Review of Washington State Department of Agriculture's Pesticide Enforcement Program | Region 10 | US EPA

Jump to main content.

Review of Washington State Department of Agriculture's Pesticide Enforcement Program


February 9, 1998

TABLE OF CONTENTS
Executive Summary

INTRODUCTION

BACKGROUND
EPA REQUIREMENTS FOR STATE PESTICIDE PROGRAMS
ASSESSMENT OF WSDA’S ENFORCEMENT IMPLEMENTATION PROCEDURES ----Training of Enforcement Personnel
CONCLUSIONS AND NEXT STEPS

FINDINGS AND RECOMMENDATIONS

Appendix A
Appendix B
Appendix C

INTRODUCTION

Washington State Department of Agriculture’s (WSDA) pesticide enforcement program was reviewed by EPA to determine whether the laws and procedures and the implementation of those laws and procedures are adequate when measured against the delegation requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This review focused primarily on how WSDA implements its pesticide enforcement program. The review did reconsider the laws and regulations that govern Washington’s pesticide program only to the extent that the laws and regulations have changed significantly since the program was first delegated. The findings of this review will provide direction in EPA’s approach to oversight of other states in Region 10 as well as nationally.

Under FIFRA, EPA evaluates the State’s pesticide enforcement program annually as part of a cooperative agreement grant, and this review is an extension of that process. This review addresses concerns raised by the public and environmental groups as a result of intense media coverage regarding a pesticide spraying incident on November 2, 1996, in the Columbia Basin. Numerous letters to EPA regarding this and other pesticide incidents expressed concerns ranging from pesticide toxicology to the ability of WSDA to protect the public from pesticide exposure. Some expressed concern that WSDA seems hesitant to seriously investigate or to enforce the laws. Environmental organizations asked if WSDA could be “quickly reformed to provide an effective enforcement program capable of protecting public health.” Some believe that WSDA’s investigative process has no components or procedures which address the concerns of people, and that WSDA has developed a culture which “denies the toxicity of these chemicals and protects pesticide manufacturers and applicators to the detriment of innocent citizens.” However, EPA also received letters from the pesticide industry as well as elected officials who are very satisfied with how WSDA is running the program.

The Director of WSDA requested that EPA expand its review to include everything WSDA is doing in the Pesticide Management Division in order to make sure EPA and the public have a complete view of all WSDA’s pesticide activities. EPA has provided an overview of WSDA’s other programs and efforts in the next section. The Agency recognizes the considerable value of these efforts as part of a comprehensive pesticide program. However, this review focuses on EPA’s statutory responsibilities to ensure the adequacy of state pesticide enforcement programs.

This report is divided into an introduction, four sections and appendices. The first section is the background and it includes a description of WSDA’s pesticide program and organizational structure. The second section describes how states acquire primary enforcement authority under FIFRA and delineates EPA and state roles in the enforcement process. The third section discusses EPA’s requirements for state pesticide programs, the Washington State laws and regulations that meet these requirements, and WSDA’s implementation of these laws and regulations. The fourth section contains conclusions and recommendations.



BACKGROUND

General

The legal definition of a pesticide is quite broad. With a few exceptions, any chemical or device used to “get rid of” a living organism, is regulated under pesticide law. Agriculture is the primary user of pesticides, but there are many non-agricultural pesticides such as lawn “weed & feed,” household and hospital disinfectants, drinking water disinfectants, mosquito repellents, paints containing wood preservatives, plant growth regulators and defoliants. Because this definition is so broad, most of us have used a pesticide at some point in time.

The use of a pesticide is primarily regulated through the directions that appear on the label of the product and on literature that accompanies the product when it is sold. Those labeling directions are approved by EPA. Any restrictions or prohibitions contained on the labeling are enforceable through federal and state law. “The label is the law” for all pesticide users. When special problems arise, many states also develop their own regulations which add controls on the use of pesticides beyond what is already on the EPA-approved labels.

Overview of WSDA’s Pesticide Program

The WSDA pesticide program regulates the sale and use of all pesticides in Washington State. The program investigates complaints of pesticide misuse, conducts field inspections of pesticide manufacturers and applicators, and provides technical assistance to pesticide users. It annually reviews and registers approximately 8,500 pesticide products for use in the State. The State registration process does not involve an extensive review of data on the potential adverse impacts of pesticide products since that is done by EPA when the products are registered nationally. State registration does provide WSDA with knowledge and control of which pesticide products are marketed in the State and provides a source of revenue through registration fees. WSDA also processes an average of fifty requests for special pesticide registrations. These registrations meet special pest control needs such as when a pest outbreak occurs and there is no other product available to control the problem. The program tests, licenses and administers a continuing education program for more than 25,000 pesticide applicators, dealers and consultants. It administers a program to train Spanish-speaking farm workers in safe and legal use of pesticides, and administers the Waste Pesticide Disposal Program, which collects and disposes of canceled, suspended or unusable pesticides from State residents and businesses. It also develops programs to protect resources such as ground water from pesticide or fertilizer contamination. The program is funded by licensing and registration fees, federal grants, the State general fund and, for the waste pesticide program, the State toxics control account.

The program works closely with other State and federal agencies on pesticide-related issues. For example, when complaints involving human health concerns are investigated, WSDA works with the Department of Health and/or the Department of Labor and Industries. WSDA’s primary role in these cases is to investigate violations of pesticide law.

Organizational Structure

The mission of the WSDA is “to serve the people of Washington State by developing and implementing sound public policies which support a viable agricultural industry and which promote consumer and environmental protection. WSDA’s Mission Statement, 1997. To accomplish this mission, WSDA’s Pesticide Management Division (PMD), which is headquartered in Olympia, Washington, has established field offices in Spokane, Yakima, Wenatchee, and Mount Vernon with a total staff of about 33 people. The PMD has three branches: Registration, which includes the feed and fertilizer program, with 4.5 people; Program Development/Licensing, which includes the Waste and Water Quality Program, with 11.5 people; and Compliance, with 17 people.

The Registration Services Branch registers approximately 8,500 pesticides annually, evaluates and submits requests for emergency uses of pesticides to EPA, evaluates, approves, or denies requests for registrations to address special local needs, and provides label review and interpretation for various state and federal agencies, organizations and individuals. The Program Development Branch licenses approximately 25,000 applicators, dealers and consultants annually, administers a continuing education program, conducts a farm worker education program for Spanish speaking farmers/farm workers, and carries out other public safety and environmental protection activities such as development of ground water protection plans. The Program Development Branch also manages the Pesticide Waste Disposal Program.

The WSDA Compliance Branch, the focus of this review, is administered by a program manager and three front-line supervisors. Inspections and investigations are conducted by eleven Agricultural Chemical Specialists. The Compliance Branch has a case review officer and a manager, both in Olympia, who work on special compliance issues. The Compliance Branch investigates complaints of pesticide misuse, inspects manufacturing and distribution facilities and licensed applicators, and provides technical assistance. The staff are decentralized: three are in Olympia, one is in Mt. Vernon, three are in Yakima, two are in Spokane, and two are in Wenatchee.


How States Acquire Authority to Enforce Pesticide Regulations

States acquire primary enforcement responsibility for pesticide use violations when they enter into a “Cooperative Agreement” with EPA. The main criteria for EPA to delegate that authority to any state are:

EPA has provided more detailed criteria in a 1983 interpretive rule on “State Primary Enforcement Responsibilities,” 48 Federal Register 404-411 (January 5, 1983). EPA monitors state programs annually through the “Cooperative Agreement.” In addition to providing a mechanism for coordinated enforcement action for pesticide use and EPA oversight of the state program, FIFRA Cooperative Agreements are also a federal funding mechanism for state enforcement programs, pesticide applicator training and licensing, and new EPA initiatives.

Washington State has been delegated primary enforcement responsibility for pesticide use violations.

FIFRA also allows EPA to delegate to states the responsibility for training and licensing of pesticide applicators who apply “Restricted Use” pesticides [FIFRA § 11]. Restricted Use pesticides are those which are highly toxic to humans or have a high potential for environmental harm. Applicators of Restricted Use pesticides must obtain mandatory training and are subject to higher FIFRA penalties if they don’t follow the label directions.

These delegations have been in place since 1978 [see 43 Federal Register 13434 (March 30, 1978)]. The Department of Agriculture is the State “FIFRA lead agency” with whom EPA enters into a Cooperative Agreement each year.

Because Washington State has primary enforcement responsibility for pesticide use violations, EPA can only take pesticide use cases referred to the Agency. However, states do occasionally ask EPA to pursue action under FIFRA when both the state and EPA agree that federal action would be more effective at gaining compliance.


EPA and WSDA Roles in Pesticide Enforcement

WSDA has primary responsibility for conducting pesticide use inspections and investigations, reviewing the cases, and taking enforcement action when violations of State laws or regulations are revealed. EPA also conducts a limited number of use inspections, which are coordinated with the State. Under the Cooperative Agreement, EPA will not initiate any use type inspection until the State agrees to EPA taking the lead.

EPA Region 10 and WSDA have also agreed that WSDA will conduct pesticide producer establishment inspections (PEIs) and marketplace inspections (MPIs). These are conducted to enforce FIFRA’s requirements that any pesticide sold or distributed be registered by EPA. EPA Region 10 also conducts a limited number of PEI's and MPI's, which are coordinated with WSDA staff. Normally, only the MPI's in which FIFRA violations have been revealed are forwarded to Region 10 for review and enforcement action. All PEI’s are forwarded to EPA for review and enforcement action.

Each year EPA Region 10 typically provides training to WSDA investigators. The content of the training varies from year to year depending on priority issues and recommendations from the states. Recent emphasis has included basic inspection techniques and Worker Protection Standard training. The annual inspector training also provides a valuable opportunity for the investigators from different programs to get to know each other and to share experiences and ideas.

Cooperative agreement funds (allotments) supporting pesticide activities are divided into three areas: 1) base funds for core FIFRA enforcement; 2) pesticide program development and 3) discretionary funds for special projects. The pesticide enforcement allotment is determined by EPA’s Office of Enforcement and Compliance Assurance as described in 40 CFR § 35.115(j) and is published with annual grant guidance. The allotment is determined by considering the state’s population, the number of pesticide producing establishments, number of certified private and commercial pesticide applicators, and the number of farms and their acreage. On average, WSDA receives approximately $400,000 annually from EPA for pesticide program and enforcement activities.

Details about the specific number of inspections committed to by WSDA and other information on the roles and responsibilities for EPA and the State can be found in the 1998 Cooperative Agreement application.


EPA REQUIREMENTS FOR STATE PESTICIDE PROGRAMS

Criteria and Scope

The 1983 interpretive rule on state primary enforcement responsibilities [48 Federal Register pp. 404-411] provides criteria which EPA uses to determine the adequacy of state pesticide programs. Those criteria are categorized into two main headings: “Adequate Laws and Regulations” and “Adequate Procedures for Enforcing the Laws.” Although the interpretive rule contains additional criteria, this review will be limited to those criteria directly related to the enforcement of pesticide use.

Adequate Laws and Regulations

General

Washington State’s two major pesticide statutes, passed into law in the late sixties and early seventies are the “Washington Pesticide Control Act” (Chapter 15.58 of the Revised Codes of Washington) and the “Washington Pesticide Application Act” (RCW 17.21). As authorized in these statutes, the “General Pesticide Rules” (Washington Administrative Code 16-228) were promulgated by WSDA in order to provide more detail and clarity to the State’s pesticide control and application acts.

The two statutes and the general pesticide rules have all been periodically updated to remain consistent with environmental changes and the Federal laws, but have not changed significantly. Under the authority of the statutes, WSDA has also promulgated special rules such as those to assess penalties and those to address certain pesticide use problems.

Sections RCW 17.21.230, 17.21.340 and 17.21.420 are several examples of Washington law which address human health concerns. RCW 17.21.230 creates a Pesticide Advisory Board which consists of four licensed pesticide applicators, a pest control consultant, a licensed pesticide dealer manager, an entomologist, a public service toxicologist, several members from the agricultural industry and two members from the environmental community. RCW 17.21.340 outlines the procedures for persons aggrieved by pesticide violators of Washington’s pesticide laws and RCW 17.21.420 requires the Department to develop and maintain a list of pesticide-sensitive individuals so that they can be notified of any pesticide applications in their areas.

In 1989, the Washington legislature formed the Pesticide Incident Reporting and Tracking Review Panel (PIRT) to assure adequate, timely monitoring of pesticide related incidents, and to protect workers and the public from the effects of pesticide misuse. The PIRT panel is chaired by a representative of the Department of Health. WSDA is one of the five member agencies on the panel. The other member agencies are the Departments of Labor and Industries, Ecology, Fish and Wildlife as well as a representative from Washington State University, University of Washington, Washington Poison Center, the general public and a practicing toxicologist. PIRT serves as a scientific body to review pesticide-related issues and make recommendations to the legislature or appropriate agencies. Few states have comparable pesticide incident tracking efforts. The responsibilities of the panel include, but are not limited to:


In the 1983 EPA interpretive rule, EPA stated that a state must have adequate use restrictions, authority to enter places where violations may occur, and flexible enforcement remedies as a condition of being granted primary responsibility for pesticide use enforcement [48 FR 408]. Washington legal authorities were thoroughly reviewed when primary enforcement responsibility was granted to the State. The following comparison of FIFRA and State misuse authorities is not intended to be a reevaluation of State authorities that EPA has previously deemed adequate. The comparison is meant to show the breadth of State authority compared to FIFRA and then concentrate on the effect of the 1995 legislation RCW 43.05 -- Technical Assistance Programs, also referred to as House Bill 1010 in this report.

Enforcement of Pesticide Use (Label) Requirements

Under FIFRA, pesticide misuse is any application not done in accordance with pesticide label directions. Washington prohibits pesticide misuse through several laws. RCW 15.58.150(2)(c) states, “It shall be unlawful for any person to use or cause to be used any pesticide contrary to label directions or to regulations of the director if those regulations differ from or further restrict the label directions...” In addition, the State may enact regulations to address specific pesticide use problems that are not covered by the federal label and can cite a person for violating such regulations.

Under RCW 17.21.150(4), it is unlawful for a person applying pesticides to have “operated in a faulty, careless, or negligent manner.” Although the pesticide label is a standard, this gives the State a broader authority to address actions which are not in violation of label wording but are contrary to what a reasonable person would have done. WSDA does not use this authority often because violations are difficult to prove. Nevertheless, there is no federal violation comparable to RCW 17.21.150(4).

A significant advantage of the State pesticide authorities is that local problems can be addressed through local regulations. The only substantive route that EPA has to address local problems is by changing the pesticide label, but this process does not lend itself to participation by those who may be directly affected. It also adds restrictions to the label that are not applicable to most people on a national scale, and this results in a complex label that is less likely to be read and followed. WSDA has addressed several local problems through regulation, including:

EPA does not have a comparable process to address local problems through local rulemaking.

Authority to enter

For a state’s laws and regulations to be considered adequate by EPA, it must have the authority to enter places where violations may occur. WSDA does have this authority, which is contained in RCW 17.21.320.

Flexible enforcement remedies

State legislation must also provide “flexible enforcement remedies.” EPA’s 1983 rule on state primary enforcement responsibilities says that a state should be able to select from the available enforcement alternatives an action that is suited to the gravity of the violation. Without such flexibility, a state may be forced to under penalize violators and thereby fail to deter future pesticide use violations. States should be able to:
  1. issue warning letters or notices of noncompliance;
  2. pursue administrative or civil actions resulting in an adverse economic impact on the violator, e.g. a license suspension or civil penalty; and
  3. pursue criminal sanctions for knowing violations.

These types of actions are authorized by RCW 15.58.290 (warning notice); RCW 17.21.315, 15.58.260, and 15.58.335 (civil penalties); RCW 17.21.130 and 15.58.260 (license, permit, and certification revocation, suspension, and denial); RCW 15.58.330 and 17.21.310 (criminal sanctions).

EPA’s criterion for whether a state’s enforcement remedy for a specific violation is adequate is that the severity of the proposed enforcement action should correlate to the gravity of the violation [48 FR 407]. Although EPA can use its own guidelines for the assessment of civil penalties as a guide in evaluating the relative gravity of violations, EPA does not require that a state’s response to a violation have the same monetary impact as a penalty that EPA would impose. FIFRA civil penalties range from a mandatory warning letter for a farmer who is a first-time violator to a maximum civil penalty of $5,500 for a commercial applicator that misuses a restricted use pesticide [FIFRA § 14(a) as amended by the Debt Collection Improvement Act]. In determining the amount of a civil penalty, EPA considers the gravity of the violation, the size of the person’s business, and the effect of the penalty on the person’s ability to continue in
business. FIFRA also allows EPA to issue a warning instead of a civil penalty if the violation occurred despite the exercise of due care or if it did not cause significant harm to human health or the environment [FIFRA § 14(a)(4)]. FIFRA also provides for criminal penalties, which include fines and imprisonment, that may be imposed for any “knowing” violation [FIFRA § 14(b)] .

Washington’s current pesticide penalty matrix [WAC 16-228-905 through -930] was effective May 30, 1993 and pre-dates HB 1010, which is discussed in the next section. Penalties are calculated based on the history of violations by the violator; the possibility of damage or injury to humans, animals, plants, or the environment; and the knowledge by the violator that adverse effects would occur or that a violation would occur. For most pesticide misuse violations, the penalties range from $100 and a one day license suspension for an unknowing first violation where adverse effects were not probable to $7,500 and a ninety-day license suspension or license denial/revocation for a knowing fifth (or subsequent) violation in three years where the adverse effects were probable. Under the 1993 matrix, WSDA has the option of issuing a warning letter in lieu of a civil penalty. RCW 15.58.290 authorizes WSDA to issue a written warning for minor violations “when the public interest will be best served” by such a warning. EPA reviewed the penalty matrix before it was finalized and decided that it met the criteria in the 1983 interpretive rule discussed above.

The Impact of House Bill 1010 on Enforcement Remedies

The enactment of RCW Chapter 43.05 - “Technical Assistance Programs” (HB 1010) reflects a change in Washington State’s approach to enforcement. Because a state must adopt and implement adequate enforcement authorities and procedures as a condition of retaining primary pesticide use enforcement under FIFRA § 26, EPA is evaluating the impact of HB 1010 on WSDA’s enforcement authorities and WSDA’s implementation of its enforcement authorities.

The Washington Legislature enacted House Bill 1010 in 1995. The Legislature found that, due to the volume and complexity of laws and rules, it was appropriate for regulatory agencies to adopt programs and policies that encourage voluntary compliance by those affected by specific rules. The Legislature further recognized that a cooperative partnership between agencies and the regulated parties emphasizing education and assistance before imposing penalties would achieve greater compliance because most individuals and businesses subject to regulation will attempt to comply with the law, given sufficient information. [RCW 43.05.005] A major provision of HB 1010 is that it limits the circumstances in which a civil penalty can be imposed and requires WSDA to issue a “Notice of Correction” (NOC) prior to issuance of a civil penalty under certain circumstances.

House Bill 1010 established a new class of inspections called “technical assistance visits.” [RCW 43.05.030] A technical assistance visit is defined as “a visit by a regulatory agency to a facility, business, or other location that: (a) Has been requested or is voluntarily accepted; and (b) Is declared by the regulatory agency at the beginning of the visit to be a technical assistance visit.” WSDA must issue an NOC which informs the owner or operator of the facility of the violations found during a technical assistance visit. Subject to certain exceptions, the owner or operator must then be given a reasonable period of time to correct those violations before a civil penalty can be imposed. [RCW 43.05.040] However, WSDA can issue a civil penalty for a violation identified during a technical assistance visit under the following circumstances without first allowing a reasonable opportunity to correct the violation:
[RCW 43.05.050]

For violations that are discovered through an inspection that is not a technical assistance visit, WSDA can issue a civil penalty without first giving the violator an NOC and an opportunity to correct the violations. However, WSDA can only issue a civil penalty if one of the following criteria is met:
  1. the person has previously been subject to an enforcement action for the same or similar type of violation of the same statute or rule or has been given notice of the same or similar type of violation of the same statute or rule; or
  2. compliance has not been achieved by the date outlined in a previously issued notice of correction; or
  3. the violation has a probability of placing a person in danger of death or bodily harm, has a probability of causing more than minor environmental harm, or has the probability of causing physical damage to the property of another in an amount exceeding $1,000; or
  4. the violation was committed by a business that employed fifty or more employees on at least one day in each of the preceding twelve months.
[RCW 43.05.110]

House Bill 1010 specifically states that nothing in the statute obligates a regulatory agency, such as WSDA, to conduct a technical assistance visit. The law does not limit the authority of agencies to take enforcement actions that do not involve civil penalties, e.g., criminal penalties. It also allows regulatory agencies to issue a civil penalty if a person fails to comply with the specific terms and conditions of a permit or license. [RCW 43.05.150]

In analyzing the extent to which HB 1010 may interfere with the enforcement authorities that Washington is required to have for primary responsibility for pesticide use enforcement, it became apparent that EPA must obtain WSDA’s official interpretation of several key provisions of HB 1010. For example, EPA is required to give certain classes of FIFRA violators a written warning for a first violation before assessing a civil penalty. [FIFRA § 14(a)(2)] It is therefore important that EPA understands how Washington interprets the exception to HB 1010 that allows WSDA to take a civil penalty action if the violator “has been previously subject to an enforcement action for the same or similar type of violation of the same statute or rule or has been given previous notice of the same or similar type of violation of the same statute or rule.” As another example, HB 1010 appears to affect only WSDA’s authority to bring civil penalty actions against violators and appears not to affect license suspensions and revocations. However, WSDA’s 1998 Cooperative Agreement states that HB 1010 “requires agencies to engage in technical assistance activities prior to going directly (to a) monetary fine or license suspension except under certain conditions.” If HB 1010 does indeed preclude WSDA from license suspension and revocation actions, this would obviously be of greater concern to EPA in analyzing the effect of HB 1010 on WSDA’s enforcement authority. Therefore, EPA will send a letter to the Director of WSDA asking for written interpretations of several key aspects of HB 1010 and its impact on WSDA’s enforcement authority. A copy of EPA’s draft letter to WSDA is attached to this report (Appendix A). EPA has asked for a response to that letter by the end of February 1998.

After EPA receives WSDA’s response, EPA will then determine the extent to which HB 1010 conflicts with authorities that Washington state is required to have as a condition of primary responsibility for pesticide use enforcement under FIFRA. EPA anticipates it will take approximately two months from receipt of WSDA’s response to determine if a conflict exists. HB 1010 has a provision which deems any provision of the law to be inoperative if the relevant State agency determines that it conflicts with federal delegation requirements. [RCW 43.05.901 and .902] This conflict determination process may be initiated by the State or by EPA and has already been used in Washington. The Department of Ecology, after being notified by EPA that HB 1010 conflicted with the delegation requirements for several of their programs, determined that the penalty immunity provisions of HB 1010 did not apply to those EPA delegated programs. WSDA and EPA may be able to use a similar process for resolving any conflicts between HB 1010 and the FIFRA requirements for delegation of primary responsibility for pesticide use enforcement.

EPA is not aware of other statutes and regulations that have been enacted since WSDA first obtained FIFRA primary enforcement responsibility that would have a significant effect on WSDA’s authorities for pesticide use violations.




The Impact of House Bill 1010 on WSDA’s Implementation of Its Pesticide Use Enforcement Program

Even if EPA concludes that HB 1010 does not interfere with the enforcement authority that WSDA is required to have under FIFRA, EPA is concerned that WSDA’s implementation of pesticide use enforcement has changed significantly since enactment of HB 1010. EPA’s analysis of WSDA’s enforcement actions shows a decline in the number of enforcement actions resulting from civil complaints taken by WSDA since HB 1010 was enacted. (See Table 1, WSDA Enforcement Actions, on page 25). EPA believes this is due to several factors related to HB 1010. First, WSDA appears to be implementing HB 1010 as if the statute imposes far more restrictions on enforcement activities than the language of the statute appears to require. Based on WSDA’s 1998 Cooperative Agreement, WSDA appears to be applying HB 1010 as if it prohibits license suspension and revocation actions against first time violators, even though HB 1010 appears to preclude only monetary civil penalties against many first time violators. Second, based on HB 1010, WSDA has determined that all inspections, except producer establishment and marketplace inspections, will be strictly of a technical assistance nature (1998 Cooperative Agreement, p. 14). EPA finds nothing in HB 1010 that would suggest that all WSDA inspections must or should be considered technical assistance visits instead of enforcement inspections. WSDA’s increased emphasis on technical assistance appears to have led to a decline in enforcement activities that serve as a deterrent effect. Third, because the State does not appear to have developed, by guidance or regulation, definitions for or interpretations of key provisions of HB 1010, WSDA enforcement staff appear to err on the side of giving NOCs to first time violators, rather than considering whether HB 1010 provides an exception which would allow a civil penalty action under the facts of the particular case. For example, WSDA does not appear to be considering whether a particular violation had a probability of causing more than minor environmental damage which, if true, would allow a civil penalty to be issued. Instead, WSDA appears to consider all first time violators to be subject to an NOC rather than a civil penalty action. In summary, rather than giving a fair and reasoned interpretation to HB 1010, WSDA appears to have been implementing HB 1010 as if it prevents all enforcement action against first time violators. Additional details on EPA’s concerns in this regard are provided in the compliance monitoring section.

EPA notes that the Department does appear to be making efforts to more fully implement HB 1010. WSDA is in the initial stages of revising its 1993 civil penalty matrix to accommodate the “previous notice” provisions of HB 1010. WSDA has opened initial discussions with stakeholders and anticipates starting the rule-making process to revise the matrix in that regard within the next year. EPA recommends, as the public has suggested, that WSDA expand that effort so that they develop a rule that interprets each of the HB 1010 criteria for issuing civil penalties to first time violators.

The purpose of this section on “Adequate Laws and Regulations” was to establish if the State of Washington has adequate legal underpinning to carry out FIFRA’s mandates. This was found to be true in 1978 and remains true today, pending EPA’s analysis of HB 1010.



ASSESSMENT OF WSDA’S ENFORCEMENT IMPLEMENTATION PROCEDURES


Washington State pesticide laws are briefly outlined above. This section addresses WSDA’s implementation of these laws. To assess WSDA’s pesticide enforcement program, EPA used the guidelines in its 1983 interpretative rule on state primary enforcement responsibilities and the information collected during the review process. This assessment is based on: 1) reviews of case files and response actions for fiscal years 1996 and 1997; 2) interviews of state investigators and area managers; 3) interviews of several complainants including two who had raised issues about WSDA procedures; and 4) EPA-WSDA joint inspections to assess the procedures followed by WSDA inspectors in the field. The collection information process is described in detail below.

Information Collection Process

Case File Review

The case file review consisted of reviewing inspection and investigation case files. The cases were randomly selected from work conducted during 1996 and 1997. Case files for 63 use complaints were reviewed for completeness and timeliness. The case files contained a written report, evidence collected and any other information pertaining to the case. There are three general types of cases: 1) pesticide use complaint investigations, 2) pesticide producer and dealer or marketplace inspections, 3) and pesticide applicator and dealer record inspections. The product related inspections (producer, dealer/market place) are generally conducted by WSDA under the authority and procedures of FIFRA. The pesticide use and record/license inspections are conducted under the authority of the Washington State pesticide laws. Although product inspections are not the focus of this review, fifty-nine product inspection files were reviewed.

WSDA Management and Staff Interviews

In-person interviews were conducted with managers and staff of WSDA’s Pesticide Management Division, Compliance Branch, as well as some former staff members during the period from August 6 to October 22, 1997. A total of twenty-five current and former staff were interviewed including the WSDA director, the current Division director, a former Division director, four Compliance Branch managers, one case developer, ten agricultural chemical specialists who perform investigations (referred to as investigators in this document), one case review officer, and four former investigators. These interviews were conducted at all of the WSDA office locations: Mount Vernon, Wenatchee, Spokane, Yakima, and Olympia. A summary of the interviews with WSDA managers and staff is contained in Appendix B.

EPA developed two questionnaires for these interviews, one for managers and one for staff. The purpose of the questionnaires was to assess the procedures followed by WSDA investigators in the field and to identify issues at the investigator and managerial levels. These questionnaires were intended as a general guideline for the interviews, and were used only to the degree that the person being interviewed wished to rely on them.

Complainant Interviews and Related Case File Reviews

Fourteen complainants and one witness selected from cases investigated by WSDA in 1996 and 1997 were interviewed. The cases selected involved allegations of human exposure to pesticides. The objective of these interviews and of the case file reviews discussed below was to provide insight into the investigative process and to corroborate or refute criticisms from those who had complained to EPA about WSDA’s enforcement program.

EPA conducted a comprehensive review of the full case files for ten of the investigations that were selected for the interview process to help corroborate or refute observations provided by those people who were interviewed. Two additional case files were collected, but omitted from review because WSDA had not completed its case review process. Also, EPA had previously reviewed the information from both the Hough and Satterlee cases. A summary of these interviews is provided in Appendix C.

Oversight Inspections

Two oversight inspections were conducted as part of the review to provide an opportunity for EPA personnel to observe WSDA investigators conducting routine inspections. The process gave EPA a chance to provide feedback to State investigators on their procedures.

All of the information collected above was evaluated using the criteria from the 1983 interpretive rule. As noted earlier, this rule establishes standards and procedures for states with primary enforcement responsibility for pesticide use violations. EPA selected key requirements from the criteria deemed to be appropriate for this review. The specific criteria used to evaluate WSDA’s enforcement program is discussed below.


Assessment of WSDA’s Enforcement Program

EPA’s rule on state primary enforcement responsibilities provides guidelines for the adequacy of state procedures for enforcing pesticide laws. There are five categories, each with separate criteria, under which EPA assesses adequacy of state pesticide enforcement programs: 1) education of pesticide users, 2) sampling techniques and laboratory capability, 3) training of enforcement personnel, 4) processing of complaints and 5) compliance monitoring and enforcement implementation. [48 FR 408-410] This review focuses primarily on the processing of complaints category and the compliance monitoring and enforcement implementation category because EPA is not aware of issues involving the first three categories above. A brief discussion on education, sampling and training is provided below.

Education of pesticide users

EPA’s 1983 rule recommends that states implement a pesticide education program to include methods such as disseminating compliance information through the Cooperative Extension Service, seminars, publications similar to the Federal Register, newspapers, and public assistance offices where persons can call to ask questions or report violations. That rule also advised states to develop procedures for soliciting input from the public regarding the administration of the pesticide use enforcement program.

The main outreach method for pesticide users in Washington is the Certification and Training program (C&T). Currently, approximately 15,300 private applicators and 13,700 commercial applicators are licensed and certified in Washington State. The program provides basic training for first time licensees, and ongoing training for recertification. Both the training and the exams required for certification include information on potential problems with pesticides. The Washington State Cooperative Extension Service is involved extensively in developing training materials and in organizing the state sponsored annual training programs with the help of an advisory board. Investigators participate in training by preparing fact sheets and giving presentations in conjunction with recertification meetings. They also respond to very specific training requests by pesticide applicators. Education and training of pesticide users is an integral part of the compliance investigator’s job.

WSDA has reciprocity on applicator certification with the states of Idaho and Oregon, so that a pesticide license from one state can be used in any other of these states. In summary, the educational component of WSDA’s pesticide enforcement program is extensive and EPA believes it is adequate.

Sampling Techniques and Laboratory Capability

The WSDA analytical laboratory located in Yakima Washington was one of the first state laboratories to receive EPA funding and provide product analysis for the federal enforcement program. Historically, until 1995 when the national EPA lab was closed, the WSDA lab participated in EPA’s training programs, on-site audits and the National Enforcement Investigations Center Check Sample Program. Under the check sample program, EPA submitted pesticide formulations and residue samples to the lab for analysis and cross contamination screening. WSDA routinely passed all tests and audits successfully. EPA Region 10 and several other states in the Region have relied on the WSDA laboratory for analyzing both product and residue samples. WSDA is presently working under their quality assurance project plan that was approved by EPA Region 10. This plan covers both the field sampling and analytical activities. Region 10 has been satisfied with WSDA’s sampling and laboratory capabilities. However, EPA no longer audits the lab as was done in the past.


Training of Enforcement Personnel


Some of the key training requirements include procedures to train investigators in such areas as violation discovery, obtaining consent, preservation of evidence, and sampling procedures. Enforcement personnel should be adequately versed in case development procedures and the maintenance of proper case files. EPA also considers a continuing education program to be a crucial training procedure, so that enforcement personnel can be kept abreast of legal developments and technological advances. [48 FR 408]

During the interviews, most investigators thought that their training was adequate to excellent. WSDA managers described their staff as “dedicated, bright, caring, and well qualified.” The general opinion in WSDA is that investigators are well qualified; the majority have agricultural degrees and/or farming experience. The interviews pointed out the striking homogeneity of backgrounds, degrees, and prior work experience in agriculture of the managers and staff of the Pesticide Compliance Branch, which may contribute to a public perception of bias in favor of agriculture. In EPA’s interviews of complainants, some felt that WSDA investigators were biased, combative, indifferent, judgemental, and unsympathetic to the issues they raised and that investigators tended to minimize the seriousness of exposure to pesticides. This sample was small and EPA did not interview the infractor or the investigator, therefore, no definitive conclusions can be drawn. Nine out of fourteen complainants expressed this viewpoint, but WSDA investigates an average of 250 complaints each year. EPA is also aware that complainant satisfaction often depends on the case being resolved to their benefit, regardless of whether or not pesticide law was violated. The public is usually not aware of the legal limitations of pesticide law imposed on WSDA (and EPA) that dictate what enforcement action can be taken. Nevertheless, it is important to EPA to acknowledge these peoples’ opinions and EPA is concerned about a public perception that the investigators may not be objective and collect the facts in a neutral manner. Therefore, EPA recommends that WSDA consider a range of options which will provide more information on how investigations are conducted in the field. For example, WSDA might want to develop a survey form to solicit feedback from the public. Another option is that WSDA managers and EPA could periodically interview complainants and the regulated community.

EPA noted during its review of 59 product case files, that additional refresher training is needed for some of the basic requirements for pesticide product labeling and sales inspections. In particular, EPA noted in some files:

Nevertheless, most of the product inspection files were generally complete and information had been well documented.

EPA regularly provides training to state pesticide investigators and supervisors/managers. EPA training has been offered at the regional and national level annually for more than eight years and prior to that it was offered at least biannually. Travel and expenses are paid for by EPA. The type of training has usually been decided by the states and by EPA’s national priorities. Basic training as well as specialty training is available. Washington also provides training for their own employees.

During the staff nterviews, WSDA investigators identified the following areas where additional training would be helpful: 1) worker protection regulations, 2) development of interpersonal skills, 3) interview training, 4) more hands-on training for new personnel, and 5) seminars and workshops specific to job related challenges. During these interviews it also became apparent that some WSDA investigators need clarification of the role of EPA in pesticide enforcement. Some suggested that a lot of training is available; however, it would be useful if it were more focused at deficiencies identified. Other investigators acknowledged that training on professional conduct during the investigative process would be helpful. To ensure consistent, high quality enforcement activity, EPA and WSDA will work together to develop training which addresses the areas identified above.

Processing of Complaints

The 1983 interpretive rule on state primary enforcement responsibilities provides EPA with criteria which are indices of the adequacy of a state’s use enforcement program. One criterion is that the state must implement a system for quickly processing or reacting to complaints or other information indicating a violation. The other two criteria are: 1) the degree to which citizens alleging a use violation seek redress from EPA after first directing their complaint to the state; and 2) the performance of the state in responding to allegations referred to the state by EPA under FIFRA § 27(a). [48 FR 409-410]

Criterion #1: WSDA’s Complaint Process. In order to assess the first criteria stated above, it is necessary to describe WSDA’s system for processing complaints. A schematic diagram of this process is depicted on the next page (See WSDA’s Investigation Flow Chart). WSDA has a complaint tracking process that is centralized in Olympia. It begins when a person contacts WSDA through Olympia or one of the field offices. A case number is assigned and immediately given to an investigator for follow-up. After completion of the investigation and area supervisor review, the case file is returned to Olympia for enforcement case review or for closure. The case files are tracked and organized very well and can be retrieved when requested. The documentation for each case can vary greatly. Types of documentation include interviews with the complainant, written statements from complainant and other witnesses, diagrams or maps of the area where the incident occurred, photographs of the damaged area or site of the incident, physical samples collected and analyzed, spray records from applicators, product labels from pesticides used, and referrals to State Health Department pesticide specialists or Washington State University plant specialists for diagnosis of disease or insect damage. Depending on the extent and complexity of the investigation, the pesticide investigation summary form may be the only narrative report in the file. If WSDA determines that an investigation does not reveal a violation, then the report can be condensed into a short one or two paragraph summary. A complete report is required only if the investigation reveals a violation.
WSDA’s Investigation Flow Chart

In EPA's review of 63 use complaint files, EPA considered some investigation reports to be inadequate because of insufficient information in the written narrative. In several cases, the one or two paragraph narrative on the investigation summary form did not contain the level of detail necessary to explain how the investigator arrived at his or her conclusion. The investigation report should be able to stand by itself and adequately describe the complaint, evidence collected, and how the evidence or lack thereof supports the findings of the investigation. However, the majority of the investigation files were complete, which demonstrates that WSDA investigators have the knowledge and ability to conduct satisfactory investigations.

During the review of case files, EPA found that investigators are not always collecting the evidence necessary to pursue enforcement action and that their supervisors did not catch the deficiency. A lack of evidence can result in: an enforcement action that will not withstand challenge by the person charged, a decision to take a less stringent enforcement action that is not subject to challenge, or a decision to take no action because no one has the necessary information to recognize that a violation has occurred. While perfection is an unreasonable expectation, these inadequacies are too frequently missed by supervisors during their reviews of inspection reports. WSDA supervisors need to do a more thorough review of the completeness of inspection reports.

If a violation is detected and documented, the case file can be sent to Olympia for review and action or the investigator can write up a Notice of Correction (NOC) and send it to the infractor. Prior to making a decision of what action to take, the investigator needs to check with the Olympia office to determine if the infractor has a previous history of violations. If there are prior violations, the case should be sent to Olympia for review and action. WSDA concludes all investigations with a letter of findings sent to the complainant.

The issuing of NOCs by investigators is a procedure that WSDA should reexamine. While this procedure has advantages in efficiency and timeliness of action, it has significant disadvantages. A major disadvantage is that the investigators do not have a complete understanding of when it is appropriate to issue an NOC versus a civil penalty in large part because of a lack of understanding of the HB 1010 criteria. Another disadvantage is that it can create inconsistency in the severity of enforcement actions when the investigators do not have a very clear understanding of Departmental policies and priorities. Until WSDA is well assured that each investigator authorized to issue NOCs has the proper direction, EPA recommends that all investigation reports be reviewed for quality by management and all enforcement actions be prepared by a case review officer.

Our review of files and interviews revealed several cases in which the investigation was terminated because a “formal” complaint was withdrawn by the complainant. A verbal warning or advisement letter was used and an enforcement action was not pursued. Some of these cases involved alleged human exposure. The reason for the termination of the investigation as described in the case reports was that a “formal” complaint was withdrawn. During the interviews with the investigators it was stated that an investigation is initiated only after a “formal” complaint is filed and anonymous complaints are not investigated. EPA has not been able to find a clear definition of what constitutes a “formal” complaint. WSDA stated that if a complainant is not willing to provide all the information required by the investigator to complete the investigation or if the complainant chooses to withdraw the complaint, the investigation can be discontinued. If WSDA feels the incident is significant and adequate information is available the Department can act as the complainant and therefore continue the investigation or enforcement action. It therefore appears that the lack of “formal” complaints, the withdrawals of complaints, or anonymous complaints are being used by some investigators as a means of discontinuing or not initiating an investigation, including those involving alleged human exposure, even though there is nothing in the statute that prevents WSDA from continuing its own investigation and enforcement action if sufficient information exists.

EPA and WSDA conducted joint inspections of the Douglas County Public Works Department in East Wenatchee and an agricultural/tack supply shop in Spokane. During these inspections, both investigators conducted themselves in a professional manner and were thorough in carrying out their inspections. However, WSDA was unable to coordinate an agricultural use inspection with EPA because WSDA reported that spray activity in the Yakima area in September was limited. As a result, three aerial application permit reviews were substituted for the Yakima oversight inspection. However, the permits are required by State regulation and are beyond the requirements of FIFRA.

In summary, WSDA’s infrastructure -- organizational structure, communication systems, forms, procedures, etc.-- for processing complaints is adequate but a few issues were identified that WSDA needs to address. The Department needs to examine if it is appropriate for investigators to issue Notices of Correction. Supervisors need to do a more thorough review of the completeness of inspection reports. It appears that the withdrawal of a complaint or the lack of a formal complaint, and/or anonymous complaints are being used by some investigators as a means of discontinuing or not initiating an investigation involving alleged human exposure.

A key question is: How well are these tools and processes being used by WSDA? In particular, is WSDA responding to complainants quickly enough? This question is addressed later in the compliance monitoring and enforcement implementation section.

Criterion #2: Redress. Redress is defined as the extent to which citizens contact EPA and request that the Agency take action instead of the State. In order to evaluate the redress criterion, EPA looked at the number of times that people sought redress from 1995 to1997. During this time period, only one person alleging a use violation asked EPA to take enforcement action instead of WSDA. There was one other WSDA case in which a person asked EPA to take duplicate samples and have them analyzed at our laboratory. However, it is unknown how many people would seek redress from EPA if they were aware of EPA’s oversight role.

Criterion #3: Section 27 Referrals. FIFRA Section 27 allows EPA to track significant pesticide misuse cases. It authorizes EPA to bring its own action if the state does not commence appropriate enforcement action within 30 days of a referral by EPA to the state. The EPA region in consultation with each state identifies priority areas for referral. This process requires a large investment in oversight activity. Nevertheless, it is an effective and legal mechanism for EPA to become involved in specific pesticide misuse investigations as the cases are developing and EPA will work with WSDA in the future to define criteria for its use.

Since 1991, EPA has used Section 27 only once in Washington, after agreeing with WSDA that federal action was more appropriate. EPA has not used this authority routinely. Section 27 is the most appropriate way for EPA to track or review cases where the public is seeking redress, and the Agency needs to inform the public of this mechanism. In a brochure on how to file a pesticide complaint that EPA recommends WSDA develop, WSDA should include information on what people’s options are if they do not feel adequately served. EPA will also include a section on its role under Section 27.


Compliance Monitoring and Enforcement Implementation

The 1983 interpretive rule on state primary enforcement responsibilities provides EPA with criteria regarding adequate compliance monitoring and enforcement activities for program approval and recision. The approval criteria include: 1) that the state provides assurance that sufficient manpower and financial resources are available to conduct a compliance monitoring program; 2) that the state must implement procedures to pursue enforcement actions expeditiously against violators; and 3) that the state establishes enforcement priorities, taking into account EPA’s national priorities. [48 FR 409]

Criterion #1: Adequate staff and resources. Under EPA’s 1983 interpretive rule, a state must assure that sufficient manpower and financial resources are available to conduct a compliance monitoring program. WSDA’s compliance program has approximately 12 investigators. These investigators are responsible for monitoring compliance throughout the State of Washington. The map on the next page, WSDA Compliance Areas, depicts the area of responsibilities of the investigators. According to WSDA, Washington State has more than 25,000 licensed applicators making 500,000 to 1,000,000 applications a year. This activity produces between 200 and 400 complaints annually. In accordance with EPA’s cooperative agreement funding guidelines for states, WSDA has enough resources to meet the number of traditional inspections negotiated each year. However, when one factors in the addition of technical assistance as required by HB 1010, it is unlikely that WSDA has enough resources to do both effectively. WSDA should undertake a resource allocation analysis to determine the critical number of staff required to deliver an effective enforcement program and an effective technical assistance program and EPA will re-evaluate its resource allocation to WSDA.
WSDA Compliance Areas

Mt. Vernon
(360) 428-1091
(360) 428-1092 FAX

Olympia
(360) 902-2040
(360) 902-2093 FAX

Wenatchee
(509) 664-3171
(509) 664-3170 FAX

Yakima
(509) 575-2747
(509) 575-2210 FAX

Spokane
(509) 625-5229
(509) 625-5232 FAX
Traditional enforcement is a priority for EPA. However, House Bill 1010 has resulted in WSDA directing more resources toward technical assistance rather than traditional enforcement. During the interviews, managers and staff expressed the opinion that staff and resources are a problem. The Director stated during interviews, “resources are too scarce to do both (technical assistance and traditional enforcement) adequately.” Other area managers expressed a need for additional personnel in order to provide effective traditional enforcement. Compliance staff consistently said that technical assistance is a strong point of the program and is more effective in gaining compliance than conventional enforcement inspections. Staff said that technical assistance was the most rewarding aspect of an investigator’s job. A few investigators said that routine inspections of growers, especially when unannounced, are intrusive and an inefficient use of resources when compared to the same amount of resources used for technical assistance. Another opinion heard from staff is that HB 1010 has not changed the way enforcement is carried out, it just gave the “technical assistance” name to what WSDA has always done. Managers consistently said that HB 1010 does not affect compliance efforts adversely but that they are still studying it in an effort to fully implement the new law.

Several other opinions of WSDA management and staff related to HB 1010 that were not as widely held were also expressed. One opinion was that WSDA’s balance of technical assistance versus enforcement is weighted too heavily toward technical assistance. The two main reasons offered were: 1) most investigators prefer doing technical assistance to enforcement, and 2) HB 1010 emphasizes technical assistance over enforcement. Another “minority” comment was that enforcement and technical assistance activities must be distinct and have separate staffing. It’s difficult for investigators to wear both a “White Hat” (technical assistance) and a “Black Hat” (enforcement). There was also the perception by a couple of people that the main mission of the Pesticide Compliance Branch is to ensure that pesticides are used according to the label so that the future use of pesticides will not be in danger.

WSDA, managers are clearly aware of the need to implement both programs--traditional enforcement and technical assistance. This was clear in the interview process. As noted above, the managers (especially the Director) spoke of needing resources for both activities. As we move down the management chain, there appears to be less of a commitment to traditional enforcement. During the interview process, area managers requested resources for enforcement and not technical assistance. By the time we talked to the field staff, it was clear that most of them prefer to do technical assistance. WSDA management has not effectively communicated to the staff that WSDA needs to do both enforcement and technical assistance. Communicating the Department’s priorities and providing direction to the staff appears to need improvement.

For example, communication issues were evident when the interviewees were sharing their opinions on direction received from the Director regarding the pursuit of enforcement cases. Since the enactment of HB 1010, the burden of proof has increased for State regulators pursuing a civil penalty in human exposure cases. In response, the Director has said that losing a single case can do immeasurable damage to the Department’s ability to bring future cases and as such he has directed his managers to proceed thoroughly and thoughtfully in bringing human exposure cases forward. Further, information from the interviews indicates that some investigators are reluctant to bring forth any cases for enforcement action. EPA could not discern a clear vision from WSDA regarding the direction of enforcement and that lack of clarity seems to have affected some investigators.

Table 1 on the following page, “Washington State Enforcement Actions” is a list of the enforcement actions taken by WSDA from 1993 through 1997, as well as the number of pesticide related complaints Pesticide related complaints includes pesticide misuse, licensing/record keeping violations, structural wood destroying organism complaints, suspected violations resulting from routine inspections. received by WSDA. EPA’s analysis indicates a decline in the number of actions resulting from civil complaints which includes a penalty assessment, a license suspension/revocation or both since the passage of House Bill 1010. EPA believes that the decline in civil complaints is, at least in part, due to the fact that WSDA is not using the full set of criteria in HB 1010 that would allow them to issue a civil penalty. WSDA’s explanation for the decline is that the number of complaints has also declined as a result of a successful educational outreach program and better compliance. Finding the proper balance between technical assistance and traditional enforcement is difficult. Until EPA is assured through comprehensive data that technical assistance results in compliance comparable to traditional enforcement, EPA will require that enforcement efforts be maintained. Therefore, WSDA needs to maintain adequate numbers of enforcement actions, and define and establish a minimum enforcement field presence. WSDA should separate technical assistance from enforcement functions to ensure that the desired levels of effort are being expended for both. Additionally, EPA will work with WSDA to develop performance measures beyond traditional enforcement accounting which better shows the rate of compliance.

Table 1
Washington State Enforcement Actions
Action
FY93
FY94
FY95
FY96
FY97
Civil Complaints
33
113
88
8
11
Warning letters
145
57
79
---
---
Notice of Corrections (NOC’s)
---
---
---
160
48
Total Number of Enforcement Actions
178
170
167
168
59
Total Number of Complaints Received
399
386
259
251
201
Criterion #2: Procedures to pursue enforcement actions expeditiously. In order to assess how expeditiously WSDA pursues enforcement actions, EPA reviewed 53 pesticide use case files and analyzed time frames for the following intervals: 1) Length of time between the date the complaint was filed and the initial contact by the investigator; 2) Length of time it took to complete the investigation; 3) Length of time between the completion of the investigation and the supervisor sign-off; 4) Length of time between case completion and the date an enforcement action was issued; and 5) Length of time it took for the analytical laboratory to complete and report the analysis. These time frames are summarized in the Table 2, Time-Frames for Processing Complaints.

The analysis of the use case files revealed that WSDA responded to the complainant within one to five days in 85% of the cases reviewed. In 9% of the cases WSDA was unable to respond within a 10-day time frame. WSDA’s procedures state that human exposure complaints are to be followed up (initial contact made) immediately. WSDA tries to make contact with the complainant by telephone within 24 hours. An onsite visit may occur at a later time, depending on the severity of the alleged exposure and the length of time since the actual incident. There were eight human exposure cases reviewed in this sample. Initial contact was made within 24 hours. It is extremely important that human exposure cases be dealt within a timely manner.


Table 2
Time-Frames for Processing Complaints

Measurement Category
Number of Days
Number of Cases
Time From Receipt of Complaint by WSDA to Initial Contact by Investigator
0-1
34
2-5
11
5-10
3
10+
5
Time To Complete Investigation
0-30
7
30-60
14
60-90
16
90-120
10
120+
6
Time From Investigation Completion to Supervisor Sign-Off
0-5
20
6-14
14
15-30
6
31+
5
Time Between Case Completion and Enforcement ActionThe 14 Notice of Corrections actions in this review were issued between 1 and 30 days from the case completion date.
Laboratory Analysis Turn-Around Time
1-10
6
11-20
11
21-30
2
30+
2

Unfortunately, a human exposure case may not be reported until sometime after the alleged exposure, and when it is reported, the first contact may be with another public agency such as the State Department of Health. This means that WSDA may receive the complaint some time after alleged exposure. Even when the WSDA is contacted directly by the complainant, there can be an interval of several days or longer before an on site visit is made. In many cases, a delay of this amount of time will decrease the investigator’s ability to collect the necessary evidence to support an enforcement action. EPA and WSDA should work together in the future to address this issue.

EPA also examined the amount of time taken to complete an investigation and take an enforcement action. In 70% of the cases reviewed, the investigation was completed within 90 days, while 30% of the cases exceeded ninety days, and 11% exceeded 120 days. The enforcement actions taken from the cases reviewed consisted of fourteen Notices of Correction. These actions were issued between one and thirty days from the case completion date. One civil complaint was issued within ninety days after case completion.

During the management and staff interviews, it was recommended that EPA be more responsive to requests from WSDA for information related to product labels and Federal regulations in order to properly support WSDA’s compliance program. Delays in providing this type of information can delay WSDA enforcement actions.

Region 10 anticipates that, in most cases, formal enforcement actions can and will be initiated within three months of discovery of a violation, with six months as an outer limit. In general, the Region expects that formal enforcement action, if appropriate, will be initiated no later than six months after the earliest occurrence of either completion of the inspection, discovery or confirmation of the violation. The timeliness of WSDA’s enforcement actions is well within Region 10's guidelines.

Criterion #3: Establishment of enforcement priorities. The final criterion under the compliance monitoring and enforcement implementation category recommends that the state establish enforcement priorities, taking into account EPA’s national priorities. Each year EPA provides guidance to the states outlining EPA’s priorities. For example, enforcement of the Worker Protection Standards (WPS) is an EPA priority. It is important that WSDA address WPS issues during routine dealer, marketplace, and agricultural use inspections. WPS priorities and other priorities were negotiated in the 1997/98 cooperative agreement work plan.

WSDA’s management has established a set of State priorities and identified national priorities. These are documented in the cooperative agreement work plan. WSDA has had mixed success with implementing strategies which achieve the priorities. Information gathered from the management and staff interviews and Cooperative Agreement end-of-year reports indicate that these priorities are not effectively communicated to the investigators in the field. During the 1997 midyear review, EPA expressed concern about the Department’s commitment to conducting WPS inspections. In particular, EPA does not understand the limited amount of emphasis WSDA has placed on targeting and completing comprehensive worker protection inspections at agricultural establishments.

It was noted in WSDA’s 1996 end-of-the-year review that more emphasis is needed to enforce WPS, and in particular, targeting inspections at orchards employing farm workers. That review also noted that inspections conducted were not comprehensive and EPA recommended a checklist be used and narrative reports be prepared to detail the inspection findings. WSDA did develop a checklist during 1997 to help investigators address all the elements applicable to the WPS during routine inspections and audits, but it is only starting to be used.

It was also noted that WSDA did not conduct a sufficient number of technical assistance audits which targeted Worker Protection Standard implementation on farms during 1997, as agreed to in their work plan. According to WSDA, the audits were not done because they did not receive any requests from agricultural establishments. It is WSDA’s practice not to conduct unannounced audits and to perform audits only if they are requested. EPA believes that more unannounced inspections are needed to assure compliance efforts are being made by the agricultural community to meet the provisions in the Worker Protection Standard. However, it was made clear during the interviews that some investigators find unannounced inspections intrusive, difficult to coordinate, and relatively ineffective in gaining compliance. This fundamental difference in WSDA and EPA compliance philosophies -- technical assistance versus traditional enforcement -- needs to be addressed. WSDA and EPA need to review their respective compliance monitoring roles and develop an EPA/State agreement on compliance principles and incorporate it into the pesticide cooperative agreement.

In October of 1997, EPA accompanied WSDA inspectors in the Yakima valley on several comprehensive worker protection inspections. EPA focused on the three orchards. The inspections were unannounced technical assistance inspections which revealed the need to complete more unannounced inspections since compliance with many of the worker provisions in the Worker Protection Standard were not being met. EPA needs to commit to more joint inspections of this type. WSDA is on track for meeting its 1998 commitments for agricultural routine use inspections. They have reported that they have met 40 of 75 agricultural routine use inspections.

WSDA has not always met its inspection commitments that are based on WSDA and EPA priorities established in the cooperative agreement at the beginning of the year. EPA recognizes that situations may arise that dictate a shift in priorities during the year. For example, in 1993 a sharp increase in mevinphos use resulted in several farm worker illnesses and WSDA needed to put more resources into addressing that situation. EPA and WSDA need to be flexible enough to readjust their priorities during the year when the need arises. It is important for WSDA and EPA to communicate any shifts in priorities throughout the Compliance Branch and to ensure that field staff are aware of those shifts. To help accomplish this, EPA may need to meet at least annually with the entire Pesticide Management Division and include the area managers in mid year and end-of-year reviews.


CONCLUSIONS AND NEXT STEPS

After assessing the WSDA’s enforcement program using the five categories defined in EPA’s 1983 interpretative rule, EPA concluded that the overall program is adequate, but the State needs to do a better job of investigating complaints of human exposure to pesticides. Areas of concern for EPA include: 1) WSDA not always completing investigations for all human exposure cases regardless of whether a formal complaint is filed or withdrawn, 2) the public does not always know who to contact when they have a complaint, 3) the perception of bias by the limited number of complainants interviewed, and 4) the decline in the number of civil penalty enforcement actions since the enactment of HB 1010 in 1995. Specific recommendations are contained in the next section.

While identifying problems and recommending solutions to those problems are important steps, the implementation of actions that will actually correct the problems is how real change will come about. EPA is requesting that WSDA provide a written response to the recommendations in this report, including a time line of when they plan to implement the actions that they believe will correct identified problems. EPA anticipates a response from WSDA by March 31, 1998 and to incorporate those actions and time line in the cooperative agreement. EPA is committing more of its resources to work with WSDA and to track the progress of change. Many of the changes will not happen immediately, but EPA expects to see significant differences in program implementation by the Fall of 1998. Should the changes not happen as expected, EPA will reevaluate WSDA’s program and develop a new set of recommendations.


FINDINGS AND RECOMMENDATIONS


The Principal Findings and Recommendations section identifies EPA’s most significant findings identified by the review. The second category, WSDA Strengths, highlights the areas where the WSDA pesticides program is right on track. The third category, Supplemental Findings, is more programmatic in nature. Many of the recommendations support solutions to the principal findings. This category contains findings and recommendations which address legislative issues, WSDA’s enforcement procedures, internal and external communication with EPA, etc. The last category contains Findings and Recommendations Regarding EPA’s Role. WSDA should develop a written response and time line delineating how it will respond to EPA’s recommendations within a reasonable time frame.


PRINCIPAL FINDINGS AND RECOMMENDATIONS

1. Finding: WSDA has the appropriate laws, regulations and investigative procedures to protect human health and the environment. Their laws, in many respects, are broader and more protective than the controls on pesticide use contained in FIFRA.

2. Finding: WSDA needs to do a better job of investigating complaints of human exposures to pesticides.


A. Finding: Not all human exposures cases are completely investigated. In particular, cases where a formal complaint is not filed or withdrawn, the investigation may be discontinued.

Recommendation: Human exposure cases should be completely investigated in a timely manner regardless of whether a formal complaint is filed or withdrawn.

B. Finding: The public, in general, does not know who to contact when they have a pesticide complaint and does not know the procedures and legal limitations of WSDA or EPA.

Recommendation: WSDA should develop and distribute a one or two page brochure in Spanish and English on what a person should do if they are “sprayed,” how to file a complaint with WSDA, what WSDA’s purpose is when investigating pesticide incidents, what to do if the person does not feel adequately served, and EPA’s role in pesticide enforcement.

3. Finding: The number of enforcement actions resulting from civil complaints has declined since the enactment of “House Bill 1010" in 1995. This decline is of concern to EPA. A likely cause of the decline appears to be WSDA’s increased focus on technical assistance as called for in HB 1010. EPA believes WSDA must maintain a better balance between traditional enforcement activities that serve to deter violations while providing technical assistance to help pesticide users comply with federal and State pesticide laws and regulations.

4 . Finding: WSDA may have a serious problem with public perception of their program. For example, nine of the twelve complainants interviewed perceived a bias on the part of WSDA in favor of pesticide users. However, EPA did not interview the applicator or the investigator when compiling the results from complainant interviews.

WSDA STRENGTHS

During this review, EPA identified the following key strengths in the WSDA program and is recommending that work in these areas be continued:
  1. Finding: WSDA has a well-developed system in place for processing complaints.
  2. Finding: WSDA has adequate procedures in place to pursue enforcement actions expeditiously.
  3. Finding: WSDA is setting enforcement priorities.
  4. Finding: WSDA has a good pesticide education program and works well with the Cooperative Extension Service.
  5. Finding: The Pesticide Incident Reporting and Tracking Review (PIRT) Panel provides multi-agency coordination for protection of the public from the effects of pesticide misuse.
  6. Finding: WSDA’s overall response time to complaints is well within Region 10 guidelines.

SUPPLEMENTAL FINDINGS

1. Finding: HB 1010 calls into question the adequacy of Washington pesticide control laws under the delegation authority of FIFRA. WSDA has not developed interpretations of the criteria in HB 1010 for issuing civil penalties and so is not considering all the criteria when deciding if a Notice of Correction or a civil penalty should be issued.

2. Finding: WSDA does not has enough resources to implement both an effective enforcement program and an effective technical assistance program as required by HB 1010.

3. Finding: Some investigators have been issuing Notices of Correction without a full understanding of the HB 1010 criteria for civil penalties.

4. Finding: WSDA investigators do not conduct as many unannounced inspections as EPA thinks is necessary. This is a fundamental difference in compliance philosophy with EPA which needs to be addressed.

5. Finding: Some investigation reports are inadequate because of insufficient information. Supervisors are not always providing a thorough review of the inspection reports.

6. Finding: Direction and priorities from top management are not always accurately conveyed or interpreted by field staff.

7. Finding: The WSDA investigators need and want additional training regarding investigative procedures, how to handle sensitive situations, interviewing, and seminars and workshops specific to job-related changes.

8. Finding: WSDA is having some difficulty satisfying enforcement priorities agreed upon with EPA; specifically, monitoring compliance with the Worker Protection Standard.

FINDINGS AND RECOMMENDATIONS REGARDING EPA’S ROLE
1. Finding: EPA has yet to determine whether or not HB 1010 is consistent with a delegated FIFRA program.

2. Finding: EPA has used its authority under FIFRA Section 27 to closely track investigations and proposed enforcement actions only once in the past seven years.

3. Finding: Most people are unaware of EPA’s oversight role and the number of people who have sought redress from EPA is extremely small.

4. Finding: EPA and WSDA need to reevaluate their compliance roles and improve communication.


Appendix A -- Letter from EPA to WSDA Regarding RCW 43.05 -Technical Assistance Programs


Appendix B -- Summary of WSDA Pesticide Enforcement Review Interviews


Appendix C -- Complainant Interviews

Local Navigation

URL: http://yosemite.epa.gov/R10/EXTAFF.NSF/Don't+put+on+menu/Review+o25

Jump to main content.