Document o9OjBKN8VBG8VdZzV0VGk60ND

CNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 DALLAS, TEXAS 2u1"J I ) . "' I 9 IN THE MATTER OF: DOCKET NO. FIFRA 06-2-019-0017 Pinnacle Agriculture Distribution, Inc. 40200 E. State Hwy 14 Lepanto, AR 72354 RESPONDENT CONSENT AGREEMENT AND FINAL ORDER CONSENT AGREEMENT AND FINAL ORDER The Director, Enforcement and Compl iance Assurance Division, United States Environmental Protection Agency, Region 6 (EPA) as Complainant, and Pinnacle Agriculture Distribution, Inc. (Pinnacle Ag) located at 40200 E. State Hwy 14 Lepanto, Arkansas (Respondent) in the above referenced action. have consented to the terms of this Consent Agreement and Final Order (CAFO). NOW T HEREFORE, before the taking of any testimony, without any adjudication of any issues of law or fact herein, the parties agree to the terms of this CAFO. I. PRELIMINARY STATEMENT 1. This enforcement proceeding i.s instituted by EPA pursuant to Section l4(a) of the Federal Insecticide, Fungicide, and Rodentic ide Act, 7 U.S.C. 136l(a) , (FIFRA) which authorizes the Administrator to bring an administrative action to assess a penalty of up to 19.936 1 1The Civ il Moneta1') Penalty Inflation Adjusrment Rule (73 Fed Reg. 75340. December 11, 2008 and 81 Fed Reg. 43091 , July.1. 2016) provided for increases in the statutory penalty provisions for violations which occur after the date the increases wok effect. For violations after December I l. 2008, the potential maximum penalty for such violations changed from $6.500 to $7.500. For violations after November 2, 20 l 5, the potential maximum Penalty for such violations changed from $7.500 to $19.936. In the Matter of Pinnacle Agriculture Distribution. Inc. Lepanto. AR Docket \:o. Fl FRA 06-20 19-0317 for each violation of Section 12(a)(2)(L) of FIFRA, 7 U.S.C. ~ 136j(a)(2)(L) (producing a pesticide in an unregistered establishment). This proceeding is ini tiated by the issuance of a Consent Agreement and Final Order [hereinafter "CAFO'') incorporated herein. 2. The CAFO alleges Respondent violated regulations promulgated pursuant to the FIFRA 3. For purposes of this proceeding, Respondent admits to the jurisdiction of this CAFO; however, Respondent neither admits nor denies the specific factual allegations contained in this CAFO. 4. Respondent consents to the issuance of this CAFO hereinafter recited and consents to the assessment and payment of the stated civil penalty in the amount and by the method set out in this CAFO in settlement of the violations alleged in this CAFO. 5. By signature on this CAFO, Respondent waives any right to a hearing and/or any appeal of this proceeding. 6. Respondent represents that it is duly authorized to execute this CAFO and that the party signing this CAFO on behalf of the Respondent is duly authorized to bind the Respondent to the terms and conditions of this CAFO. 7. Respondent agrees that the provisions of this CAFO shall be binding on its officers, directors, employees, agents, servants, authorized representatives, successors, and assigns, including but not limited to, subsequent purchasers. 8. This action is simultaneously commenced and concluded through the issuance of this CAFO under 4 0 Code of Federal Regulations (C.F.R.) 22. l 3(b) and 22. l 8(b)(2) and (3). 2 In the Matter of Pinnacle Agriculrure Distribution. Inc. Lepanto. AR Docket No. FIFRA 06-201 9-03 17 II STATUTORY A~D REGULATORY BACKGROUND 9. Section 2(s) of FIFRA. 7 U.S.C. 136(s), defines a "person" as any individual. partnership, association, corporation. or any organized gro up of persons whether incorporated or no t. l 0. Section 2(u) of FIFRA, 7 C.S.C. l 36(u), defines the term "'pesticide'' as any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest. 11. Section 2(gg) of FIFRA. 7 l_j .S.C. l 36(gg), defines the term 'to distribute or sell'" as distribute, sell, offer for sale, hold for distribution, hold for shipment, or receive and (having so received) deliver or offer to deliver. 12. Section 2(w) ofFIFRA, 7 U.S.C. 136(w), defines the term "produce" as to manufacture, prepare, compound, propagate, or process any pesticide or device or active ingredient used in producing a pesticide. 13. Section 2(dd) ofFIFRA. 7 U.S.C. 136(dd), defines "establishment" as any place where a pesticide or device or active ingredient used in producing a pesticide is produced, or held, for distribution or sale. 14. Pursuant to Section 12(a)(2)(L) of FIFRA, 7 U.S.C. 136j(a)(2)(L), it shall be unlawful for an y person who is a producer to violate any provisions of Section 7 of FlFRA, 7 U.S.C. 136e. 15. Pursuant to Section 14(a)(l) ofFIFRA, 7 U.S.C. 136l(a)( I), any registrant. commercial applicator, wholesaler. dealer. retailer, or other distributor who violates any provision of FIFRA may be assessed a civil penalty by the Administrator of not more than 3 In the Matter of Pinnac le Agriculture Distribution. Inc. Lepanto. AR Docket No. FIFRA 06-20 I9-03 17 $19,9362 for each offense. Ill. FINDINGS OF FACT AND CONCLUSIONS OF LAW 16. Respondent is a registrant wholesaler, dealer, retailer or other distributor subject to the civil penalty provisions of Section 14(a)(l) of FIFRA, 7 U.S.C. 136/(a)(l ). 17. Respondent is a "person" as that term is defined in Section 2(s) of FIFR..A. 7 U.S.C. 136(s). 18. Respondent operates a business at 40200 E. State Hwy 14 Lepanto, AR 72354. 19. The place identified in paragraph 18 is an "establishment," as that term is defined by Section 2(dd) of FIFRA, 7 U.S.C. J36(dd), and 40 C.F.R. 167.3. 20. The Respondent is a "producer." as that term is defined by Section 2(w) of FlFRA. 7 U.S.C. 136(w), and 40 C.F.R. 167.3. IV. VIO LATIONS 21. Complainant incorporates by reference the allegations contained in paragraphs 1-20 of this CAFO. 22. Section l2(a)(2)(L) of FIFRA. 7 U.S.C. 136j(a)(2)(L), states that it is unlawful fo r any person who is a producer to violate Section 7 of FIFRA, 7 U.S.C. 136e. 23 . The Company's submission of their initial repo1t for a new establishment number (8867-AR- l 8) listed production of a registered pesticide. 24. At the time the pesticide was produced at the address listed in paragraph 18. the site was not registered with EPA as a pesticide producing establishment. 25. The production of a pesticide in an unregistered establishment constituted an unlawful act in violation of Section 12{a)(2)(L) of FIFRA, 7 U.S.C. 136j(a)(2)(L). 2See foo tnote I. 4 In the Maner of Pinnacle Agriculture Distribution. Inc. Lepanto. AR Docket No. Fl FRA 06-2019-0317 v. CIVIL PENALTY AND TERMS OF SETTLEMENT 26. For the reasons set forth above, Respondent has agreed to pay a civil penalty. which has been determined in accordance with Section.14(a)(l) ofFIFRA, 7 U.S.C. 136/(a)(l). and the Civil Penally Inflation Adj ustment Rule3 which authorizes EPA to assess a civil penalty of up to NINETEEN THOUSAND NINE HUNDRED AND THIRTY-SIX DOLLARS ($19,936.00)3 for each violation of FIFRA. Upon consideration of the entire record herein, including the Findings of Fact and Conclusions of Law, which are hereby adopted and made a part hereof, and upon consideration of (1) the size of the Respondent's business, (2) the effect upon Respondent's ability to continue in business, and (3) the gravity of the alleged violation. the parties agree to the terms of this settlement. To develop the proposed penalty in this CAFO. the Complainant has taken into account the particular facts and circumstances of this case with specific reference to EPA"s ..Enforcement Response Policy for the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)" dated December 3, 2009, located at: http://www.epa.gov/Compliance/resources/policies/civil/erp/index.html. It is ORDERED that Respondent be assessed a civil penalty ofTWO THOUSAND SIX HUNDRED DOLLARS AND NO CENTS ($2,600.00). 27. Within thi11y (30) days of Respondent's receipt of this fully executed CAFO. Respondent shall p'ay the assessed civil penalty by cashiers or certified check. made payable to "Treasurer, United States of America, EPA - Region 6." 3 See fo otnote I. 5 In the Matter of Pinnacle Agriculture Distribution. Inc . Lepanto, AR Docket \io. FlFRA 06-20 19-03 17 Payment shall be remitted in one of the alternatives provided in tbe collection infonnation section belov>': CHECK PAYMENTS: COLLECTION INFORt'VIATION US Environmental Protection Agency Fines and Penalties Cinciru1ati Finance Center PO Box 979077 St. Louis, MO 63197-900 WIRE TRANSFERS: Wire transfers should be directed to: Federal Reserve Bank of Ne\\: York ABA = 021030004 Account = 6801 0727 SWIFT address= FRNYUS33 33 Liberty Street New York NY 10045 Field Tag 4200 of the Fed\vire message should read "D 68010727 Environmental Protection Agency" OVERNIGHT ~AIL : U.S. Bank 1005 Convention Plaza Mail Station SL-MO-C2GL St. Louis, MO 6310 I Contact: Natalie Pearson 314-418-4087 ACH (also known as REX or remittance express) Automated Clearinghouse (ACH) for receiving US cunency PNC Bank 808 17111 Street, NW Washington, Dc'20074 Contact - Jesse White 301-887-6548 ABA =051 036706 Transaction Code 22 - checking Environmental Protection Agency Account 310006 CTX Format 6 In the Matter of Pinnacle Agricul!ure Distribution. Inc . Lepanto. AR Docket \io. FIFRA 06-2019-0317 ON LINE PAYMENT: There is now an On-Line Payment Option. avai lable through the Department of Treasury. This payment option can be accessed from the information below: WWW .PAY. GO V Enter "sfo 1.1,. in the search field; Open fo rm and complete required fields following directions for EPA Miscell aneous payments. EPA Miscellaneous Payments - Cincinnati Finance Center Form Number: SFO Form Number 1.1 Use this form to pay civil penalties, FOIA request, Superfund, Citations, Compliance Orders, and other miscellaneous payments PLEASE NOTE: Docket number FIFRA-06-2019-0317 shall be clearly typed on the check to ensure proper credit. Respondent shall send a simultaneous notice of such payment. including a copy of the money order or check to the following: Chuck Ruple Toxics Enforcement Section (ECDST) Enforcement and Compliance Assurance Division C.S. EPA, Region 6 1201 Elm St.. Suite 500 Dallas, TX 75270 The check shall reference the Respondent' s name and address, the case nam e and the docket number of the administrative complaint, and the check shall be accompanied by a transmittal letter. A photocopy of each check and its accompanying transmittal letter shall be mailed to: Region 6 Hearing Clerk l:.s. EPA, Region 6 120 1 Elm St.. Suite 500 Dallas, TX 75270 Respondent 's adherence to this request will ensure proper credit is given to the matter at hand. 28. Respondent agrees not to claim, or attempt to claim. a federal income tax deduction or credit covering all or any pa11 of the civil penalty paid to the United States Treasurer. 29. Pursuant to 31 U.S.C. 3717 and 40 C. F.R. 13. 1l unless otherwise prohibited by 7 In the Matter of Pinnacle Agriculture Distribution. Inc. Lepanto. AR Docket No. Fl FRA 06-2019-0317 law. EPA will assess interest and late payment penalties on outstanding debts owed lo the United States and a charge to cover the costs of processing and handling a delinquent claim. Interest on the civil penalty assessed in this CAFO will begin to accrue thirty (30) days after the effective date of the CAFO and will be recovered by EPA on any amount of the ci\'il penalty that is not paid by the respecti\'e due date. Interest will be assessed at the rate of the United States Treasury tax and loan rate in accordance with 40 C.F.R. 13 .l l(a). Moreover. the costs of the Agency's administrative handling of overdue debts will be charged and assessed monthly throughout the period the debt is overdue. See 40 C.F.R. 13. l l(b). 30. The EPA will also assess a $15.00 administrative handling charge for administrative costs on unpaid penalties for the ~rst thirty (30) day period after the payment is due and an additional $15.00 for each subsequent thirty (30) day period that the penalty remains unpaid. In addition. a penalty charge of up to six percent (6%) per year will be assessed monthly on any portion of the debt which remains delinquent more than ninety (90) days. See 40 C.F.R. 13.11 (c). Should a penalty charge on the debt be required, it shall accrue from the first day payment is delinquent. See 31 C.F.R. 901.9(d). Other penalties for failure to make a payment may also apply. VI. COSTS 31. Each party shall bear its own costs and attorney fees. 8 11 IS ~O -\( 1R l 11) l\ lR Ill[ Rl-. Sl'C I\ l >I '-.: I FOR I I 11-: CT \ 11'1 .\ II\ :\\ I : .~- ~~~ ( ~ ndy H1\iL:1.ur \'iL'L' Pr1.siJ1;nt. l-.11 ' irn1111h:n1a: l k;dth :.11:d Sakt;. l'innaL' k .\gri('ul! url.' D1,1nh~:l 1P1:. ln12. 18811 Lill Ri\ er D1. S11i1t.: 1110 I .nn:lanJ. ( '<) 8 0~ .~8 @___ _ _ _ <'he r~ I I. Si:'ager. Dit't:<:lor I 11 l'nn.: L'n~1. 111 :mJ ( 'nmpliann As.">uranrl' Dl\ isi1111 In the Maller or Pinnack J\gric11ltun: Distribution. Inc. Lepanto. J\ R Dockc1 No. FlFRA 06-20 19-0317 FINAL ORDER Pursuant to Section 14(a) of FJFRA. 7 U.S.C . 136/(a}. and 1hc Consolidated Rules of Practice Go\crn ing the Administrative Assessment of Civil Penalti es. 40 C. F.R. Part 22, the foregoing Consent Agreement is hereby ratified. This Final Order shall not in any case affect the right of FPA or the l Jnitcd States to pursue appropriate injunctive or other cquitabk relief or criminal sanctions for any violations of lavi. This Final Order shall resolve only those causes of action and/or violations alleged in the Complaint. Nothing in lhis final Order shall be construed to waive. 1.!Xti nguish or otherwise affect Respondent's (or its officers. agents. servants. employees. successors. or assigns) obligation to comply with all applicable federal. state, and local statutes uncl regulations, including the regulations that \._.ere the sul~jcct of this action. The Respondent is ordered to comply with the terms of senlement and the civil penalty payment instructions as set forth in the Consent Agreement. Jn accordance with 40 C.F.R. 22.3 l(b), this Final Order shall become! dTective upon filing with the Regional Hearing Clerk. ,......- ) .._:.:.-7 'd.?' ~ / ~///f/1/:/\ Thomas Rucki Regional Judicial Oflicer 10 In the Matter of Pinnacle Agriculture Distribution, Inc. Lepanto. AR Docket >Jo. Fl FRA 06-2019-0317 CERTIFICATE OF SERVICE I hereby certify that on the /(1ffj.. day ofAryvJ- .20 I9. the original and one copy of the foregoing Complaint Consent Agreement and Final Order ('"Complaint CAFO") was hand delivered to the Regional Hearing Clerk, U.S. EPA - Region 6. 120 I El m St., Suite 500 Dallas. Texas 75270, and a true and correct copy was del ivered to the fol lowi ng individual by method indicated below: CERTIFIED MAIL - RETURN RECEIPT REQUESTED Cyndy Brodeur Vice President, Environmental Health and Safety Pinnacle Agriculture Distribution, Inc. 1880 Fall River Dr. Suite 100 Loveland. CO 80538 Enfo rcement Officer Toxics Enforcement Section 1 I