Investigation & Enforcement - Avoiding Common Violations

Transcription

1 Investigation & Enforcement - Avoiding Common Violations Oregon Department of Agriculture Pesticides Program- Cory Cooley - Pesticide Investigator

2 Overview Enforcement Powers The laws spelled out! -23 prohibited acts Types of inspections Investigation procedures Common violations Enforcement statistics Examples from the field How to stay in compliance!! -Dealers, Operators, Applicators What if I have questions???

3 Background Federal Law- EPA FIFRA Act of general laws Found in Federal Code of Regulations- spelled out Registration, tolerances, labeling, disposal, etc. State Laws- ODA ORS 634- general laws OAR are the laws spelled out FIFRA - The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) provides for federal regulation of pesticide distribution, sale, and use. All pesticides distributed or sold in the United States must be registered (licensed) by EPA. Before EPA may register a pesticide under FIFRA, the applicant must show, among other things, that using the pesticide according to specifications "will not generally cause unreasonable adverse effects on the environment.''

4 ORS Enforcement powers.. Collect samples- (environmental vs. packaged) Enforce prohibitions- embargo, stop sale, revoke license, amend or revoke registration of a product etc. Establish limitations as protections Product size Quantity of sales Uses or applications Persons to whom sold

5 ORS Enforcement powers.. Inspect records- any pesticide being produced or used Use cooperative agreements EPA, USDA OSU, ODF Issuance of permits for use of ester s

6 Enforcement Actions Cease and Desist Order Notice of Violation Civil Penalty License suspension or revocation Stop Sale Order/ Crop embargo Referral to another state or federal agency Letter of Advisement

7 Who is regulated by ODA? Licensees Non-licensed users of pesticides

8 Prohibitions ORS Chapter ) Misleading claims via media 2) Perform application or distribute inconsistent w/ label 3) Operate faulty apparatus or aircraft use 4) Perform application in careless or faulty manner 5) Fail to maintain records 6) Give false records 7) Operate apparatus/aircraft w/out a licensed applicator(onsite, 5- minutes) 8) Applicator applies pesticides w/out a license 9) Operator applies pesticides w/out license 10) Apply pesticide as trainee w/out license 11) Act as, or purport to be a dealer w/out license

9 Prohibitions Cont 12) Consult w/out license 13) Use RUP s w/out license (Private) 14) Use powered machinery w/out license (Landscape Exempt) 15) Distribute, sell as misbranded 16) Formulate, distribute, sell as adulterated 17) Formulate, distribute, sell as unregistered 18) Formulate, distribute, sell arsenic/fluoride not distinctly colored 19) Distribute, sell in unbroken package 20) Spray in protected area w/out a permit 21) Use isopropyl ester, 2, 4-D w/out a permit 22) Sell or remove anything on a stop sale, not released 23) Fail to comply with any provision or requirement (HB 3602)

10 Types of Inspections Dealer Records Inspection Marketplace Inspection Applicator Records Inspection - Private, Commercial, Public, Consultant Producer Establishment Inspection Container-Containment Inspection Agricultural Use Observation Agricultural Use Follow-Up Non-Agricultural Use Observation Non-Agricultural Use Follow-Up Import Inspection

11 Investigation details for follow-up inspections Timeline: Respond to a complaint within 48 hours. Cases can take up to 120 days or more to complete Sampling: Must be collected by approved state or federal agencies. Taken only when necessary Findings: Completed laboratory analyses or preliminary findings may be shared while investigation is underway Conclusion: Enforcement action results are not available until the completed investigation report is reviewed and enforcement action/s have been issued Request of records: Case information is public record once case is closed. Requests require a fee and must be written.

12 Investigation details cont Legal assistance: ODA cannot act as your legal counsel. Contact an attorney Reimbursing damages: The Oregon Pesticide Control law cannot require someone to pay for a loss due to pesticide use Report of Loss: Filing an ROL protects your right to pursue civil action against the pesticide user(written for operator) ROL form must be filed within 60 days of the application or discovery of loss. If the loss deals with a growing crop, you must file before 50% of the crop is harvested Oregon law specifies that a ROL investigation will not determine the source of the damage, the person who may have caused the damage, or the financial extent

13 Common violations ORS (5) Refuse or neglect to prepare and maintain records (operators and public applicators)

14 Common violations cont ORS (9) Engage in the business of applying pesticides to the land of others without first having an operator license. Having unlicensed employees make applications

15 Common violations cont ORS (8) Engage in the application of pesticides without first getting the correct applicators license

16 Common violations cont ORS (2) Apply or use: A worthless pesticide A pesticide inconsistent with its labeling Recommend or distribute such pesticides Violating label statements is often cited as faulty, careless or negligent (ORS (4) (focuses on the manner in which applied)

17 The active ingredient of Payload is flumioxazin, its product label states: Do not apply to areas with adjacent non-dormant pome and stone fruit crops. Treatment of powdery, dry soil or light sandy soil, or light sandy soil where there is little to no likelihood of rainfall soon after may result in off target movement and possible damage to actively growing susceptible crops when soil particles are moved by wind or water. Do not apply when these soil and environmental conditions are present. Sub 2 violation was issued

18 Common violations cont ORS (4) Perform pesticide application activities in a faulty, careless or negligent manner Operators- Wrong property application Private companies- site/crop not listed on label Farm/Ranch- off-target movement Public agency- wrong or no license applicator, bad records Examples include allowing drift to occur, impacting people or natural resources through negligence, failing to consider sensitive sites surrounding application areas, and more

19 Common violations cont ORS (17) Formulate, deliver, distribute, sell or offer for sale any pesticide that has not been registered as required by ORS Pesticide products must be registered by ODA to be distributed (sold, offered for sale, etc.) in Oregon. This now includes 25(b) products

20 Sale of unregistered product Knockem Dead Super wasp killer Violated ORS (17)

21 Distribution of a RUP to an unlicensed applicator (sub 2) Applicators must have a license to apply a RUP For retail sale to and use only by Certified Applicators or persons under their direct supervision and only for those uses covered by the Certified Applicator's certification. Do you have the correct category? Private license has no categories

22 Distribution of a RUP by an unlicensed dealer (sub 11) This includes sales and freebies

23 Application of an RUP by an unlicensed person (sub 13) Private agricultural operation w/ out a license for the farm. Application by owner Application under supervision

24 Pesticide Complaints Sources: Referrals from other agencies Neighbors Customers (gopher bait) General Public Employees (usually licensing) Competitors

25 Smell Complaints ODA does not regulate odors. When discussing this, we use an analogy like, just because the guy across the street made a cherry pie and you smell it, does not mean you have cherry pie on you. Sometimes smells, for example during fumigation or volatile chemicals, are a concern! It s our job to determine where/what the smell is.

26 # Inspections in 2012 Applicator record inspections (commercial and public applicators only), 57 Dealer record inspections, 30 Ag Use investigations 74 Non-Ag Use investigations 88 Marketplace inspections, 60 USDA Recordkeeping inspections (Private applicators only), 55 Producer establishment inspection, 6 Observations, 31

27 Investigations in 2012 Fiscal year Complaints reported 162 Complaint-driven investigations Approximately 266 Routine compliancemonitoring inspections

28 Investigations Enforcement Responses Issued Fiscal Year CP NOV

29 Investigations Fiscal Year Cases# #, % that resulted in NOV or CP (13%) (12%) (09%) (02%)

30 PARC Investigations Consists of 8 members Ag director, State forester, ODFW director, DEQ director, HS director etc Manage state agencies response to complaints & questions on illness Reviews cases and recommends action to member agencies to prevent illnesses Distributes educational materials

31 Penalties Can be Federal, State, or Tribal Civil or Criminal Civil Stem from applications, sale, label, or other Range $1,000-10,000 depending on situation Criminal $1,000-10,,000, year in jail or both Notices, Hearings, Matrix

32 Some examples In each of these cases, the violators learned valuable lessons. Learn from them; don t repeat their mistakes!

33 2009 Investigation Application of 2,4-D across border fence Temperature reached 100 degrees Slight wind blowing towards neighbors garden

34 Vineyards

35 Didn t read entire label 102 degrees, trailer, swamp cooler

36 Take care while using broadleaf herbicides! Be aware of sensitive crops or people in the area. (vegetables, flowers, grapes, nursery stock) Ester formulations are more likely to volatilize (evaporate into the air), so choose an amine formulation when appropriate and effective. Watch the weather and avoid temperature inversions. Generally the best conditions include a slow, steady breeze and temps lower than 75º F. Common Phenoxy Ingredients: 2,4-D, MCPA Other Growth Regulator Ingredients: Mecoprop (MCPP), Dicamba, Triclopyr, Picloram, Clopyralid

37 RT 3, Sharpen Seen in 30 acres apples, ornamentals etc..

38 Aerial application; drifted over 900 feet 15 mph + day

39 Abamectin.15 EC Know the label!

40 Orchard blast, 3 mph away from house Turn off outside nozzles Direct spray inward Lower throttle/pressure

41 Parking lot sterilant pre-emergent

42 Center pivot application, metam sodium, night inversions, neighborhood

43 Don t allow drift! Be aware of today s weather, and tomorrow s weather forecast. Check wind conditions throughout application. Identify bits of the application area where drift may be likely to occur, i.e. field edges, fence-lines, areas far above the ground, etc. Think of ways to control the application, i.e. handspray the outside rows, use lower pressure in some spots, create barriers, etc.

44 How to stay in compliance Dealers Keep good records (correct elements) Make checking licenses a habit Review law requirements often Check product registration often Call with questions!!

45 How to stay in compliance Operators Keep good records Keep license updated Keep insurance updated Make sure license has correct categories Use only correctly licensed applicators Review label requirements often Call with questions!!

46 How to stay in compliance Applicators Keep good records (*record requirements are specific to the license type, private, public ) Keep license updated Make sure categories match applications Review label requirements often Follow label requirements Call with questions!!

47 What if I have questions? Contacts -Oregon Department of Agriculture (ODA) -Environmental Protection Agency (EPA -Occupational Safety & Health Division (OSHA) -National Pesticide Information Center(NPIC) * Education and outreach to increase safety and prevent violations is our mission!

48 Got Questions? ODA is an excellent resource! Local Investigators understand local issues Outreach is very important. Brochures and workshops are available

49 Pesticides Program Salem (503) Hermiston (541) Bend (541) Ontario- In the works