Performance audit, Arizona Department of Agriculture commodity development and promotion program, report to the Arizona Legislature

              State of Arizona
Office
of the
Auditor General
PERFORMANCE AUDIT
Report to the Arizona Legislature
By Debra K. Davenport
Auditor General
September 2000
Report No. 00-16
ARIZONA
DEPARTMENT
OF
AGRICULTURE
PESTICIDE COMPLIANCE
AND
WORKER SAFETY
PROGRAM
The Auditor General is appointed by the Joint Legislative Audit Committee, a bipartisan committee
composed of five senators and five representatives. Her mission is to provide independent and impar-tial
information and specific recommendations to improve the operations of state and local government
entities. To this end, she provides financial audits and accounting services to the state and political
subdivisions and performance audits of state agencies and the programs they administer.
The Joint Legislative Audit Committee
Representative Roberta L. Voss, Chairman
Senator Tom Smith, Vice-Chairman
Representative Robert Burns Senator Keith Bee
Representative Ken Cheuvront Senator Herb Guenther
Representative Andy Nichols Senator Darden Hamilton
Representative Barry Wong Senator Pete Rios
Representative Jeff Groscost Senator Brenda Burns
(ex-officio) (ex-officio)
Audit Staff
Dale Chapman—Manager
and Contact Person (602) 553-0333
Ann Orrico—Team Leader
Kristin Borns—Team Member
Joseph McKersie—Team Member
Copies of the Auditor General’s reports are free.
You may request them by contacting us at:
Office of the Auditor General
2910 N. 44th Street, Suite 410
Phoenix, AZ 85018
(602) 553-0333
Additionally, many of our reports can be found in electronic format at:
www.auditorgen.state.az.us
2910 NORTH 44th STREET • SUITE 410 • PHOENIX, ARIZONA 85018 • (602) 553 -0333 • FAX (602) 553-0051
DEBRA K. DAVENPORT, CPA
AUDITOR GENERAL
STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
September 27, 2000
Members of the Legislature
The Honorable Jane Dee Hull, Governor
Mr. Sheldon Jones, Director
Arizona Department of Agriculture
Transmitted herewith is a report of the Auditor General, A Performance Audit of the
Arizona Department of Agriculture—Pesticide Compliance and Worker Safety
Program. This report is in response to a June 16, 2000, resolution of the Joint Legislative
Audit Committee. The performance audit was conducted as part of the Sunset review
set forth in A.R.S. §41-2951 et seq. I am also transmitting with this report a copy of the
Report Highlights for this audit to provide a quick summary for your convenience.
This is the seventh in a series of reports to be issued on the Arizona Department of
Agriculture.
As outlined in its response, the Department does not agree with our finding that it lacks
sufficient civil penalty authority to enforce state pesticide laws, but indicates it will
implement the recommendations differently. However, the Department’s response
does not provide specifics on how it intends to implement the recommendations. The
Department generally agrees with our finding that it should focus its pesticide
application monitoring efforts on pesticide law violators.
My staff and I will be pleased to discuss or clarify items in the report.
This report will be released to the public on September 28, 2000.
Sincerely,
Debbie Davenport
Auditor General
OFFICE OF THE AUDITOR GENERAL
Program Fact Sheet
Department of Agriculture
Pesticide Compliance and
Worker Safety Program
Services: The Pesticide Compliance and Worker Safety Program provides the following
services: 1) Inspection—Conducts pesticide use, worker safety, and recordkeeping inspections
to ensure compliance with federal and state laws; 2) Enforcement—Ensures compliance with
the State’s agricultural pesticide laws by conducting investigations of alleged agricultural
pesticide law violations on its own initiative or in response to a complaint from the public and
assesses fines and penalties against violators; and 3) Licensing—Licenses, tests, and trains
agricultural pesticide applicators and pest control advisors to ensure competency.
Program Revenue: $880,000
(fiscal year 2000)
$0
$200,000
$400,000
$600,000
$800,000
$1,000,000
1998 1999 2000
Licenses, Permits, Other
Federal Grands
General Fund
Personnel: 10.5 full-time staff (fiscal year 2000)
Inspectors (8)
Administrative (2.5)
Equipment: State vehicles are the pri-mary
equipment used. During fiscal year
2000, the Department leased 13 trucks
through the Arizona Department of Ad-ministration
at an approximate cost to the
program of $14,200.
Facilities:
Program staff is located in three locations:
the State Capitol and two satellite offices in
Tucson and Yuma. The rent for the Tucson
and Yuma offices is paid by the Depart-ment’s
Non-Food Product Quality Assur-ance
program because it uses the same
inspection staff as the Pesticide Compli-ance
and Worker Safety program.
Program Goals: (fiscal year 2000)
1. To provide an overview of inspection
and regulatory measures.
2. To ensure the safety of pesticide
workers and handlers.
3. To protect the public from unlawful
pesticide exposure.
OFFICE OF THE AUDITOR GENERAL
Adequacy of Performance Measures:
Overall, the goals and measures set forth for
the Pesticide Compliance Worker Safety
program are appropriate, and the Depart-ment
has established input, output, outcome,
efficiency, and quality measures for this pro-gram.
However, the Department could make
some improvements to the three program
goals and associated performance measures.1
n The program’s first goal is not needed.
Goal one is defined as providing an over-view
of inspections and regulatory meas-ures.
The performance measures included
in this goal could be expanded and in-cluded
in goals two and three. The De-partment
recognizes the weakness of goal
one and is working to instead develop
more streamlined performance measures
that reflect the unique issues and regula-tory
activities within the Pesticide Com-pliance
and Worker Safety Program.
n The Department does not have sufficient
measures to assess the efficiency of its in-spection
and investigation functions. For
example, the Department has established
efficiency measures, such as the percentage
of actual FTEs compared to allocated FTEs
and the number of days it takes an agricul-tural
employer or other pesticide user to
correct deficiencies. However, the Depart-ment
lacks measures for determining how
efficiently its inspectors are performing the
inspection and investigation functions,
such as the number or types of inspections
and investigations each inspector performs.
The Department is currently re-examining the
performance measures for this program and is
taking steps to eliminate the measures that do not
apply directly to program performance.
1 The Department incorporated its first goal and
associated performance measures in order to
comply with guidelines specified in the Budget
and Planning Instructions for fiscal years 2000
and 2001 issued by the Governor’s Office of Stra-tegic
Planning and Budgeting.
i
OFFICE OF THE AUDITOR GENERAL
SUMMARY
The Office of the Auditor General has conducted a performance
audit of the Arizona Department of Agriculture’s Pesticide
Compliance and Worker Safety Program, pursuant to a June 16,
1999, resolution of the Joint Legislative Audit Committee. This
audit was conducted as part of the Sunset review set forth in
A.R.S. §§41-2951 et seq, and is the seventh in a series of audits
to be conducted on programs within the Arizona Department
of Agriculture.
The Department has been responsible for regulating agricul-tural
pesticides in the State since 1991.1 Regulating pesticides is
important because these potentially toxic substances can dam-age
human health, the environment, and property if not used
properly. To achieve its mission, the Department performs
various activities, including conducting inspections, providing
testing and licensing to ensure pesticide applicators understand
and follow pesticide laws, and conducting complaint investiga-tions.
Department Lacks
Sufficient Civil Penalty Authority
(See pages 11 through 20)
The State’s system for enforcing pesticide laws is greatly limited
in its ability to assess adequate civil penalties against violators.
Although state law gives the Department authority to issue
fines of up to $10,000 for serious violations, the Department’s
rules for implementing this statute define “serious” too nar-rowly,
making it inconsistent with statute and causing virtually
all pesticide misuse violations to be classified as nonserious.
Nonserious violations carry a maximum penalty of $500. Under
the system the Department uses to set the exact amount of fines,
most are less than $150.
1 The Structural Pest Control Commission regulates nonagricultural pesti-cide
use.
Summary
ii
OFFICE OF THE AUDITOR GENERAL
Fines are generally so low that it appears to lessen their effect as
a deterrent. For example, an aerial pesticide applicator was
fined $113 when the spray he was applying to a field drifted
into a canal, contaminating the water and killing a large num-ber
of fish. Seven days later, the same applicator allowed spray
from another field application to drift into a residential area,
killing fish in the ponds of three different residents. His penalty
for a repeat violation was $182. Pesticide regulation agencies in
a number of other states are able to issue much stronger fines
for similar violations. For example, North Dakota assesses, on
average, fines of $400 each for pesticide drift violation that does
not involve human exposure.
To improve the effectiveness of the Department’s enforcement
efforts, the Legislature and the Department should take steps to
strengthen the Department’s civil penalties. Specifically, the
Legislature should consider revising A.R.S. §3-370 to increase
the maximum civil penalty for nonserious violations from $500
to $1,000. Such a revision would provide the Department with
broader fining authority from which to impose adequate fines.
In addition, the Department should expand the definition of a
serious violation as defined by Administrative Rule R3-3-501
and make it consistent with statute. Finally, the Department
should revise its point/penalty system rule (Administrative
Rule R3-3-506) to allow it to consider additional factors, such as
the potential for health effects and environmental or property
damage and the specific law violated, and provide it with the
ability to impose fines that better reflect the violations commit-ted.
Department Should Focus Pesticide
Application Monitoring Efforts
on Pesticide Law Violators
(See pages 21 through 26)
The Department could enhance the effectiveness of its pesticide
application monitoring and regulatory enforcement efforts by
requiring pesticide law violators to notify the Department in ad-vance
of making pesticide applications. Despite its potential use-fulness
as a regulatory tool, the Department has limited oppor-tunity
to monitor pesticide applications. For example, during
Summary
iii
OFFICE OF THE AUDITOR GENERAL
fiscal year 1999, the Department reports that it monitored only 77
of the more than over 26,800 agricultural pesticide applications it
had on record. Several factors make it difficult for the Depart-ment
to monitor more applications. Specifically, the 11 Depart-ment
inspectors assigned to the program spend about 60 percent
of their time ensuring compliance with pesticide laws, including
performing federally mandated worker safety inspections and
routine recordkeeping inspections, while the remaining 40 per-cent
of their time is spent performing inspection activities for the
Department’s Non-Food Product Quality Assurance program. In
addition, many pesticide applications take place outside of nor-mal
working hours, including during the late night or early
morning hours. Finally, the Department is seldom aware of the
time and location of most pesticide applications because applica-tors
are not, for the most part, required to notify the Department
in advance of applications.
Despite the low number of applications monitored by the De-partment,
monitoring pesticide applications can aid the Depart-ment
in its pesticide law compliance efforts in several ways. For
example, monitoring can ensure that pesticides are properly
mixed, loaded, and applied, and give the Department the oppor-tunity
to observe applicators’ practices and take any necessary
corrective action. Monitoring may also promote greater compli-ance
with pesticide laws if applicators are aware that their activi-ties
may be monitored by the Department.
Because it has limited inspection resources and can monitor only
a small percentage of the thousands of pesticide applications
taking place each year, the Department should target its monitor-ing
efforts toward pesticide law violators. Specifically, the De-partment
should require applicators to provide advance notifica-tion
of applications as part of the penalty for committing pesti-cide
law violations.
iv
OFFICE OF THE AUDITOR GENERAL
(This Page Intentionally Left Blank)
v
OFFICE OF THE AUDITOR GENERAL
TABLE OF CONTENTS
Page
Introduction and Background ......................... 1
Finding I: Department Lacks Sufficient
Civil Penalty Authority................................. 11
Background........................................................................... 11
Department’s Fining
Authority Is Insufficient ..................................................... 12
Penalty Structure Results in
Weak Civil Penalties ........................................................... 17
The Legislature and Department
Should Strengthen
Civil Penalty Authority ...................................................... 19
Recommendations............................................................... 20
Finding II: Department Should
Focus Pesticide Application
Monitoring Efforts on
Pesticide Law Violators............................... 21
Background........................................................................... 21
The Department Has Limited
Opportunity to Monitor
Pesticide Applications ........................................................ 22
The Department Should Require
Application Pre-Notification
from Violators ...................................................................... 25
Recommendation................................................................. 26
Agency Response
Table of Contents
vi
OFFICE OF THE AUDITOR GENERAL
TABLE OF CONTENTS (concl’d)
Page
Tables and Figures
Table 1 Arizona Department of Agriculture
Pesticide Compliance and Worker Safety Program
Number of Licenses, Permits,
and Certificates Issued
Year Ended June 30, 2000
(Unaudited).............................................................. 6
Table 2 Arizona Department of Agriculture
Pesticide Compliance and Worker Safety Program
Statement of Revenues, Expenditures, and
Changes in Fund Balance
Years Ended June 30, 1998, 1999, and 2000
(Unaudited).............................................................. 7
Table 3 Arizona Department of Agriculture
Pesticide Compliance and Worker Safety Program
Point System for Administering
Fines and Penalties
As of July 2000......................................................... 13
Table 4 Arizona Department of Agriculture
Pesticide Compliance and Worker Safety Program
Schedule of Fines and Penalties
by Number of Points
As of July 2000......................................................... 14
Figure 1 EPA Worker Protection Standard
Field Posting for Treated Fields........................... 4
Figure 2 Pesticide Law Violation Definitions ................... 12
Photo
Photo 1 Worker wearing protective equipment and
mixing pesticides.................................................... 3
1
OFFICE OF THE AUDITOR GENERAL
INTRODUCTION AND BACKGROUND
The Office of the Auditor General has conducted a performance
audit of the Arizona Department of Agriculture’s Pesticide
Compliance and Worker Safety Program, pursuant to a June 16,
1999, resolution of the Joint Legislative Audit Committee. This
audit was conducted as part of the Sunset review set forth in
A.R.S. §§41-2951 et seq, and is the seventh in a series of audits
to be conducted on programs within the Arizona Department
of Agriculture.
Arizona’s regulation of agricultural pesticides began in 1953
with the creation of the Board of Pest Control Applicators, later
known as the Board of Pesticide Control. The Board’s primary
purpose was to control the use of agricultural pesticides by li-censing
custom applicators (those paid to apply agricultural
pesticides).1 Over the next several years, the Board’s responsi-bilities
were expanded to include the issuance of pesticide use
permits to growers (farmers who use pesticides to produce
crops) and regulating the storage and disposal of pesticides and
pesticide containers. In 1986, the Legislature transferred re-sponsibility
for agricultural pesticide regulation to the Arizona
Commission of Agriculture and Horticulture. However, Laws
1989, Chapter 162 combined the Arizona Commission of Agri-culture
and Horticulture with three other separate state agen-cies
to form the Arizona Department of Agriculture (Depart-ment).
In addition, in 1986, the Legislature gave the Industrial Commis-sion
of Arizona the responsibility of developing and implement-ing
a pesticide worker safety inspection program. However, the
Legislature subsequently passed Laws 1990, Chapter 374, which
transferred responsibility for the worker safety program on to
the Department. Beginning on January 1, 1991, the Department
assumed the responsibility for the State’s pesticide regulation
activities, including worker safety inspections.
1 The Structural Pest Control Commission regulates nonagricultural pesti-cide
use.
Introduction and Background
2
OFFICE OF THE AUDITOR GENERAL
Importance of
Pesticide Regulation
Although pesticides are useful to society because they can kill
potential disease-causing organisms and control insects, weeds,
and other pests, without effective regulation and control, expo-sure
to these potentially toxic substances can result in damage
to human health, property, and the environment. While pesti-cides
can negatively affect the health of the average adult, chil-dren
are potentially more susceptible to the negative effects of
pesticide exposure since their bodily systems are still maturing
and do not provide the same level of protection as an adult’s.
Specifically, a 1993 National Research Council study indicated
that children may be more sensitive or less sensitive than
adults, depending on the pesticide to which they are exposed.1
However, a 2000 U. S. General Accounting Office report deter-mined
that children are at greater risk from pesticide exposure
than most adults because, pound for pound of body weight,
children breathe more and eat more.2 Persons with chemical
sensitivities or chronic respiratory illnesses, such as asthma or
allergies, are also more susceptible to the damaging effects of
pesticide exposure. If used improperly, certain pesticides can
also contaminate soil and water, endanger animals and wildlife,
and damage crops and other property.
Pesticide Regulation
in Arizona
Through the Pesticide Compliance and Worker Safety Program,
the Department seeks to protect public health, agricultural
workers, and the environment by ensuring the proper use and
application of pesticides. The Department carries out this mis-sion
by performing various activities, including conducting
inspections, providing training and testing to ensure pesticide
1 National Research Council. Pesticides in the Diets of Infants and Children.
Washington, D.C: National Academy Press, 1993.
2 United States General Accounting Office. Report to Congressional Re-questers.
Pesticides: Improvements Needed to Ensure the Safety of Farmwork-ers
and Their Children. Washington, D.C.; GAO, March 2000.
Pesticide exposure can result
in damage to human health,
property, and the environ-ment.
Introduction and Background
3
OFFICE OF THE AUDITOR GENERAL
applicators understand pesticide laws, and conducting com-plaint
investigations.
To ensure compliance with state and federal pesticide and
worker protection laws, the Department conducts three types of
inspections:
n Pesticide Use Inspections—During pesticide use inspec-tions,
inspectors monitor pesticide handling, mixing, loading,
storage, disposal, and application. Use inspections are usu-ally
unannounced. During fiscal year 2000, the Department
reports that it conducted 75 pesticide use inspections.
< Worker Safety Inspections—Worker safety inspections
ensure compliance with the Worker Protection Standard. The
Worker Protection Standard, a federal regulation, applies to
Photo 1: Worker wearing protective equipment and mixing pesticides
Source: Virginia Tech, Department of Entomology.
all agricultural employers with employees who perform
hand labor in a variety of settings that are treated with pes-ticides.
The Standard requires training employees who han-dle
pesticides as well as protecting them from exposure and
providing emergency medical attention if necessary. During
a worker safety inspection, inspectors confirm that farm
workers have been properly trained and that employers
Introduction and Background
4
OFFICE OF THE AUDITOR GENERAL
have posted the required information on recent applications
and emergency information in a readily accessible, centrally
located posting area. In addition, inspections ensure that
employers provide adequate protective equipment as well
Figure 1: EPA Worker Protection Stan-dard
Field Posting for Treated
Fields
as a decontamination site no more than a quarter mile from
the workers that is not in a treated area or under restricted
entry. Statute requires worker safety inspections to be un-announced.
During fiscal year 2000, the Department reports
that it conducted 97 worker safety inspections, addressing
nearly 3,700 worker safety issues such as correct posting of
safety information or proper training.
n Recordkeeping Inspections—When conducting record-keeping
inspections of pesticide sellers, pesticide applica-tors,
and growers, the Department reviews paperwork such
as sales and application records, product registrations, and
applicator certifications to ensure completeness and timeli-ness.
For example, inspectors review pesticide applicators’
records to ensure that they have proper records on
Introduction and Background
5
OFFICE OF THE AUDITOR GENERAL
file in accordance with administrative rule requirements.
During fiscal year 2000, the Department reports that it con-ducted
85 recordkeeping inspections.
In addition to conducting inspections, the Department is also
charged with enforcing the State’s pesticide laws by conducting
investigations of alleged pesticide law violations on its own
initiative or through complaints received from the public. If an
investigation confirms a violation, the Department can issue
citations and assess fines and other penalties. In fiscal year 2000,
the Department addressed and closed 91 investigation cases,
including cases involving pesticide misuse, worker safety is-sues,
improper recordkeeping, and illegal sales of pesticides.
(See Finding I, pages 11 through 20, for more information on
the Department’s pesticide enforcement activities.)
Finally, in order to ensure that pesticides are safely handled and
used, the Department issues nine different licenses, permits, or
certificates and tests the competency of private and commercial
pesticide applicators and agricultural pest control advisors.
Specifically, the Department issues permits to allow dealers and
distributors to sell pesticides and growers to purchase and use
pesticides to grow crops. In addition, the Department tests and
licenses custom applicators who are in the business of applying
pesticides for growers as well as agricultural pest control advi-sors
who make pest control recommendations for the control of
pests. The Department also licenses the application equipment
that custom applicators use. Finally, the Department tests and
certifies private and commercial pesticide applicators and certi-fies
government pesticide applicators who apply or supervise
the application of restricted use pesticides. As illustrated in Ta-ble
1 (see page 6), the Department issued a total of 2,856 li-censes,
permits, or certificates during fiscal year 2000.
Pesticide Compliance and
Worker Safety Resources
During fiscal year 2000 and as illustrated in Table 2 (see page 7),
the Department received $489,900 in General Fund monies to
operate the Pesticide Compliance and Worker Safety Program.
The Department also received approximately $252,000 in fed-
Introduction and Background
6
OFFICE OF THE AUDITOR GENERAL
eral monies for the program through a cooperative agreement
with the U.S. Environmental Protection Agency (EPA). In addi-tion,
the Department collected over $137,000 from issuing li-censes
and permits and collecting civil penalties from pesticide
law violators. The Department has allocated 10.5 full-time
equivalent staff (FTE) to the program, including approximately
8 inspector positions located throughout the State and ap-proximately
2.5 administrative positions.
Program Changes
and Improvements
As part of the current audit, concerns identified in the Auditor
General’s 1990 performance audits of the Arizona Commission
of Agriculture and Horticulture’s role in pesticide regulation (see
Auditor General Report No. 90-7) and the Industrial Commis-sion
of Arizona’s role in the worker safety protection program
(see Auditor General Report No. 90-9) were reviewed. While
Table 1
Arizona Department of Agriculture
Pesticide Compliance and Worker Safety Program
Number of Licenses, Permits, and Certificates Issued
Year Ended June 30, 2000
(Unaudited)
Type Number
Seller Permit 206
Regulated Grower Permit 1,267
Agricultural Aircraft Pilot License 66
Custom Applicator License 56
Custom Applicator Equipment License 185
Agricultural Pest Control Advisor License 246
Private Pesticide Applicator Certificate 532
Commercial Applicator Certificate 213
Government Applicator Certificate 85
Total licenses, permits, and certificates 2,856
Source: Auditor General staff analysis of Department of Agriculture li-cense
count for year ended June 30, 2000.
Introduction and Background
7
OFFICE OF THE AUDITOR GENERAL
1998 1999 2000
Revenues:
State General Fund appropriations $492,100 $495,700 $489,900
Federal grants 1 290,519 252,446 252,279
Licenses and permits 118,795 116,350 117,665
Fines and forfeits 14,167 14,954 19,761
Other 348 6 345
Total revenues 915,929 879,456 879,950
Expenditures:
Personal services 436,699 434,332 446,247
Employee related 113,034 109,385 106,984
Professional and outside services 21,044 30,984 48,175
Travel, in-state 50,446 45,379 26,631
Travel, out-of-state 6,034 1,793 2,738
Other operating 96,348 84,247 69,510
Equipment 16,828 7,293 18,968
Total expenditures 740,433 713,413 719,253
Excess or revenues over expenditures 175,496 166,043 160,697
Other financing uses:
Net operating transfers out 42,794 34,765 22,891
Remittances to the State General Fund 133,310 131,310 137,771
Total other financing uses 176,104 166,075 160,662
Excess of revenues in over (under) expenditures
and net transfers out $ (608) $ (32) $ 35
1 Includes monies due from the U.S. Environmental Protection Agency but not collected as of June 30th of each fiscal
year.
Source: The Arizona Financial Accounting System Accounting Event Transaction File for the years ended June 30, 1998,
1999, and 2000.
these reports highlighted several issues, the current audit re-viewed
the Department’s performance relative to the following
critical issues:
n Pesticide Complaint Investigations—The 1990 report
found that, based on a review of 414 complaints of alleged
pesticide law violations, the Arizona Commission of Agri-culture
and Horticulture was reluctant to conduct thorough
Table 2
Arizona Department of Agriculture
Pesticide Compliance and Worker Safety Program
Statement of Revenues, Expenditures, and Changes in Fund Balance
Years Ended June 30, 1998, 1999, and 2000
(Unaudited)
Introduction and Background
8
OFFICE OF THE AUDITOR GENERAL
and timely investigations. Specifically, the report found that
the Commission would not investigate complaints on its
own initiative, failed to fully investigate cases even when
evidence suggested a violation had occurred, and often did
not follow proper investigative protocol. In addition, the re-port
found that some investigations were not resolved in a
timely manner because the Commission failed to issue cita-tions
within a six-month statutory time limit.
The Department’s current manner of investigating cases of
alleged pesticide law violations is very different and repre-sents
a vast improvement from the way these investigations
were handled by the former Commission. First, the De-partment
has developed a comprehensive set of operating
procedures to guide its inspectors and other program staff
in conducting and processing complaint investigations. In
addition, a review of 50 investigative case files from fiscal
years 1998 through 2000 showed that the Department ad-heres
to its operating procedures and that its investigations
were conducted in a thorough manner.
Further, the Department resolves cases within its statutory
time limit. According to statute, the Department must issue
a citation or notice of de minimus violation within six
months after it confirms a violation. All 50 cases reviewed
were resolved within the statutory time limit.
n Worker Safety Inspections—The 1990 Auditor General
report on the Industrial Commission of Arizona’s operation
of the worker safety inspection program found that the In-dustrial
Commission had done little to enforce worker
safety rules and that these rules needed to be strengthened.
Additionally, the Industrial Commission had conducted
few inspections and had not established effective inspection
procedures. The report recommended developing criteria
for determining the number of FTEs needed to conduct
worker safety inspections and strengthening some of the
specific worker safety rules.
Since the 1990 audit, the Environmental Protection Agency
(EPA) has implemented a worker safety program nation-wide.
Arizona’s worker safety law serves to strengthen the
Introduction and Background
9
OFFICE OF THE AUDITOR GENERAL
federal standard by means such as requiring enhanced train-ing.
By adopting EPA criteria, many issues of concern in the
1990 report have been addressed. While Arizona required
posting in fields for certain pesticides prior to the inception of
the federal worker protection standard, the federal standard
now includes this requirement as well as a central posting lo-cation
that lists recent pesticide applications. In addition to
adopting the federal regulations, the Department has also
strengthened its training program and designed inspection
schedules with growing seasons in mind. Currently, the De-partment
has allocated three FTE positions to conduct
worker safety inspections.
Audit Scope
and Methodology
This audit focuses on the Department’s efforts to fulfill its re-sponsibilities
to investigate and resolve cases involving alleged
violation of Arizona’s pesticide laws and conduct inspections
that address agricultural pesticide handling, mixing, loading,
storage, disposal, and application. Several methods were used to
study the issues addressed in this audit, including:
n Reviewing a random sample of 50 investigation cases involv-ing
alleged violations of pesticide laws that were completed
and closed between July 1, 1997 and June 30, 2000, to deter-mine
the thoroughness and timeliness of investigations. The
50-case sample included all 27 complaints initiated by mem-bers
of the public and a sample of 23 of the 146 (16 percent)
Department-initiated complaint cases involving worker
safety and pesticide use issues.
n Reviewing the entire population of 28 complaint cases that
contained disciplinary actions for confirmed pesticide mis-use
violations that were issued between July 1, 1997 and
June 30, 2000, to assess the quality of the Department’s en-forcement
efforts.1
1 The confirmed cases of pesticide misuse identified through this review
include the following acts: pesticide drift; improper pesticide container
disposal; and using a pesticide in a manner contrary to its labeling.
Introduction and Background
10
OFFICE OF THE AUDITOR GENERAL
n Reviewing applicable federal and state statutes and admin-istrative
rules to identify the program’s responsibilities and
authority.
n Contacting 14 states and U.S. Environmental Protection
Agency officials regarding enforcement and pesticide appli-cation,
drift, and container disposal issues.1
n Observing Pesticide Compliance and Worker Safety Pro-gram
inspections to determine the inspection processes for
pesticide use, worker safety, and record inspections.
n Meeting with industry members including representatives
of the Arizona Farm Bureau Federation, the Arizona Cotton
Growers Association, and the Arizona Agricultural Avia-tion
Association to obtain their views on the program. In
addition, Department officials and program staff were also
interviewed.
This report presents findings and recommendations in two ar-eas:
n The Legislature and the Department should take steps to
strengthen the Department’s ability to impose adequate
civil penalties against pesticide law violators; and
n The Department should focus its pesticide application
monitoring efforts on violators of pesticide laws.
This audit was conducted in accordance with governmental
auditing standards.
The Auditor General and staff express appreciation to the Di-rector
and staff of the Department of Agriculture for their coop-eration
and assistance throughout the audit.
1 The following 14 states were contacted because they face pesticide regu-lation
issues similar to Arizona’s: Arkansas, Colorado, Hawaii, Indiana,
Iowa, Kansas, Louisiana, Maryland, Minnesota, New Mexico, North Da-kota,
Oklahoma, Oregon, and Pennsylvania.
11
OFFICE OF THE AUDITOR GENERAL
FINDING I DEPARTMENT LACKS SUFFICIENT
CIVIL PENALTY AUTHORITY
Several aspects of the current enforcement system hinder De-partment
efforts to impose sufficient civil penalties on people
who violate the State’s pesticide laws. The Department’s rules
effectively limit most violations to the category of “nonserious,”
where the maximum penalty is $500, and its system for deter-mining
civil penalties usually keeps the fines considerably be-low
the maximum amount. As a result, most people who com-mit
violations, including such things as killing fish by allowing
pesticide spray to drift into canals and ponds, receive fines of
$150 or less—relatively little deterrent to discourage violators
from breaking pesticide laws. The Department should change
its definition of a “serious” violation and its system for deter-mining
penalty amounts. The Legislature should consider in-creasing
the maximum civil penalty that can be assessed for
nonserious violations.
Background
As part of its activities aimed at ensuring that agricultural pesti-cide
users adhere to state pesticide laws, the Department inves-tigates
complaints of alleged pesticide law violation and issues
citations and letters of warning to confirmed violators. Depend-ing
on the violation’s type and magnitude, the Department can
issue citations in three categories: serious, nonserious, or de
minimus. As illustrated in Figure 2 (see page 12), statute defines
each citation category and establishes maximum fines of
$10,000 for each serious citation and $500 for each nonserious
citation. De minimus citations have no fines attached.
The point/penalty system the Department currently uses as
promulgated in administrative rule by the Arizona Commis-sion
for Agriculture and Horticulture in 1989 specifies a range
of points that may be assessed based on the circumstances for
Finding I
12
OFFICE OF THE AUDITOR GENERAL
Figure 2: Pesticide Law Violation Definitions
<  Serious: A violation that produces a substantial probability that
death or serious physical harm could result. Maximum fine—$10,000.
<  Nonserious: A violation that may have had a direct or immediate
relationship to safety, health, or property damage. Maximum
fine—$500.
<  De minimus: A violation which, although undesirable, has no
direct or immediate relationship to safety, health, or property
damage. No fine.
Source: Arizona Revised Statutes §3-361 and §3-370.
each violation. As shown in Table 3 (see page 13), for example,
a violation that results in the poisoning of workers or the public
can be assessed up to 100 points.
Based on the total number of points assessed, enforcement action
is determined. For example, Table 4 (see page 14) shows that a
nonserious violation with 53 points or less could result in a fine
of $1 to $150, while a violation with 108 or more points could
yield a fine ranging from $301 to $500.
Department’s Fining
Authority Is Insufficient
The Department’s rules and procedures limit its ability to issue
strong civil penalties. Although the Department theoretically can
fine violators up to $10,000, the practical reality is that its rules
and procedures generally prevent it from imposing significant
penalties. These problems with the Department’s enforcement
capabilities have been pointed out before, and while the De-partment
has previously proposed changes to those rules and
procedures, it has not implemented these changes.
Rules, statute, and point system hinder Department’s enforce-ment
abilities—While the Department has the authority to en-force
the State’s pesticide laws, its ability to impose adequate
fines is limited. Specifically:
Finding I
13
OFFICE OF THE AUDITOR GENERAL
Table 3
Arizona Department of Agriculture
Pesticide Compliance and Worker Safety Program
Point System for Administering Fines and Penalties1
As of July 2000
Investigation Finding Category Points
Health Effects
No evidence of human exposure to pesticides 0
Evidence of human exposure but treatment by health care provider not
required 5
Exposure to pesticides that required treatment by a health care provider
but did not result in pesticide intoxification
6 to 10
Exposure to pesticides that required either hospitalization for less than 12
hours or treatment as an outpatient for 5 consecutive days or less by a
health care provider
11 to 30
Exposure to pesticides that required hospitalization for 12 hours or
longer, or treatment as an outpatient, for more than 5 consecutive days by
a health care provider
31 to 60
Exposure to pesticides resulting in death from pesticide intoxification 100
Environmental Consequences and Property Damage
No environmental or property damage 0
Water source contamination 1 to 10
Soil contamination causing economic damage 1 to 10
Nontarget bird kills 1 to 10
Nontarget fish kills 1 to 10
Nontarget kills involving game or furbearing animals 1 to 10
Any property damage 1 to 10
Air contamination causing official evacuation 1 to 10
Killing 1 or more threatened or endangered species 1 to 10
Killing 1 or more domestic animals 1 to 10
Culpability
Points are determined based on whether the violation was unknowingly,
knowingly, or willfully committed 0 to 50
Prior Violations or Citations
Points are determined based on the number of violations committed
within three years from the date of the current violation 0 to 70
Duration of Violation
Points are determined by how long the violator allowed the violation to
continue after being notified by the Department
0 to 40
Wrongfulness of Conduct
Assesses the damage or threat to public health, safety, property, and the
environment 1 to 50
1 Points are used to determine fines and penalties. See Table 4, page 14.
Source: Arizona Administrative Code R3-3-506A, which contains the point/penalty rules that the Department
uses for assigning points to both serious and nonserious violations.
Finding I
14
OFFICE OF THE AUDITOR GENERAL
n Rules define most violations as nonserious—While
statute defines a serious violation as one that produces a
substantial probability that death or serious physical harm
could result, the Department’s rule limits its ability to clas-sify
a violation as serious. The Department’s rule narrows
this definition to include only violations involving human
exposure to highly toxic or restricted use pesticides in a
concentration that causes toxic levels when absorbed
through the mouth or skin. According to this definition, the
Department can classify a violation as serious only if a
person has a severe medical reaction as a result of being
exposed to a highly toxic or restricted use pesticide. Because
the definition for a serious violation in rule does not
Table 4
Arizona Department of Agriculture
Pesticide Compliance and Worker
Safety Program
Schedule of Fines and Penalties
by Number of Points
As of July 2000
Point Total Fine Penalty
Nonserious Violations
ü 53 points or less $1 to $150 1 to 3 months’ probation
ü 54 to 107 points $151 to $300 4 to 6 months’ probation
ü 108 points or more $301 to $500 7 to 12 months’ probation
Serious Violations
ü 46 points or less $1,000 to $2,000 1 to 3 months’ probation
ü 47 to 93 points $2,001 to $5,000 4 to 6 months’ probation
ü 94 points or more $5,001 to $10,000 7 to 12 months’ probation
Source: Arizona Administrative Code R3-3-506B, which contains the
schedule that the Department uses for determining fines and
penalties for both serious and nonserious violations.
Finding I
15
OFFICE OF THE AUDITOR GENERAL
consider the potential for serious harm, which is provided
for in statute, virtually all pesticide misuse violations must
be classified as nonserious.
n Maximum fines for nonserious violation are low—One
difficulty presented by treating so many violations as non-serious
is that the maximum civil penalty for each nonseri-ous
citation issued is $500. This amount is low when com-pared
with the maximum fines provided for in other states.
A survey of agricultural pesticide regulation agencies in
other states revealed that 8 of the 9 states contacted have es-tablished
maximum fines for nonserious or moderate viola-tions
ranging from $1,000 to $5,000 per violation. For exam-ple,
Hawaii may fine commercial pesticide applicators up to
$5,000 for a violation and Maryland may penalize a violator
up to $2,500 for a first violation and up to $5,000 for any
subsequent violations.
n Point system structure hinders ability to issue adequate
civil penalties—The structure of the point/penalty system
that the Department uses further reduces the maximum
fines it is able to impose. For the 21 citations and fines for
pesticide misuse the Department issued from July 1997
through June 2000, the Department assigned points to viola-tors
ranging from 15 to 105 for each violation. Fifteen of the
21 citations received 53 points or less, creating a maximum
fine of $150. The other 6 violations received from 54 to 105
points, creating a maximum fine of $300.
These low point totals and fines result because the
point/penalty system does not allow the Department to as-sign
many points. For example, as illustrated in Table 3 (see
page 13), although the system allows for the assessment of
up to 100 points for violations with health effects, in reality,
unless a person’s exposure to pesticides results in hospitali-zation
for up to a 12-hour period, the Department cannot
assign more than 30 points to the violator. In fact, the De-partment
cannot assign more than 60 points in this category
unless the exposure results in death. Additionally, while the
system allows the Department to assign points for viola-tions
that result in environmental or property damage, the
The maximum fine for a
nonserious violation is
$500.
Finding I
16
OFFICE OF THE AUDITOR GENERAL
Department can assign a maximum of only 10 points for a
violation resulting in air contamination that requires an offi-cial
evacuation.
n System does not consider the specific law violated—
Although the point/penalty system delineates a variety of
factors that must be considered when assessing points to a
violation, it does not consider the specific law that was vio-lated.
Instead, the system assigns penalties based on the
outcome of the violation and not on the violation itself. For
example, if a pesticide drift violation was committed, the
point/penalty system considers the consequences of the
violation and the violator’s conduct, but not the actual viola-tion
itself. Thus, the same point system used to determine
penalties for pesticide drift violations is used to determine
the penalty for failing to maintain the proper pesticide ap-plication
records. Conversely, in Indiana, Maryland, and
Oklahoma, penalties for pesticide law violations are based
on the type of violation committed.
1990 audit report also highlighted weakness of the
point/penalty system—The 1990 Auditor General report of the
State’s pesticide regulation activities also found that the
point/penalty system was a hindrance to effective enforcement,
citing many of the same problems that are identified in the cur-rent
audit. The 1990 report recommended that the
point/penalty system be revised to strengthen enforcement
ability and noted the fact that the point/penalty system does
not adequately address conduct that may have the potential for
harm but did not result in actual harm. In addition, the 1990
report noted that the rule defining serious violations is inconsis-tent
with the statutory definition of a serious violation and is
too limited in scope. The report recommended that rather than
narrowly defining a serious violation, the rule should be re-vised
to comply with statute and provide a nonexclusive list of
acts that are considered serious violations. Finally, the report
raised the concern that the points assigned to violations were
insufficient. The Department indicated that it had proposed
rule changes to the point/penalty system in the past, but it has
not implemented these changes.
A previous Auditor Gen-eral
report identified simi-lar
weaknesses in the
point/penalty system.
Finding I
17
OFFICE OF THE AUDITOR GENERAL
Penalty Structure Results in
Weak Civil Penalties
As a result of its limited civil penalty authority, the Depart-ment’s
enforcement actions against pesticide law violators ap-pear
inadequate. While the Department takes action against
pesticide law violators, it can issue only minimal fines. By con-trast,
several other states, such as Arkansas, Maryland, and
North Dakota, issued stronger penalties for similar pesticide
misuse violations. Additionally, the Department can take much
stronger action for worker safety law violations.
Most fines issued are less than $150—While the Department
confirms violations and issues citations as a result of its investi-gation
activities, the resulting fines in many cases are less than
$300. Of the 21 nonserious pesticide misuse violations with
fines issued between July 1997 and June 2000, the Department
assessed fines ranging from $42 to $294, with 15 of the fines
being less than $150. Typical examples include:
n A man complained to the Department that his vehicle was
sprayed with pesticides as he was driving on an interstate
freeway. In fact, some of the pesticides actually entered his
vehicle through an open window. Using the point/penalty
system, the Department assigned 20 points for the pesticide
drift violation, and issued a nonserious citation to the appli-cator
along with a fine of $57.
n A woman complained to the Department that she was
sprayed with pesticides as an aerial applicator flew over her
home. The Department’s investigation confirmed that a pes-ticide
drift violation had occurred. However, working
within the confines of the point/penalty system, the De-partment
was able to assign only 26 points to the applicator,
resulting in a nonserious citation and a penalty of $74.
n An aerial applicator applying pesticides to a field allowed
some of the pesticides to drift into a nearby canal, contami-nating
the canal water and killing a large number of fish.
The Department assigned him 20 points for the environ-mental
consequences and property damage factor, includ-ing
10 points each for contaminating the canal water and for
Most of the citations the
Department issued had fines
of less than $150.
Finding I
18
OFFICE OF THE AUDITOR GENERAL
killing a large number of fish in the canal. The applicator re-ceived
a total of 40 points, resulting in a nonserious citation
and a penalty of $113.
Seven days later, the applicator once again was applying
pesticides to a field and allowed the pesticides to drift into a
residential area, killing fish in the ponds of three different
residents. For this violation, the Department assigned points
for the prior violation. However, the point system allows
the Department to assign only 20 points for a violation that
is the same/substantially similar to a previous violation
committed by the same applicator. Therefore, this violation
resulted in a total of 65 points for the applicator in addition
to a nonserious violation and a penalty of $182.
Other states issue stronger penalties for pesticide misuse viola-tions—
Although many other states do not assign points, their
penalty systems allow them to assign more significant fines to
pesticide law violators. For example, North Dakota receives
between 40 and 50 complaints of pesticide drift each year and
assesses, on average, fines of $400 each for drift violations that
do not involve human exposure. Further, in 1999, North Dakota
assessed penalties of $2,575 and $4,500 against two individuals
who committed pesticide drift violations that involved possible
human exposure, despite the fact that the human exposure as-pect
of the cases was never proven. Similarly, while Maryland
and Arkansas do not issue fines for a first pesticide drift offense
that does not involve human exposure, Maryland officials
could assess fines ranging from $300 to $1,000 for subsequent
drift violations. Likewise, a second drift offense without human
exposure in Arkansas will result in a penalty of $200 to $600,
with the recommended penalty being $400.
Department can pursue stronger civil penalties for worker
safety violations—The Department’s enforcement authority for
worker safety law violations allows it to assess much stronger
civil penalties. Specifically, the base fines for a violation of the
worker protection laws range from $250 to $500 and can be ad-justed
up or down based on a variety of factors, such as the ef-fect
of the violation on human health, compliance history, and
culpability. For example, the Department issued fines totaling
$960 to a grower for failing to show proof that all agricultural
employees were properly trained to work among pesticides
The Department can assess
stronger civil penalties for
worker safety law violations.
Finding I
19
OFFICE OF THE AUDITOR GENERAL
and for not providing proper equipment, such as soap, single
use towels, coveralls, and emergency eye wash, for workers to
use in case of pesticide contamination.
The Legislature and Department
Should Strengthen
Civil Penalty Authority
In order to improve the effectiveness of the Department’s en-forcement
efforts, the Legislature and the Department should
take steps to strengthen the Department’s civil penalty author-ity.
Specifically:
n The Legislature should consider revising A.R.S. §3-370 to
increase the maximum civil penalty for nonserious viola-tions
from $500 to $1,000. Such a revision would provide the
Department with a broader range from which to establish
adequate fine amounts. In 1998, the Department attempted
to increase the statutory maximum fine for a nonserious vio-lation
from $500 to $1,000. However, the Department’s at-tempts
to make this change were unsuccessful due to strong
industry opposition.
n The Department should expand the definition of a serious
violation as defined by Administrative Rule R3-3-501 to
make it consistent with statute.
n The Department should revise the point/penalty system
rule (Administrative Rule R3-3-506) to allow it to consider
additional factors and provide it with the ability to assign
point totals that better reflect the violations committed. For
example, the Department could revise two of its current
penalty factors, health effects and environmental conse-quences
and property damage, to consider the potential for
health effects or environmental or property damage. Fur-ther,
the Department could add a component that assigns
points for violating the specific pesticide law. In addition,
the Department should revise the point ranges assigned to
the various factors to enable it to assign higher point totals
that better reflect the seriousness of violations committed.
Changes in statute and ad-ministrative
rule are needed
to strengthen the Depart-ment’s
civil penalty author-ity.
Finding I
20
OFFICE OF THE AUDITOR GENERAL
Recommendations
1. The Legislature should consider revising A.R.S. §3-370 to
increase the maximum penalty for nonserious violations of
pesticide laws from $500 to $1,000.
2. The Department should revise Administrative Rule R3-3-
501 to expand the definition of a serious violation and make
it consistent with the statutory definition.
3. The Department should revise the point/penalty system set
forth in Administrative Rule R3-3-506 by:
a. Including additional factors and assigning appropriate
points for (1) the potential for harm; and (2) the specific
violation committed to consider when it determines
penalties for pesticide law violators; and
b. Revising the point ranges for each of the system’s factors
to enable it to assign higher point totals that better reflect
the seriousness of violations committed.
21
OFFICE OF THE AUDITOR GENERAL
FINDING II DEPARTMENT SHOULD
FOCUS PESTICIDE APPLICATION
MONITORING EFFORTS ON
PESTICIDE LAW VIOLATORS
Requiring advance notice of pesticide applications by pesticide
law violators could further improve the Department’s enforce-ment
and monitoring efforts. Although potentially an important
regulatory tool, the Department currently monitors only a very
small percentage of the thousands of pesticide applications tak-ing
place in the State each year and does not focus its monitoring
efforts on persons with prior violations. The Department’s other
pesticide inspection responsibilities, the timing of applications,
and limited pre-notification of pesticide applications prevent it
from efficiently monitoring more applications. However, the
Department could require, as part of its enforcement and moni-toring
efforts, advance notification of pesticide applications from
applicators who have committed pesticide misuse violations,
based on the magnitude of the violation and the applicator’s vio-lation
history.
Background
According to statute, the Department is charged with prescribing
measures to control, monitor, inspect, and govern pesticide use.
Monitoring can ensure the handling, mixing, loading, storage,
disposal, and application of pesticides is conducted according to
established safety requirements. One way of monitoring pesti-cide
use is to be present as pesticides are being prepared and
applied to a crop field. Currently, the Department employs 11
inspectors who spend part of their time conducting pesticide use
inspections, including inspections of the selling, processing, stor-ing,
transporting, handling, and application of pesticides and
disposal of pesticide containers.
The Department has re-sponsibility
to ensure the
proper use of pesticides.
Finding II
22
OFFICE OF THE AUDITOR GENERAL
The Department Has
Limited Opportunity to
Monitor Pesticide Applications
Despite its potential usefulness as a regulatory tool, the Depart-ment
has limited opportunity to monitor pesticide applications.
For example, during fiscal year 1999, the Department only moni-tored
0.3 percent of the more than 26,800 applications it had on
record. Several factors impact the Department’s ability to moni-tor
applications, including the need to perform other inspection
responsibilities, the timing of pesticide applications, and limited
pre-notification of pesticide applications.
Department monitors a small percentage of pesticide applica-tions—
While the Department’s current inspection methods al-low
it to observe many different activities related to pesticide
use, including pesticide handling, mixing, loading, storage, dis-posal,
and application, they provide very few opportunities for
the Department to observe pesticide applications. For example,
the Department reports that it monitored only 77 of the over
26,800 (0.3 percent) agricultural pesticide applications that it had
on record during fiscal year 1999. Additionally, these represent
only the applications reported by custom applicators, persons
who apply pesticides for hire or by aircraft whether for hire or
not, and does not include the many more thousands of applica-tions
that were performed by private applicators who are not
required to report their application activities. According to the
Department’s administrative rules, custom applicators must no-tify
the Department of every pesticide application they perform.
While the Department does not know the number of applica-tions
made by private applicators, who are typically growers or
employees of growers applying pesticides to the grower’s own
crops, the Department reports that during fiscal year 2000, there
were 532 individuals certified as private applicators.
Despite the low number of applications monitored by the De-partment,
monitoring pesticide applications can aid the Depart-ment
in its pesticide law compliance efforts in several ways. First,
monitoring can ensure that pesticides are properly mixed,
loaded, and applied, especially during applications that can pre-sent
increased risk to human health and the environment. Spe-cifically,
pesticide drift, a condition that exists when pesticides
drift away from their intended target, can result from an im-
The Department monitored
only 77 of the over 26,800
pesticide applications that
took place during fiscal y ear
1999.
Monitoring pesticide appli-cations
can assist the De-partment
in its pesticide law
compliance efforts.
Finding II
23
OFFICE OF THE AUDITOR GENERAL
proper pesticide application and can potentially harm people,
animals, and the environment. Second, although few violations
may occur if an applicator is aware that inspectors are monitor-ing
the application, it gives the Department the opportunity to
observe applicators’ actual practices and see that corrective ac-tion
is taken if needed. This could be especially important for
applicators with violation histories as monitoring would provide
the Department with the opportunity to ensure compliance with
pesticide laws. Finally, monitoring could have a deterrent effect
because applicators may be less likely to violate pesticide laws if
they know that their activities may be monitored by the Depart-ment.
Several factors impact Department’s ability to monitor—
According to the Department, it does not monitor more pesticide
applications for several reasons, including:
n Other Inspection Responsibilities—The Department has
other inspection responsibilities in addition to its pesticide
application monitoring duties. The Department has assigned
11 inspectors who spend approximately 60 percent of their
time ensuring compliance with pesticide laws by conducting
pesticide use inspections as well as federally mandated
worker safety and routine recordkeeping inspections. Fur-ther,
these same inspectors must spend about 40 percent of
their time performing inspection activities for the Non-Food
Product Quality Assurance Program, where they collect
samples of feed, fertilizers, pesticides, and seeds at retail
stores throughout the State for testing to ensure the accuracy
of label statements and product guarantees. Therefore, it
would be difficult for them to effectively and efficiently
monitor more than a small percentage of the thousands of
pesticide applications taking place within the State each year.
n Timing of Applications—Many applications take place in
the early morning or late night hours because the cooler tem-peratures
and decreased air movement minimize the possi-bility
of drift. While the Department has occasionally moni-tored
applications during these times, the Department typi-cally
monitors pesticide use activities between the normal
working hours of approximately 7:00 a.m. and 5:00 p.m.
Finding II
24
OFFICE OF THE AUDITOR GENERAL
n Limited Pre-Notification of Applications—The Department
is seldom aware of the exact time or location of most pesti-cide
applications. As noted above, custom applicators must
notify the Department of the applications they perform, but
only after the application has already occurred. As a result,
Department inspectors will usually monitor pesticide appli-cations
while in-transit to other inspection responsibilities if
they observe applications occurring. While this allows the
Department to conduct unannounced inspections, without
knowing the place and time of an application, inspectors in-frequently
encounter applications.
While the Department is not typically notified in advance of the
time and location of pesticide applications, there are two in-stances
in which applicators are required to notify the Depart-ment
prior to applying pesticides.
n According to statute, applicators are to make every reason-able
effort to notify the Department at least 24 hours in ad-vance
of making an aerial application within a pesticide
management area (PMA), which is typically an urban area
adjacent to farmlands with a history of concerns regarding
aerial pesticide applications. During fiscal year 1999, the De-partment
reports that it received advance notice of 28 appli-cations
occurring within the State’s one active PMA and
monitored 22 of these applications.1
n The Department’s administrative rules require that the De-partment
be notified at least 24 hours in advance of the exact
time, date, and location of an application of experimental use
pesticides, which are pesticides that are applied to gather the
information and data necessary for registering the pesticide.
During fiscal year 1999, the Department reports that it re-ceived
advance notice of 7 experimental use pesticide appli-cations
and monitored 4 of these applications.
1 Statute gives the Department’s Director authority to designate an area as
a PMA, based on specific statutory criteria. Currently, the State has one
PMA located in the farming area adjacent to the community of Marana.
Historically, Arizona had additional PMAs, including some in Maricopa
County, but these areas no longer meet the definition of a PMA.
The Department receives
advance notice of two
specific types of pesticide
applications.
Finding II
25
OFFICE OF THE AUDITOR GENERAL
The 35 advance notices received during fiscal year 1999 repre-sent
a small fraction of the thousands of applications that took
place during that fiscal year.
In addition to receiving mandated advance notice of certain
types of pesticide applications, the Department occasionally re-ceives
voluntary requests for application monitoring to validate
the applicators’ practices. Specifically, during fiscal year 1999, the
Department received four voluntary requests for monitoring
from applicators and chose to monitor one of these applications.
The Department Should Require
Application Pre-Notification from Violators
Because it has limited inspection resources and can only monitor
a small percentage of pesticide applications taking place each
year, the Department should target its monitoring efforts toward
those applicators with violation histories. To make this monitor-ing
feasible, the Department should require, as part of its en-forcement
efforts, advance notification of pesticide applications
from custom and private applicators who have committed pesti-cide
use violations, such as pesticide drift violations. Currently,
the Department reports that 14 of the 56 custom applicators li-censed
by the Department and 18 of the 532 private applicators
certified by the Department have been cited for violations as a
result of their application activities during the past three fiscal
years.
The Department could require custom and private applicators to
provide advance notification of applications as part of the pen-alty
for committing a pesticide use violation. The Arizona Struc-tural
Pest Control Commission requires violators of structural
pesticide laws to provide advance notice of all termite pretreat-ments
for a specific time period. Additionally, the Department
should consider the magnitude of the violation committed in
addition to the applicator’s violation history when determining
the length of time the applicator will need to provide advance
notice of applications.
To better focus its limited
inspection resources on pes-ticide
law compliance, the
Department should target its
monitoring efforts toward
violators.
Finding II
26
OFFICE OF THE AUDITOR GENERAL
Recommendation
1. The Department should require, as part of its enforce-ment
penalties, custom and private applicators who
commit violations to provide advance notice of pesticide
applications for a specified period of time, based on the
magnitude of the violation committed and the applica-tor’s
violation history.
OFFICE OF THE AUDITOR GENERAL
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OFFICE OF THE AUDITOR GENERAL
Agency Response
OFFICE OF THE AUDITOR GENERAL
(This Page Intentionally Left Blank)
September 7, 2000
The Honorable Debra K. Davenport
Auditor General
Office of the Auditor General
2910 North 44th Street, Suite 410
Phoenix, Arizona 85018
Dear Ms. Davenport:
Enclosed is the Arizona Department of Agriculture’s response to the Pesticide Compliance &
Worker Safety audit.
The Department is pleased to accept the report’s recognition of the numerous improvements that
have been made to this program since it was last audited in 1990 as part of the Agriculture and
Horticulture Commission. Further, the Department has already begun to identify ways to
improve further upon the issues documented in your report and has begun implementing the
recommendations where agreed.
We extend our appreciation to the audit team for their professionalism and attention to detail. I
certainly appreciate their willingness to seek out the Department’s input and clarification of
issues identified in this report.
Sincerely,
Sheldon R. Jones
Director
OVERVIEW
The Arizona Department of would like to thank the Auditor General’s staff for the
professional manner in which the audit was performed.
We believe the ADA, while it continues to identify methods of improving its delivery of
service to Arizona’s growing agricultural industry and the public as a whole, is a good
example of how government should strive to work. We take very seriously our mission
and our charge to regulate and support Arizona agriculture in manner that promotes
farming, ranching and agribusiness while protecting consumers and natural resources.
While this cabinet level agency was created only ten years ago, to serve and regulate
Arizona’s agriculture industry, a number of things have and continue to change about the
industry we serve. Foremost is the changing face of our customers, which reflects the
industry as a whole. Arizona is internationally renowned for its diverse agricultural
production. From artichokes to cattle, cotton and citrus to shrimp and watermelons,
Arizona is continuously increasing its agricultural diversity. It is entirely fascinating to
observe the customers that call on us every day. The ADA is constantly asked to service
more than the program crops of wheat, cattle, cotton and dairy. Ten years ago, the
aquaculture, ratite, custom slaughter, wine and massive nursery industry did not exist as
they do today. Because of the changing face of our customers and the public’s demands
for faster, more efficient service, the ADA recognizes more must be done to meet the
challenges we face today and those we will face in the future.
The Department appreciates the attention the Auditor General’s staff has paid to the
unique responsibilities and critical functions of the Pesticide Compliance and Worker
Safety Program. As the report highlights, the program has made significant
improvements to its delivery of service to both the regulated industry and the public as a
whole since your office last audited the program in 1990. The report fails to mention the
synergy between the Pesticide Compliance and Worker Safety program and the
Department’s compliance assistance efforts in its Agricultural Consultation and Training
program. While entirely separate and each maintaining the confidentiality of their
involvement with the regulated industry, the two programs both provide education and
compliance training to Arizona’s agriculture industry. By focusing much of its efforts on
educating the agriculture industry about state and federal laws governing chemical
labeling, applications, and use, the Arizona Department of Agriculture ensures the
protection of the public, environment and viability of this state’s agriculture industries.
While this is of course a positive investment of resources, the Department believes that a
regulatory program to consistently enforce Arizona’s pesticide regulations provides both
the public and the industry with a high level of service. As such, the Department is open
to further exploring the report’s findings and recommendations as warranted.
The findings and recommendations of this report will be incorporated into our
discussions with other state agencies and other agency stakeholders to further refine the
system for meeting the dynamic and ever changing needs of Arizona’s agriculture
industry and the public at large.
While the Department intends to incorporate the findings and recommendations of this
report with its stakeholders, it is important to note that caution should be exercised to not
make presumptions about agricultural pesticide use (or potential misuse) that is
inconsistent with practices in 2000.
Today’s agricultural pesticides are specific as to labeling, use, and manner of handling.
They are highly regulated, expensive products, and the United States has a whole
generation of growers who are responsible, trained and licensed in appropriate use.
Government cannot always be on site with each chemical use. Therefore, the
manufacturers, science and government have formed processes where education, testing
and licensing are of the utmost importance.
Arizona has a generation of growers who are responsive and responsible to economics,
safety and the environment. They must balance economic realities and production
efficiencies with social and environmental issues. This balance has been demonstrated
over countless applications of appropriate pesticide use.
The audit function or check and balance of enforcement must be viewed within a broad
context of training and awareness, and the statistics continue to bear out responsible and
voluntary compliance. Regulation and compliance are broad-based processes and it
would be inappropriate to take specific violation incidents and generalize about industry
practices as a whole. Rules and regulations are also a collaborative process which must
be based upon need and good peer review science, and it would be unfair to base risk
assessments on undocumented fear or presumptions as to the attitudes and positions of
one industry over another.
When violations occur, one must consider intent, resulting damages and remedies that
may preclude further incidents. There is no evidence to suggest that simply increasing
fines is more appropriate than more education or exercise of better care.
The analogy is often made to traffic enforcement. Under the most diligent enforcement
efforts, a certain percentage of drivers are willfully going to disobey. This analogy is
flawed for the present topic. Automobile drivers will often assume they are above the
law, or do not consider their actions as having consequences. The agricultural community
is much less isolated from consequences. They are accustomed to detailed regulation and
their livelihoods are wrapped into their consciousness and behavior. Ask any grower – if
they can avoid pesticide applications, they will. Ask any Arizona cotton grower, who has
been able to dramatically curtail pesticide use with other technologies. Alternatives are
becoming available because of the commitment Arizona’s producers have to their
communities, their environment, and the consuming public.
To be certain, violators must be properly classed as to the level of offense and
seriousness, and the tools of enforcement need to be able to match the infraction.
Regulation must have integrity, but it must also have context.
Pesticides are used everyday at our businesses, our homes, in our playing fields and in
commercial agriculture. Serious readers of this audit need to bear this in mind. Today’s
agricultural pesticide use is perhaps the most highly regulated and watched of all of these
areas. Again, modern Arizona agriculture is responsible and responsive and only the
uninformed would suggest they are obstructionist or out of step with mainstream science
and needs to protect the public and the environment.
The auditors do point out the view that fines for offenses should be increased and that
violators should have to make advance reports of their applications. These are issues
worthy of further public debate and the Department is willing to sponsor future
discussions through the revision of its existing rules. As important was the Auditor
General’s finding that our current investigation results are comprehensive, thorough and
timely. Further, they give credit to strengthened training programs and to worker safety,
far greater than previous audit findings. Credit in these areas should also be given to the
Arizona’s modern agriculture leadership.
Finding I: The Department Lacks Sufficient Civil Penalty Authority
Recommendation: The Legislature should consider revising A.R.S. §3-370 to increase
the maximum penalty for nonserious violations of pesticide laws
from $500 to $1,000.
Agency Response: The finding of the Auditor General is not agreed to but the
recommendation will be implemented consistent with legislative
mandate.
Agency Explanation:The Department concedes that its penalty authority is more limited
than those of other states. But, it is the contention of this
Department that monetary penalties are only one type of
enforcement tool available for monitoring and ensuring
compliance of the state’s pesticide laws. In fact, the Department
has developed numerous opportunities for the regulated industries
to become educated in the various provisions of the law and strives
to provide compliance assistance where responsible, which is
evidenced by the relatively low number of pesticide violations in
Arizona.
Recommendation II: The Department should revise Administrative Rule R3-3-501 to
expand the definition of a serious violation and make it consistent
with the statutory definition.
Agency Response: The finding of the Auditor General is not agreed to but a
different method of dealing with the recommendation will be
implemented.
Agency Explanation:The Department is actively developing proposed changes to
Administrative Rule R3-3-501 to make the definition of serious
violation consistent with the statutory definition.
Recommendation III:The Department should revise the point/penalty system set forth in
Administrative Rule R3-3-506 by:
a. Including additional factors and assigning appropriate
points for (1) the potential for harm; and (2) the specific
violation committed to consider when it determines
penalties for pesticide law violators; and
b. Revising the point ranges for each of the system’s factors
to enable it to assign higher point totals that better reflect
the seriousness of violations committed.
Agency Response: The finding of the Auditor General is not agreed to but a
different method of dealing with the recommendation will be
implemented.
Agency Explanation:As was stated in the agency’s explanation of its response to
Recommendation II above, the Department has initiated a review
of its Administrative Rules and, as such, is prepared to review the
sufficiency of the point/penalty matrix described in this report.
However, while the Department is pursuing revision of its
Administrative Rules, it is critical to note that the Department does
not concur with the audit recommendation’s assessment of the
manner in which penalties and violations are determined and
classified. Any changes to the rule will be based upon empirical
knowledge of chemical management, appropriate risk assessment,
and good peer review science.
Finding II: Department Should Focus Pesticide Application Monitoring
Efforts on Pesticide Law Violators
Recommendation: The Department should require, as part of its enforcement
penalties, custom and private applicators who commit violations to
provide advance notice of pesticide applications for a specified
period of time, based on the magnitude of the violation committed
and the applicator’s violation history.
Agency Response: The finding of the Auditor General is agreed to and a different
method of dealing with the recommendation will be implemented.
Agency Explanation:The Department believes there is value to pre-application
notification requirements in certain situations. For example, the
Department believes it is responsible to institute such requirements
as a condition in negotiated settlements or as a consequence of
repeated violations. One must also distinguish between levels of
violation or infraction. Certainly not all levels of infraction would
warrant a “pre-requirement” notice of pesticide application. At the
same time, one must keep in mind the underlying premise of
licensing, regulation and compliance as it applies to any type of
pesticide application, whether it is agricultural in nature or not; i.e.
government cannot be at all places at all times, nor should it be.
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