Current through Register Vol. 49, No. 9, September, 2024
ARKANSAS STATE PLANT BOARD PESTICIDE ENFORCEMENT
RESPONSE REGULATIONS
I.
STATEMENT OF PTJRPOSE
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: For violations occurring after August 1, 2017 and prior
to March 11, 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 March 11, 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
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.CA.
20-20-201 et.
Seq. And Regulations.
B. "Arkansas
Pesticide Control Act" A.CA.
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, 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.CA.
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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Pesticide Use and Enforcement rules comment
summary
497 comments were received. Of those, 463 comments contained
some combination of the following: extend the buffer zones, restrict use when
temperature reaches 80 degrees, go back to an April 15 cutoff date, and they
supported the new record keeping and online dicamba registry requirements.
Therefore, these comments were for the rule in part, and against the rule in
part. However, It should be noted that extended buffer zones, temperature
restrictions, and changing the cutoff date were not part of the proposed
changes to the rule. Therefore, the only part of the proposed changes to the
rule to which these comments applied were recordkeeping and registry.
Eleven comments contained one or more of the following: Follow
the federal label, extend the cutoff date, decrease the buffer zones, against
the GPS mapping requirements, and against the online registry. Therefore, these
comments were for the rule in part and against the rule in part. As previously
noted, cutoff dates and buffer zones were not part of the proposed
amendments.
Fourteen comments requested a ban of dicamba. Eight comments
expressed that they were against the rule without further explanation. One
comment was in favor of the rule without further
explanation.
