties and the Revocation/Termination or Suspension of Permits
("Consolidated Rules"), 40 C.F.R. part 22. This action imposes civil penalties pursuant to
section 14(a) of FIFRA. -
Complainant and Respondent have conferred for the purpose of settlement pursuant to 40
C.F.R § 22.18, and desire to settle this action. Accordingly, before any testimony has
been taken and without any admission of violation, or adjudication of any issue of fact or
law, and in accordance with 40 C.F.R. § 22.18(b), Complainant and Respondent have
agreed to the execution of this CAFO. Respondent hereby agrees to comply with the
terms of this CAFO.II. THE PARTIES -
Kenneth C. Schefski, Acting Director, Waste and Chemical Enforcement Division, Office
of Civil Enforcement, Office of Enforcement and Compliance Assurance, is authorized
by lawful delegation to institute and settle civil administrative actions brought pursuant to
section 14(a) of FIFRA.
AMVAC Chemical Corporation, Docket No. FIFRA HQ-2015-5007
-
Respondent is a corporation doing business in Newport Beach, California, with revenues
in excess of $10,000,000 in calendar year 2013.III. PRELIMINARY STATEMENT -
Respondent stipulates that Complainant has jurisdiction over the subject matter of this
Consent Agreement. -
Respondent waives any defenses it might have as to venue and jurisdiction.
-
Pursuant to 40 C.F.R. § 22.18(b)(2), Respondent waives its right to contest the allegations
herein, its right to appeal the Final Order, and its right to request a judicial or
administrative hearing on any issue of law or fact set forth in, and resolved by, this
Consent Agreement. -
Respondent neither admits nor denies the allegations and determinations set forth in
Section V of this Consent Agreement.IV. STATUTORY AND REGULATORY BACKGROUND -
It shall be unlawful for any person to refuse to maintain or submit any records required
by or under FIFRA. 7 U.S.C. §§ 136f and 136j(a)(2)(B). -
The Administrator may prescribe regulations requiring producers, registrants, and
applicants for registration to maintain such records ... as the Administrator determines to
be necessary for the effective enforcement of this Act .... " 7 U.S.C. § 136f(a). -
40 C.F.R. § 169.2(k) requires that producers of pesticide products retain records
containing research data relating to registered pesticides, including all underlying raw
data, as long as the registration is valid and the producer is in business. -
The Administrator is authorized to assess a civil penalty against any registrant,
commercial applicator, wholesaler, dealer, retailer or other distributor who violates any
provision of FIFRA. The maximum statutory civil penalty is $6,500 for each offense that
occurred after March 15, 2004 through January 12, 2009, and $7,500 for each offense
occurring after January 12, 2009. 7 U.S.C. § 136l(a)(l). -
The term "person" means "any individual, partnership, association, corporation, or any
organized group of persons whether incorporated or not." 7 U.S.C. § 136(s). -
The term "producer" means "the person who manufactures, prepares, compounds,
propagates, or processes any pesticide or device or active ingredient, used in producing a
pesticide." 7 U.S.C. § 136(w).2
AMVAC Chemical Corporation, Docket No. FIFRA HQ-2015-5007
-
The term "sponsor" means "(l) A person who initiates and supports, by provision of
financial or other resources, a study; (2) A person who submits a study to the EPA in
support of an application for a research or marketing permit; or (3) A testing facility, if it
both initiates and actually conducts the study." 40 C.F.R. § 160.3. -
The term "study" means "any experiment at one or more test sites, in which a test
substance is studied in a test system under laboratory conditions or in the environment to
determine or help predict its effects, metabolism, product performance (efficacy studies
only as required by 40 C.F.R. §§ 158.400 or 161.640 as applicable), environmental and
chemical fate, persistence and residue, or other characteristics in humans, other living
organisms, or media." 40 C.F.R. § 160.3. -
The term "registrant" means "a person who has registered any pesticide pursuant to the
provisions of [FIFRA]." 7 U.S.C. § 136(y). -
The term "pesticide" means, in part: "any substance or mixture of substances intended for
preventing, destroying, repelling, or mitigating any pest." 7 U.S.C. § 136(u).V. EPA ALLEGATIONS AND DETERMINATIONS -
Respondent is a "person" as that term is defined by FIFRA. 7 U.S.C. § 136(s).
-
Respondent is a "registrant" as that term is defined by FIFRA. 7 U.S.C. § 136(y).
-
Respondent is a "sponsor" as that term is defined by 40 C.F.R. § 160.3, of the following
studies: EPA MRID No. 463614-0lC, EPA MRID No. 470088-0lC, EPA MRID No.
465754-0lC, and EPA MRID No.468873-0lC. -
Respondent is the registrant of the following pesticide: Dicrotophos Technical, EPA Reg.
No. 5481-447. -
Dicrotophos Technical, EPA Reg. No. 5481-447 is intended to destroy, repel, or mitigate
pests. -
Therefore, Dicrotophos Technical, EPA Reg. No. 5481-447, is a "pesticide" as defined
by FIFRA, 7 U.S.C. § 136(u). -
On or about June 16, 2005, Respondent submitted the study EPA MRID No. 46573402
(conducted by Respondent), to EPA in support of the registration of Dicrotophos
Technical, EPA Reg. No. 5481-447. -
On or about June 30, 2005, Respondent submitted the study EPA MRID No. 46581901
(conducted by Respondent), to EPA in support of the registration of Dicrotophos
Technical, EPA Reg. No. 5481-447.3
AMVAC Chemical Corporation, Docket No. FIFRA HQ-2015-5007
-
On or about September 09, 2008, a duly authorized representative of the EPA conducted
an inspection of Respondent's laboratory facility located at 4100 E. Washington Blvd.,
Los Angeles, California, 90023. The inspection was conducted to determine the facility's
compliance with the FIFRA Good Laboratory Practice Standards regulations at 40 C.F.R.
Part 160 and the Books and Records of Pesticide Production and Distribution regulations
at 40 C.F.R. part 169 -
The inspection conducted on or about September 09, 2008, of Respondent's laboratory
facility located at 4100 E. Washington Blvd., Los Angeles, California, 90023, revealed
that no raw data was available from the laboratory facility, the registrant, or the producer
of Dicrotophos Technical, EPA Reg. No. 5481-447, to support the conclusions of the
final reports for the studies listed in Paragraphs 25 and 26 above. -
Therefore, Respondent's conduct described in Paragraph 28 above reveals that each
failure to maintain records as required under FIFRA, 7 U.S.C. § 136l is a separate
violation under FIFRA, 7 U.S.C. § 136j(a)(2)(B), as detailed in the chart below.Count Study Violation 1 MRID No. 463614-0lC 7 U.S.C. § 136j(a)(2)(B) 2 MRID No. 465754-0lC 7 U.S.C. § 136j(a)(2)(B) -
On or about December 23, 2005, Respondent submitted the studies EPA MRID No.
46716201 and EPA MRID No. 46716202 (both conducted by Respondent) to EPA in
support of the registration of Dicrotophos Technical, EPA Reg. No. 5481-447. -
In its application for a research or marketing permit, Respondent submitted to EPA
signed compliance statements that the studies listed in Paragraph 30 above were
conducted in compliance with the FIFRA Good Laboratory Practice Standards ("GLPS")
at 40 C.F.R. § 160. -
The inspection conducted on or about September 09, 2008, of Respondent's laboratory
facility located at 4100 E. Washington Blvd., Los Angeles, California, 90023, revealed
that Respondent failed to meet the personnel requirements at 40 C.F.R. § 160.29 and
quality assurance unit requirements at 40 C.F.R. § 160.35 as specified in the signed
compliance statements submitted to EPA with the studies listed in Paragraph 30. -
Therefore, Respondent's conduct described in Paragraph 32 above reveals that each
failure to meet the personnel requirements at 40 C.F.R. § 160.29 and quality assurance
unit requirements at 40 C.F.R. § 160.35 resulted in Respondent providing false
compliance statements to EPA; each a separate violation of FIFRA, 7 U.S.C. §
136j(a)(2)(Q), as detailed in the chart below.Count Study Violation 3 MRID No. 46716201 7 U.S.C. § 136j(a)(2)(Q) 4 MRID No. 46716202 7 U.S.C. § 136j(a)(2)(Q) 4
AMVAC Chemical Corporation, Docket No. FIFRA HQ-2015-5007
- FIFRA, 7 U.S.C. § 136o(e), provides that the Secretary of the Treasury, in consultation
with the Administrator, shall prescribe regulations for the enforcement of subsection (c) of
this section entitled Importation of Pesticides and Devices.
3 5. 19 C.F .R § 12.110 specifies that, except as otherwise provided, the terms used in §§ 12.110
through 12.117 shall have the meanings set forth for those terms in FIFRA, as amended (7
U.S.C. § 136 et seq.), thereinafter referred to as "the Act". The term Administrator shall
mean the Administrator of the Environmental Protection Agency.
-
19 C.F.R. § 12.112(a) specifies that an importer desiring to import pesticides or devices
into the United States shall submit to the Administrator a Notice of Arrival of Pesticides
and Devices (Environmental Protection Agency Form 3540-1 or "Notice of Arrival"),
prior to the arrival of the shipment in the United States. Through the Notice of Arrival,
the importer reports vital information to EPA such as the major active ingredients,
quantity, port of entry, and points of contact. This information allows EPA to make
informed decisions, before pesticides arrive in the United States, as to whether such
importation will pose unreasonable adverse effects on public health and the environment.
The Notice of Arrival also provides contact information in the event of an emergency
related to the movement of potentially toxic materials. Therefore, the Notice of Arrival is
a report, required by FIFRA, which must be filed with the Administrator, prior to the
arrival of a pesticide shipment in the United States. -
In a letter dated November 30, 2011, Respondent disclosed to Complainant that
Respondent had shipped pesticides into the United States, on two (2) separate occasions
between May 12, 2011, and November 07, 2011. Respondent further disclosed that
Respondent failed to submit to the Administrator Notices of Arrival prior to the arrival of
the two (2) separate pesticide shipments in the United States. -
FIFRA, 7 U.S.C. § 136j(a)(2)(N), provides that it shall be unlawful for any person who is
a registrant, wholesaler, dealer, retailer, or other distributor to fail to file reports required
by this Act. -
Therefore, the conduct described Paragraph 37 above, Respondent's failure to submit to
the Administrator Notices of Arrival prior to the arrival of the two (2) separate pesticide
shipments into the United States, constitutes two (2) separate violations of FIFRA, 7
U.S.C. § 136j(a)(2)(N).Count Notice of Arrival Entry# Violation 5 E4J-0005310-4 7 U.S.C. § 136j(a)(2)(N) 6 E4J-0005308-8 7 U.S.C. § 136j(a)(2)(N) VI. TERMS OF SETTLEMENT -
Respondent consents to issuance of this Consent Agreement and to its terms, and
consents, for the purposes of settlement, to the payment of the civil penalty set forth in
Section VII5
AMVAC Chemical Corporation, Docket No. FIFRA HQ-2015-5007
-
Respondent's compliance with the terms of this CAFO shall fully settle all civil claims or
civil causes of action alleged in Section V. -
Compliance with this CAFO shall not be a defense to any subsequent action EPA may
commence pursuant to federal law or regulation for violations occurring after the date of
this Consent Agreement, or any violations of FIFRA not alleged in this Consent
Agreement that may have occurred prior to the date that this Consent Agreement is fully
executed by both Parties. -
Nothing in this CAFO is intended to, nor shall be construed to operate in any way to,
resolve any criminal liability of Respondent.VII. CIVIL PENALTY -
Complainant has calculated a penalty pursuant to the statutory penalty factors listed in
section 14(a)(4) of FIFRA, 7 U.S.C. §136l(a)(3), the Enforcement Response Policy for
the Federal Insecticide, Fungicide, and Rodenticide Act (December 2009) and the
Enforcement Response Policy for FIFRA Good Laboratory Practice Regulations
(September 1991), Appendix G of the FIFRA ERP. -
Based upon the information in Complainant's inspection of September 09, 2008, and
Respondent's November 30, 2011, letter to EPA, referenced in Section V, and in
accordance with the penalty adjustments allowed under the FIFRA ERP, Complainant
has derived a penalty of $34,320. -
The penalty agreed upon by the Parties for settlement purposes is $34,320.
-
Not more than sixty (60) calendar days following execution of the Final Order by the
Environmental Appeals Board, Respondent shall either:a) Dispatch a cashier's or certified check payable to the order of the "Treasurer of the
United States of America" in the amount of $34,320 and bearing the notation,
"AMVAC Chemical Corporation, Civil Penalty Docket No. FIFRA HQ-2015-
5007'' to the following address:U.S. Environmental Protection Agency Fines and Penalties Docket No. FIFRA-HQ-2015-5007 Cincinnati Finance Center PO Box 979077 St. Louis, MO 63197-9000 or 6
AMVAC Chemical Corporation, Docket No. FIFRA HQ-2015-5007
b) Make an electronic payment by wire transfer in the amount of $34,320 with the
notation, "AMYAC Chemical Corporation, Civil Penalty Docket No. FIFRA HQ-
2015-5007," by using the following instructions:
Federal Reserve Bank of New York
ABA = 021030004
Account= 68010727
SWIFT address= FRNYUS33
33 Liberty Street
New York, NY 10045
Field Tag 4200 of the Fedwire message should read:
"D 68010727 Environmental Protection Agency."
-
To ensure a record of compliance with this Consent Agreement, Respondent shall
forward a copy of the check or wire transfer to EPA to the attention of:Brian Dyer U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. (Mail Code 2249A) Washington, DC 20460-0001 and Headquarters Hearing Clerk U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. (Mail Code 1900C) Washington, DC 20460-0001 -
If Respondent fails to pay the civil penalty of $34,320 within sixty (60) calendar days of
the execution of the Final Order, then Respondent shall pay an additional stipulated
penalty of $5,000 per calendar day, plus interest, at the statutory judgment rate provided
for in 31 U.S.C. § 3717, as in effect on the date of execution of the Final Order, unless
Complainant in writing excuses or mitigates the stipulated penalty. Complainant may
excuse or mitigate the stipulated penalty if Complainant determines in its sole discretion,
that failure to comply occurred despite Respondent's exercise of good faith and due
diligence. If additional stipulated penalties are due, Complainant will dispatch to
Respondent a demand letter via certified mail, return receipt requested, which specifies
the total amount due and owed by Respondent, including any interest allowed by law.
Within fourteen (14) calendar days following Respondent's receipt of such demand letter,
Respondent shall pay the stipulated penalty in the manner specified in this Section. -
Failure to remit the civil penalty, or any stipulated penalty plus interest provided herein,
may result in this matter being forwarded to the United States Department of Justice to
recover such amount by action in federal court under section 14(a)(5) of FIFRA. 7 U.S.C.
§ 1361(a)(5). The validity, amount and appropriateness of the civil penalty are not
reviewable in a collection action.7
AMVAC Chemical Corporation, Docket No. FIFRA HQ-2015-5007
-
This civil penalty is not deductible for federal tax purposes.
VIII. OTHER MATTERS -
Nothing in this CAFO shall relieve Respondent of the duty to comply with all applicable
provisions of FIFRA and with other federal, state, tribal, and local laws and regulations. -
This CAFO shall bind both Parties. This includes each Party's officers, directors,
employees, successors, and assigns. The undersigned representative of each Party to this
CAFO certifies that he or she is duly authorized to represent and bind the Party whom he
or she claims to represent. -
This CAFO shall bind the Parties in full effect upon execution of the Final Order by
EPA's Environmental Appeals Board. -
Respondent's obligations under this CAFO shall terminate when Respondent has paid the
civil penalty, and any applicable interest or late charges, as specified in Section VII of the
Consent Agreement in accordance with the Final Order. -
Each Party agrees to bear its own costs and attorney fees in this matter.
8
AMVAC Chemical Corporation, Docket No. FIFRA HQ-2015-5007
WE AGREE TO THIS:
FOR COMPLAINANT:
[signature]
Kenneth C. Schefski, Acting Director Date: 2/6/2015 Waste and Chemical Enforcement Division Office of Civil Enforcement Office of Enforcement and Compliance Assurance United States Environmental Protection Agency
[signature]
Thomas Charlton, Attorney Date: 1/29/2015 Waste and Chemical Enforcement Division Office of Civil Enforcement Office of Enforcement and Compliance Assurance United States Environmental Protection Agency
FOR RESPONDENT:
[signature]
Cindy Baker-Smith, Senior Vice President Date: 2/15/2015 AMVAC Chemical Corporation
[signature]
Tim Donnelly, Attorney Date: 1/15/2015 AMVAC Chemical Corporation
9
CERTIFICATE OF SERVICE
I certify that the foregoing "Consent Agreement" and "Final Order," in the Matter of
AMVAC Chemical Corporation, Docket No. FIFRA-HQ-2015-5007, were filed and copies of the same were mailed to the parties as indicated below:
Via Interoffice Mail:
Brian T. Dyer (Mail Code 2249A)
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., NW
Washington, DC 20460
Thomas Charlton (Mail Code 2249A)
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., NW
Washington, DC 20460
Via U.S. Certified Mail:
Tim Donnelly, Attorney
Cindy Baker Smith, Senior Vice President
Director of Global Regulatory Affairs
AMVAC Chemical Corporation
4695 MacArthur Court, Suite 1200
Newport Beach, CA 92660
[signature]
Annette Duncan, Secretary
U.S. Environmental Protection Agency
Environmental Appeals Board
Dated: MAR 10, 2015
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