Document 5LbrxD3xo64GB19b3vbnm92nR

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 1201 Elm Street, Suite 500 Dallas, Texas 75270 FILED 09 JUL 24 PM 03:29 REGIONAL HEARING CLERK EPA REGION 6 In the Matter of FSC Enterprises, LLC. Dallas, TX Respondent. Docket No. FIFRA-06-2024-0376 CONSENT AGREEMENT AND FINAL ORDER Preliminary Statement The U.S. Environmental Protection Agency, Region 6 ("EPA" or "Complainant"), and FSC Enterprises, LLC., Feeder Supply Company ("Respondent") have agreed to a settlement of this action before the filing of a complaint, and thus this action is simultaneously commenced and concluded pursuant to Rules 22.13(b) and 22.18(b)(2) of the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of Permits, 40 C.F.R. 22.13(b) and 22.18(b)(2). Jurisdiction 1. This proceeding is an administrative action for the assessment of civil penalties instituted pursuant to Section 14 of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. 1361. 2. This Consent Agreement and Final Order serves as notice that EPA has reason to believe that Respondent has violated Section 12 of FIFRA, 7 U.S.C. 136j. In the Matter of FSC Enterprises, LLC. Docket No. FIFRA-06-2024-0376 3. Compliance with all the terms and conditions of this CAFO shall only resolve the Respondent's liability for Federal civil penalties for those violations and facts which are set forth herein. Parties 4. Complainant is the Director of Enforcement and Compliance Assurance Division of EPA, Region 6, as duly delegated by the Administrator of the EPA and the Regional Administrator, EPA, Region 6. 5. Respondent is FSC Enterprises, LLC., Feeder Supply Company, a corporation incorporated in the state of Texas and conducting business in the state of Texas. Statutory and Regulatory Background 6. Congress enacted FIFRA, 7 U.S.C. 136 et. seq., in 1947 and amended it in 1972 and in 1996. The general purpose of FIFRA is to provide the basis for regulation, sale, distribution, and use of pesticides in the United States. 7. Section 12{a)(l)(A) of FIFRA, 7 U.S.C. 136j(a)(l)(A), states that it shall be unlawful for any person to distribute or sell any pesticide that is not registered under Section 3 of FIFRA, 7 U.S.C. 136a, or whose registration has been cancelled or suspended. 8. Pursuant to the regulation at 40 C.F.R. 152.15, in relevant part, no person may distribute or sell any pesticide product that is not registered under the Act, except as provided in 40 C.F.R. 152.20, 152.25, and 152.30. A pesticide is any substance (or mixture of substances) intended for a pesticidal purpose, i.e., use for the purpose of preventing, destroying, repelling, or mitigating any pest or use as a plant regulator, defoliant, or desiccant. A substance is considered to be intended for a pesticidal purpose, and thus to be a pesticide Page 2 of 11 In the Matter of FSC Enterprises, LLC. Docket No. FIFRA-06-2024-0376 requiring registration, if the person who distributes or sells the substance claims, states, or implies (by labeling or otherwise) that the substance (either by itself or in combination with any other substance) can or should be used as a pesticide. 9. Section 12(a)(l)(E) of FIFRA, 7 U.S.C. 136j(a)(l)(E), states it shall be unlawful for any person to distribute or sell any pesticide that is adulterated or misbranded. 10. Section 14(a)(l) of FIFRA, 7 U.S.C. 136l(a)(l), authorizes a civil penalty of not more than $5,000 for each offense. The Debt Collection Improvement Act of 1996, 31 U.S.C. 3701, as amended, and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, 28 U.S.C. 2461, and implementing regulations at 40 C.F.R. Part 19, increased these statutory maximum penalties to $24,255 for violations that occur after November 2, 2015, and for which penalties are assessed on or after December 27, 2023. Definitions 11. Section 2(s) of FIFRA, 7 U.S.C. 136(s), defines "person" to mean any individual, partnership, association, corporation, or any organized group of persons whether incorporated or not. 12. Section 2(u) of FIFRA, 7 U.S.C. 136(u), defines "pesticide" to mean any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest. 13. Section 2(t) of FIFRA, 7 U.S.C. 136(t), defines "pest" to mean (1) any insect, rodent, nematode, fungus, weed, or (2) any other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other micro-organism (except viruses, bacteria, or other micro- Page 3 of 11 In the Matter of FSC Enterprises, LLC. Docket No. FIFRA-06-2024-0376 organism on or in living man or other living animals) which the Administrator declares to be a pest under Section 25(c)(l). 14. Section 2(gg) of FIFRA, 7 U.S.C. 136(gg), defines "to distribute or sell" to mean to distribute, sell, offer for sale, hold for distribution, hold for sale, hold for shipment, ship, deliver for shipment, release for shipment, or receive and (having so received) deliver or offer to deliver. 15. Section 2(p)(l) of FIFRA, 7 U.S.C. 136(p)(l) defines "label" to mean the written, printed, or graphic matter on, or attached to, the pesticide or device of any of its containers or wrappers. 16. Section 2(p)(2) of FIFRA, 7 U.S.C. 136(p)(2) defines "labeling" to mean all labels and all other written, printed, or graphic matter - (A) accompanying the pesticide or device at any time; or (B) to which reference is made on the label or in literature accompanying the pesticide or device. EPA Findings of Fact and Conclusions of Law 17. Respondent is, and at all times referred to herein was, a "person" as defined by Section 2(s) of FIFRA, 7 U.S.C. 136(s). 18. Respondent owns and operates a pest control company located at: 2703 S. Lancaster Road, Dallas, TX 75216 (the "Facility"). 19. Pursuant to Section 9 of FIFRA, 7 U.S.C. 136g, EPA conducted an inspection of the Facility on May 23, 2023, to determine Respondent's compliance with FIFRA and the federal regulations promulgated thereunder (the "Inspection"). Page 4 of 11 In the Matter of FSC Enterprises, LLC. Docket No. FIFRA-06-2024-0376 20. During the Inspection, EPA discovered that Respondent distributed or sold, as those terms are defined by Section 2{gg) of FIFRA, 7 U.S.C. 136{gg), at the Facility one pesticide product without registry sticker: (1) Flea Away- Diatomaceous Earth (the "Product"). EPA Findings of Violation 21. The facts stated in the EPA Findings of Fact and Conclusions of Law above are herein incorporated. 22. Complainant hereby states and alleges that Respondent has violated FIFRA and federal regulations promulgated thereunder as follows: Count 1- Distributing or Selling Unlabeled Pesticides 23. At the time of the Inspection, the label for Respondent's product, Flea AwayDiatomaceous Earth - stated it was a pesticide product. 24. Because Respondent claimed by labeling that the Flea Away product can or should be used as a pesticide, the product was intended for a pesticidal purpose and required registration pursuant to Section 3 of FIFRA, 7 U.S.C. 136a. 25. At the time of the inspection, Flea Away did not have a valid registration sticker, as required under Section 3 of FIFRA, 7 U.S.C. 136a. 26. Respondent's distribution or sale of Flea Away, a pesticide that was not properly labeled under Section 3 of FIFRA, 7 U.S.C. 136a, is a violation of Section 12{a)(l)(A) of FIFRA, 7 U.S.C. 136j(a)(l)(A). CONSENT AGREEMENT 27. For the purpose of this proceeding, as required by 40 C.F.R. 22.18{b)(2), Respondent: Page 5 of 11 In the Matter of FSC Enterprises, LLC. Docket No. FIFRA-06-2024-0376 a. admits the jurisdictional allegations set forth herein; b. neither admits nor denies the specific factual allegations stated herein; c. consents to the issuance of any specified compliance or corrective action order; d. consents to any conditions specified herein; e. consents to any stated Permit Action; f. waives any right to contest the allegations set forth herein; and g. waives its right to appeal the Final Order accompanying this Consent Agreement. 28. Respondent consents to the issuance of this Consent Agreement and Final Order and consents for the purposes of settlement to the payment of the civil penalty specified herein. 29. Respondent and EPA agree to conciliate this matter without the necessity of a formal hearing and to bear their respective costs and attorneys' fees. Penalty Payment 30. For the reasons set forth above, the Respondent has agreed to pay a civil penalty which has been determined in accordance with Section 14{a) of FIFRA, 7 U.S.C. 1361{a), which authorizes EPA to assess a civil penalty of up to $24,255 for each offense. Upon consideration of the entire records herein, including the Findings of Fact and Conclusions of Law, which are hereby adopted and made a part hereof, and EPA's "FIFRA Enforcement Response Policy'' dated December 2009 (as adjusted for inflation) which requires the Complainant to consider the appropriateness of such penalty to the size of the business of the person charged, the effect on Page 6 of 11 In the Matter of FSC Enterprises, LLC. Docket No. FIFRA-06-2024-0376 the person's ability to continue in business, and the gravity of the violation, it is ORDERED that Respondent be assessed a civil penalty of ZERO DOLLARS ($0.00). EPA has considered the appropriateness of the penalty pursuant to Section 14(a)(4} of FIFRA, 7 U.S.C. 136l(a)(4}, including economic circumstances affecting Respondent's ability to continue in business, and has determined that the appropriate penalty for the violation is zero dollars ($0.00). Effect of Settlement and Reservation of Rights 31. Complainant reserves the right to take any enforcement action with respect to any other violations of the FIFRA or any other applicable law. 32. The effect of settlement described in the immediately preceding paragraph is conditioned upon the accuracy of Respondents' representations to EPA, as memorialized in paragraph directly below. 33. Respondent certifies by the signing of this Consent Agreement that it is presently in compliance with all requirements of FIFRA and its implementing regulations. 34. This Consent Agreement shall not in any case affect the right of the Agency or the United States to pursue appropriate injunctive or other equitable relief or criminal sanctions for any violations of law. This Consent Agreement and Final Order does not waive, extinguish, or otherwise affect Respondent's obligation to comply with all applicable provisions of the FIFRA and regulations promulgated thereunder. 35. Complainant reserves the right to enforce the terms and conditions of this Consent Agreement and Final Order. Page 7 of 11 General Provisions In the Matter of FSC Enterprises, LLC. Docket No. FIFRA-06-2024-0376 36. By signing this Consent Agreement, the undersigned representative of Respondent certifies that he or she is fully authorized to execute and enter into the terms and conditions of this Consent Agreement and has the legal capacity to bind the party it represents to this Consent Agreement. 37. This Consent Agreement shall not dispose of the proceeding without a final order from the Regional Judicial Officer or Regional Administrator ratifying the terms of this Consent Agreement. This Consent Agreement and Final Order shall be effective upon the filing of the Final Order by the Regional Hearing Clerk for EPA, Region 6. Unless otherwise stated, all time periods stated herein shall be calculated in calendar days from such date. 38. This Consent Agreement and Final Order shall apply to and be binding upon Respondent and Respondent's agents, successors and/or assigns. Respondent shall ensure that all contractors, employees, consultants, firms, or other persons or entities acting for Respondent with respect to matters included herein comply with the terms of this Consent Agreement and Final Order. 39. The EPA and Respondent agree to the use of electronic signatures for this matter pursuant to 40 C.F.R. 22.6. EPA and Respondent further agree to electronic service of this Consent Agreement and Final Order by email to the following: To EPA: sharma.ravi@epa.gov To Respondent: fscsusie@gmail.com Page 8 of 11 RESPONDENT: FSC Entetptist$, LLC. Datt: 7 /zjtP1,'f "1 tllf 11,,mtt o/ 1SC bllftPritn, UC OOtto1 No. IIIIIA~4.f'II -- ~ Stannure ,,.5~ ,.f '"",f,f~~ Name /flMA ,rtle COMPlAINANT: U.S. ENVIRONMENrAl PR01'C11ON AGENCY o.te: JYIY 3, 2024 Chefv!T.Sea,er DIHc:tCM' Enfore.mfnt and Complia~ Anurance Oivi$ion U.S. EPA, Repon 6 FINAL ORDER In the Matter of FSC Enterprises, LLC. Docket No. FIFRA-06-2024-0376 Pursuant to Section 14(a) of FIFRA, 7 U.S.C. 136/(a), and the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/ Termination or Suspension of Permits, 40 C.F.R. Part 22, the foregoing Consent Agreement resolving this matter is hereby ratified and incorporated by reference into this Final Order. Respondent is ORDERED to comply with all of the terms of the Consent Agreement. In accordance with 40 C.F.R. 22.31(b), the effective date of the foregoing Consent Agreement and this Final Order is the date on which this Final Order is filed with the Regional Hearing Clerk. This Final Order shall resolve only those causes of action alleged in the Consent Agreement. Nothing in this Final Order shall be construed to waive, extinguish, or otherwise affect Respondents' (or its officers, agents, servants, employees, successors, or assigns) obligation to comply with all applicable federal, state, and local statutes and regulations, including the regulations that were the subject of this action. IT IS SO ORDERED. Ryland, Renea Digitally signed by Ryland, Renea Date: 2024.07.0915:19:03 -05'00' Thomas Rucki Regional Judicial Officer Date Page 10 of 11 CERTIFICATE OF SERVICE In the Matter of FSC Enterprises, LLC. Docket No. FIFRA-06-2024-0376 I certify that a true and correct copy of the foregoing Consent Agreement and Final Order was filed with me, the Regional Hearing Clerk, U.S. EPA, Region 6, 1201 Elm Street, Dallas, Texas 75270-2102, and that I sent a true and correct copy on this day in the following manner to the addresses: Copy via Email to Complainant, EPA: sharma.ravi@epa.gov Copy via Email to Respondent: fscsusie@gmail.com LORENA VAUGHN Digitally signed by LORENA VAUGHN Date: 2024.07.09 15:29:54 -05'00' Regional Hearing Clerk U.S. EPA, Region 6 Page 11 of 11