Martex Farms, S.e. v. United States Environmental Protection Agency

Of the District of Puerto Rico, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 08-1311
MARTEX FARMS, S.E.,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
ON PETITION FOR REVIEW OF A FINAL ORDER OF THE
UNITED STATES ENVIRONMENTAL APPEALS BOARD
Before
Torruella and Stahl, Circuit Judges,
and García-Gregory, District Judge. *
Romano A. Zampierollo-Rheinfeldt for petitioner.
Angeline Purdy, Environmental Defense Section, with whom
Ronald J. Tenpas, Assistant Attorney General, John C. Cruden,
Deputy Assistant Attorney General, Danielle Fidler, Office of
Enforcement and Compliance Assurance, and Angela Huskey, Office of
General Counsel, were on brief for respondent.
March 5, 2009

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A "worker" is defined by the regulations as "any person . . 1
. who is performing activities relating to the production of
agricultural plants." 40 C.F.R. § 170.3.
A "handler" is defined by the regulations as "any person . 2
. . [w]ho is . . . [m]ixing, loading, transferring or applying
pesticides." 40 C.F.R. § 170.3.
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STAHL, Circuit Judge. Appellant Martex Farms, S.E.
appeals a final decision and order of the 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. Having carefully reviewed the
record, we affirm the Board's decision in full, as to both
liability and penalty.
I. Background
Martex is one of the largest commercial farms in Puerto
Rico, employing three to four hundred agricultural workers and
generating a gross annual income of over $10 Million. The Martex
operation consists of five farms growing fruit, vegetables, and
ornamental plants. 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 the
Environmental Protection Agency (EPA). The WPS is intended to
reduce the risk of illness and injury to workers and handlers who 1 2
are exposed to pesticides during the course of employment. See 40
C.F.R. § 170.1. Any failure to comply with the WPS when using a
pesticide is a violation of FIFRA. See 40 C.F.R. § 170.9(a).

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This third category of violations is not at issue on appeal. 3
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In 2003, the Puerto Rico Department of Agriculture and
the EPA initiated a series of inspections of Martex's operations.
Based on those inspections, on January 28, 2005, the EPA filed an
administrative complaint against Martex. The EPA's Second Amended
Complaint alleged 336 violations of FIFRA by Martex. The EPA
accused Martex of failing to meet several rather commonsense 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. As to the posting 3
requirement, the regulations require the employer to post
information about pesticide applications made within the last 30
days, at a central, accessible location. See 40 C.F.R. §
170.122(a). As to the decontamination supplies, employers must
provide workers with soap, single-use towels, and water for washing
and emergency eye flushing. These supplies must be located
together, within 1/4 mile of each work site. See 40 C.F.R. §
170.150(c). In addition, pesticide handlers must also be provided
with sufficient water for whole-body washing and access to a clean
change of clothes in case of emergency. See 40 C.F.R. §
170.250(b).

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An administrative law judge issued a Partial Accelerated
Decision (the equivalent of a summary judgment ruling) on October
4, 2005, holding Martex liable for 125 violations of FIFRA. In
addition, the ALJ held a five-day hearing as to the remaining
counts, and thereafter found Martex liable for an additional 45
FIFRA violations. The ALJ assessed Martex a total penalty of
$92,620 for the 170 FIFRA violations. Martex appealed this
decision to the Environmental Appeals Board, which upheld the ALJ's
liability findings in full, and granted the EPA's cross-appeal by
recalculating the assessed penalty and raising it to $163,680.
Martex now appeals the Board's decision as to both
liability and penalty. Martex raises four issues on appeal, none
of which need detain us long.
II. Discussion
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." Pepperell Assocs. v. EPA, 246 F.3d 15, 22 (1st
Cir. 2001) (internal quotation omitted). We also review the
Board's penalty assessment with heightened deference. See Sultan
Chemists, Inc. v. EPA, 281 F.3d 73, 83 (3d Cir. 2002); see also

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Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 185
(1973)("[W]here Congress has entrusted an administrative agency
with the responsibility of selecting the means of achieving the
statutory policy, the relation of remedy to policy is peculiarly a
matter for administrative competence.") (internal quotations
omitted).
a. Selective Prosecution Claim
Martex first argues, as it did before the Board, that the
EPA's enforcement action amounted to selective prosecution.
However, Martex fails to flesh out the basis for this claim. As
best we can tell, appellant would have us conclude that the EPA
engaged in selective prosecution merely because, as Martex alleges,
the EPA left "untouched the rest of Puerto Rico's agricultural
community." This is not enough to support such a claim. As we
unequivocally stated in a recent decision, "The essence of [a
selective prosecution claim] is that a prosecutor has pursued a
case for a constitutionally impermissible reason, such as the
defendant's race, religion, or other characteristic cognizable
under equal protection principles." United States v. Lewis, 517
F.3d 20, 25 (1st Cir. 2008). Martex fails to make even an
allegation that the EPA used such a constitutionally impermissible
ground as the basis of its prosecution. Therefore, Martex's claim
in this regard is utterly without legal basis and necessarily
fails.

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b. Full and Fair Opportunity
Next, Martex asserts that it was deprived of a full and
fair opportunity to present its case before the ALJ. While its
argument in this regard is scattered and poorly defined, we
endeavor to address Martex's concerns in an orderly fashion. The
factual basis for this claim revolves around the exclusion of
certain witnesses by the ALJ on relevancy grounds, the alleged
discrepancy in Spanish-English translation between two documents
presented at trial, and the service of process. The service of
process claim was not raised below, and therefore is waived.
Vineberg v. Bissonnette, 548 F.3d 50, 57-58 (1st Cir. 2008). The
translation issue was also not raised below, and therefore suffers
the same fate. Id.
As to the witness issue, the ALJ denied Martex's motion
to depose four witnesses who Martex said would shed light on its
theory of selective prosecution. Because the ALJ found that Martex
had failed to make out an even rudimentary claim for selective
prosecution, Martex's proposed witnesses were excluded. We find no
fault with this conclusion. Martex also complains that it was
unable to subpoena eight employees of the Puerto Rico Department of
Agriculture and/or the Puerto Rico office of the EPA. The ALJ
denied Martex's motion to subpoena these witness because FIFRA does
not authorize the administrative tribunal to compel testimony at
deposition or hearing. See, e.g., In re Chempace Corp., EPA Docket

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We also reject as irrelevant Martex's assertion that it 4
should not be held liable for violating the WPS because it
allegedly has a general record of excellent safety performance,
has made a genuine effort to reduce the use of pesticides, and has
undertaken post-enforcement corrective measures.
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No. 5-IFFRA-96-017, 1997 WL 881227 (order Denying Motions, Feb. 27,
1997). Again, we find no fault with this conclusion.
Thus, we find no basis for Martex's claim that it was
unable to fully and fairly defend itself in this matter. We also
note that Martex received a five-day administrative hearing,
presented numerous pretrial and post-trial motions, fully briefed
its appeal before the Board, and submitted an appendix numbering
657 pages to this court -- a testament to the thorough treatment
this matter has received at all levels.
c. Substantial Evidence Claim
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.4

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d. Penalty
Finally, Martex contests the penalty imposed by the
Board, calling it "exaggerated, totally unreasonable,
disproportionate and not related whatsoever to the alleged FIFRA
violations." We disagree. As a preliminary matter, we note that
Martex did not seek reconsideration of the penalty before the
Board, which it was entitled to do. See 40 C.F.R. § 22.32.
Therefore, it is not clear that this claim was properly raised
below. Regardless, because we afford great deference to the Board
in determining penalties, see Sultan, 281 F.3d at 83, we deny
Martex's claim of disproportionality. 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.
See Newell Recycling Co. v. EPA, 231 F.3d 204, 210 (5th Cir. 2000)
("[I]f the fine does not exceed the limits prescribed by the
statute authorizing it, the fine does not violate the Eighth
Amendment.").
III. Conclusion
For the foregoing reasons, we affirm the decision below
in full, as to both liability and penalty.

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