Document gordxXgoV8oNkk6mJd1aGnaQ

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 DALLAS, TEXAS FILED 16 MAR 26 PM 02:54 REGIONAL HEARING CLERK EPA REGION 6 In the Matter of FCS Distribution, LLC Houston, Texas Respondent. Docket No. FIFRA-06-2026-0364 STOP SALE, USE, OR REMOVAL ORDER A. PRELIMINARY STATEMENT 1. This Stop Sale, Use, or Removal Order (the "Order" or "SSURO") is issued pursuant to the authority of Section 13(a) of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA" or the "Act"), 7 U.S.C. 136k(a), as amended. Section 13(a) of FIFRA, 7 U.S.C. 136k(a), authorizes the Administrator of the U.S. Environmental Protection Agency to issue an order prohibiting the sale, use, or removal of any pesticide or device by any person who owns, controls, or has custody of such pesticide or device whenever there is reason to believe that, inter a/ia, the pesticide or device is in violation of any provision of FIFRA, or t he pesticide or device has been or is intended to be distributed or sold in violation of any provision of FIFRA, or when the registration has been cancelled by a final order. . 2. Complainant is the United States Environmental Protection Agency, Region 6 ("EPA"). On behalf of the Administrator and the Regional Administ rator, EPA, Region 6, the Director of the Enforcement and Compliance Assurance Division, EPA Region 6, has been delegated the authority to issue orders under Section 13(a) of the Act, 7 U.S.C. 136k(a). FCS Distribution, LLC Docket No. FIFRA-06-2026-0364 3. FCS Distribution, LLC ("FCS" or "Respondent") is a limited liability company doing business in the State of Texas. Respondent is a "person" as defined in Section 2{s) of FIFRA, 7 U.S.C. 136{s). B. STATUTORY AND REGULATORY BACKGROUND 4. 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. 5. Section 12(a)(2) of FIFRA, 7 U.S.C. 136j(a)(2), provides that it shall be unlawful for any person to violate any order issued under Section 13 of FIFRA. 6. Section 12(a)(l)(A) of FIFRA, 7 U.S.C. 136j(a)(l)(A), provides t hat it is unlawful for any person in any State to distribute or sell to any person any pesticide that is not registered under Section 3 of FIFRA, 7 U.S.C. 136a. 7. Pursuant to section 25(c)(l) of FIFRA, 7 U.S.C. 136w(c){l), the Administrator established that "an organism is declared to be a pest under circumstances that make it deleterious to man or the environment, if it is: .. . [a]ny fungus, bacterium, virus, prion, or other microorganism, except for those on or in living man or other living animals and those on or in processed food or processed animal feed, beverages, drugs ... and cosmetics ...." 40 C.F.R. 152.S(d). 8. Section 2(s) of FIFRA, 7 U.S.C. 136(s), defines "person" as any individual, partnership, association, corporation, or any organized group of persons whether incorporated or not. 2 FCS Distribution, LLC Docket No. FIFRA -06-2026-0364 9. Section 2(gg) of FIFRA, 7 U.S.C. 136(gg), defines "to distribute or sell" as 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. 10. Section 2(u) of FIFRA, 7 U.S.C. 136{u), defines "pesticide" as, inter alia, any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest and any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant. 11. Section 2{t) of FIFRA, 7 U.S.C. 136{t), defines "pest" as: (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-organism on or in living man or other living animals) which the Administrator declares to be a pest under Section 2S(c)(l). 12. The regulations at 40 C.F.R. 152.lS(a)(l) and (b) further defines the term "pesticide" as any substance intended for a pesticidal purpose, and thus requiring registration, if the person who distributes or sells the substance claims, states, or implies (by labeling or otherwise) that the substance can or should be used as a pesticide; or the substance consists of or contains one or more active ingredients and has no significant commercially valuable use as distributed or sold other than use for pesticidal purpose. 13. Section 2{p)(l) of FIFRA, 7 U.S.C. 136(p)(l), defines " label" as the written, printed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers. 3 FCS Distribution, LLC Docket No. FIFRA-06-2026-0364 14. Section 2{p)(2) of FIFRA, 7 U.S.C. 136{p)(2), defines "labeling" as 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 t he pesticide except to current official publications . . . authorized by law to conduct research in t he field of pesticides. 15. Section 2(y) of FIFRA, 7 U.S.C. 136(y) defines "registrant" as a person who has registered any pesticide pursuant to the provisions of FIFRA. C. BASIS FOR THE ORDER 16. Respondent owns and operates FCS Distribution, LLC, a supermarket/grocery store, primarily engaged in the retail sale of all sorts of canned foods and dry goods, fresh fruits and vegetables, fresh and prepared meats, snacks, disposable supplies, cleaning products, and detergents located at 4300 Pine Timbers, Suite 116, Houston, Texas 77041 (the "Facility"}. 17. Respondent is a "person" as defined in Section 2(s) of FIFRA, 7 U.S.C. 136(s). 18. Pursuant to Section 9 of FIFRA, 7 U.S.C. 136g, on January 12, 2026 EPA conducted an onsite inspection {the " Inspection") of the Facility, to determine Respondent's compliance with FIFRA and the federal regulations promulgated thereunder (the "Inspection") . 19. During the Inspection, EPA identified the products: Fabuloso Ultra Frescura Y Antiviral and Fabuloso Alternativa al Cloro (the " Products"), that were offered for sale and distribution by Respondent, and EPA reviewed its label. 20. Labeling, advertising, and other marketing materials for the Products included, but was not limited to the following claims: a. Fabuloso Ultra Frescura YAntiviral 4 FCS Distribution, LLC Docket No. FIFRA -06-2026-0364 i. This product was sold in multiple scents: Fresco Amanecer (Fresh Dawn), Mar Fresco (Fresh Sea), and Fresca Lavanda (Fresh Lavander) ii. Claims for this product include the following (translated from Spanish to English): 1. "Neutralizes Bad Odors, Viruses and Bacteria"; 2. "Neutralizes bad odors, cleans effectively, eliminates viruses and bacteria and leaves a long-lasting fragrance"; and 3. Eliminates 99.9% of P. aeruginosa, E. coli, S. aureus and S typhimurium, and of Influenza A HlNl, Human Coronavirus 0C43, Sars- CoV-2 viruses. b. Fabuloso Alternativa al Clora i. Claims for this product include the following (translated from Spanish to English): 1. "Disinfectant Formula"; and 2. "Antiviral and Antibacterial." 21. The Products are not a pesticide registered with the EPA in accordance with Section 3 of FIFRA, 7 U.S.C. 136a. 22. The label for the Products states that they "Eliminate 99.9% of P. aeruginosa, E. coli, S. aureus and S typhimurium, and of Influenza A HlNl, Human Coronavirus 0C43, Sars- CoV-2 viruses" and "Antiviral and antibacterial." 23. Viruses and bacteria are "pests" as that term is defined by Section 2(t) of FIFRA, 7 u.s.c. 136(t). s FCS Distribution, LLC Docket No. FIFRA-06-2026-0364 24. The Product is a "pesticide" as that term is defined by Section 2(u) of FIFRA, 7 U.S.C. 136(u), because it is a substance intended for preventing, destroying, repelling, or mitigating pests. 25. From the time Respondent distributed or sold the Products, it should have been registered pursuant to Section 3 of FIFRA, 7 U.S.C. 136a and 40 C.F.R. 152.15 because the Product is a substance intended for pesticidal purposes which Respondent stated when distributing, selling, and offering for sale the Product, by labeling that the Product can or should be used as a pesticide. 26. The Products were not registered pursuant to Section 3 of FIFRA, 7 U.S.C. 136a and 40 C.F.R. 152.15 at the time of the Inspection and are not registered at the time of the issuance of this Order. Sale or Distribution of Unregistered Pesticide 27. At the time of the Inspection, Respondent was engaged in the sale or distribution of the Product, which is defined by Section 2{gg) of FIFRA, 7 U.S.C. 136{gg), to include 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. 28. Distribution or sale of the Products, unregistered pesticides, was an illegal act under paragraph (A) of Section 12(a)(l) of FIFRA, 7 U.S.C. 136j{a)(l), which makes it unlawful for any person in any State to distribute or sell to any person a pesticide that is not registered under Section 3 of FIFRA, 7 U.S.C. 136a. 6 FCS Distribution, LLC Docket No. FIFRA-06-2026-0364 29. EPA has reason to believe, based on the information described above, that Respondent had distributed or sold the Products or intended to distribute or sell the Products in violation of Section 12(a)(l)(A) of FIFRA, 7 U.S.C. 136j(a)(l)(A). 30. On the basis of this finding EPA is authorized by Section 13(a) of FIFRA, 7 U.S.C. 136k(a), to issue a stop sale, use, or removal order. D. STOP SALE USE OR REMOVAL ORDER 31. Pursuant to the authority of Section 13(a) of FIFRA, 7 U.S.C. 136k(a), Respondent is hereby ORDERED to IMMEDIATELY CEASE the sale, use, or removal of the Products under its ownership, control, or custody, wherever such products are located, except in accordance with the provisions of this Order, or until such time that the Products are in compliance with FIFRA. 32. This Order shall apply to all quantities and container types and sizes of all of the Products owned, controlled or in the custody of Respondent and any agent, contractor, employee, consultant, firm successor, and/or assign or other persons or entities acting on behalf of Respondent. 33. The Products shall not be used, sold, offered for sale, held for sale, shipped, delivered for shipment, received, or having so received, shall not be delivered, offered for delivery, moved, or removed for disposal from any facility or establishment, for any reason, unless approved by EPA in writing. 34. Should Respondent seek an exception to this Order's prohibitions, Respondent may submit a request to Lee McMillan at mcmillan.lee@epa.gov, which must include: a. The purpose for which movement is being requested; 7 FCS Distribution, LLC Docket No. FIFRA-06-2026-0364 b. An accounting of the quantities of the Products to be moved, including location(s) and container size; and c. The destination location to which the Products will be moved. 35. Violation of the terms or provisions of this Order is a violation of Section 12(a)(?)(I) of FIFRA, 7 U.S.C. 136j(a)(2)(I), and may subject t he violator to CIVIL OR CRIMINAL PENALTIES as prescribed in Section 14 of FIFRA, 7 U.S.C. 1361. 36. Respondent may seek federal judicial review of the Order pursuant to section 16 of FIFRA, 7 U.S.C. 136n. 37. If any provision or authority of the Order or the application of the Order to Respondent is held by federal judicial authority to be invalid, the application to Respondent of the remainder of the Order shall remain in full force and effect and shall not be affected by such a holding. 38. The issuance of this Order shall not act as a waiver by EPA of any enforcement or other authority available to EPA under FIFRA. 39. For purposes of the identification requirement in Section 162(f)(2)(A)(ii) of the Internal Revenue Code, 26 U.S.C. 162(f)(2)(A)(ii), and 26 C.F.R. 1.162-21(b)(2), performance of Section D of this Order is restitution, remediation, or required to come into compliance with the law. 40. This Order does not affect the obligation of Respondent to comply with all federal, state and local statutes, regulations and permits. 41. This Order shall be EFFECTIVE IMMEDIATELY upon receipt by Respondent. 8 FCS Distribution, LLC Docket No. FIFRA-06-2026-0364 42. This Order shall remain in effect unless and until revoked, terminated, suspended, modified, or released by EPA. 43. EPA may subsequently amend this Order, in writing, in accordance with the authority of FIFRA. Any amendment will be transmitted to Respondent. In t he event of any such subsequent amendment to this Order, all requirements for performa nce of this Order not affected by the amendment shall remain as specified in the original Order. E. OTHER MATTERS 44. For any _additional information about this SSURO please contact lee McMillan, EPA Region 6, at {214) 665-6404 or mcmillan.lee@epa.gov. For any legal matters concern ing this Order, you are encouraged to contact Ashley McDonald, Office of Regional Counsel, at (214) 665-6589 or mcdonald.ashley@epa.gov. Dat e: March 13, 2026 Digitally signed by CHERYL SEAGER Date: 2026.03.13 12:19:59 -osoo Cheryl T. Seager Director Enforcement and Compliance Assurance Division U.S. EPA, Region 6 9 FCS Distribution, LLC Docket No. FIFRA-06-2026-0364 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Stop Sale, Use, and Removal Order and Agreement on Consent 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: Mcdonald.ashley@epa.gov Copy via Email to Respondent: amatamoros@fcsdistribution.com Aberlardo Matamoros FCS Distribution, LLC 4300 Pine Timbers St., Suite 116 Houston, Texas 77041 LORENA VAUGHN Dig itally signed by LORENA VAUGHN Date : 2026.03.16 14:ss,os -osoo Regional Hearing Clerk U.S. EPA, Region 6 10