Document M9MaGXGw9J0mJNyZ6NYbmpZ9

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 1201 Elm Street, Suite 500 Dallas, Texas 75270 FILED 11 APR 24 AM 09:06 REGIONAL HEARING CLERK EPA REGION 6 In the Matter of El Mercadito Carniceria, LLC Respondent. Docket No. FIFRA-06-2024-0397 CONSENT AGREEMENT AND FINAL ORDER Preliminary Statement The U.S. Environmental Protection Agency, Region 6 ("EPA" or "Complainant"), and El Mercadito Carn iceria, LLC ("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 adm inistrative 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. 136j. In the Matter of El Mercadito Carniceria, LLC Docket No. FIFRA-06-2024-0309 Parties 3. Complainant is the Director of Enforcement and Compliance Assurance Division of the EPA, Region 6, as duly delegated by the Administrator of the EPA and the Regional Administrator, EPA, Region 6. 4. Respondent is El Mercadito Carniceria, LLC, a corporation incorporated in the state of Texas and conducting business in the state of Texas. 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, 152.25, and 152.30. A pesticide is any substance (or mixtureof 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 requiring registration, if the person who distributes or sells the substance claims, states, or Page 2 of 13 In the Matter ofEl Mercadito Carniceria, LLC Docket No. FIFRA-06-2024-0309 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. 8. Section 14(a)(l) of FIFRA, 7 U.S.C. 136/(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 9. 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. 10. 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. 11. 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 microorganism on or in living man or other living animals) which the Administrator declares to be a pest under Section 25(c)(l). 12. 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, Page 3 of 13 In the Matter of El Mercadito Carniceria, LLC Docket No. FIFRA006-2024-0309 deliver for shipment, release for shipment, or receive and (having so received) deliver or offer to deliver. 13. 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. 14. 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 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. 136(s). 16. Respondent owns and operates a grocery store located at: 100 W . Pioneer E. Arkansas Lane #138, Arlington, TX 76010 (the "Facility"). 17. Pursuant to Section 9 of FIFRA, 7 U.S.C. 136g, the EPA conducted an inspection of the Facility on May 30, 2023, to determine Respondent's compliance with FIFRA and the federal regulations promulgated thereunder (the "Inspection"). 18. 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 the following products that are unregistered pesticides: (1) Fabuloso Bicarbanato + Citricos; (2) Fabuloso Antibacterial Y Antiviral Energia Naranja; (3) Fabuloso Antibacterial Y Antiviral Mar Fresco; (4) Fabuloso Antibacterial Y Antiviral Fresca Lavanda; (5) Fabuloso Antibacterial Page4 of 13 In the Matter ofEl Mercadito Carniceria, LLC Docket No. FIFRA-06-2024-0309 Y Antiviral Pasion de Frutas; (6) Fabuloso Alternativa Al Chiaro; (7) Fabuloso Antibacterial Y Antiviral Fresco Amanecer; (8) Arcoiris All Purpose Cleaner Orange; and (9) Clorox (collectively the "Products"). 19. On July 5, 2023, the EPA sent Respondent a Stop Sale, Use, or Removal Order. EPA Findings of Violation 20. The facts stated in the EPA Findings of Fact and Conclusions of Law above are herein incorporated. 21. Complainant hereby states and alleges that Respondent has violated FIFRA and federal regulations promulgated thereunder as follows: Count 1 22. At the time of the Inspection, the label for Respondent's product, Fabuloso Bicarbanato + Citricos, stated that the product is "Bacterial and Antiviral," that it "Eliminates virus and bacteria," and that it "Eliminates 99.99% of bacteria and viruses" (all in Spanish), implying that the product could or should be used as a pesticide. 23. Because Respondent claimed by labeling that the Fabuloso Bicarbanato + Citricos 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. 24. At the time of the inspection, the Fabuloso Bicarbanato + Citricos product was not registered pursuant to Section 3 of FIFRA, 7 U.S.C. 136a. 25. Respondent's distribution or sale of Fabuloso Bicarbanato + Citricos, a pesticide that was not registered 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). Page 5 of 13 In the Matter of El Mercodito Carniceria, LLC Docket No. FIFRA-06-2024-0309 CONSENT AGREEMENT 26. For the purpose of this proceeding, as required by 40 C.F.R. 22.18(b)(2), Respondent: 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 Permit Action; g. waives any right to contest the allegations set forth herein; and h. waives its right to appeal the Final Orde-r accompanying this Consent Agreement. 27. Respondent consents to the issuance of this Consent Agreement and Final Order and consent for the purposes of settlement to the payment of the civil penalty specified herein. 28. 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 29. Respondent agrees that, in settlement of the _claims alleged herein, Respondent shall pay a civil penalty of one thousand two hundred twenty-six dollars ($1,226.00), as set forth below. Page 6 of 13 In the Matter ofEl Mercadito Carniceria, LLC Docket No. FIFRA-06-2024-0309 30. Respondent shall pay the penalty 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 http://www.epa.gov/financial/makepayment. 31. A copy of the check or other infor'mation confirming payment shall simultaneously be sent to the following: Lorena S. Vaughn Regional Hearing Clerk U.S. Environmental Protection Agency, Region 6 1201 Elm Street, Suite 500 (ORC) Dallas, Texas 75270-2102 vaughn.lorena@epa.gov; and Blake Sieminski 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 Sieminski.Blake@epa.gov 32. Respondent understands that its failure to timely pay any portion of the civil penalty 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 Page 7 of 13 In the Matter of El Mercadito Carniceria, LLC Docket No. FIFRA-06-2024-0309 or stipulated penalty and any accrued interest are paid in full. 31 C.F.R. 901.9(b)(l). 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 of debt collection including processing and handling costs, and a non-payment penalty charge of six percent (6%) per year compounded annualry will be assessed on any portion of the debt which remains delinquer:,t more than ninety (90) days after payment is due. 31 U.S.C. 3717(e)(2). Effect of Settlement and Reservation of Rights 33. Full payment of the penalty 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 enforcement action with respect to any other violations of the FIFRA or any other applicable law. 34. 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. 35. Respondent certifies by the signing of this Consent Agreement that it is presently in compliance with all requirements of FIFRA and its implementing regulations. 36. 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 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. Page 8 of 13 In the Matter of El Mercadito Carniceria, LLC Docket No. FIFRA-06-2024-0309 37. Complainant reserves the right to enforce the terms and conditions of this Consent Agreement and Final Order. General Provisions 38. 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. 39. 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. 40. The penalty specified herein shall represent civil penalties assessed by EPA and shall not be deductible for purposes of Federal, State and local taxes. 41. This Cons~nt 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. 42. The EPA and Respondent agree to the use of electronic 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: Page 9 of 13 To EPA: Henley.Hollis@epa.gov In the Matter of El Mercadito Carniceria, LLC Docket No. FIFRA-06-2024-0309 To Respondent: varart35 7@gmai/.com elmercaditosupermarket201l@gmail.com Page 10 ~f 13 RESPONDENT: EL MERCADITO CARNICERIA, LLC Date: .,.,.4.1.a...._n,._4_ _ _ _ __ Signature In the Matter ofEl Mercadito Carniceria, LLC Docket No. FIFRA-06-2024-0309 Name Title COMPLAINANT: U.S. ENVIRONMENTAL PROTECTION AGENCY Date: q /1b \ ~)\ Cc~~ o/ Director Enforcement and Compliance Assurance Division U.S. EPA, Region 6 Page 11 of 13 In the Matter of El Mercadito Carniceria, LLC Docket No. FIFRA-06-2024-0309 FINAL ORDER Pursuant to Section 14(a) of FIFRA, 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, 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. THOMAS Digitally signed by THOMAS RUCKI _R_U__C_K_I________-0_4_'00_' ___________ Date: 2024.04.11 09:31 :39 Thomas Rucki Regional Judicial Officer ________________ Date Page 12 of 13 In the Matter of El Mercadito Carniceria, LLC Docket No. FIFRA-06-2024-0309 CERTIFICATE OF SERVICE 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, Suite 500, Dallas, Texas 75270-2102, and that I sent a true and correct copy on this day in the following manner to the email addresses: Copy via Email to Complainant, EPA: Henley.Hollis@epa.gov Copy via Email to Respondent: varart357@gmail.com elmercaditosupermarket2011@gmail.com El Mercadito Carniceria, LLC 100 W. Pioneer E. Arkansas Lane #138 Arlington, Texas 76010 LORENA Digitally signed by LORENA VAUGHN _V_A__U_G__H_N_______-_05_'0_0'____________ Date: 2024.04.11 09:05:55 Regional Hearing Clerk EPA Region 6 Page 13 of 13