Mar 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-71907. The Latino Issues Forum and Sierra Club challenged U.S. EPA's approval of a revision to the state implementation plan (SIP) for San Joaquin Valley, California. The revision, known as Rule 4550, is part of the Conservation Management Practices (CMP) Program, an air-pollutant reduction program, established by the San Joaquin Valley Unified Air Pollution Control District (District). Rule 4550 aims to reduce emissions from agricultural sources of a certain kind of particulate matter known as PM-10. The Appeals Court ruled, "We hold that Rule 4550 comports with the requirements of 42 U.S.C. §§ 7509 and 7513a(b)(1)(B) and, therefore, deny the petition."
The Petitioners challenged two aspects of EPA’s approval of Rule 4550 as being arbitrary, capricious, or not in accordance with law. First, Petitioners claim that Rule 4550 does not incorporate “all feasible measures,” as required by 42 U.S.C. § 7509(d)(2). Second, Petitioners assert that Rule 4550’s menu of options for controlling agricultural PM-10 emissions does not constitute BACM, as required by 42 U.S.C. § 7513a(b)(1)(B).
On the first question, the Appeals Court said, "Because § 7509(d)(2) is ambiguous and the EPA’s statutory interpretation is reasonable, we hold that the EPA acted lawfully by not requiring implementation of 'all feasible measures' into Rule 4550." On the second issue, the Appeals Court said, "EPA demonstrated that the controls included in the rule’s menu meet the stringency requirements of BACM. Although the context is different, our inquiry into whether the EPA properly followed the procedures set forth by the Act remains the same. And, just as we held in Vigil, there is no evidence here that the process which led to the creation and adoption of Rule 4550 was improper. . . Because the EPA made no clear error of judgment in ruling that Rule 4550 complies with BACM, because the EPA followed its regulatory process, and because that process was consistent with one we approved in Vigil, we hold that the EPA’s approval of Rule 4550 did not violate 42 U.S.C. § 7513a(b)(1)(B)."
Access the complete opinion (click here).
Friday, March 6, 2009
Martex Farms, S.E. v. Environmental Appeals Board
Mar 5: In the U.S. Court of Appeals, First Circuit, Case No. 08-1311. Martex Farms, S.E., one of the largest commercial farms in Puerto Rico, appealed a final decision and order of U.S. EPA's Environmental Appeals Board (the Board), which held Martex liable for numerous violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. The Appeals Court affirmed the Board's decision in full, as to both liability and penalty.
Because Martex uses pesticides as part of its agricultural methods, it is subject to the Worker Protection Standard (WPS), 40 C.F.R. pt. 170, which is enforced by EPA. The WPS is intended to reduce the risk of illness and injury to workers and handlers who are exposed to pesticides during the course of employment. In January 28, 2005, EPA filed an administrative complaint against Martex alleging 336 violations of FIFRA by Martex. The EPA accused Martex of failing to meet several rather common sense and straightforward WPS requirements, including: (1) displaying information for workers and handlers regarding pesticide application; (2) providing decontamination supplies for workers and handlers in easily accessible locations; and (3) providing handlers with personal protective equipment. Martex subsequently appealed the decisions of an administrative law Judge and the Board.
The Appeals Court said, "Our review of the Board's conclusions is highly deferential. By statute, we will sustain the Board's order 'if it is supported by substantial evidence when considered on the record as a whole.' 7 U.S.C. § 136n(b). In addition, we will sustain the EPA's interpretation of its own regulations unless that interpretation is 'arbitrary, capricious, or otherwise plainly impermissible.'"
On one of the primary arguments, i.e. Substantial Evidence Claim, the Appeals Court said, "Martex also contests the substantive findings of liability made below. The crux of Martex's argument in this regard is that its farms contain abundant sources of water, such as lakes, streams, and fruit washing facilities, which are sufficient to comply with the WPS standards. However, neither in its brief nor at oral argument did Martex allege that these water sources were grouped together with the required soap and paper towels, or that they were available within 1/4 mile of the work sites, as required by regulations. Indeed, substantial evidence in the record points to the opposite conclusion. We therefore see no basis for reversal as to the substantive violations."
On the penalty issue, the Appeals Court said, "The maximum statutory fine for each violation of FIFRA committed by Martex is $1,100. The Board conducted a deliberate and rigorous evaluation of the proper penalty as to each violation, never assessed an amount greater than $1,100 for any violation, and in several cases assessed a much lower penalty. One of the factors it considered was Martex's ability to pay the proposed penalty. We therefore find no error."
Access the complete opinion (click here).
Because Martex uses pesticides as part of its agricultural methods, it is subject to the Worker Protection Standard (WPS), 40 C.F.R. pt. 170, which is enforced by EPA. The WPS is intended to reduce the risk of illness and injury to workers and handlers who are exposed to pesticides during the course of employment. In January 28, 2005, EPA filed an administrative complaint against Martex alleging 336 violations of FIFRA by Martex. The EPA accused Martex of failing to meet several rather common sense and straightforward WPS requirements, including: (1) displaying information for workers and handlers regarding pesticide application; (2) providing decontamination supplies for workers and handlers in easily accessible locations; and (3) providing handlers with personal protective equipment. Martex subsequently appealed the decisions of an administrative law Judge and the Board.
The Appeals Court said, "Our review of the Board's conclusions is highly deferential. By statute, we will sustain the Board's order 'if it is supported by substantial evidence when considered on the record as a whole.' 7 U.S.C. § 136n(b). In addition, we will sustain the EPA's interpretation of its own regulations unless that interpretation is 'arbitrary, capricious, or otherwise plainly impermissible.'"
On one of the primary arguments, i.e. Substantial Evidence Claim, the Appeals Court said, "Martex also contests the substantive findings of liability made below. The crux of Martex's argument in this regard is that its farms contain abundant sources of water, such as lakes, streams, and fruit washing facilities, which are sufficient to comply with the WPS standards. However, neither in its brief nor at oral argument did Martex allege that these water sources were grouped together with the required soap and paper towels, or that they were available within 1/4 mile of the work sites, as required by regulations. Indeed, substantial evidence in the record points to the opposite conclusion. We therefore see no basis for reversal as to the substantive violations."
On the penalty issue, the Appeals Court said, "The maximum statutory fine for each violation of FIFRA committed by Martex is $1,100. The Board conducted a deliberate and rigorous evaluation of the proper penalty as to each violation, never assessed an amount greater than $1,100 for any violation, and in several cases assessed a much lower penalty. One of the factors it considered was Martex's ability to pay the proposed penalty. We therefore find no error."
Access the complete opinion (click here).
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