United States v. Tropical Fruit, S.E. (96 F. Supp. 2d 71, 2000)

Citations

96 F. Supp. 2d 71

Full opinion text

ORDER

DOMINGUEZ, District Judge.

Pending before the Court is the Plaintiffs, United States of America (“USA”), motion for partial summary judgment on liability (Docket No. 42). The Defendants, Tropical Fruit, S.E., Avshalom Lubin, Cesar Otero Acevedo, and Pedro Toledo Gon'zalez (collectively “Tropical Fruit”), then filed an opposition to the motion for partial summary judgment and cross motion for partial summary judgment on issue of liability under CERCLA (Docket No. 48), an opposition to motion for summary judgment on issue of liability under FIFRA (Docket No. 50), and an opposition to Plaintiffs Rule 311.12 statement of uncontested material facts. (Docket No. 51). Thereafter the USA filed its opposition to Tropical Fruit’s cross motion for partial summary judgment. (Docket No. 52). Tropical Fruit replied to the USA’s opposition. (Docket No. 54). The Court is ready to rule.

I. BACKGROUND

Tropical Fruit, S.E., is a special partnership duly formed pursuant to Puerto Rico law. (Docket No. 42, SOF 1). Its general partners are Avshalom Lubin, Cesar Ote-ro Acevedo, and Pedro Toledo Gonzalez (also president). (Docket No. 42, SOF 4-6). Tropical Fruit owns and operates a finca (English translation “farm”) or agricultural facility located at road number 335, kilometer 7.2, Rural Zone Boca, Guay-anilla, Puerto Rico. The farm consists of approximately 2,300 acres where mangoes, plantains, and bananas are grown.

Succinctly, the USA alleges that Tropical Fruit has violated federal law Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq., and the Comprehensive Environmental Response Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., during the operations of its pesticides applications. The government asserts that Tropical Fruit when spraying pesticides would frequently spray in such a manner as to cause the pesticides to unlawfully drift onto adjacent properties. To quell Tropical Fruit’s illegal pesticides usage, the Environmental Protection Agency (“EPA”), pursuant to CERCLA, issued an Administrative Order (“EPA Order”), dated December 20, 1996, requiring Tropical Fruit, inter alia, to cease spraying pesticides that are or contain hazardous substances in such a manner that the pesticides drift beyond the boundaries of its property. (Docket No. 42, Attachment 2— Exhibit 2 ¶ 32); see also 42 U.S.C. § 9606(a). The USA maintains that Tropical Fruit nevertheless continued to spray pesticides allowing drift on at least seven (7) separate occasions in contravention of the EPA Order. The USA filed the instant suit on March 26, 1997. (Docket No. 1).

An Interim Order on Consent (“IOC”) was filed by the parties on March 26, 1997. (Docket No. 2). The IOC explicitly restricts Tropical Fruit’s application of pesticides to intervals when the wind speed is low (e.g., sectors 1-8 — between 2 mph and 6 mph; all other sectors — between 2 mph and 10 mph), thereby reducing the possibility of pesticides drifting and prohibits Defendants from operating in a manner that results in drift of pesticides or hazardous substances (collectively, “Pesticides”) that drift beyond the boundaries of the Farm. Despite the IOC, the USA avers that Defendants violated its terms.

Subsequently, the Court entered a modifying order restricting application of pesticides allowing only hand-held sprayer application, after EPA approval, and ordering Defendants to show cause why the Court’s modified order should not remain in force. (Docket No. 8). Further, Tropical Fruit was to show cause why the Court should not impose a penalty of $585,000.00 pursuant to the IOC. (Docket No. 8); see also (Docket No. 2, ¶ 24). The Court conducted an evidentiary hearing on its Order to Show Cause, on November 13, 1997, at which time the parties presented evidence, including testimony of expert witnesses. (Docket No. 16). The minutes of that hearing state that “[t]he Court’s Order remains in effect, no pesticide or chemical [except fertilizers] shall be sprayed unless there is an agreement by the parties.” See id. A second evi-dentiary hearing on the Order to Show Cause was held on November 19, 1997, whereof the Court heard numerous fact witnesses. (Docket Nos. 17 & 21).

Since then, the Court has allowed Tropical Fruit to resume utilizing with certain application, location, and notification to the government parameters the following pesticides: Microsperse Wettable Sulfur (Docket No. 19); Benlate and Kocide 101 (Docket No. 19); Neemix and Soluble Oil Spray (Docket No. 27); Gowan Malathion 8 (Docket No. 30); Ferbam (Docket No. 37); and Provado 1.6 Flowable (Docket No. 56).

II. SUMMARY JUDGMENT STANDARD

A court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact ...” Fed.R.Civ.P. 56(c). “In applying this formulation, a fact is ‘material’ if it potentially affects the outcome of the case,” Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997), and “ ‘genuine’ if a reasonable factfinder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party’s favor.” Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir.1997). The court should “ ‘look at the record ... in the light most favorable to ... the party opposing ... the motion’ ... [and] indulge all inferences favorable to the party opposing the motion.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975) (quoting Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962)) (citations omitted). However, the nonmovant must “present definite, competent evidence to rebut the motion.” Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. de nied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). “The court may consider any material that would be admissible or usable at trial.” See 10A Charles Alan Weight, Arthur R. Miller AND Mary Kay Kane, Federal Practioe and Procedure § 2721, at 361 (3d ed.1998). “But the court should do no more than this in reviewing the quality of the evidence. Most critically, it must never ‘weigh the evidence and determine the truth of the matter....’ ” Lipsett v. University of P.R., 864 F.2d 881, 895 (1st Cir.1988) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). Furthermore, “[n]o credibility assessment may be resolved in favor of the party seeking summary judgment.” Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir.1995) (citations omitted). “If, after this canvassing of the material presented, the district court finds that some genuine factual issue remains in the case, whose resolution one way or another could affect its outcome, the court must deny the motion.” Lipsett v. University of P.R., 864 F.2d at 895 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 242, 106 S.Ct. at 2505).

“We believe that summary judgment procedures should be used sparingly ... where the issues of motive and intent play leading roles ... It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of ‘even handed justice.’ ” Poller v. Columbia Broad. Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); cf. Pullman-Standard v. Swint, 456 U.S. 273, 288-90, 102 S.Ct. 1781, 1790-1791, 72 L.Ed.2d 66 (1982) (discriminatory intent is a factual matter for the trier of fact); see also Coll v. PB Diagnostic Sys., Inc., 50 F.3d 1115, 1121 (1st Cir.1995); Oliver v. Digital Equip. Corp., 846 F.2d 103, 107 (1st Cir.1988); Lipsett v. University of P.R., 864 F.2d at 895. “Under such circumstances, jury judgments about credibility are typically thought to be of special importance.” Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir.1983). However, “even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” Ayalar-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir.1996).

III. DISCUSSION

The USA brought four separate claims pursuant to FIFRA (Section 12(a)(2)(G) of FIFRA, 7 U.S.C. § 136j(a)(2)(G)) and a claim under CERCLA (Section 106(a) of CERCLA, 42 U.S.C. § 9606(a)) against Defendants. The Court will first tackle the motions pertaining to the FIFRA claims and then turn its attention to the CERCLA claim. Before embarking on such sojourn, the Court notes that the parties statements of fact have been appended for quick reference to this Opinion and Order as exhibits: USA’s Exhibit A and Tropical Fruit’s Exhibits B & C.

A. FIFRA.

The USA avers that the undisputed material facts establish each of the elements of Tropical Fruit, S.E.’s, and its general partners’, Cesar Otero Acevedo, and Pedro Toledo Gonzalez, liability under Section 12(a)(2)(G) of FIFRA. See 7 U.S.C. § 136j(a)(2)(G). The Court holds that Avshalom Lubin is not liable under FIFRA, at this juncture for the reasons as set-forth in Section III.B.l. Covered Persons (under CERCLA) infra. Thus, the Court has injunctive power, pursuant to Section 16(c) of FIFRA, 7 U.S.C. § 136n to ensure Tropical Fruit desists its unlawful practices. The USA points to 7 U.S.C. § 136a, the statutory framework for registration of pesticides. Specifically, the USA contents that Tropical Fruit has used registered pesticides in manners inconsistent with labeling. See 7 U.S.C.A. § 136j(a)(2)(G)(“(2) It shall be unlawful for any person — ... (G) to use any registered pesticide in a manner inconsistent with its labeling ... ”).

First, the Court acknowledges that it is “vested with jurisdiction specifically to enforce, and to prevent and restrain violations of [FIFRA].” 7 U.S.C. § 136n(c). Next, there is ample evidence in the record to demonstrate that Defendants violated the requirements of FIFRA. See 7 U.S.C. § 136 et seq.

The labels for the pesticides Benlate, Diazinon500-AG, Dithane F-45, Kocide 101, Soluble Oil Spray, Supracide2E, Tenn-Cop 5E, Microsperse Wettable Sul-phur, and Neemix, contain specific use restrictions regarding application methods, application rates, and target crops. (Docket No. 42, Attachment 4); (Docket No. 51, p. 3, ¶ 4); (Docket No. 51, Exhibit 3, Annex # 1). Again, “to use any registered pesticide in a manner inconsistent with its labeling” is a violation of FIFRA. 7 U.S.C. § 136j(a)(2)(G).

1. Label Requirements Regarding Prevention of Pesticide Drift

The labels for the pesticides Benlate, Kocide 101, Soluble Oil Spray, Supracide-2E, Tenn-Cop SE, Microsperse Wettable Sulphur and Neemix, each state in part: “[d]o not apply this product in a way that will contact workers or other persons either directly or through drift.” (Docket No. 42, SOF 16 & Attachment 4); (Docket No. 51, p. 3, ¶ 6). The government asserts that Tropical Fruit repeatedly violated the pesticide label requirements regarding prevention of pesticide drift. That is, “[t]here is always off-site drift of some amount of pesticides when pesticides are applied with an air blast sprayer at the Tropical Fruit Farm.” (Docket No. 42, SOF 18 & Attachment 7); see also (Docket No. 42, SOF 17 & Attachments 5 & 6).

A dozen incidents of alleged pesticides drift from Tropical Fruit’s farm into the community occurred on: 1) June 25, 1996 (Docket No. 42, Attachments 8-9); 2) July 1, 1996 (Attachments 8, 10-11); 3) July 2, 1996 (Attachments 8, 10, 12); 4) July 16, 1996 (Attachments 8, 10); 5) February 4, 1997 (Attachments 13-22); 6) March 3, 1997 (Attachments 8, 14-15, 18-19, 23); 7) March 4, 1997 (Attachments 8, 14-15, 19, 23); 8) March 5, 1997 (Attachments 8, 14-15, 19, 21, 23); 9) March 6, 1997 (Attachments 8, 14-15, 19, 21, 23-24); 10) March 20, 1997 (Attachments 8, 25-26); 11) May 21, 1997 (Attachments 8, 27); and 12) October 21, 1997 (Attachments 28-35). (Docket No. 42, SOF 19^43).

In the wake of the government’s evidence consisting of declarations, courtroom testimony, a videotape, and Tropical Fruit’s own pesticide application records, Tropical Fruit proffered three exhibits. The first is a Spanish language document for establishment of a special partnership and is irrelevant to the current discussion. (Docket No. 51, Exhibit 1); see also Footnote 1 infra. The second is a declaration under penalty of perjury from an expert in Agricultural Spray Technology regarding the sprayers utilized by the farm, (i.e., Smart Sprayer and Tower Sprayer). (Docket No. 51, Exhibit 2). However, the declaration is also irrelevant to rebutting the evidence proffered regarding Tropical Fruit’s allowance of pesticides to drift on the aforementioned dates. The third exhibit is Tropical Fruit’s response to the USA’s second set of interrogatories and request for production of documents and because the exhibit does not address the issue of pesticide drift nor FIFRA compliance it is of limited probative value to the controversy at this stage. (Docket No. 51, Exhibit 3).

Additionally, Tropical Fruit contends that summary judgment is warranted because the USA’s evidence is insufficient and objects to specific pieces of evidence. (Docket No. 50). One objection easily disposed of is the alleged insufficiency of unsworn declarations under penalty of perjury because 28 U.S.C. § 1746 specifically allows for the declarations to be of the same force and effect as affidavits. Another argument easily dispensed with is that the labels of the pesticides include instructions to minimize or mitigate drift which Tropical Fruit attempted or did comply with. Succinctly, at the summary judgment juncture, the Defendants must proffer proof to sustain its contentions and the record is devoid of such required evidence. William C. Hunt’s declaration is wholly inadequate to create a genuine issue as to Tropical Fruit’s compliance with the labels’ drift minimization instructions. (Docket No. 51, Exhibit 2).

The Court now examines the more specific objections to Docket No. 42, Attachments 5-35. (Docket No. 42, SOF 17-43). The Court begins with Docket No. 42, SOF 19 & 20, regarding a pesticides drift on June 25, 1996. Defendants do not contest that their records are accurate that “On June 25,1996, Defendants applied Ko-cide 101 and Supracide 2E in Farm sectors 2^1-6 between approximately 5:00 p.m. and 1:00 a.m.” (Docket No. 42, SOF 19, Attachment 8). Tropical Fruit argues that the statement, “As a result of Defendants’ June 25, 1996 application of pesticides, pesticides migrated beyond the boundary of the Tropical Fruit Farm,” (Docket No. 42, SOF 20), is not supported by paragraphs 7 and 8 of the March 13, 1997 declaration of Palmira Rodriguez. (Docket No. 42, Attachment 9 ¶¶ 7-8). Defendants argue that Palmira Rodriguez statement does not state the pesticides Kocide 101 and Supracide 2E were the substances smelled, that only a gas was smelled, the nature of the gas nor can the gas’ origin be traced to pesticide spraying, and the smelling was not time specific. The statements in question are:

“7. The following day, June 25, 1996, while I was in my bedroom with my two children, I smelled a very strong odor, like gas. That evening, at about 6:00 p.m., while Tropical Fruit continued to spray pesticides, I smelled an odor that was very strong, I took my children inside, closed the door of my bedroom, an turned the air conditioner on.

8. My youngest son started to cough immediately, and I noticed his eyes were teary. I immediately gave him respiratory therapy with the machine.”

(Docket No. 42, Attachment 9 ¶-¶ 7-8).

The Court holds Defendants argument is utterly without force. First, reading the two paragraphs in the context of Palmira Rodriguez’ whole statement their meaning becomes crystal clear. Palmira Rodriguez was relaying her first (of numerous) -experiences with pesticides coming unto property from Tropical Fruit’s farm in January of 1996. (Docket No. 42, Attachment 9). Her statement reveals that at 6:00 p.m. on June 25, 1996, while Tropical Fruit sprayed pesticides she smelled a very strong odor. (Docket No. 42, Attachment 9 ¶ 7). Second, the record is devoid of any evidence to rebut Palmira Rodriguez’ statement. See Mesnick v. General Elec. Co., 950 F.2d at 822 (Nonmovant must “present definite, competent evidence to rebut the motion.”). Palmira Rodriguez’ statement when combined with the admitted fact that Tropical Fruit sprayed the pesticides that evening direct a finding that on June 25, 1996, when Defendants applied Kocide 101 and Supracide 2E in the farm the pesticides entered Palmira Rodriguez’ premises. See Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d at 95 (“[S]ummary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.”).

Another incident of pesticides drift from Tropical Fruit’s farm onto adjacent properties occurred on July 16,1997. Compare (Docket No. 42, Attachments 8 & 10 ¶¶ 15-16, SOF 26-27), with (Docket No. 51, p. .6 ¶¶ 14-15). The Court need go no further. The record overwhelming supports that Tropical Fruit is liable for violations of FIFRA for using registered pesticides in a manner inconsistent with their labeling by allowing the pesticides to drift off of the farm onto adjacent properties. See 7 U.S.C. § 186j(a)(2)(G).' "

2. Label Requirements Regarding Authorized Target Crops

The label "for the pesticide Supracide 2-E with reference to mangoes states, in pertinent part to “[ajpply during the pos-tharvest to bloom stage ...” Compare (Docket No. 42, Attachment 4, SOF 46), with (Docket No. 51, p. 9 ¶ 33). Nevertheless, on July 2, 1996, Defendants applied Supracide 2-E to mango trees while mangoes were present on the trees. Compare (Docket No. 42, Attachments 8, 10 at ¶ 12, 12, SOF 47), with (Docket No. 51, pp. 9-10 ¶ 34); see Mesnick v. General Elec. Co., 950 F.2d at 822 (Nonmovant must “present definite, competent evidence to rebut the motion.”). Thus, that application was inconsistent with the pesticides labeling and constitutes a violation of FIFRA. See 7 U.S.C. § 136j(a)(2)(G).

The label for the pesticide Dithane F-45 does not authorize its use on mangoes. (Docket No. 42, Attachment 4, SOF 44); (Docket No. 51, p. 9 ¶ 31). Notwithstanding, on March 5, 1996, Defendants applied Dithane F-45 to mangoes. Compare (Docket No. 42, Attachments 8, 10 at ¶ 3, SOF 45), with (Docket No. 51, p. 9 ¶ 32). That application constitutes a violation of FIFRA. See 7 U.S.C. § 136j(a)(2)(G); 7 U.S.C. § 136(ee) (“The term ‘to use any registered pesticide in a manner inconsistent with its labeling’ means to use any registered pesticide in a manner not permitted by the labeling ... ”).

3. Label Requirements Regarding Worker Protection

The EPA has issued worker protection standard regulations that require agricultural employers to take specified measures to prevent the exposure of workers to pesticides. See 40 C.F.R. §§ 156.200 et seq. & 170.1 et seq.; 7 U.S.C. § 136w(a)(1). The labels for the pesticides Benlate, Di-thane F^15, Koeide 101, Soluble Oil Spray, and Supracide 2-E require that they be used only in accordance with the worker protection standards appearing in 40 C.F.R. Part 170. (Docket No. 42, Attachment 4, 39 Complaint ¶ 29 & Answer ¶ 20, SOF 48); (Docket No. 51, p. 10 ¶35).

First, the USA urges that Tropical Fruit has violated EPA regulations 40 C.F.R. § 170.120(b) & (e), regarding notification to farm workers of pesticides applications. The Court disagrees. 40 C.F.R. § 170.120(b) reads as follows:

(b)Notification to workers on farms, in nurseries, or in forests of pesticide applications. The agricultural employer shall notify workers of any pesticide application on the farm or in the nursery or forest in accordance with this paragraph.

(1) If the pesticide product labeling has a statement requiring both the posting of treated areas and oral notification to workers, the agricultural employer shall post signs in accordance with paragraph (c) of this section and shall provide oral notification of the application to the worker in accordance with paragraph (d) of this section.

(2) For any pesticide other than those for which the labeling requires both posting and oral notification of applications, the agricultural employer shall give notice of the application to the worker either by the posting of warning signs in accordance with paragraph (c) of this section or orally in accordance with paragraph (d) of this section, and shall inform the workers as to which method of notification is in effect.

(3) Notice need not be given to a worker if the agricultural employer can assure that one of the following is met:

(i) From the start of the application until the end of the application and during any restricted-entry- interval, the worker will not enter, work in, remain in, or pass, through on foot the treated area or any area within )4 mile of the treated area; or

(ii) The worker applied (or supervised the application of) the pesticide for which the notice is intended, and is aware of all information required by (d)(1) through (3) of this section.

40 C.F.R. § 170.120(b). None of the labels for the pesticides Benlate, Dithane F-45, Koeide 101, Soluble Oil Spray, and Supra-cide 2-E require both posting and oral notification of applications. (Docket No. 42, Attachment 4). Wherefore, notification, pursuant to 40 C.F.R. § 170.120(b)(2), can be accomplished by either posting or oral means alone. Although, the government has proffered evidence- that posting was not performed in accordance with § 170.120(c), (Docket No. 42, Attachments 4; 8, 10, 12, 36-38, SOF 48, 50, 52-53, 55),. no evidence has been presented showing employees were not orally notified. See 40 C.F.R. § 170.120(b)(2), (3) & (d). The Court may not infer at the summary judg-First, the USA urges that Tropical Fruit has violated EPA regulations 40 C.F.R. § 170.120(b) & (e), regarding notification to farm workers of pesticides applications. The Court disagrees. 40 C.F.R. § 170.120(b) reads as follows:

However, the evidence on the record does establish that Tropical Fruit failed on numerous occasions (March 5, March 25, May 13, and July 2, 1996) to post pesticide safety information in an area where workers or pesticides handlers could readily see and read the information as required by FIFRA regulations. Compare (Docket No. 42, Attachments 4, 8, 10 at ¶¶ 4, 7-8, 11, & 13, SOF 48, 50, 52-53, 55), with (Docket No. 51, pp. 10-11 ¶¶ 35, 37, 39^11); see 40 C.F.R. §§ 170.135(a) & 170.235(a). Additionally, on these same occasions, Tropical Fruit did not provide a decontamination area for washing off pesticides for pesticide handlers. See id.; 40 C.F.R. § 170.250. Lastly, on March 5 and May 13, 1996, the pesticide handlers, including persons who mix pesticides, did not wear personal protective equipment (“PPE”) as required by the labels for the pesticides Benlate, Dithane F-45, and Kocide 101. Compare (Docket No. 42, Attachments 4; 8; 10 at ¶¶4, 8; 36; 38; 39—Complaint ¶33 & Answer ¶20, SOF 49, 51, 54), with (Docket No. 51, pp. 10-11 ¶¶ 35, 37, 39^41); see 7 U.S.C. § 136j(a)(2)(G).

4. Label Requirements Regarding Pesticide Disposal

The label for the pesticide Diazinon 500-AG contains instructions for plastic container disposal, which states in pertinent part: “[tjriple rinse (or equivalent). Then puncture and dispose of in a sanitary landfill, or incinerator, or burn.” (Docket No. 42, Attachment 4, SOF 56); (Docket No. 51, p. 9 ¶ 42). Notwithstanding these requirements, on March 5, 1996, Defendants failed to triple rinse, puncture, or incinerate or dispose in a landfill, used containers of Diazinon 500-AG. Compare (Docket No. 42, Attachments 10 at ¶ 5, 36 SOF 57), with (Docket No. 51, p. 9 ¶ 43). By failing to comply with the pesticide label requirements regarding disposal practices, Defendants have violated FIFRA. See 7 U.S.C. § 136j(a)(2)(G).

B. CERCLA.

The USA also seeks summary judgment for liability under the fifth claim which alleges Defendants violated Section 106(a) of CERCLA, 42 U.S.C. § 9606(a) by foiling to comply with the EPA Order, which prevented Tropical Fruit from spraying pesticides in a manner that allowed the pesticides to drift onto adjacent properties. Tropical Fruit argues that the Court must dismiss the USA’s CERCLA claim because: (1) CERCLA cannot be applied to the facts of this case as a matter of law because the application of pesticides is exempted from any liability under CERCLA; (2) the Government’s case under CERCLA is devoid of essential elements such as evidence of a “disposal” or that there is a “facility” as both terms are defined by law. (Docket No. 48, p. 4). Tropical Fruit contends that the pesticide exemption under CERCLA, 42 U.S.C. § 9607(i) not only requires denial of the USA’s motion for summary judgment, but in fact mandates that the USA’s claim against Defendants for violation of CERCLA be dismissed.

1. EPA Order & CERCLA

The government asserts that Tropical Fruit when spraying pesticides would frequently spray in such a manner as to cause the pesticides to unlawfully drift onto adjacent properties. In order to totally quell Tropical Fruit from allowing the drift to continue to occur, the EPA, pursuant to CERCLA, issued the EPA Order, compelling Tropical Fruit to “immediately cease and desist from spraying Malathion, Su-pracide-2E, Captan 50, Dithane F-45, and any other materials that contain or are hazardous substances, at Respondents’ farm in such a manner that the pesticides, fungicides or other materials may drift or otherwise migrate beyond the boundaries of Respondents’ farm.” (Docket No. 42, Attachment 2 — Exhibit 2 ¶ 32); see also 42 U.S.C. § 9606(a). The EPA Order is predicated upon the determinations that the “there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from” Tropical Fruit’s farm. 42 U.S.C. § 9606(a); see (Docket No. 42, Attachment 2 — -Exhibit 2 ¶¶ 30-31). The USA maintains that Tropical Fruit nevertheless continued to spray pesticides allowing drift on at least seven (7) separate occasions in contravention of the EPA Order. The USA filed the instant suit on March 26, 1997. (Docket No. 1). The Court notes that the Respondents in the EPA Order are the same named Defendants in this-ease.

Clearly, the EPA has the power, delegated by the . President, to promulgate orders pursuant to 42 U.S.C. § 9606(a). See U.S. v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100, 1112-1113 (D.Minn. 1982); see also 42 U.S.C. § 9606(c). Equally clear, the Court has the power to enforce the EPA Order through injunctive relief, see 42 U.S.C. § 9606(a), and to fine violators. See 42 U.S.C. § 9606; United States v. Conservation Chemical Co., 619 F.Supp. 162, 192 (D.C.Mo.1985). Also, the USA seeks reimbursement from Tropical Fruit for response costs. See 42 U.S.C. § 9601(25); In re Hemingway Transport, Inc., 993 F.2d 915 (1st Cir.1993); United States v. Ottati & Goss, Inc., 900 F.2d 429 (1st Cir.1990); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146 (1st Cir.1989); see also (Docket No. 52, Exhibit 1). As the USA’s motion for summary judgment is limited to liability the assessment of relief is deferred.

This Court must enforce the EPA Order unless the EPA’s decision was “arbitrary and capricious or otherwise not in accordance with the law.” 42 U.S.C. § 9613(j)(2). Recently in Penobscot Air Servs. v. F.A.A., 164 F.3d 713, 720 (1st Cir.1999) the court reiterated the standard as follows:

Although “the ultimate standard of review is a narrow one,” the court must undertake “a thorough, probing, in-depth review” and a “searching and careful” inquiry into the record. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In order for an agency decision to pass muster under the APA’s “arbitrary and capricious” test, the reviewing court must determine that the decision is “rational,” Citizens Awareness Network, 59 F.3d at 290, that it “make[s] ... sense,” Puerto Rico Sun Oil, 8 F.3d at 77. Only by “carefully reviewing the record and satisfying [itself] that the agency has made a reasoned decision” can the court “ensure that agency decisions are founded on a reasoned evaluation of the relevant factors.” Marsh[ v. Oregon Natural Resources Council], 490 U.S. [360] at 378, 109 S.Ct. 1851[, 104 L.Ed.2d 377 (1989)] (internal quotation marks omitted).

When a District Court examines an agency decision under the arbitrary and capricious standard, it must determine “whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Baltimore Gas & Elec. v. Natural Resources Defense Council, 462 U.S. 87, 105, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983). Should the agency have considered the relevant factors and should the agency have not made a clear error in judgment, then the decision may not be cataloged by the reviewing court as arbitrary or capricious. See Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983); Dubois v. United States Dept. of Agriculture, 102 F.3d 1273, 1285 (1st Cir.1996); United States v. Hernandez, 979 F.Supp. at 76. Finally, although the standard is highly differential, “it is not a rubber stamp.” Dubois v. United States Dept. of Agriculture, 102 F.3d 1273, 1285 (1st Cir.1996).

Before diving headlong into discussion, the Court notes that the succeeding analysis in conjunction with the EPA Order, see (Docket No. 42, Attachment 2 — Exhibit 2 ¶¶ 8-29), when subjected to the “arbitrary and capricious” standard, substantiates that the EPA Order’s determination of “imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from” Tropical Fruit’s farm is sustained. (Docket No. 42, Attachment 2 — Exhibit 2 ¶¶ 30-31).

Covered Person

The Court holds that on the summary judgment record, Tropical Fruit, S.E., a Puerto Rico special partnership, is a potentially responsible party or covered person under 42 U.S.C. § 9607(a)(1)-(4). See 42 U.S.C. § 9607(a); 42 U.S.C. § 9601(20)(A) (“owner or operator”); 42 U.S.C. § 9601(21) (“ ‘person’ means an individual, firm, corporation, association, partnership, ... ”); Acushnet Co. v. Mohasco Corp., 191 F.3d 69, 74 (1st Cir.1999); Hemingway Transport, Inc., 993 F.2d at 931 (“Covered persons” includes current owners and operators of the facility.); see also (Docket No. 42, SOF 1-2). Because Tropical Fruit, S.E. is a special partnership duly organized pursuant to Puerto Rico law, imposing liability on the partners Avshalom Lubin, Cesar Otero Acevedo, and Pedro Toledo Gonzalez is ordinarily not as clear. (Docket No. 42, Exhibit 3 p. 14-15); see also (Docket No. 42, SOF 4-6). See Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1501 (11th Cir.1996) (Liability of limited partner under CERCLA determined by state law). However, Cesar Otero Acevedo and Pedro Toledo Gonzalez concede that they are “persons” under § 9601(21), thereby simplifying the process for those two. Further, as discussed in Footnote 1 supra, the determination' of whether Mr. Avshalom Lubin is the managing or even a general partner of Tropical Fruit is a fact in controversy. The Court also recognizes a more salient point regarding this issue. The Court very briefly explains.

Providing the partners all possible favorable inferences adduced from the summary judgment record, as the Court must in summary judgment mode, see Hahn v. Sargent, 523 F.2d at 464, “Tropical Fruit, S.P. owns” the farm. (Docket No. 42, SOF 2). Thus, at this summary judgment juncture, the partners are not “owners” within the meaning of CERCLA. See Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d at 1503.

The analysis reduces to the question of whether the partner, Avshalom Lu-bin, -is an “operator” of the farm. See Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d at 1505; United States v. Kayser-Roth Corp., 910 F.2d 24 (1st Cir.1990). “[The USA] must demonstrate the [Tropical Fruit, S.E.] partners either (1) actually participated in operating the Site or in the activities resulting in the disposal or' hazardous substances, or (2) actually exercised control over, or [were] otherwise intimately involved in the operations of [Tropical Fruit, S.E.].” Id.; see generally Efron v. Embassy Suites (Puerto Rico), Inc., 47 F.Supp.2d 200, 207-208 (D.P.R.1999). Thus, to find Avshalom Lubin to be a “covered person” the USA may have to address the Redwing test to determine if Mr. Lubin is an “operator” under CERCLA. See Redwing Carriers, Inc. v. Sara- land Apartments, 94 F.3d at 1505; New York v. Shore Realty Corp., 759 F.2d 1032, 1052 (2nd Cir.1985); United States v. Conservation Chem. Co., 619 F.Supp. 162, 190 (W.D.Mo.1985). Consequently, the USA’s request for summary judgment (Docket No. 52) as to Avshalom Lubin’s liability under CERCLA is DENIED.

Facility

The farm or agricultural facility owned and operated by Tropical Fruit in Guayanilla, Puerto Rico where the pesticides are sprayed constitutes a “facility” under CERCLA. See 42 U.S.C. § 9601(9)(A) & (B); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1151 (1st Cir.1989) (citing United States v. Conservation Chemical Co., 619 F.Supp. 162, 184-85 (W.D.Mo.1985) (“facility” includes every conceivable place where hazardous substances come to be located)); Uniroyal Chemical Co. v. Deltech Corp., 160 F.3d 238, 245 (5th Cir.1998) (“facility is defined in the broadest possible terms, encompassing far more than traditional waste sites.”).

Defendants, reliance on CERCLA Section 103(e), 42 U.S.C. § 9603(e), as a basis for contention that Tropical Fruit farm is not a “facility” is unpersuasive. Section 103(e) provides as follows:

(e) Applicability to registered pesticide product

This section shall not apply to the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act [7 U.S.C.A. § 136 et seq.] or to the handling and storage of such a pesticide product by an agricultural producer.

42 U.S.C. § 9603(e). Simply, CERCLA Section 103 deals exclusively with notification requirements with respect to releases of CERCLA hazardous substances, and is irrelevant to the determination of whether the Tropical Fruit farm constitutes a “facility”. The conclusion that Tropical Fruit farm constitutes a “facility” is buttressed by the caselaw finding liability for the transport, storage, spilling, and disposal of pesticides. See e.g. Hemingway Transport, Inc., 993 F.2d at 920 (Drums containing “hazardous substances”, solvents and pesticides, discovered at facility); South Florida Water Management District v. Montalvo, 84 F.3d 402 (11th Cir.1996); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489 (11th Cir.1996); United States v. Hardage, No. CIV-86-1401-P, 1989 U.S.Dist. LEXIS 17877, at *1 (W.D.Okla. Nov. 9, 1989).

Hazardous Substance

Defendants concede that the “pesticides Captan 50, Diazinon 500-AG, Di-thane F-45, Kocide 101, Malathion, Supra-cide 2E, and Tenn-Cop 5E are, or contain, hazardous substances as that term is defined by Section 101(14) of CERCLA, 42 U.S.C. § 9601(14).” (Docket No. 42, SOF 11); compare (Docket No. 1-Com-plaint ¶ 15), and (Docket No. 3 — Answer ¶ 8) with (Docket No. 50, SOF p. 2), and (Docket No. 51, SOF ¶ 1); see Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d at 1151 n. 6; cf. Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981 (1st Cir.1995). Furthermore, pursuant to CERCLA Section 102(a), 42 U.S.C. § 9602(a), the EPA promulgated regulations at 40 C.F.R. § 302.4 that list materials that fall under the ambit of “hazardous substances” within Section 101(14)(3) of CERCLA. See 40 C.F.R. § 302.4(a). Captan and Malathion are listed as hazardous substances at 40 C.F.R. § 302.4, and thus, are hazardous substances within the meaning of CERCLA Section 101(14). Additionally, Supracide-2E contains methidathion, a hazardous substance listed at 40 C.F.R. § 302.4. Of these materials, methidathion and malathion were detected in soil samples collected just outside of Tropical Fruit’s farm boundaries. (Docket No. 42, Attachment 2 — Exhibit 2 ¶¶ 14-15). Although the allegations are that the pesticides drifted onto adjacent properties in minute amounts, no minimum level of “hazardous substance” is required to trigger CERCLA coverage. See A & W Smelter and Refiners, Inc. v. Clinton, 146 F.3d 1107 (9th Cir.1998); Reichhold Chemicals, Inc. v. Textron, Inc., 888 F.Supp. 1116 (N.D.Fla.1995) (CERCLA liability does not require any threshold quantity or concentration of hazardous substance.). Thus, the pesticides are “hazardous substances.” See e.g. Hemingway Transport, 993 F.2d at 920 (“[D]rums containing various solvents and pesticides classified as “hazardous substances” under [CERCLA].”).

Actual or Threatened Release

A “release” is defined by CERCLA as:

any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes (A) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (B) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine. (C) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 [42 U.S.C.A. § 2011 et seq.], if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of such Act [42 U.S.C.A. § 2210], or, for the purposes of section 9604 of this title or any other response action, any release of source byproduct, or special nuclear :material from any processing site designated under section 7912(a)(1) or 7942(a) of this title, and (D) the normal application of fertilizer.

42 U.S.C. § 9601(22). “The courts have construed CERCLA’s definition of ‘release’ broadly.” Dedham Wafer Co. v. Cumberland Farms Dairy, Inc., 889 F.2d at 1152 (referencing State of New York v. Shore Realty Corp., 759 F.2d at 1045 (2d Cir.1985) .(“releases” include leaking tanks and pipelines, the continuing leaching and seepage from earlier spills, and leaking drums); United States v. Wade, 577 F.Supp. 1326, 1334 (E.D.Pa.1983) (“releases” include the leaching of hazardous substances into the soil)).

In addition to hand spraying, Tropical Fruit has applied pesticides via two types of airblast sprayers — the “Smart Sprayer” and the “Tower Sprayer”. Tropical Fruit applies or has applied numerous “pesticides” within the meaning of Sections 2(u) and 12 of FIFRA, see 7 U.S.C. §§ 136(u) and 136j, to its crops, including Benlate, Captan 50, Diazinon 500-AG, Dithane F-45. Kocide 101, Kocide LF, Malathion 25%, Microsperse Wettable Sulphur, Neemix, Soluble Oil Spray, Supracide 2-E, and Tenn-Cop 5E. Of these pesticides, Captan 50, Diazinon 500-AG. Dithane F-45, Ko-cide 101, Kocide LF, Malathion 25%, Su-pracide 2E, and Tenn-Cop 5E are, or contain, hazardous substances as that term is defined by Section 101(14) of CERCLA. See 42 U.S.C. § 9601(14). Allegedly, pesticide applications conducted with both the Smart Sprayer and the Tower Sprayer have resulted in numerous incidents of pesticides drifting or migrating into the community. That is, pesticide droplets, particles, and vapor have drifted or migrated onto adjacent properties. See (Docket No. 42, Attachment 2 — Exhibit 2 ¶¶ 14-18). The evidence of pesticide drift or migration in this case, as detailed in the United States’ motion for summary judgment, demonstrates numerous instances of movement of pesticides beyond the boundary of the Farm, which clearly falls within the scope of a “release” as defined by 42 U.S.C. § 9601(22) of CERCLA. See 42 U.S.C. § 9601(22) (“... any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment ...”); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d at 1152 (“Release” is broadly construed by courts.); see also Section III.A.1. Label Requirements Regarding Prevention of Pesticide Drift, infra. Moreover, CERC-LA liability also springs from the “threatened release” of a hazardous substance. See 42 U.S.C. § 9606(a); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d at 1152. Accordingly, the drift or migration of one or more of the pesticides Captan 50, Diazinon 500-AG, Dithane F-45, Kocide 101, Kocide LF, Malathion 250, Supracide 2E, and Tenn-Cop 5E beyond the boundary of the Tropical Fruit Farm constitutes a “release” or threatened release. See 42 U.S.C. §§ 9601(22) & 9606(a); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d at 1152. The Court notes that “[t]he express language of § 9607(a)(1) imposes liability on the owner or operator of a CERCLA facility without requiring a disposal.” Uniroyal Chemical Co. v. Deltech Corp., 160 F.3d 238, 250 (5th Cir.1998) (emphasis added); see also United States v. Alcan Aluminum Corp., 964 F.2d 252 (3rd Cir.1992). Disposal is an element of liability only under CERCLA Sections 107(a)(2) (regarding past ownership or operation of a facility), 107(a)(3) (regarding liability in connection with arranging for disposal of hazardous substances), and 107(a)(4) (regarding— transportation of hazardous substances for disposal). See 42 U.S.C. § 9607(a)(2), (3) and (4). Accordingly, contrary to Defendants’ assertion, “disposal” is not a necessary element of liability under Section 107(a)(1) of CERCLA.

2. Pesticide Exemption

Notwithstanding the above analysis, Tropical Fruit believes its liability under CERCLA is eviscerated by a head-on collision with CERCLA’s pesticides exemption. To begin, the Court of course refers to the statutory law in question; that is Subsection 9607(i) provides: '

(i) Application of a registered pesticide product

No person (including the United States or any State or Indian tribe) may recover under the authority of this section for any response costs or damages resulting from the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Aqt [7 U.S.C.A. § 136 et seq.]. Nothing in this paragraph shall affect or modify in any way the obligations or liability of any person under any other provision of State or Federal law, including common law, for damages, injury,- or loss resulting from a release of any hazardous substance or for removal or remedial action or the costs of removal or remedial action of such hazardous substance.

42 U.S.C. § 9607(i). There is a dearth of Court of Appeals caselaw construing the pesticide .exemption. The Eleventh Circuit is the only Circuit to have touched on the exemption with its most extensive brush with the issue as follows:

“The pesticide exemption does not, standing alone, absolve the Landowners of liability under CERCLA. The contamination at the Chemairspray Site did not result from the application of pesticides to the Landowners’ - property. Rather, it resulted from spills while loading planes and the drainage of contaminated rinse water following spraying runs. If the Landowners were being sued for contamination of their own property caused by the application of pesticides, then the Landowners’ liability would end at § 107(i).

While this is not the case, the pesticide exemption lends credence to' the view that the Sprayers have failed to state a claim of “arranged for” liability against the Landowners. The Landowners contracted with the Sprayers “to apply and/or distribute” pesticides. Again, the only reasonable assumption based on the allegations of the Sprayers’ complaint is the Landowners contracted to have pesticides applied to their property — not spilled on the Chemairspray Site. Given § 107(i) insulates the Landowners from liability for any contamination resulting from the application of pesticides to their property, it would be inconsistent to read § 107(a)(3) as imposing liability based on the Landowners having contracted to have pesticides applied to their property.”

South Fla. Water Management Dist. v. Montalvo, 84 F.3d 402, 409 n. 11 (11th Cir.1996); see also Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1511 n. 31. (11th Cir.1996) (Affirmed Section 9607(i) exempted defendant from liability for. proper application of FIFRA registered pesticides.). Thus, the Court turns to our fellow District Courts’ opinions- for persuasive guidance.

Of the District Court opinions surveyed, one of the first and most extensive examination of the pesticide exemption is discussed in United States v. Hardage, No. CIV-86-1401-P, 1989 U.S.Dist. LEXIS 17877, at *1 (W.D.Okla. Nov. 9, 1989), which is repeated here for ease of the reader:

Stock Yards argues that this statutory exclusion extends to the disposal of used pesticides, since the disposal “results from” the application of toxaphene by Stock Yards. Stock Yards then urges other language within CERCLA, that is the “generator” definition contained in 42 U.S.C. § 9607(a)(3) concerning liability of persons who “arranged for disposal”, and the definition of “release” contained in 42 U.S.C. § 9601(22) which excludes “the normal application of a fertilizer”, shows Congress intended to exclude liability under CERCLA for releases “resulting from” the application of a pesticide. Stock Yards then asserts that disposal of pesticide wastes, after the use of a pesticide, is such a release. Stock Yards’ brief at 7-9.

The United States responds that the pesticide exclusion in Section 107(i) provides a very limited exception to CERCLA liability. The United States urges that the language of Section 107(i), when read in the entire context of CERCLA, can in no way be interpreted to prohibit the United States from recovering response costs resulting from the disposal of registered pesticides. The United States argues that Stock Yards’ “reading” of Section 107(i) is clearly inconsistent with the plain meaning of the Section and its applicable legislative history. United States’ response brief at 2-4.

Words of a statute are to be interpreted as ordinarily defined and within the meanings commonly attributed to them. Glover Constr. Co. v. Andrus, 591 F.2d 554, 561 (10th Cir.1979), aff'd, 446 U.S. 608, 100 S.Ct. 1905, 64 L.Ed.2d 548 (1980). “It is to be presumed that ‘the legislative purpose is expressed by the ordinary meaning of the words used.’ ” Barnes v. Cohen, 749 F.2d 1009, 1013 (3rd Cir.1984) (citing Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962)), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985). And, where the terms of the statute are unambiguous, judicial inquiry is complete except in rare and unusual circumstances. Rubin v. United States, 449 U.S. 424, 431, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981). Finally, courts do not construe statutory phrases in isolation, but read statutes as a whole. United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984).

In applying these statutory construction standards, the Court first examined the dictionary definitions of the words involved. “Application” is defined as: “the act of applying,” and “the act of putting to a special use or purpose.” Websters II, New Riverside University Dictionary 118 (1984). “Disposal” is defined as “an act of throwing out or away.” Id. at 388. The United States argues the “application” language of Section 107(i) is clear and unambiguous. The Court agrees.

After examining the clear meaning of the words used by Congress in the pesticide exclusion, the Court then looked to the CERCLA statute as a whole. United States v. Morton, 467 U.S. at 828, 104 S.Ct. 2769. Section 107 of CERCLA, of which the Section 107(i) exclusion is a sub-part, establishes liability for: “(3) any person who by contract, agreement or otherwise arranged for disposal.... ” The fact that the general liability standard for disposal was omitted from the narrow exemption of Section 107(i) by the selection of the word “application” was not an oversight. The word “application” was not defined in CERCLA. However, when Congress adopted the FIFRA registered pesticide application exclusion in Section 107(i), Congress is presumed to have been aware of regulations implementing FIFRA which defined “application of a pesticide” as follows:

The term “application of a pesticide” means the placement for effect of a pesticide at or on the site where the pest control or other response is desired.

40 C.F.R. § 162.3(j).

Reading the statute as a whole, together with the appropriate regulations, shows clearly what the Congress intended. Congress intended that no person be permitted to recover response costs or damages attributable to the actual use.of a registered pesticide at its place of use.

While the Court finds the clear language of the statute displays Congress’ intention, examination of the legislative history further strengthens the Court’s interpretation. The final version of CERCLA’s pesticide application exclusion evolved from an early Senate bill — S.1480. Senate bill 1480, as originally reported, included three separate exclusions relating to fertilizer and pesticides, all of which were designed to exclude from liability releases due to the normal “field” application of fertilizer or pesticides. See remarks of Senator Cannon, 126 Cong.Reg. 30984 (Nov. 24, 1980). When read together, these sections make clear that the exclusion was designed to protect farmers from liability for releases attributable to application of pesticides at their place of use. Section 2(b)(16) of Senate bill 1480 excluded “the normal field application of fertilizer,” from the definition of “release”, while Section 4(k) exempted from liability “removal costs or damages resulting from the field application of a pesticide product....”

The Committee Report on Senate bill 1480 issued on July 11, 1980 by the Senate Committee on Environment and Public Works discussed why Congress wanted to limit the exclusion under Section 4(k) [the pesticide application exclusion] to field application only, and not to disposal:

In the course of its deliberations on the bill, the Committee reviewed a substantial body of evidence indicating that injuries to humans and damages to natural resources and food from pesticide releases are widespread. In some cases, these injuries and damages can be traced to spillage, leakage, or improper disposal of pesticides, their residue, and wastes.

The exclusion covers only liability for “field application” of a pesticide. This is intended to mean the use of a pesticide in accordance with its purpose....

... The prohibition on use of the fund is a narrow one, covering only those releases which are “field applications” in accordance with the purposes of the product. Claimants who are injured by spilling, dumping, disposal, or leaking of pesticides, whether intentional or accidental, would have recourse to the Fund and section 4 liability provisions under this provision.- (Emphasis added).

Report No. 96-848, Environmental Emergency Response Act, Report of the Committee on Environment arid Public Works at 45, U.S. Senate (July 11,1980).

Congress’ intent to have a narrow exemption from liability limited solely to ap7 plications to place of use is further reinforced by other legislative history. An example is that the American Farm Bureau opposed Senate bill 1480 because it felt the exemption was, too narrow since it did not apply-to transport or storage of pesticides. 126 Conf.Rec. S.26058 (Sept. 18, 1980). In considering a similar bill in September, 1980, the House discussion indicated the pesticide exclusion was designed to apply to “farmers who apply chemicals on their own property.” See remarks of Rep. Breaux, 126 Conf.Rec. 26334 (Sept.. 19,1980). While the pesticide exemption in Senate bill 1480 was later changed on the floor of the Senate to remove the word “field”, statements made at the time show “these changes in no way ... alter the original intent of these exclusions reflected in the legislative history accompanying S.1480 as originally reported.” See remarks of Senator Cannon, 126 Cong.Ree. S.15006 (Nov. 24,1980).

The Stock Yards has provided the Court with no further authority or legislative history which would convince the Court, as Judge West found, that Congress intended no distinction between “application” and “disposal” of a pesticide product registered under FIFRA. Accordingly, the Stock Yards’ motion for summary judgment should be DENIED as Section 107(i) pesticide application exclusion provides no protection for liability because of disposal.

United States v. Hardage, No. CIV-86-1401-P, 1989 U.S.Dist. LEXIS 17877, at *7-15.

The Court is convinced that the pesticide exemption of CERCLA is a narrow exemption, See Jordan v. Southern Wood Piedmont Co., 805 F.Supp. at 1582. The contours of the pesticide exemption have been honed as to not cover pesticide disposal, storage, spills, transport. See South Fla. Water Management Dist. v. Montalvo, 84 F.3d at 409 n. 11 (Exemption inapplicable to “spills while loading planes and the drainage of contaminated rinse water following spraying runs.”); Cameron v. Navarre Farmers Union Coop. Ass’n, 76 F.Supp.2d at 1182 (Not everything done with a pesticide is an “application”, and CERCLA retains liability for a “release” of a pesticide.); State v. Almy Bros., Inc., No. 90-CV-818, 1998 WL 438523, at *5 (CERCLA exempts “application” but, retains liability for “spilled or released pesticides on the site.”); Redwing Carriers, Inc. v. Saraland Apartments, Ltd., 875 F.Supp. at 1565 (“Application” is exempt, but CERCLA “retains liability for a ‘release’ of such pesticide.”) (quoting In re Sundance Corp., 149 B.R. 641, 663 (Bankr.E.D.Wash.1993)); United States v. Morrison-Quirk Grain Corp., No. CV88L-720, 1990 WL 482139, at *5 (Pesticide’s “release” due to explosion cannot be considered an “application”.); United States v. Hardage, No. CIV-86-1401-P, 1989 U.S.Dist. LEXIS 17877, at *14 (Pesticide exemption under CERCLA applies to “field application” and not to “disposal”, transport or storage.); see also South Fla. Water Management Dist. v. Montalvo, No. 88-8038-CIV-DAVIS, 1988 WL 242688, at *1 (Spill and pesticides wastewater not covered by “Farmer’s Exemption.”). More importantly for this case, not every “application” is exempted for CERCLA liability.

“As the party seeking to take advantage of the statutory exemption provided by 42 U.S.C. § 9607(i), [Tropical Fruit] bears the burden of proof.” Cameron v. Navarre Farmers Union Coop. Ass’n, 76 F.Supp.2d at 1182 (citing United States v. Morrison-Quirk Grain Corp., No. CV88-L-720, 1990 WL 482139, at *2). Although CERCLA does not define “application”, the Court recalls from that the FIFRA regulations define “application of a pesticide” as the “placement for effect of a pesticide at or on the site where the pest control or other response is desired.” 40 C.F.R. 162.3(j); see United States v. Hardage, No. CIV-86-1401-P, 1989 U.S.Dist. LEXIS 17877, at *11. “Thus, [Tropical Fruit] must show that the [pesticides] it used [were] registered under FI-FRA and that it applied it in the customary manner.” Cameron v. Navarre Farmers Union Coop. Ass’n, 76 F.Supp.2d at 1182; see Jordan v. Southern Wood Piedmont Co., 805 F.Supp. at 1581; United States v. Hardage, No. CIV-86-1401-P, 1989 U.S.Dist. LEXIS 17877, at *14. However, the Court has already found in Section III.A.1. infra, that Tropical Fruit applied the pesticides in a manner which allowed for drift in contravention of FI-FRA labeling requirements. Because the Court has held that the pesticides, from the evidence on the summary judgment record, were improperly applied by Tropical Fruit, those incidents are not afforded protection by the pesticides exemption under § 9607(i). See id. (Defendant’s liability depends “upon whether a proper ‘application’ occurred, ... ”); see also Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d at 1511; United States v. Hardage, No. CIV-86-1401-P, 1989 U.S.Dist. LEXIS 17877, at *13.

Tropical Fruit has not proffered any authority that convinces that Court that a misapplication of pesticides which causes contamination on adjacent properties is afforded shelter under the pesticides exemption. Practically the Court’s holding makes sense with purpose of CERCLA to deter hazardous waste proliferation. The drift of pesticides can readily be analogized to an industrial polluter that allows hazardous substances to infiltrate neighbors properties. Accordingly, the USA’s motion for summary judgment is GRANTED and Tropical Fruit, with the exception of Avshalom Lubin, is consequently held hable under CERCLA,

IV. CONCLUSION

Accordingly, pursuant to Section 16(c) of FIFRA, 7 U.S.C. § 136n, Defendants, Tropical Fruit, S.E., and its general partners, Cesar Otero Acevedo, and Pedro Toledo Gonzalez, are subject to an injunction requiring them to:

1. Cease and desist frpm allowing pesticides to drift onto adjacent properties;

2. Cease and desist from using pesticides on unauthorized target crops in violation of the pesticide labels, including using Di-thane F-45 on mangoes, and cease and desist from using pesticides at times prohibited by the label, including using Supra-cide 2-E at times other than the period from the postharvest of mangoes until the bloom stage of mangoes;

3. Provide post pesticide safety information in an area where workers or pesticides handlers can readily see and read the information, provide a decontamination area for washing off pesticides, and require and ensure pesticide handlers pesticide handlers, including persons who mix pesticides, wear personal protective equipment (“PPE”) as required by the labels for the pesticides; and

4. Properly dispose of all pesticide containers according to label requirements.

Further, Defendants, Tropical Fruit, 5.E., and its general partners, Cesar Otero Acevedo, and Pedro Toledo Gonzalez, are held hable for violations of CERCLA.

WHEREFORE, the Court