Document 84YqqxY7pxZRBaX4YNXO9kba

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY FILED REGION6 1201 Elm Street, Suite 500 Dallas, Texas 75270 19DEC23 AM11:44 REGIONAL HEARING CLERK EPA REGION 6 In the Matter of Complete Environmental Products, Inc. Respondent. Docket No. FIFRA-06-2024-0307 CONSENT AGREEMENT AND FINAL ORDER Preliminary Statement The U.S. Environmental Protection Agency, Region 6 ("EPA" or "Complainant"), and Complete Environmental Products, Inc. ("Respondent") have agreed to a settlement ofthis action before the filing of a complaint, and thus this action is simultaneously commenced and concluded pursuant to Rules 22.13(b) and 22. I8(b)(2) ofthe Consolidated Rules of Practice Governing the Administrative Assessment ofCivil Penalties and the Revocationffermination or Suspension of Permits, 40 C.F.R. 22.13(b) and 22. I8(b)(2). Jurisdiction I. 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. 136/. 2. This Consent Agreement and Final Order serves as notice that the EPA has reason to believe that Respondent has violated Section 12 of FIFRA, 7 U.S.C. I36j. In !lie Matier ofComplele Environmen/al Products, Inc. Doc/eel No. FIFRA-06-2024-0307 Parties 3. Complainant is the Director of Enforcement and Compliance Assurance Division of the EPA, Region 6, as duly delegated by the Administrator ofthe EPA and the Regional Administrator, EPA, Region 6. 4. Respondent is Complete Environmental Products, Inc., a company incorporated in and conducting business in the state ofTexas. Statutory and Regulatory Background 5. 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. 6. 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. 7. 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, J52.25, and 152.30. A pesticide is any substance (or mixture of substances) intended for a pesticidal purpose, i.e., used for the purpose ofpreventing, 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 requiring registration, if the person who distributes or sells the substance claims, states, or implies (by labeling or otherwise) that the substance (either by itselfor in combination with any other substance) can or should be used as a pesticide. Page 2of 13 In the Matter ofComplete Environmental Products, Inc. Docket No. FIFRA-06-1024-0107 8. Section I4(a)( I) of FIFRA, 7 U.S.C. 136/(a)(I), authorizes a civil penalty ofnot more than $5,000 for each offense. The Debt Collection Improvement Act of 1996, 31 U.S.C. 370I, as amended, and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of2015, 28 U.S.C. 2461, and implementing regulations at 40 C.F.R. Part 19, increased these statutory maximum penalties to $23,494 for violations that occur after November 2, 2015, and for which penalties are assessed on or after January 6, 2023. Definitions 9. Section 2(s) of FIFRA, 7 U.S.C. I36(s), defines "person" to mean any individual, partnership, association, corporation, or any organized group ofpersons whether incorporated or not. I0. Section 2(u) of FIFRA, 7 U.S.C. I36(u), defines "pesticide" to mean any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest. 11. Section 2(t) of FIFRA, 7 U.S.C. I36(t), defines "pest" to mean (I) 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-organism on or in living man or other living animals) which the Administrator declares to be a pest under Section 25(c)(I). 12. Section 2(gg) of FIFRA, 7 U.S.C. I36(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. Pagc3ofl3 In Jhe Maller ofComplete Environmental Producls. Inc. Docket No. Flf'RA-06-2024-0107 13. Section 2(p)(I) of FIFRA, 7 U.S.C. 136(p)(I) defines " label" to mean the written, printed, or graphic matter on, or attached to, the pesticide or device ofany of its containers or wrappers. 14. Section 2(p)(2) ofFIFRA, 7 U.S.C. l36(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 15. Respondent is, and at all times referred to herein was, a "person" as defined by Section 2(s) of FIFRA, 7 U.S.C. I36(s). 16. Respondent owns and operates a retail wholesale facility located at: 3500 Pasadena Freeway, Pasadena, Texas 77503 (the "Facility"). I 7. On June I, 2023, the EPA requested, and Respondent provided documentation and information concerning Respondent's compliance with FIFRA and the federal regulations promulgated thereunder (the " Investigation"). As part ofthe Inspection, the EPA requested, and Respondent provided documentation and information concerning Respondent's distribution of pesticidal products. 18. Beginning on or about August 14, 2020, the Respondent offered for sale, distributed, or sold, as those tenns are defined by Section 2(gg) of FIFRA, 7 U.S.C. 136(gg), the product "Acme Disinfectant/Sanitizer Wipes" (the "Product"). 19. The label for the Product states that it "Kills 99.9% ofGerms & Viruses." 20. Germs are microorganisms that cause disease. Microorganisms are a "pest" as that term is defined by Section 2(t) of FIFRA, 7 U.S.C. I36(t). Page 4ofl3 In the Maller ofComplete Environmental Products, Inc. Docket No. FIFRA-06-2024-0107 21. The Product is a " pesticide" as that tenn is defined by Section 2(u) of FIFRA, 7 U.S.C. I 36(u), because it is a substance intended for preventing, destroying, repelling, or mitigating pests. 22. The Product is a "pesticide" as that tenn is further defined at 40 C.F.R. 152.15, which requires registration pursuant to Section 3 of FIFRA, 7 U.S.C. 136a, because it is a substance intended for a pesticidal purposes. 23. At the time the Product was distributed or sold by Respondents, the Product was not registered pursuant to Section 3 of FIFRA, 7 U.S.C. 136a. 24. On September 18, 2023, the EPA sent Respondent a Notice of Potential Violation and Opportunity to Confer letter. On October 18, 2023, the EPA responded to the documentation and infonnation received from Respondent as a result ofthe opportunity to confer and articulated the EPA's position concerning Respondent's compliance with PIFRA. EPA Findings of Violation 25. The facts stated in the EPA Findings of Fact and Conclusions of Law above are herein incorporated. 26. Complainant hereby states and alleges that Respondent has violated Fl FRA and federal regulations promulgated thereunder as follows: Count I 27. At the time of the Inspection, the label for the product, Acme Disinfectant/Sanitizer Wipes, stated that the product "Kills 99.9% ofGenns &Viruses", implying that the product could or should be used as a pesticide. In the Matier ofComplete Environmental Products, Inc. Docket No. FIFRA-06-2024-0307 28. Because the Product's labeling claimed that the Acme Disinfectant/Sanitizer Wipes 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. 29. At the time ofthe investigation, Acme Disinfectant/Sanitizer Wipes product was not registered pursuant to Section 3 of FIFRA, 7 U.S.C. 136a. 30. Respondent's distribution or sale of Acme Disinfectant/Sanitizer Wipes, a pesticide that is not registered under Section 3 of FIFRA, 7 U.S.C. 136a, is a violation of Section 12(a)(l)(A)ofFIFRA, 7 U.S.C. 136j(a)(IXA). CONSENT AGREEMENT 31. For the purpose of this proceeding, as required by 40 C.F.R. 22.18(b)(2), Respondents. a. admits the jurisdictional allegations set forth herein; b. neither admits nor denies the specific factual allegations stated herein; c. consents to the assessment of a civil penalty, as stated herein; d. consents to the issuance of any specified compliance or corrective action order; e. consents to any conditions specified herein; f. consents to any stated Pennit Action; g. waives any right to contest the allegations set forth herein; and h. waives its right to appeal the Final Order accompanying this Consent Agreement. Page 6of 13 /11 the Malter ofComplete Environmental Products, Inc. Docket No. FIFRA-06-2024-0107 32. Respondent consents to the issuance ofthis Consent Agreement and Final Order and consent for the purposes of settlement to the payment ofthe civil penalty settlement specified herein. 33. 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 34. Respondent agrees that, in settlement of the claims alleged herein, Respondent shall pay a civil penalty of Seven Thousand and Seven Hundred dollars ($7,700.00), as set forth below. 35. Respondent shall pay the penalty settlement amount within thirty (30) days of receiving notice of the effective date of the Final Order. Such payment shall identify Respondent by name and docket number and shall be by certified or cashier's check made payable to the "United States Treasury" and sent to: U.S. Environmental Protection Agency Fines and Penalties Cincinnati Finance Center PO Box 979078 St. Louis, Missouri 63197-9000 or by alternate payment method described at ht1p:l/www.epa.govlfinancia/lmakepayment. 36. A copy ofthe check or other information confirming payment shall simultaneously be sent to the following: Lorena S. Vaughn Regional Hearing Clerk U.S. Environmental Protection Agency, Region 6 120I Elm Street, Suite 500 (ORC) Dallas. Texas 75270-2102 vaughn.lorena@epa.gov; and Page 7 of 13 In the Maller ofComplete Environmental Products, Inc. Docket No. FIFRA-06-ZOU-0307 Kiera Hancock Enforcement and Compliance Assurance Division Waste Enforcement Branch U.S. Environmental Protection Agency, Region 6 1201 Elm Street, Suite 500 (ECDST) Dallas, Texas 75270-2101 hancock.kiera@epa.gov 37. Respondent understands that its failure to timely pay any portion of the civil penalty settlement may result in the commencement of a civil action in Federal District Court to recover the full remaining balance, along with penalties and accumulated interest. In such case, interest shall begin to accrue on a civil or stipulated penalty from the date of delinquency until such civil or stipulated penalty and any accrued interest arc paid in full. 31 C.F.R. 901 .9(b)(I ). Interest will be assessed at a rate of the United States Treasury Tax and loan rates in accordance with 31 U.S.C. 3717. Additionally, a charge will be assessed to cover the costs ofdebt collection including processing and handling costs, and a non-payment penalty charge of six percent (6%) per year compounded annually will be assessed on any portion of the debt which remains delinquent more than ninety (90) days after payment is due. 31 U.S.C. 3717(e)(2). Effect ofSettlement and Reservation of Rights 38. Full payment ofthe penalty settlement amount proposed in this Consent Agreement shall only resolve Respondent's liability for federal civil penalties for the violations alleged herein. Complainant reserves the right to take any enforceme.nt action with respect to any other violations of the FIFRA or any other applicable law that do not directly or indirectly relate to or arise out of the violations alleged herein. 39. The effect of settlement described in the immediately preceding paragraph is conditioned upon the accuracy of Respondents' representations to the EPA, as memorialized in paragraph directly below. Pogc 8of 13 In the Matter ofComplete Environmental Products, Inc. Docket No. FIFRA-06-2024-0307 40. Respondent certifies by the signing of this Consent Agreement that it is presently in compliance with all requirements of FIFRA and its implementing regulations. Respondent does not admit or deny the factual allegations stated herein. 41. Full payment of the penalty proposed in 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 reliefor 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 ofthe FIFRA and regulations promulgated thereunder. 42. Complainant reserves the right to enforce the tenns and conditions ofthis Consent Agreement and Final Order. General Provisions 43. By signing this Consent Agreement, the undersigned representative of Respondent certifies that he or she is fully authorized to execute and enter into the tenns and conditions ofthis Consent Agreement and has the legal capacity to bind the party it represents to this Consent Agreement. 44. This Consent Agreement shall not dispose ofthe proceeding without a final order from the Regional Judicial Officer or Regional Administrator ratifying the tenns of this Consent Agreement. This Consent Agreement and Final Order shall be effective upon the filing ofthe 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. 45. The penalty settlement specified herein shall represent civil penalties assessed by EPA and shall not be deductible for purposes of Federal, State, and local taxes. Page 9of 13 In the Maller ofComplete Environmental Products, Inc Docket No. FIFRA-06-2024-0307 46. 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, finns, 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. 47. The EPA and Respondent agree to the use ofelectronic signatures for this matter pursuant to 40 C.F.R. 22.6. The EPA and Respondent further agree to electronic service of this Consent Agreement and Final Order by email to the following: To EPA: incdonald.ashey@epa.gov To Respondent: PaulHeyburn@mehaffyweber.com Page 10ofl3 In the Mauer ofComplele Environmental Products, Inc. Docket No. FIFRA-06-W14-0307 RESPONDENT: COMPLETE ENVIRONMENTAL PRODUCTS, INC. Date: l't-{l,~l.J ~,&JiJJ- S1gnature l CJ Name "'6 'i !Jo,_,.,~-+ Title COMPLAINANT: U.S. ENVIRONMENTAL PROTECTION AGENCY Date: December 14, 2023 Digitally signed l>y CHERYL SEAGER Dato: 2023.12.14 11:31:17 -06'00' Cheryl T. Seager Director Enforcement and Compliance Assurance Division U.S. EPA, Region 6, Dallas, Texas Page II of13 In 1he Maller ofComplete Environmental Products, Inc. Dock.el No. FIFRA-()62024-0107 FINAL ORDER Pursuant to Section 14(a) of FIFRA, 7 U.S.C. 136/(a), and the Consolidated Rules of Practice Governing the Administrative Assessment ofCivil Penalties and the Revocation/ Tennination or Suspension of Pennits, 40 C.F.R. Part 22, the foregoing Consent Agreement resolving this matter is her,eby ratified and incorporated by reference into this Final Order. Respondent is ORDERED to comply with all ofthe terms ofthe Consent Agreement. In accordance with 40 C.F.R. 22.31 (b), the effective date ofthe 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 ofthis action. IT IS SO ORDERED. Ryland, Renea Digitally signed by Ryland. Renea Dali,: 2.023.12.18 11:20:54 06'00' Thomas Rucki Regional Judicial Officer Date Page 12ofl3 In the Matier ofComplete Environmental Products, Inc. Docket No. FIFRA.-06-2014-0307 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Consent Agreement and Final Order was delivered to the Regional Hearing Clerk, U.S . EPA, Region 6, 1201 Elm Street, Dallas, Texas 75270-2102, and that a true and correct copy was sent this day in the following manner to the addressees: Copy via Email to Complainant: mcdonald.ashley@epa.gov Copy via Email to Respondent: paulheybum@mehaffyweber.com Digitally signed by McDonald, McDonald, Ashley Ashley Date:2023.12.1912:47:34-06'00' Signed Office of Regional Counsel U.S. EPA, Region 6 Page 13 of 13