EPA EAB Board decision
Docket FIFRA 98-3, I.F.&R.-VIII-96-07
Decided June 14, 1999
Citations affirmed
Arapahoe County Weed District
In re Arapahoe County Weed District (EAB FIFRA Appeal No. 98-3): restricted-use pesticide penalty affirmed
Apply this precedent to your situation
This is citable Board precedent from 1999, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Final EAB decision
This Environmental Appeals Board Final Decision is a final disposition of Arapahoe County Weed District's Federal Insecticide, Fungicide, and Rodenticide Act appeal. The Board held that intent was not an element of selling a restricted-use pesticide to an uncertified applicator, found a civil penalty appropriate instead of a warning, and affirmed the $2,400 penalty. The full text below is the official EPA release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official EPA EAB release. The full text is the agency's own release.
Read the official release (epa.gov)
Plain-English summary
Arapahoe County Weed District sold restricted-use pesticides to local farmers in Colorado. EPA found that the district sold Tordon 22K to an applicator whose certification had expired, and the presiding officer assessed a $2,400 civil penalty. The Environmental Appeals Board held that the seller's intent was not an element of the violation and that the district had not exercised due care in meeting its sales duties. The Board affirmed the penalty rather than replacing it with a warning.
Decision snapshot
- Cited authorities: FIFRA §§ 3(a), 3(d)(1), 12(a)(2)(F), and 14(a), 7 U.S.C. §§ 136a, 136j, and 136l; 40 C.F.R. § 171.11.
- Outcome: The $2,400 civil penalty was affirmed.
- Key point: Selling a restricted-use pesticide to an uncertified applicator violates FIFRA without proof that the seller intended the pesticide to be used without certified supervision.
Full text (EPA EAB public release)
187-274/Sections16-18 10/15/01 3:32 PM Page 381
ARAPAHOE COUNTY WEED DISTRICT 381
IN RE ARAPAHOE COUNTY WEED DISTRICT
FIFRA Appeal No. 98–3
FINAL DECISION
Decided June 14, 1999
Syllabus
The Arapahoe County Weed District (“Weed District”) appeals a June 9, 1998, Initial
Decision in which the Presiding Officer assessed a civil penalty of $2,400 for a single vio-
lation of section 12(a)(2)(F) of the Federal Insecticide, Fungicide, and Rodenticide Act
(“FIFRA”), 7 U.S.C. § 136j(a)(2)(F). The Presiding Officer concluded that the Weed District
had violated FIFRA § 12(a)(2)(F) when its employee sold a restricted use pesticide (“RUP”)
to an uncertified applicator. He further held that the violation warrants a penalty rather
than a warning, rejecting the Weed District’s argument that a penalty is unnecessary to
deter future violations by the Weed District. He concluded that the $2,400 penalty amount
recommended by the Region had been properly calculated.
The Weed District filed an appeal on July 6, 1998, asserting that, in order to find that
the Weed District violated section 12(a)(2)(F) by selling an RUP to an uncertified applica-
tor, “there must be proof of an intention that the restricted use pesticide would not be used
by or under the supervision of a certified applicator.” It further argues that, even if it vio-
lated FIFRA as alleged, the violation warrants a warning letter rather than a civil penalty
because it was unintentional and did not cause environmental harm.
Held: (1) FIFRA § 12(a)(2)(F) prohibits the sale of a restricted use pesticide to an
uncertified applicator. The seller’s intent is not an element of the violation. The Weed
District’s contrary interpretation is not supported by the legislative history of FIFRA, and is
inconsistent with statutory objectives.
(2) The Board agrees with the Presiding Officer that a civil penalty, rather than a
warning, is appropriate, particularly where, as here, a pesticide seller failed to exercise due
care in fulfilling its statutory and regulatory duties.
(3) The Board affirms the Presiding Officer’s penalty assessment of $2,400.
Before Environmental Appeals Judges Scott C. Fulton,
Edward E. Reich, and Kathie A. Stein.
Opinion of the Board by Judge Reich:
The Arapahoe County Weed District (“Weed District”) has appealed
a civil penalty assessment of $2,400 for a single violation of Section
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382 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
12(a)(2)(F) of the Federal Insecticide, Fungicide, and Rodenticide Act
(“FIFRA”), 7 U.S.C. § 136j (a)(2)(F). For the reasons stated below, the
appeal is denied and the civil penalty assessment of $2,400 is affirmed.
I. BACKGROUND
A. Statutory Background
FIFRA mandates the registration with EPA of all pesticides offered for
sale or distribution within the United States. FIFRA § 3(a), 7 U.S.C. § 136a(a).
As part of the registration process, each pesticide is classified by the
Administrator of EPA (or his or her delegatee) as being for general use, or
restricted use, or both. FIFRA § 3(d)(1)(A), 7 U.S.C. § 136a(d)(1)(A).
The appropriate classification depends on the risks a pesticide’s intend-
ed uses may pose to the applicator, the public and/or the environment.
FIFRA §§ 3(d)(1)(B) and (C), 7 U.S.C. §§ 136a(d)(1)(B) and (C). Section
3(d)(1)(C)(i) provides that a pesticide that has been classified for restrict-
ed use because it presents a hazard to the applicator or other persons may
be applied for that restricted use “only by or under the direct supervision
of a certified applicator.”1 FIFRA § 3(d)(1)(C)(i), 7 U.S.C. § 136a(d)(1)(C)(i).
FIFRA § 12(a)(2)(F), 7 U.S.C. § 136j(a)(2)(F), makes it unlawful:
[T]o distribute or sell, or to make available for use, or to
use, any registered pesticide classified for restricted use
for some or all purposes other than in accordance with
section 136a(d) [FIFRA § 3(d)] of this title and any regu-
lations thereunder * * *.2
A civil penalty may be assessed for a violation of section 12(a)(2)(F) pur-
suant to FIFRA § 14(a), 7 U.S.C. § 136l(a).
1
EPA conducts the training and certification program for private pesticide applicators
in Colorado. Transcript of October 23, 1997 Hearing (“Tr.”) at 54. An individual may become
a certified applicator in Colorado by taking a home-study course and passing a test admin-
istered by EPA. Tr. at 44. The applicator is then issued a certification card by EPA that is
valid for four years, and must take retraining to obtain recertification. 40 C.F.R. § 171.11.
2
FIFRA § 12(a)(2)(F) contains the exception that “it shall not be unlawful to sell, under
regulations issued by the Administrator, a restricted use pesticide to a person who is not a
certified applicator for application by a certified applicator.” The Presiding Officer found
that Respondent neither alleged nor demonstrated that the exception applies here, and his
findings have not been appealed. See Initial Decision at 13.
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ARAPAHOE COUNTY WEED DISTRICT 383
B. Factual and Procedural Background
The Weed District is a non-profit governmental entity created under
Colorado law that sells pesticides to local farmers at cost (plus a ten per-
cent handling fee) at its office in Strasburg, Colorado. The Weed District
collects approximately $50,000 a year from pesticide sales and receives
an additional $35,000 a year from property taxes. Initial Decision at 2–3.
The Weed District sells one restricted use pesticide (“RUP”), Tordon
22K, EPA Registration No. 62719–6. Initial Decision at 4. Tordon 22K has
been classified for restricted use because it requires protective equipment
for the applicator and because it poses risks to nontarget species and the
environment. Tr. at 28.
The essential facts are not in dispute. On March 6, 1996, Mr. Michael
P. Rudy, an EPA employee, performed a routine compliance inspection at
the Weed District’s office. Tr. at 12; Memorandum of Inspection (undat-
ed) (Complainant’s Exhibit (“C Ex”) 2). During that inspection, he
reviewed the sales slips for twelve randomly selected sales transactions
involving Tordon 22K. Id.; Tr. at 17. One of these sales slips indicated that
Mr. Rodney Cronk, the Weed District’s sole employee, had sold 7 1/2 gal-
lons of Tordon 22K to Mr. Lowell Piland on September 2, 1995. Tr. at 18;
Sales Ticket, C Ex 4. During the inspection, Mr. Rudy also reviewed Mr.
Cronk’s Restricted Use Pesticide Sales Log (C Ex 3). Tr. at 18. The RUP
Sales Log contained an entry indicating a September 2, 1995 sale of 7 1/2
gallons of Tordon 22K to Mr. Piland, and a notation that Mr. Piland’s pes-
ticide applicator certification would expire on March 5, 1996. C Ex 3.
After returning to his office, Mr. Rudy reviewed a computer print-
out, dated November 22, 1995 (C Ex 6), that listed Colorado private pes-
ticide applicators and the issuance and expiration dates of their certifi-
cation cards. Tr. at 20–21. The computer printout gave an issuance date
of “1991/05/06” and an expiration date of “1995/05/06” for Mr. Piland’s
certification card.3 Based on the computer printout, Mr. Rudy concluded
that the March 5, 1996 expiration date noted in the Weed District’s RUP
Sales Log was incorrect, and that Mr. Piland had not been certified when
3
C Ex 6 is titled “Colorado Private Pesticide Applicators by ID # (Dealer’s List), All
Records in Private Pesticide Applicator System.” The “Date Run” is 11/22/95. The record
also contains a list titled “Colorado Private Pesticide Applicators by Name.” The “Date Run”
is indicated as “09/21/ .” C Ex 8. Both list Mr. Piland’s name and ID number, an “issue date”
of “1991/05/06” and an expiration date of “1995/05/06.”
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384 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Mr. Cronk sold him 7 1/2 gallons of Tordon 22K on September 2, 1995.4
Tr. at 21.
Mr. Rudy conducted a follow-up inspection at Mr. Piland’s residence
on May 14, 1996. Memorandum of Inspection (C Ex 9). He informed Mr.
Piland that his certification had expired in May 1995, not May 1996, and
obtained his affidavit. See Affidavit of Lowell D. Piland (May 14, 1996)
(C Ex 5).
Region VIII filed a complaint (“Complaint”) on September 24, 1996,
charging the Weed District with the sale of an RUP to an uncertified appli-
cator in violation of FIFRA § 12(a)(2)(F). The Complaint proposed a civil
penalty of $2,400 for the violation. Mr. Timothy R. Osag, Senior
Enforcement Coordinator for Region VIII, calculated a civil penalty of
$2,400 for the violation in accordance with EPA’s Enforcement Response
Policy for the Federal Insecticide, Fungicide, and Rodenticide Act (July 2,
1990) (“ERP”) (C Ex 1). Tr. at 58–70. The ERP implements the requirement
in FIFRA § 14(a)(4) that EPA consider specified penalty factors in pro-
posing a penalty under FIFRA. Tr. at 59.
The Chairman of the Arapahoe County Pest District sent a brief let-
ter (“Answer”) (C Ex 7) to the Regional Hearing Clerk on October 17,
1996 (misdated 1–11–1996). Administrative Law Judge Spencer T. Nissen
(the “Presiding Officer”) deemed the letter to be the Weed District’s
Answer to the Complaint. Tr. at 6; Initial Decision at 2. The Weed District
acknowledged that it had sold an RUP to Mr. Piland in September 1995,
after Mr. Piland’s certification had lapsed, but contended that the pro-
posed penalty amount was “excessive” because “[t]here was no harm
intended and no harm was incurred.” Id. It requested a hearing.
The Presiding Officer conducted an administrative hearing on
October 23, 1997. Mr. Cronk testified that he sold 7 1/2 gallons of Tordon
22K to Mr. Piland on September 2, 1995. Tr. at 106–07. He stated that he
had believed at that time that Mr. Piland’s certification was valid because
he checked his Rolodex card file before making the sale and found an
entry indicating that Mr. Piland’s card would not expire until May 5, 1996.
Tr. at 107. Mr. Cronk did not remember when he had recorded the expi-
ration date of Mr. Piland’s card. Tr. at 109. However, he did recall that the
ink on Mr. Piland’s card had been badly smudged on that occasion. Id.
He acknowledged that he had not called EPA to verify the expiration
4
In January 1996, Mr. Piland applied for recertification, apparently mistakenly believ-
ing that his certification would expire in May 1996. Tr. at 123–24. He was recertified in
March 1996. Memorandum of Inspection (C Ex 9); Tr. at 123–24.
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ARAPAHOE COUNTY WEED DISTRICT 385
date, either on that occasion or on the date of the sale, but explained
that, “we [Mr. Cronk and Mr. Piland] was sure it was a ‘96. Definitely was
or we would have called.” 5 Id.
Mr. Piland’s testimony was consistent with that of Mr. Cronk. He stat-
ed that, when he purchased the Tordon 22K on September 2, “we looked
at the Rolodex and came up with a date * * *. I’m assuming it came from
my card * * *.” Tr. at 121. He had no specific memory of Mr. Cronk hav-
ing written down the expiration date on a prior occasion but he was
“positive” that Mr. Cronk had done so. Tr. at 127. Although Mr. Piland had
stated in his affidavit (C Ex 5) that he or Mr. Cronk had telephoned EPA
sometime prior to September 2, 1995, “to determine [his] true expiration
date,” he stated at the hearing that he must have been mistaken that a
telephone call had been made. Tr. at 127. Mr. Piland stated that he had
not bought the Tordon 22K on September 2, 1995, for immediate use, but
that he had not discussed his intended use of the pesticide with Mr.
Cronk. Tr. at 118. See also Tr. at 111.
Mr. Timothy Osag testified that he had calculated a penalty amount
of $2,400 in accordance with EPA’s ERP.6 Tr. at 58–70. While not conced-
ing that any violation occurred, or that a penalty rather than a warning is
appropriate, the Weed District has stipulated that all of the penalty cal-
culations were accurate, except for the “culpability” value assigned to the
5
The Initial Decision contains a factual finding that Mr. Cronk looked at Mr. Piland’s
certification card on September 2, 1995, as well as on the occasion when he wrote down
the expiration date in his Rolodex file. Initial Decision at 10 and 19. The finding was based
on the following testimony of Mr. Cronk:
Q: So the last time that you saw Mr. Piland’s card was on September 2, 1995?
A: I don’t know the exact date. I know I put it on the file. That was the last time
I seen it.
Q: The date that was on the sales receipt would be the last time you saw it?
A: Yes.
Tr. at 115–16. Mr. Piland, who testified that his recall of the details of the sale transaction
was not very good (Tr. at 117), was not asked, and did not testify, as to whether Mr. Cronk
looked at his card. We find the testimony far from clear on this point but need not resolve
this issue to resolve the appeal.
6
Because most of the determinations on which the penalty was calculated are not
controverted, we will not go into them in detail.
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386 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
violation.7 Tr. at 62–63. The Weed District contends that the culpability
value should be “0” because Mr. Cronk’s violation was unintentional. Mr.
Osag had assigned a culpability value of “2” based on his conclusion that
the violation had been caused by Mr. Cronk’s negligence.8 Tr. 64.
C. Initial Decision and Notice of Appeal
The Presiding Officer issued an Initial Decision on June 9, 1998, in
which he held that:
1. [The Weed District’s] sale on September 2, 1995, of
Tordon 22K * * * was a violation of FIFRA § 12(a)(2)(F) * * *.
2. FIFRA is a strict liability statute and no finding of intent
to violate the Act or to act in disregard thereof is required
[for liability] * * *.
3. The violation is serious and warrants a penalty rather
than simply a warning.
Initial Decision at 12. The Presiding Officer stated that there was “some
force” to the argument the Weed District made in its post-hearing brief
that FIFRA § 12(a)(2)(F) makes it unlawful to sell an RUP to an uncerti-
fied purchaser only if EPA can demonstrate that the seller had an intent
to sell the pesticide to an uncertified applicator. Id. at 14.9 However, he
concluded that the Weed District’s argument is “foreclosed” by a 1989
7
The ERP specifies base penalty amounts for particular types of FIFRA violations that
are based on the gravity level assigned to the violation and the size of business of the vio-
lator. The ERP further provides that the base penalty amount may be adjusted upward or
downward to take account of the actual circumstances of the violation. The violator’s “cul-
pability” under the circumstances of the violator is one of five prescribed gravity adjust-
ment criteria.
8
Mr. Osag determined a base penalty amount of $3,000 for the violation and reduced
that amount by 20% (to $2,400) based on the total value he assigned to the five gravity
adjustment criteria in the ERP. See supra n.7. He assigned a value of “2” for the gravity
adjustment criterion of “culpability.” If a value of “0” had instead been assigned for the
gravity adjustment criterion of culpability, as the Weed District suggests, the ERP would
have recommended that the base penalty amount be reduced by 40% (to $1,800).
9
See Respondent’s Brief in Support of Proposed Findings, Conclusions and Order at
4–5; Respondent’s Reply Brief in Support of Proposed Findings of Fact, Conclusions and
Order at 1–2.
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ARAPAHOE COUNTY WEED DISTRICT 387
decision of EPA’s Chief Judicial Officer in In re Custom Chem. & Agric.
Consulting, Inc., 2 E.A.D. 748 (CJO 1989), in which the CJO “flatly reject-
ed” the argument that intent is an element of a FIFRA § 12(a)(2)(F) vio-
lation.10 Initial Decision at 15. The Presiding Officer added that “FIFRA
has repeatedly been held to be a strict liability statute” in Agency admin-
istrative decisions. Id. at 16.
The Presiding Officer then explained why he had concluded that the
violation warranted a penalty, rather than a warning. He noted the Weed
District’s argument that it had rectified its past problems and thus a fine
was not necessary to prevent future violations. He rejected this argument,
however, noting that “the deterrent value of a sanction is not directed
solely at the violator * * * but also is intended generally to discourage a
casual attitude toward compliance with the law and to act as a deterrent
to similar violations by others.” Id. at 18. Because of this consideration,
the Presiding Officer concluded that “a penalty rather than a simple warn-
ing is the appropriate sanction here.” Id.
The Presiding Officer then held that the $2,400 penalty recommend-
ed by the Region had been properly calculated in accordance with the
ERP. Id. at 18–20. With specific regard to the factor of “culpability” (the
only aspect of the penalty calculation that the Weed District contests), he
held that a culpability value of “2” was appropriate because Mr. Cronk
had been negligent in that he incorrectly transferred the expiration date
from Mr. Piland’s badly smudged card to a Rolodex file, and subsequently
sold an RUP to Mr. Piland even though he lacked adequate information
from which to determine whether Mr. Piland was a certified applicator at
the time of the sale. Id. at 20.
The Weed District filed an appeal on July 6, 1998, in which it argues that:
In order to find that the Weed District has violated
[Section 12(a)(2)(F)] 7 U.S.C. § 136j(a)(2)(F) by selling a
restricted use pesticide to an uncertified applicator, there
must be proof of an intention that the restricted use pes-
ticide would not be used by or under the supervision of
a certified applicator.
10
The Presiding Officer relied on the Chief Judicial Officer’s holding in Custom
Chemical that “FIFRA § 12(a)(2)(F) * * * does not permit sales of a restricted use pesticide
to uncertified persons,” unless authorized by regulation. Initial Decision at 16, citing
Custom Chemical, 2 E.A.D. at 751. The Presiding Officer stated that, although Custom
Chemical did not address the precise issue of statutory interpretation raised here, its hold-
ing “rejects, by necessary implication, any contention that intent is an element of a viola-
tion of the cited section.” See Initial Decision at 16.
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388 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Notice of Appeal at 1. It contends, therefore, that Region VIII has not
established that a violation occurred because Mr. Cronk did not intend
that the Tordon 22K would be used by an uncertified person. Id. at 8, 10.
The Weed District argues, alternatively, that even if it violated FIFRA as
alleged, the violation is minor and therefore warrants a warning letter
rather than a civil penalty. Id. at 8.
Region VIII responds that the Presiding Officer’s decision should be
affirmed. Region’s Reply Brief (July 21, 1998). It contends that intent is
not an element of a violation of FIFRA § 12(a)(2)(F). It maintains that the
Presiding Officer properly imposed a penalty, rather than issuing a warn-
ing, in light of the circumstances of the violation.
II. DISCUSSION
We affirm the Presiding Officer’s holding that the Weed District vio-
lated section 12(a)(2)(F) when its employee sold 7 1/2 gallons of Tordon
22K, an RUP, to an applicator who did not have a valid certification at
the time of the sale. See Initial Decision at 12. FIFRA is a strict liability
statute. As we stated in In re Green Thumb Nursery, Inc., 6 E.A.D. 782,
796 (EAB 1997):
The environmental statutes are intended to be action forc-
ing, and brook no excuse for failure to achieve the
required result. * * * The environmental statutes * * *, includ-
ing FIFRA, consistently have been construed as imposing
strict liability for failure to meet their requirements.
Consistent with FIFRA’s strict liability approach, section 12(a)(2)(F) pro-
hibits selling an RUP to an uncertified applicator. An intent to violate the
statute is not an element of the violation.
The Weed District’s argument that an unlawful intent is an element
of a FIFRA § 12(a)(2)(F) violation is not supported by the statutory lan-
guage. That statutory language, quoted supra, is repeated here for the
reader’s convenience. FIFRA § 12(a)(2)(F) provides that it is unlawful:
[T]o distribute or sell, or to make available for use, or to
use any registered pesticide classified for restricted use
for some or all purposes other than in accordance with
section 136a(d) [FIFRA § 3(d)] of this title and any regu-
lations thereunder * * *.
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ARAPAHOE COUNTY WEED DISTRICT 389
The Weed District interprets the statutory phrase “for some or all pur-
poses other than in accordance with section 136a(d) [FIFRA § 3(d)]” as
modifying the phrase “to sell * * * any [RUP].” It contends that the word
“purpose” in this section “unquestionably means that the elements nec-
essary to establish a violation include a subjective intent requirement.”
Appeal Brief at 5. It then reasons that the statutory language makes it
unlawful to sell an RUP to an uncertified applicator only if the seller has
the purpose (i.e., intent) of making an unlawful sale.
The Weed District’s contention is without any legal basis and is based
on a misreading of the statutory language. As Region VIII has argued, the
statutory phrase “for some or all purposes” modifies the phrase “classi-
fied for restricted use.” Since a pesticide may be classified as an RUP for
some or for all of its uses (i.e., purposes), FIFRA § 12(a)(2)(F) provides
that it is unlawful to sell an RUP in contravention of section 3(d), whether
the pesticide has been classified as an RUP for some purposes or for all
purposes.
The legislative history of FIFRA supports the Region’s interpreta-
tion of the statute, rather than the reading proposed by the Weed
District. When Congress substantially amended FIFRA in 1972, and cre-
ated the foundation for the present regulatory scheme, one of its main
objectives was to “strengthen[] regulatory controls on the use and users
of pesticides.”11 In furtherance of that objective, FIFRA was amended to
require that all pesticides be classified for general use or restricted use
at the time of registration, and that restricted use pesticides be applied
by or under the supervision of a certified applicator. FIFRA § 3.12 The
purpose of section 12(a)(2)(F), according to a House of Representatives
Committee on Agriculture Report on the legislation, is:
[T]o make it unlawful for any person to make available
for use or to use a pesticide, classified for restricted use
for some or all purposes, for its restricted uses without
complying with the restrictions imposed under this Act.
11
H.R. Rep. No. 92–511, 92d Cong., 1st Sess. (1971), at 4.
12
The legislative history of the 1972 amendments to FIFRA reveals that Congress
attached great importance to these new provisions in section 3. The House of
Representatives Committee on Agriculture Report on the proposed legislation characterized
these provisions as “the key new authorities” of the legislation. H.R. Rep. No. 92–511, 92d
Cong., 1st Sess. (1971), at 21. The Senate Committee on Agriculture and Forestry Report
explained that “the educational process entailed by certification provides an opportunity
not only to greatly diminish the possibility of injury to persons but also injury to the envi-
ronment from both misuse, and more importantly, overuse.” S. Rep. No. 92–838, 92d
Cong., 2d Sess. (1972), at 23.
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If, however, a pesticide [classified for restricted use] in
accordance with Section 3(d) is also classified for gener-
al use for some purposes the restrictions imposed for its
restricted uses are not applicable to its general uses
under either this Section or Section 3(d).
H.R. Rep. No. 92–511, 92d Cong., 1st Sess. (1971), at 24–25.
The Committee Report leaves no doubt that the phrase “for some or
all purposes” in section 12(a)(2)(F) was intended to modify the phrase
“classified for restricted use.” The fact that the phrase “classified for
restricted use for some or all purposes” is set off by commas emphasizes
the drafter’s intent that these words be read together as a single phrase.
This intent is further confirmed by the use of the term “purposes” as a
synonym for “uses” in the second sentence of the quote.13
The Weed District’s suggested interpretation of the statutory language
is not only inconsistent with the foregoing legislative history but is also
inconsistent with the objectives of FIFRA and with the statutory scheme
for their furtherance. FIFRA and the Agency’s implementing regulations
are designed to assure that pesticides classified for restricted use are
applied only by qualified applicators, who possess the requisite knowl-
edge to use them safely and appropriately. EPA’s implementing regula-
tions further the statutory objective of preventing unauthorized access to
RUPs, by requiring pesticide applicators to be re-certified every four years,
and by requiring pesticide sellers to record an applicator’s certification
number and the expiration date of the certificate at the time of a sales
transaction. 40 C.F.R. §§ 171.11(d) and (g). In combination, these stringent
training requirements for applicators and stringent recording requirements
for pesticide sellers assure that RUPs will be sold only for use by persons
who have a current certification that they are qualified to handle and
apply RUPs. The preamble to the regulations specifically states that one of
the purposes of the Agency’s recordkeeping requirements is:
[T]o eliminate the further availability of restricted use pes-
ticides to applicators whose certifications have expired
and to minimize the opportunity that such a violation
could occur * * *.
13
This use of the term “purposes” to refer to the uses for which a pesticide is classified
is also consistent with the use of the term “purposes” in the definition of “commercial appli-
cator,” which refers to an applicator who uses “any pesticide which is classified for restrict-
ed use for any purpose.” See FIFRA § 2(e)(3), 7 U.S.C. § 136(e)(3). Notably, the statute’s use
of “purpose” and “use” as interchangeable terms also renders dubious the Weed District’s
proposition that the term “purpose” necessarily connotes intentional conduct.
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ARAPAHOE COUNTY WEED DISTRICT 391
Certification of Pesticide Applicators Recordkeeping and Reporting
Requirements, Final Rule, 48 Fed. Reg. 53,972 (Nov. 29, 1983)(empha-
sis added).
We conclude, therefore, that the Presiding Officer properly held that
an intent to violate FIFRA is not an element of a violation of section
12(a)(2)(F), and that the Weed District violated section 12(a)(2)(F) when
its employee sold an RUP to an uncertified purchaser.
C. Appropriateness of Penalty
The Weed District argues, alternatively, that even if it has violated
FIFRA, its violation should result in a warning, rather than a civil penal-
ty, because the violation was “minor” rather than “serious.” Appeal Brief
at 8. It argues that Mr. Cronk’s alleged violation was inadvertent, that he
had no history of prior violations, that the sale did not cause environ-
mental harm, and that Mr. Cronk ordinarily exercises great care to follow
applicable laws and regulations. Id. at 9. The Weed District further argues
that, if a penalty is assessed, it should be reduced because the Presiding
Officer’s penalty assessment is disproportionately high when compared to
penalty assessments in In re Kay Dee Veterinary Division, Kay Dee Feed
Co., 2 E.A.D. 646 (CJO 1988), In re Custom Chem. & Agric. Consulting,
Inc., 2 E.A.D. 748 (CJO 1989), and In re Green Thumb Nursery, Inc.,
6 E.A.D. 782 (EAB 1997). Id. For the reasons stated below, we reject the
Weed District’s arguments and affirm the Presiding Officer’s penalty
assessment of $2,400.
The record does not contradict the Weed District’s assertion that its
compliance record is unblemished and that this particular violation did
not directly cause environmental harm. However, we agree with the
Presiding Officer that a penalty, rather than a warning, is appropriate. The
ERP states that:
A civil penalty is the preferred enforcement remedy for
most violations. A civil penalty is appropriate where the
violation: (1) presents an actual or potential risk of harm
to humans or the environment * * *, or would impede the
Agency’s ability to fulfill the goals of the statute; (2) was
apparently committed as a result of ordinary negligence
(as opposed to criminal negligence), inadvertence, or
mistake; and the violation * * * involves a violation under
the Act by any registrant, * * * wholesaler, dealer, retailer,
or other distributor (no prior warning is required by
FIFRA for violators in this category) * * *.
ERP at 10.
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392 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
This case clearly fits within the category of cases where a civil penal-
ty is the “preferred enforcement option,” in that the violation resulted
from the negligence of Mr. Cronk. More specifically, we agree with the
Presiding Officer’s determination that the violation was caused by Mr.
Cronk’s failure to exercise appropriate care in determining the expiration
date of Mr. Piland’s certification card. Mr. Cronk has been selling RUPs
for the Weed District for 15 years, and not only should have been aware
of the importance of accurately recording the expiration date on Mr.
Piland’s card but also should have been familiar with a variety of means
to check the date if he found the card difficult to read. Mr. Cronk record-
ed information about the expiration date in his Rolodex file from a card
that he stated was badly smudged. Yet, he did not call EPA to verify the
date at the time he entered it into his Rolodex file. Nor did he keep a list
of certified applicators in his office, although EPA makes such lists avail-
able on request. Tr. at 83–84. We agree with the Presiding Officer that Mr.
Cronk “was negligent when he misread the badly smudged card in trans-
ferring information to the ‘Rolodex’ and/or when he proceeded with the
sale at a time when he could not have been certain that Mr. Piland was
a certified applicator.” Initial Decision at 20.
We have repeatedly held that the Agency retains discretion as to
when a warning may be issued instead of a penalty. Green Thumb, 6
E.A.D. at 799–800. In any event, we see no abuse of that discretion here,
where the Presiding Officer found that Mr. Cronk failed to exercise due
care. See FIFRA § 14(a)(4) (“Whenever the Administrator finds that the
violation occurred despite the exercise of due care or did not cause sig-
nificant harm to health or the environment, the Administrator may issue
a warning in lieu of assessing a penalty.”).
Moreover, we agree with the Presiding Officer that, even though Mr.
Cronk’s violation may not have directly caused environmental harm, a
civil penalty is appropriate for its deterrent effect where a violator, par-
ticularly a dealer, by acting negligently, undermines strict compliance and
thereby weakens the fulfillment of statutory goals.14
14
In arriving at his conclusion that a penalty rather than a warning was appropriate,
the Presiding Officer noted that “Congress must have concluded that the risk a restricted
use pesticide might be applied by a noncertified applicator would be enhanced, if sales of
restricted use pesticides to persons who were not certified were permitted, other than
under regulations promulgated by the Administrator.” Initial Decision at 18. Thus, he con-
sidered the prospective harm to the FIFRA regulatory scheme of not penalizing “casual atti-
tudes toward compliance.” We have previously held “harm to the program alone is suffi-
cient to support a substantial penalty.” In re Predex Corp., 7. E.A.D. 591, 601, (EAB 1998);
Green Thumb, 6 E.A.D. at 800–01.
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ARAPAHOE COUNTY WEED DISTRICT 393
We affirm the Presiding Officer’s penalty assessment of $2,400 since
it is within the range prescribed by the ERP and since the Presiding Officer
has provided a reasonable explanation for the penalty amount. See In re
Johnson Pac., Inc., 5 E.A.D. 696, 702 (EAB 1995). The Weed District’s argu-
ment that the assessed penalty is disproportionately high when compared
to penalty assessments in other FIFRA cases lacks merit. The cases cited
by the Weed District are clearly distinguishable. In both In re Kay Dee
Feed Division, Kay Dee Feed Company, 2 E.A.D. 646 (CJO 1988), in which
the respondent was assessed a penalty of $1,200 for six pesticide sales that
violated FIFRA, and In re Custom Chem. & Agric. Consulting, Inc., 2 E.A.D.
748 (CJO 1989), in which the respondent was assessed a penalty of $5,500
for twenty one pesticide sales that violated FIFRA, the penalty assessments
were influenced by evidence specific to the financial circumstances of the
respondents in those cases, and are not relevant here. The Weed District’s
reliance on In re Green Thumb Nursery, Inc., 6 E.A.D. 782 (EAB 1997), a
more recent decision, is also misplaced because it involved a violation of
a different statutory provision.
III. CONCLUSION
Having determined that Arapahoe County Weed District violated
FIFRA § 12(a)(2)(F) as alleged in the Complaint, we uphold the assess-
ment of a penalty of $2,400 against it in accordance with section 14(a)(1)
of the Act (7 U.S.C. § 136l(a)(1)). Payment of the penalty shall be made
by mailing or delivering a certified or cashier’s check in the amount of
$2,400 payable to the Treasurer of the United States to the following
address within 60 days of the date of this order:
Regional Hearing Clerk
U.S. EPA, Region VIII
P.O. Box 360869
Pittsburgh, PA 15251–6859
So ordered.
VOLUME 8
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