PERFORMANCE AUDIT
PESTICIDE REGULATION
PROGRAMWIDE ISSUES
Report to the Arizona Legislature
By the Auditor General
November 1990
90- 6
DOUGLAS R. NORTON, CPB
I) VDITOR GENE91\ L
STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
DEBRA K. DAVENPORT. CPA
DEPUTY IUOITO# Z GENERAL
November 30, 1990
Members of the Legislature
State of Arizona
The Honorable Rose Mofford
Governor of the State of Arizona
Transmitted herewith is a report of the Auditor General, A Performance
Audit of Pesticide Regulation: Programwide Issues. This report i s the
f i r s t in a series of f i v e reports on Pesticide regulation and i s in
response to Chapter 162, Section 7, of the 1989 Session Laws.
The report contains our conclusions regarding the general state of
Pesticide regulation in Arizona. Our overall conclusion i s that Arizona
generally has good pesticide laws, but weak enforcement programs. The
greatest single need appears to be a greater commitment to enforcement on
the part of some agencies responsible for implementing the laws.
This report also contains information developed in response to specific
requirements of Chapter 162, Section 7, of the 1989 Session Laws. This
information ranges from a review of pesticide regulation i n a l l 50
states, to the most comprehensive information yet developed regarding the
amount and types of pesticides applied in Arizona.
My s t a f f and I w i l l be pleased to discuss or c l a r i f y items i n the report.
Sincerely,
DRN : l mn
STAFF: William Thomson Shan D. Hays
Peter N. Francis George A. Anderson
Arthur E. Heikki la Margaret M. Jackson
Jerome E. Mi l ler Ned E. Parrish
Dennis B. Murphy Leonard 6. Wojciechowicz
Lucinda A. Trimble
2910 NORTH 447M STREET = SUITE ill 0 . PHOENIX, ARIZONA 85018 . ( 602) 553- 0333 . FAX ( 602) 553- 0051
TABLE OF CONTENTS
INTRODUCTION AND BACKGROUND. . . . . . . . . . . . . . . .
FINDING: ALTHOUGH ARIZONA HAS INSTITUTED
SOME OF THE MOST PROGRESSIVE PESTICIDE
REGULATORY PROGfWS IN THE NATION,
IMPLEMENTATION HAS BEEN LESS
THAN SATISFACTORY. . . . . . . . . . . . . . . . . . .
Arizona Has Progressive
Pesticide Programs . . . . . . . . . . . . . . . . . .
UPrnosgaratims faImctpolerym e. nt. at. ion. . . . . . . . . . . . . . . . .
Current Regulatory
Structure S u f f i c i e n t . . . . . . . . . . . . . . . . .
Needed: A Commitment
To Enforcement . . . . . . . . . . . . . . . . . . . .
Recommendation . . . . . . . . . . . . . . . . . . . .
DATA DEVELOPED IN RESPONSE TO THE
REQUIREMENTS OF CHAPTER 162
SECTION 7, 1989 SESSION LAWS
Pesticide Regulation
In The F i f t y States. . . . . . . . . . . . . . . . . .
Quantity And Quality Of Pesticides Used In Arizona. . . . . . . . . . . . . . . . . . . .
Review Of Professional And
Academic Proposals . . . . . . . . . . . . . . . . . .
Pesticide- Related Incidents And
Accidents Reported To
State Agencies . . . . . . . . . . . . . . . . . . . .
AGENCY RESPONSES
APPENDICES
APPENDIX I Quantity And Quality Of Pesticides
Used In Arizona
APPENDIX I1 Bibliography And Contacts
APPENDIX I l l Survey: Pesticide Regulation
In The F i f t y States
LIST OF TABLES
TABLE 1 Arizona Commission Of Agriculture And Horticulture,
Department Of Health Services, And
Industrial Commission Of Arizona
Estimated Expenditures And FTEs
Fiscal Years 1987- 88, 1988- 89, And 1989- 90
( Unaudited) . . . . . . . . . . . . . . . . . . . 2
TABLE 2 1989 Agricultural Pesticide Use
In Arizona As Calculated From
Form 1080And Seller Data . . . . . . . . . . . . 23
TABLE 3 Agricultural Pesticide- Related
lncidents And Accidents Reported
To State Agencies
8/ 13/ 86- 6/ 30/ 89 . . . . . . . . . . . . . . . . . 32
TABLE 4 Pesticide- Related lncidents And
Accidents Reported To The Arizona
Commission Of Agriculture And Horticulture
By Fiscal Year. . . . . . . . . . . . . . . . . . 34
INTRODUCTION AND BACKGROUND
The O f f i c e o f the Auditor General has conducted a performance audit of
the a g r i c u l t u r a l p e s t i c i d e r e g u l a t o r y f u n c t i o n of four State agencies:
the Arizona Commission of A g r i c u l t u r e and H o r t i c u l t u r e ( ACAH), the
Department o f Environmental Q u a l i t y ( DEQ), the I n d u s t r i a l Commission of
Arizona ( ICA), and the Department of Health Services ( DHS). This
performance audit was conducted i n response to the requirements of
Chapter 162, Section 7, of the 1989 Session Laws. This report on
programwide issues i s one of f i v e reports prepared as a r e s u l t of t h i s
a u d i t .
Pesticide Regulation
In Arizona
The 1986 Environmental Q u a l i t y Act designated four State agencies, ACAH,
DEQ, DHS, and ICA t o share a g r i c u l t u r a l p e s t i c i d e regulatory
r e s p o n s i b i l i t i e s i n Arizona. These d i v i s i o n s of r e s p o n s i b i l i t i e s among
agencies i s t y p i c a l o f a m a j o r i t y of other s t a t e s .
ACAH r e g i s t e r s pesticides for use i n the State, licenses a g r i c u l t u r a l
p e s t i c i d e users, and enforces the regulations governing against the
improper use of p e s t i c i d e s . ACAH shares r e s p o n s i b i l i t y w i t h the
U n i v e r s i t y of Arizona Cooperative Extension Service for implementing
Integrated Pest Management Programs to reduce the use o f p e s t i c i d e s .
DEQ monitors for the presence of pesticides i n the environment and i s
responsible for overseeing remediation of pesticide- contaminated
s i t e s . DEQ also determines the p o t e n t i a l of p e s t i c i d e s t o leach i n t o
ground water. I f c e r t a i n pesticides are found to leach, DEQ has the
a u t h o r i t y t o ban t h e i r use i n Arizona. DEQ shares the r e s p o n s i b i l i t y
for p e s t i c i d e container disposal w i t h ACAH.
DHS investigates p e s t i c i d e poisoning and maintains a r e g i s t r y of
these poisonings. DHS i s also responsible f o r informing healthcare
professionals about how to b e t t e r recognize p e s t i c i d e poisoning. DHS
establishes tolerances f o r p e s t i c i d e residue i n food and has
a u t h o r i t y to embargo food containing p e s t i c i d e s above tolerance
l e v e l s .
U n t i l January 1, 1991, ICA w i l l be responsible f o r i n v e s t i g a t i n g and
enforcing p e s t i c i d e - r e l a t e d worker safety laws. The new Department
o f A g r i c u l t u r e w i l l then assume these r e s p o n s i b i l i t i e s , i n c l u d i n g the
enforcing of those laws r e l a t i n g to the n o t i f i c a t i o n and posting of
p e s t i c i d e a p p l i c a t i o n s , determining when workers can reenter f i e l d s ,
providing workers w i t h washing f a c i l i t i e s , and t r a i n i n g employees on
safe handling of p e s t i c i d e s .
Staffing And Budget
For f i s c a l year 1989- 90, approximately $ 4,829,000 and 21 Full- Time
Equivalent ( FTE) employees were a l l o c a t e d to perform p e s t i c i d e regulatory
functions i n the three of the four State agencies a u d i t e d . ( ' ) Funding
f o r p e s t i c i d e r e g u l a t i o n i s obtained from several sources i n c l u d i n g the
General Fund, Federal funds, and special funds established for s p e c i f i c
programs or purposes. An example of a special fund i s the B o l l Weevil
Eradication Program ( BOWEP) that i s funded by growers through a cotton
bale surcharge. The f o l l o w i n g Table l i s t s s t a f f i n g and budget
information for three of the four State agencies.
TABLE 1
ARIZONA COMMISSION OF AGRICULTURE AND HORTICULTURE,
DEPARTMENT OF HEALTH SERVICES, AND
INDUSTRIAL COMMISSION OF ARIZONA
ESTIMATED EXPENDITURES AND FTEs
FISCAL YEARS 1987- 88, 1988- 89, AND 1989- 90
( Unaudited)
Agency Expenditures 3 , Expenditures FTEs
ACAH $ 670,148 18.2 $ 730,500 18.5
BOWEP 3,211 ,987 ( a ) 4,668,784
DHS 51 ,595 2.0 61 ,390 2.0
DEQ N/ A N/ A N/ A N/ A
Expend i t u res 3
TOTAL $ 3,958.674 $ 5,498,165 U $ 4,828.756 21.1
( a ) The BOWEP Program employs approximately 35 f u l l - t i m e s t a f f and 85 s t a f f t h a t work 9 to
10 months per year.
( b) I C A Expenditures are estimates based on I C A c a l c u l a t i o n s .
Source: Arizona Commission of A g r i c u l t u r e and H o r t i c u l t u r e , Department
of Health Services, and I n d u s t r i a l Commission of Arizona
estimates of p e s t i c i d e - r e l a t e d expenditures and FTEs.
( 1 ) DEQ stated t h a t they were unable t o provide Pesticide- Related Expenditures and FTEs
because o f accounting system problems.
Audit Scope
The scope of t h i s a u d i t was defined by Chapter 162, Section 7, of the
1989 Session Laws. Chapter 162 required t h a t several s p e c i f i c items be
addressed. These s p e c i f i c items are as f o l l o w s :
" A . The a u d i t o r general s h a l l conduct a performance review a u d i t
during the 1989- 1990 f i s c a l year of the p e s t i c i d e r e g u l a t o r y
program established by t h i s act under t h e Arizona commission of
a g r i c u l t u r e and h o r t i c u l t u r e , the i n d u s t r i a l commission, the
department of h e a l t h services and the department of
environmental q u a l i t y . The review s h a l l i n c l u d e :
1. A performance a u d i t , as defined i n s e c t i o n 41- 1279, Arizona
Revised S t a t u t e s .
2. Review of s t a t u t o r y and a d m i n i s t r a t i v e p e s t i c i d e r e g u l a t o r y
programs i n other s t a t e s .
3. Proposals for p e s t i c i d e r e g u l a t i o n described i n
professional and academic p u b l i c a t i o n s .
4. A q u a n t i t a t i v e and q u a l i t a t i v e report of p e s t i c i d e use i n
t h i s s t a t e .
5. A compilation of p e s t i c i d e r e l a t e d i n c i d e n t s and accidents
reported to the various s t a t e agencies from the e f f e c t i v e
date of t h i s act through June 30, 1989.
6. S p e c i f i c recommendations for s t a t u t o r y and a d m i n i s t r a t i v e
changes to improve p e s t i c i d e r e g u l a t i o n i n t h i s s t a t e ,
considering economic, environmental and p u b l i c h e a l t h and
s a f e t y f a c t o r s .
B. The report shal l be completed and presented to the governor and
l e g i s l a t u r e not l a t e r than November 30, 1990."
As d i r e c t e d , t h i s report focuses on a g r i c u l t u r a l p e s t i c i d e r e g u l a t o r y
programs. However, there i s s i g n i f i c a n t p e s t i c i d e use i n the State t h a t
i s not overseen by any of the four agencies we audited. I t i s estimated
that 75 percent of a l l p e s t i c i d e s used i n Arizona are r e l a t e d to
a g r i c u l t u r e . These p e s t i c i d e s were the basis of our work. The remaining
25 percent are used for other purposes such as s t r u c t u r a l b u i l d i n g pest
c o n t r o l , government, and homeowner use. The use of p e s t i c i d e s to p r o t e c t
b u i l d i n g s and grounds i s regulated by t h e Arizona S t r u c t u r a l Pest Control
Board. The use of p e s t i c i d e s on Indian lands i s regulated d i r e c t l y by
the Environmental Protection Agency. The use of p e s t i c i d e s by homeowners
i s v i r t u a l l y unregulated.
Organization of Reports
Because of the volume of Findings we present, we have organized our work
i n t o f i v e r e p o r t s , a r e p o r t on programwide issues, and a report f o r each
of the four agencies audited. This report on programwide issues
contains one Finding and sections addressing four of the s i x s p e c i f i c
s t a t u t o r y requirements for the a u d i t . The other two requirements
( performance a u d i t s of each agency and recommendations f o r s t a t u t o r y and
rules changes) are addressed i n the agency r e p o r t s .
Acknowledgements
During the a u d i t we contacted l i t e r a l l y hundreds of people and
organizations, both p u b l i c and p r i v a t e . Their cooperation and assistance
was invaluable, and we express a p p r e c i a t i o n to them. We also express
appreciation to the Commissioners, D i r e c t o r s , and s t a f f of the Arizona
Commission of A g r i c u l t u r e and H o r t i c u l t u r e , the Department of
Environmental Q u a l i t y , the I n d u s t r i a l Commission of Arizona, and the
Department of Health Services for t h e i r cooperation and assistance during
the a u d i t .
FINDING
ALTHOUGH ARIZONA HAS INSTITUTED SOME OF THE
MOST PROGRESSIVE PESTICIDE REGULATORY PROGRAMS
IN THE NATION, IMPLEMENTATION
HAS BEEN LESS THAN SATISFACTORY
We found Arizona's p e s t i c i d e laws are some of the most progressive i n the
United States. However, these laws have not been e f f e c t i v e l y implemented
and enforced. This lack of enforcement appears to have less to do w i t h
the way the program i s structured, than i t does w i t h a weak commitment to
enforcement on the part of some of the agencies responsible for
implementing the laws.
Arizona Has Progressive
Pesticide Programs
With the passage of the Environmental Q u a l i t y Act ( EQA) i n 1986, the
Legislature i n s t i t u t e d some of the most progressive p e s t i c i d e regulatory
laws in the nation. The EQA reorganized the S t a t e ' s p e s t i c i d e regulatory
s t r u c t u r e and added several innovative programs that compare very
favorably w i t h those of other s t a t e s .
Environmental Quality Act required major regulatory reorganization - The
1986 EQA r e b u i l t Arizona's p e s t i c i d e regulatory s t r u c t u r e . The Act
eliminated the Board of Pesticide Control and t r a n s f e r r e d most of the
r e s p o n s i b i l i t y f o r the S t a t e ' s a g r i c u l t u r a l p e s t i c i d e regulatory
functions to the Arizona Commission of A g r i c u l t u r e and H o r t i c u l t u r e
( ACAH). Environmentally related p e s t i c i d e regulatory r e s p o n s i b i l i t i e s
previously assumed by the Departmere of Health Services ( DHS) were
shi fted to the new Department of Envl ronmental Qual i t y ( DEQ) , which was
also created by the EQA. Although released from environmental regulatory
d u t i e s , DHS was given the regulatory r e s p o n s i b i l i t y of developing a
system f o r r e p o r t i n g and preventing p e s t i c i d e poisoning. F i n a l l y , the
EQA transferred the worker safety r e s p o n s i b i l i t i e s of the Board of
Pesticide Control to the I n d u s t r i a l Commission of Arizona and established
a P e s t i c i d e Worker Safety Inspection Program w i t h i n the Commission.
Several innovative programs created by EQA - The EQA not only reorganized
Arizona's p e s t i c i d e regulatory s t r u c t u r e , but also added several new
programs. New program features for each agency are l i s t e d below.
DEQ Pesticide Contamination Prevention Program - DEQ i s required to
i d e n t i f y p e s t i c i c ~ s having the p o t e n t i a l t o pol l u t e ground water and
also to monitor s o i l and water i n a g r i c u l t u r a l areas to determine the
presence of s p e c i f i c p e s t i c i d e s . I f c e r t a i n pesticides are found i n
ground water, DEQ has the a u t h o r i t y t o p r o h i b i t t h e i r use i n
Arizona. Arizona and C a l i f o r n i a are the only s t a t e s that have
i n s t i t u t e d comprehensive programs to determine the e f f e c t o f
pesticides on ground water.
DEQ Water Q u a l i t y Monitoring Program - EQA d i r e c t s DEQ to conduct
ongoing water monitoring of both surface and ground water for the
presence o f p e s t i c i d e s .
DHS Pesticide Reporting and Prevention Programs - The EQA requires
that DHS e s t a b l i s h a ~ e s t i c i d e r e q i s t r v to record i n c i d e n t s r e l a t e d
to human health. DHS' must a l s o - p r o v i d e t r a i n i n g to the medical
community i n recognizing p e s t i c i d e poisoning.
ACAH lntegrated Pest Management Program - ACAH's lntegrated Pest
Management ( IPM) Program s p e c i f i e s research, i n s t r u c t i o n , and
development components for the purpose of reducing the use of
p e s t i c i d e s .
ACAH Buffer Zones/ PMAs - The 1986 EQA i n s t i t u t e d b u f f e r zone and
Pesticide Management Area ( PMA) provisions to minimize the damage to
humans and property caused by p e s t i c i d e a p p l i c a t i o n s . Buffer zone
provisions p r o h i b i t a p p l i c a t i o n of c e r t a i n pesticides w i t h i n a
prescribed distance of homes or other i n s t i t u t i o n s such as schools or
h o s p i t a l s . PMA provisions r e q u i r e t h a t the a p p l i c a t o r inform, when
possible, the ACAH D i r e c t o r of upcoming a p p l i c a t i o n s .
ICA Worker Safety Inspection Program - ICA was required to develop
worker safety rules governing the use of p e s t i c i d e s . These rules
address areas of t r a i n i n g , the length of time workers must wait to
reenter f i e l d s a f t e r pesticides have been applied, p r i o r n o t i f i c a t i o n
and posting, decontamination and washing f a c i l i t i e s , and p r o t e c t i v e
c l o t h i n g . The only other state w i t h s i m i l a r requirements i s
Cal i f o r n i a .
Arizona programs compare favorably w i t h those o f other s t a t e s - Arizona's
a g r i c u l t u r a l p e s t i c i d e regulatory programs compare favorably to those of
other states. In v i r t u a l l y a l l areas of a g r i c u l t u r a l p e s t i c i d e
r e g u l a t i o n , Arizona provides l e v e l s o f r e g u l a t i o n s i m i l a r to or greater
than those of other s t a t e s . Arizona has enforcement and remediation
a u t h o r i t y t o address v i o l a t i o n s of p e s t i c i d e laws. The only areas i n
which Arizona has less r e g u l a t i o n than that i n some other s t a t e s are the
areas of container disposal and monitoring for the presence of p e s t i c i d e s
i n food.
Program Implementation
Unsatisfactory
Although Arizona has i n s t i t u t e d progressive p e s t i c i d e programs, t h e i r
implementation to date has been less than s a t i s f a c t o r y . We found strong
enforcement lacking i n two of the three agencies w i t h enforcement
programs. I n a d d i t i o n , some p e s t i c i d e regulatory programs s u f f e r because
they are considered lower p r i o r i t y than other agency programs.
Enforcement Weak in ACAH and ICA - In two of t h e three agencies charged
w i t h enforcing the p e s t i c i d e laws, we found enforcement weak.
Enforcement by ACAH i s p a r t i c u l a r l y weak, even though the EQA seemed to
a n t i c i p a t e t h i s problem and included i n the l e g i s l a t i o n a procedural
safeguard r e q u i r i n g t h a t the Attorney General review ACAH enforcement
cases. Several reasons may explain why enforcement by ACAH i s weak.
Strong enforcement of p e s t i c i d e laws i s the basis of an e f f e c t i v e
p e s t i c i d e regulatory program. The purpose of p e s t i c i d e r e g u l a t i o n i s to
help ensure that p o t e n t i a l l y dangerous chemicals are properly used and
discarded, thus minimizing the p o t e n t i a l for harm to human h e a l t h and the
environment. Unless improvements are made, substandard enforcement may
r e s u l t i n a lack of p r o t e c t i o n f o r b o t h A r i z o n a ' s c i t i z e n s and i t s
environment. Summaries of enforcement problems we found i n the two
agencies are l i s t e d below.
E H - ACAH enforcement p r a c t i c e s are among the worst we have
audited. A l l aspects of ACAH enforcement were d e f i c i e n t . For
example, in some instances ACAH s t a f f reportedly t r i e d to discourage
people from f i l i n g complaints. I n other instances, ACAH s t a f f never
investigated complaints that were f i l e d . Of the 414 cases we
reviewed, a m a j o r i t y ( 239 of 414) were inadequately i n v e s t i g a t e d ,
many i n an untimely manner. Slow i n v e s t i g a t i o n s also caused nine
cases to have the v i o l a t i o n downgraded because s t a t u t e s of
l i m i t a t i o n s were exceeded.
The d i s c i p l i n a r y actions that have been taken were equally
u n s a t i s f a c t o r y . People found to have committed v i o l a t i o n s received
weak sanctions -- even for m u l t i p l e v i o l a t i o n s . Penalties have
usually consisted of small fines w i t h no a c t i o n against the
v i o l a t o r ' s license. F u r t h e r , p e n a l t i e s were o f t e n determined through
" negotiated settlements" w i t h the licensee behind closed doors i n the
D i r e c t o r ' s o f f i c e .
ICA - ICA has simply not aggressively enforced p e s t i c i d e laws and
r u l e s . The L e g i s l a t u r e funded f i v e p o s i t i o n s for p e s t i c i d e
enforcement. Our analysis determined that ICA used only 1.1
Full- Time Equivalent ( FTE) s t a f f for p e s t i c i d e enforcement and used
the remaining resources for other functions. E f f e c t i v e worker safety
enforcement requires the strong presence of inspectors i n the f i e l d .
We found that ICA s t a f f f i e l d presence i s l i m i t e d . In f a c t , ICA does
not even s t a t i o n s t a f f i n Yuma, the area i n which the largest number
of farm workers are employed.
Enforcement has been weak at ACAH i n s p i t e of the unusual oversight
a u t h o r i t y granted the Attorney General by the EQA. The 1986 EQA mandates
that the Attorney General review ACAH enforcement cases p r i o r to f i n a l
a d j u d i c a t i o n . In some cases, t h i s review has resulted i n more e f f e c t i v e
enforcement. However, i n other instances, ACAH has f a i l e d to address
concerns raised by the Attorney General. As a r e s u l t , i t appears that
even using the Attorney General as a check on ACAH actions has not
ensured strong enforcement.
Several reasons f o r weak ACAH enforcement - Why has enforcement been weak
at ACAH? Several factors may c o n t r i b u t e to the problem, i n c l u d i n g the
perception that pesticides are not that harmful; ACAH's dual
r e s p o n s i b i l i t y for both promoting and r e g u l a t i n g the i n d u s t r y ; and
f a m i l i a r i t y w i t h the regulated community due to the r e l a t i v e l y small
number of a p p l i c a t o r s and growers involved w i t h p e s t i c i d e s .
A basic underlying cause may be differences i n the perceived danger
inherent i n the use o f p e s t i c i d e s . A recent doctoral study i n Arizona
measured and compared the perception o f p e s t i c i d e r i s k by ACAH p e s t i c i d e
enforcement s t a f f , a g r i c u l t u r a l p e s t i c i d e a p p l i c a t o r s , and the
p u b l i c . ( ' ) The study found that the public perceives pesticides to be
( 1 ) Shem, Pak. " V a r i a t i o n i n R i s k P e r c e p t i o n : A B a r r i e r t o t h e Implementation of P e s t i c i d e
Control Pol i c i es," 1990.
more dangerous than do a g r i c u l t u r a l p e s t i c i d e a p p l i c a t o r s . The p e s t i c i d e
r i s k perception of ACAH enforcement s t a f f was closer to the perception of
a g r i c u l t u r a l p e s t i c i d e a p p l i c a t o r s than that of the pub1 i c .
Lower r i s k perception may influence enforcement e f f e c t i v e n e s s .
According to the s t u ~ g :
" . . . t h e capacity of f i e l d l e v e l a d m i n i s t r a t o r s to enforce regulations
w i l l depend upon the degree to which they see the use of pesticides
as p o t e n t i a l l y harmful to a p p l i c a t o r s and residents. Hence, i f they
perceive the use of such m a t e r i a l s as a low r i s k , they may well relax
enforcement of rules and r e g u l a t i o n s , which w i l l r e s u l t i n incomplete
discharge of the r e g u l a t o r y f u n c t i o n by the f i e l d level
a d m i n i s t r a t o r s . "
ACAH's dual r o l e of both promoting a g r i c u l t u r e and at the same time
regulating the use of a g r i c u l t u r a l pesticides could also a f f e c t
regulatory e f f e c t i v e n e s s . A major ACAH r o l e i s to a s s i s t and f u r t h e r the
a g r i c u l t u r a l industry i n the State. However, ACAH i s also charged w i t h
regulating and enforcing p e s t i c i d e usage. When these roles overlap,
enforcement may s u f f e r . For example, ACAH oversees the BoII Weevil
Eradication Program, a j o i n t e f f o r t w i t h industry to e l i m i n a t e a pest
bothersome to Arizona's cotton production. ACAH, however, must also
enforce v i o l a t i o n s r e s u l t i n g from p e s t i c i d e a p p l i c a t i o n s for the BoII
Weevil Program.
Another f a c t o r that may explain ACAH's weak enforcement i s the close
r e l a t i o n s h i p between the S t a t e ' s a g r i c u l t u r a l industry and ACAH. There
are approximately 49 a e r i a l a p p l i c a t o r s i n the State and s i x ACAH
inspectors. Both groups know each other and are i n frequent contact
because inspectors monitor p e s t i c i d e a p p l i c a t i o n s and i n v e s t i g a t e
complaints. In a d d i t i o n , there are other, sometimes long- standing,
professional t i e s between these two groups. Before working for the
State, the ACAH D i v i s i o n D i r e c t o r i n charge of p e s t i c i d e enforcement
operated an a e r i a l a p p l i c a t i o n business for over 30 years. Other ACAH
s t a f f were previously involved i n the p e s t i c i d e industry or a g r i c u l t u r e .
Low p r i o r i t i z a t i o n impedes success o f other p e s t i c i d e programs - Because
agencies have designated some p e s t i c i d e programs as a lower p r i o r i t y ,
these programs have not been as e f f e c t i v e . As previously mentioned, ICA
has used much of i t s resources a l l o c a t e d f o r p e s t i c i d e programs to
perform other d u t i e s . I n a d d i t i o n , a t DEQ some p e s t i c i d e cleanups are
postponed i n favor of more dangerous s i t u a t i o n s i n v o l v i n g materials DEQ
deems more hazardous. A t DHS, we found l i t t le has been done to improve
the r e p o r t i n g o f p e s t i c i d e i n c i d e n t s or t r a i n physicians i n recognizing
p e s t i c i d e poisoning. Other DHS budget p r i o r i t i e s have superseded
a d d i t i o n a l funding f o r p e s t i c i d e programs.
Although our reports o u t l i n e several problems w i t h the present system of
p e s t i c i d e r e g u l a t i o n i n the S t a t e , we recommend r e t a i n i n g the current
regulatory s t r u c t u r e . Arizona's d i f f u s e d p e s t i c i d e r e g u l a t o r y s t r u c t u r e
( d i v i d i n g r e s p o n s i b i l i t y among several agencies) i s t y p i c a l o f a m a j o r i t y
of other s t a t e s and o f f e r s strong p o t e n t i a l advantages. Although t h i s
fragmentation has caused some problems, the most serious problems appear
to occur because the agencies are n o t enforcement- minded.
Current regulatory structure typical and has some benefits - Arizona's
fragmented p e s t i c i d e regulatory s t r u c t u r e i s s i m i l a r to those i n most
other s t a t e s . Arizona, l i k e most s t a t e s , delegates primary p e s t i c i d e
regulatory a u t h o r i t y t o i t s a g r i c u l t u r e agency. Other agencies t y p i c a l l y
involved are those r e l a t e d to h e a l t h , the environment, and worker
s a f e t y . ( Recent l e g i s l a t i o n i n Arizona, however, w i l l place the
r e s p o n s i b i l i t y for p e s t i c i d e worker safety enforcement w i t h the new
Department of A g r i c u l t u r e beginning i n January 1991). Only f i v e states
-- New York, New Jersey, Connecticut, Alaska, and Rhode Island -- place
primary responsibi l i t y i n an envi ronmental agency.(')
( 1 ) These f i v e s t a t e s d i f f e r considerably from Arizona i n terms of the amount and type of
a g r i c u l t u r e , and the use of p e s t i c i d e s . A g r i c u l t u r e i n those states i s p r i m a r i l y
vegetables and/ or orchards. P e s t i c i d e s a r e almost always a p p l i e d w i t h ground- based
equipment. Much of the p e s t i c i d e use i s r e l a t e d t o b u i l d i n g s , u t i l i t y and government
right- of- ways, lawn care, i n d u s t r y , or nurseries. Connecticut and New York have
separate e n t i t i e s t h a t promote a g r i c u l t u r e .
There are three advantages to a properly administered, fragmented
regulatory s t r u c t u r e : e f f i c i e n c y , f a m i l i a r i t y w i t h and knowledge of the
industry, and a system of checks and balances. E f f i c i e n c y occurs because
the various p e s t i c i d e regulatory programs are administered by those
agencies that conduct simi l a r programs i n other areas and have s t a f f and
resources already committed to r e l a t e d tasks. For example, DEQ not only
monitors water for the presence of p e s t i c i d e s , but i s also required to
monitor water for a v a r i e t y o f other elements. This i s a l s o t r u e for
DEQ's hazardous waste remediation f u n c t i o n . Cleanup of s i t e s
contaminated by pesticides i s only one part of DEQ's larger hazardous
waste remediation program. Regulatory programs at DHS and ACAH also
involve several d i f f e r e n t areas of r e s p o n s i b i l i t y . Not only does DHS
have a p e s t i c i d e poisoning r e g i s t r y but also one for AIDS, cancer, and
other diseases. In a d d i t i o n to p e s t i c i d e s , ACAH regulates and also works
w i t h the a g r i c u l t u r e industry i n several other areas. ACAH already has
s t a f f stationed i n the a g r i c u l t u r a l areas of the State. These s t a f f are
i n a p o s i t i o n to a s s i s t p e s t i c i d e enforcement s t a f f w i t h p e s t i c i d e
complaints on an as- needed basis.
A fragmented s t r u c t u r e may also promote b e t t e r cooperation and
understanding between the agencies and the regulated community. For
example, a regulated community, such as farmers and doctors, may respond
b e t t e r t o ACAH and DHS than to another regulatory agency that has no
d i r e c t r e l a t i o n s h i p t o t h e i r work. In a d d i t i o n , r e g u l a t o r y d e c i s i o n
making may be aided because the regulat ing agencies have speci f i c
knowledge of and experience i n the industry they are r e g u l a t i n g . For
example, doctors at DHS may be b e t t e r able to educate the medical
community about p e s t i c i d e poisonings. ACAH, because of i t s knowledge of
a g r i c u l t u r a l p r a c t i c e s , may be b e t t e r able to develop programs to
regulate pesticide- use r e p o r t i n g than would an environmental agency, for
i ns tance .
A fragmented regulatory s t r u c t u r e can provide a check and balance on the
agencies involved i n p e s t i c i d e r e g u l a t i o n . For example, i f one agency's
enforcement i s l i m i t e d , another may be able to assume part of t h i s
r e s p o n s i b i l i t y t o help ensure proper a c t i o n i s taken. For example, i n
our ACAH report we discuss how ACAH f a i l e d to take proper a c t i o n on
several, serious p e s t i c i d e poisonings. F o r t u n a t e l y , i n one case using
i t s own a u t h o r i t y , DEQ and the Attorney General pursued and took strong
action against the v i o l a t o r . I f a l l regulatory a u t h o r i t y had been
concentrated i n one agency, enforcement i n t h i s case might never have
occurred.
Fragmentation has caused some problems - Although a fragmented regulatory
s t r u c t u r e i s common n a t i o n a l l y and provides some b e n e f i t s , i t has
resulted i n c e r t a i n problems i n Arizona. Some enforcement cases are not
referred to other appropriate agencies f o r a c t i o n . E f f e c t i v e p e s t i c i d e
container disposal and e f f i c i e n t pesticide- use r e p o r t i n g may also be
hampered by the fragmented s t r u c t u r e .
One enforcement problem exacerbated by a fragmented regulatory s t r u c t u r e
i s that some enforcement cases have not been addressed by more than one
agency, when a p p r o p r i a t e . An example of t h i s i s a case ( see ACAH report
# 90- 7, page 9) i n which a complaint was f i l e d w i t h ACAH concerning a
p e s t i c i d e a p p l i c a t o r employee who was poisoned by p e s t i c i d e s w h i l e on h i s
job. ACAH did not report the incident to I C A , the agency that enforces
worker safety p e s t i c i d e laws. ( We a l s o r e p o r t that ACAH did not pursue
an i n v e s t i g a t i o n of the a p p l i c a t o r although warranted). Our analysis of
p e s t i c i d e complaints found at least 50 cases i n which agencies could have
reported these incidences to the other agencies, but d i d n o t .
Other problems caused by a fragmented regulatory s t r u c t u r e r e l a t e to the
laws governing r e p o r t i n g of p e s t i c i d e use and p e s t i c i d e container
disposal. Both DEQ and ACAH regulate p e s t i c i d e container d i s p o s a l . Each
enforces d i f f e r e n t laws and r u l e s t h a t are derived from Federal and State
laws governing c o n t a i n e r d i s p o s a l . There are two sets of Federal r u l e s ,
three sets o f S t a t e r u l e s , and m u l t i p l e county codes and c i t y ordinances
that impact container disposal. To date, there has been no attempt by
e i t h e r ACAH or DEQ to coordinate t h e i r i n d i v i d u a l requirements i n each
set of r u l e s . According to a DEQ study, without cross- references,
regulated p e s t i c i d e users who read only one set of agency r u l e s , may f a i l
to real ize t h a t t h e r e are separate requi rernents.(')
I f not addressed, Arizona's fragmented p e s t i c i d e regulatory s t r u c t u r e
could cause unnecessary r e p o r t i n g problems f o r p e s t i c i d e users.
According to ACAH requirements, a g r i c u l t u r a l p e s t i c i d e users c u r r e n t l y
must e i t h e r report or r e t a i n records o f p e s t i c i d e sales and use. In the
future, DEQ may a l s o r e q u i r e r e p o r t i n g of sales and use information for
those pesticides found to have the p o t e n t i a l to leach i n t o ground water.
Unless these agencies work together to develop a s i n g l e r e p o r t i n g system,
p e s t i c i d e users may be subjected to overlapping and perhaps d u p l i c a t e
report i ng requi rements ( See Report # 90- 7, Find i ng V I ) .
Poor enforcement of the p e s t i c i d e laws appears to be caused p r i m a r i ly by
ACAH and ICA's weak commitment to enforcement. Even though the
organizational placement of some programs ( notably the programs under
ACAH that have close t i e s to the a g r i c u l t u r a l i n d u s t r y ) may appear to
deter enforcement, changing the s t r u c t u r e o f the p e s t i c i d e regulatory
program i s no guarantee that problems w i l l be resolved. Instead, what i s
needed i s something that i s d i f f i c u l t to l e g i s l a t e -- a commitment to
enforcement.
As noted p r e v i o u s l y , t h e r e a r e s i g n i f i c a n t advantages to p l a c i n g programs
w i t h agencies that are already involved w i t h s i m i l a r programs and have
knowledge and i n t e r e s t i n the area. While close t i e s to an industry can
influence enforcement, i f an agency i s not i n t e r e s t e d and knowledgeable
i n an area, i t s commitment to enforcement may be no b e t t e r than an agency
w i t h close t i e s to the industry i t regulates. For an example, ICA has
not developed and implemented an e f f e c t i v e p e s t i c i d e - r e l a t e d worker
safety inspection program. ( See Report # 90- 9). In a d d i t i o n , the
p r i o r i t y of a program r e l a t i v e to an agency's other programs also a f f e c t s
enforcement. I f p e s t i c i d e s are perceived by the agency as being less
dangerous, or as less of a widespread problem than other environmental
( 1 ) Brown, A l . " P e s t i c i d e Container and Residue Disposal i n A r i z o n a : A P u b l i c P o l i c y
Analysis." 1989.
hazards, they may not receive high p r i o r i t y f o r enforcement. For
example, DEQ has not taken t i m e l y a c t i o n s against some p e s t i c i d e - r e l a t e d
hazardous waste s i t e s . ( See Report # 90- 8). Thus, the o r g a n i z a t i o n a l
placement of a program i s no guarantee of good enforcement.
We believe the three most important elements of good enforcement are good
laws, a commitment to enforce those laws, and adequate resources. An
administrator committed to enforcing a law w i l l generally not be deterred
by the program's l o c a t i o n . S i m i l a r l y , an agency committed to enforcement
w i l l be able to demonstrate t h a t i t has taken a c t i o n w i t h i n the l i m i t s of
i t s resources. ( Conversely , providing resources to an agency not
committed to enforcement i s no guarantee of obtaining enforcement.)
Arizona has good p e s t i c i d e laws, what i s needed now i s a greater
commitment to enforcing those laws. Once the commitment i s e v i d e n t , the
resource question can be addressed. However, achieving t h a t commitment
cannot be l e g i s l a t e d , r a t h e r i t must come from the highest l e v e l s of the
executive branch.
RECOMMENDATION
1. The d i r e c t o r of the new Department of A g r i c u l t u r e should develop
w i t h i n the agency a commitment to p e s t i c i d e r e g u l a t i o n . He should
s p e c i f i c a l l y consider implementing the recommendations contained i n
reports # 90- 7, and 90- 9, which i d e n t i f y ways to improve procedures
and strengthen enforcement.
2. The D i r e c t o r s of the new Department of A g r i c u l t u r e and DEQ should
coordinate e f f o r t s t o : ( a) develop a s i n g l e p e s t i c i d e r e p o r t i n g
system, and ( b) develop a container disposal program.
PESTICIDE REGULATION IN THE FIFTY STATES
Federal p e s t i c i d e , environmental, and consumer p r o t e c t i o n laws shape
p e s t i c i d e regulatory a c t i v i t i e s i n the 50 s t a t e s , but permit great
l a t i t u d e i n both the extent and organization of i n d i v i d u a l s t a t e
regulation. As a r e s u l t , s t a t e regulatory a c t i v i t y v a r i e s widely, w i t h
Arizona being one of the most a c t i v e regulators. Most s t a t e s , i n c l u d i n g
Arizona, d i v i d e p e s t i c i d e regulatory r e s p o n s i b i l i t i e s by function among
several agencies, and use various methods to manage t h i s d i v i s i o n . While
Arizona's d i v i s i o n o f p e s t i c i d e r e g u l a t o r y f u n c t i o n s i s s i m i l a r to that
of most s t a t e s , A r i z o n a ' s o r g a n i z a t i o n of regulatory r e s p o n s i b i l i t i e s
d i f f e r s i n s i g n i f i c a n t ways.
Background
Chapter 162, Section 7, of the 1989 Session Laws, d i r e c t e d the O f f i c e o f
the Auditor General to review s t a t u t o r y and a d m i n i s t r a t i v e p e s t i c i d e
regulatory programs i n other s t a t e s . A telephone survey was, t h e r e f o r e ,
conducted to determine the regulatory functions performed by each s t a t e ,
e i t h e r on i t s own a u t h o r i t y , or as mandated by or delegated under Federal
law. For each function performed, i t was f u r t h e r determined which s t a t e
agency, or agencies, performed the function. Information concerning
proposed l e g i s l a t i o n and trends i n assignment of regulatory functions was
also obtained. Because of the complexity and t e c h n i c a l n a t u r e of
pesticide regulatory a c t i v i t i e s , the differences among the s t a t e s i n the
scope and d e f i n i t i o n s of s p e c i f i c r e s p o n s i b i l i t i e s , and the lack o f any
standard nomenclature for agencies involved i n p e s t i c i d e r e g u l a t i o n ,
d i r e c t comparisons of functions and t h e i r assignment were o f t e n
d i f f i c u l t . The r e s u l t s o f the survey are thus i n d i c a t i v e , not d e f i n i t i v e .
Federal Laws Shape State Regulation,
But Permit Wide Variation
Individual state p e s t i c i d e r e g u l a t i o n i s patterned d i r e c t l y a f t e r the
Federal I n s e c t i c i d e , Fungicide and Rodenticide Act ( FIFRA) that
establishes regulatory standards and programs for the manufacture, use,
and disposal of p e s t i c i d e s . Other Federal laws that address broader
environmental, resource, and food regulatory issues also impact State
p e s t i c i d e regulatory functions. These laws include the Safe D r i n k i n g
Water Act, the Clean Water Act, the Resource Conservation and Recovery
Act, the National Environmental Policy Act, the Food, Drug and Cosmetic
Act, the Endangered Species Act, and the Comprehensive Environmental
Response Compensation and L i a b i l i t y Act.
In addition to shap, ng s t a t e p e s t i c i d e regulatory a c t i v i t i e s , FlFRA and
the other laws noted permit delegation of Federal regulatory a u t h o r i t y to
the i n d i v i d u a l s t a t e s . S t a t e s , however, may or may not e l e c t to assume
some, any, or a l l of the p e s t i c i d e regulatory a u t h o r i t y and
r e s p o n s i b i l i t y that Environmental Protection Agency ( EPA) can delegate to
them under Federal laws. States are also free to regulate more
s t r i n g e n t l y and extensively than Federal laws r e q u i r e . Thus, both the
extent and organization of p e s t i c i d e regulation may -- and does -- vary
s u b s t a n t i a l l y from s t a t e t o s t a t e .
Arizona Is Among
The Most Active Regulators
A l l 50 states are involved i n p e s t i c i d e regulation to some degree. Most
have accepted delegation of a u t h o r i t y from the EPA to enforce Federally
mandated p e s t i c i d e regulatory programs, but two s t a t e s have accepted
l i t t l e or no delegated a u t h o r i t y , and others have elected not to accept
a u t h o r i t y i n s p e c i f i c areas. Nebraska, for example, has accepted no
delegation of FlFRA a u t h o r i t y to regulate p e s t i c i d e s , and Colorado has
accepted r e s p o n s i b i l i t y only for c e r t i f i c a t i o n of commercial p e s t i c i d e
a p p l i c a t o r s . Thus, the EPA i t s e l f administers and enforces most Federal
p e s t i c i d e regulations i n those s t a t e s . Iowa administers FlFRA programs,
but recently returned to EPA r e s p o n s i b i l i t y for administering Resource
Conservation and Recovery Act ( RCRA) programs, i n c l u d i n g RCRA regu l a t ions
a f f e c t i n g disposal of pesticides and p e s t i c i d e containers.
Arizona and C a l i f o r n i a are among the states most a c t i v e i n p e s t i c i d e
regulation. Both accepted the f u l l range of a u t h o r i t i e s delegated by
EPA.( l) They also administer regulatory programs that i n some respects
( 1 ) The EPA has since withdrawn i t s delegation of a u t h o r i t y to C a l i f o r n i a f o r
a d m i n i s t r a t i o n of RCRA programs; however, C a l i f o r n i a maintains waste disposal programs
s i m i l a r t o those of RCRA.
are more s t r i n g e n t and extensive than those required by Federal laws. For
example, both states require studies of the fate of pesticides i n the
environment i n a d d i t i o n to those required by the EPA to assess leaching
p o t e n t i a l of a g r i c u l t u r a l p e s t i c i d e s .
States Group Regulatory A c t i v i t i e s
By Function Among Several Agencies
The survey i d e n t i f i e d 34 s p e c i f i c a c t i v i t i e s undertaken i n support of
p e s t i c i d e r e g u l a t i o n . Two of these, development of Integrated Pest
Management ( IPM) programs and t e s t i n g of foods for p e s t i c i d e residues,
are u n i v e r s i t y extension service and a g r i c u l t u r a l agency
r e s p o n s i b i l i t i e s , r e s p e c t i v e l y , i n most s t a t e s . The other 32 a c t i v i t i e s
can be grouped i n t o four broader functional areas: 1) c o n t r o l of the use,
sale, and a p p l i c a t i o n o f p e s t i c i d e s , 2) p r o t e c t i o n of water resources
from p e s t i c i d e pol l u t ion, 3) measuring and reducing pub1 i c exposure t o
pesticides, and 4) p r o t e c t i o n of farmworkers from exposure. In most
s t a t e s , the f i r s t three of these functional areas are the r e s p o n s i b i l i t y ,
of an a g r i c u l t u r e , environment, and a h e a l t h agency, r e s p e c t i v e l y .
Protection of farmworkers i s also the r e s p o n s i b i l i t y of an a g r i c u l t u r a l
agency i n most s t a t e s . In others, however, a labor agency has the
r e s p o n s i b i l i t y , o r plays a r o l e .
In most s t a t e s , the a g r i c u l t u r a l agency assumes the major r e s p o n s i b i l i t y
for p e s t i c i d e r e g u l a t i o n w i t h i n a multi- agency management system. In
only f i v e states -- New York, New Jersey, Connecticut, Rhode Island, and
Alaska -- i s primary r e s p o n s i b i l i t y f o r p e s t i c i d e r e g u l a t i o n vested i n an
environmental agency. Survey respondents reported a trend toward greater
c e n t r a l i z a t i o n o f p e s t i c i d e r e g u l a t i o n i n 23 s t a t e s , mostly i n the
a g r i c u l t u r a l agency. Only three reported a trend toward f u r t h e r
d e c e n t r a l i z a t i o n . The l a t t e r group includes C a l i f o r n i a , where two
i n i t i a t i v e s to appear on the b a l l o t i n the 1990 general e l e c t i o n would
t r a n s f e r s u b s t a n t i a l r e s p o n s i b i l i t i e s from the Department of Food and
A g r i c u l t u r e to other agencies.
Arizona's Pesticide Regulatory Structure
Differs In Several Respects
D i s t r i b u t i o n i n Arizona of r e s p o n s i b i l i t y for the broader, f u n c t i o n a l
areas of p e s t i c i d e r e g u l a t i o n g e n e r a l l y conforms to the n a t i o n a l
p a t t e r n . A r i z o n a ' s r e g u l a t o r y s t r u c t u r e , however, d i f f e r s from the
m a j o r i t y of other s t a t e s i n several respects:
Arizona has a more comprehensive system of l i c e n s i n g , c e r t i f i c a t i o n ,
and permits to c o n t r o l the sale and use of p e s t i c i d e s than any other
s t a t e except C a l i f o r n i a . Most other s t a t e s , f o r example, do not
I icense, c e r t i f y , o r p e r m i t a g r i c u l t u r a l p i l o t s , a p p l i c a t i o n
equipment, pest c o n t r o l a d v i s o r s , or growers, as buyers of
a g r i c u l t u r a l p e s t i c i d e s .
Arizona i s one of o n l y t e n s t a t e s i n which the r e g u l a t i o n of
p e s t i c i d e recordkeeping and r e p o r t i n g requirements i s n o t t h e
exclusive r e s p o n s i b i l i t y o f an a g r i c u l t u r a l agency. I n Arizona, both
ACAH and DEQ have t h i s a u t h o r i t y .
Arizona i s one o f o n l y eleven s t a t e s i n which an a g r i c u l t u r a l agency
does not have exclusive a u t h o r i t y t o cancel or r e s t r i c t use of a
r e g i s t e r e d p e s t i c i d e . In Arizona, both ACAH and DEQ have t h i s
author i t y .
Arizona i s one of only 18 s t a t e s t h a t maintain a p e s t i c i d e poisoning
r e g i s t r y , and one of only 23 s t a t e s that educates healthcare
professionals i n the i d e n t i f i c a t i o n of p e s t i c i d e poisoning.
Arizona i s one of only seven s t a t e s i n which r e g u l a t i o n of the use of
a g r i c u l t u r a l and s t r u c t u r a l p e s t i c i d e s i s managed by d i f f e r e n t
agencies. I n Arizona, the Arizona Commission of A g r i c u l t u r e and
H o r t i c u l t u r e regulates use o f a g r i c u l t u r a l p e s t i c i d e s , and the
S t r u c t u r a l Pest Control Board regulates the use o f s t r u c t u r a l and
h o r t i c u l t u r a l p e s t i c i d e s .
States Use Various Methods To
Manage Multiple- Agency Regulation
In a number of s t a t e s , e f f o r t s have been made to deal w i t h the problems
created by fragmented and overlapping a u t h o r i t y , by c o o r d i n a t i n g and
harmonizing multi- agency a c t i v i t y . I n 25 states interagency agreements
or Memoranda of Understanding ( MOUs) have been adopted t h a t delineate the
boundaries between agencies' a u t h o r i t i e s , r e s p o n s i b i l i t i e s , and
a c t i v i t i e s . The EPA, which i s responsible for the a d m i n i s t r a t i o n of
Federal p e s t i c i d e regulations and for the supervision of cooperative
regulatory programs delegated to the i n d i v i d u a l s t a t e s , a c t i v e l y promotes
interagency MOUs among s t a t e agencies as a means of dealing w i t h the
excessive fragmentation of regulatory programs and r e s p o n s i b i l i t i e s . In
two s t a t e s , s p e c i a l o v e r s i g h t bodies a s s i s t i n the management of
p e s t i c i d e regulatory programs shared by o r i n v o l v i n g d i f f e r e n t agencies.
Wisconsin uses a P e s t i c i d e Review Board comprised of representatives from
the a g r i c u l t u r e , er. vironmental, and health- related s t a t e agencies to
determine which pesticides should be banned. F l o r i d a uses an Interagency
Committee on P e s t i c i d e Regulation to decide whether a d d i t i o n a l
information i s needed to determine i f s p e c i f i c pesticides have ground
water leach p o t e n t i a l .
In Arizona, an e f f o r t to c l a r i f y the major roles of the Commission of
A g r i c u l t u r e and H o r t i c u l t u r e and the Department of Environmental Quality
has been attempted. ACAH and DEQ prepared a d r a f t Memorandum of
Understanding, but t h e i r e f f o r t s to define and coordinate t h e i r
respective r e s p o n s i b i l i t i e s and a c t i v i t i e s foundered i n 1988 over
d i f f e r e n c e s concerning i n t e r p r e t a t i o n of State s t a t u t e s and v a l i d i t y of
extant regulations.
QUANTITY AND QUALITY OF PESTICIDES
USED IN ARIZONA
Chapter 162, Section 7, of the 1989 Session Laws requires us to prepare
"[ a] q u a n t i t a t i v e and q u a l i t a t i v e report of p e s t i c i d e use i n t h i s
s t a t e . " ( ' ) To meet t h i s mandate, we developed data on the types and
amounts of a g r i c u l t u r a l p e s t i c i d e s used i n Arizona i n 1989. With two
panels of experts, we then reviewed both the amount of data and the
q u a l i t a t i v e aspect of p e s t i c i d e use.
Quantitative Review Of
Pesticide Use
Because comprehensive records on a g r i c u l t u r a l p e s t i c i d e use are not
a v a i l a b l e , the amount of p e s t i c i d e s a p p l i e d i n Arizona cannot be
determined p r e c i s e l y . We attempted to estimate the q u a n t i t y of
p e s t i c i d e s used from s a l e s i n f o r m a t i o n and the records of custom
a p p l i c a t i o n s . The estimates developed through t h i s analysis are the most
comprehensive developed to date i n Arizona.
Methodology - Although sales of p e s t i c i d e s are not a d i r e c t i n d i c a t o r of
the q u a n t i t y of p e s t i c i d e s a c t u a l l y applied i n Arizona i n any g i v e n y e a r ,
sales data do p r o v i d e v a l u a b l e i n f o r m a t i o n for estimating p e s t i c i d e use.
We attempted to determine the t o t a l amount sold i n 1989 of each
a g r i c u l t u r a l p e s t i c i d e r e g i s t e r e d for use i n Arizona. A l l 49 s e l l e r s
engaged i n the r e t a i l sales of p e s t i c i d e s to Arizona buyers were surveyed
and asked to submit d e t a i l e d s a l e s i n f o r m a t i o n .
Of the 49 s e l l e r s surveyed, 46 responded to our request and submitted
t h e i r sales d a t a . A l l p e s t i c i d e products were then converted from t h e i r
brand names to common a c t i v e ingredients ( chemical names) so that simi l a r
p e s t i c i d e s s o l d by d i f f e r e n t manufacturers could be aggregated i n t o a
single t o t a l amount. Amounts included i n our analysis exclude sales of
( 1 ) Based on the language of the Session Law and input from l e g i s l a t i v e s t a f f , we 1 imi ted
our review t o a g r i c u l t u r a l p e s t i c i d e s .
p e s t i c i d e s f o r use by s t r u c t u r a l pest c o n t r o l personnel, government
agencies, i r r i g a t i o n d i s t r i c t s , and homeowners, as w e l l as a p p l i c a t i o n s
to rights- of- way, ditchbanks, e t c . Our f i g u r e s also exclude a p p l i c a t i o n s
on t r i b a l lands, g o l f courses, and cemeteries.
I n a d d i t i o n , we analyzed and c o l l e c t e d from custom a p p l i c a t i o n reports
( Form 1080) information on the q u a n t i t i e s o f each p e s t i c i d e applied by
custom a p p l i c a t o r s . A l l p e s t i c i d e a p p l i c a t i o n s which are made by
commercial firms h i r e d by growers must be reported to ACAH. While data
compiled from custom a p p l i c a t i o n reports are a more d i r e c t measure of
actual quant i t i e s of pest i c i d e s appl ied ( compared to sales data), they
understate t o t a l q u a n t i t i e s because many p e s t i c i d e a p p l i c a t i o n s are not
covered by t h i s r e p o r t i n g requirement. For example, a grower who applies
h i s own p e s t i c i d e s to h i s crops w i t h a ground r i g , does not have to
report to ACAH.
F i n a l l y , we asked two panels of p e s t i c i d e experts to review our q u a n t i t y
estimates, and to comment on the q u a l i t y of products used i n Arizona.
The f i r s t panel consisted of seven pest c o n t r o l a d v i s o r s , two a e r i a l
a p p l i c a t o r s , a professor of a g r i c u l t u r e from the U n i v e r s i t y of Arizona, a
chemist from the State Chemist's O f f i c e , a p e s t i c i d e expert from the
Department of Environmental Q u a l i t y , a p e s t i c i d e s p e c i a l i s t w i t h the Yuma
Valley A g r i c u l t u r a l Center, and a Farm Bureau representative. The second
panel, assembled by the Farm Bureau, consisted of about 13 growers and
members of grower o r g a n i z a t i o n s .
Amounts and types of p e s t i c i d e use - As shown i n Table 2 ( page 23), an
estimated t o t a l o f 11 m i l l i o n pounds of p e s t i c i d e s ( reported as pounds of
a c t i v e i n g r e d i e n t ) were used i n Arizona i n 1989. Custom a p p l i c a t o r s
reported on the Form 1080s t h a t they used almost 7 m i l l i o n pounds of
p e s t i c i d e s , w h i l e the s e l l e r s we surveyed indicated that they sold almost
10 m i l l i o n pounds of p e s t i c i d e s . The t o t a l estimate of 11 m i l l i o n pounds
i s greater than the estimate of t o t a l sales, because for some p e s t i c i d e s
the amounts reported used by custom a p p l i c a t o r s were greater than the
amounts reported sold. In these cases sales amounts were adjusted upward
to b e t t e r represent actual p e s t i c i d e use. ( For f u r t h e r discussion and
explanation of the d i f f e r e n c e s between Form 1080 and sales amounts, see
next s e c t i o n . )
Almost one- third of a l l p e s t i c i d e s s o l d i n Arizona were i n s e c t i c i d e s .
D e f o l i a n t s , dessicants, and growth regulators represented about
one- fourth of a l l p e s t i c i d e s s o l d . Fumigants and herbicides each account
for about 20 percent of p e s t i c i d e s s o l d .
TABLE 2
1989 AGRICULTURAL PESTICIDE USE IN ARIZONA
AS CALCULATED FROM FORM 1080 AND SELLER DATA
Type of Pesticide
Insecticides
Herbicides
D e f o l i a n t s , dessicants,
and growth regulators
Fungicides and
b a c t e r i c i d e s
Fumigants
B i o l o g i c a l i n s e c t i c i d e s
Mi t i c i d e s
Nematicides
Rodenticides
0 the r
TOTAL
Total Active
lngredient
From Sellers
( I n Pounds)
Total Active
lngredient
From Form 1080
( I n Pounds)
Highest
Estimated Use
In Pounds( a)
( a ) This column represents the best estimate of t o t a l a g r i c u l t u r a l p e s t i c i d e use i n
Arizona. It was derived by determining f o r each i n d i v i d u a l a c t i v e i n g r e d i e n t the
higher of the two amounts i n d i c a t e d from Form 1080s and s e l l e r data.
Source: O f f i c e of the Auditor General s t a f f compilation of Form 1080s
and the information provided by permitted s e l l e r s o f pesticides
i n Arizona i n 1989.
Differences in estimates - As shown i n Table 2 , there i s of ten a great
difference between the amount of pesticides reported by dealers, and what
i s recorded on the Form 1080s. Consultants t o l d us there are several
reasons t h a t may account f o r t h i s d i f f e r e n c e . F i r s t , some sales f i g u r e s
may be greater than the Form 1080 f i g u r e s f o r the f o l l o w i n g reasons:
Many growers apply t h e i r own p e s t i c i d e s v i a ground a p p l i c a t i o n and,
therefore, are not requ i red to report these appl i cat ions on Form
1080s. This i s e s p e c i a l l y t r u e f o r h e r b i c i d e s , m i t i c i d e s , and
nemat i c i d e s .
Growers may purchase p e s t i c i d e s l a t e i n one year when p r i c e s are
r e l a t i v e l y low, but use them the next year. This could account f o r
e i t h e r a high or low r e p o r t i n g o f p a r t i c u l a r p e s t i c i d e s .
S e l l e r s may have reported t h e i r i n d u s t r i a l p e s t i c i d e sales along w i t h
t h e i r a g r i c u l t u r a l sales. They may also have included sales to sod
farms, g o l f courses, and simi l a r buyers, even though a p p l i c a t i o n s to
such l o c a t i o n s do not require the completion of a Form 1080.
S e l l e r s may have included o u t - o f - s t a t e s a l e s as i t would be d i f f i c u l t
to separate these from sales w i t h i n Arizona.
Some s e l l e r s may have included wholesale f i g u r e s i n t h e i r r e t a i l
sales, as they may not have considered t h a t buyers might r e - s e l l a
p e s t i c i d e . Therefore, some sales f i g u r e s may have been reported more
than once.
8 We d i d not survey government agencies, b u t according to our
consultants, s t a t e and local governments use s i g n i f i c a n t amounts of
p e s t i c i d e s .
Second, sales f i g u r e s may be less than Form 1080 f i g u r e s o r may be
underreported for the reasons that f o l l o w .
Some of the Form 1080 f i g u r e s may include p e s t i c i d e s purchased from
outside of Arizona and, t h e r e f o r e , would not appear i n our sales
f i g u r e s .
Although we sent each s e l l e r a survey l i s t i n g a l l p e s t i c i d e s
considered a g r i c u l t u r a l , several s e l l e r s d i d not use the survey and
may not have reported sales of what we considered to be a g r i c u l t u r a l
p e s t i c i d e s i e some s e l l e r s may have considered s u l f u r a
f e r t i l izer instead of a p e s t i c i d e ) .
8 Some growers may have used p e s t i c i d e s purchased p r i o r to 1989 and,
therefore, would not have recorded these p e s t i c i d e s i n 1989 sales
f i g u r e s .
Sellers may have d e l i b e r a t e l y underreported sales f i g u r e s .
Qualitative Review Of
Pesticide Use
The q u a l i t y o f p e s t i c i d e s used i n Arizona i s d i f f i c u l t to assess. The
s t a t u t e s do not s p e c i f i c a l l y d e f i n e what a q u a l i t a t i v e review should
e n t a i l . Based on our review of l i t e r a t u r e and discussion w i t h experts,
we l i m i t e d the scope o f our work to a review of the potency and t o x i c i t y
o f p e s t i c i d e s . However, information on the e f f e c t s o f many newer
products i s l i m i t e d .
New pesticides are more potent - I n most instances, modern p e s t i c i d e s are
manufactured to be more potent a t lower volume than those used i n the
past. Although some panel members agreed t h a t determining t h e q u a l i t y o f
both past and present p e s t i c i d e s i s very d i f f i c u l t , they t o l d us that one
way to assess the q u a l i t y of p e s t i c i d e s i s to compare the amount used
today to the amount used i n the past. The State Chemist's environmental
s p e c i a l i s t said t h a t the q u a n t i t y o f newer p e s t i c i d e s being used today
i s , i n some cases, only a small f r a c t i o n o f the amount of older
pesticides used a few years ago. Whereas most p e s t i c i d e s are s t i l l
applied i n gallons or quarts per acre, some are now a p p l i e d i n ounces or
grams per acre. For example, whereas a p p l i c a t i o n rates f o r c h l o r i n a t e d
hydrocarbons and organophosphates ( older types of p e s t i c i d e s ) may be as
high as 5 pounds o f a c t i v e ingredient per acre, average a p p l i c a t i o n rates
for pyrethroids used i n Arizona are only 0.1 pound o f a c t i v e ingredient
per acre. Experts i n d i c a t e the present trend continues to be toward
reducing the amount a p p l i e d per acre.
Toxicity of pesticides has decreased, but many remain harmful - Because
most p e s t i c i d e s are meant to destroy undesirable organisms, they are
obviously t o x i c m a t e r i a l s . However, i n recent years, due to a trend away
from highly t o x i c substances t h a t p e r s i s t i n the environment, p e s t i c i d e s
have been developed t h a t degrade more q u i c k l y . However, long- term h e a l t h
e f f e c t s of these newer products may not be well known.
" Signal words" on p e s t i c i d e labels i d e n t i f y the r e l a t i v e t o x i c i t y of a
product. The word " Danger" i d e n t i f i e s the substance as a h i g h l y t o x i c
one, and a taste to a teaspoonful of the product would very l i k e l y k i l l
the average person. The word " Warning" on the label means that the
product i s moderately t o x i c . A teaspoonful to a tablespoonful would also
be l i k e l y to k i l l the average person. The word " Caution" informs the
user that the m a t e r i a l has low t o x i c i t y and i s comparatively less
dangerous. However, ingesting an ounce to more than a p i n t could s t i l l
prove l e t h a l for the average person.
Panel members agreed t h a t even those p e s t i c i d e s t h a t are determined safe
by the EPA, may s t i l l be dangerous i f placed i n untrained hands. Of the
a c t i v e ingredients i n our study that were noted as being used or sold i n
Arizona, 22 are considered h i g h l y t o x i c and four are noted as being
odoriferous. For easy reference, these p e s t i c i d e s are p r i n t e d i n
boldface i n Appendix I .
Some pesticides affected by EPA and DEQ requirements - Because o f new
government requirements, some p e s t i c i d e manufacturers are choosing not to
r e r e g i s t e r some p e s t i c i d e s , w h i l e other p e s t i c i d e s do not meet the
requirements. The EPA allows p e s t i c i d e manufacturers several years to
prove t h e i r products a r e s a f e . The EPA may cancel product r e g i s t r a t i o n s
when companies f a i l to t e s t products, t e s t s f a i l to meet EPA
requirements, or t e s t r e s u l t s prove products are dangerous. Meanwhile,
DEQ requires companies to submit environmental f a t e data t o i d e n t i f y
p e s t i c i d e s that have the p o t e n t i a l t o p o l l u t e ground water. Some o f our
consultants stated t h a t p e s t i c i d e manufacturers are allowing some product
r e g i s t r a t i o n s to lapse when they discover that t h e cost of t e s t i n g t h e i r
products to meet EPA or DEQ requirements i s greater than the p r o f i t s they
can reasonably expect to o b t a i n from thei r s a l e . However, some
consultants also said that many of these products are e f f e c t i v e .
Pesticides determined dangerous ( e . g . , DDT) have been banned by the EPA.
Pesticides that have been banned, or w i l l be dropped, are noted i n
Appendix I . Of course, new products are constantly being introduced i n
the marketplace. However, according to the State Chemist's environmental
s p e c i a l i s t , some older p e s t i c i d e s may be as e f f e c t i v e as the newer ones
for p a r t i c u l a r crop and pest c o n d i t i o n s .
REVIEW OF PROFESSIONAL
AND ACADEMIC PROPOSALS
As the L e g i s l a t u r e d i r e c t e d our review include " proposals f o r p e s t i c i d e
regulation described i n professional and academic p u b l i c a t i o n s , " we
conducted an extensive search of a p p r o p r i a t e d a t a banks to o b t a i n
information on professional and academic proposals, as w e l l as other
needed information. This search i s described below. We also obtained
copies of a l l b i l Is before the U. S. Senate and the U. S. House of
Representatives, and copies of major regulatory proposals under
consideration i n the other 49 s t a t e s . Many of these p r o p o s a l s , o t h e r
regulatory a c t i v i t i e s , and regulatory problems were discussed i n personal
or telephone interviews w i t h o f f i c i a l s and experts throughout the United
States and Arizona who are responsible f o r , or concerned w i t h , p e s t i c i d e
regulation. The information developed i s r e f l e c t e d i n discussions and
Findings throughout the a u d i t r e p o r t s . A b i b l i o g r a p h y of the
p u b l i c a t i o n s and documents reviewed, along w i t h l i s t s o f o r g a n i z a t i o n s
contacted during the a u d i t , are l i s t e d i n Appendix I I .
General Findings From
The Literature Review
The l i t e r a t u r e search provided i n f o r m a t i o n to a s s i s t us i n many of our
Finding areas:
Food Safety - The l i t e r a t u r e indicated the p u b l i c ' s growing concern
about the a b i l i t y of the FDA to adequately sample and t e s t produce
f o r p e s t i c i d e s . The EPA's tolerance levels for p e s t i c i d e s i n food
were also questioned. Several s t a t e s have i n s t i t u t e d t h e i r own
t e s t i n g programs because of the perceived inadequacies of FDA's
program.
integrated Pest Management(') - l ntegrated Pest Management ( I PM) has
received a t t e n t i o n i n a number of recent s t u d i e s . Both t h e National
Research Council and the O f f i c e o f Technology Assessment have issued
reports that contain summaries and recommendations regarding IPM.
Several states have implemented extensive IPM programs and have
developed unique funding mechanisms for these programs.
( 1 ) I n t e g r a t e d Pest Management i s t h e use of b o t h chemical and nonchemical methods t o
suppress o r c o n t r o l crop i n f e s t a t i o n .
Pesticide Containers - Our review o f l i t e r a t u r e found that programs
are underway i n f i v e states to address the problems of p e s t i c i d e
container disposal. These programs encourage or mandate r e c y c l i n g or
reuse of containers. The p e s t i c i d e manufacturing industry i s also
moving towards recyclable and reusable containers.
Water Monitoring - According to the l i t e r a t u r e , monitoring for
pesticides i n water, p a r t i c u l a r l y ground water, i s a f a i r l y recent
phenomenon. Previous t h i n k i n g had supposed that ground water was
protected from p e s t i c i d e leaching. Testing performed i n the l a t e
7 1- L l - l
I r r u s ruurlu tr~ ar ground water was indeed being contami nated w i th
p e s t i c i d e s . As a r e s u l t , Federal and State programs have been
implemented to monitor for the presence of pesticides i n ground
water. Our review of the l i t e r a t u r e , however, found that few s t a t e s ,
to date, have yet developed a comprehensive ground water monitoring
system.
Worker Safety - Worker safety i s also addressed i n the l i t e r a t u r e .
We were able to derive information regarding the health e f f e c t s of
pesticides on workers.
Pesticide D r i f t Control - L i t e r a t u r e r e l a t i n g to d r i f t control ranged
from technical t r e a t i s e s t o recommendations on what states can do to
a l l e v i a t e problems caused by pesticides d r i f t i n g o f f target during
a p p l i c a t i o n . The Texas Center f o r P o l i c y Studies has released a
comprehensive study on t h i s topic and other p e s t i c i d e - r e l a t e d
problems now facing s t a t e s .
Pesticide Regulation
Criticized
We found few studies addressing the broader p o l i c y and s t r u c t u r a l issues
involved i n p e s t i c i d e r e g u l a t i o n . Two recent studies which address these
issues c r i t i c i z e current p e s t i c i d e regulatory practices at both the Sate
and Federal l e v e l s . Both the Texas Center f o r P o l i c y Studies i n i t s
report " The Pesticide C r i s i s : A B l u e p r i n t f o r States," and by Wi l liam H.
Rodgers, J r . i n " Environmental Law, Volume 3: Pesticides and Toxic
Substances" c i t e the lack of substantive information about p e s t i c i d e
t o x i c i t y , m o b i l i t y , and i t s use as a major stumbling block i n developing
e f f e c t i v e r e g u l a t i o n . The Texas Center notes that " state and federal
agencies are frozen i n the preposterous stance of p e r m i t t i n g the use of a
wide range of products without even the most basic information about
them." Rodgers' p o s i t i o n concurs w i t h t h i s , noting that " knowledge gaps"
e x i s t regarding p e s t i c i d e production, d i s t r i b u t i o n , usage, a p p l i c a t i o n ,
m o b i l i t y , t o x i c i t y , exposures, and economic advantages. Rodgers also
stated that developing p e s t i c i d e r e g u l a t i o n i s d i f f i c u l t because
regulatory duties are o f t e n fragmented among various agencies. In
a d d i t i o n , d i f f e r i n g p o i n t s of view about p e s t i c i d e issues have a tendency
to a t t r a c t i n t e r e s t groups t h a t c o n f l i c t ; and c o n f l i c t , not consensus, i s
the key to p e s t i c i d e law.
Methodology
Our review of professional and academic proposals was designed to secure
the r e q u i r e d i n f o r m a t i o n i n a timely manner a t the least possible c o s t .
Data bases a v a i l a b l e to the L e g i s l a t u r e and s t a t e agencies, through
s u b s c r i p t i o n or a t r e l a t i v e l y reasonable c o s t , provided most of the
c i t a t i o n s and abstracts needed. C i t a t i o n s and abstracts were then
reviewed to determine those p e r t i n e n t , and t e x t s were obtained, as
needed, from local l i b r a r i e s or purchased when otherwise u n a v a i l a b l e .
Copies of U. S. Senate and House of Representative B i l l s were provided by
the U. S. Congress. Copies of b i l l s r e c e n t l y adopted or pending i n s t a t e
l e g i s l a t u r e s were obtained from various s t a t e o f f i c i a l s during our survey
of s t a t u t o r y and a d m i n i s t r a t i v e p e s t i c i d e r e g u l a t o r y programs i n other
states ( see Appendix I I ) .
We i d e n t i f i e d and selected t h e data bases to be searched w i t h the
assistance of s t a f f of the U. S. Congressional Reference Services, the
L i b r a r y of Congress, the U. S. Department of A g r i c u l t u r e , the U. S.
Environmental P r o t e c t i o n Agency, the National Conference of State
L e g i s l a t u r e s , the Council of State Governments, and the State o f Arizona,
U n i v e r s i t y of Arizona, and Arizona State U n i v e r s i t y L i b r a r i e s . Major
data base searches were also conducted f r e e o f charge by the
Science- Engineering L i b r a r y of the U n i v e r s i t y of Arizona and, under
c o n t r a c t , by the Fee- Based Information and Research Service Team of the
Arizona State U n i v e r s i t y L i b r a r i e s ( ASU- FIRST).
Data Bases Searched
Two primary data bases, the AGRICOLA data base of the U. S. National
A g r i c u l t u r a l L i b r a r y ( 1984- 1989), B e l t s v i I I e , MD., and the ENVIROLINE
data base ( 1970- 1990) of R. R . Bunker, New York, N. Y., were searched by
the U n i v e r s i t y of Arizona and Arizona State U n i v e r s i t y ( ASU- FIRST),
r e s p e c t i v e l y . AGRICOLA provides comprehensive coverage of worldwide
journal l i t e r a t u r e and monographs on a g r i c u l t u r e and r e l a t e d s u b j e c t s .
AGRICOLA contains over 2.5 m i l l i o n records t h a t are updated monthly.
ENVlROLlNE provides indexing and a b s t r a c t i n g coverage of more than 5,000
i n t e r n a t i o n a l primary and secondary source p u b l i c a t i o n s , i n c l u d i n g the
Federal Register and other government documents, r e p o r t i n g on a l l aspects
of the environment. ENVlROLlNE contains over 131,000 records that are
also updated monthly.
In a d d i t i o n , the U n i v e r s i t y of Arizona searched the Selected Water
Resources Abstracts ( 1980- 1989) of the Department o f the I n t e r i o r , and
ASU- FIRST searched f o r n o n d u p l i c a t i v e c i t a t i o n s i n e i g h t other commercial
data bases. These data bases were AGRIBUSINESS U. S. A. ( 1985- 1990),
CHEMl CAL EXPOSURE ( 1 974- 1 987), ENV l RONMENTAL B l BL l OGRAPHY ( 1 974- 1 989),
FSTA/ Food Sc i ence and Techno I ogy Abs t rac t s ( 1 969- 1 990 ) , L l FE SC I ENCES
COLLECT l ON ( 1 979- 1 989), MEDL l NE ( 1 983- 1 990), N I OSH/ Occupat i ona I Safety &
Hea l t h ( N I OSH) ( 1973- 1 989) , and POLLUT l ON ABSTRACTS ( 1970- 1 990 ) .
C o l l e c t i v e l y , the a d d i t i o n a l data bases contained several m i l l i o n
a d d i t i o n a l records.
The U n i v e r s i t y of Arizona and the ASU- FIRST searches developed
approximately 1,800 and 1,500 c i t a t i o n s , r e s p e c t i v e l y . A l i m i t e d number
of a d d i t i o n a l p e s t i c i d e - r e l a t e d c i t a t i o n s were obtained from the data
bases of the National Conference of S t a t e L e g i s l a t u r e s ( LEGISNET) and the
Council of State Governments ( I S I S ) , which were t h e subject of o n - l i n e
searches conducted by a u d i t s t a f f , and commercial searches conducted by
the Comprehensive D i s s e r t a t i o n Query Service of Ann Arbor, Michigan.
PESTICIDE- RELATED INCIDENTS AND ACCIDENTS REPORTED
TO STATE AGENCIES
Chapter 162, Section 7 , o f the 1989 Session Laws requires us to compile a
l i s t i n g of the p e s t i c i d e - r e l a t e d i n c i d e n t s and accidents reported to four
s p e c i f i e d State agencies from the e f f e c t i v e date of the EQA
( August 13, 1986), through June 30, 1989. We reviewed documentation of
the incidents and accidents between these dates that were reported to the
Arizona Commission of A g r i c u l t u r e and H o r t i c u l t u r e ( ACAH), the Department
of Environmental Quality ( DEQ), the Department of Health Services ( DHS),
and the I n d u s t r i a l Commission of Arizona ( I C A ) , and i d e n t i f i e d 397
confirmed i n c i d e n t s i n v o l v i n g a g r i c u l t u r a l p e s t i c i d e s . ( ' ) The number of
incidents reported to each agency i s shown i n Table 3 ( see page 321, and
the f o l l o w i n g sections describe our f i n d i n g s i n d e t a i l .
Arizona Commission of Agriculture and Horticulture ( ACAH)
ACAH regulates p e s t i c i d e use through the l i c e n s i n g of users, s e l l e r s , and
applicators of a g r i c u l t u r a l p e s t i c i d e s . The Commission i s also
s t a t u t o r i l y mandated to i n v e s t i g a t e the complaints i t receives d i r e c t l y ,
and those referred to i t by other governmental agencies.
Between August 13, 1986 and June 30, 1989, the A g r i c u l t u r a l Chemicals and
Environmental Services D i v i s i o n of ACAH ( ACES) logged a t o t a l of 337
complaints. Of these, 17 were also reported to one or more other
agencies. Incidents reported to ACES cover a wide range of complaints.
For example, some c i t i z e n s l i v i n g near a g r i c u l t u r a l areas c a l l ACES when
pesticides d r i f t onto t h e i r property and cause health problems or damage
landscaping; others report being sprayed w i t h p e s t i c i d e s w h i l e d r i v i n g on
roads adjacent to these areas. In a d d i t i o n to complaints from p r i v a t e
c i t i z e n s , ACES also receives complaints from a number of specialized
groups: beekeepers report bees dying from p e s t i c i d e spray on blooming
( 1 ) Because some i n c i d e n t s were r e p o r t e d t o more than one agency, the number o f i n c i d e n t s
reported t o each agency t o t a l more than 397, and t h i s f i g u r e represents o n l y t h e
number o f unique i n c i d e n t s r e p o r t e d .
TABLE 3
AGRICULTURAL PESTICIDE - RELATED INCIDENTS AND ACCIDENTS
REPORTED TO STATE AGENCIES
811 3/ 86 - 6/ 30/ 89
Agency
Arizona Comnission of Agriculture
and Horticulture ( see also Table 4)
Bee Ki I I
Buffer Zone
Container Disposal
D r i f t
Health E f f e c t s
I l l e g a l Residue
Odor
O v e r f l i g h t
Ove rspray
Property Damage
A l l Others ( see Table 4)
Total
Department of Environmental Quality
Container Disposal
S o i l or Water Contamination
( two a l s o i n v o l v e d c o n t a i n e r s )
Accidental S p i l l s
( one a l s o i n v o l v e d c o n t a i n e r s )
Other
Total
Industrial Comnission of Arizona
Farmwo rker
Commercial A p p l i c a t i o n ' s Employee
Total
Department of Health Services
Farmworkers
Commercial A p p l i c a t o r Employees
General Public
Total
Numbe r of
Incidents
TOTAL 421
Less dupl icates ( reported to more than one agency) - 24
NUMBER OF UNIQUE INCIDENTS
Source: O f f i c e of the Auditor General s t a f f review of complaint logs,
inspection f i l e s , and i n v e s t i g a t i o n records at t h e Arizona
Commission of A g r i c u l t u r e and H o r t i c u l t u r e , the Department of
Environmental Q u a l i t y , the I n d u s t r i a l Commission of Arizona, and
the Department of H e a l t h S e r v i c e s .
f i e l d s or hives; school s t a f f c a l l about pesticide applications during
school hours without p r i o r notice or a proper buffer zone; and Federal
inspectors report i l l e g a l pesticide residue on Arizona produce tested
before sale. ACES also receives complaints involving pesticide
application a i r c r a f t . Table 4 ( see page 34) i l l u s t r a t e s the d i f f e r e n t
types of complaints reported to ACES.
We were able to confirm 337 incidents reported to ACES, but the actual
number may be much higher. Before logging a complaint, ACES v e r i f i e s the
incident involves a g r i c u l t u r a l pesticides. A separate record called a
Concern Log documents additional complaints. Between December 9, 1986
and June 14, 1989, the Concern Log l i s t s 201 incidents. ACES s t a f f said
some reported incidents are considered so minor they are not even l i s t e d
on the Concern Log. Other agencies did investigate some of these
incidents and found they involved a g r i c u l t u r a l pesticides. ( For a review
of ACAH enforcement programs, see Report # 90- 7, Findings I and I I .)
De~ artment of Environmental Qualitv ( DEQ)
DEQ directs e f f o r t s t o i d e n t i f y and clean up sites where s o i l or water
have been contaminated by pesticides or other hazardous materials,
whether caused by a temporary emergency or long- term residue buildup from
a g r i c u l t u r a l or industrial a c t i v i t i e s .
The Department receives complaints di rect ly from the pub1 i c and referrals
to i t by other agencies, including Federal, State, c i t y , county, and
t r i b a l governments. According to the Department's records, 57 incidents
involving a g r i c u l t u r a l pesticides were reported to and investigated by
them during the specified time period. Of these, one was also reported
to DHS. Reports f i l e d with DEQ include eleven accidental pesticide
spi l Is, 28 cases of desert dumping of pesticide containers, and 14 cases
of s o i l contamination a t a i r s t r i p s used by aerial applicators i n the
1960s before modern mixing and tank rinsing techniques were implemented.
TABLE 4
PESTICIDE- RELATED INCIDENTS AND ACCIDENTS REPORTED
TO THE ARIZONA COMMISSION ON AGRICULTURE 81 HORTICULTURE
BY FISCAL YEAR
Incident Type
Bee K i l l
Buffer Zone
Container Disposal
D i sposa l ( b)
Domestic Animals( b)
D r i f t
Health E f f e c t s
I l l e g a l Application( b)
I l l e g a l Residue
I l legal Sales( b1
Livestock( b)
Miscellaneous
Mi susecb)
No i se( b)
Odor
Over To l e rance
O v e r f l i g h t
Overspray
Pesticide Storage( b)
Property Damage
Spi I lscb,
Un 1 i censed( b1
Worker Safetycb)
TOTAL
Total
41
10
10
2
2
4 2
4 8
1
15
7
3
19
6
1
4 8
10
17
35
1
12
3
1
3
222
( a ) August 13, 1986 through June 30, 1987.
( b ) I n c i d e n t category was used i n only one or two o f t h e t h r e e f i s c a l years.
Source: Arizona Commission of A g r i c u l t u r e and H o r t i c u l t u r e , A g r i c u l t u r a l
Chemical and Environmental Services D i v i s i o n Annual Reports for
Fiscal Years 1986- 87, 1987- 88, and 1988- 89.
Like the other agencies we reviewed, DEQ may have received more
complaints i n v o l v i n g a g r i c u l t u r a l p e s t i c i d e s than we r e p o r t h e r e . The
Department could not produce f i l e s on 42 possible contamination s i t e s ,
some of which may have involved a g r i c u l t u r a l p e s t i c i d e s . I n a d d i t i o n ,
when we reviewed the Department's records i n March and A p r i l 1990, DEQ
had not y e t i n v e s t i g a t e d some events reported during the 1986- 89 time
period. DEQ records also i n d i c a t e t h a t some pesticide- contaminated s i t e s
discovered and reported before August 13, 1986, had not been cleaned up
by March 1990. I n searching for i n c i d e n t s reported w i t h i n the relevant
time frame, we uncovered information about 26 such s i t e s . ( ' )
Industrial Commission of Arizona ( ICA)
The Arizona Environmental Q u a l i t y Act of 1986 includes a s p e c i f i c mandate
for ICA to promulgate and enforce rules regarding worker s a f e t y from
p e s t i c i d e - r e l a t e d hazards. ICA's D i v i s i o n of Occupational Safety and
Health executes t h i s mandate by conducting o n - s i t e inspections a t farms
and commercial appl i c a t o r s ' faci I i t i e s i n response to complaints from
current employees at these locations.
We i d e n t i f i e d 12 a g r i c u l t u r a l p e s t i c i d e - r e l a t e d i n c i d e n t s t h a t were
reported to ICA d u r i n g t h e s p e c i f i e d time. Of these, s i x were also
reported to DHS. Incidents reported to ICA involved f i e l d w o r k e r s t h a t
were sprayed w i t h p e s t i c i d e s o r entered f i e l d s too soon a f t e r p e s t i c i d e s
were applied, and employees of commercial a p p l i c a t o r s t h a t were exposed
to p e s t i c i d e s while mixing or loading chemicals.
Again, incidents and accidents reported here may be understated. Between
August 1986 and June 1989, ICA received complaints and r e f e r r a l s on a t
least seven more events that appeared to be r e l a t e d to a g r i c u l t u r a l
p e s t i c i d e s . However, because these events were n o t reported by employees,
ICA d i d not i n v e s t i g a t e them.( 2) Therefore, we could not determine from
( 1 ) As we were searching f o r i n c i d e n t s reported w i t h i n the time p e r i o d d e f i n e d by H. B.
2090, we may not have encountered a l l s i t e s r e p o r t e d p r i o r t o t h a t p e r i o d t h a t a r e
s t i l l contaminated. More such s i t e s might be i d e n t i f i e d by examining DEQ's records
f o r years p r i o r t o 1986.
( 2 ) A. R. S. 523- 408 gives ICA the r e s p o n s i b i l i t y f o r i n v e s t i g a t i n g complaints signed by
employees or employee r e p r e s e n t a t i v e s , i f t h e r e a r e reasonable grounds t o be1 i eve a
v i o l a t i o n e x i s t s . Although the same statute a u t h o r i z e s ICA t o conduct o t h e r
i n v e s t i g a t i o n s deemed a p p r o p r i a t e by ICA's D i r e c t o r , the Agency has a p o l i c y o f n o t
i n v e s t i g a t i n g so- called " nonformal" complaints.
ICA's records whether these were v a l i d p e s t i c i d e - r e l a t e d i n c i d e n t s .
Furthermore, some i n c i d e n t s a f f e c t i n g migrant workers may never come to
ICAfs a t t e n t i o n , as these workers may be less l i k e l y than more secure
workers to f i l e complaints w i t h governmental agencies.
Department of Heal tt; Services ( DHS)
DHS i s required by s t a t u t e t o maintain a p e s t i c i d e r e g i s t r y ( a
compilation of p e s t i c i d e poisonings reported to the Department). Each
event recorded i n the r e g i s t r y i s c l a s s i f i e d as a " case", " suspected
case", or " no case", according to the assessment of the heal thcare
professional who treated the a f f e c t e d person. DHS received healthcare
p r o f e s s i o n a l s ' reports of 14 a g r i c u l t u r a l p e s t i c i d e - r e l a t e d i n c i d e n t s
t h a t r e s u l t e d i n 25 " cases" or I1suspected cases" o f p e s t i c i d e poisoning.
Six of these were also reported to I C A .
I n a d d i t i o n t o P e s t i c i d e Poisoning S u r v e i l l a n c e Reports submitted by
healthcare p r o f e s s i o n a l s , DHS receives complaints from people who b e l i e v e
they may have been exposed to pest i c i des . The Department i nves t i gates
these incidents, and provides information and assistance to the
complainant. However, i f the a f f e c t e d person d i d not consult a
healthcare p r o f e s s i o n a l , or i f the healthcare professional d i d not report
the incident to DHS as a confirmed " case" or " suspected case", DHS
c lass i f i es the i nc i dent as " no case".
Aside from recording the number of a g r i c u l t u r a l p e s t i c i d e - r e l a t e d
i n c i d e n t s , the P e s t i c i d e R e g i s t r y a l s o l i s t s 27 " cases" and " suspected
cases" related t o s t r u c t u r a l and h o r t i c u l t u r a l p e s t i c i d e s , and eleven
cases of other or unknown o r i g i n . Poisonings from a v a r i e t y of causes,
i n c l u d i n g occupational exposure and accidental contact w i t h discarded
p e s t i c i d e containers, are reported to DHS.
The number of p e s t i c i d e poisonings during the relevant time period may be
greater than the 14 reported here. According to DHS o f f i c i a l s , many
v i c t i m s , e s p e c i a l l y migrant workers, do not v i s i t healthcare
professionals i n Arizona, and some healthcare professionals f a i l to
report poisonings. ( See Report # 90- 10, Finding I . ) Our research at ACAH
indicated many people who reported health problems to ACAH d i d not seek
medical care, and ACAH d i d not always inform DHS of health complaints
r e l a t e d to p e s t i c i d e s . In a d d i t i o n , DHS' Pesticide Poisoning
S u r v e i l l a n c e Report form does not r e q u i r e a d e s c r i p t i o n of the event that
caused the poisoning, or i d e n t i f i c a t i o n of the substance involved. We
counted only those i n c i d e n t s where supplementary information indicated
they were r e l a t e d to a g r i c u l t u r a l p e s t i c i d e s .
, 9 xrt
Arizona ( ommission of
%. +& - 4 fa Agriculture and Uorticulture 4,
I \<! 99zS0 1688 WEST ADAM PHOENIX, ARIZONA 85007 ( 602) 542- 4373
District Offices ( Fruit Er Vegetable Standardization
Market News
I OFFICE OF THE DIRECTOR
FIELD SERVICES
Office of the State Chemist
State Agricultural Laboratory
Agricultural Chemicals and
Environmental Services Division
Mr. Douglas R. Norton
Auditor General
2700 North Central Ave.
Phoenix, AZ 85004
RE: Agency Response to Pesticide Regulation Draft
Dear M r . Norton:
The agency response to the seven findings of your audit to the
pesticide regulations is enclosed. Also included is the Comnission
response as faxed to us by Kenny Evans, Chahman.
If you have any questions, please cantact me.
Dr. Ivan Shields, Director
Camcission of Agriculture
and Horticulture
m: tg
Enclosure
November 29, 1990
Douglas Norton
Auditor General
1700 North Central Suite 900
Phoenix, Arizona 85004
Mr. Norton:
We appreciate the opportunity to comment on items reviewed
during your recent audit. The scope of your audit made
completion nearly impossible in the time frame allotted. Your
staff did a commendable job, considering the magnitude and nature
of the work required. Audits generally focus on negatives. On
complex issues, the public has a right to have the State's
successes highlighted as well. Although the successes are
acknowledged in your report, for balance, they ought to be
highlighted just as the shortcomings are.
As Commissioners, we take the findings of the audit very
seriously. We consider allegations that State employees have
failed to enforce pesticide rules as a serious breach of
responsibility. Although our first reaction was anger and
disappointment, we have chosen to use the resources at our
disposal to investigate and correct the problems identified. As
you are aware, we have already asked the Attorney General to
investigate and prosecute any employee who has broken the law.
We have also asked the Attorney General to provide counsel about
possible disciplinary action we can take against any employee who
is proven to have failed to carry out the rules adopted by the
Commission. We ask that allegations of malfeasance or obstruction
of justice be vigorously prosecuted. We also ask that you direct
Commissioners Response
Page 2
your staff to cooperate in those endeavors.
As farmers and ranchers, we want the rules enforced
vigorously, but fairly. We want the farmers and applicators to
be educated to PREVENT violations and to eliminate unnecessary
pesticide use. If violations occur, we want the violators
punished as per the rules. We want the " bad guys" -- those with
repeated serious convictions put out of business. They must be
afforded their constitutional rights, but once due process has
been served we expect enforcement of the rules. Anything less is
just not acceptable. If the incidents cited in the report are
accurate, enforcement has not been fair or strict enough.
We concur with the audit report finding regarding drift and
pesticide container disposal. Both issues pose significant legal
and technical issues but they must be addressed and resolved.
The Federal EPA has worked more than 5 years now on the Drift
issue and still have not even come up with a definition for
drift. We believe that perceived exposure poses a problem
whether or not actual exposure occurred. We further believe that
much of the problem resolves around being a " good neighbor." We
have developed buffer Zones, PMA's and " Sensitive Areas" with
that in mind. Unfortunately, we can not force someone to be a
good neighbor. We would support efforts to eliminate off target
exposure to drift.
The container storage and disposal issue is by far the most
hazardous pesticide issue facing both the public and the
industry. We strongly support efforts to provide " cradle to
Commissioners Response
page 3
grave' tracking of pesticide containers and believe a technical
advisory team could develop a workable plan to minimize or
eliminate improper pesticide container disposal.
The statutory division of responsibilities within the
Commission between the staff ( state employees who are supposed to
enforce the law) and the Commissioners ( public and industry
representatives who adopt the rules) will cease to exist in one
month ( December 31, 1990). At that point, state employees under
the new Director will assume all of the responsibilities in the
newly formed Department of Agriculture. We believe the new
Director ought to and will use the information from the audit and
the subsequent information and counsel received from the Attorney
General in structuring the new Department of Agriculture.
As a Commission, we spent thousands of hours developing
what you, and others, acknowledge are some of the most stringent
and comprehensive environmental regulations in the entire
country. We studied more than 3,000 pages of technical data and
pushed through some of the most significant rule changes in the
State's history. We faced many obstacles in that process.
Political activist pushed for more stringent rules. Industry
spokesmen testified that the proposed rules were stricter than
other states and would discriminate against Arizona's family
farmers. The compromise reached did not give either side all
that they wanted. The compromise rules finally adopted favor the
environment more than industry. As you report, the rules compare
Commissioners Response
page 4
favorably to any state -- even California. They are more
stringent than liberal, environmentally activist states like
Massachusetts or Vermont. Adoption of the rule package
represents a negotiated balance between conflicting interest
groups. With the exception of a small number of technical, legal
issues on which we received conflicting legal counsel, the rules
carry out legislative intent. In the highly charged emotional
climate that surrounds environmental issues, we are the only
agency to have completed that monumental rule making task.
During the period of transition we experienced the following
transitional conditions:
PERIODS IN WHICH WE WERE TRYING TO ENFORCE RULES:
1) Based on: PRIOR LAW with PRIOR RULES & REGULATIONS
2) Based on: SOMENEW LAWS BUTMOST OLD RULES
3) Based on: NEW LAW, SOME NEW RULES & SOME OLD RULES
4) Based on: NEW LAW, MOST NEW RULES & SOME OLD RULES
5) Based on: NEW LAW and ALL NEW RULES
Obviously, this transition created periods of confusion.
Some of the incidents cited in the audit report show that even
the audit staff, after months of study, misinterpreted which
rules were in effect at which times. Application of rule in each
time frame was based on counsel received from the Attorney
General's representative. It is not valid to criticize the
agency for failing to enforce a rule if the rule or procedure was
not even adopted until after the incident occurred. We have made
great strides in getting the rules and regulations in place. We
Commissioners Response
page 5
have struggled to train and re- train and cross- train the staff.
We have spent significant time and resources educating, training
and certifying the farmers, pest control advisers, sellers and
others who handle ag chemicals. In fact, other states have even
patterned their programs on our successes. We are, therefore,
extremely disappointed to learn of your allegations that the
Director and his staff, who are given the statutory
res~ onsibilitv by the leaislature to enforce the law and rules,
have been " reluctant" so to do. As discussed above, the staff
performance is being addressed by the Attorney General. The
rules are not the problem, enforcement may have been.
Many of the topics discussed in the audit are emotionally
charged, highly technical issues about which some of the best
experts in the world disagree. On some of these issues, the
brevity which was required in preparing the document only allowed
your staff to include generalizations or judgmental comments.
Some points are of such significance that they require a more in
depth response. As an example, IPM is a simple acronym used to
describe a very general concept. Some aspects of the concept are
well understood, easily documented and widely used. Other
aspects are highly technical, undocumented and often
speculatively at best. In Arizona, the principles of Integrated
Pest Management are more widely accepted and used than in most
any other state. We applaud the efforts of the staff person who
focused on this issue. We concur that more can and should be
Commissioners Response
page 6
done to develop additional IPM practices that Arizona farmers can
use. Adding additional taxes on the farmer to do this is not the
correct approach. California currently spends millions annually
trying to find new IPM techniques. Any techniques developed by
them will be readily adopted and used by Arizona farmers as well.
Arizona's farmers, throuah self im~ osed taxes, already spend 12
times more than State Government on IPM in an attempt to reduce
the amount of agricultural chemicals we must use. Everyone
benefits from those expenditures. The need is for a more
BALANCED BASE of financial support. Though we are a model for
other states to emulate, more can be done. Unfortunately, some
of our best tools -- ie. quarantines and inspection stations --
meet stiff public resistance. The key is education, not money.
Emphasis should be placed on all aspects and options for pest
control including, but not limited to, safe pesticide use and
worker safety training.
Some of the enforcement issues are complex from both a
legal and technical standpoint. On some issues, the State and
Federal regulations have changed -- sometimes more than once --
during the period reviewed. Issues such as 1) constitutional
presumption of innocence vs. rules of evidence, 2) conflicting
primacy on Federal and State FIFRA, CERCLA, CWA and OSHA
Regulations -- ie. which agency does what. 3) an individual's
constitutional rights against double jeopardy -- ie, allowing
the agency with the stiffest penalty structure to take the lead
Commissioners Response
Page 7
in prosecuting serious offenses, 4) the right to know vs.
historic property rights issues, 5) how to proceed when we
receive conflicting legal counsel, etc. It is understandable,
therefore, how some of the rules or events were misunderstood or
misinterpreted by the auditors in the legislatively imposed rush
to complete the audit. For instance, through out the document,
staffers equate the issuance of a citation with a finding of
guilt ( ie. see pages 24- 26). An individual is innocent until
PROVEN guilty. The issuance of a citation was intended to be a
charge that the person MAY have violated a rule. The receipt of
a complaint was to be handled as a POTENTIAL violation -- or a
request for information depending upon the circumstance. With
that in mind, for several years, we actively encouraged people to
call ACAH whenever they had a concern, whether it involved an
incident or not. We discussed and announced this through
television and the other media in an effort to get people to call
in so we could discuss their concerns. We even went so far as
to print up wallet size cards with our phone number and general
safety information. We assumed that educating the public and
allaying unnecessary fears was a part of our mission. Obviously,
encouraging the public to call backfired on us. First,
additional calls were misinterpreted as meaning more problems
existed. Secondly, staff persons who become over zealous in
trying to allay public fears may cross the line and becon~ e
" reluctant" to investigate potential violations. Even the
process initiated may create that perception of reluctance or
Commissioners Response
page 8
" cover- up" whether or not it is true.
In another classic example of the confusing and complex
nature of the rules, the auditorf s analysis of the point system
failed to identify that the points are cumulative both within and
across categories. This results in a gross under estimation of
the number of points assignable with a given violation. In the
example used, the auditor misstated that a pesticide user who
killed an endangered bird would receive the same point penalty as
one who killed a sparrow. The point system actually allows
double the point penalty quoted -- 1- 10 points under 2. d.
( nontarget bird kills.) PLUS 1- 10 more under 2. i. ( killing one
... endangered species). Additionally, he could receive up to 30
additional points if he contaminated water, soil and caused
property damage in the same incident. ~ dditional points assigned
under sections 3, 4, 5, and 6 could bring the total up to 135
points -- well over the amount needed to levy the maximum fine
and penalty. The points are cumulative not singular.
Additionally, the violator is subject to Federal Civil and
Criminal Prosecution as well. The rules are adequate -- provided
enforcement is fair but strict. That may not have been the case.
Funding for pesticide enforcement continues to be a problem.
The DOA grade classifications discriminate against ACAH pesticide
inspectors. Once trained and qualified, pesticide inspectors and
chemists can get jobs at ADEQ or other sister agencies at an
average 1- 3 grade levels higher than with the Commission. This
Commissioners Response
page 9
adds to high turn over rates, increases training costs and lowers
staff moral. The Public currently places a great deal of
emphasis on environmental issues, including pesticides. They
expect the State's pesticide inspectors to be at least equally
competent with other state employees. Fairness would indicate a
review in this area is warranted.
The State Ag Lab and State Chemist have been housed in a
facility that could not even be certified if it were a private
laboratory. For more that four years we have fought with DOA
about getting moved to a modern facility. Although that will be
accomplished in the near future, the results of being forced to
work in a substandard facility are reflected in tardy reporting
as documented in your report. Staff did a credible job
considering the difficult surroundings.
In summary, trying to measure the success of pesticide
enforcement is difficult. . The process is made even more
difficult when:
1) dramatic changes in the rules occur during
the audit period
2) public awareness and sensitivity to the issues
increase markedly, as evidenced by significant
increases in complaints and incidents in other
states.
3) the counsel received about legal issues changes
in response to changing circumstances
4) the Commission of Ag and Horticulture will be
replaced by the new Department of Agriculture in
less than a month.
We believe that farmers and ranchers want vigorous, fair
Commissioners Response
page 10
enforcement of pesticide rules. We support efforts to eliminate
all unnecessary use of agricultural chemicals. We believe that
improper storage and disposal of pesticide containers continues
to pose the most significant threat to both people and the
environment. We encourage the appointment of a task force to
develop innovative methods of solving this problem. We believe
that drift is a major problem complicated by urban sprawl and
poor planning and zoning. We support efforts to develop better
target efficiencies and to increase the use and effectiveness of
sensitive areas, Pest Management Areas and Buffer Zones.
We concur that enforcement is as much an attitude as a
process. We have requested the Attorney General look into issues
raised in your report. If violations of law have occurred we
have requested that they be prosecuted. If, as you assert, staff
has been " reluctant" to enforce the regulations we worked so hard
to get into place, disciplinary action will be recommended.
Finally, we believe our rules and our results compare very
favorably with other states -- when results are measured as
protection of public health and the environment -- not as
telephone calls. ~ uch more can and ought to be done. The
poisoning of even one child because of improper storage or
disposal is a tragedy that must be eliminated. But progress must
be measured by not only where we are but where we have come from.
Six years ago pesticide incidents were on the front page of the
newspaper at least once a week. During the early 19801s, more
complaints were received in some months than we have received in
Commissioners Response
page 11
TOTAL over the last three years. Much more needs to be done but
much improvement has, in fact, already occurred. With the
assistance and support of the legislature and the public at
large, we expect that Arizona will emerge as a model for other
states. More importantly, we will be able to control pests with
less chemical usage and with fewer problems for both humans and
the environment.
Attached herewith is a summary response requested from the
staff. It is not offered as Commission policy, neither has it
been edited by the Commissioners. It is offered as perspective
only.
Chairman
Arizona Commission of Agriculture & Horticulture
ARIZONA COWMISSION OF AGRICULTURE & HORTICULTURE
RESPONSES TO AUDITOR GENERAL'S REPORT
FINDING I - ACAH IS RELUCTANT TO CONDUCT THROUGH AND TIMELY
INVESTIGATIONS OF PESTICIDE COMPLAINTS.
RESPONSE: The Commission accepts the Auditor General's finding,
however, investigations were assigned and conducted
according to established priorities and investigated in
a thorough and objective manner with the evidence
collected determining the outcome. The audit concedes
that investigations were generally initiated withrn one
day of receipt of the complaint. It is felt that had it
not been for budget constraints, personnel shortages and
demands on the inspectors' time for other required
pesticide regulatory duties that the ACAH would have been
able to reduce delays and initiate more investigations on
its own initiative. An additional factor is that the
program is relatively new and the performance audit was
commenced shortly after the program began.
If full staffing had been maintained within the various
program responsibilities we believe that acceptable
program objectives ~ ould have been attained. Higher
performance with additional better qualified personnel
needs to be considered to accomplish the mandated
- objectives.
Possible Violations Are Not Investiqated:
In the example of the 1989 incident the audit references
on page 8 the concerned homeowner cal led to inquire as to
certain specifics about an application in progress. The
homeowner was concerned because the family had a history
of allergies. The agency receives many calls about the
use of pesticides and it may be interpreted as a concern
by the receiver of the call and a complaint by the
caller.
Every complaint of a non- notification of a school is
investigated. However, there have been many instances in
which during the preliminary investigation it was
discovered that the application was outside the statutory
limitations.
Staff interpretation of the incidences listed as examples
on pages 9 and 10 does not agree with the interpretation
by the auditors. As an example, the 1987 monitoring
incident, the Division Director did not request that the
monitoring form be rewritten. The inspector doing the
monitoring had made a contradiction on the form and it
was suggested it be corrected to remove the
contradiction. The correction strengthened the ACES
position of a possible violation had a complaint been
received. The staff did not feel that a complaint was
necessary under the circumstances.
Investiqations Appear Designed To Isnore Violations:
Under this heading the statement " Even when ACES does
pursue a complaint, the manner in which investigations
are conducted often appears designed to avoid identifying
violations." If the percentage of cases proven to be
violative is considered the preceding statement is
inconsistent with that fact.
On the following page 11, two cases are offered as proof
that " ACES often closes cases without thoroughly
investigating the complaints."
The first case was investigated f 01 1 owing a1 1 procedures,
samples were taken, residues found, application records
located, area treated identified, statements taken from
complainant and a witness, and the applicator interviewed
( he did elect not to give a written statement). The
investigation determined that there was not a violation
of buffer zone statutes. The persons writing the report
may disagree with the charge made against the applicator
and the resulting penalty, but for them to use this case
as an example of a lack of a thorough investigation is
not consistent with the point they attempt to make.
The second example is inconsistent with the case file and
considerable time and effort was spent by a competent
inspector and no documented evidence was found. The case
was closed because no corroborating evidence supporting
the complaint could be discovered after a comprehensive
in~ estigat~ ionn, o t because of the reason stated in the
report.
Investiqations not pursued without documentation of
application. This statement is not consistent with
policies adopted by the agency. It is true that a copy
of the pesticide- use report ( Form 1080) does much better
document the facts of the case relating to the
application and does so under the signature of the
applicator. The auditors themselves reviewed a case in
which an applicator did not submit a Form 1080 and the
applicator was charged with a violation. In another case
a Form 1080 was never found, even though spray records
for both farms were reviewed by the inspector. In
addition, comments were made concerning a lack of a
description of the aircraft by the complainant and the
results of the laboratory analysis of the sample. No
mention is made that the case file contains information
that the incident occurred at night and the complainant
stated he could only see the lights of the aircraft or
that the case file contains information that the man's
wife had washed his motorcycle prior to the samples being
taken thereby making the samples useless. This case was
not closed because of not having a Form 1080. It was
closed because ACES could not document a violation.
Substantial Delays In Investigative Process:
It is implied that ACAH intentionally delays its
investigations. As has been previously pointed out,
investigations are initiated immediately. Delays that
may occur are, considering available staff and workload,
those that are beyond the control of the person doing the
investigation.
It is the interpretation of the Attorney General's office
that the clock starts at the initiation of the
investigation.
Recommendations.
One recommendation is that ACAH needs to initiate more
complaints on its own, not just those of third parties.
Considering the amount or case work now accomplished by
an extremely small staff, the only way the agency could
initiate more cases is to have a larger staff of
investigators, more office support, more chemists and a
much larger budget. At the conclusion of the 1990
monitoring season, all ACES inspectors had accrued the
maximum of 240 hours of overtime and the mileage budget
was depleted.
FINDING I1 - ACAH HAS NOT TAKEN ADEQUATE DISCIPLINARY ACTIONS IN
PESTICIDE ENFORCEMENT CASES
RESPONSE: The Commission accepts the finding of the Auditor
General, however, disciplinary action was imposed
according to the statute and the rules to be enforced.
Early enforcement ( August 13, 1986 to November, 1987) was
hampered as rules had not been passed to clarify the
statutes. Letters of Warning and Notices of Concern were
utilized by the former agency regulating pesticides and
the Attorney General's office suggested their use be
retained. This advice was rescinded by a second opinion
from the Attorney General's Office on November 14, 1989.
Citations negotiated were done so with the full knowledge
of the Attorney General's Office. No negotiation
guidelines or interpretations were made by the Attorney
General's Office until November 1989. All fines were
assessed pursuant to the statutes, dependent on the
circumstances and no leniency was allowed.
FINDING I11 - MORE CAN BE DONE TO ADDRESS THE PROBLEM OF
PESTICIDE DRIFT IN RESIDENTIAL AREAS.
RESPONSE: The Commission concurs and would support a statute change
allowing for a greater buffer zone distance in
residential areas and in some areas the application of
pesticides may need to be restricted to ground powered
equipment only. Studies have supported this and more
emphasis needs to be placed on keeping pesticides within
the target area.
With additional funding from the legislature the ACAH
could sponsor studies to aid in the development of drift
reduction measures.
FINDING IV - IMPROPER DISPOSAL OF PESTICIDE CONTAINERS HAS BEEN
WIDESPREAD.
RESPONSE: The Commission concurs, however, the Commission feels
that with additional emphasis on education and with the
cooperation of the industry to design new dissolvable and
returnable containers that this condition can be overcome
in the future. Improper disposal of pesticide containers
can best be addressed through proper education of the
pesticide user.
FINDING V - CAN ARIZONA DO MORE TO REDUCE THE USE OF
AGRICULTURAL PESTICIDES?
RESPONSE: We have requested and are continuing to request
additional funding to support the IPM principles.
Additional reduction of pesticide use is possible with
additional education, research and promotion of IPM
principles.. However the varying weather conditions
complicate the implementation of certain IPM principles.
FINDING VI - A MORE COORDINATED AND COMPREHENSIVE PESTICIDE
REPORTING SYSTEM COULD BENEFIT THE STATE.
RESPONSE: The Commission concurs. We have initiated a study and
are investigating a plan with the ADEQ on how to best
approach the problem of gathering the required
information without duplication of reporting
requirements.
FINDING VII - ACAH NEEDS TO REVISE ITS RULES ESTABLISHING
ENFORCEMENT PENALTIES.
RESPONSE: The Commission concurs. As we continue to refine our
program, information is being gathered to strengthen the
enforcement capabilities of the Commission. Under the
administrative procedures act, changes cannot be
accomplished until all aspects of the act are complied
with; this requires nine months to a year to accomplish.
ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY
ROSE MOFFORD. GOVERNOR
RANDOLPH WOOD. DIRECTOR
I November 29, 1990
Mr. Douglas R. Norton, Auditor General
Office of the Auditor General 1 2700 North Central Avenue, Suite 700
Phoenix, Arizona 85004
t Dear Mr. Norton:
-
Thank you for the opportunity to meet with your staff members on
November 20, 1990, regarding our review of performance audit
reports entitled Pesticide Regulation: Department of Environmental
Quality and Pesticide Regulation: Programwide Issues. We also
appreciate the receptivity of your office to our concerns about I these reports. The comments should be used as appendices to the
reports.
During our November 20 meeting we discussed the footnote to ) Table 1, on page 2 of Pesticide Regulation: Programwide Issues.
Although the revised preliminary report draft contains a change in
I the footnotes. I consider that a more accurate statement would be:
rn 1. The Department's accounting system does not break out
expenditures that are specifically related to pesticides. This I is because of the many mandates that ADEQ must carry out,
and hazardous substances in addition to pesticides it must
regulate. However, estimates of the costs for handling
I pesticide- related matters were provided by both ADEQ programs
covered by the audit.
To facilitate the review process, our specific comments are
provided as attachments to this letter.
Our most significant concern regarding the performance audit of the
E Poens ttihcei dree pCoorntt abmyi nJa. tFi. onA Prrteivoelnat, i oJn. PCrhoegrrnaimc kiys, t hM. e aBurduists'esa ur ealnida nJc. e
Watson, which was commissioned by your office. After carefully
evaluating their report, we believe that the consultants were not
given all the information that they needed for the purpose of
performing an adequate review of the program. Members of my staff
disagree with several conclusions reached by the consultants.
Their rebuttal is attached to this letter.
As currently written, the performance audit of the pesticide
related cases managed by the hazardous waste program may give ) readers the impression that the two example cases cited are
representative of all cases handled by the program. In fact,
members of your staff requested information on 107 cases managed
The Department of Environmental Quality is An Equal Opportunity Affirmative Action Employer. I Central Palm Plaza Building 2005 North Central Avenue Phoenix, Arizona 85004
Mr. Douglas R. Norton
Auditor General
November 29, 1990
Page Two
by the hazardous waste program. Of these cases, only 29 were still
active cases at the time of the audit. Eleven of the cases have
been open for three or more years. Most of the unresolved cases
involve long term monitoring ( post- closure care) or extensive
remedial work. Seventy- three percent of the audited cases have
been resolved by the efforts of my staff. The tremendous cost of
environmental contamination clean up forces small businesses into
considering alternatives that are rejected due to legal or
technical obstacles. This results in '' false starts1' by the
responsible party that cause considerable delays. Where there is
no imminent or substantial endangerment to environment or human
health, the Arizona Department of Environmental Quality ( ADEQ)
affords the responsible party many opportunities to voluntarily
resolve the problem in an affordable manner.
The auditor's reports failed to acknowledge that ADEQ always takes
immediate actions to abate imminent hazards. For example, during
1987 - 1989, ADEQ secured immediate hazard abatement for 36 of 65
pesticide incident reports received during this period. Fifteen
of the remaining 29 cases were determined to pose no threat to
human health and the environment. The remainder were handled by
other agencies, including local authorities. Hazardous waste
program policy dictates that immediate hazards must be abated for
all cases received by the various units having responsibility.
Such interim protective measures include erection of fencing,
removal of abandoned drums, removal of grossly contaminated soil,
and placement of cap materials such as clay on top of contaminated
sites. Once a site has been stabilized, long term remedial measures
are scheduled with the responsible party.
It is also important to note that only 14 percent of ADEQ1s
hazardous waste cases involve pesticides. In fact, only 41 of
approximately 350 commercial chemical products listed as hazardous
wastes are pesticides. The universe of hazardous substances that
ADEQ must respond to includes many immediately dangerous compounds
that are not pesticides such as explosives, cyanides and
flammables.
During the past two years, ADEQ has taken many significant
enforcement actions against violators. For example, we have
assessed greater than $ 30,000 in civil penalties from four
facilities. These were the first civil actions ever taken in the
history of the State of Arizona for violation of environmental
protection laws. Seven additional cases were referred to the
Attorney General's Office for civil penalties during the past year.
Mr. Douglas R. Norton
Auditor General
November 29, 1990
Page Three
In summary, our pesticide related cases are managed by eliminating
the immediate hazards and then ranking them with all other pending
hazardous waste cases that must be resolved. The time required to
resolve each case often depends on the responsible party's
willingness to make the significant financial commitment that is
always necessary for rapid correction of problems. Our limited
manpower resources are used to address the most dangerous
environmental problems. Existing laws and rules afford responsible
parties the right to legal due process that is often used by them
to delay final problem resolution. Although we are always striving
to improve our performance, we believe the compliance progress made
and environmental protection afforded by the approximately 200
hazardous waste cases that we were able to close last year is a
respectable achievement.
Please call me directly at 257- 6917, if you wish to discuss this
letter or the enclosed materials.
Sincerely,
A+ L d L Randolph ood, Director
Attachments
ATTACHMENT TWO November 29, 1990
COMMENTS ON
AUDITOR GENERAL'S OFFICE
REVISED PRELIMINARY REPORTS ON PESTICIDE
REGULATION: PROGRAMWIDE ISSUES
General Comments
A factor affecting timeliness discussed with the auditors during
their staff interviews was laboratory turnaround time. ADEQ uses
the Arizona Department of Health services State Laboratory for its
laboratory services because we are assured of good chain of custody
procedures and expert witnesses. However, the lab has its own
manpower problems which have resulted in 6 to 8 months between
sample submittal and sample result reporting for some samples. The
Office of Waste Programs routinely collects split samples at sites
contaminated by hazardous waste to ensure that honest and accurate
results are reported by responsible parties. Remedial projects
often involve several phases of sampling and a report must be
submitted for each phase. ADEQ must wait for our lab results to
come in before completing the review of reports submitted by
facility owners.
The report makes no statements about the program's outreach and
education efforts. In fact, there are many examples of such
activity and services provided by the program. These include our
efforts to resolve the issue of pesticide container burning, public
presentations on pesticide container disposal, technical assistance
meetings and phone consultations.
The report neglects to acknowledge the program's attempts to
resolve pesticide clean up projects through the use of nationally
accepted technical and scientific standards. These include health
risk assessments, geohydrological investigations, statistically
sound sampling methods, and proper laboratory quality assurance/
quality control procedures. The application of these methods
ensures legally defensible clean up decision making which we
believe is important for preserving the Department's public
accountability.
specific Comments
Needed: A Commitment to Enforcement, pages 13 and 14:
The major recommendation of the report is the development of a
commitment to better enforcement. The report also states that
Arizona has good pesticide laws.
Response : During staff interviews with auditors, two
significant legal weaknesses were pointed out. These include the
Department's inability to obtain administrative penalties and
limitations of the Water Quality Assurance Revolving Fund ( WQARF)
law.
We appreciate the incorporation of our comments regarding these
issues into the preliminary draft report. However, we believe it
is necessary to reprint our comments about the " state superfund
law" ( WQARF) and quality of legal services at this time because the
discussion given in the preliminary draft report was inadequate.
Current WQARF statutes limit the use of the fund and its
authorities to situations where either ground water or surface
water of the state is threatened by a release of a hazardous
substance. This precludes the use of this body of laws in cases
where there are no nearby floodplains or aquifers. The second
example of a hazardous waste disposal site described on page 23 of
the report entitled Pesticide Regulation: Department of
Environmental Quality is currently ineligible for WQARF funding
because of this provision. Staff recommended to the auditors that
the WQARF statutes should be revised by the legislature to include
threats to human health or wildlife populations as criteria that
would trigger the use of the fund. Similar authorities exist in
CERCLA.
We also recommend improvement of legal services available to the
agency and its compliance programs. Examples of significant delays
in case evaluation by the Attorney General's Office were pointed
out during the audit. Staff attorneys who are ADEQ employees,
similar to the EPA1s Office of Legal Counsel, would improve
communications and provide more direct case management by DEQ.
Pesticide- Related Incident. and Accidents Reported to State
Agencies, page 33 urd 34 :
The report states that contamination at airstrips used by aerial
applicators occurred in the 1960s.
Response : The statement made in the report is inaccurate. ADEQ
has documented improper pesticide container rinsate disposal during
the 1980s. It is likely that improper disposal practices occurred
at most aerial applicator airstrips in Arizona until ADEQ
