Current through Register Vol. 49, No. 9, September, 2024
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 purpose 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 regulations
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 (1st 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.
* 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: 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.
H. Off-target: Any area outside the target
area (or within or across any buffer zone if regulations 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 regulations 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, 1st 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 in
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, non-renewal, 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.
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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:
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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.
Appendix A
PENALTY MATRIX
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ENFORCEMENT ACTION OPTIONS
A - Warning letter
B - Stop Use/Stop Sale
C - Informal Agreement
D - Board/Committee Hearing
E - Immediate Suspension of License
F - Injunction
G - Referral to Prosecuting Attorney
H - Referral to EPA
