United States Pesticides and*.*
Environmental Protection Toxic Substances Washington, DC
Agency Enforcement'Division 20460:, ^ .«,
'
Federal Insecticide, Fungicide,
and Rodenticide Act
Compliance/Enforcement!
Guidance Manual
Policy Compendium
Volume 2: State-Related Guidance
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Table of Contents
Volume 2 of the FIFRA Compliance Enforcement Guidance Manual Policy Compendium contains the
state-related guidances issued by the Office of Compliance Monitoring that are currently in effect. The
Table of Contents of the remaining volumes, FIFRA miscellaneous sources, and a list of obsolete
documents are contained in the Appendix.
Any questions or comments concerning these documents should be addressed to:
Director, Policy and Grants Division
Office of Compliance Monitoring (EN-342)
Office of Pesticides and Toxic Substances
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Volume 2: State-Related Guidance
TITLE DATE
Memorandum: Appropriate Documents to Be Presented 12/18/80
by State Inspectors Conducting Pesticide Use
Inspections in States Having Primacy
Methyl Bromide Label Revision in Response to Health 09/01/92
Concerns of Structural Fumigants
Consolidated Pesticide Cooperative Agreement Guidance
for Current Fiscal Year
FIFRA Compliance/Enforcement Guidance Manual
Policy Compendium i September 1992
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Volume 2
Table of Contents
Volume 2: State-Related Guidance (continued)
TITLE
DATE
FIFRA Section 26 and 27
Procedures Governing the Rescission of State Primary
Enforcement Responsibility for Pesticide Use Violations
[46 FR 26058]
Federal Insecticide, Fungicide, and Rodenticide Act,
State Primary Enforcement Responsibilities (Final
Interpretive Rule for §§26 & 27) [48 FR 404]
Memorandum: "FIFRA §§26 and 27 and SPMS Measures"
05/11/81
01/05/83
10/02/85
FIFRA Compliance/Enforcement
Policy Compendium
ii
Guidance Manual
September 1992
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, _., .. i r* i >.« wiit ii» wi«n\i.ii
rrvucu
as? j a ceo
MEMORANDUM
SUBJECT: Appropriate Documents to be Presented by State
Inspectors Conducting Pesticide Use Inspections in
States Having Primacy
\
TO: Enforcement Division Directors
Air 4 Hazardous Materials Division Directors
Pesticide Branch Chiefs
At present most State inspectors conducting pesticide
use inspections present credentials headedi 'United States
Environmental Protection Agency". The credential later
identifies the inspector as "an employee of the State of
.* This credential has been supplied by the Agency
as a convenience to States which have cooperative enforcement
agreements with EPA. (EPA Fora 3540-28 (Rav. 4-78))
These credentials were designed before primacy when
States conducted use inspections for violations of FIFRA
under the auspices of a cooperative agreement. Pursuant to
Section 26, most States now exercise primary enforcement
responsibility for all use violations. Use inspections are,
therefore, primarily a State activity. Consequently, use
inspections in States with primacy are undertaken tinder the
authority of State law, (this is true even where the use
inspections are Federally funded).
Therefore, during use inspections, it is appropriate
for State inspectors to present credentials which indicate
that the Inspectors are acting under authority of State lav.
The existing Federally supplied credentlala are misleading
since they are headed 'United States Environmental Protection
Agency." In the fu^ure^State inspectors conducting pesticide
uso. inspections frtiBiiTrT present credentials that axe issued
by their, State employers. If State credentials do not
already exist, the State is responsible for designing and
providing such credentials to their Inspectors*
""
" 'r r
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it. ia additionally noc'jcsary for Ctctcc to cease
•who •'cucruily uu;: plied "ifocicw o£ I;\:j..'CCwion" for*:., (CTA
Tor:.; 354U-2 (Huv. 3-75)). The present Cori.i erroneously
identifies use insanetions as beiruj authorised under the
authority of the "U.S. Environmental Protection • Agency". The
States arc responsible for draftinc; new r.'btice of Inspection
forias. The States must design their Notice of Inspection
forn in a aanner which parallels tha 21'A forrc. A consistent
format will greatly aid the indexing of the information in
the Ayency conputer. The State Notice of Inspection fonts
should indicate the relevant State statutes which authorize
the inspection. While States await the printing of the new
forns, they may use the Federally supplied forms if all
indicia of federal authority are obscured.
It should also be noted that State inspectors conducting
use inspections cannot rely upon FIFRA for authority to take
affidavits. Consequently the Agency affidavit forr, (EPA Form
3540-11 (Rev. 9-75)) may not be used by States during use
Inspections. If State law grants this power, of course, the
inspector nay take an affidavit according to State pro-
cedures.
I hope that the Regions will implement these guidelines
during the next 6C days. Please contact John Martin of ny
staff at 755-1075 if you have any questions.
A. E. Conroy II, Director
Pesticides and Toxic Substances
Enforcement Division
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
PESTICICs SAND TOXIC
SEP I |OQ2 SUBSTANCES
MEMORANDUM
SUBJECT: Methyl Bromide Label Revision in Response
to Health Concerns of Structural^umigant
FROM: John J. Neylan III, Di
Policy and Grants Divisi
Office of Compliance Moni$pri
TO: Addressees
In response to EPA's health concerns about Methyl Bromide
pesticides used for commercial and structural fumigation, the
registrants for methyl bromide structural fumigants have revised
their labeling, as required by EPA, to incorporate the language
set out in Attachment A. There are five registrants with
thirteen methyl bromide products which are affected by the
labeling revisions. (See attachment B.)
All five registrants committed to certain conditions for
continued registration of their Methyl Bromide products. The
methyl bromide registrations listed in Attachment B have been
amended to add the following conditions:
o By June 15, 1992, registrants were to submit revised product
labeling as stated in the Interim Approved Labeling
(Appendix A). This deadline has already passed and all of
the registrants have adhered to this.
o By August 15, 1992, all products which are sold or
distributed by the registrant must bear the June 1992
revisions concerning aeration and reentry and the fact sheet
for commercial and residential structural fumigation (see
enclosure-Interim Approved Labeling, Appendix A).
Please note that the Registrant may request that its
label(s) contain aeration procedures different from those
specified in Appendix A if the registrant submits data
showing that such procedures will provide an adequate margin
Printed on Recycled Paper
-------
-2-
of safety for persons reoccupying the structure. However,
all five registrants revised their labeling to add the
aeration procedure specified by the Agency. None have
submitted data supporting a different aeration procedure.
o Registrants roust notify all of their customers by certified
mail that sale or distribution of Methyl Bromide pesticide
products for residential or commercial structural fumigation
will be prohibited after September 1, 1992 unless the
product labels bear the revised use directions. Registrants
must then keep copies of both the notifications and the
receipts for two years.
o The Registrant will use the Customer Letter provided by the
Agency on May 15, 1992 as the notification letter referenced
in the preceding paragraph. (See Attachment C.)
o Registrant will offer to relabel products for their
distributors, and if distributors agree, the Registrant will
relabel such products.
o The Registrant will put a month/year code on all amended
labels.
Please note that a policy question arose regarding the use
of California's Methyl Bromide Fact Sheet in place of EPA's Fact
Sheet. Upon review of both, the Office of Pesticide Programs
(OPP) has determined that in the state of California only, the
use of California's Customer Fact Sheet will be permitted. In.
light of this decision, we are issuing Compendium Policy No. 3.10
entitled, "Use of California's Methyl Bromide Fact Sheet." (See
Attachment.)
Please also note that a question has been raised regarding
the deletion of the greenhouse use site from two product labels
which have voluntarily removed all structural residential and
commercial fumigation uses 'from'the label. This issue has been
referred to OPP and we will notify you when this issue is
resolved.
If you have any additional questions regarding this label
revision, please call Phyllis Flaherty or Shruti Desai of my
staff at (703) 308-8383 or (703) 308-8291, respectively.
Attachments
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ADDRESSEES
(EN-342W)
it
Douglas D. Carapt (H7501C)
Daniel Barolo (H7508W)
Anne E. Lindsay (H7505C)
Stephen L. Johnson (H7506C)
Mike Walker (LE-134P)
Jim Nelson (LE-132P)
Michael Stahl (EN-342)
Connie Musgrove "
John J. Neylan III "
Mike Wood "
David Dull
Phyllis Flaherty
Frances Liem
Bob Zisa
Jerry Stubbs
Maureen Lydon
Jan Bearden "
Linda Flick "
Jim Jones (TS-788)
Jake Mackenzie
Western Regional Compliance Director
I Linda M. Murphy, Director
Air, Pest. & Toxics Mangt. Div.
II Barbara Metzger, Director
Environmental Services Division
(EN-342)
II
III Thomas J. Maslany, Director
Air, Tox. & Radiation Mangt. Div
:v Winston A. Smith, Director
Air, Pest. & Toxics Mangt. Div
7 • William H. Sanders III, Director
Environmental Sciences Division
/I Stanley Meiburg, Director
Air, Pesticides & Toxic Division
.'II William A. Spratlin, Director
Air and Toxics Division
/III Irwin Dickstein, Director
Air and Toxics Division
:X David P. Howekamp, Director
Air Management Division
:< Gary O'Neal, Director-
Air and Toxics Division
Marvin Rosenstein, Chief
Pesticides & Toxic Substances Br
Ernest Regna, Chief
Pesticides & Toxic Substances Br
James Burke, Chief
Toxics & Pesticides Branch
William J. Patton, Chief
Pesticides & Toxic Substances Br
Phyllis Reed, Chief
Pesticides & Toxic Substances Br
Robert Murphy, Chief
Pesticides & Toxic Substances Br
Leo Alderman, Chief
Pesticides & Toxic Substances Br
C. Alvin Yorke, Chief
Toxic Substances Branch
Davis Bernstein, Chief
Pesticides & Toxics Branch
George A. Abel, Chief
Pesticides & Toxic Substances Br
:c: Arty Williams
Kathy Taylor
OCM Staff
(H7506C)
(H7506C)
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,., APPENDIX A'
•
INTERIM APPROVED LABELING
LABELING FOR KAifJFACTURING USE PRODUCTS:
This product cannot be formulated into an end-use produc- fcr
residential or co:ariercial structural fuaigaticn unless the label
of the end-use product incorporates the following directions:
FuMIGATION 70?. RESIDENTIAL OR COH>TERCIAL STRUCTURES
Aeratien and ?.eer.trv!
At the end of tne exposure period, after all tarpaulins or
seals are renoved from the structure, open all interior and
exterior doors, windows, and vents that are operational. No
person shall be allowed to reenter the structure unless wearing
protective clothing and a NIOSH/KSHA approved self-contained-
breathing apparatus (SCBA) or combination air-supplied/SGBA
respirator until the following criteria are net:
1. A) If non-mechanical or natural ventilation is used, the
structure must be aerated for a minimum of seven days from the
time the tarpaulins are removed.
B) After aeration is completed, --the Itvel of methyl bromide
in the structure must be measured using a gas detector device
with a minimum detection limit of 3 ppn for methyl bronide.
Measurements must be ta'Xen from an interior electrical outlet by
inserting the detection device in the ground receptacle, or from
other enclosed space within the wall on an interior and a
perimeter vail; and
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C) (i) The level of methyl bromide is less than 3 ppn frca
*
each area measured; or
(ii) If the level of methyl bronide is 3 ppa or greater,
the structure shall be aerated for an additional 24 hours. At
the end of the 24 hour period, the level of nethyl bronide must
be measured from the areas previously sampled. These procedures
must be repeated until the level of methyl bromide is below 3
ppm.
2. If mechanical aeration is used:
A) For structures without attics, an aeration fan(s) must be
inserted in a window or other exterior opening and(sealed so that
the air inside the structure is exhausted out of the structure.
The aeration fan(s) must be capable of displacing 5,000 cubic
feet of air per minute. To facilitate aeration, exterior
openings, such as windows, vents, or an access door to the
subarea, should be utilized. The structure must be aerated with
the fan(s) operating for a minimum of 72 hours;
B) After aeration is completed, the level of methyl bromide
in the structure must be measured using a gas detector with a
minimus detection limit of 3 ppa for'nethyl bromide.
Measurements must be taken from an interior electrical outlet by
inserting the detection device in the ground receptacle, or from
other enclosed space within the wall on an interior and a
perimeter wall; and
C) (i) The level of methyl bromide is less than 3 ppm from
each area measured; or
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(ii) If the level ..of aethyl bromide is 3 ppm or greater,
•
the structure nust be aerated for an additional 12 hours. At the
end of the 12 hour period, th« level of methyl bromide rust be
neasured froa the areas previously sampled. These procedures
must be repeated until the level of methyl bronide is below 3
ppn. .
3. A) For structures with attics, an aeration fan must be
inserted in the attic access door and a window or other exterior
opening, and both sealed so that air inside the structure is
exhausted outside the structure. The aeration fans nust be
capable of displacing a minimun of 5,000 cubic feet of air per
ninute. To facilitate aeration, exterior openings,. such as
windows, vents, or an access door to the subarea should be
utilized. The structure must be aerated with the fans operating
for a minimum of 72 hours;
B) After aeration is completed, the level of methyl bromide
in the structure nust be measured using a gae detector device
with a minimum detection limit of 3 ppa for aethyl broaide
residues. Measurements must be taken froa within an'interior
electrical outlet by inserting the detection device in the ground
receptacle, or other-enclosed space within an interior and a
perimeter wall; and
C) (1) The level of aethyl broaide is less than 3 ppm from
each area measured; or
(ii) It the level of methyl bromide is 3 ppa or greater,
aeration must continue for an additional 12 hours. At the end of
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the 12 hour period, .the-level of aethyl broaide rust b« measured
•
froa the areas previously sanpled. These procedures must be
repeated until the level of aethyl brcrzide is below'3 ppn.
4. For structures with basements, in addition to the
requirements of paragraphs 1, 2, and 3 above, the windows, vents,
and interior doors of the baseaent nust be open, and
A) After aeration is coapleted, the level of aethyl fcroaide
in the baseaent aust be aeasured using a gas detector device with
a nininun detection limit of 3 ppa for aethyl bronide residues.
A neasurenent nust be taken froa an interior electrical outlet by
inserting the detection device in the ground receptacle, or froa
other enclosed space within the wall on an interior wall. In the
absence of an interior wall, a aeasureaent aust be taken of the
ambient air in the baseaent; and
B) (i) The level of aethyl bromide is less than 3 ppn; or
(ii) If the level of methyl bromide is 3 ppa or greater,
the structure must be aerated for an additional 24 for natural
ventilation or an additional 12 hours for mechanical aeration.
At the end of the additional ventilation period, the level of
aethyl broaida must be aaasured from'' the area in the basement
previously sampled. ' These procedures must be repeated until the
level of methyl bromide is below 3 ppm.
Structural Fumigation Fact Sheet
A. The applicator must obtain a structural fumigation fact sheet
which has been signed by, and provided to, the following persons:
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(1) an adult occupant of a single family dwelling prior to
•
the parties entering into a funigation agreenenc,
(2) (A) Tiie owner, manager, or designated agent of the
building for multiple-family dwellings, provided he or she
acknowledges in writing to the applicator that a copy pf the
Structural Funigant Fact Sheet has been provided to an adult
occupant of each unit prior to the parties entering into a
funigation agreement; or
(B) An adult occupant of each unit in a multiple family
dwelling prior to the parties entering into a fumigation
agreement , or
(3) the owner, manager, or designated agent' for all
structures or businesses other than fanily dwellings,
B. The Structural Funigation Fact Sheet shall state:
The purpose ef this handout ia to infers the consumer oC possible
health hazards associated with tha use of th« structural
fumigaat, methyl bromide. To Bake sure you have been given an
opportunity te read thia. applicators are required to obtain the
signature of the owners and occuants of roert to *
with methyl bromide. You vill alae be given a eopy of this fact
aheet to keep.
Structural rumiguxtss Methyl Bromide
ATTENTION
Read Thi« Fact sheet completely Before signing
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Fumigation involves ...the introduction of poisonous gases inro
•
every part of the structure, .including insids the walls. Because
overexposure to these gases can be hE.rr.ful to people, your
building will be ventilated before you will be allowed to return.
This fact sheet provides basic information about the
structural -fumigant, methyl bromide, as well as information about
why and how buildings are funigated, methyl bromide health risks,
how to know if you are exposed, ways to minimize your exposure,
and several phone nunbers to call for more information.
New rules for structural fumigation have substantially
increased the time between funigant use and the time an occupant
is allowed back into the building. Post-fumigation ventilation
has also been improved significantly. These changes should be
adequately protective, but you should know some basic facts about
structural fumigants.
Wby Buildings Are Fumigated - Houses and other structures
are fumigated to kill insect pests living in walls or wood.
There are sometimes other ways to deal with these pests, and
building owners should investigate them. However, fumigation is
"' ' • » t
sometimes the only method for handling extensive infestations of
wood-destroying insects. You can discuss the possibility of
alternatives with your pest control company.
Why Buildings Are Fumigated - There are two pesticides used
for structural fumigations: methyl bromide and sulfuryl fluoride
(known by the trade name, Vikane.) Each has advantages and
disadvantages in terms of their effectiveness in killing pests
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which professional fusigaters can discuss with you. Your
fuaigatcr should also provide you with a list of itens you need
to resave from your hcne before the funigatior. starts.
Methyl bronide is a gas. Before furigaticn starts, the
building to be fumigated is completely sealed and covered with a
tarp to keep the gas in the building so it can penetrate wood to
kill the pests. The tarp is left on for one to two days.
Warning signs are posted around the building notifying people to
keep out because the levels of the pesticide in the building
during fumigation can kill a person.
A
After the tarp is removed, a professional fuatigator will go
into the building wearing a compressed air tank and mask and open
the doors and windows. Powerful fans may also ba set up to pull
. fresh air into the building.
• It is now required that buildings fumigated with methyl
bromide be aired out for a minimum of 72 hours after the tarp is
removed. Then, the fumigators are required to measure the levels
of methyl bromide inside the vails of buildings to make sure they
are below three parts per million before you are allowed to go
back in.
The ventilation procedures make it unlikely that any
remaining fumigant in the living space will be a health hazard
after the house is cleared for reoccupancy. However, you should
be aware of the symptoms of overexposure to methyl bromide/ since
it is sensible to be cautious when dealing with a potentially
hazardous chemical.
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Small pockets o£ fumigant can remain in dead air space
•
between walls and inside cabinets/ and in porous material such as
furniture, and say enter into the living space for a few days
after fumigation. That's why a mandatory aeration period is
required after the tarp is removed. Your building should not be
cleared for reoccupancy until it is safe for you to reenter.
How Do You Know Whether You Are Exposed - Methyl brcr.ide is
a colorless, odorless gas, so a warning agent is added which
causes watery eyes and a scratchy throat. If you experience
these symptoms in a building that has been recently fumigated,
you should leave immediately and call the pest control company to
have your building retested. >' You should also consult with your
physician.
Methyl Bromide Health Risks - Methyl bromide enters your
body as a gas when you breathe it. Exposure which nay occur
from touching treated surfaces is insignificant.
Nervous system, eyes, and respiratory irritations:
overexposure to methyl bromide can cause blurred vision,
headache, and nuusea. At higher concentrations, it can cause
tremors, sleepiness, convulsions, pneumonia, and excess fluid in
the lungs. These symptoms may not appear for 12 to 24 hours. If
you experience these symptoms in a recently fumigated building,
you should leave immediately and call the pest control company to
have the building retested. You should also call your personal
physician. Physicians are encouraged to report suspected
pesticide-related illnesses to EPA.
8
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Birrh defecrs: . In recent animal studies, sethyl bronide
caused birth defects when pregnant anir.als were exposed under
experimental ccnditions. There is no evidence that nethyl
bror.ide affects huaan reproduction, ai-hough sone chemicals which
cause birth defects in aninals nay also cause birth defects .in
hunans. Any person, including pregnant women, should avoid
unnecessary exposure.
Other effects: It is not known whether long-tera exposure
to nethyl bronide causes cancer. Experiments in aninals are
underway to study this, although tests so far are negative.
However, even if methyl bronide were shown to cause cancer over a
lifetine of exposure in aninals, it is unlikely that your '
exposure from the one-time fumigation of your building would-be
high enough to cause a significant risk of cancer.
Ways TO Reduce Your Exposure If You Are Having Your Building
Fumigated -
o Carefully evaluate all your pest control alternatives.
o Talk over your treatment program in advance with the pest
control company, BO you fully understand what will be
done, and what you need to do.
o Carefully follow the instructions you are given about
items you are to remove froa your building.
o Stay out of the treated building for at least three days
after the tarp is removed. If you have additional
concerns, you may choose to be away for an extra period
of time after the building is cleared for reoccupation.
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o If you are interested cr concerned, you can ask your pest
•
control company to show you the records of the air
aonitoring it did before your building was cleared for
reoccupation.
o You nay wish to increase ventilation by opening doors and
windows.
o If you have syr.ptcms of exposure, or you believe that
the aeration was not done properly, you should leave
. ' the building and contact the pest control company and
your physician. You nay also wish to call one of the
phone numbers listed below.
For information about pesticides, the U.S. Environmental
Protection Agency has a toll-free information service, the
National Pesticide Telecommunications Network Hotline, which can
be reached at 1 (800) 658-7378.
In a medical emergency, call 911, or contact the nearest
Poison Control Center. See "Crisis Hotlines'* listed near the
front of the white pages in your phone book.
If you feel uncomfortable entering the structure, or if you
do not fully understand the potential hazards, you should call
the company, that performed the fumigation:
Naae: ;
Addrest:
City: _
Telephone:
10
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I acknowledge receiving a copy of this nethyl broxice fact
•
sheet. (You will sign one copy for the company doing the
fumigation, and get a second copy to keep for later reference.)
Signature: Date:
Please print your name here:
Your address:
FOR FUMIGATION OF RESIDENTIAL AND COMMERCIAL STRUCTURES, THESE
DIRECTIONS SUPERSEDE ANY OTHER DIRECTIONS ON THE LABEL CONCERNING
AERATION.AND REENTRY
LABELING FOR END-USE PRODUCTS:
The label language for Fuaigation of Residential and Commercial
Structures: Aeration and Reentry would be the same as for
manufacturing-use products except the introductory paragraph
concerning formulation into end-usa products would ba ommited.
11
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FIFRA COMPLIANCE PROGRAM POLICY No. 3.10
Use of California's Methvl Bromide Fact Sheet
FIFRA Section: 3
Issue:
Label directions for all Methyl Bromide products require
that customers sign an EPA Fact Sheet before structural
fumigation occurs. Through regulation the state of California
requires a California fact sheet be signed, will EPA allow
California's Fact Sheet (revised May 1992) to be used in lieu of
EPA's Fact Sheet for customer signature before fumigation in
California?
Policy;
Upon review of both Fact Sheets, the Office of Pesticide
Programs has determined that use of the California Fact Sheet
(Revised May 1992) would be sufficient to meet the Agency's
intent in notifying customers prior to beginning fumigation. At
the request of the Office of Pesticide Programs, the Office of
Compliance Monitoring will allow applicators in California only
to use California's Fact Sheet (Revised May 1992) for customer
signature in lieu of EPA's Fact Sheet for customer signature
before the applicator starts the fumigation process.
Discussion;
Methyl Bromide registrants voluntarily agreed to a label
revision of Methyl Bromide products with structural (commercial
and residential) fumigation use directions on the label due to
health concerns of structural fumigants. Methyl Bromide
Registrants with structural fumigation uses on their product
labels have revised their aeration and reentry directions
according to the Interim Approved Labeling. A Federal
requirement of the new, approved label language is that
applicators give their customers a fact sheet for their review
and signature before the fumigation process begins. In addition
to this Federal requirement, the state of California has passed
regulations requiring applicators in California to give their
customers the California Fact Sheet for review and signature.
Without this policy, both fact sheets are required to be
presented to the customer and signed. The Office of Pesticide
Programs has reviewed both fact sheets and have requested the
Office of Compliance Monitoring to allow applicators in
California only to use the California Fact Sheet (Revised May
1992) in lieu of both. The EPA Fact Sheet is required to be
signed in all other states.
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Attachment B
Products Affected by the Methyl Bromide Label Revision
Great Lakes Chemical Company
5785-4 Brom-0-Gas
5785-7 Brom-O-Gas 1%
5785-8 Brom-0-Gas 0.5%
5785-42 Brom-0-Gas 2%
5785-55 Brom-0-Gas 0.25%
Tri-Cal Inc.
11220-17 Methyl Bromide 98%
Soil Chemicals
*8536-5 Pic-Brom 33
*8536-ll Pic-Brom 25
8536-12 Methyl Bromide 99.5%
8536-17 Methyl Bromide 99.75%
8536-19 Methyl Bromide 98%
Shadow Mountain Products
58266-3 Trical Methyl Bromide 99.5%
Ameribrom Inc.
8622-17 Metabrom 99
Ethyl Corporation
3377-7 M-B-R-98
Reddick Fumigants Inc.
37733-5 Bro-Mean C-2R
Structural fumigation use directions have been removed from
the label while soil and greenhouse fumigation uses remain.
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Custozer Letter
Dear Cus-ccaer:
. Due;ta'receht-exposure data generated on aerhyl 'brcaide _'
structural-: fuiigaticn,v:the United States Erjvironaental Protection
AgenV/£(USi?A)~: is ^concerned-.that'[there nay be va. potential: health"
Lai
'stmacturesV
revis~idvdirectionsf*-the ' structure' cannot'- be'-reoccuni'ed "until'-'-the
sheets^ should^be.ikept: along5.' with:'your,; application'- records .-'^At'c
pf"fthe"new;.us'e''Tdirecti6ns':aiid-Fact}Sheet-.is :;^enclosed"-'"' '"•
/"- and., distribution or-.'sale of -a'aetiayl
|brcmide.! pesticideVproduct: for • commercial'- or "residential
fstructural2fuaigatioriTyis-;proaibited after September•• I," 1992 ' -•
fuhlessjthe"^ labeling- contains.- the '.'revised use: directions' and Fact
Sheet i^.. We 'Cask": for, your, cooperation,, -and remind you. that-
r'incbnsistentVvith jthe;? instruct ions 2 in: its" labelingj^is .-a ^violation
:"'"iJ ~" "
Enclosure
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 204*0
OFFICE OF
PESTCOESANOTOXC
SUBSTANCES
APR 2 4 1991
MEMORANDUM
SUBJECT:
FROM:
TO:
ticide Cooperative
Final FY 1992
Agreement Gui
Stephen L. Jo
Field Operat
Office of p.
John J. Ndy/an ill, Director
Policy anor^Grants Division
Office of Compliance Monitoring
Regional Pesticides and Toxics Division Directors
Regional Pesticides and Toxics Branch Chiefs
Attached is the final guidance for preparation of State
pesticide cooperative agreements in FY 1992. The package
includes the guidance and a complete set of appendices to the
document.
Thank you for your comments on draft versions of the
guidance and for facilitating State comment. Many comments were
incorporated into the final guidance. However, others raised
issues that could not be addressed through the guidance this
year. We will retain all comments and attempt to address them
through action items for further consideration.
A number of comments expressed concern with the implemen-
tation schedule for the Worker Protection Program. After further
discussion with program staff, we have scheduled a longer lead
time for dissemination of educational materials in the first
phase of the program. However, the remaining schedule for
implementing the program has not been changed because of the
importance of completing these tasks within the stated time
periods. We will make every effort to ensure that guidance and
materials needed from Headquarters on the Worker Protection
Program are available so that schedules can be met.
Printed on Recycled Paper
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7Y92 Consolidated Pesticide Cooperative Agreement Guidance
Another section of concern to commentors was the proposal to
move up the due dates for quarterly reporting under the
cooperative agreements. Based on opposition to this proposal,
reporting dates will remain the same as in previous years.'
Included in this final guidance is a section on the Office
of Compliance Monitoring's lawn care initiative. This section
was sent separately for review by Regions and States, and the
final language adopted reflects those comments. Several States
reported that they have lawn care programs in place and that the
activities proposed would be easily incorporated into current
programs. We are asking for the support of the States with this
initiative to gather systematic information about the use of lawn
care products so that we can report to the General Accounting
Office on our assessment of the need for a long-term lawn care
enforcement strategy.
Finally, those Regions that issue Region-specific guidance
are reminded to circulate draft guidance to their States for
review and comment before finalization. Copies of final Regional
guidance should be sent to the Office of Compliance Monitoring
and to the Field Operations Division.
If you have any questions regarding the certification and/or
the pesticide program sections of the guidance (pages 18-35),
please contact Therese Murtagh, OPP Field Operations Division, on
FTS 557-7410. Questions regarding the compliance sections of the
guidance (pages 36-70) should be referred to Linda Flick, Office
of Compliance Monitoring, on FTS 382-7841.
Again, thank you for your input to the guidance.
Attachment
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FY 92 CONSOT TTCATRD PESTICIDE COOPER ATTVE
Page
L INTRODUCTION
A. Purpose of Guidance 1
B. National Priorities 2
1. Enforcement National Priorities 3
2. Certification and Training of Pesticide
Applicators . 3
3. Ground Water Protection Program 5
4. Endangered Species Protection Program 6
5. Worker Protection Program 8
IL COOPERATIVE AGREEMENT APPLICATION
REQUIREMENTS
A. Standard Grant Application Forms 11
B. Budget Requirement 12
1. Cost Sharing 12
2. Itemized Budget Detail 12
C. Narrative Statement 13
1. Background 13
2. Ability to Implement Program 13
3. Objectives of the Project 14
4. Benefits of Project to the Applicant and EPA 14
5. Work Program 15
D. Accountability under the Cooperative Agreement 15
E. Required Certification for Drug-Free
Work Place 15
F. Certification Concerning and Disclosures of
Influencing Activities 16
G. Debarment and Suspension Certification 16
H. State Application Review Checklist, Regional
Review Procedures and Semi-Annual Evaluations 16
PESTICIDE PROGRAM ACTIVITIES FOR FY 92 WORK
PROGRAM
A. Introduction 18
B. Certification and Training of Pesticide
Applicators 19
C. Ground Water Protection Program 22
D. Endangered Species Protection Program 25
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F. Scheduling 33
G. Reporting 33
H. Accounting Records and Filing System 35
I. Evaluation Plan 35
J. Program Funding ' 35
IV. ENFORCEMENT ACTIVITIES FOR FY 92 WORK
PROGRAM
A. Introduction . 36
B. Work Program Activities 37
1. Issue-Specific Compliance
Monitoring Activities * 37
2. Priority-Setting 48
3. Inspection and Sample Collection Activities 49
4. Lawn Care Activities 51
5. Quality Assurance 53
6. Formal Referrals 57
7. Enforcement Response and Case
Developement 58
8. Tracking Requirements 62
9. Reporting 62
10. Accounting Records and Filing Systems 63
11. Evaluation Plan 63
12. Unresolved Problems 64
13. EPA Support to State/Tribes 64
V. ALLOTMENT OF COOPERATIVE AGREEMENT FUNDS
A. Base Funding 65
1. Formula Funding 66
2. Allotment Schedule . 67
B. Worker Protection Enforcement 67
1. Base Funding 67
2. Formula Funding 68
3. Allotment Schedule 68
C Adjustments to Initial Allotments 69
D. Regional Allocations for State Worker
Protection, Groundwater and/or Endangered
Species Enforcement-Related Activities 69
VL SUMMARY OF FY 92 COOPERATIVE AGREEMENT
ALLOTMENTS 71
ii
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FY92 CONSOLIDATED PESTICIDE COOPERATIVE AGREEMENT GUIDANCE
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Pesticide Guidance
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Pesticide Guidance FY 92
S^
1 CERTIFICATION AND TRAINING OF PESTICIDE APPLICATOR -
NATIONAL PRIORITIES
a. Program Goals. In FY92, the Agency will work with the states/tribes to address
the changes to certification plans which will be required as a result of revised provisions
in the regulations concerning "Certification of Pesticide Applicators," 40 CFR 171. The
revisions to 40 CFR 171 should be final and in effect in FY92. Working with USDA and
others, EPA will develop new training modules and upgrade training materials to assist in
meeting the more stringent pesticide applicator competency standards contained in the
revised regulations.
b. National Program Priorities. In the area of certification and training of pesticide
applicators, the Agency has identified five program areas for priority activities in FY92 at
the national and/or regional levels. These activities will be undertaken in cooperation
with the states, tribes, territories, and with USDA:
1. Encourage Interaction between State Agencies and Cooperative Extension
Services in the States
EPA will continue to encourage frequent interaction between the Lead
Agency for pesticide programs and Cooperative Extension Service in each
State, particularly where the training offered by the Extension Service is a
means of obtaining certification or recertification credit
2. Training
EPA will address state/tribal needs in the area of training material. EPA
will continue to work with USDA to identify needed training programs and
materials and to develop these programs and materials at the national level,
and facilitate such development at the regional and state level, as
appropriate.
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Pesticide Guidance FY 92
EPA will cooperate with the private sector to encourage development of
training materials.
EPA will encourage states/tribes and facilitate their efforts to ensure that
training is made available to applicators in situations where the state/tribe
itself cannot offer training.
EPA will continue to develop train-the-trainer programs that address new
regulations, emerging issues, and innovative C&T materials.
EPA will encourage and assist in the development of methods/programs for
verifying that training has occurred in cases where the state/tribe itself does
not administer the training.
EPA will continue to cooperate with USDA to upgrade state private
applicator training programs and certification mechanisms based on the Joint
EPA-USDA/CBS reviews which were completed in FY 89.
3. Publication of Revised Federal Regulations
EPA will promulgate, in FY 92, revised regulations for the certification of
pesticide applicators.
4. State Certification Programs
EPA will encourage states/tribes to maintain their state/tribal plans, in
accordance with FIFRA Section 11 and 40 CFR 171. When the revised
regulations are promulgated, EPA will assist in the transition from existing
certification programs to programs that meet the requirements of the
regulations.
. 5. Cooperation and Interaction
EPA will facilitate cooperation and interaction between federal and
state/tribal agencies for identifying emerging issues, and in developing and
implementing state/tribal and regional programs to address those issues.
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Pesticide Guidance " FY 92
3. GROUND WATER PROTECTION PROGRAM - NATIONAL PRIORITIES
a. Program Goals. EPA's environmental goal in its Pesticides and Ground Water
Strategy is to manage the use of pesticides to protect ground water resources. The
strategy provides states, tribes, and territories the opportunity to take the lead role in
meeting this goal by designing and implementing plans to manage pesticides for the
prevention of ground water contamination. This approach allows for the tailoring of
pesticide management measures to meet specific local ground water protection needs.
Resources devoted to protecting ground water from pesticide contamination will be
focused on those areas that have the most serious agrochemicals in ground water problems
or with the potential for such problems. The Regional Program Offices will provide
technical assistance to states, tribes and territories on pesticide management plan
development and review of state and tribe management plans, ensuring cooperation among
key state/ tribal agencies, sharing information and reviewing grant plans.
Protection of ground water requires a localized protection approach which require
a greatly expanded/strengthened state/tribe role in problem identification and in the
management of pesticide use with a focus on prevention of contamination.
At the regional level, the pesticides, ground water and non-point source programs
will need to work closely together to develop consistent state and tribal work plans to
support program specific grants. At the state and tribal level, there is the same need for
cooperation and coordination between involved agencies.
b. National Program Priorities. In the area of ground water protection, the Agency
has identified program areas for priority activities in FY92 at the national and/or regional
levels. These activities will be undertaken in cooperation with the states, tribes, territories,
and with USDA and USGS:
1. Implementation of the Final Management Plan Guidance Document and
Technical Support Documents
EPA will provide guidance to states, tribes, and territories in their efforts
to develop management plans and to promote national consistency in using
these plans as a key element of the foundation for pesticide registrations.
EPA also will provide technical assistance to those preparing to develop
management plans.
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Pesticide Guidance FY 92
2. Oversee the Development and Implementation of Both Generic and
Chemical-Specific State Management Plans
EPA will develop plans to strengthen the Agency's foundation for the
Federal registration of pesticides posing ground water contamination
concerns. These plans should be developed in close coordination with state
ground water programs. The EPA Office of Ground Water Protection
(OGWP) also is providing funds to state/tribal ground water programs for
the development of pesticide management plans.
3. Resolution of Organizational Roles and Responsibilities with Respect to OPP,
ODW, OGWP, USDA, and USGS
EPA will foster communication and harmony among these organizations
and their regional/state counterparts. With respect to the Office of Ground
Water Protection (OGWP), the Comprehensive State Ground Water
Protection Programs (CSGWPP's) will be the vehicle for addressing
organizational roles and responsibilities. EPA will develop and implement
MOUs with USGS and USDA (Soil Conservation Service, Cooperative
Extension Service, Agricultural Research Service, and Cooperative States
Research Service).
4. Review of Management Practices
, EPA will facilitate the transfer of technology among states, tribes, and
territories. EPA will determine what is and is not working and share that
information with those in similar situations.
5. Outreach to Pesticide Users and the Public
EPA will develop public information materials such as brochures, fact sheets,
and audio-visual materials to aid in outreach.
4. ENDANGERED SPECIES PROTECTION PROGRAM - NATIONAL
PRIORITIES
0
a. Program Goals. The Endangered Species Protection Program focuses on providing
the best protection for listed species while minimizing any unnecessary impacts on pesticide
users. During the 1992 growing season, OPP anticipates the continuation of the voluntary
and pilot programs begun in 1990 and 1991.
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Pesticide Guidance FY 92
During FY92, the Agency will begin requiring registrants to relabel some products
with endangered species precautions and reference to county-specific bulletins to conform
with the Endangered Species program. Because approximately twelve months will be
allowed for relabeling, few products at the end-use level will bear the revised labeling
during the 1992 growing season.
The Regions' focus will be on providing technical assistance to the states/tribes.
This assistance will include coordinating the review of habitat maps with the states and
other interested parties, ensuring coordination between State agriculture and fish/game
agencies, and reviewing State plans.
A.-
b. National Program Priorities. In the area of endangered species protection, the
Agency has identified program areas for priority activities in FY92 at the National and/or
regional levels. These activities will be undertaken in cooperation with the states, tribes,
territories, and with USDA:
1. Voluntary Programs Including Pilot Programs
EPA will assist with on-going pilot programs and work to establish new pilot
programs in the states/tribes during the 1992 growing season. Results from
the pilot programs will be used to revise the Endangered Species Protection
Program as necessary.
2. Customized State-Initiated Plans
Through the Regional Offices, EPA will provide technical assistance to
states/tribes developing their own state/tribe-initiated plans. Regions will
participate in the first level of review for state/tribe-initiated plans. EPA
Headquarters will assist in reviewing state/tribe-initiated plans submitted
through the Regions, and in obtaining concurrence from the Fish and
Wildlife Services (FWS).
3. Outreach to Pesticide Users and the Pubtic
EPA will develop educational materials for use in the field as well as to
inform the public about the Endangered Species Protection Program.
EPA will provide program informational materials (including bulletins,
brochures, fact sheets, videos/slides) to the Cooperative Extension Service,
Regional Offices, etc., as these materials are developed by EPA.
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Pesticide Guidance FY 92
4. Coordination with the Federal and State Lead Agencies
EPA will promote cooperation with other Federal and state/tribal agencies
including USDA, FWS, Regional Office, State Agriculture and Fish and
Game departments. This cooperation will result in (a) the development of
educational materials and habitat maps, (b) review of program outreach
activities, and (c) the development of technical aspects of the program.
5. Review of Habitat Maps
Through the Regions, EPA will coordinate the review of habitat maps with
the states and other interested parties.
5. WORKER PROTECTION PROGRAM - NATIONAL PRIORITIES
a. . Program Goals. In FY92, the Agency goal will be to disseminate information on
the new Worker Protection Standards (WPS) and to continue to develop and disseminate
training materials required by the program.
Successful implementation of the WPS and related product label changes will
require continued public outreach to inform workers and employers about requirements
that will be initiated in FY91. The complexity of reaching so many groups and individuals
requires a decentralized Federal program. Training materials and technical assistance will
be directed through regional and state/tribes programs to tailor them to local conditions
and programs.
The pesticides worker protection compliance monitoring and enforcement activities
will focus on ensuring compliance with the pesticide worker protection rule, through
routine comprehensive inspections, and follow-up to incidents and complaint reports.
Training seminars for states and technical assistance for public and private groups will also
be an important part of compliance monitoring and enforcement efforts.
b. National Program Priorities. In the area of worker protection, EPA has identified
program areas for priority activities in FY92 at the national and/or regional levels. These
activities will be undertaken in cooperation with the states, tribes, territories, and with
USDA:
8
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Pesticide Guidance FY 92
1. Continued Development of Program Implementation Strategies by the States,
Tribes, and Territories
EPA, through the regions, wflj provide information and assistance for
finalising individual worker protection program implementation strategies for
states, tribes, and territories.
2. Outreach to Pesticide Users and Workers Potentially Exposed to Pesticides
To assist the state, tribes, and territories in their outreach programs, EPA
will provide information on the WPS to the regulated and affected
communities. These communities will be identified in individual worker
protection program implementation strategies. EPA will develop materials
to inform users of the new WPS requirements. Headquarters will facilitate
regional interaction through informational meetings and workshops.
3. Coordination of Activities with the States, Tribes, and Other Agencies and
Organizations
EPA will promote cooperation between USDA, OSHA, the Cooperative
Extension Services, and the private sector in the development of educational
materials and dissemination of information and training efforts. EPA
encourages states/tribes to include groups/coalitions representing migrant
workers when naming organizations to work with in implementing Worker
Protection Standards (i.e., utilize organizations representing or concerned with
migrant issues). EPA will also promote cooperation between states and
tribes.
4. Publicizing the Worker Protection Program
EPA will develop materials, such as brochures, fact sheets, and guides, for
informing the public of the new WPS. EPA, through the regions, will also
use the media to announce the WPS and inform the public of its
requirements.
5. Management of Cooperative Agreements with the States, Tribes, and
Territories for the WPS
EPA will review the focus and progress of the FY92 Pesticide Cooperative
Agreements. Improvements and corrections will be suggested, as necessary.
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Pesticide Guidance py 92
Head-quarters, through the Regional Program Offices, will issue and transmit
guidance to 'the states/tribes.
6. Training Programs and Materials
EPA will develop a national set of guidance documents on basic occupational
safety that meets the minimum requirements set out in the WPS. Then, in
cooperation with the private sector and other state agencies (the Cooperative
Extension Service, OSHA), EPA will help states, tribes, and territories tailor
programs and materials to meet specific needs.
Using EPA/state/tribe/employer "train-the-trainer" type programs, EPA will
also prepare persons who can offer training or distribute information about
the WPS.
IL COOPERATIVE AGREEMENT APPLICATION REQUIREMENTS
TO ensure an orderly administrative review, programmatic evaluation, and funding
of cooperative agreement applications, the applications must be received by the regional
Grants Management Offices at least 60. days prior to the beginning of the proposed budget
period. This is a federal requirement which must be adhered to in accordance with 40
CFR Part 35.140. This requirement may be addressed in any audits conducted of a
state/tribal cooperative agreement program.
We yMomniMid that states/tribes operating ptotitidt'&sfGftemtiA grant programs
under the Federal fiscal year cycle (October 1 - September 30) s^ibmit their cooperative
agreement appScation ft) days prior to tfce beginning of the proposed badget period
This wiB aBow additional lead time Jnd! help to ^d j^^^*^|[«cineiii$siiot being
awarded on time, Funds will be awarded ills promptly as poe^fe following release of FY
s: •. f % f f •. W e t ^ f ; f /W AV>. tv, f ff--. s*ff. v, v ^r f t
92 federal funds.
funds are
•Xv.'J'swwvv *• f •. f > •.-Wbvv.v rt% * v .vC A % -A-.-- *.*t, ^ff .v.vX-X'. t f -. -.
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..*„;*,.,.,,*.•.•,... ', , , ,*•„, ,. ~ ,' «*,v » >v««w^^~S>5>«!i'*.rf«i*»,v^X^™,^ •• ,,
d fee applicant
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In accordance with 40 CFR Part 35.141, EPA will not reimburse applicants for costs
incurred before the date of award, unless it is a continuation award and the application
was submitted by the state prior to the expiration of the prior budget period. If
applications for continuation awards are not received in a timely manner, it will be
10
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Pesticide Guidance FY 92
necessary to request a formal deviation request approved by the Grants Administration
Division before any pre-award costs may be approved.
In addition to this guidance document, regional and state/tribal staff should consult
the appropriate regulations in 40 CFR Parts 31 and 35, the Administrator's Policy on
Performance-Based Assistance, and the Assistance Administration Manual, previously
distributed, when preparing, negotiating, and evaluating cooperative agreement applications.
Listed below are the principal elements needed in an application to enable EPA
to perform a proper review and evaluation of the proposed program and to make a timely
award of funds. The outline below is a suggested format for applications.
A. STANDARD APPLICATION FORMS
The regulations (40 CFR Part 31.10) require applicants for assistance to use
Standard Form 424 (revised 4/88). Application kits including all the necessary application
forms, may be obtained from the EPA regional Grants Management Office. (A copy of
the application form can also be found in appendix I of this guidance.)
It is recommended that applicants submit one consolidated application, for EPA
review and approval, with a distinct work program component for each of the five
activities (namely enforcement, certification, worker protection program activities,
endangered species, and groundwater program activities).
If submitting one application is not feasible, the state lead agency/tribe may submit
separate or amended applications which address each component for which funding is
available as described in this document.
In submitting a consolidated cooperative agreement application, for EPA review and
approval, the applicant must submit three budgets at a .minimum: 1) one for the
enforcement component (including worker protection enforcement activities and all the
enforcement activities); 2) one budget for the certification component; and 3) one budget
for the pesticide program activities (addressing the groundwater, endangered species and
worker protection program activities together). (Appendix DC includes an example of a
partially completed application form showing how at least three individual budget
components could be entered on one application form SF 424.)
11
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Pesticide Guidance FY 92
B. BUDGET REQUIREMENTS
1. Cost Sharing
a. Enforcement Component
EPA's share of the "total project costs" for the FIFRA enforcement component
should not exceed 85% of the total funding level.
b. Certification Component
*:
FIFRA Section 23 limits EPA's share of the "total project costs" to not more than
50% of the total funding level.
c. Pesticide Program Component (Addressing Worker Protection
Program Activities, Groundwater Program Activities and
Endangered Species Program Activities)
EPA's share of the "total project costs" for the worker protection program activities,
groundwater program and endangered species program activities should not exceed 85%
of the total funding level.
2, Itemized Budget Detail
The applicant should include supportive itemized statements or fact sheets to
expand upon the expenditures proposed for at least eacfr of the three components (namely
enforcement, certification, and pesticide program activities) for the cost categories listed
below. Any additional cost categories that may appear to be out of the ordinary should
be itemized, as well.
a. Personnel
Personnel costs should be itemized to show the type of work activity, number of
persons involved, number of work years involved and the total cost for each of the major
categories of personnel (e.g., inspectional, analytical, etc.) for which funding is requested.
b. Travel
Travel costs must be adequately described to show the basis for the total travel cost
estimate.
12
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Pesticide Guidance FY 92
c, Equipment and Supplies
Each item costing $25,000 or more should be listed separately. Items costing less
than $25,000 may be grouped, as appropriate.
C NARRATIVE STATEMENT
Each cooperative agreement application must be accompanied by a narrative
statement covering the subject areas listed below (addressing background information,
ability to implement the program, objectives of the project, benefits of the project to the
applicant and EPA, and the work program). If a subject has been adequately documented
in previous applications, project reports, etc., a reference to the earb'er document will
suffice, as long as the pertinent pages of the earlier document are attached.
A new work program narrative for each component, for review and approval, must
be-Submitted annually along with the application. With changing conditions and priorities
(both nationally and locally), it is expected that work program activities will change from
year-to-year.
1. Background
40 CFR Part 35.140 requires all applications to include a discussion of performance
to date under the existing award.
2. Ability to Implement Program
Each applicant must certify that there are no impediments to the state's/tribe's
ability to carry out the proposed program or programs. Applicants with continuing
cooperative agreement programs are not required to annually certify their ability to carry
out the proposed programs, unless one or more of the areas described below has changed.
The applicant should address the areas described below, as well as any others, which might
pose problems.
a. Authority to Conduct the Proposed Program
State Authority
The state must have enacted legislation which empowers it to enter into a
cooperative agreement with EPA and conduct specific activities proposed under the
cooperative agreement.
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Pesticide Guidance FY 92
Tribal Authority
The tribe must have established a governmental body to execute a cooperative
agreement with EPA. Most reservations are covered by tribaJ governments, recognized
by the Department of the Interior in the Federal Register and organized pursuant to
treaties and/or Acts of Congress.
b. Authority to Accept Federal Funds
A state/tribe, which can only implement a program under a cooperative agreement
with prior authorization by its legislature to spend federal funds, must include a statement
indicating the date on which such authorization will be obtained. Commitment of EPA
funds will be contingent upon such authorization by the state legislature or Tribal Council.
c. Designation of Lead Agency for Enforcement
Although several agencies within a state/tribe may be responsible for regulating
various aspects of pesticide manufacture, handling, and use, EPA will continue to enter
into only one cooperative agreement with the state/tribe for pesticides enforcement, as has
been done in the past. It is a necessity for a coordinated enforcement program for this
practice to continue.
The Governor of the state or the Tribal Chairman (or equivalent), through a letter
to the regional office, should designate a lead agency which will be responsible for the
cooperative enforcement agreement program. The designated lead agency must have the
authority to enter into contracts or interagency agreements with other agencies for the
performance of all necessary activities. The lead agency must follow through on their
lead" responsibilities, as outlined in the work program section of this guidance document,
as the recipient of cooperative agreement funds.
3. Objectives of the Project
Each applicant should clearly define the principal objectives which support the
achievement of the national and individual state/tribal priorities. •• '
4. Benefits of Project to the Applicant and EPA
The applicant must identify expected results and benefits to be derived from the
project, including all primary and secondary benefits to the applicant. This statement
should clearly establish the project as a cooperative agreement with benefits accruing to
both the applicant and EPA.
14
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Pesticide Guidance FY 92
5. Work Program
The applicant must develop, for EPA review and approval, a proposed work
program for each component including a narrative description of the projected outputs and
work to be accomplished, along with a schedule for accomplishing these activities. The
cooperative agreement work programs for each component are discussed in sections III
and IV.
Additionally, while developing the work program, the applicant should identify and
consider the concerns of persons in the state/tribe who may be exposed to pesticides or
otherwise affected by the pesticides enforcement program. The EPA considers public
participation in the planning process to be an important element of the program. Each
applicant may use a variety of means to identify the concerns of the public and involve
the public in the planning process. As a reference, applicants may wish to use EPA's
Public Participation Policy, January 19, 1981, 46 Fed. Reg. 5736, (included in appendix X).
This policy discusses the following factors: outreach, dialogue, assimilation, feedback and
associated methods.
D. ACCOUNTABILITY UNDER THE COOPERATIVE AGREEMENT
According to 40 CFR Part 31.20, recipients must expend and account for funds
awarded in accordance with state/tribal laws and procedures for expending and accounting
for its own funds. Fiscal control and accounting procedures must be sufficient to: 1) track
the expenditure of funds separately for at least each of three components (enforcement,
certification, and pesticide program activities) of a consolidated pesticide agreement; 2)
permit preparation of Financial Status Reports (FSRs) required by the regulations; and
3) permit the tracing of funds to a level of expenditure adequate to establish that such
funds have not been used in violation of the restrictions and prohibitions of applicable
statutes.
The recipient's expenditures under the agreement must follow cost categories (i.e.,
budget line item or program elements) estabb'shed in the original agreement. Except as
provided for under 40 CFR 31.30 (in appendix XI), recipients and sub-recipients can
rebudget within the approved direct cost budget. Certain types of changes require prior
approval [see 31.30(c) through 31.30(0-]
E. REQUIRED CERTIFICATION FOR DRUG FREE WORK PLACE
On May 25, 1990, the Office of Management and Budget published "Drug-Free
Workplace Requirements; Notice and Final Rules." For EPA, this new nile is included in
40 CFR Part 32 (See appendix XII), Government Debarment and Suspension
15
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Pesticide Guidance
FY92
(Nonprocurement) and Govemmentwide Requirements for Drug-Free Workplace (Grants).
This rule was effective July 24, 1990 except for the certification requirements of section
32.630(c) and (d) for states and state agencies which was effective on June 25, 1990. The
rule requires all recipients to certify that they will maintain a drug-free workplace. The
regional Grants Office must make sure that each application includes a properly executed
certification. The rule provides for suspension of payments, suspension or termination of
grants, or suspension or debarment of the recipient for violation of the rule.
F. CERTIFICATION CONCERNING AND DISCLOSURE OF "INFLUENCING
AcnvrnES"
Ai
Note This is BO* a new remrirement^
*' w-x- -. .• s\: s •, *. s. •. * » f. fs w. vw1- vSwAff+tf. *:*w*;-x>>MW»w«':'»w:';'Xv/l-:-:-i;!*r.-.-:-;-:-:v:':->>X':'X-:«':v;':
Persons (including states and municipalities) who request or receive grants or
cooperative agreements exceeding $100,000 shall file with the awarding agency a
certification that the person has not used, and will not use, federal funds to influence the
award of the grant or cooperative agreement. Such persons shall also file a disclosure
form if they used, or have agreed to use, non-federal funds to influence the award of the
cooperative agreement. Both the certification and the disclosure form should be in the
application kit supplied by EPA. If the documents are not in the kit, please contact the
regional Grants Management Office.
G. DEBARMENT AND SUSPENSION CERTIFICATION
T&fc fr not a 106* te«^
The applicant must include EPA Form 5700-49, the Certification Regarding
Debarment, Suspension, and Other Responsibility Matters. This form certifies that
applicant currently is not ineligible for assistance due to a disbarment, suspension, or other
infraction.
16
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Pesticide Guidance
FY92
prior to I>emg finalized/ Some higblfchts in the application review process are discussed
» s A*»*V t, vw.s"'***#&*•,W-X /v>*«^A<*%*«^Av**wmV.»A»vffff,.vMs ->vMv W-SOfc-Xw-Av^**-, .ww/X <^.v^^>M.'.^<»3*)..^vMswfftvv^.>».^v./^.<^««»w.-->XsM-)0^.. ^ X*.
below.
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walT to complete a owpeiBtive agreenrent app&caSoo review cec appendit V) and
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pcxdci bdp eimire that the applicatfoa* addies» all of 3* tc^u^ Wcn^
pcogram ekc^ntt and rednce tfeijiwnber' vw. .v.v»v.v*»> A^\ l«v»^M v _ R * IT* »)* ^'w*XKs^X<-XvTV-. * v. \lwvss •.*..&*.•*•,£>• ••+
flFa&mZQrtte *jfTOP«aie:jteglonal 5aSoii to" OCM"f \OrdWr«id Ev^ateBratoc!i
Kv w WM. T^ / v^O. v< v X-. •> * W*' x W \ - V.AS-A W^ f s -. %"v. % -.' •>•.-.* <^«^ *.% ^.v *.< >".\^ s\^*> •# X^A% * *% '"> -. ^> •• / S * <• --F
oommMfa from the regions on the application* should also be included/ Cbecldats may
X\sX w^% % !«*<•• *. - -• AVAVW. v." "^" ^ -. v^ •*••••• v * * -uvv»-X ^ ••< •X^^^.^^^•' ^ < ^"X- A-«<5*##Xv.-.»ft-'N' « "•Cv'"*. ":. % ,-, ^M«-M>'w v. •. v^
abobe«entalongwith the application);
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is etsential
|aty will be relayed
17
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Pesticide Guidance FY 92
m. PESTICIDE PR<
of thS ic^oo
A. INTRODUCTION
1. General
For FY92, program development in the new pesticide initiatives will continue.
Pesticide applicator certification programs, that have been in place in the States for
several years, will be updated and maintained.
2. Work Program Components
• Each state/tribe applying for FY92 pesticide program cooperative agreement funds
must prepare a proposed work program that includes the following five components,
at a minimum:
a. A description of the work, as outlined in the specific sections on work
program activities in this chapter of the grant guidance
b. A schedule for accomplishing the work program activities
c. Reporting
d. Accounting records and filing system
e. Evaluation plans
3. Program Flexibility
EPA recognizes that the states/tribes will be designing programs particular to
specific concerns in their areas, and work programs may vary from State to State.
The guidance for the new initiatives may lack some degree of specificity by design,
to allow the states/tribes flexibility in developing their programs and to allow for
states/tribes that have progressed further in some of these areas as well as those
who are in the initial stages of addressing them.
18
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Pesticide Guidance FY 92
4. Cooperation Between States/Tribes and the EPA Regional Offices
The state/tribe and the Regional Program Office should work closely together to
develop complementary EPA/state or EPA/tribal pesticide programs, especially as
they address the new initiatives. Cooperation between EPA and the applicants is
essential in developing effective programs. Discussions between the states/tribes
and the Regional Program Offices with regard to priorities, planning and the extent
of different program activities to be conducted are particularly important.
5. Renegotiation of Work Programs for Program Initiatives
Since the new program initiatives are in developmental stages, the guidelines set by
EPA for these activities may change during the year. There can be a renegotiation
of the work program for ground water, endangered species, and worker protection
program activities after regulations or guidelines are issued in final form. The
Regional Program Office will work with the states/tribes to determine if there is
a need to change the specifications of the work program after final regulations or
strategies are available.
B. CERTIFICATION AND TRAINING OF PESTICIDE APPLICATORS - WORK
PROGRAM ACTIVITIES
1. Introduction
Seven core elements are needed in the applicant's work plan. These elements are
described below. The work program elements should be prioritized based on
discussions with the EPA Regional Program Office.
2. Work Program Requirements
a. Revisions to State Mechanisms for Certification
The State will implement revisions to State mechanisms for certification
(including examinations, training sessions and/or self-study packets if
applicable) as previously agreed upon between the EPA project officer and
the State. This effort also applies to any revisions agreed upon as a result
of the FY 88/89 joint reviews, but not fully implemented by FY 91.
The State Lead Agency (SLA) should provide oversight and assistance as
appropriate in implementing changes to training programs which were
discussed as a result of joint reviews, and the SLA should cooperate with the
19
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Pesticide Guidance FY 92
State Cooperative Extension Service (SCES) in implementing required
changes to certification mechanisms as a consequence of such training
changes.
b. Implementation of Changes to State Certification Programs
The State will implement any remaining changes to State certification
programs/plans which were agreed upon between the State and EPA as a
result of the FY 87 and subsequent discussions on State Certification Plans.
(These changes should have been implemented or should be implemented
according to a schedule agreed upon and approved by the EPA Regional
Program Office and the State.)
c. Review by the EPA Regional Program Office of Revisions of
Certification/Recertification Examinations
Revisions to state/tribal certification/recertification examinations will include
review by the EPA Regional Program Office to assure that, in addition to
the other topics required by federal regulations, the exams include
information on: 1) chronic health effects; 2) ground water contamination;
3) endangered species; 4) disposal methods; 5) calibration of dispersal
equipment; 6) proper use, maintenance and disposal of personal protective
equipment and clothing; 7) applicator laws and responsibilities; 8)
significant pesticide use problems identified through enforcement actions.
When the EPA identifies areas in the examinations that need amendment,
the State will work with EPA to make needed changes.
d. Meetings with the State Cooperative Extension Service
States/tribes must meet a minimum of twice each year with the state
Cooperative Extension Service to discuss and evaluate the state/tribal
pesticide applicator certification and training program. EPA Regional
Program Offices should be notified of meetings in advance. At least twice
a year, states/tribes will submit a report of points of agreement and decisions
to the EPA Regional Program Office. These reports may be submitted by
states/tribes with their mid-year reports and end-of-year reports.
20
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Pesticide Guidance
FY92
e, Reporting of Certification and Training Projections and Accomplishments on
EPA Form 5700-33H
On a semi-annual basis, the state/tribe will submit information on the number
of training sessions participated in or monitored and the number of
applicators certified and recertified (including the numbers certified and
recertified for each category).
These reports showing certification accomplishments should be submitted by
the State within 30 calendar days following the completion of the Federal
fiscal year, second and fourth quarters. Semiannual reports are due April
30 and October 30 of each year. The end of year Form 5700-33H should
include the number of applicators holding valid certification as of September
30, and the recertification period, in years, for each commercial category.
For Regions encompassing States that operate on a fiscal year that is
different from the Federal fiscal year (e. g. July 1 • June 30 vs. October 1 •
September 30), States must provide most current reporting data available
at the time required reports are due.
In addition, the States are required under 40 CFR Part 171.7(d) to submit
an annual report at a time to be specified by the State. The State may
choose to have an annual State Plan report period that corresponds to their
cooperative agreement budget period.
The states/tribes may consider using completed EPA Forms 5700-33H as
part of their State Plan reports because the data reported on Form 5700-
33H are the same as the first three items required in State Plan annual
reports. This can be done only when the State chooses to have an annual
State Plan report period that corresponds to their cooperative agreement
budget period.
Information About High Quality Training Prop
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^OTtTraihihgJNceds
Material
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21
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Pesticide Guidance py 92
State/tflbes wB provide5 iri&taaiibft>N^^
and/of training materials Identified II T>eli:fc of high quality,
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materials w3! be incIudM M r
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.- / .- ^ .-.*****• ^ V V * *^<* .' .WNW^K J,.vji^ A^S ^."XV^ , ^ .s.. V »«(.•»«*
g. State/Tribal Specific Activities
The State/Tribal work program will address any unresolved problem areas
identified in mid-year and end-of-year evaluation reports of current and past
project periods.
h. , Slale/TnbaJ Plan for Xmplementina (be Revised 40 CFR 171
%\«.<^ T. Xt.-*-X/ ' •. A\V!-.V»^S ^ V\ 1. i-vV^ V. H V T*^SSV AV. V%\VW^^ *A > XSV^Ct«WA«. V.S*M«% rf»AV. •.•.<%*
'Hie j»bpose ^\^ __ vX* ^v *• rt*^w <•>••«* ^ s\ <•)"• •XKwK •.' -.% 4eir, FY92 CftT te^inedfs with the
oee
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Pesticide Guidance FY 92
2. The Work Program
a. Establishing a State/Tribal Ground Water Protection Program Schedule
For FY92, the State/Tribe will develop a program schedule for accomplishing
the work program activities described in this section. The state/tribe and the
Regional Program Office must agree upon a work program schedule.
Work toward completion of these activities will be pursued in FY92
according to the established schedule. Completion of the work on all
components may not occur in FY92, owing to the complexity of certain
activities.
b. Work Program Requirements
1. Completion of the Ground Water Protection Program Implementation
Plan
The state/tribe will complete the implementation plan for ground
water protection. The state/tribe will submit the implementation plan
to the Regional Program Office according to the established ground
water protection program schedule.
The implementation plan will include the following components:
a. An outline of how states/tribes will accomplish the provision
and/or requirements of the EPA Pesticides and Ground Water
Strategy pending the receipt of final guidance documents from
EPA
b. A framework for conducting ground water activities, including
whether the state/tribe will opt to develop a generic state
management plan or chemical-specific management plans
c. An estimated time line for the development of either type of
plan within EPA guidelines
d A description of preparations for communicating the strategy
to users and to the public, such as identifying target audiences,
establishing mechanisms for the dissemination of information,
and conducting pubb'c meetings
23
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Pesticide Guidance FY 92
e. A description of plans to develop appropriate infrastructures,
• and/or memoranda of understanding with other State agencies
f. A description of preliminary monitoring
g. A description of any other preliminary activities that should be
undertaken to prepare for implementing the strategy
2. Implementation
After approval of the implementation plan and schedule by the EPA
Regional Program Office, the state/tribe will initiate the activities
defined in the plan.
3. Development of Generic Management Plans
States/tribes opting to develop a generic state management plan in
their implementation plan should begin work on the various generic
components. EPA strongly encourages states/tribes to develop generic
management plans and to submit them for review and preliminary
approval prior to the 1992 use season. Generic plans would contain
the basic components common to all management plans and could
then be modified and expanded to address management of specific
pesticides. A copy of the generic management plan should be
submitted to the EPA Regional Office according to ground water
protection program schedule.
4. Assessment and Identification of Areas Most Vulnerable to Ground
Water Contamination by Pesticides
The state/tribe will begin to assess and identify the areas most
vulnerable to ground water contamination by pesticides in the State
or within tribal lands. This effort may require monitoring and
mapping activities, and may also require coordination with other State
agencies and/or the development of statutory authorities which may
not currently be in place to carry out these activities. A portion of
cooperative agreement funds, as agreed upon with the Regional
Program Office, can be used toward these efforts, and the
development should occur according to an agreed upon schedule with
the Regional Program Office.
24
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Pesticide Guidance . FY 92
To the extent possible, the state/tribe will identify those aquifers
where protection is most critical based on available criteria, which may
include use, proximity to the surface, well location, population density,
etc. Vulnerability may also be dependent upon climate, type of soU,
extent of irrigation, range in pesticide type and application rates,
point source contamination and other factors.
5. Outreach Activities
The state/tribe wilJ conduct an outreach campaign to explain to users
and to the public how the EPA ground water strategy affects them,
how the strategy works, what the state/tribe is doing to respond to
the strategy, and how they may be involved.
6. Development of Chemical-Specific Management Plan Components
The state/tribe will develop the chemical-specific components (for
those developing generic management plans) or a chemical-specific
management plan in response to designation from EPA regarding a
particular pesticide. The chemical-specific management plan or
components should be developed and submitted to the EPA Regional
Program Office on a case-by-case basis as specified by EPA, and
according to the state/tribal ground water protection program schedule.
StateVtribes/tribal wmsortia are encoiiraged to propose an expanded
work program In cases where toe state/tnbe/tribal consortia has an
active ground' water protection prc^ranj^and^bas already addressed
many of the^otber work progmm reqi^einejits. Again, the flexibility
provided In the guidance, allows for creativity and uniqueness In the
ft •• > _vV. % \ w* v» > ^r ^ "•
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Pesticide Guidance FY 92
is participating in a pilot or devising its own plan/procedures. The flexibility
provided in -this guidance should allow for a degree of creativity and
uniqueness in designing state/tribal programs.
2. Work Program Requirements
a. General
Where states have already completed some or all of the work goals
described in this section, new or expanded work goals should be
negotiated. All activities in the work program should be prioritized
within each state/tribe based on discussions with the EPA Regional
Program Office.
b. Work Programs for Base Programs
States/tribes participating in a base endangered species protection
program are eligible to receive the base allocation. The base work
program must outline how the state/tribe will address the following
activities, to the extent of the resources available:
1. Information Response System
The state/tribe will develop a framework for an information
. response system which will be used to disseminate EPA-
developed educational materials, such as maps, bulletins, and
fact sheets, to individuals and groups affected by the program
and in response to public inquiries.
Suggested components for the information response system
are:
a. A telephone information service for agricultural
and home pesticide users
b. State/tribal development and dissemination of
pubb'c outreach materials where needed to deal
with particular local situations
c. State/tribal solicitation of public comment on
review maps and pesticide tables
26
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Pesticide Guidance FY 92
2. Compflation/Dissemination of Information on Federally-Listed
Endangered Species
The work program will also address the following activities
concerning Federally-listed endangered species:
a. Habitat identification
b. Mapping of endangered species habitats
c. Disseminating information regarding newly-
identified/listed species
This activity may include the review of habitat maps to ensure
that they provide accurate descriptions of where endangered
species must be protected and an on-going collection of
information for map development and revision as well as
information on pesticide use by county.
c. Additional Work Program Activities
1. General
A state/tribe may elect to participate in activities beyond base program
activities.
Participation in these activities will require the state/tribe to obtain
any necessary information on agricultural land uses in areas inhabited
by endangered species and determine alternate pesticides and/or use
limitations to achieve the goal of protecting species while minimizing
impacts on pesticide users. These efforts should incorporate
agricultural, fish and wildlife, and conservation interests.
For the activity selected, the state/tribe should outline the criteria to
evaluate the program's effectiveness, the economic and environmental
impacts on the recommendations, and plans or pilots they may have,
including any benefits to the species. State/tribal-initiated plans or
pilot programs can be evaluated after implementation.
27
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Pesticide Guidance
FY92
Additional Activities
a. Outline of State/Tribal Endangered Species Protection
Program
The state/tribe can outline its own program with specific
measures for the protection of endangered species. The
state/tribal outline should include a schedule for
implementing the state/tribal-initiated plan and for
conducting a pilot using the approved plan.
A.
b. Participation in the Federal Program as a Pilot
The state/tribe can outline their participation in a pilot
program of the Federal Endangered Species Protection
Program. The outline should include the method the
state/tribe will follow to implement the use of the habitat
maps and bulletins in their counties to protect
endangered species and track the results.
c. StaieVTribe* Cbodiictiag Puttfc Review of Maps
•• "• ' v. ,> ,„*-. v f > •• •• Xw y «T . .ts»>^>x-^XK^.A<^^XAlXx;^>>..>>».-.»•*
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States/tribes are strong^ encouraged to obtain public
Coininenc Preview Tfafr^j&jtete tabfes.~A review
would bfe announce! erow ^Jnt b EPA and the
' roaterials
v>,'H\wi< *f, v.%*. .\\ %«v«vI'Kv.viXvi'WWW'^V. X-. •. Sl. \ v .' ss\.% <•.-.
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28
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Pesticide Guidance FY 92
E. WORKER PROTECTION PROGRAM - WORK PROGRAM ACTIVITIES
1. Introduction
a. General
•
This section identifies the elements required for inclusion in the
state/tribal work program in the area of worker protection.
b. Overlap with OCM Worker Protection Enforcement Program
<*»••
OCM's guidance for worker protection enforcement activities is
described in the Enforcement Component of the FY92 work program.
The OCM guidance addresses planning for and initial implementation
of a worker protection enforcement program. The inherent
relationship between the program activities required in this section by
OPP and the OCM-required enforcement activities results in some
necessary overlap.
For example, a worker protection program requirement is the
development of an Implementation Strategy, which must include
several chapters as discussed in the following section. One chapter
and one enforcement requirement is the development and subsequent
implementation of a Compliance Monitoring Strategy. Work program
requirements may involve inter-agency coordination as well as outreach
and communication activities. Where there is such overlap, the
applicant may decide to coordinate and jointly develop the particular
activities. However, the Implementation Strategy and the Compliance
Monitoring Strategy must be presented as distinct documents.
2. Work program Requirements
a. General
The applicant will develop a work program for worker protection
program activities and submit the proposed work program to the EPA
Regional Program Office.
•
The work program will include, at a minimum, these three program
components:
29
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Pesticide Guidance FY 92
" An uri&l outreadi/connnorikatMii effort
- - - -
(2) A final implementation strategy for the worker protection
program
(3) An implementation schedule
fv MtJalOufreac^
WftWd to«:tO ^ MCHitW in
slate/tribe wiS reprcxJ^'aua distritrate
A /%>>i, JA/*,>*w*.-i-w. w.-«.r»v C,-* **^^»*«^»j- w ?SK«ftX-Vx».«/> * v*
These materials will be directed at employer*, employee organization*,
and other interested parties. For quick dMiibution,, the State/Tribe
wiB have prepared a distribution ^f of employers and employee
j^miijt "along
c. Implementation Strategy
1. Submission Time table/EPA Review
The strategy should be submitted by the appb'cant to the EPA
Regional Office within eight i&OTthf^after the final WorlcCT
Standardi (WPS) are
Within one month after receipt, the EPA Regional Office will
provide the applicant with comments, if any. The state/tribe
will address any comments within one month of their receipt
and forward the revised implementation strategy to the EPA
Regional Program Office.
Implementation Strategy Components
The Implementation Strategy explains how the state/tribe will
implement the provisions of the new Worker Protection
Standards (WPS) in the regulated and affected communities.
The Implementation Strategy will include, at a minimum,
distinct chapters that address:
30
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Pesticide Guidance FY 92
(a) Outreach/communication
(b) Training
(c) Establishing cooperative relationships with other
agencies, where applicable
(d) A compliance monitoring strategy (See Note
below)
The Regional Program Office and states/tribes are to work
together to utilize funds to develop state specific programs.
The flexibility provided in the guidance should allow for a
degree of creativity and uniqueness in designing programs.
Where states/tribes have already completed some or all of
these three work goals, new or expanded work goals will be
negotiated.
Note: The requirement of a compliance monitoring strategy is
discussed further in the enforcement section of this guidance. The
applicant's compb'ance monitoring strategy must be included as a
distinct section of the implementation strategy.
a. Outreach/Communication
The major focus of the worker protection program in FY92
is outreach. The development of an outreach/communication
program as part of the implementation strategy is key to the
success of the program. OPP is developing outreach materials
in the form of camera-ready copy and master video/slide
programs that will be made available to states/tribes in a
format for easy duplication and dissemination.
The applicant will present a detailed, organized method for
distributing educational materials and providing information
relevant to the WPS to the public and the regulated
community. The state/tribal plan for disseminating such
information will include provisions for duplicating materials.
Outreach/communication efforts should include cooperative
efforts with other state agencies, user groups, and the
Cooperative Extension Service. The plan also will specify which
31
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Pesticide Guidance FY 92
groups will be targeted, and the methods/activities that will be
. used to relay the information.
The outreach program will include briefing workshops to
educate the affected public about the WPS. States/tribes may
want to utilize funds to organize meetings in different pans of
the state and to send participants to EPA-sponsored regional
briefing meetings about the WPS.
b. Training
EPA is developing national training/ educational materials and
guidance documents that will meet the requirements of the
WPS. These materials will be made available to states/tribes
in the form of camera-ready copy for written materials and
masters for audio-visual materials. These materials are
designed to promote consistent standards among state/tribal
WPS programs and to avoid duplication of effort that would
result if each state/tribe developed their own materials. A
catalog of these materials wfl] be forwarded to state/tribal
agencies as soon as they are available. The applicant should
plan for training sessions that will be held when the WPS are
final. The applicant may wish to make provisions for modifying
the EPA-produced training materials to include state/tribal-
specific provisions. The applicant may also wish to make
provisions for duplication and dissemination of the training
materials.
c. Cooperative Relationships with Other Agencies
The applicant will outline the cooperative relationships
established with other state agencies, or Federal agencies,
where applicable, to coordinate program activities where
duplication of effort or conflict may occur. Where appropriate,
states and tribes will outline how they plan to coordinate
activities and explain how the state/tribe will work cooperatively
among the different agencies to identify areas of overlap and
. define inter-agency responsibilities.
32
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Pesticide Guidance FY 92
d. Compliance Monitoring Strategy
The applicant must develop, complete and submit the
compliance monitoring strategy as discussed in the enforcement
section of this guidance.
3. Implementation Schedule
of the final revised WPS, at the
latest, the states/tribes must begin putting their implementation strategies
into effect. States/tribes should carry out the activities contained in the
strategy in the order of their priority and according to schedule.
The 10-month requirement is based on this calculation:
8 months State/Tribe development of the implementation plan
+ 1. month Regional review and comment
+ 1 month State/Tribe incorporates comments
10 months Total.
See section E(2)(c)(l) above.
F. SCHEDULING
The state/tribe prepares and submits a schedule of activities and accomplishments
planned for the grant period.
G. REPORTING
States/tribes report on pesticide program activities and accomplishments conducted
under cooperative agreements.
1. Certification and Training Program
The reports concerning the State/Tribal program for certification and training
of pesticide applicators are submitted semi-annually according to the
specifications outlined in item "e" of the Certification and Training Work
program section and in the protocol for certification mid-year and end-of-
year evaluations.
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Pesticide Guidance FY 92
2. Program Initiatives
Reports on activities and accomplishments in the program initiative areas of
worker protection, ground water, and endangered species also are required
at mid-year and end-of-year. These reports are submitted by the State/Tribe
to the EPA Regional Program Office within 30 calendar days following the
completion of the second and fourth Federal fiscal year quarters.
3. Report Format
Reports consist of a narrative summary of the activities and accomplishments
during the reporting period. Projected accomplishments, updated schedules,
and activities are reported according to the quarter in which they occurred
(or will occur for the upcoming six month period). The reports describe how
the state/tribe has progressed in developing the program (implementation
strategies, management plans, etc.), as well as how they have put their
strategies and plans into effect and what has resulted. The summary
includes:
*•*
(1) Tangible outputs completed
(2) Possible outputs in the up-coming quarter
(3) An updated schedule for the up-coming quarter (noting
any changes made from the original accomplishments
schedule)
(4) Problems and proposed resolutions
(5) Utilization of' funds (not an accounting of where funds have
been spent, but an indication of how well funding is being
utilized, e.g., if the State/Tribe expects to have a surplus that
could be used for additional activities, or if funding may be
insufficient for planned activities)
The EPA Regional Program Office submits the mid-and end-of-year reports
to the Field Operations Division (H7506C), EPA Office of Pesticide
Programs.
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Pesticide Guidance FY 92
R ACCOUNTING RECORDS AND FILING SYSTEMS
According to 40 CFR Part 31.20, applicants must expend and account for funds
• awarded in accordance with state/tribal laws and procedures for expending and
accounting for its own funds. Fiscal control and accounting procedures must be
sufficient to: 1) track the expenditure of funds separately for at least each of three
components (enforcement, certification and pesticide program activities) of a
consolidated pesticide agreement; 2) permit preparation of financial reports required
by the regulations; and 3) permit the tracing of funds to a level of expenditures
adequate to establish that such funds have not been used in violation of the
restrictions and prohibitions of applicable statutes.
For continuing programs, a proper filing system should be in place to maintain
accounting information at the start of the project period. New applicants must
submit a description of the accounting filing system with their cooperative
agreement application and the system should be evident within three months of the
start of the project period.
EVALUATION PLAN
The cooperative agreement should include an evaluation plan mutually acceptable
to EPA and the state/tribe. As a minimum, the plan should include a schedule
for conducting the mid-year and end-of-year evaluations. Appendix VII describes
program evaluations. The mid- and end-of-year evaluations of pesticide program
activities are provided with the state reports to the Field Operations Division
(H7506C), EPA Office of Pesticide Programs.
J. PROGRAM FUNDING
Appendix XXIV provides information on FY92 funding for the Certification
Program, the Ground Water Protection Program, the Endangered Species Protection
Program, and the Worker Protection Program.
35
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Pesticide Guidance FY 92
IV. ENFORCEMENT ACTIVITIES FOR FY 92 WORK PROGRAM
A, INTRODUCTION
Each application for FY 92 enforcement cooperative agreement funds must include
a proposed work program consisting of a description of the work to be conducted and a
schedule for accomplishment of the outputs and activities. In order to be eligible for
enforcement funds, applicants must be able to demonstrate a need for an enforcement
program of at least one half of a work year of inspectional/ enforcement activities.
The applicant and regional office should work closely together to develop a
complementary EPA/state or EPA/tribal compliance program. EPA and the applicants
need to work together to effectively target compliance monitoring and enforcement efforts
towards the areas which may pose the greatest risk to health and the environment.
Targeting for environmental results must be an everyday part of the enforcement program
in the field.
The two national enforcement priorities for FY 92 (follow-up on major pesticide
regulatory actions, and planning for and conducting worker protection enforcement
activities), once implemented in the field, should help yield environmental results.
In order to help focus specific compliance monitoring efforts across the country,
Compliance Monitoring Strategies are developed by the Office of Compliance Monitoring
as major pesticide regulatory actions are taken by EPA throughout the year. These
strategies directly impact the work conducted under cooperative agreements and will be
forwarded to the states/tribes by the regional offices. Additional outputs required by new
or revised strategies may require the renegotiation, during the project period, of the
outputs agreed upon prior to the beginning of the project period; this may include
substituting newly required outputs for similar type outputs in the original agreement.
FbBow-op on these compEauce moruioring strategies Is essential jri&eir intended purpose
feJP l&l&JK^^JH^^
. .
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Pesticide Guidance . FY 92
B. WORK PROGRAM ACTIVITIES
As a minimum, each compliance cooperative agreement work program must
address: 1) each of the eight national issue-specific compliance monitoring activities
discussed below (a-h); 2) priority setting; 3) inspection and sample collection activities;
4) quality assurance; 5) formal referrals; 6) enforcement response, and case development;
7) tracking requirements; 8) reporting 9) accounting records and filing systems; 10)
evaluations; 11) unresolved problems; and 12) EPA support
1. Issue-Specific Compliance Monitoring Activities
*,
This section addresses the following compliance monitoring activities: a) cancellation,
suspensions and other major regulatory actions; b) worker protection enforcement
activities; c) enforcement activities for the pesticide removal regulations; d) enforcement
activities for groundwater protection; e) enforcement activities for endangered species
protection; f) Section 6(g) information submittal and pesticide recalls; g) exports; and
h) certification and training.
a. Cancellations, Suspensions and Other Major Regulatory Actions
For FY 92, a national enforcement priority will be following up on cancellations and
suspensions of pesticide products, and other major regulatory actions. States will conduct
cancellation/suspension inspections and other compliance monitoring activities to assure
compliance with major pesticide regulatory actions within the time frames specified in the
nationally issued Compliance Monitoring Strategies. Inspections and other compliance
monitoring activities for this priority area will address: 1) major cancellation actions; 2) all
suspensions under FIFRA Section 6; 3) FIFRA Section 3(c)(2)(B) suspensions; and 4)
other major pesticide regulatory actions (i.e. label improvement programs, etc.)
On the quarterly reporting form (EPA form 5700-33H), the recipients must
document that compliance monitoring for cancellation/suspensions was completed as a
component of their comprehensive inspections. (There is a reporting block under each
type of inspection on the reporting form for this purpose.) p discussed under the
»• f r & * f f J&.-wvv^*vw % \%"s%o "A%
TBn&Saf ISecl^jriliBnBaafiSgO^i^nlilaiist tra^ the iospe^tkms. VfolaSons found
$&H&\vw •&• "^^s *Ssv •&4&Kt&&tybi6$R-f&&jl.>, s^T /"X-.NwKxi*' v. ' »^ M& f •»>*•. wiw.% -. ' •» -. f. X-X&-AV '"•>Mv55v*Cff'- v^i-.v. NVV. SSfc^'V.s' •* •:•>*• -. f & * \'
vwW: ^•cAScv •'•y'**:* v. %/.* •"•.••% . f v .. •."••&? - *«W^VN^ %v% %.- ^•••'vt --x*-.v-x %A i. V O -w - ^ v
: /*•, v»iiv«A*w '• <~,X~<^-.-~>*.-tZX->S>^JJ>.«v.-JXWK..^ff^>^»X~.^.'s. -~*~
37
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Pesticide Guidance FY 92
bC Worker Protection Enforcement Actfvitia
«» "•-• ---- >• •-- •
—„.,...- „—,„
I. Notification to Prospective Constituents
Between the publication date of the Final Rule and effective dates for compliance,
states and tribes must use the opportunity of inspections conducted under the cooperative
agreement (with the exceptions noted below) to notify prospective constituents of the
provisions of the final rule and to ensure compliance with current worker protection
requirements. This would be in addition to any other methods for notification used by the
state. (Export and dealer inspections would tend to be the only inspections which would
not facilitate notification of prospective constituents.)
2. Compliance Monitoring Strategy
states and tribes must submit to their EPA regional office a Compliance Monitoring
Strategy for worker protection within six months of the publication date of the final rule.
This is part of the overall implementation strategy discussed in Part III. E. of the this
guidance.
OCM's Pesticide Enforcement Policy Branch will issue the draft national
Compliance Monitoring Strategy upon publication of the rule or shortly thereafter, giving
states a chance to study it and begin developing their own. The state strategy should be
consistent with the national strategy.
The state's strategy will then be reviewed and commented on by the EPA regional
office within one month of receipt. (The region's review should focus on whether the
state's strategy adequately follows the national strategy and whether the proposed strategy
is appropriate, given the state's particular situation.) The state or tribe will then address
the region's comments, if any, within one month of receipt and forward the revised
strategy to the regional office.
If a state/tribe cannot submit the strategy within six months of the publication date
of the final rule, the regional office and state should reach agreement on a new date for
submittal. In the meantime, the state must follow the national Compliance Monitoring
Strategy. The regional office shall then request, in writing, concurrence from OCM's
38
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Pesticide Guidance py 92
Grants and Evaluation Branch on the new date, explaining the reason for the delay. (Such
requests are expected to be the exception rather than the rule.)
For informational purposes, the regional office shall send a copy of the state/tribe's
final strategy to OCM's Grants and Evaluation Branch.
(Appendix XIV provides two outlines which the state may use for OCM's
Compliance Monitoring Strategy and for OPP's Implementation Strategy.)
As a minimum, the compliance monitoring strategy must include a compliance
communication strategy, a description of interagency coordination, and a targeting scheme
as distinct components, as discussed below.
a) Compliance Communication Strategy
The applicant must develop and submit a compliance communication strategy for
worker protection. This will describe the actions which the applicant will take
using enforcement funds to communicate the enforceable provisions and effective
dates of the worker protection rule.
(If an applicant is concerned about the distinction between the
"outreach/communication" section of the Implementation plan required by OPP, and
the compliance communication strategy, keep the following point in mind. The
compliance communication strategy shall focus on the types of communication
activities to be supported with enforcement funds. If no such activities will be
supported with enforcement funds, then this section of the compliance monitoring
strategy should simply state so and refer to the outreach section of the
Implementation Plan. Otherwise, this section should describe the actions to be
taken in FY 92 to communicate the enforceable provisions.)
The applicant must identify in the Compliance Communication Strategy the specific
sectors of the regulated community that will be affected, explaining how and when
the state/tribe plans to inform each sector of the requirements of the revised rules.
the applicant shall gather information available on the number and location of the
pesticide users and regulated community in the state or on the reservation within
the various sectors likely to be affected. (The national Compliance Monitoring
Strategy will provide further guidance on where a state might find information
outside of the lead agency to help identify the sectors of the regulated community
that will be most affected by the new standards). The applicant should discuss with
the region the extent and quality of the information gathered, based on the
39
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Pesticide Guidance FY 92
information resources available. This information is necessary to give the state/tribe
an objective basis -from which to better target worker protection inspections. It
could also help the applicant decide where to concentrate efforts to inform the
affected regulated community. (The national Compliance Monitoring Strategy for
Worker Protection wfll give further guidance on priorities for targeting.)
The applicant must inform the regulated community of its responsibility to comply
with the Worker Protection Rule. Apart from inspections, the applicant will need
to develop other means of communicating this information. The state/tribe might,
for example, hire a communications expert to develop a media strategy, post
compliance notices in pesticide dealerships or develop compliance newsletters or
"compliance articles" for inclusion in appropriate journals. These and other
approaches could be considered by the applicant in developing their enforcement
compliance strategy. The approaches and actions to be taken to communicate the
enforceable provisions of the final rule and to be supported with enforcement funds
must be described in the compliance communication strategy.
b) Inter-Agency Coordination
Some agencies other than the recipient of enforcement cooperative agreement funds
may have jurisdiction and responsibility for enforcing the worker protection
standards for pesticides and associated labeling requirements.The recipient of the
enforcement cooperative agreement funds is the lead agency for enforcement and
must develop a mechanism for coordination with the other agencies involved. The
lead agency must clarify in writing this mechanism and specific roles and
responsibilities of each agency. The applicant may want to consider entering into
a sub-grant with the other agency involved and pass through a portion of the
worker protection enforcement cooperative agreement funds, as appropriate. As
soon as the final revisions to the worker protection regulations are published,
cooperative agreement recipients should begin discussions with other appropriate
agencies.
The Inter-Agency component of the compliance monitoring strategy must include:
1. A clarification of the specific roles and responsibilities of each agency which
has jurisdiction and responsibility for enforcing the worker protection
standards in the state;
2. A description of the mechanism for coordinating with the other
agency/agencies involved; and
40
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Pesticide Guidance FY 92
3. A copy of any sub-agreement package negotiated and approved
Development and submittal of the above only applies to applicants in
situations where more than one agency has jurisdiction and responsibility for
enforcing the worker protection standards. (It is important to address this topic
specifically within the enforcement context since it may be the case in some states
that worker protection enforcement responsibilities are shared, but program
responsibilities are not shared, or vice versa.)
c) Targeting Scheme to Ensure Compliance with the Worker Protection Rule
The applicant must develop and submit a scheme specifically for targeting
inspections to ensure compliance with the worker protection rule. Targeting will
hot be implemented until the effective dates for compliance have passed. The
dates will be specified in the Final Rule. (OCM recognizes that if a state requires
more than six months to complete their compliance monitoring strategy, it will
probably be due to the development of a targeting scheme. If it is necessary to
renegotiate a date for submittal, the region might want to require timely submittal
of the first two components while allowing the state more time to develop a
targeting scheme.)
These inspections should be comprehensive, targeted specifically for when and
where activities regulated by the worker protection rule are most likely to take place.
(Specific guidance on the priorities to consider in targeting worker protection inspections
will be included in the national Compliance Monitoring Strategy, which applicants will use
to help identify the priorities applicable within their state/tribe.)
3. Implementation of Compliance Monitoring Strategy
Within eight months of the publication date of the final Revised Worker
Protection Standards, or before, states/tribes must begin to implement the
compliance communication strategy and inter-agency coordination components of
their Compliance Monitoring Strategies. (If the state/tribe does not have a
compliance monitoring strategy in place eight months after the publication date of
the rule, it must begin implementing the National Compliance Monitoring Strategy
until the state strategy is in place.) This eight month time frame takes into account
submittal of the strategy, review by EPA and the aforementioned time for making
changes, if any, to the strategy.
Once the effective dates for compliance with the Final Rule have passed, the
targeting scheme must be implemented.
41
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Pesticide Guidance FY 92
4. Inspections! Activity
(a) Conducting Inspections
Once the compliance dates for the revised worker protection rule have
passed, the state/tribe's pesticide inspection activities will need to include
monitoring for compliance with the new worker protection labeling
requirements. Monitoring for compliance with worker protection
requirements shall be another element of comprehensive inspections.
(b) Incident and Complaint Investigations
Applicants will also conduct investigations in response to incident and
complaint reports.
(c) Tracking
EPA will track Section 26 and 27 referrals; applicants will track tips and
* complaints not referred by EPA.
(d) Inspection Checklist
It is recommended that the applicant use the national Checklists now under
development. The Checklists will include a section for monitoring compliance
with Worker Protection requirements once the compliance dates are effective.
The checklist may be expanded or modified to suit state/tribe requirements,
as appropriate.
5. Training
Using funds received for worker protection enforcement, states/tribes should send
appropriate personnel to available EPA-sponsored training sessions on the new Worker
Protection Rule, provided that the state lead agency can obtain approval for employees
to travel out-of-state, if necessary. The number and type of personnel to be sent should
be discussed with the region. If the state or tribe needs to supplement federal training
with their own training, the development of this training should be coordinated and
discussed with the regions.
42
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Pesticide Guidance
d. Reporting
FY92
Applicants wflj need to specifically report on the implementation of their
compliance monitoring strategy and the other worker protection enforcement activities
described in this section. Two reporting mechanisms will be used to document the
state/tribe's worker protection compliance monitoring activity.
1. Evaluation Reports
The regions wfll document the state/tribe's worker protection compliance efforts as
part of the mid-year and end-of-year evaluation reports. (As a minimum,
evaluations must address the topics listed in OCM's core protocol for FY 92 mid-
year and end-of-year reviews of worker protection enforcement activities. This
evaluation protocol is being updated during FY 91.)
A thorough discussion and evaluation of activities will be necessary in order to
provide useful information to Congress.
2. Quarterly Accomplishment Reports
The second mechanism will be through the quarterly reporting mechanism.
Following the effective dates for compliance, the state's inspections performed under
the cooperative agreement must include monitoring for compliance with the worker
protection rule. (Export, certified applicator records and dealer inspections are not
applicable in this case.) If monitoring for worker protection requirements was not
included as part of every remaining type of inspection, the grantee must explain why
in the narrative section of the quarterly report.
Once the compliance dates are effective, this information will be used in reporting
to Congress and responding to Congressional requests for specific information on the
number of inspections performed to monitor compliance with the worker protection rule
and to ascertain the status of enforcement efforts and implementation of worker protection
compliance strategies.
RannmgfiifbTt
.v, gVwM-oowvMw™^-v^-irttiaMttixiti
43
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Pesticide Guidance
FY92
must
HRRA. Igr DeofiUgg. JK J9» Jpbe
'
wiffi
-**^»vi«<«^v.^<,^x^.-X4W^> .%><*, )«ix-
wfakft'wiB fo conducted itittaurt v*f, J-A- v v % v. 'A •. •. -.VAV w v '.VA'Xv.- s w W
Enforcement Activities for Groundwater Protection
1.
In FY 92, states/tribes will continue to monitor compliance with and enforce
labeling as part of their routine inspections based on priorities agreed upon
between the region and the state.
In targeting use inspections, states/tribes will take into account areas of high
risk for groundwater contamination, along with how these areas overlap with
locations of pesticide use. In their quarterly reports, states/tribes will
document the number of inspections which included compliance monitoring
for groundwater-related requirements or groundwater sampling.
Ai part ;;of
>Hh
prote^nJon implemeDtation plan or state/tribal Mmgement Plan, states/tribes
may conducfjMS foijowihg activities ;
•.-. •. * ww. / f. ««»w.v4*w*«>AVi.A % % ff Ut? •: v ff.: --v. .
These activities relate to enforcement elements that may make up a particular
state's/tribe's groundwater management plan. These activities may be part of either a
generic or pesticide-specific management plan that may be funded by OCM enforcement
monies.
'ISiOflS
nffidwater ^rotectfojEl
44
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Pesticide Guidance
FY92
^
If applicable within a state. FY 92 ftrod* maj $&ti*& *# States/tribes
to develop airy Memoranda of Understanding wfflj other agencies to
coordinate specific enforcement respoadbfllUe* aud actions.
A\\ •.%«.%.•. \ \ V^A* > * .SW/ WX \ % SV.A* f W f S -. .-yW.'v » •.VSWA-HV«CSVWWMCW •• •, «4^\4Wk>.VSvX %
d. If states/tribes need to develop enforcement authorities and/or
prohibitions which are more stringent than those currently in place for
the protection of ground water from pesticides, then a portion of
cooperative agreement funds, as agreed upon with the regional office,
can be used for development of such enforcement authorities. The
development should occur according to a schedule agreed upon with
the regional office.
Several existing' federal $tatitte$ curremW jwovidCSa&tceaicnt authorities in
V * , *, ** -A •• v if *•• /. /*-> «• V>> >Xv * v. fv •. ^
i» detected wShla a pob^ water supply
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~
45
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Pesticide Guidance
FY92
*^£jt iA***ii«ik3^»»J
vOtiHtTinnfi'
•X £ >.*&* v -X>N «**. vVvJ^>/:^vX4^
Wlfifen
drioklnc water tonolies.
^
state
lead agency (SLA) develop for their
, ™ V ^ \ *A -V. V ^ •. V * V, AS'. A *.*W .V.- VV* .
chart" which indlcatea 0»e ^enforecmeM '
, . . , , . .
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^rf ground
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tf the state age^contacfan
igei* cooRTwse t!&
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;: with ' regard " to
state
enforcement
e. Enforcement Activities for Endangered Species Protection
Please note: EPA anticipates that sometime in FY 92 the Agency will issue
Pesticide Registration (PR) Notices to registrants of affected products. The Notices will
require pesticide registrants to modify the labeling of products affected by the Endangered
Species Protection Program. All affected products "sold or distributed" after a specified
date will be required to cany a label statement directing the user of the product to comply
with the limitations in the bulletin.
1. Enforcement of the use limitations to be imposed to protect listed species
wiU be carried out under the provisions of FIFRA addressing misbranding
and misuse. Products whose use requires limitations to protect listed species
and which do not carry the necessary information on the product labeling,
may be identified through routine inspections of manufacturing facilities and
• pesticide distributors and dealers or through information received regarding
suspected misbranding. Products found to be misbranded (i.e., do not carry
the required label language to protect listed species) may be subject to
-------
Pesticide Guidance
FY92
enforcement action. In the field, pesticide misuse will be identified similarly
through routine inspection and information provided regarding alleged misuse
of a pesticide product In targeting use inspections, states/tribes will take
into account areas inhabited by endangered species, along with how these
areas overlap with locations of pesticide use.
Once the final Endangered Species Protection Program is published by the
Agency, the states/tribes will need to plan for and implement appropriate
enforcement measures. The states/tribes will need to comply with the
national Compliance Monitoring Strategy for the Endangered Species
Protection Program to be issued in FY 1992.
BiffittjttkgS^^
FEFRA,
wbo
. .
«apei»fcd or canceSed pesticide to notif? EPA. state and/or local oi&ials of the quaiitities
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fil accorMe scctioa 6( fcfb^ feflure to submit
•
As part of tlitir
suI)mKtal
they receive
-------
Pesticide Guidance
FY92
EPA"may'also^^i&e~1regjftiiuiti*tiHS distribirfofs" Id" recaB
;«lWc%"Hv^"i^v|otb'"d8pe^c^ j^'jpaiSBst-^ Once Ihecinweal
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ifatesftribeTfriB
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d prwfect wfll be included M aB cheanical roes»y«x-.v.ia-.,l:-.'.«-:vx,.y- A SV-:XS-»»^%K»>V* *^< •"• ^-K--;H%<*. SM*^.^ X^A- » %> ^*lfK v & w * -W^ -^. % i *^ O ^<- **- -.^ -•
and Training
't'. \U jT^v.T^j'Aiuv^'.^vJ'Mu^lW
training tod certiMnk pesticide appITcaton and minim
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^^
48
-------
Pesticide Guidance
FY92
•SKH&grt
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nBCfrf>-»'
. , .. J .j . v
iH*jW;w^j*^^
jtandattf ii^tbod foi
«. V s \ ^s s%s .•
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to collect and track tfiSlwIatfbn information. The cots fOT paciing and submittiDg tMs
^ ^A •••.•• ••/ •*•*.•.}£•• AVV>X ^S-A S 'S " *fS VMVJ-y-f A -A V \ \ f *^ ^X^^A A^WwX^S^X V. A\V VV.VA VW* A VS ^ >/X -X-A-.
ma be Dec^tte ninkj the ccKroeralivc agrccmeiiC
* «is^J*. w^-t- *vv*/->Xl^ >. s« >Ww^v^^wAVXUwt^vtaXM}«
3. Inspection and Sample Collection Activities
«,
Appb'cants will project and conduct inspections and sample collection activities.
Once the applicant has determined its priorities (taking into account the national
enforcement priorities), the state/tribe shall describe its proposal for carrying out a
balanced program that addresses these priorities during the agreement period. The
outputs, which the applicant proposes to accomplish during the agreement period, must
be aimed at solving and dealing with the pesticide problems identified by the priority-
setting process.
With regard to sample-related projections, prior to negotiations with EPA, the state
lead agency shall consult with their colleagues in the state laboratory which will be
conducting sample analyses under the cooperative agreement. This should help facilitate
input from the state laboratories into the cooperative agreement program, in a coordinated
manner within the state. Where appropriate, the state lead agency (SLA) is encouraged
to invite their state laboratory representative to the negotiation session with EPA.
49
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Pesticide Guidance
FY92
Federal Facility
r ' With regard to federal faciSty inspections, as stated
*" ' ff "•' f ^^» v%s* < •> V v •" v v<*< ^ : f f s \\ •• T \ r
• : s \\ • \
jW^
adeqaate
, f . . ^v.sv. ^ v/^ • .-vv^vw/ * s s
fospection coverage of federal fecSMei In eacb state. In most case* this regional office wfll
v*^ * $.,.v.. SSWW.A ' % •• -^ AVS ssVX V^X <'VAV,'/-> AcAVhA^ VA v,v%% ^ > A-^fc*'/ ^- ><*• s ...-.^^-JW^ <•' .v >X«vSh'{-.-6vC:>^.P' ;J %**. X. / -y4K> v-4>v A "T -Iv1^' ,•&>-. *. ^Sx*
negotiate a Commitment for lft«~recfpfenVfc ^te^N^mweNTilpal nQmber of federal
%'r^«-- •• ^ -• > AVk •* >% -k ' XV S> - » ">A >A-.rtNW^ 'Vt^ * vXV ^' V- A -. ^ SSSA^S%
^cffilf^ccttons. THoe inspections ifco^I*^]^
routinely condiicCed and outKoed
< *<*** •*•&* M-vtt ,. f «. » ^' •; ••
IrispectkiM: It I* expected that tl« states/tribes wiB conduct
w**<^^*'**'*"*^'*'™'*"<* -^ •. rf**1 % JV>. !w.v * .- % ^. !w.v * .- % ^*r*f <&}f f f X^->Xv> >\w v />*•> •*-. '.VA- Xv
which
^tffefcj^Ngw.
^^State^rJ^^|hcniKI
'"""*""'""' takes
50
-------
Pesticide Guidance
FY92
^ »
Hea
-------
Pesticide Guidance
FY92
>
Federal Trade Commfeskm (FTC) Act
,* •**}, j.jy, fl^^-.s*^ •. <• .j.^j^s-, W^A^-^^A « WWSJf-& f f **»f ^X f,w f*f+ *je yf. v
fn&Vr to' be provided
XV*.<^>t>\ % ^ A Xs s* \ •>-. •••• ' s --v *'< ^i-'s^^'^v s CM<«X'-1''- •*<*
rP$»^i*^^
:
Enforcement taken umler state law
^ ----- '•
52
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Pesticide Guidance
FY92
. . . . ,, . ., tf . . s.. ,
create a format simflar to appendbi XXH1 dociimcntftig the results of their
•-AS w ^ > V d- d- V» s '> ^ w ^ s VH »«> % \ ^dw •* V X- "s »• ^^ •* •• \-. s v •* •• -.-.•••'^Xjkvv •• A ^ > >
activities. T&e appeadbt contain* the 4ccepf$ble mintownwqulteineirts for
* -• v ss ^ -. ff\Mff.v.-. •. VA -b •-* \ v rt\ -.-.// AVv w »wrt%WAV*s «w. -.V •••*•.$».•• ^# AV.rt-.v-. ^•. %
; To faciHtaw ftese™ow im^ctiom and the afortme
^*/ ^ .• ^^^ *S V S \ A ^/XV. .• ^ •><• _ ^-.A1-- / **••-.*•.
pertodkala, teparate FY tt'&mpftw* iaonit()ring^gukfeik*,>il| be sent to the Staled
* ^s s «• ' ~ «fa * % ^ vx*fr \^s% *v »^« vs f '' ~. ^" " % .v. s v> **\*% ' v -A v. *<« •••->/ -.v, s •• w\ •.•Cs-,<^v> v.%' •• \-.v'*
throodi the Regions, during FY91. The result* of the FY 92 feJtfetive will be analyzed
N " \/ s. "^ / J •. A ^^ -.i-A\-.svv.% -.-.v vX 4>.w.% •• s**.vi*.v*m*v.* A v**^>S«w \ \ d^s^?^vl vX-wdw ^^*^^ «vCvOvX> .vtvJMA sfc \ * vj> v> ' AVd> AVAV. MMAV. JIA^V
Producer
:$|c^
e«tab}i$hmentt fn any g^en sWte are"mspected ovex a spedfied finie-frame on a routine
----- ^ ^ •• «.- ^ '^ ' ^ v ^ -W^d- •.' ^ ^ ^ d-A ^ * ,• ^«*, *v VA->V*X. -W*- f* ^*X ^0«. S ^ w %4. s% ., ,
batii;
5. Quality Assurance
Applicants are responsible for analytical activities under their compliance
cooperative agreements and therefore must estabb'sh and implement Quality Assurance
Practices as described below. Analytical procedures conducted for enforcement purposes
under conditions specified by the cooperative agreement are not subject to Good
Laboratory Practices (GLPs). Laboratories performing analytical services under this
cooperative agreement must follow practices and methodologies as agreed upon in their
approved QA Project Plan.
All cooperative agreements involving environmentally related measurements or data
generation are required by the EPA Grant regulations (40 CFR Part 31.45) to develop and
implement quality assurance practices consisting of policies, procedures, specifications,
53
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Pesticide Guidance
FY92
standards and documentation sufficient to produce data of quality adequate to meet
project objectives and to minimize loss of data due to out of control conditions or
malfunctions.
a. Quality Assurance Project Plan
For FIFRA Enforcement Cooperative Agreements, a Quality Assurance Plan is
required for sampling/analytical activities conducted under the agreement. Sampling
activities are not allowed until an EPA-approved Quality Assurance Plan is in place. The
EPA Quality Assurance Management Staff (QAMS) recommends that Quality Assurance
(QA) Project Plans, rather than QA Program Plans, be developed for FIFRA Enforcement
Cooperative Agreements.
QAMS has issued a document titled, "Interim Guidelines and Specifications for
Preparing Quality Assurance Project Plans" (QAMS - 005/80, December 29,1980) to assist
applicants in complying with the quality assurance requirements. In addition, to assist
applicants, NEIC has developed a model quality assurance project plan for pesticides
sampling and analytical activities. The states/tribes may use this model or develop their
own. (See appendix XVI.)
Each region has an individual assigned as the Quality Assurance Officer and that
person will be available to assist the state/tribe in development of a quality assurance
program. Copies of the documents referenced above will be obtained from the regional
Quality Assurance Officer, who is responsible for approval of the Quality Assurance Plan.
For continuing cooperative agreements, applicants conducting sampling/analytical
activities under the agreement must have in place a current approved QA Project Plan.
If a Quality Assurance Project Plan submitted in previous years continues to reflect the
sampling and analytical activities proposed for the current year, reference to the approved
plan on file in the EPA regional office will suffice. Any significant changes in content
(including signatories), however, requires submittal of updated pages, or the entire plan
as appropriate, with their cooperative agreement application.
- - - -
New applicants, including both states and tribes, which will conduct
sampling/analytical activities under their FY 92 enforcement cooperative agreement must
submit their Quality Assurance Project Plans for approval and implement these plans prior
to conducting sampling activities under the agreement. EPA Headquarters recommends
54
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Pesticide Guidance FY 92
that this be done within three months of the start of the project period if not before the
start. Sampling activities are not allowed until an EPA-approved Quality Assurance Plan
is in place. The schedule for submittal of the QA Plan must be included in the FY 92
cooperative agreement as agreed upon between the applicant and EPA.
b. Analytical Methods
Pesticide formulation samples collected for determination of product compliance will
be analyzed by the applicant's laboratory, or other laboratory specified in the agreement,
using the EPA Manual of Chemical Methods for Pesticides and Devices, Association of
Official Analytical Chemists (AOAC) analytical manual (14th Ed.), the Collaborative
International Pesticide Analytical Council Manual (CIPAQ, or other standard analytical
methods. All potentially volatile samples will be verified by procedures spelled out in the
NEIC Pesticide Products Procedures Manual or as otherwise specified in the Quality
Assurance Project Plan.
Pesticide residue samples in support of misuse investigations will also be analyzed
by the applicant's designated laboratory, using available FDA, EPA, USGS or other
accepted methods available in the scientific literature or by the pesticide industry. All
reported results will be accompanied by appropriate quality control parameters so as to
allow evaluation of precision, accuracy, freedom from interferences and confirmation of
pesticide (or metabolite) identity.
c. Cross Contamination Screening
Applicants conducting sampling activities will establish and utilize a cross
contamination screening program for pesticide formulations in accordance with the EPA
Cross Contamination Guidelines. (See appendix XVII.)
d. Check Sample Program
Each applicant conducting sampling activities will participate in the EPA's national
Enforcement Investigations Center (NEIC) Check Sample Program. Under this program,
EPA submits pesticide formulations and residue samples to applicants' laboratories for
analysis and Cross contamination screening, as appropriate.
The applicant must submit a report indicating the methodology used and the results
of the analysis to EPA. EPA will review the report and inform the state/tribe regarding
the accuracy of their analysis and the methodology selected. If a state/tribe fails to obtain
the correct results, EPA will assess the problem, provide assistance to the applicant's
laboratory as appropriate and/or conduct other follow-up activities. This program will also
55
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Pesticide Guidance FY 92
help assess whether the states/tribes are screening pesticide formulations for cross
contamination, since some check samples may be contaminated with another pesticide.
NEIC currently notifies each laboratory and regional office of the check sample results.
The regional offices will provide a copy of these results to each state lead agency or tribal
agency/Chairman in their region which utilizes that particular laboratory for sample
analysis. .
e. Back up Analysis Procedure
The applicant can request back-up analyses from NEIC or other NEIC
recommended laboratories, if necessary or requested by the region. Examples where
backup analysis may be requested are:
o A state/tribe, which is unsure of the results of an analysis, requests an
impartial or second analysis before initiating an enforcement action;
o A state/tribe requests that EPA take the enforcement action and EPA
desires to check the state's/tribe's analysis.
o A reference analysis is required due to conflicting results between the
state/tribe and the regulated party.
L Training of Analytical Chemists
EPA will provide training of state inspectors and analytical chemist, as necessary.
Using cooperative agreement or other funds, the states should avail themselves of EPA
workshops, seminars and meetings on proper sampling, analytical procedures,
instrumentation, methodology and quality assurance. The regions will work closely with
the states to assist in identifying needed training opportunities and help in coordinating
participation.
g. Laboratory Reviews
Personnel from EPA will also be available, if requested by the state or EPA
regional office, to review state laboratory analytical capability and procedures, and to
discuss areas needing improvement. Requests for these visits, which will usually be made
by representatives from NEIC or the regional Quality Assurance Section, may be initiated
by the state or the EPA regional office; they will be arranged by the regional office. A
formal report of findings and recommendations will be prepared by EPA for the state
upon completion of the on-site visit
56
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Pesticide Guidance FY 92
h. Provisions of Analysis Results
The applicant will send a copy of the results of any sample analysis made under
the authority of FTFRA to that person from whom the sample was collected. This is a
statutory requirement under section 9(a) of FIFRA,
L Submission/Retention of Reports
Copies of all analytical reports, associated raw data and other necessary records for
samples collected will be retained by the state/tribe and be available for examination by
EPA, or be forwarded to the EPA Regional Program Office.
The analytical reports must be retained by the applicant or the EPA Regional
Program Office until the associated enforcement cases are resolved and closed out. It is
recommended that analytical reports be retained for a minimum of five years.
6. Formal Referrals
^
States/tribes will conduct activities under FIFRA Section 26 and 27. Section 27(a)
of FTFRA requires EPA to refer to the states/tribes any information the Agency receives
indicating a significant violation of pesticide use laws. In accordance with the Final
Interpretive Rule governing FIFRA Section 26 and 27 and the 1985 policy memoranda
from A.E. Conroy II, EPA in consultation with each state/tribe will identify, in writing.
priority areas for formal referral to the state. These priority areas will consist of those
pesticide activities in the state/tribes which present the greatest potential for harm to
health and the environment. The priority areas will be revised annually, based upon the
effectiveness of the programs in reducing the harm associated with pesticide use in the
state/tribe. The negotiated written agreement between the state/tribes and the region will
contain the criteria for the selection of significant pesticide use cases. Pesticide use cases
involving worker protection, groundwater and endangered species will be among those
considered significant within the context of the agreed upon criteria for significant pesticide
use cases.
All pesticide use cases, identified as significant, will be referred to the state/tribe
by EPA in writing, and will be formally tracked as set forth in the Final Interpretive Rule.
All other cases wfll be referred to the state/tribe for information purposes and will not be
formally tracked
The EPA regional offices wfll formally track all significant pesticide use cases, which
are formally referred to the states/tribes under the Final Interpretive Rule governing
FEFRA Sections 26 and 27. The state/tribe must commence appropriate enforcement
57
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Pesticide Guidance
FY92
action for cases, so tracked, within 30 days after completion of the investigation. This
period may be extended, after negotiation, if required by the procedural characteristics of
the state/tribe regulatory structure or the complexity of the case.
If the state/tribe has not reported on the investigative status within 30 days of the
date of referral, EPA will contact the state/tribe to learn the results of the investigation
and the intended enforcement response to any violations detected An investigation should
be considered adequate if the state/tribe has: (1) followed proper sampling and other
evidence gathering techniques; (2) responded expeditioush/ to the referral; and (3)
documented all inculpatory or exculpatory events or information.
A.
*.•
If the region determines that the intended enforcement response to the violation
is inappropriate, EPA will first attempt to negotiate ah appropriate state/tribe enforcement
response. If the state/tribe is unwilling or unable to alter its original enforcement
response, EPA may bring its own enforcement action after notice to the state/tribe. That
notice will summarize the facts relating to the state/tribes enforcement response, discuss
reasons for EPA's determination that the enforcement action is inadequate and state that
EPA wi|l initiate its own enforcement action. The region will not initiate an enforcement
action sooner than thirty (30) days after the state/tribe was notified.
7. Enforcement Response and Case Development
Applicants without state pesticide laws or tribal pesticide codes and associated
regulations must conduct inspections under federal authority. State pesticide laws and
tribal pesticide codes empower the state/tribe to conduct both pesticide inspections and
enforcement activities as authorized by their laws or codes.
state*
civfl
$* eaowgrapff to
lake the neceasar? steps to dwetop a crvfl pejry program and iet* *oaj far cdajpJetioo
•.J-w .•.'*«-.vww/.vcx v. s f W-. ' +* fff. f v. rtsv*-- ' v- * ^ i&S WttU^«*'.«»>.'ttiv/s4t%v -.>%•&• < s W-.-^J«v? s^X vt^vT-J* v
EafotetauaA grant fund* can
JV.^ X?s»5T ;,~" •.& "W^sSX. ^^^Z\
Work programs must address each of the following items (a-c) in this section.
58
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Pesticide Guidance FY 92
a. Enforcement Response Polky
Each applicant conducting enforcement activities under the FY 92 grant must have
an up-to-date Enforcement Response Policy (ERP) in place before the regional office
approves funding for a cooperative pesticides enforcement agreement The timing of this
guidance document should provide sufficient lead time to affected applicants so that they
can update their ERPs, if necessary, prior to their submittal of the FY 92 enforcement
cooperative agreement application.
A ". * V* f W-. V * -. ^ *.%•. \ W. N-XV.V % SV* .• S .WtV.*. -. *• V. V.VMMAMXV*-.-.-.-. \ AvXl. •.-._'• 'Xv V^Ow-S^ «• .«,•.<•.•. \ %•*
. ^%V«VV% rt% •. S S -.S -A^-. ^ \ % * W "• SV. »/-.-. V. -.% •USSVWU % % %-,«VW •.-•AV>.-.>.-.VS%'V«4MM rt s ^AW W. f, •. * f,v,f+*fj\ v. v,ff,Aff •K.~.f,vf,f.f f •, f, v ffff: s ~\ VA * W ^^^^ W •.¥*•«• w.v'.w*. -.v v/ VA«.A %'v*-. iMSiWA%vvAv4vOv ss^ \ Nv. VSW
A copy of the up-to-date ERP must be submitted along with the application, to
OCM's Grants and Evaluation Branch in order to develop a national repository of state
ERPs.
As a minimum, each state's Enforcement Response Policy should include the
following:
o List of violations likely to be encountered;
o Mechanism for determining level of gravity for each type of violation;
o List of enforcement remedies available for each type and level of violation
(include both state/tribal and federal action);
o Escalation of penalties for second and subsequent violations;
o Consideration of potential pollution prevention enforcement penalties and/or
in settlement of enforcement cases; and
o Timetable which the state/tribe will follow to insure the timely investigation
of complaints and the timely issuance of enforcement actions when violations
are detected.
59
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Pesticide Guidance
FY92
" ~ " ~
£££*>»«.;»- >»»W%;> ,»~iio,>»-~x~-»«(>~ -,.*,*S~,,^*~ * *~ix«.«> »e^,.*««K.
-------
Pesticide Guidance
FY92
Violations of Federal Law Only
, . ,
^^
The state/tribe will prepare and make available to EPA, when requested, testimony
and other evidence pursuant to the procedures adopted^ by EPA. The state/tribe will
provide witnesses for informal settlement conferences, public hearings, and appearances
in a court of law, as the EPA requests.
3. Violations of Both the Applicant's and Federal Law
If evidence reveals a violation of both state/tribal and federal law, the state/tribe
may bring appropriate enforcement action under state/tribal law or refer the case to EPA
for action under FIFRA. In the event that a case is referred to EPA for action, the EPA
case preparation off cer should review the case file to ensure that state/tribal inspection
procedures adhere to basic constitutional guarantees and EPA should proceed with the
case.
For all pesticide cases, for which the state/tribe determines that the most
appropriate enforcement action is not available under state/tribal law, the state/tribe may
refer such cases to EPA for enforcement action under FIFRA.
c. Cross Jurisdictional Situations
For a successful cooperative pesticide enforcement program, there should be
cooperation between the tribe(s) and the state(s) in which a tribe is located. Because
many of the distributors and applicators of pesticides on tribal lands are not located on
the reservation, it is important that tribe(s) and state(s) involved be agreeable to
developing procedures for cooperative enforcement of problems involving cross-
jurisdictional situations. As a goal, EPA Headquarters recommends establishment of such
procedures. EPA regional Project Officers can facilitate coordination between tribal
representatives and state representatives of the state in which the tribe is located by
negotiating time lines, where appropriate, to be included in both the tribe's and the state's
work programs.
61
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Pesticide Guidance FY 92
-•»»*Swfr*N*>V»»t^^»'''- w Wnm*tt&.*\m,. if«avf tew v^x*
~ Enforcement action token
-DateA v %«<%\-i ^ -.-. ^%%
-Dispositicmof actkm
>i*/.!;'A^ »*n»fjt. s *. f"» *Aw.«- 1/.»>N
in^^^^^^^ the rapid idenfi&catici
of the jtrins of a case d ^ Monnaticra resoaice for MbnnSig citizcni of tbe
«A- .«*!VA • ^ >* •*•••:• AM- *'• >. »,-. / ^.v^ ft X->A>, »< •' \ .sv J«*«v ^. v. A / v*. .-.S^A- v/.- •. ;vft AX- Xv / -UnvvkUWAXs 1«J*Av.-.-*K v**«*X-i«vw.v*Av ,v^.-.-> •:• •.vXww*
that Judi files wiH be mairttaiDed must be addressed In the cooperative agreemenJ wodc
v. *X\v. ^<^.^ ^rf^<. >v. y s^v>M«v- v rf <.««ft.MV ,->•..* .- . X-\»-.\ v ^....\...s..... A .v y, X-.- ->X- •• .'.-<>>Sy^ ^>NvM>Xv> >y».0*" *>•.*•» A- ^.- .• •• •».- w.v .*v*.->X X- <•**.>.<• ^
New appffi^ti taust M)mit a description of the frackmg system with theit
'f \^W* ^ 'A -,; •..-,<•«•>.% A A\ \ .• * \-.\ >.\\ -.WA Iv \ ^ir V % •. /
<»ctt>eraiive a^eemeot appHcatiQa and the system BiBf be Cvidtfil witMa feree montbi
w % s -, ^^ -. W w \ % % v%V% •*% / % \^™ \ v AVAV* A' ^ ^^ vvw w.s\% v-vtw. *.v. ^ f ***++. •- -VANS •. \ -.
btf nan
•
UBdertfceafoi
'" ' "' '" ' «~|^c^;^etttoftffii«Mipio
§vmnjm Wlobec&«$
W < '.SWX" VffMff %*V.S \ .SV.C •. S^ ff % "A\«*W A>
9. Reporting
Applicants need to use EPA Form 3700-33H (in appendix XVIII) for reporting
inspection and sample collection accomplishments under the FTFRA Enforcement
Cooperative Agreement. A narrative report may need to accompany the revised reporting
62
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Pesticide Guidance
FY92
form to discuss any pertinent state/tribal enforcement activities not addressed on the form,
any program highlights and/or any program problem areas.
Completed compliance monitoring reporting forms are required quarterly. These
reports showing inspectional activities and enforcement actions accomplished will be
submitted by the state/tribe to the EPA regional office within 30 calendar days following
the completion of each federal fiscal year quarter. Quarterly reports are due by January
30, April 30, July 30 and October 30 of each year.
Reports wOl be prepared on inspections and enforcement actions taken after "major
pesticide regulatory actions" as specified in the applicable compliance monitoring strategy.
The regional offices' requirements for reporting cooperative agreement projections
and accomplishments to Headquarters are discussed at the end of appendix XVIII.
10. Accounting Records and Filing Systems
Applicants must maintain accounting records for funds awarded for each component
under each agreement (including receipts, state/tribal matching contributions, and
expenditures) in accordance with all applicable EPA regulations and generally accepted
accounting principles.
For continuing programs, a proper filing system should be in place to maintain
accounting information at the start of the project period. New applicants must submit a
description of the accounting filing system with their cooperative agreement application
and the system should be evident within three months of the start of the project period.
11. Evaluation Plan
The cooperative agreement should include an evaluation plan mutually acceptable
to EPA and the state/tribe. As a minimum, the plan should include a schedule for
conducting jjjjjj! mid-year and end-of-year on-site evaluations.
63
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Pesticide Guidance FY 92
to the
RnfltiTfA)
12. Unresolved Problems
The cooperative agreement work program must address any unresolved problem
areas identified in the most recent end-of-year evaluation and the mid-year evaluations for
the current project period and indicate how the state/tribe and/or EPA will address the
problem(s). The plan for addressing the problem(s) must include a schedule/time frame
for implementing the plan.
13. EPA Support to States/Tribes
The cooperative agreement should describe the types of support (inspector training,
NEIC laboratory analysis training, technical assistance, contractor assistance, expert
witnesses for state enforcement proceedings, etc.) that the applicant expects EPA to
provide and is or will be available to assist the state/tribe in meeting its commitments.
The cooperative agreement should describe any negotiated agreement between the
state/tribe and EPA for the handling of referrals and requests for information from the
state/tribe. The agreement should include any time frames that are mutually agreeable
to the state/tribe and EPA.
OF COOPERATIVE AGREEMENT FUNDS
This section addresses how specific funding allotments were determined for the
components of the cooperative agreement program dealing with enforcement, certification,
worker protection program activities, ground water program activities and endangered
species program activities. A summary of funding allotments for all components is
provided on the chart at the end of this section.
The Pesticides Program annual budget submission to Congress requests an overall
program appropriation for pesticides enforcement cooperative agreements. Applicants are
to use the initial allotments as a basis for developing, with their respective regional offices,
work programs that meet both the applicant's and the Agency's needs.
OCM expects to receive $15,803,400 for funding the cooperative enforcement
program. This is the same funding level as that received in FY 91.
If the budget is not approved by Congress, the proposed allotments will be
readjusted. The majority of the Agency's appropriation is allotted to the regions and
64
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Pesticide Guidance FY 92
cooperative agreement applicants through a base and formula funding system described
in sections V and V below.
Sections "a" and V which follow address the enforcement cooperative agreement
budget minus the following: a), $500,000 in funds for possible continuance of a Pesticide
Officials Pilot Program, location as yet undetermined; b) $1,000,000 for worker protection,
groundwater and endangered species enforcement-related activities; c) the $2,000,000
budget for worker protection enforcement-related activities; d) $500,000 for addressing
some of the state laboratory-related needs, in consultation with the U.S. Department of
Agriculture, which has related activities underway in the area of food safety. The funds
specifically set aside for laboratory-related needs wfll be discussed in separate
correspondence to the regions and states, who will be asked to work.with EPA in
continuing this effort; and e) approximately $300,000 in funds set aside in case
government-wide budget reductions are necessary in FY 92; rather than ask for the return
of funds in the event such government-wide reductions occur, it seemed prudent instead
to set aside some funds up front to cover potential reductions. If such reductions are not
mandated in FY 92, the funds set aside will be redistributed to the states.
The $2 million budget for worker protection enforcement is addressed separately
under section 2, and the $1 million budget for groundwater, endangered species and
worker protection enforcement related activities is discussed under section 4.
A. Base Funding
A base funding level is established for each state, territory and Indian tribe
expected to participate in the cooperative agreement program. For FY 92,
the following base funding levels have been established: $107,100 for each
participating state, the District of Columbia and Puerto Rico (51 entities);
$56,700 for the Virgin Islands; $42,600 for Guam; $28,500 for American
Samoa; $28,500 for the Commonwealth of the Northern Mariana Islands
(CNMI); $22,300 for the Trust territories of the Pacific Islands; $140,500 for
five Indian tribes in Region VIII; $280,000 for the Inter-tribal Council of
Arizona and the nine Indian tribes under ITCA which receive enforcement
funds; $81,500 for the Navajos; and $30,000 for the Shoshone-Bannock Indian
tribe in Region X.
Please note that the funding levels listed above for the Virgin Islands, Guam,
American Samoa, CNMI, the Trust Territories and Indian tribes are derived
from both the core enforcement and worker protection enforcement budgets.
65
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Pesticide Guidance FY 92
The FY 92 enforcement base funding level wfll continue at $107,100 per
state. We will continue to provide a $20,000 base for worker protection
enforcement activities (with funds from the worker protection enforcement
budget, discussed in section 2).
For FY 92, the guideline used in determining the base funding level for an
enforcement cooperative agreement with a tribe is $30,000. Budgets must
be submitted and approved for all enforcement cooperative agreement
programs. Tribal programs requiring less than the $30,000 guideline will
receive funding based on approved budget submittal. Any tribal program
requesting more than the base funding level for FY 92 must submit a
detailed budget to EPA clearly justifying the need for the proposed funding
level, this budget must be approved by the EPA regional office and OCM's
Grants and Evaluation Branch. Funds have been set-aside for new tribal
grantees which may apply for enforcement cooperative agreements in FY 92.
These funds will be redistributed if applicationsare not received.
The total base funding for the basic enforcement program is $6,030,100.
1. Formula Funding
Total formula funding available is determined by subtracting the total base
amounts from the totaJ appropriation. The total amount of funds available
for distribution by formula in FY 92 is $5,551,500. The formula funds for
the enforcement base program will be divided among 49 states, the District
of Columbia and Puerto Rico using the following factors and
weights:
January 7, 1991, Estimates of Population, U.S. 20%
Department of Census, December 30, 1990.
Number of Pesticide Producing Establishments 20%
Per state - FIFRA and TSCA Enforcement
System printout, March 4, 1991, OCM
(Numbers do not include custom blenders.)
Number of Certified Private Applicators 10%
per state holding a valid certification on
March 6, 1991, OPP
66
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Pesticide Guidance FY 92
Number of Certified Commercial Applicators 20%
per state holding a valid certification on
March 6, 1991, OPP. (Total number of
individuals certified.)
Estimated number of Farms Per state- 20%
Agricultural Statistics Board, national
Agricultural Statistics Service, USDA
Farm Numbers, August 1989
Estimated Farm Acreage Per state- - 10%
Agricultural Statistics Board, national
Agricultural Statistics Service, USDA
Farm Numbers, August 1989
2. Allotment Schedule
Allotments for regions and states are obtained by combining the appropriate
base and formula funding levels for each state. The FY 92 Allotment
Schedule for the pesticide enforcement component is summarized on the
chart at the end of this section. More detailed information can be found in
appendix XX.
B. Worker Protection Enforcement
The Office of Compliance Monitoring expects to receive $2,000,000 in FY 92
compliance cooperative agreement funds to help support worker protection enforcement
activities in FY 92. Individual funding allotments for worker protection enforcement
activities were determined as described below.
1. Base Funding
A base funding level is established for each participating state for worker
protection enforcement activities conducted under enforcement grants.
(Territories and Indian tribes will receive funds for worker protection
enforcement as previously discussed.) For FY 92, the base funding level is
$20,000 for each participating state.
67
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Pesticide Guidance FY 92
2. Formula Funding
Total formula funding available for worker protection is determined by
subtracting the total base amounts from the total funding amount dedicated
towards worker protection enforcement. The total amount of funds available
for distribution by formula in FY 92 is $579,600.
Formula funds for the worker protection enforcement program will be
divided among the 50 states in the program, the District of Columbia and
Puerto Rico using the factors and weights described below. These factors
were selected based on the best available and appropriate data.
Estimated number of Farm Laborers Per 25%
state - Bureau of the Census, U.S. Dept
of Commerce, 1982 Census of Agriculture.
(Most recent data compiled state by state.)
Estimated number of Farms Per state - 25%
Agricultural Statistics Board, national
Agricultural Statistics Service, USDA
Farm Numbers, August 1989.
Estimated number of nursery and greenhouse 25%
sites Per state - Bureau of the Census, U.S/
Dept. of Commerce, 1982 Census of Agriculture.
(Most recent data compiled state by state.)
Number of Certified Private Applicators 10%
per state holding a valid certification on
March 6, 1991, OPP.
«
Number of Certified Commercial Applicators 15%
per state holding a valid certification on
March 6, 1991,*.OPP. (Total number of
individuals certified.)
3. Allotment Schedule
Allotments for regions and states are obtained by combining the appropriate
base and formula funding levels for each state. The FY 92 Allotment
68
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Pesticide Guidance FY 92
Schedule for the worker protection enforcement component is provided at
the end of this section.
Adjustments to Initial Allotments
Regions should not award funds based solely on a state's/tribe's initial allotment, but rather
based on the negotiated need of the applicant. The region will base final state/tribal
funding decisions for applications on the initial allotment, the demonstrated pesticide
enforcement program needs of the applicant, and the exceptional nature of a program.
The Regional Administrator may modify any allotment for an applicant, as necessary, as
long as total funding for all states/tribes does not exceed the regional allotment. 40 CFR
Pan 3S.155(a) states that the Administrator or the Regional Administrator may use funds
not awarded or committed to an applicant for supplementing awards to other applicants
within the same program.
OCM will contact the regions at midyear to determine the status of available grant funds.
An evaluation of the information obtained in this survey will be made by OCM. A
reallotment of funds between regions will be made if it is determined that some regions
do not need their entire initial allotment while states in other regions demonstrate a need
for additional funding.
D. jRegional Allotments for State Worker Protection. Groundwater and/or
Endangered Species Enforcement-Related Activities
One million dollars is included in the President's FY 92 budget for state worker protection,
groundwater, and endangered species enforcement-related activities.
These funds are allocated to the regions based on the formula for distribution of the
program grants for the aforementioned initiatives. The formula allocation is outlined in
appendix XXL
The resulting distribution per region is as follows:
Region I: $73,900 Region VI: $96,400
H: $52,900 VH: $93,800
ffl: $87,600 VIE: $90,700
TV: $201,300 DC: $95,600
V: $149,000 X: $58,800
69
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Pesticide Guidance FY 92
The regions wfll have discretion in allocating these funds to the states for
enforcement-related activities addressing worker protection, groundwater and/or
endangered species.
Given the above, we wfll not initiate an FY 92 process for national enforcement
special projects.
70
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Frdcrnl Rrfcislrr / Vol. 46. No. 90 / Monday. May 11. 1901 / Rulr* nnd Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 173
(Etf-fRl 1750-5]
Procedure; Governing the Rescission
?f Stale Primary Enforcement
Responsibility lor Pesticide UM
1 Violations
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: Sections 26 and 27 of the
"ecerai Insecticide. Fungicide, and
^odemicids Act authorize EPA to grant
oa qualifying State the r-imary
jnJotxement responsibility for pesticide
lie vioia'ions. and to rescind surh
responsibility if the Slate's pesticide
enforcement program is inadequate.
Tnis rule sets forth procedures designed
to ensure that rescission proceedings are
conducted in an orderly and uniform
manner.
EFFECTIVE DATE: This rule will not take
effect before the end of 60 calendar days
of continuous session of Congress after
the date of publication. EPA will publish
a notice of the actual effective date of
this rule. See supplementary information
for further details.
FOR FURTHER INFORMATION CONTACT:
Laura Campbell (EN-342), Pesticidek
and Toxic Substances Enforcement
Division. U.S. Environmental Protection
Agency. 401 M Street SW., Washington.
D.C £3460. (202) 755-0970. ,
SUPPLEMENTARY INFORMATION:
Background
The 1078 Amendments to the Federal
Insecticide, Fungicide and Rodenticidj
Act (FIFRA) require Slatei to be
accorded the primnry responsibility for
the enforcement of pmticide use
violation* within the State in certain
situations. States can obtain primacy if
thpy enter into a cooperative agreement
with the Environmental Protection
Agency (EPA) under section 23 of FIFRA
or if their use enforcement programs are
found by the Administrator of EPA to be
adequate under section 26(a).
Section 27(b) of FIFRA authorizes
EPA to rescind a State's primacy if the
Administrator determines that the State
is not adequately discharging Its use
enforcement-responsibilities. Under
section 27(b). whenever the
Administrator makes such a
determination he must send a notice to
the State specifying the deficiencies in
the State's use enforcement program. If
after ninety days from receipt of a notice
by a Stale the Administrator finds that
the State has not corrected the
deficiencies set forth in the notice, the
Administrator may rescind, in whole or
in part, the State's primary enforcement
responsibility for pesticide use
violations.
On October S, 1980 these procedures
were proposed in the Federal Register
(45 FR 65633) and comments were
requested by December 2.1980. After
consideration of the comments received,
EPA has decided not to change section
173. The significant comments are
discussed below.
Comments Received
Five comments were submitied in
response to the proposal of the
rescission procedures. Environmental
groups submitted two of the cosam-nts
and a pesticide company, • State
Department of Agriculture and a
pesticide trade association each
submitted one. None of the comments
received suggested any substantive
changes in the regulation »s proposed.
Several of the commentors urged EPA to
adopt the proposed procedures and use
them where appropriate. One
commentor suggested that inf rmal
procedures should be available to
resolve disputes about the adequacy of
a State's pesticide use enforcement
program. Section 173.4 of the regulation
as proposed set forth an informal
mechanism for resolving such dispute*.
The remaining comments were
insubstantial or irrelevant
Initiation of Rescission Proceedings
The rule promulgated today provides
the procedures by which EPA intends to
effectuate rescission where appropriate.
A rescission proceeding is initiated by
the issuance of a notice of intent to
rescind. Before such • formal step is
taken, however, (he Administrator, as a
matter of policy, will confer with the
Slate und attempt to resolve the matter
through informal negotiations.
The Administrator will issue a notice
of intent to rescind if he determines, on
the basis of information gathered by the
Agency or submitted to EPA by other
reliable sources, and after consultation
with the appropriate Regional
Administrator, that the Stale is not
carrying out, or cannot carry out due to •
the lack of adequate legal authority, its
use enforcement responsibility. (Further
discussion of the criteria for making this
determination will be contained in an
interpretive rule which will soon be
proposed for comment). The notice of v
intent to rescind will list the deficiencies
that the Administrator has found in the
State program. The notice will also
detail the basis for each of the findings.
State Response to Motto of latent To
Rescind
States can respond to the receipt of •
notice of intent to rescind in one of
several ways. First, a State can correct
the deficiencies specified in the notice.
Second, the State car. present evidence
to the Administrator at an informal
conference which shows that the
determinations made in the notice are
unfounded. Third, the State and EPA
can agree the I the State will take the
steps necessary to remedy the
deficiencies in the State program
according to en agreed upon time
schedule. This agreement would then be
embodied in a written and signed
document. Finally, the State, within 00
days of the issuance of the notice, could
request a public hearing on the
Administrator's determination to
rescind its primary enforcement
responsibility for pesticide use
violations.
If the State corrects the deficiencies in
its program, agrees to do so in a written
settlement agreement, or convinces the
Administrator that the findings made in
the notice are not supported by the
facts, the Administrator will issue an
order withdrawing the notice of intent to
rescind and terminating the proceeding.
If sixty days elapse from the date of
notice of intent was served upon the
State without the Administrator issuing
• such an order, the notice of intent to
rescind will be published in the Federal
Register. The public may submit
comments-on the matters discussed in
the notice of intent to rescind.
Hearings
Upon request of the State within sixty j
(60) days of the issuance of the notice of
intent to rescind, a hearing will be
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Fed«rnl Rrplstrr / Vol. 4n. No. 90 / Mondny, Mny 11. IfBl / Rules *nd Regulations 2f>059
•che duled and the date for the hearing
will be published along with the notice
ot Intent to rescind. Parlies, fur purposes
of proceedings have been defined in the
definitions sections as the State and the
Agency's Office of Enforcement.
However, ot the hearing, representatives
from the State. EPA. and the public will
be able to present evidence relating to
the adequacy of the State's pesticide use
enforcement program. A presiding
officer will preside over the hearing and
upon its termination will make a
recommended decision on the adequacy
of the State's pesticide use enforcement
program. The Presiding Officer has the
option to recommend that the
Administrator (1) find that the State hat
corrected, or agreed to correct, the
deficiencies in its program. [2] find that
the Slate has shown that the
determinations made in the notice of
intent to rescind were unfounded, or (3)
rescind the State's primary enforcement
responsibility for pesticide use
violations in whole or in part.
Agency Derision
The recommended decision of the
Presiding Officer will become final 45
days after it is issued unless either of
the parties appeal the i.iitisl decision to
the Administrator or unless the
Administrator elects to review the
decision on his own initiative (sua
tponte). After an appeal o: sua sponte
review, the Administrator will issue a
final order which adopts, modifies, or
sets aside the recommendations made In
the Presiding Officer's decision.
The Agency believes that the
procedures promulgated today will
encourage State's and EPA to cooperate
In resolving any problems in a State's
use enforcement program.
Effective Data *
On December 17,1980. President
Carter signed the Federal Insecticide,
Fungicide and Rodenticide Act
Extension Bill (Pub. L 06-539). This bill
•mended several sections of FIFRA
including section 25 on ruiemaking.
Section 4 of the Extension Act adds a
new paragraph to FIFRA. section 25(e),
which requires EPA to submit final
regulations to Congress for review
before the regulation becomes effective.
In' accordance with this requirement.
copies of this rule have been transmitted
to the appropriate offices In both Houses
of Congress. The rule will not take effect
before the end of 60 calendar days of
continuous session of Congress after the
date of its publication in the Federal
Register. Because the length of this
waiting period may be affected by
Congressional action, it is not possible,
•t this time, to specify a data on which
this regulation will become effective.
EPA will publish a notice in the Federal
RegiMer announcing the end of this
"report and wait" period to notify the
public of the actual effective date of this
regulation.
Compliance With the Regulatory
Flexibility Act
I hereby certify that this rule will not
have a significant economic impact on
small entities. The rule only affects
States, which are not small entities
under the Regulatory Flexibility Act 5
U.S.C. sec. Wletseq.
Compliance With Executive Order 12291
Under Executive Order 12291. EPA
must judge whether a regulation is
"Major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. This regulation is not Major
because it is entirely procedural in
nature, and thus
(1] Does not have an annual effect on
the economy of SlOO million or more;
(2) Will not increase costs to
consumers. Industry, or government: and
(3) Will not have a significant adverse
effect on competition, employment
investment, productivity, or innovation.
This regulation was submitted to the
Office cf Management and Budget for
review as required by Executive Order
12291.
Accordingly, under the authority of
sections 25(a) and 2?lb) of the Federal
insecticide. Fungicide, and Rcdenticide
Act the new Part 173 set forth below is
hereby added to 40 CFR.
Dited April 8.1881.
Walter CBarte.
Acting Admiiu'stmtor.
PART 173—PROCEDURES
GOVERNING THE RESCISSION OF
STATE PRIMARY ENFORCEMENT
RESPONSIBILITY FOR PESTICIDE USE
VIOLATIONS
fee
173:1 AppUcabiHtT. . -
173.2 Definition*.
1734 Initiation of rescission proceedings.
173.4 Informal conference and settlement.
173.6 Request for hearing.
1734 Publication of the notice: scheduling
the bearing.
173J Hearing and recommended decision.
1734 Final order.
1734 Judicial Mvtew.
Authority: Sees. 25(a] and 27(b) of fh« Federal
Insecticide. Fungicide, and Radenticid*
Act (7 U.S.C. 136w and Ww-2).
117X1 AppfcabOty. *
These procedures govern any
proceeding to rescind a State's primary
enforcement responsibility for pesticide
use violations conducted under section
27(b) of the Federal Insecticide.
Fungicide, and Rodonticide Act. as
amended IFIFRA), 7 U.S.C. 130 e/seo.
1173.2 DetMUons.
For purposes of this part:
(a) "Administrator" means the
Administrator of the United States
Environmental Protection Agency or his
delegate.'
(b) "Notice of intent to rescind"
means a notice to a State issued under
{ 173.3 which initiates a proceeding to
rescind the State's primary enforcement
responsibility for pesticide use
violations.
(c) "State" means the agency or
agencies primarily responsible for .
enforcing pesticide use laws or
regulations within the State or
Jurisdiction undergoing rescission
proceedings.
(d) "Party to the proceeding" shall
mean the State or the Agency's Office of
Enforcement
(e) "Presiding Officer" means an
attorney appointed by the Administrator
to conduct the rescission proceeding.
The Presiding Officer shall be an
employee or representative of the
Agency and shall not harp had prior
direct connection with the specific
proceeding except in circumstances
where subsequent hearings are in order.
(173.3 Inltfatton of resctoslon
proceedings.
(a) Whenever the Administrator
determines that a State having primary
enforcement responsibility for pesticide
use violations is not carrying out such
responsibility, or cannot carry out sucn
responsibility due to the lack of
adequate legal authority, the
Administrator shall notify the State in
writing of his intent to rescind its
primary enforcement responsibility, in
whole or in part, by serving upon the
State a notice of intent to rescind.
(b] The notice of intent to rescind
ffrall-
(1) Specify those aspects of the State's
pesticide use enforcement program
determined to be inadequate:
(2) Specify the facts which underlie
the findings contained in the rescission
notice;
(3) Have attached thereto cop-es of
any relevant documents discoverable -
under the Federal Rules of Civil
Procedure and the Freedom of
Information Act which contain data •
relied upon by the Administrator in
making his decision to issue the notice:
(4) Have attached thereto a copy of
Ibis Part: and
(5) Be sent to the State by certified
mail return receipt requested.
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Federal Rccister / Vol. 46. No. 90 / Monday. Mny 11. 1P.ni / Rulrs and
(r.) The Slate may respond in writing
to (he finding specified in the notice of
Intrnt to rescind.
{1734 Informal confertnc* and
settlement
(e) After receipt of • notice of intent
to rescind, (he State may request that an
informal conference be held between
appropriate State and EPA officials to
discuss the findings made in the notice
of intent to rescind. The informal
conference shall then be held in the
State. If the Administrator finds, on the
basis of information submitted by the
Slate at the conference, that the
deficiencies specified in the notice did
not exist or were corrected by the State.
the Administrator shall issue an order
withdrawing the notice of intent to
rescind and terminating the rescission
proceeding.
(b) At any time after receipt of •
notice of intent to rescind and before the
issuance of a final order, the State and
EPA may resolve the issues raised in the
notice by agreement. Any settlement
agreement shall be in writing and signed
by the parties and shall:
(1) Detail the deficiencies found in the
State program;
(2) Specify the steps the State has
ta*en o: will take to remedy the
deficiencies; and
(3) Set forth a precise schedule for
each remedial action yet to be initiated.
(c) If a written agreement is signed by
the parties, the Adirinistrator shall issue
an order withdrawing the notice of
intent to rescind and terminating the
rescission proceeding. If the State doe*
no! comply wilh the terms of the
settlement agreement, the Administrator
may reissue the notice of intent to
rescind.
1173.5 Request tor heerino.
A State may request a hearing before
a Presiding Officer not later than sixty
(60) days after receipt of a notice of
intent to rescind.
{1716 Publication of ttwnotto*
scheduling th« hearing
(a] If the Administrator hat not Issued
an order terminating the rescission
proceeding within sixty (60) days after
service of the notice of intent to rescind
upon the State, the Administrator shall
publish the notice of intent to rescind in
the Federal Register. The Administrator
may modify the original notice of intent
to rescind before Its publication by .
deleting those deficiencies listed in the
original notice which have been
corrected or which were shown oot to •
have existed. The public may submit
comments upon the matters specified in
the published notice of intent lo rescind ,
within the time specified therein.
(b) Concurrently with thr publication
of ihu notice of intent to rescind, the
Administrator shall schedule a hearing
in the State if one has been requested by
the State. The date. time, and location of
the hearing shall be published in the
Federal Register along wilh the notice of
intent to rescind.
(c) If a hearing is requested and the
Administrator has not issued an order
terminating the rescission proceeding,
the Administrator shall provide for a
hearing as scheduled. Representatives of
the State. EPA. and the public may
present evidence at the hearing. The
Administrator shall appoint a Presiding '
Officer who shall preside over the
hearing and make a recommended
decision regarding the adequacy of the
State's pesticide use enforcement
program. The Administrator, after
consultation with the State, may
prescribe additional procedures
governing the conduct of the hearing.
(d) If a termination order is issued or
the hearing is rescheduled after the
notice of intent to rescind is published in
the Federal Register, such order or
notice rescheduling the hearing shall
also be published in the Federal
Register.
{ 1717 Hearing and recommended
decision.
(a] The Presiding Officer shall:
(1) Conduct e fair and impartial
hearing, without unnecessary delay:
(2) Ensure that the facts are fuQy
elicited; and
(3) Consider all evidence, comment,
and argument which is submitted by
persons who will be affected by the
outcome of the proceeding and which is
not irrelevant, immaterial, unduly
repetitious, or otherwise unreliable or of
little probative value. The Presiding
Officer may require any prospective
witness to make available, in advance
of the hearing, a brief summary of his or_.
her testimony.
. (b) If. following the close of the
bearing, the Presiding Officer finds that
the State has corrected, or has agreed in
writing to correct the deficiencies
specified in the notice of intent to
rescind or has shown that such
deficiencies do not exist, the Presiding
Officer shall issue a decision
recommending that the notice of intent
lo rescind be withdrawn and that the
rescission proceeding be terminated
(c) If, following the close of the
hearing, the Presiding Officer finds that
the State has not corrected the
deficiencies in its program, the Presiding
Officer shult issue a decision
rer.omricndirvg that the Stoic's
enforrrmrnt rrsponBihility for
use violations be rescinded in whole or
in part.
(d) The recommended decision of the
Presiding Officer shall become final
Agency action forty-five (45) days after
its service upon the parties and without
further proceedings unless (1) an appeal
to the Administrator is taken from it by
a party to the proceeding, or (2) the
Administrator elects, sua sponte. to
review the recommended decision.
{173.1 Final order.
(a) If the State does not request a
hearing within the sixty-day time period
and the Administrator has not issued an
order withdrawing the notice of intent to
rescind, the Administrator shall issue •
final order as soon as practicable after
the time for public comment on the
notice of intent to rescind has elapsed.
' The final order shall either withdraw the
notice of intent to rescind and terminate
the proceeding or rescind, in whole or in
part, the State's primary enforcement
responsibility for pesticide use
violations.
(b) If a bearing has been held and the
Presiding Officer has made a
recommended decision, then either I
Office of Enforcement or the State :
appeal the recommended decision to
Administrator or the Administrator ma?
elect to review the recommended
decision on bis own initiative.
(c) After as appeal or sue eponte
review the Administrator shall issue •
final order terminating the rescission
proceeding or rescinding, in whole or in
part the State's primary enforcement
responsibility for pesticide use
violations. •
(d) In no event may the Administrator .
issue bis final decision sooner than
ninety (90) days after service of the
notice of intent to rescind on a State.
(e) Any final order, or a recommended
decision which becomes a final order
under { 173.7(c), shall be published in
the Federal Register.
fins) Judicial review.
The State may appeal an order
rescinding, in whole or in part Its
primary enforcement responsibility Tor
pesticide use violations to the
appropriate federal court pursuant lo
section 16 of FIFRA.
coot
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404 Federal Register / Vol. 4& No. 3 / Wednesday, January 3. 1983 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 173
(OP» 00159; PH-fWL 2215-31
Federal Insecticide, Fungicide, and
RodenUclde Act, State Primary
Enforcement ResponeibllltJea
AGINCY: Environmental Protection
Agency (EPA).
ACTTOH: Fir.aJ interpretive rule.
JUMMAPV: Ttos rule states EPA's
interpretation of several of the key
provisions In sections 28 and 27 of the
Federal Insecticide. Fungicide, and
Rodentiride Act (FTFRA). but does not
impose substantive reqoiteraents on the
States. Sections 20 and Z7 established a
standard and procedure for according
States the primary enforcement
responsibility for pesticide use
violations {primacy). The rule also
provides operational substance to the
criteria used by EPA for primacy related
decisionmaking. and ensures that such
decsionmaxicg is consistent throughout
the regions.
trncrm DATC: This role will not take
effect before the end of 60 calendar days
of continuous session of Congress after
-------
trie djte of publicaiion. EPA will putliih
• notice of Lie actual e.Tec'jve dale of
this rale. See IUP«.£MI«T«Y
MFOAUATIOM For further deUili.
ron nwTHta INFORMATION COMTACT:
Laura Campbell Prslicidei and Toxic
Substances Enfarorr»eal D;v-*«ion (£N-
342). OfLce of PestJcidts and Tox.c
Substaaces. Eavirormentd Protertion
Ag«ocy. Ra. M-:a24£. 401 M Su SW.
ac aa»ea
Background
In 1878. Congress erected Pub. L 05-
336 which contained numerous revisions
to the Federal lasectiade. Fungicide,
and Rodcaticide Act (7 U.S.C. 130 et
tfq.}. One cf the change* added two
new sectiona to FIFRA, sections Z8 acd
27. U^C 13Sw-i end 13flw-4 wfcxh
together established • standard aad
procedure for according SUtea the
primary eRforcemeal jtupoavibiliqr for
pesticide eae riolatioas (primacy^.
Section 28 provide* three soethods by
wfcxi • SUts can obtain prtatcy.
Section 2S(aJ requires • State to be
eccsrdid primary if the AdaJaaaratar
firds that the State baa (1 1 adopted
adequate u&e laws. (2) adopted
adequate procedures for bapksssSrej
those law*, aad (3) agreed to kzop euca
recordi aad rr-aitr each report* u the
Administrator may require by
regulation Section Z5(b) cilovrs a State
(3 cbUin prigmcy if (he State has sa
approved section 4 csrdficatian p'»n
thai nccU lite criteria set fcrth io
sec'Jcr. 26[aJ. cr if a Slate ester* into a
cooperative sgreer-.eal fcr fee
enforeesws of pesticide sse rrstrictioni
under MC&CD 23.
Sectics 7 aaticrttej the
Adzunistrstcir to override or rescind a
gram cT (d^acy n certnia (iruattasx .
Section 2T(a) requires (he Adaioistratcr
to refer t^r£cart allegarkca of
pesticide BM violaaocs to (he States. If
a State dees not coc.-T.enca appropriate
enforcement actioa within 30 days of
such referral. EPA may bh££ la own
enforcement arHnn.
Section 27tb) autfcoriiCJ the
AdmLnist-ator to retcind the primary
enf Qrcemtal recpoxisibiliry of a Slate if
ahe Cnds that the State is not cvryiag
out such responsibility. Tka
Adcunittratar Irtitlatet a resciuion
proceeding by noti/i-ircl the State of
Close aspects of the State'a pe«tickis we
enforcement n--ogram «rbicb tbe
AcjninJstrator has foend to be
Inadequate. If (he State does not correct
the deficiencies io Its progress within 90
days, the Administrator may rescl.id the
SUtes's primary enforcement
resDonsibiiity in whole or In part EPA
hus p'nmulgaled procedures
govern '..:s conduct of a procc«dL-.q to
reicintl S:*;e pr.-nacv. Tbeie procedures
were puUJ>heJ io th* Fcde/aJ Cegistar
of May 11 19&1 (48 FR :eOS8J. (40 CFR
Part 17J).
S-c;ion 27[c) authorizes the
Administrator to (ak» immediate action
to aliutu an emergency tiluatioa «herc
(Jic Sijfe is enable or unwiiliag to
respond to the crisis.
Ai in evidacJ from the above
description. severaJ of the operative
terms in sections 23 and 27 require
fui (her definition. This rule clariLe* the
meaning of such words as "adeqoate"
and "appropriate" which FIFRA *eXs
forth as the criteria for mod of die
decisions which will be dude vH*>
these two •ectiocs. Th« role also sets
to be oxcd by EPA
that such dgernnnrrLilrirg
by liisiUng. aJthmigh not *
Agency discretioa in the pnmacy area.
Specifically, this rale addresses the
t. Pr
res EPA wffl folsw «bea
refeaiAg aflesatioas of pesticide us*
violations to Ov Stats
(s
State rccpoases to these
Unit i Sobdhisiaa A bcsowV
& The mcarirg of "appropnate
enforceaeai actioa" {see Uoii 1.
Subdjvistaa 8}.
3. ClanficAtioo of w^ea a State wiJj b«
deeded to have (1 j adopted adajoaia
pesticide use laws aad repilaMnr.s. aad
(2) jff»
for lb« eiifuti^.'ug! of eei laws aad
regulaoocs (s«e Unit OJ.
4. T3» crii£rva the Adsncstralo? will
use to determine %-faether a State is
adequately carrying out its prtsarjr
enforcesieci tT*-^ii'-iiit'b'''i^y far pexticde
use violatioes (s« Unit III).
S. Toe tadcrt whicb cooctitule «a
emergency siruatica. and the .
circuas^nce* wtich require EPA to
defer to the State fcr a respcsse la the
crisis (sec L'ait IVJ.
Comments Received
Four castnerts were receh'ed In
response to the proposal of the
Interpretive Role. {47 FH 16799. April 20.
1932).
In the proposed rale, a dcter=iaatico
of the gravity of violation was based on
two factors: (1) risk associated with th«
vlofau've actioa. aad (2) rifik associated
with the pesticide, Some of cae
comments stated that EPA should
determine the gravity of each violation
based on whether ectaal barn occurred
as a result of the violation. If the Agency
were to determine the seriousness of a
violation based oa the actual ham
which occurred (n a particular caae.
pesticide users would be encouMe^d :a
take the nsk of misusing o pesi;cide.
wi:h the hope thai no tclual harm would
result from their unlawful act Confess
chorged EPA vvith regvla!ins pe.stic:de
u.ie in a mrruier w>Job will prevert
unr«asoaable risi of pesticide e\poture
to man or the environment.
Congressional Intent would nut be
carried out if EPA encouraged pesticide
users to esgage ia unsafe activities 07
not charging violations In cases when
no actual harm occurred. For this'
reason, the fisaJ rule retains tfae
language of the proposed rule.
Two comments concerning the
imposition of criminal penalties far
pesticide misuse were received One
comment stated that Congress mteaded
cruruival sanctions to be applied only ia
caars mvojving ualawful maaolacSsre of
pesticides. Nothing ia FIFRA «r its
legislative' history so Umits the «se of
'crimaial penalties. Toe ooly cri^rioo in
the statute for the iopositioa of crinuaal
penallies is thai a riots lisa is
"knowing". The language referil^ to
pfitnifial p»n«!ii»« jjj fag pTOpaxad rBK
has been targety retaiaed ia the fe<»<
role.
Another onmmmt exprened the
concern that imposLng core stangeoi .
sanctloas where viola u'ons are found to
be "Vacwiag" peaa£zes persons who
are infansed about the law. .Vr.rioa 14
of JTFHA etatfij thai "koowicg"
violations are subject io criainal
peaaJties. Kaowled£s of the violator U •
velid criterion to use In determiniag
gravity because of a "kaowing"
violatioa shows a disregard fcr the law.
One CTmtaent stated %at no Stare
with nore stnrs«nt pesticide c»e lows
than the Federal law thodd be graared
primacy. Althocgti EPA caanet require a
Stare to enact a pest side use law that is
mere etricssct than FIFRA, there U no
prohibition against grantiag privacy to a
Slau whose pesticde use law id core
stringent.
One comment suggested a chsage ia
the requtTKcenl that State laboratories
conducting sample analysis perticipate
la EPA's check wcrpie progna. The
comment slated that the National
Enfcrccingjt fnvwtigahon Center
(NQQ check sample program should be
coordinated wrtb rhe Aracrtcan
Association of Pnt Contro] OfRnala
(AAPCO). The NE1C check sample
program Is currently coordinated with
the AAPCO check sample program. The
rule has been changed to reflect this
comment.
-------
Further Inform*tioa on Effective Oat* of
This Rule
On December 17. 1930. the Federal
Insecticide. Fungicide, tod Rodenticlde
Act extension bill (Pub. L 96-W9)
ima law. This bill amended teverat
ions of FTFRA. Including section 25
w.i rulemaJdng. Section 4 of lie
Extension Act addt i new paragraph,
section Z5(e), to FIFRA which requires
EPA to rubmit final regulations to
Cordless for revtow before tin
regulations become effective. Copies of
thit rule have been transmitted to
appropriate officei la both Houiei of
Congress.
Under section 4 of the 1380 FIFRA
Exte.-uica Act this rule will not take
effect before the end of 60 calendar dap
of continuous session of Congress after
the date of publication of this rule. Since
the actual length cf this waiting period
cay be affected by Cor.gres5io.iaJ
action. It is cot possible, at this line, to
specify a data on which this regulation
will become effective. Therefore, at the
appropriate time EPA will publish a
cotes eer.cuacirg the end of the
lesislative-review period and notifying
the publicTjf the actual effective date cf
.this regulation.
Compliance With the Regulatory
Flexibility Act
I hereby certify that this rule will not
have a sigr.ifkar.t economic Impact en
snail entitles. The rule affects only
» pesticide ccntrol agencies, which
3t scall er.tilies under the
. w-!3tcry nexibllity Act. S U.S.C. 60!
et seq.
Compliance With Executive Order 12231
Urder Executive Order 12291, EPA
oust fudge whether a regulation is
"Major" arsd therefore subject to the
requirement cf a Regulatory Impact
Analysis. This regulation I* not Major
sir.se It is Interpretive in nature and
docs not contain new substantive
requirements. The regulation:
1. Does not have an annual effect on
the economy of S100 million or more.
2. Will not substantially Increase
costs to consumers, industry, or
government.
3. Will not have a significant adverse
effect on competition, employment.
Investment, productivity, or innovation.
Thit regulation was submitted to the '
Office of Management and Budget for
review as required by Executive Order
12291. (Sec. 25(a){1) (7 U.S.C. 138w)).
[Note: This rule will not appear in the
Code of Federal Regulations.)
L Appropriate Enforcement Action
A. Procedures Governing Referrals. 1.
Ce.-7c.-o/. Section 27la) requires EPA to
refer to the States any Information it
receives indicating a significant
violation of pesticide use laws. If a Slate
has not commenced appropriate
enforcement action within 30 days. EPA
nay act on the information.
"Given current resource limitations,
EPA Is not In • position to monitor Slate
responses to every allegation of
pesticide misuse referred by the Agency.
Rather, tha Agency will focus its .
oversight activities oa evaluating tha
overall success of State pesticide
enforcement programs, and will trade.
on a case-by-case basil, only those
allegations Involving particularly serious
violations. Such "significant" allegations
will be formally referred to the States
and tracked by EPA. while ether less
serious complaints will ba forwarded to
the States for Information purposes cniy.
2. Cfitoria for tignificant coses. To
determine which alleged violations arc
sufficiently significant to warrant formal
referral and trading, the regions will go
through a two step process. First, tha
regions, in consultation with each State.
will identify priority areas for referral.
These priority areas will consist of those
pesticide activities in tha State which
present the greatest potential for harm
to health or tha environment (e.g. the
application of a pesticide by a certain
method to a particular crop, such as
ground application of endrtn to apple
trees). The selection of these priority
areas will depend primarily ca the
resells of pes'Jdde enforcement program
evaluations conducted by the States e.-.d
the regions. The priority areas will be
revised oa an annual basis based cpon
the effectiveness of the program in
reducing the harm associated with
pesticide use.
Thereafter EPA will determine on a
case-by'case basis which allegations in
these priority areas Involve sufficiently
"significant" violations to be formally
referred to the State and tracked. If a
complaint received by EPA alleges a
minor infraction which dearly presents
little or no danger to health or the
environment or If the information
contains patently spurious allegations,
such as those from sources which have
repeatedly proved unreliable, the matter
will be forwarded to the State for
information purposes only.
3. The 30-day time period. The Acency
interprets the term "commence
appropriate enforcement action" in
sectioa 27fa) to require Stales to initiate.
a judicial or adninistiative action in the
nature of an enforcement proceeding, if
one is warranted. Starting an
investigation of the matter would not be
sufficient. If the State does not
commence an appropriate
administrative, civil, or criminal
- enforcement mponsa. EPA would then
b« permitted, although not required to
bring Its own enforcement action.
Although section 2?(a] permits EPA to
ad if the Slate has not commenced an
enforcement action wiLafnTO days, tha
Agency recognlus that Slates may not
be able to complete their Investigation
of many formal referrals in so short a
time. Tha time needed to Investigate a
possible use violation will vary widely.
depending upon the nature of the
referral A referral which simply
conveys an unsubstantiated allegation
will usually require more investigation
than a referral which partially or fully.
documents a pesticide use violation.
Consequently, the Agency wishes to.
develop o flexible approach towards the
tracking of referrals.
To accomplish this objective. EPA is
adopting a system In which the referral
process Is broken down into two stages.
investigation and prosecution.
4. Tha investigctjon stage. Following
the formal written referral of an
allegation of a sigruflcant pesticide use
violation, the appropriate regional
pesticide official will contact the State
to learn the results of the investigation
and the State's intended enforcement
response to the violation. If the State
has not conducted an adequate
investigation of the alleged violation, the
region nay choose to pursue Its own
investigation or enforcement action after
notice to the State. As a general rule.
however, the regional office will attempt
to correct any deficiencies In the
investigation through informal
communication with the State.
An investigation will be considered
adequate if the State has (1) followed
proper sampling aad other evidence- -
gathering techniques. (2) responded
expediUOusly to the referral, so that
evidence is preserved to the extent
possible, and (3) documented all
inculpatory or exculpatory events or
information.
5. Tho proseaittOn $ta$e. After
completion of the Investigation, the
State will have 30 days, the prosecution
stage, to commence the enforcement
action, if one Is warranted. An
appropriate enforcement response may
consist of required training in proper
pesticide use, Issuance of a warning
letter, assessment of an administrative
civil penalty, referral of the case to a
pesticide control board or State's
Attorney for action, or other similar
enforcement remedy available under
Stale law. The 30-day period may be
extended when necessitated by the
procedural characteristics of a Slate's '
regulatory structure (see Unit V.A.
Hypothetical 1).
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Federal Register / Vol 48, No. 3 / Wednesday. January 5. 19^3 / Rules and Rev
ivuiauons
4U7
If. after consultation with the Slule.
EPA determines that the Slate'*
intended enforcement response to the
violation is inappropriate (tea
subdivision B), EPA may bring itg own
action after notica to the State. Regional
atlomeyi will not. however, initiate an
enforcement proceeding looner than 30
days after the natter was referred to the
State.
At timea. a Slate may find that (he
particular enforcement remedy it viewi
as the appropriate response to a use
violation it not available under the
Slate'* pesticide control laws. Therefore
the S:ale may, at any time, request EPA
to act upon a violation utilizing remedies
available ur.der FIFRA. la these
instances, of courte, EPA will
Immedjately pursue its own action, if
one is "warranted.
To illustrate better the proposed
referral system, two hypothetical
' situations are described in Unit V. A.
B. Appropriate Enforcement Action. 1.
General. After the Agency learns of the
enforcement action, if any. the State
proposes to bring against the violator.
the EPA regional pesticide cflke will
consider. La consultation with the Sute,
whether the proposed action Is
"appropriate", relative to the remedies
available to the State under its pesticide
control legislation. EPA interpret* the
codiHer "appropriate" la section 27(a)
of FTRA to require that the seventy of
the proposed enforcement action
correlate lo the gravity of the violation.
(t is not possible in this Interpretive
Rule to prescribe the spedfle
enforcement action which will constitute
en appropriate response to a particular
violation. There ar. '.<.o ^-^.j vi:ial!es
which will influence the treatment of a
use violation, including the disparity
between the types of enforcement
remedies available under the various
Slate pesticide control statutes. This'
dccuzient can. however, establish
criteria to be ecployed in evaluating the
appropriateness of a proposed State
enforcement action. More detailed
guidance on ev iluatiag relative gravity
is contained in EPA's "Guidelines for
the Assessment of Civil Penalties under
Section 14(a) of the Federal Insecticide.
Fungicide, and Roder.ticide Act a*
amended", published In the Federal
Register of July 31.1974 (39 FR 27711).
The Guidelines establish dollar amounts
to be applied under the Federal statute
to use violations in civil penalty
proceedings. Regional personnel can use
these figures as a guide in evaluating the
gravity of a particular violation. The
Agency will not require that a State
response lo a violation have a monetary
Impact equivalent to that of a dvtl
penalty which EPA would Impose under
the Guidelines. Ralher. the dollar
amounts contained In the penalty
matrices can be used by regional
personnel to define the relative gravity
of a violation by comparing the figures
applicable to different violations.
2. Gravity of the violation. The
Agency believes that the gravity of a
pesticide use violation Is dependent
upon the risk the violation poses to
human health and the environment The
factors which determine the degree of
risk presented by a use violation can be
divided into (wo categories: factors
related to the particular action which
constituted the violation and factors
related lo ihe pesticide involved in the
incident
a. Risk associated with th* vialatiw
action. The circumstances surrounding
the vlolative action partially determine
(he risk the violation presents to human
health or the environment To assess the
degree of such risk. State acd regional
personnel should ask such questions as:
L Did the viola don occur is a highly
populated area, or near residences.
schools, churches, shopping centers.
public parks or public roads, so that
health was endangered?
U. Did the violation occur near an
environmentally sensitive area, such as
a lake or stream which provides
drinking water to the surrounding
community, a wildlife sanctuary, a
commercial fishery, or other natural
areas? >
Ui. Did a structural application
threaten to contaminate food cr food
sen-ice equipment?
iv. Did the violation have the potential
lo affect a large or a small area?
.-. 'Alia: was the actual harm which
resulted from the violation?
vl. Was the nature of the violation
such that serious consequences were
likely to result?
This lest question is designed to take
Into account the variation la the
Inherent risk associated with different
categories of use violations. For
example, a drift violation resulting from
improper aerial application generally
presents a greater risk of harm than a
storage violation, since the latter
infraction does net necf ssarily involve
the improper exposure of the pesticide
to the environment
b. Ri*k astociated with the pesticide.
The factors which will be crudal in
evaluating the risk associated with the
pesticide itself Include:
L The acute toxicity of the pesticide or
pesticides involved in the incident The
toxicity of a pesticide will be indicated
by the "human hazard signal word" on
the labels (see 40 CFR 102.10). "Danger"
or "Poison" are indicators of a highly
toxic pesticide while •'Warning" and
"Caution" signify successively less toxic
substances.
ii. The chronic effects associated with
the pesticide, if known.
ui. The amoustf^rT'ine pesticide
involved in the Incident relative to Ihe
manner of application (e.g.. aerial versus
structural).
Iv. Other dale concerning the harm a
pesticide may cause to human health or
(he environment such es data
concerning persistence or residue
capability.
An analysis of the interrelationship
between these two categories of risk
fectcrs should yield a notion of the
relative gravity of the violation and the
severity of the action wbJc.'i should be •
taken in response.
X Category of applicator, size of
business, and history of prior violation.
Gravity is cot the only factor which EPA
will lake into account in evaluating the
propriety of an enforcement action.
Section 14 of FIFRA requires that
distinctions In the severity of aa
enforcement response be made between
the categories of persona who commit
use violations. The Intent of Congress,
as expressed In section 14. is that
commercial pesticide.applicaton who
violate use requirements will be subject
to more stringent penalties that other
persons who violate use restrictions.
Congress also envisioned that the size of
the violator's business will be a factor in
detcmir.ing the severity of ihe peaalty.
la addition, section 14 distinguishes
between violators who have ccsucitted
previous Infractions and those who are, .
font offenders. Thus, the issuance of a
warning letter by a State to a person or
firm who has been repeatedly waned In
the past about a certain violation would
not generally be considered en
appropriate response to the violation.
4. Knowing violations; criminal
penalties. The state.of mind of the
violator Is another important'
consideration. In extreme circumstance*
where the civil penalty remedy is
Inappropriate, it is the Agency's policy
to pursue a criminal action against
persons who knowingly violate a
provision of FTFRA EPA will be
particularly interested in pursuing
criminal prosecution for those violations
which involve a death or serious bodily
injury or la which the violator has
demonstrated a reckless or wanton
disregard for human aafety.
environmental values or the terms of the
statute. To be appropriate, a State's
response to a knowing violation under
the circumstances indicated above must
be similarly severe.
5. Deterrence. It should be noted that
the appropriateness of an enforcement
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408
Register / Vol. 48. No. 3 / Wednesday. January 5. 1983 / Rules and regulations
action it » dynamic rather than • static,
concept Became it I* dynamic.
penalties must be p«riodicalJy
evaluated. If a certain violation ia
xcurrfng nor* frequently, (ha leniency
jf the remedies which hava been
applied to this infraction to the pad
should be questioned. Consequently.
wLai ia appropriate la oca year may ba
viewed as an inadequate response in tiie
next.
The factors described above, together
with the aforementioned Guideline*.
thodd help to clarify the A^ecey'i
definition o/ "appropriate enforcement
action." To and en land better how the
criteria described above can ba uaed U>
evaluate whether • proposed Stale
enforcement action i« appropriate, the
reader 1* referred to the hypothetical
fact tituaUoni in Appendix B.
D. Criteria Governing Grants of Primacy
Section a of PIFRA teti forth the
general criteria which appjy to EPA'i
decision whether to grant primacy to a
State*
"(i) For ih* purposes at (hit Act. I Siue shall havr primary enforcement
mponsibuiif lot pttcicid* use violations during any period for »hich ihe Ad-
mirjuuiar deternu.-.ri ttut iucii Si«;e—
• "(I) has adopted adequate pruiciile use \svn and reiuhtiom; Pro-
vided, Thai the Administrator may not require • Stale to fta«« pesticide
uve li«» that art more smngr-n than this Ac::
"(2) hat adopted and is implementing adequate procedure* for the
enforcement of such State la%t and reflations; and
"(3) *«il keep such records and make such rtporu showing com-
pliance wiih paragraphs (1) and C) of ifcu subs«v:ipri as ihe Ad-
ministrator may require by regulation.
"(M Noi»ithuanding the provisions of tubwiion (a) of (hit tea ion, any
State ihJi e.itert ir.to a cooperative ajrttment with trie Administrator under
setiion 2J of tbii Act for (he enforcement of pesticide u%e rwiriciions shall
have the pnmary enforcement reipon%ib elopment procedures and the
mMinter.ance of proper case files.
Instruction in these techniques should
take (he form of both on-the-job training
ar.d the use of prepared training
materials. The Avency also considers a
continuing eHur.a'ion program to be a
crvrial training procedure, so that
enlargement personnel can be kept
abreiisl of legal developments and
technological advances.
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Federal Register / Vol. 49. .\'0. 3 / Wednesday. January S. 19fl3 / Rulca and Regulations 409
2. Sampling technique* and
laboratory capability. Request! for
primacy should also show that the Slate
i* technologically capable of conducting
a uie enforcement program. Slates muil
have ready access to tho equipment
necessary to perform sampling and
laboratory analyiis. and should
Implement a quality assurance program
to train laboratory personnel and
protect the integrity of analytical data.
Laboratories conducting sample
analyses must also agree to participate
in EPA (NE1C) Check Sample programs
which are designed to ensure minimum
standards of analytical capability. (Such
i prcgrara is already operational for
formulation samples, and a residue
sample program is also under
consideration). The EPA Check Sample
program Is coordinated with the
Association of American Pesticide
Cogtrol Officials (AAPCO) to reduce
unnecessary duplication of effort. The
EPA will be guided in evaluating the
adequacy of State analytical procedure*
by official compilations of approved
analytical methods, such as the Food
a'=d Drug Administration's (FDA)
Pesticide Analytical Manual, the CPAC
(Collaborative Interriational Pesticides
Analytical Council] Handbook, the EPA
Manuel of Chemical Methods for
Pes'.icidev and Official Analytical
Chemists Analytical Procedures. For
additional guidar.se on adequate
sampling techniques. Stales should . •
co.-suit E?A's F1FRA Inspectors Manual
or ccatact the appropriate regional
office.
3. Processing ccmplaiau. Since a
significant portion of pesticida use
violations are identified through reports
from outside EPA or the State lead
agency, the State must impleaenl a
system for quickly processing and
reacting to complaints or other
information Indicating a violation. An
adequate referral system should contain:
a. A method for funneling complaints
to a central organizational unit for
review.
b. A logging system to record tho
receipt of the complaint and to track the
stages of the follow-up investigation.
c. A mechanism for referring the
complaint to the appropriate
Investigative personnel
d. A system for allowing a rapid
determination of the status of the case.
e. A procedure for notifying citizens of
the ultimate disposition of their
complaints.
4. Compliance monitoring and
enforcement. Along with the above
described enforcement procedures.
Slates must provide assurance that
sufficient manpower and financial
resources are available to conduct a
compliance monitoring program. I.e..
either planned or responsive use
inspections. In addition. States must
Implement procedures to pursue
enforcement actions expeditiously
against violators identified through
compliance monitoring activities.
The Agency also believes lhat
program planning and the establishment
of enforcement priorities is an integral
part of an adequate enforcement
program. Such planning, taking Into
account the naticnal program priorities
as manifested through the grant
negotiation process, as wefl as the
priorities specific to the Individual State.
will help assure that compliance
monitoring and enforcement resources
are properly allocated. .
5. Education. Slates should implement
a program to inform their constituencies
of applicable pesticide use restrictions
and responsibilities Examples of
education methods Include
disseminating compliance Information
through cooperative extension services.
seminars, publications similar to the
Federal Register, newspapers, and
public assistance offices where persona
can call to ask questions or report
violations. Such an educational program
will promote voluntary compliance and
Is essential to effective enforcement.
Stales should also develop procedures
for soliciting Input from the public
regarding the administration of the
pesticide use enforcement program.
HI. Criteria Governing Rescission of
Primacy Under Section 27(b)
Section 27(b) authorizes the
Administrator to rescind primacy from a
State In certain situations:
"(b> Whenever th« Administrator determines lhat a State having primary
enforcement rcNpontibiiity for peuicide UK violations is not carrying out (or
cannot carry out due to (he lack cf adequate legal authority) such rnpontibili*
ly. the Administrator shall notify the State. Such notice snail specify those
aspects of .(he administration of the State program that tie determined ID be
inadequate. The Siaie shall have ninety day* after receipt of the notice to cor-
rect any deficiencies. If after that time the Administrator determine? thai the
State program remains inadequate, the Administrator may rescind, in whole
or in pan, the State's primary enforcement responsibility for pesticide uie
violation*.
In deciding whether a State is not
carrying out cr cannot carry out. its use
enforcement responsibilities, the
Administrator will apply the criteria for
an adequate program set forth in Unit 0
to the ptrfonr.ar.ee of the jtatc during
the time the State had primacy.
A. Adequate Lawi. The legal authority
can conduct an adequate use
enforcement program is a criterion
which affects both the decision to grant
primacy and the decision to rescind it
Within the context of rescission, the
Administrator wilt assess the Impact of
any amendments or supplements to the
Sta e's pesticide use laws and
regulations. If legislative changes have
adversely affected the State's ability to
collect information or bring enforcement
actions, the State may be subject to a
rescission action on grounds of
inadequate laws.
B. Adequate Procedures. In
determining whether a State which has
adequate legal tools is carrying out Its
use enforcement obligations, the Agency
will examine the efficacy of the
procedures adopted by the State to
Implement its pesticide laws. The
Agency will be particularly interested in
the remedies the State has actually
applied to the various use violations.
• fhe lack of sufficient correlation
between the gravity of a use violation
and the severity of the enforcement
response would be evidence that the
State's arsenal of remedies Is not beir.g
applied In a flexible manner.
In addition. EPA will evaluate each
program element listed in Unit Q.B.. in
light of the performance of the State
during the period the State had primary
use enforcement responsibility.
1. Training. The Administrator wlU
note whether any difficulties
encountered by the Slate in enforcing
pesticide use restrictions have resulted
from a lack of adequate training of State
enforcement personnel
2. Sampling techniques and
laboratory capability. The
Administrator will consider whether the
State's sampling techniques end
-------
analytical capability* are enhancing or
hjnderuxg tha Stale's ability to unearth
and prosecute raccessfuQy persons who
nlsose pesticide!. Another Important
consideration will be the degree to
'ch Slate lsbcralo/7 and samplir.g
.edures have kept poca with
...velcpments in analytical technology.
3. Procsitiag coa^laint*. Tha
Air.'.nistratar will examine whether
complaints have bccfi processed Quickly
•nd efiideritly. The degree to which
citizens alJejiog • use violation seek
redress from EPA aft£r first directing
their canplaim to the Slate will ba
considered. In addition, the
Administrator wi'.l take Into account tha
perforea.'KS cf tho State to respondiij
to allegationsreferred to theSUte by
EPA under section 27{a) of FTFRA.
4. Ca.-xpUc.ice mor.Horirs and
enforcement. Under this element, the
Administrator will compare the State's
level cf compliance monitortr.g activities
xviih that cf other comparable States.
The EPA will review State case files to
determiss whether tho State has
a:sressive!y Investigated a case bcfsn
deciding on the disposition of the
nailer. The EPA will also tnvestifcsie'
whether a State's Attorney General's
office cr other prcsecutcrial authorities
have devastated a willingness to
pursue cases referred by the Stair's
pesticide control lead egs.-.cy.
The Agsacy will exenine whether
Cive eafcxer.ent resources have been
•ted '.swards the sort eisrjficant
rcezeat problem areas, and
whether enforcement priorities have
beea reevaluated as the demands of an
adequate program change over time.
S. Education. The Administrator will
evaluate whether the State's education
program it encouraging voluntary -
compliance with pesticide use
restrictions. As part of this process, tha
Administrator will note (hose use
violations which are at least partially
attributable to the violator's, lack of
farr.iliarity with applicable laws aed
regulations. The Administrator w5U also
review State procedures for facilitating
public participation in the enforcement
program.
These catena are indices of the
adequacy of a Slate's use enforcement
program, but they do not conclusively
determine whether a State ia discharging
its primacy responsibilities. Since the
Agency's goal is to protect the public
from the risks associated with
pesticides; ooe of EPA'k central in^uin.'S
wiil be whether the Stale'* primacy
program assures complianre with
pesticide u»e restrictions. F.PA. In
e\3luatin? State program adequacy, will
consider both the deficiencies of the
program and the success of the program
In achieving compliance.
IV. Eouffgancy R«spaasa>
NorwitnaUadins; other provision* of
sections 28 and 27. the Administrator
may, §fUr notification to the Slate. Lake
Immediate action to abate emergency
situations i(tha Stale Is "unwilling or
unable adequately to respond to the
emergency."
FTFKA doe» not daCna "emergency
conditoox" Other EPA-admlrtislered
statute*, however, characterize
etsersecciej La fairly consistent !onrs.
The consezuuj a/ these statuses Is that
an cmergeoci' presenis a risk of Lara to •
human health or the eavlroosKct that is
both serious and imminent, and that
requires immediate abatement auica.
Ft^f •!:.»• cf use-related emergency
situations ore:
1. Contaainatioa of a buildup by a
highly toxic pesticide.
2. Hospitaiizalions, de-aths. or other
severe health effects resulting from use
of a pesticide.
a. A geographically cpedf.c patten of
ose or misuse wt.ich present]
unnsaocable risk of advene eflecn to
health or sensitive natural areas. This
situation may occur, for exacple. if •
basaniouj pesticide u con*istendy
misused in a ptrtcolar arcs so that ±e
net effect (s the creation of nbstantiaJ
endangenr.ent to the environaent. such
as nmoff info a water supply.
A. "U.-.tnUinj-. XVbea EPA learns cf '
BB esnersency situation. Ageacr
representatives nr^st notify the affected
State. Thau repreaeataUvea will try to .
obtaia a CBCifiitment &oaa tfce State ag
to (a) wtat th« State U capable of doing
tn response to the situab'oa. acd (b)
wtea the Stale intends tz. respond to the
crisis.
EmergejUe*. by cature. require the
quickeat possible response, la most
cas«e. due to proximity, tfae State will
have the opportunity to be first on the
scene. If the State manifests an
unwillingness to respond rapidly to the
situation, or if the State cannot give
assurances that ft will respond more
quickly than EPA could respond.'Agsncy
emergency response teams will be
activated.
B. "Unable-. The EPA will
Immediately take action to abate an
emc*8onry if lh» State is unable to rio
so. The Ager.cy interprets "unable" to
mean thai othrr the State dpi» not have
the authority to adequately respond or
lh.it the State Is incapable of nolvma the
prohim due to tre lack of tec.hnolcjzy or.
resources.
1. Authority. The EPA can utilize its
auiror-.ty in section 16(c) of K1FRA to
seek, in conjunction with the
Department of Justice, a district court
order preventing or restraining misuse of
a pntlcida. Slates should also be able to
address a use-related emergency In this
manner or by the rapid issuance of an
enforceable stop-use order or other
similar means. If the Slate lacks this
authority and the emergency conditions
warrant a legal response in the nature of
specific enforcement or equitable relief.
EPA may Initiate its own action after
notice to the State,
2. Technical capability. Some
emergency situations may present
problems which the States are
technologically incapable of solving. In
these instances, if EPA possesses the
requisite technology or equipment the
Agency will immediately respond to the
crisis. For example, where a dissolved
organic pesticide has contaminated a
surface water system. EPA would
activate its portable advanced waste
treatment unit, a resource that is not
generally available to the States. «
The EPA will also take action if th«
State cannot rapidly commit the
necessary manpower to the ene--;erxy
situation. In most cases EPA will not
however, initiate a response oa this
basis U the State has developed an
emergency respor.se plan detailing the
procedures to be followed in •
counteracting a pesticide emergeccy.
V. Hypothetical Sltoatlaos
In reading the bypotheticals b Units
A and B. arrjne that the cases
dJsnssed faH under priority referral
areas discussed In Unit LA.2.
A. Action by Citizen. Hypothetic! 1.
EPA refers to the Slate a citizen's
allegation mat an aerial applicator has
allowed pesticides to drift over his,
property. After 25 day*, the EPA Region
obtains the results of State's
Investigation and !eams thai the Stata
plans to Issue a warning letter to the
applicator. The EPA advocates a more
fira response and. after discussion, tha
Stale agrees to suspend the applicator's
certification. The Stale certification
board does not meet, however, until two
months later. In this instance. i'.,e Region
may decide to extend the normal 30 day
prosecution stage to accommodate the
schedule cf the board.
Hypothetical 2. A citizen calls EPA
*i:h information concerning a fish kill
wh.ch occurred in a stream near his
residence. The citizen claims that he
reprned his information to the State, but
Stale officials have nol responded lo his
carvpUirt. T>e HP.Vs Regional official
ru!U the Suie. and learns that the Slate
did indeed kr.ow of the problem, bul has
not yet had (he opportunity to
investigate the allegation. The Regional
-------
official, believing the allegation lo be
•unificanl. formally refers the complain!
lo Iht Stile. and the Slate agrv* lhat
»e matter ihould be invest.$8trd within
days. After 20 days, the Region leems
-\e St*te btt not yet b«un ill
gaiion. lo Irus case, the Region
.egin ill own inquiry into the
eiat!er. and may commence its own
enforcement action, after ootice to the
State, provided that 30 day* have
elepted Cram tho dole of the referral.
EL Action by State. In both of these
bypolheticalA. wiurae thai the State hoi
chosen • Warning Letter ai the
appropriate enforcement response.
Hypothetical 1. Mr. Smith operates a
or-e-rnan crop dusting company. Smith L»
hired to iprsy Herbicide A over a power
ccr.pa.-.y'» lengthy right-of-wey. The
right-of-way L» bounded on one tide by
* residential development and oa th0
other by > wooded area. Smith perfcrraj
the aerial applicaUcn amidst high
swiriias wind* La confraventicn of the
InsS-jc'Jora oa the herbicide'* label. A
sigrafica::! portion of the herbicide dnfu
csto ihe weeded area. Herbicide A.
which ccntaicj ths hazard word
"daxge;" oa iu lacd, is a highly toxic
s.-.d persistent restricted uit pestkids.
S-1'J» has is record cf prior pcstieide-
reletcd vxjlaiicsj with gaver^aecJ
pes::cida ccstrd cfOcM.
The Agency would corjider tha
issuance of a warning letter to b* ea
Pprcpriate response to thij vfolaL'ca.
" ;tA cssctislsd with !f:e vio.'aiite
"crti-.stely In this tss!as:a. th«
.1 did net mult to dazzs8 to
hasians or sensitive envirencestal
areas, Eal at ±s time the violates was
cosr-Jtted, '±e rtik that bara wo-JJ
rvs-Jt Iron tha r.;stae was quite
sigruHcar.'. given the bigh twirling
wir.ds cr.d the proximity of a residential
neighbcrhood. Only chance prevented
the herbicide from drtftfr^ teto aaN
irJ-.abited area. Th« risk of ham waa
also increased by the fail thai a great
deal of land was subject to drift given
the length cf the target area.
b. Risk essofiated witfi the pesticide.
Herbicide A I* labelled "danger" end Is
therefore an acutely lo«Jc Category I
pesticide order <0 CD.lAlia The harci
that would resuJl from exposure to thij
persiifent sabstanea Is lubatantlaJ.
regardless of whether chronic effect! or
residue properties have been ascribed to
it. In addition, a large amount of
herbicide A waa involved in the
violation.
c. Other facun. Smith Ii •
commercial applicator cnder FIFRA and
would ba subject to the maximum
?«nalry. As a mitigating factor, however,
Smith could point lo (he absence of prior
F1FRA violations.
In summary, since Smith's actions
were highly likely to result in Mhous
harm to hum.tn hualth. hit dnfl violation
warrants a severe enforcement
responte. men AS assessing a fine or
suspending his certification. Despite
Smith's clean record, a warning letter
would no! be deemed "appropriate
en/urcetneiit action."
Hypothetical 2. A small foud
procrsjing firm which markets frozen
TV dinners uul.zes company
maintenance personnel to accomplish ill
pest control needs. No particular
traininj it provided for such employees
but they are instructed to read acd
follow the label directions. They are
provided all appropriate application
equipment acd protec'Jve clothing. A
company employee applied a ooo-
peraistcfit general-ess (Category IV)
pesticide which was registered for
structural peu coolrol lo combat •
particularly serious cockroach
tr-'eitatica. Despite label liutrucCos*
requiring the user to avoid
contamir.jting food, food containers, cr
cooking utensils, the eaployee applied
the pesticide directly upon and below
counter topi and related surface* la the
roe.-a where food cockicg rackj ar»
stored. The applicaUoa look place Uta
Friday eflenooa. The cooking racks
were cot utilized again until Monday
morning. AD Inspection toek place oa
Monday ocrn.'=g. Thl* was the third
pesticide UM inspection which the State
bad conducted at the Una la tha Laat
four years. N'cae of the priar bspecticas
had revealed a psa'Jcids-related
violation. Residue taaple* taken
KJo.-.day ccrclzg reveaJed no trace
residue cf the pesticide ca the treated
surfaces.
State the violation constitutes • first
offense by na "other penon" under
lect.'on 14(a)(2] of FIfRA, the naxmna
federal enforcecent response would be
a Notice of '.Vamir.g. Accordingly, the
Werr.ing Letter Issued by the Stite
would consUrute an approprUta
enforcement action.
a. Risk associated with the vt'ofat/va
action. The direct application of any
pestldde to a cooldr.g rack la • food
processma establishjient poses aose
risk of exposure to humans. Although
the pesticide used In this case waa not
applied In great amounts or over large
areas, the inherent risk associated with.
tha violation U relatively high, since
violation result* In the Introduction of
the pesticide Into non-target surfaces
with the likelihood of human exposure.
b. Risk atsociated with the pesticide.
In this Instance, the risk associated with
tV pesticide itself Is relatively small.
This Category IV pesticide (• not acutely
toxic or r enistent. and Is not known to
cause *ny chronic r 'fe( I*. S-m; le
analysis reveu'ed no (IHCC ni ih*t
product al the (i-ie ihr .•>[ oi«>J cooking
racks were to b< used.
c. Olhtr factors. Under FIFRA. the
Issuance of
-------
i
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT2
OFFICE OF
PESTICIDES ANO TOXIC SUBSTANCE?
MEMORANDUM
SUBJECT: FIFRA §§26 and 27 and SPMS Measures
FROM: A., E. Conroy II, Director
Office of Compliance Monitoring
TO: Addressees
On July 3, 1985, Jim Vickery of the Office of Enforcement
and Compliance Monitoring (OECM) transmitted by electronic
mail a memorandum on the proposed Strategic Planning and
Management System (SPMS) measures for FY 1986. The major
revision dealt with reporting Significant Non-Compl iers (SNC).
The package on SPMS measures redefined "Significant Violator"
as any violator which meets the criteria for significant cases
set forth in 40 CFR 173 and the Interpretive Rule governing
FIFRA §§26 and 27 referrals.
In reviewing how the Regions have implemented FIFRA §§26
and 27, the Office of Compliance Monitoring (OCM) has noted
that some Regions do a good job, e.g., Region IX in Hawaii.
Others are not following the procedures set forth in the
Interpretive Rule and the Procedures on Rescission of Primacy.
Because'the SPMS measures are mandatory now, I am sending you
the attached document which contains the requirements currently
found in the Interpretive Rule and 40 Part 173. In conjunction
with the SPMS operation, Dr. Jake Mackenzie, Western Regional
Compliance Director, OCM, will be reviewing FIFRA §§ 26 and
27. He will use the SPMS data generated to evaluate and assess
the need for changes to §§ 26 and 27.
In order to facilitate the transition to the new SPMS
measures, John Seitz, Chief Executive Officer, OCM, plans
to visit each of the Regions within the next four weeks to
discuss the new measures and any problems which you may be
having with them. He will be contacting you individually
to set up a specific date.
-------
In addition, I would welcome any comments you have on
the attached FIFRA §§26 and 27 document. Please send your
comments to Phyllis Flaherty, Chief, Policy and Analysis
Branch. If you have any questions on the document, she can
be reached at FTS 382-7826.
Attachment
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STATE OVERSIGHT
FIFRA §§26 AND 27
BACKGROUND
FIFRA §§26 and 27 establish a standard and procedure for
giving States primacy. Section 27 authorizes the Admini-
strator to override or rescind a grant of primacy in
certai n situations.
Three documents currently govern how we oversee the States
and what happens if the State fails to take appropriate
actions for the enforcement of the use provisions of the
Act. These documents are:
FIFRA State Primary Enforcement Responsibilities: Final
Interpretive Rule. Published at 48 FR 404 on January 5,
1983.
Procedures Governing the Rescission of State Primary
Enforcement Responsibility for Pesticide Use Violations,
40 CFR Part 173.
Annual State Cooperative Enforcement Agreement Guidance.
Section 27(c) authorizes the Administrator to take immediate
action to abate an emergency situation where the State is
unable or unwilling to respond to the crisis.
EPA is not in a position to monitor State responses to every
allegation of pesticide misuse referred by the Agency.
Rather, the Agency will focus on oversight activities on
evaluating the overall success of State pesticide enforcement
actions, and will track, on a case by case basis, only those
allegations involving particularly serious violations, i.e.,
those agreed to in advance.
Such significant allegations will be formally referred to
the State while other less serious complaints will be
forwarded for Information purposes only.
-------
PROCEDURES FOR EPA TO'TAKE ACTION FOR USE VIOLATIONS
Authority
0 Section 27 authorizes EPA to bring its own action if the
State does not commence appropriate enforcement action
within 30 days of'such referral.
Prior to EPA Taking Action
I. Prior to Referral
0 The Region, in consultation with each State, identifies
priority areas for referral.
Priority areas should be those which present the greatest
potential for harm and depend on the results of pesticide
enforcement evaluations conducted by the Regions and States.
This is to be done prior to a formal referral.
0 After identifying priority areas, the Region determines on
a case by case basis which allegations in the priority areas
involve sufficiently significant violations to be formally
referred and tracked.
0 After a referral is formally made, the determination as to
whether a State commences appropriate action involves a
two phase determination regarding the : 1) investigation
stage and 2) the enforcement response stage. . ,
II. 'Investigation Stage
For formal referrals only, the Region contacts the State
to learn the results of the investigation and the State's
intended enforcement response.
»
If the State has not conducted an adequate investigation,
the.Region should attempt to correct any deficiencies in
the investigation through informal communication with the
State.
An investigation is adequate if the State followed proper
sampling and other evidence gathering techniques and
responded expeditiously to the referral and documented
the facts of the case.
-------
0 If after discussions with the State, no agreement is reached
on correcting the deficiencies in a specific case, the
Region can act after 30 days. Concurrence from Headquarters
is recommended. Please note that these procedures do not
apply to referrals or requests from the State for EPA to
inspect.
0 In those cases where the Region encounters a pattern of
inadequate investigations, the Region should discuss this
with the State during evaluations and grant negotiations
and work towards resolving the problem. Solutions may .
include providing additional training or equipment.
III. Enforcement Response Stage
For formal referrals, the Region contacts the State regarding
the State's intended enforcement response.
The Region reviews the intended response to determine if it
is appropriate. Although appropriate responses cover a wide
range of possible responses, the Region reviews the intended
State action in the context of the specific case.
This review must also take into account the actions available
under State law, as reviewed during the orig-inal granting of
primacy.
If the Region finds that the State's intended action is
inapprooriate, the Region should discuss this with the State.
If agreement is reached, the State has 30 days to initiate
the action.
If no agreement is reached on the specific case after the
State is informed of EPA's disagreement, the Region notifies
the State in writing that it has 30 days to correct the
situation or EPA will take the enforcement action.
In those cases where no agreement has been reached, upper
level management should be involved in the negotiations
prior to formally notifying the State that EPA plans to
take action unless the situation is corrected.
EPA will take action only on those cases identified as a
priority with the State and as a significant violation
and which has been formally referred and tracked.
-------
HISTORY OF INADEQUATE ACTION
Cases Not Identified as Formal Referrals
0 The Region should discuss such cases during State midyear
and' end of the year evaluations.
0 In situations where there appears to be a significant
problem in a particular area, the Region should attempt to
resolve this problem through a number of mechanisms.
These mechanisms include: addressing the problem through
specific reference in the next year's grant narrative,
providing additional training if appropriate, and
identifying the problem area as a priority area for
which formal referrals will be made and tracked.
Cases Which Are Formal Referrals
0 The Region should try to resolve problems as they arise
on a case by case basis in the context of consultations
prior to the State's enforcement actions. However, when
this has failed, and the Region has informally and formally
discussed and documented problems and the State has a
pattern of inadequate action, the Region needs to correct
the situation.
0 As for cases which are not formal referrals, the Region
should work with the State during midyear and end of
the year evaluations as well as during negotiations con-
cerning specific cases being tracked.
0 The Region should address such problems through training,
specific grant guidance language, and continued tracking
of priority areas.
0 If the Region has documented a history of inadequate
enforcement of the use provisions of the statute and
has exhausted all other avenues of resolution, the
Region should consider rescission of primacy.
0 Procedures for the rescission of State primary enforcement
responsibility for pesticide use violations are explained
in 40 CFR 173.
-------
RESCISSION OF PRIMACY
Initiation of Rescission Proceedings
0 Rescission of primacy requires written notification by
the Administrator to the State of those aspects of the
State's pesticide use enforcement program which have
been found to be inadequate. The CFR delineates the
specific information which should be in the notification.
Informal Conference and Settlement
0 After receipt of the notification, the State may request
an informal conference between the State and EPA officials
to discuss the find ings.
0 If the Administrator finds, based on the conference, that
the deficiencies did not exist or were corrected by the
State, the Administrator shall issue an order withdrawing
thenoticeofintenttorescind.
0 At any time prior to issuance of a final order, the State
and EPA may resolve the issues raised. Any settlement
agreement shall be in writing and signed by both parties.
0 If an agreement is signed, the Admimistrator shall issue
an order withdrawing the notice of intent to rescind.
Request for Heari ng
0 A State may request a hearing before a Presiding Officer
within 60 days of receipt of notice of intent to rescind.
Publication of the Notice and Hearing
0 Within 60 days after service of notice, the Administrator
shall publish in the Federal Register, the notice of
intent to rescind.
0 At the same time, the Administrator shall schedule a hearing
in th2 State if a hearing has been requested by the State.
0 Representatives of the State, the public, and EPA may
present evidence.
-------
- 6 -
Hearing and Recommended Decision
0 Decision may b'e an order to rescind primacy in whole or
in part or to withdraw notice of, intent to rescind.
0 Decision becomes final within 45 days.unless an appeal
to the Administrator is taken or the Administrator reviews
sua sponte.
Final Order '
0 Final Orders shall be published in the Federal Regi ster.
Judicial Review
0 A State may appeal an order rescinding, in whole or in
part, its primacy to the appropriate federal court.
-------
Ol-'fHJt: OP I'liSTiCU
Program'Area; Pesticides Enforcement
MEASURE
SPMS CODE
Achieve and maintain a high
level of compliance (con't).
0 addressed after exceeding specitied time cranes (Includes
extensions granted to states)
Significant: Violator (EPA Cases) Dynamic base*
For use violations reterred tran the states to EPA tor action
or tor use cases based on Kt>A inspections report:
0 nunber of actions addressed within M days ot state reterral
or conpletion ot EPA inspection:
0 nuniber not addressed withxn specie ied time frames.
0 addressed after exceeding specified timeframes.
*Regionai quarterly targets will lie set for this measure.
: - 4
,A -1,4
Ol'l-S-5
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OFFICE OF PESTICIDES AND TOXIC SUBSTANCES
Program Area: Pesticides Enforcement
OBJECTIVE
MEASURE
SPMS CODE FREQUENCY
Achieve and maintain a high
level of compliance.
Inspections for Significant Activities
Specify the number of State inspections conducted in
'the following categories identified on EPA form 5700-3311
and the number of EPA inspections in comparable categories:*
o agricultural use and follow-up
o nonagricultural use and follow up
o restricted use pesticide dealers
Compliance Rates for Significant Activities
Report on number of actionable state inspections for the
following categories identified on EPA Form 5700-3311.*
o agricultural use and follow-up
o nonagricultural use and follow-up
o restricted use pesticide dealers
Significant Violator (State Primacy)-r>i>namic Base
For referrals under Section 27 designated as significant in
accordance with the procedures set forth in 40 CFR 173 (pro-
cedures governing referrals) EPA Regions report:
o number of referrals addressed within specified timeframes
(30 days investigation; 30 days prosecution)(Timeframes
should not include extensions granted to States.)
o not addressed within specified timeframes
* All Federal data will be reported quarterly in real time.
All state data will be reported quarterly, one quarter out
of phase. '
P/E - 1
P/E - 2
P/E - 3
0 1,2,3,4
0 1.2.3,4
O 1,2,3,4
-------
tinned Slates
Environmental Protection
Agency
0«ice of
Public Affairs iA-107)
Washington DC 2W60
Rcvsed May 1985
vvEPA
The Federal
Insecticide, Fungicide,
and Rodenticide Act
as Amended
7 USC IM».|
n sin. in'.
7 USC I.Un
7USC" 1)61)
7 USC IM
7 USC IMf
7 USC IMt
P.L.
fj Sut. 1)7.
"SEC. It. STATE PRIMARY ENFORCEMENT RESPONSIBILITY.
"(a) For th« purposes of this Act. a Stale shall have primary enforcement
responsibility for pesticide use violations during any period for which (he Ad-
ministrator determines that such Stale—
"(1) has adopted adequate pesticide use laws and regulations; Pro-,
vided. That the Administrator may not require a State to have pesticide!
use laws that are more stringent than this Act;
"(2) has adopted and is implementing adequate procedures for the
enforcement of such State laws and regulations; and j
"(3) will keep such records and make such reports showing com-
pliance with paragraphs (I) and (2) of this subsection as the Ad-
ministrator may require by regulation.
••(b) Notwithstanding the provisions of subsection (a) of this section, any
State that enters into a cooperative agreement with the Admimsirator under
section 23 of this Act for the enforcement of pesticide use restrictions shall
have the primary enforcement responsibility for pesticide use violations. Any
State that has a plan approved by the Administrator in accordance with the re-
quirements of section 4 of this Act that the Administrator determines meets
the criteria set out in subsection (a) of this section shall have the primary en-
forcement responsibility for pesticide use violations. The Administrator shall
make such determinations with respect to State plans under Section 4 of this
Act in effect on September 30, 1978 not later than March3l. 1979.
"(c) the Administrator shall have primary enforcement respoiuibility for
those States that do not have primary enforcement responsibility under this
Act. Notwithstanding the provisions of section 2(e) (I) of this Act rlu-in- -/
period when the Administrator has such enforcement responsioility. section
8(b) of this Act shall apply to the books and records of commercial applicators
and to any applicator who holds or applies pesticides, or use dilutions of
pesticides, only to provide a service of controlling pests without delivering any
unapplied pesticide to any person so served, and section 9(a) of this Act shall
apply to the establishment or other place where pesticides or devices are held
for application by such persons with respect to pesticides or devices held for
such application.
t'SEC. 27. FAILURE BY THE STATE O ASSURE ENFORCEMENT OF
STATE PESTICIDE USE REGULATIONS.
"(a) Upon receipt of any complaint or other information alleging or in^
dicating a significant violation of the pesticide use provisions of this Act. the
Administrator shall refer the matter to the appropriate State officials for their
investigation of the matter consistent with the requirements of this Act. if,
within thirty days, the State has not commenced appropriate enforcement ac-
tion, the Administrator may act upon the complaint or information to the ex-
tent authorized under this Act. .
"(b) Whenever the Administrator determines that-a State having primary
enforcement responsibility for pwticide use violations is not carrying out (or
cannot carry out due to the lack of adequate legal minority) such responsibili-
ty the Administrator shall notify the State. Such notice shall specify those
aspect! Of the administration of the State program that are determined to be
inadequate. The State shall have ninety days after receipt of the notice to cor-
rect any deficiencies. If after that time the Administrator determines ihat the
Slate program remains inadequate, the Administrator may rescind, ini who*
or in pejt, tht State's primary enforcement responsibility for pesticide use
™?c)°Neiiher section 26 of this Act nor this section shall limit the authority
of the Administrator to enforce this Act. where the Adminstraior *«««""**
that emergency conditions exist that require immediate action on ih*P*n •'
thi ^dmi^is^r•tor and the Slate Minority is unwilling or unable adequately to
respond to the emergency.
-------
Index
The documents in this index are referenced by the Compendium subject/volume abbreviation and the date
of the document. However, FIFRA Compliance Program Policy Compendium documents are referenced
by the subject/volume abbreviation and the document number. The abbreviations for the subject/volumes
in this index are as follows:
TG - Technical Guidance (Volume 1);
SRG - State-Related Guidance (Volume 2);
ES - Enforcement Strategies (Volume 3);
ERP - Enforcement Response Policies (Volume 4); and
FCPP - FIFRA Compliance Program Policy Compendium (Volume 5)
Agricultural use only, FCPP 25.1
Alar. See Daminozide
Aldicarb
stop sale, ES 04-30-90
Aldrin, TG 02-00-90
Aluminum Phosphide products, FCPP 3.3
Amitraz, TG 02-00-90
Antifouling paints, ES 04-21-83
Antimicrobial pesticide, TG 05-28-86
Application review procedures, SRG 06-13-89
Arsenic Trioxide, ES 06-06-89, TG 02-00-90
Basic registrations, FCPP 3.9
Benomyl, TG 02-00-90
BHC, TG 02-00-90
Bithionol, TG 02-00-90
Books and records. See Recordkeeping and reporting
Bromoxynil, TG 02-00-90
conditional registration and cancellation of certain
products, ES 07-06-89
Bromoxynil Butyrate, TG 02-00-90
Bulk shipments, TG 07-11-77
Cadmium, TG 02-00-90
Calcium Arsenate. See Wood Preservatives
Cancellation order, TG 08-21-90
Captafol, TG 02-00-90
Captan, TG 02-00-90
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Carbon Tetrachloride, TG 02-00-90
cancellation, ES 07-11-87
Cedar Chemical Company, ES 06-15-88
Certification plan, FCPP 26.1
Certified applicators, TG 11-29-83, TG 04-25-84, FCPP 2.3,
FCPP 12.4
Chemigation, FCPP 12.7
Child-resistant packaging, ES 06-08-81, FCPP 25.1
Chloranil, TG 02-00-90
Chlordane/heptachlor, TG 02-00-90
corn use, ES 08-27-76
suspension, ES 01-15-76, ES 01-22-76, ES 02-19-76,
ES 11-23-76
enforcement strategy, ES 3-23-76
termiticides
cancellation and suspension, ES 04-13-88
revised compliance strategy, ES 04-13-88
Chlord'imeform, TG 02-00-90
cancellation strategy, ES 06-19-89
existing stocks, ES 02-09-89, ES 06-19-89
recall, ES 06-19-89
Chlorobenzilate, TG 02-00-90
Civil compliance, TG 01-16-80
Civil liability, TG 10-22-81
Civil penalties, TG 07-12-79, SRG 02-24-81
Civil penalty
assessment, TG 01-17-80
calculation, ERP 07-02-90
matrix, ERP 02-10-86
Commercial applicator, FCPP 2.3
Communications strategy
FIFRA and TSCA GLPs, ES 04-25-90
Compliance monitoring inspection, ES 06-15-88
Compound 1080, ES 07-25-86, TG 02-00-90
Confidentiality, FCPP 10.1
Conservation Reserve Program (CRP), FCPP 3.7
Contract manufacturing, FCPP 3.2
Cooperative agreement, SRG 07-31-89, FCPP 26.1
application requirements, SRG 06-13-89
funds, SRG 06-13-89
implementation, ES 11-22-83
Copper Arsenate, TG 02-00-90
Credentials, SRG 12-18-80
Creosote, ES 10-23-86, TG 02-00-90
Criminal penalties, TG 07-12-79
Crop rotation restrictions, FCPP 3.7
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Cropland, FCPP 3.7
Custom blenders, FCPP 3.4, FCPP 7.1
Cyanazine, TG 02-00-90
Cyhexatin, TG 02-00-90
Daminozide (Alar), TG 02-00-90
agreement to halt sales, ES 06-14-89
final compliance monitoring strategy, ES 10-20-86
Data call-in requirements, ES 09-13-85
DBCP, TG 02-00-90
suspension order, ES 11-07-79
DDD (TDE), TG 02-00-90
Dealer, FCPP 12.4
Dealer/distributor, ES 02-09-89
Diallate, TG 02-00-90
Dibromochloropropane. See DBCP
Dicofol, TG 02-00-90
Dieldrin. See Aldrin
Diluent, FCPP 12.5
Dimethoate, TG 02-00-90
Dinoseb, TG 02-00-90, ES 04-17-87, ES 03-14-88, ES 06-15-
amendment to suspension, ES 04-02-87
cancellation, ES 03-28-88, ES 06-15-88, ES 03-03-89
emergency suspension, ES 10-07-86
exemption requirements, ES 04-02-87
stipulated order, ES 03-28-88
suspension order, 04-17-87
Direct supervision, FCPP 2.3
Disinfectants, TG 02-00-90
Distributor registrations, FCPP 3.2
District court injunction, ES 03-28-88
Drinking water, TG 08-30-75, ES 10-00-80
EBDC, TG 02-00-90
compliance strategy, ES 03-12-90(a), ES 03-12-90(b)
EDB, TG 02-00-90
grain uses, ES 02-03-84, ES 02-06-84(a), ES 02-06-84(b)
soil fumigation use, ES 10-06-83
suspension, ES 10-06-83, ES 02-03-84, 02-06-84(a)
Electronic mosquito repelling devices, TG 02-00-90
Emergency exemptions, ES 03-14-88
Enclosed cabs, TG 02-00-90, FCPP 12.6
Endangered species, TG 02-01-88, SRG 06-13-89, SRG 07-31-89
Endrin, TG 02-00-90
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Enforcement, FCPP 12.7
Enforcement actions, TG 08-30-75, TG 12-19-79
Enforcement responsibility, primary. See Primacy
Engineering controls, FCPP 12.6
EPN, TG 02-00-90
Establish competency, FCPP 4.1
Establishment registration, ERP 02-10-86, FCPP 3.5, FCPP 7.1,
FCPP 10.1
Ethylene bisdithiocarbamate. See EBDC
Ethylene dibromide. See EDB
Evidence, FCPP 26.1
Executive agencies, TG 01-16-80
Exemptions, FCPP 3.1
Experimental use permit (EUP), FCPP 12.1
Exporting
unregistered pesticides, TG 07-28-80
Existing stocks, TG 08-21-90
chlordimeform, ES 02-09-89, ES 06-19-89
Exports. See Imports and exports
Federal facilities, TG 01-16-80
Fertilizer
pesticide mixture(s), FCPP 2.1, FCPP 3.4
Financial status, TG 10-17-80
Fish and Wildlife Service (FWS), ES 07-25-80
Fluoroacetamide, TG 02-00-90
Foreign trade zones, FCPP 17.1
Form 10-K. See 10-K Statements
Free ports, FCPP 17.1
Fumigants, ES 04-21-83
Fumigation, FCPP 3.3
Good Laboratory Practices (GLPs)
and data audits, ES 11-22-83, ES 01-15-85
notification plan, ES 04-25-90
question and answer document, TG 05-12-92
Good Laboratory Practice (GLP) Standards
agreement
interagency; Department of Health and Human Services,
National Toxicology Program, ES 01-15-85
memorandum of; for conduct of laboratory inspections and
data audits, ES 01-15-85
equipment, ES 11-29-83, ES 01-15-85
inspections, ES 01-15-85
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Good Laboratory Practice (GLP) Standards (continued)
organization and personnel, ES 11-29-83, ES 01-15-85
quality assurance unit, TG 08-17-89
records and reports, ES 11-29-83, TG 08-17-89, ES 01-15-85
regulations, ES 01-15-85
standard operating procedures, TG 08-17-89
testing, ES 11-29-83, 01-15-85
testing facilities, ES 11-29-83, ES 01-15-85, TG 08-17-89
Government agency
state or local, SRG 02-24-81
Grain uses
EDB, ES 02-03-84, ES 02-06-84(a), ES 02-06-84(b)
Grant application forms, SRG 06-13-89
Ground water, SRG 07-31-89, SRG 06-13-89
Heptachlor. See Chlordane/heptachlor
HTLV-III/LAV, TG 05-28-86
Imports, FCPP 17.2
and exports, TG 11-19-76
Indemnification claims, ES 10-06-83
Inorganic arsenicals, ES 10-23-86, ES 06-06-89
Inspections, FCPP 12.3
establishment, TG 01-24-77
Good Laboratory Practice Standards, ES 01-15-85
labeling, ES 04-21-83
pesticide use, TG 01-24-77, SRG 12-18-80
Intrastate use, FCPP 24.1
Kepone, TG 02-00-90
Knowledge expert, FCPP 2.1
Label Improvement Program (LIP), ES 04-21-83
Labeling, TG 10-22-81, TG 05-28-86, TG 02-00-90, SRG 09-01-92, FCPP 2.2,
FCPP 3.3, FCPP 24.1, FCPP 25.1
changes, TG 02-21-88
requirements for exported pesticides, devices, and pesticide
active ingredients, TG 07-28-80
Lead Arsenate. See Wood Preservatives
Level of action, ERP 07-02-90
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Lindane, TG 02-00-90
compliance monitoring strategy, ES 04-25-85
notice of intent to cancel, ES 07-10-86
LIP Notice. See Label Improvement Program
Livestock protection (LP) collars, ES 07-25-86
Love v. Thomas, ES 03-28-88
Low volume applications, FCPP 12.5
Maintenance fees
registration, TG 08-21-90
Make available for use, FCPP 12.4
Manufacturing use only, FCPP 3.8
Mercury, TG 02-00-90
cancellation, ES 10-28-76
settlement, ES 01-06-77
biocides, registration, ES 09-12-90
phenylmercuric acetate, cancellation, ES 09-12-90
Methyl Bromide
California Fact Sheet, FCPP 3.10
Label Revision, SRG 09-01-92
Metaldehyde, TG 02-00-90
Mirex, TG 02-00-90
Misuse, FCPP 2.1, FCPP 12.3, FCPP 26.2
Monocrotophos, TG 02-00-90
Multi-use products, FCPP 17.2
OMPA, TG 02-00-90
Oxyfluorfen, TG 02-00-90
Neutral administrative inspection scheme, ES 09-03-85
NOIC, ES 06-15-88
Noncertified applicator-, FCPP 2.3
Noncropland, FCPP 3.7
Notice of arrival, FCPP 17.2
Notice of intent to suspend (NOITS), ES 09-03-85
Outer containers, FCPP 2.2
Parathion, TG 02-00-90
PCBs, TG 02-00-90
PCNB, TG 02-00-90
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Penalties
civil. See Civil penalties
criminal. See Criminal penalties
Pentachlorophenol. (See also Wood Preservatives), ES 10-23-80
PEPS (Pesticide Enforcement Policy Statements), TG 04-01-76,
TG 07-08-76, TG 06-08-79
institution of, TG 05-05-75
Permissible Exposure Limitation (PEL) Program, ES 10-23-86
Personal protective equipment, FCPP 12.2, FCPP 12.6
Personal use, FCPP 3.8
Pest control
devices, TG 11-19-76
electromagnetic, TG 02-00-90
nonhazardous, TG 12-19-79
preventive, TG 07-08-76
nonstructural, TG 06-08-79
structural, TG 06-08-79
Pesticide
cancellation, TG 02-00-90
restricted use, TG 02-00-90
suspension, TG 02-00-90
Pesticide dealer, FCPP 2.3
Pesticide Enforcement Policy Statements. See PEPS
Pesticide use
at less than label dosage rate, TG 06-08-79
by veterinarians, TG 11-01-79
control of pests not named on the label, TG 06-08-79 (See
also Pest control - nonstructural)
control of unnamed target pests, TG 06-08-79
enforcement, TG 01-24-77
uses which do not appear on label, advocacy of, TG 10-22-81,
TG 05-28-86
Phenarsazine Chloride, TG 02-00-90
Phosphine gas, FCPP 3.3
Polychlorinated Biphenyls. See PCBs
Polychlorinated Terphenyls, TG 02-00-90
PR Notice 87-1, FCPP 12.7
Primacy, SRG 05-11-81, SRG 01-05-83, SRG 10-02-85, FCPP 26.1,
FCPP 26.2
rescission of, ES 11-22-83
Private applicator, SRG 02-24-81, FCPP 2.3
certification, FCPP 4.1
Processing, FCPP 17.1
Producer, ERP 02-10-86
Product labeling, ES 04-21-83
Product registration, FCPP 3.5, FCPP 3.8
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Production data, FCPP 10.1
Program oversight
evaluation and reporting, SRG 06-13-89
Pronamide, TG 02-00-90
Purifiers. See water purification devices
Quaternary Ammonium Compounds, TG 02-00-90
Rail cars, FCPP 3.3
Recall
chlordimeform, ES 06-19-89
dinoseb, ES 03-14-88
Recordkeeping and reporting, TG 11-19-76, TG 11-29-83,
TG 04-25-84
Referrals, SRG 10-02-85
Registered use pesticides, TG 11-01-79, SRG 02-24-81
Registrant
reporting requirements, TG 08-23-78
Registrant/distributor liability, FCPP 3.9
Registration, FCPP 3.4, FCPP 17.1
of establishments, TG 11-19-76
Repackaging, FCPP 3.2, FCPP 17.1
Reporting. See also Recordkeeping and reporting, ERP 02-10-86,
FCPP 7.1
Reporting requirements
study and experimental data, TG 07-12-79
Request procedures
large numbers of samples or investigations, TG 07-30-80
procedures complaint followup, TG 07-30-80
sample or label, TG 07-30-80
Rescission proceedings, SRG 05-11-81
Respirators, FCPP 12.6
Restricted use pesticides (RUP), TG 02-00-90, FCPP 12.4
Rhone-Poulenc, ES 07-06-89, ES 04-30-90
Safrole, TG 02-00-90
Salt water emesis, ES 04-21-83
Seed treatments, TG 02-00-90
Shipment, FCPP 3.1
Shipping containers, FCPP 2.2
Silvex. See 2,4,5-T and Silvex
Sodium Arsenate. See Wood Preservatives
Sodium Arsenite. See Wood Preservatives
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Sodium Cyanide, TG 02-00-90
Sodium Fluoride, TG 02-00-90
Sodium Monofluoroacetate. See Compound 1080
Soil fumigation use
EDB, ES 10-06-83
Special local need, FCPP 24.1
Special packaging. See Child-resistant packaging
Spot fumigation, ES 02-06-84(a), ES 02-06-84(b)
Spot treatment, FCPP 3.7
State authority, FCPP 26.1, FCPP 26.2
Stop Sale, Use, or Removal Order, TG 12-19-79, TG 08-21-90,
ES 09-03-85,
aldicarb, ES 04-30-90
dinoseb, ES 03-14-88, ES 06-15-88
Strategic Planning and Measurement System (SPMS), SRG 10-02-85
Strobane, TG 02-00-90
Strychnine, TG 02-00-90
Supplemental registrations, FCPP 3.2, FCPP 3.9
Suspensions, ES 09-03-85
Target pest, FCPP 2.1
10-K statements, TG 10-17-80
Termiticides, ES 04-21-83
Thallium Sulfate, TG 02-00-90
TOK, TG 02-00-90
Toxaphene, TG 02-00-90
cancellation, ES 01-01-83
Toxic collar. See Livestock Protection Collars
Transfer, TG 07-11-77
Tributyltin, TG 02-00-90
Trifluralin, TG 02-00-90
Truck fumigation, FCPP 3.3
2,4-D, TG 02-00-90
2,4,5-T and Silvex, TG 02-00-90
cancellation, ES 03-07-79
suspension, ES 04-05-79, ES 08-20-79
2,4,5-TCP, TG 02-00-90
Ultra-low volume application, FCPP 12.5
Unregistred pesticides, FCPP 3.1
Use enforcement, FCPP 26.1
Use inconsistent with the labeling, FCPP 2.1
Use inspections, FCPP 12.3
Use recommendations, FCPP 2.1, FCPP 12.1
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Vegetable oil diluent, FCPP 12.5
Velsicol Chemical Corporation, ES 04-13-88
Vinyl Chloride, TG 02-00-90
Violation history, TG 10-17-80
Water purification devices, TG 08-30-75, TG 03-15-76, ES 10-00-80
Wood Preservatives, ES 10-23-86, TG 02-00-90
Worker protection program, SRG 06-13-89, SRG 07-31-89
Worker protection statements, TG 02-00-90
Written examinations, FCPP 4.1
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