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In re Martex Farms, S.E.

02/14/2008

Case Number:FIFRA Appeal No. 07-01
ELR Citation:38 ELR 41316

Martex Farms, S.E., (“Martex”) filed an appeal from an Initial Decision issued by Chief Administrative Law Judge (“ALJ”) Susan L. Biro on January 19, 2007. The U.S. Environmental Protection Agency (“EPA” or “Agency”), in turn, filed a crossappeal. The Agency’s administrative complaint charged Martex with violations of section 12(a)(2)(G) of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136j(a)(2)(G), and the Worker Protection Standard (“WPS”) regulations set forth at 40 C.F.R. part 170. The Agency proposed a total civil administrative penalty of $369,600, derived from the Enforcement Response Policy for the [FIFRA] (“ERP”) and the Worker Protection Standard Penalty Policy (“WPS Penalty Policy”).

The alleged violations occurred at two Martex agricultural establishments known as the Jauca facility and the Coto Laurel facility. The allegations consist of six types of violations: (1) failure to display specific information to farm “workers” regarding pesticide applications to fields at the Jauca facility, in violation of 40 C.F.R. § 170.122; (2) failure to provide decontamination supplies to workers at the Jauca facility, in violation of 40 C.F.R. § 170.150; (3) failure to display specific information to pesticide “handlers” regarding pesticide applications to fields at the Jauca facility, in violation of 40 C.F.R. § 170.222; (4) failure to provide decontamination supplies to pesticide handlers at the Jauca facility, in violation of 40 C.F.R. § 170.250; (5) failure to provide personal protective equipment to handlers at the Jauca facility, in violation of 40 C.F.R. § 170.240; and (6) failure to provide decontamination supplies to a pesticide handler on two occasions at the Coto Laurel facility, in violation of 40 C.F.R. § 170.250. Martex disputed both its liability and the penalty amount. After an administrative hearing, the ALJ found Martex liable for most of the alleged violations and assessed a $92,620 penalty.

On appeal, Martex seeks vacatur of all but four of the ALJ’s findings of liability and the reassessment of the penalty to reflect such a vacatur. Martex also advances a selective prosecution argument. The Agency’s cross-appeal raises three additional issues for the Board’s consideration. The Agency asks the Board to: (1) determine for future cases the appropriate times that should be displayed in the pesticide application notices that are posted pursuant to 40 C.F.R. §§ 170.122 and 170.222, in light of the ALJ’s holding that multiple pesticide applications conducted by different handlers within thirtyminutes of each other at a single field constitute a single application; (2) review the ALJ’s determination not to assess penalties, despite finding Martex liable, for violations of 40 C.F.R. § 170.222; and (3) review those aspects of the ALJ’s penalty calculation that credited Martex outside of the settlement negotiation context for corrective measures implemented after filing of the complaint.

Held: The Board upholds the ALJ’s determinations of liability, rejects Martex’s selective prosecution argument, and exercises its de novo penalty assessment authority to recalculate certain aspects of the civil penalty. Specifically, the Board assesses a civil penalty in the amount of $163,680, and in doing so, concludes the following:

(1) The Board disagrees with the ALJ’s penalty assessment in the following respects:

(a) The ALJ erred in finding that violations of 40 C.F.R. §§ 170.122 and 170.222 were dependent. The two regulations differ as to a single element of proof, which is sufficient for a finding that the two violations are distinct and that separate penalties appropriately may be assessed for each. Martex’s decision to comply with the display requirements of both regulations by posting the pesticide application information in a single location central to both workers and handlers does not necessarily lead to a finding that the regulatory violations are legally dependent.

(b) The ALJ impermissibly credited Martex outside the context of settlement negotiations for taking corrective measures after the Agency filed the administrative complaint. “Positive attitude and good faith attempts to comply with the law” are not eligible for a penalty reduction when the violations were not self-discovered and the violator has, as here, decided to litigate the case rather than negotiate a settlement.

(2) The Board declines to clarify the time that should be displayed on the notices of pesticide applications required to be provided to workers and handlers pursuant to 40 C.F.R. §§ 170.122 and 170.222.

(3) The penalty of $163,680 is properly calculated under the ERP and WPS Penalty Policy, is supported by the evidence, and is appropriate based on the facts and circumstances of the case.

The Initial Decision is affirmed in all other respects.