209.02.19 Ark. Code R. 022

Current through Register Vol. 49, No. 10, October, 2024

Rule 209.02.19-022 - Pesticide Enforcement Response Rules

I.STATEMENT OF PURPOSE

Pesticides are valuable to Arkansas' agricultural production and the protection of man and his possessions from insects, rodents, weeds, plant diseases, and other pests. It is essential to the public health and welfare that pesticides be used properly to prevent adverse effects on man and the environment.

The puipose of the regulation is to provide a fair and consistent mechanism by which compliance with the Pesticide Use and Application Act, as amended, and the Pesticide Control Act, as amended, and the rules written pursuant thereto can be achieved.

II.DEFINITIONS

As used in this policy:

A.Base Fine: The midpoint of a civil penalty range. [Example: The civil penalty range for refusal to keep proper records (1^st level of enforcement) is $100.00 to $500.00. The base fine is $300.00]

B.Case Development Review Panel: An internal committee of staff including:

1. The appropriate Division Director, or the appropriate Section Manager,

2. The Agency Asst. Director, and

3. The Agency Director or the director's designee. The Case Development Review Panel will carefully review all case documentation to insure completeness and to insure that the recommended enforcement action is appropriate.

C.Level of Enforcement: The category by which a violative incident is considered a first, second, third, or fourth offense.

For a violation to be considered as a second or subsequent offense, it must be a repeat of a violation for which a previous enforcement action has been taken by the Plant Board. The previous violation/violations must have occurred within the past 3 years.

D.Minor Violation: A violative incident which does not involve human health, safety, or endanger the environment; or other incidents of non-compliance which do not create a competitive disadvantage for licensees in full compliance.

E.Major Violation: A violative incident which affects human health, safety, or the environment; or other incidents of non-compliance which create a competitive advantage over licensees in full compliance; or a history of repetitive violative incidents.

X In no case shall a single application or drift incident by a pesticide applicator be considered multiple violations based on the number of complaints.

F.Auxin Pesticides: Group 4 herbicides as categorized by the Weed Science Society of America (WSSA).

G.Egregious Violation: For violations occurring prior to July 24, 2020, a violation that causes significant off target crop damage occurring as a result of an application of:

1. Dicamba; or

2. An Auxin containing herbicide; or

3. Any new herbicide technology released after August 01, 2017.

For violations occurring on or after July 24,2020, a violation where application of one (1) of the following herbicides is used intentionally in violation of the federal label requirements or a state law or rule regarding its application:

1. Dicamba; or

2. An auxin-containing herbicide; or

3. A new herbicide technology released after August 1, 2017.

H.Off-target: Any area outside the target area (or within or across any buffer zone if rules require one) where an application, included as part of production practices, was made.

I.Off Target Crop Damage: Any symptomology from an off label application.

J.Damage: The presence of symptomology, commonly associated with exposure to a herbicide, on a plant. For purposes of determining a regulatory response, damage does not indicate any level of economic impact but rather exposure to a chemical that results in expression of a physical change in the exposed plant, including but not limited to necrotic spots, cupping of leaves, epinasty, chlorotic spots or necrotic plants.

K.Respondent: A dealer, manufacturer, firm, applicator, or individual charged with a violation of the Pesticide Use and Application Act as amended, the Arkansas Pesticide Control Act, as amended, and the rules written pursuant thereto.

L. The firm shall be named as the responsible party for a violative incident. Except that for a violative application incident, the enforcement level for an aerial application firm shall be determined by the past record of violations of the pilot making the application. If license suspension is the indicated level of enforcement, the license of the pilot making the application is the license to be suspended. However, in no case shall the pilot making the application be responsible for violative actions for which the firm is responsible.

III.LEGAL AUTHORITY

A. "Arkansas Pesticide Use and Application Act" A.C.A. 20-20-201 et. Seq. And Regulations.

B. "Arkansas Pesticide Control Act" A.C.A. 2-16-401 et. Seq. And Regulations.

IV.ENFORCEMENT ACTIONS

Under the preceding Arkansas Codes, The Plant Board has several options for enforcement action. These are:

A.Warning Letter: For minor, 1^st level of enforcement violations, the Board or Board Staff will issue a warning letter. The letter will cite the specific violation. The letter will also identify any corrective action that may be needed and notify the respondent that further violations will result hi more severe enforcement action.

B.Stop Use/Stop Sale: The use or sale of unregistered, deficient, or adulterated pesticides; the use of faulty equipment; or an invalid applicator's registration, etc., will remain in effect until violation is corrected.

C.Informal Agreement: When a violation has been alleged, the respondent has the option of accepting the prepared settlement agreement prepared in accordance with the requirements of this regulation, an informal hearing or a board/committee hearing. The purpose of the informal hearing is to resolve a complaint or incident. A hearing officer will meet jointly with the respondent and Plant Board Staff. The group will seek consensus on an appropriate enforcement action for recommendation to the Board. Enforcement action based on the Penalty Matrix (Appendix A) will include Civil Penalty and/or license suspension, revocation, nonrenewal, or registration cancellation. The Full Board acts on all recommendations resulting from the informal hearing.

D.Board/Committee Hearing: If the respondent chooses to bypass the informal agreement process or if an agreement cannot be reached during the informal hearing, a hearing will be held by the Pesticide Committee of the Board. Enforcement action will include Civil Penalty and/or license suspension, revocation, non-renewal, or registration cancellation. Following the Committee hearing, a written Finding of Fact, Conclusion of Law, and recommendation will be submitted to the Board. The Full Board will act on all recommendations of the Committee.

E.immediate Suspension of License: (Arkansas Pesticide Use and Application Act Only) The Board may suspend, pending inquiry, for not more than 10 days, any license or permit issued by the Board for violation of A.C.A. 20-20-201 et.seq.

F.Referral to Prosecuting Attorney: The Plant Board has the option of referring violations of the Pesticide Use and Application Act, and the Pesticide Control Act to the prosecuting attorney.

G.Referral to EPA: The Plant Board will negotiate cases of referral with EPA to determine the appropriate action.

V.INCIDENT INVESTIGATION

An incident investigation will be initiated when:

A. Routine compliance monitoring indicates a violation has occurred.

B. A formal complaint that an alleged violative incident has occurred (Filing of written form by a complainant). In cases of apparent immediate endangerment to health or the environment, the written notification may be waived and the investigation of the alleged incident will begin immediately.

The processing sequence for an incident investigation is outlined in Figure I.

FIGURE I

Processing Sequence

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VI.ACTIVATION OF ENFORCEMENT RESPONSE POLICY

An apparent violation of law and/or regulation must be documented to initiate an enforcement action.

Documentation must conform to the requirements of the Pesticide Division. The sequence of events within the enforcement response policy is as follows:

FIGURE II

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VII.INTERNAL REVIEW

The Case Development Panel will carefully review all documentation and records to determine:

A. That apparent violation/violations have occurred.

B. Whether the apparent violations are Minor and/or Major violations.

C. The correct level of enforcement based on the penalty matrix and the documented history of the applicator and/or company is proposed.

Concurrence with the Division's finding by the Panel must be unanimous before further action can be taken on the case.

VIII.HEARINGS

The informal hearing officer and/or the appropriate Committee and/or the Full Board will carefully review the documentation and hear cases of alleged violations.

A violation will be determined by documentation of criteria as specified in Appendix A. The severity and level of enforcement of a violation will be determined by the three (3) factors in Section VII; as they are applied to the Penalty Matrix (Appendix A).

If a violation is determined in this sequence; the following factors will be considered;

A. Cooperation of the respondent.

B. Other extenuating/mitigating circumstances.

The Hearing Officer/Committee/Board may use these factors to accelerate or mitigate enforcement action. When a civil penalty is the preferred action, the base fine may be increased or decreased based on these factors. The civil penalty will not be more or less than the range for the specific violation listed in Appendix A.

The Full Board will take action to determine the final disposition of the case.

IX.RIGHT OF APPEAL

Any person aggrieved by any action of the Plant Board may obtain a review thereof by filing in circuit court within 30 days of notice of the action, a written petition praying that the action of the Plant Board be set aside.

PENALTY MATRIX Appendix A

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209.02.19 Ark. Code R. 022

Adopted by Arkansas Register Volume MMXXI Number 07, Effective 1/2/2020