Performance audit, pesticide regulation, Industrial Commission

              PERFORMANCE AUDIT
PESTICIDE REGULATION
INDUSTRIAL COMMISSSION
Report to the Arizona Legislature
By the Auditor General
November 1990
90- 9
DOUGLAS R NORTON. CPA
AUDITOR GENERAL
STATE OF ARlZONA
OFFICE OF THE
AUDITOR GENERAL
LINDA J. BLESSING. CPA
DEWTY AUDITOR GENERAL
November 30, 1990
Members of the Legislature
State of Arizona
The Honorable Rose Yofford
Governor of the State of Arizona
Mr. Larry Etchechury, Di rector
Industrial Cocrmission of Arizona
Transmitted herewith is a report of the Auditor General, A Performance
Audit of Pesticide Regulation: Industrial bamirrion of Arizona. This
report is the fourth in a series of five reports on Pesticide regulation
and is in response to Chapter 162, Section 7, of the 1989 Session Laws.
The report addresses the lndustr i a l Comission's l ini ted enforcmnt of
the pesticide worker rafety rules. The report a180 addresses some
revisions which may be needed in the pesticide worker rafety rules to
improve worker rafety .
My staff and I w i l l be pleased to discuss or c l a r i f y items in the report.
Sincerely,
STAFF : W i l l i un Thomson
Peter N. Francis
Arthur E. Heikkiia
Jerome E. Miller
Dennis 0. Murphy
Shan D. Hays
J(** LG DO g as R. Norton
~ u m o Gr e nera l
2700 NORTH CENTRAL AVE. SUITE 700 PHOENIX, ARIZONA 85004 * ( 602) 2554385
SUMMARY
The O f f i c e of the Auditor General has conducted a performance a u d i t of
the I n d u s t r i a l Commission of Arizona's a c t i v i t i e s r e l a t e d t o the
Pesticide Worker Safety Inspection Program. This audit was conducted i n
response to Chapter 162, Section 7 , of the 1989 Session Laws which
directed us to review the S t a t e ' s p e s t i c i d e regulatory program
administered by four State agencies i n c l u d i n g the I n d u s t r i a l Commission
of Arizona ( I C A ) .
The Environmental Q u a l i t y Act requires ICA t o adopt r u l e s p r e s c r i b i n g
safe work practices f o r employees exposed to or handling p e s t i c i d e s . In
addition, Arizona Revised Statutes ( A. R. S.) 923- 434 d i r e c t s I C A to
develop and implement a p e s t i c i d e worker safety inspection program. Our
audit suggests changes are needed i n inspection practices and the
recently adopted p e s t i c i d e worker safety r u l e s . However, recent
l e g i s l a t i v e changes t h a t t r a n s f e r pest i cide inspection to the new
Department of A g r i c u l t u r e e f f e c t i v e January 1, 1991, w i l l require that
Department to implement our recommendations instead of ICA.
ICA Has Done Little To Enforce
Pesticide Worker Safety Rules ( see pages 3 through 7 1
Although allocated 5 Full- Time Equivalent ( FTE) inspector p o s i t i o n s by
the L e g i s l a t u r e t o enforce the p e s t i c i d e worker safety r u l e s , the
majority of the a c t i v i t i e s of these f i v e p o s i t i o n s were not r e l a t e d to
pesticides. Instead, ICA has devoted only 1.1 FTEs to t h i s program,
Even a f t e r allowing for p o s i t i o n vacancies, the Commission should have
been able to conduct more than two and one- half times the number of
pesticide inspections that were actual l y completed.
ICA inspector f i e l d presence has also been minimal. Although inspectors
go to a g r i c u l t u r a l s i t e s t o i n v e s t i g a t e complaints, as a r u l e , inspectors
are not i n the f i e l d on a d a i l y b a s i s . In c o n t r a s t , inspectors i n
C a l i f o r n i a perform d a i l y inspection and monitoring a c t i v i t i e s . Because
farmworkers move from f i e l d to f i e l d and inspectors spend l i t t l e time in
the f i e l d , p e s t i c i d e v i o l a t i o n s may not be i d e n t i f i e d .
Some Revisions To Worker
Safety Rules May Be Needed ( see pages 9 through 14 )
Arizona should consider r e v i s i n g i t s p e s t i c i d e worker s a f e t y r u l e s . The
rules were adopted to prescribe safe work practices for persons exposed
to or handling p e s t i c i d e s . Although the rules have been implemented only
recently and experience i n enforcing the rules has been l i m i t e d , a panel
of experts found that the n o t i f i c a t i o n and posting r u l e needs r e v i s i o n .
A m a j o r i t y of the experts f e l t that t h i s r u l e , which r e q u i r e s t h a t
workers receive warnings regarding reentering areas treated w i t h
pesticide, does not ensure workers have s u f f i c i e n t information. Other
comments by the panel suggest possible r u l e revisions i n the areas of
t r a i n i n g , reentry i n t e r v a l s , washing and decontamination f a c i l i t i e s , and
personal p r o t e c t i v e equipment.
TABLE OF CONTENTS
INTRODUCTION Am BACKGROUND. . . . . . . . . . . . . . . . . .
F lND l NG I : ICA HAS DONE L l TTLE TO ENFORCE
PESTICIDE UORKER SAFETY RULES. . . . . . . . . . . . . . .
I C A Enforcement Has Been Limited . . . . . . . . . . . . .
ICA Has Not Established
E f f e c t i v e Inspection Procedures. . . . . . . . . . . . .
Department Of Agr i c u l ture Should
Develop Changes I n
Inspection P r a c t i c e s . . . . . . . . . . . . . . . . . .
Recommendations. . . . . . . . . . . . . . . . . . . . . .
FINDING II: SOME REVISIONS TO WORKER
SAFETY RULES MAY BE NEEDED . . . . . . . . . . . . . . .
Few States Have
Worker Safety Rules. . . . . . . . . . . . . . . . . . .
Some Rule Revisions
MayBeNeeded.. . . . . . . . . . . . . . . . . . . . . .
Recommendations. . . . . . . . . . . . . . . . . . . .
AGENCY RESPONSE
APPEND l X
LIST OF TABLES
TABLE 1 I n d u s t r i a l Commission of Arizona
P e s t i c i d e Worker Safety Program
Workload and Estimated Pesticide- Related
Expenditures For
F i s c a l Years 1987- 88 Through 1989- 90
( Unaud i ted
INTRODUCTION AND BACKGROUND
The O f f i c e of the Auditor General has conducted a performance a u d i t of
the I n d u s t r i a l Commission of Arizona's a c t i v i t i e s r e l a t e d to the
Pesticide Work Safety Inspection Program. This a u d i t was conducted i n
response t o Chapter 162, Section 7 , of the 1989 Session Laws, which
directed us to review the S t a t e ' s p e s t i c i d e r e g u l a t o r y program
administered by four State agencies, i n c l u d i n g the I n d u s t r i a l Commission
of Arizona ( I C A ) .
The Environmental Q u a l i t y Act passed by the L e g i s l a t u r e during the Second
Regular Session i n 1986, requires ICA to adopt r u l e s p r e s c r i b i n g safe
work p r a c t i c e s f o r employees exposed t o or handling p e s t i c i d e s . I n J u l y
1989, a f t e r considerable input from a f f e c t e d p a r t i e s , ICA o f f i c i a l l y
promulgated r u l e s governing worker s a f e t y . P r i o r to the passage of these
rules mandated by the Environmental Q u a l i t y Act, the a d m i n i s t r a t i v e r u l e s
adopted by the P e s t i c i d e Control Board r e l a t i n g t o worker safety remained
i n e f f e c t .
Arizona Revised Statutes ( A. R. S.) 923- 434 d i r e c t s ICA to develop and
implement a p e s t i c i d e worker safety inspection program. I n order to h i r e
s t a f f and maintain the i n s p e c t i o n program, I C A was appropriated $ 210,000
by the L e g i s l a t u r e f o r f i v e inspectors and c l e r i c a l s t a f f . The
Comnission has assigned the inspectors and Agency s t a f f the
r e s p o n s i b i l i t y f o r enforcing A. R. S. 523- 434, regarding p e s t i c i d e s and
worker s a f e t y . R e s p o n s i b i l i t y f o r the program i s placed i n the
Comnission's D i v i s i o n of Occupational Safety and Health.
Staffing And Budget
Although I C A has been a l l o c a t e d funding for f i v e f u l l - t i m e inspectors to
conduct p e s t i c i d e inspections and i n v e s t i g a t e worker s a f e t y accidents, i t
was not u n t i l r e c e n t l y t h a t the Commission was able to f i l l a l l f i v e
p o s i t i o n s . I n the past, ICA has been able t o maintain, on average, a
s t a f f o f o n l y t h r e e i n s p e c t o r s . Accord~ ng to the D i r e c t o r , low s a l a r i e s
and the lack o f q u a l i f i e d candidates has l i m i t e d ICA's a b i l i t y to h i r e
more s t a f f .
TABLE 1
INDUSTRIAL COMMISSION OF ARIZONA
PESTICIDE WORKER SAFETY PROGRAM
WORKLOAD AND ESTIMATED PESTICIDE- RELATED EXPENDITURES
FOR FISCAL YEARS 1987- 88 THROUGH 1989- 90
( unaud i t ed
Inspections 88 132 82
Estimated
Expend i t u res
Source: The I n d u s t r i a l Commission of Arizona, D i v i s i o n of Administration
I n i t i a l l y , I C A received a s p e c i f i c State a p p r o p r i a t i o n for i t s Pesticide
Worker Safety Inspection Program. However, now two inspector p o s i t i o n s
are funded through a Federal grant from the Occupational Safety and
Health Administration ( OSHA), while the other three p o s i t i o n s and an
a d m i n i s t r a t i v e secretary are funded through monies from the S t a t e ' s
Workers' Compensation premiums.
Scope Of Audit
Our audit focused on the performance of ICA's p e s t i c i d e inspectors, t h e i r
o v e r a l l a c t i v i t i e s , and workload. In a d d i t i o n , we examined the adequacy
of the p e s t i c i d e worker s a f e t y r u l e s . Our report presents d e t a i l e d
findings i n two areas:
the adequacy of ICA's enforcement of the worker safety r u l e s , and
r e v i s i o n s o f the worker s a f e t y rules r e l a t i n g to p e s t i c i d e exposure.
Our audit was conducted i n accordance w i t h generally accepted government
a u d i t i n g standards.
The Auditor General and s t a f f express a p p r e c i a t i o n to the D i r e c t o r and
s t a f f of the I n d u s t r i a l Commission of Arizona for t h e i r cooperat ion and
assistance during the a u d i t .
FINDING I
ICA HAS DONE L I ~ ~ LTOE ENFORCE
PESTICIDE WORKER SAFETY RULES
Enforcement of the p e s t i c i d e worker safety r u l e s by the I n d u s t r i a l
Commission of Arizona has been l i m i t e d . We found very few p e s t i c i d e
inspect ions have been per formed, and there has been an underut i l i z a t i o n
of the l e g i s l a t i v e l y mandated, Full- Time Equivalent ( FTE) inspector
a l l o c a t i o n s . ICA has not implemented a routine schedule for inspections,
and inspectors spend very l i t t l e time i n the f i e l d .
A . R . S . 523- 434, d i r e c t s ICA to administer and enforce s t a t u t o r y
provisions r e l a t i n g to the P e s t i c i d e Worker S a f e t y l n s p e c t i o n Program.
The Environmental Q u a l i t y Act provided i n i t i a l funding i n 1986.
Thereafter, ICA was responsible for continued f i n a n c i a l support of the
Pesticide Worker S a f e t y l n s p e c t i o n Program. This includes maintaining
f i v e p e s t i c i d e inspector p o s i t i o n s and c l e r i c a l s t a f f .
ICA Enforcement Has
Been Limited
Although ICA i s required by law to enforce the P e s t i c i d e Worker Safety
lnspection Program, enforcement has been l i m i t e d , and very few p e s t i c i d e
inspections have been done. I n our analysis of ICA data, we found that
only 19 percent of a l l inspection a c t i v i t i e s were p e s t i c i d e - r e l a t e d , and
very few inspections resulted i n a c i t a t i o n or f i n e . Although authorized
by the L e g i s l a t u r e to h i r e 5 FTEs to conduct p e s t i c i d e inspections, we
found that the t o t a l number of such a c t i v i t i e s conducted by ICA was only
1 . l FTEs.
Few pesticide inspections conducted - Our examination of p e s t i c i d e
inspect ion records revealed that very few inspect ions are being
conducted. Between February 1987 and November 1989, only 321
a g r i c u l t u r a l p e s t i c i d e inspect ions were conducted. Thus, on average,
only 116 p e s t i c i d e inspections are being conducted annually. Many
employers licensed and regulated by the p e s t i c i d e worker s a f e t y r u l e s
have not been inspected. For example, of the 1,430 permitted growers i n
the State, only 108 ( l e s s than 10 percent) have been inspected i n over
two years.
3
Even when inspections were conducted, c i t a t i o n s were r a r e l y issued. O f
the 321 cases we reviewed ( some w i t h m u l t i p l e v i o l a t i o n s ) , only 29
c i t a t i o n s were issued. Four of these c i t a t i o n s included a monetary
penalty. Some of the v i o l a t i o n s c i t e d but not f i n e d , include exposing
workers to p e s t i c i d e d r i f t , employee f a i l u r e to wear p r o t e c t i v e c l o t h i n g ,
lack of proper p o s t i n g , f a i l u r e to provide p e s t i c i d e t r a i n i n g f o r
workers, and f a i l u r e t o provide p r i o r arrangements f o r proper emergency
medical care. Penalty fees f o r t h e f o u r v i o l a t i o n s assessed f i n e s were
from $ 50 to $ 120 per offense. The maximum penalty per i n d i v i d u a l worker
safety v i o l a t i o n i s $ 1,000. However, w i l l f u l or repeated v i o l a t i o n s can
r e s u l t i n p e n a l t i e s up to $ 10,000.
Allocated p o s i t i o n s have not been used s o l e l y f o r p e s t i c i d e i n s p e c t i o n s -
The reason the number of p e s t i c i d e inspect ions i s so low i s because the
Commission has not used i t s a l l o c a t e d p o s i t i o n s e x c l u s i v e l y f o r p e s t i c i d e
inspections. Although a l l o c a t e d 5 FTEs to perform i n s p e c t i o n s , the
Commission conducted r e l a t i v e l y few inspections d u r i n g a 33- month period
since February 1987. Based on the number of inspections performed and
the average time needed per i n s p e c t i o n , we c a l c u l a t e d t h a t the Commission
a l l o c a t e d only 1.1 FTE to the i n s p e c t i o n f u n c t i o n . During t h i s same time
period, ICA has f i l led from three to f i v e inspector p o s i t i o n s , and
maintained an average inspection s t a f f of three. Even w i t h three
inspection s t a f f a v a i l a b l e , ICA should have been able t o conduct more
than two and one- half times the number of inspections a c t u a l l y completed.
Pesticide inspections have not been an Agency p r i o r i t y , and inspectors
h i r e d e x c l u s i v e l y to perform p e s t i c i d e inspections have been used
elsewhere i n the Department. Our a n a l y s i s i n d i c a t e s t h a t many inspectors
h i r e d to perform p e s t i c i d e - r e l a t e d a c t i v i t i e s , spent a m a j o r i t y of t h e i r
time performing other functions.
We reviewed ICA data on the inspectors the Commission h i r e d s p e c i f i c a l l y
to f i l l the l e g i s l a t i v e l y mandated p e s t i c i d e i n s p e c t i o n p o s i t i o n s and
found that 77 percent of t h e i r a c t i v i t i e s were not r e l a t e d to
p e s t i c i d e s . These inspectors were used to conduct other a c t i v i t i e s
w i t h i n I C A . For example, of the 210 inspections conducted by one
p e s t i c i d e inspector, only one was a p e s t i c i d e i n s p e c t i o n . Another
pesticide inspector conducted 109 i n s p e c t i o n s , o n l y 17 of which were
p e s t i c i d e - r e l a t e d . F i n a l l y , a t h i r d inspector performed 298 inspections,
but only 67 involved p e s t i c i d e s . ICA o f f i c i a l s acknowledge p e s t i c i d e
inspectors spend some of t h e i r time performing other a c t i v i t i e s .
According to Agency o f f i c i a l s , p e s t i c i d e inspector p o s i t i o n s were o f t e n
used interchangeably so s t a f f inspectors could perform other types of
worker safety inspect ions.
Several reasons c i t e d - ICA o f f i c i a l s provided several reasons why
inspection a c t i v i t y has been l i m i t e d . P r i o r t o J u l y 1989, inspections
were conducted under ACAH rules which were i n e f f e c t at the time I C A
picked up r e s p o n s i b i l i t y for the program. According to I C A , the r u l e s
were l i m i t e d i n scope and d i f f i c u l t t o enforce. I n a d d i t i o n , the
Commission had problems f i n d i n g s t a f f to conduct inspections. When the
pesticide worker safety program was established, the Commission placed
advertising i n trade journals i n an attempt to f i n d q u a l i f i e d
candidates. However, not u n t i l the summer of 1990 was ICA a b l e t o f i l l
a l l f i v e p o s i t i o n s because, i n t h e i r opinion, the s a l a r i e s they o f f e r e d
were too low. ICA also noted they have not been able to h i r e a
s u f f i c i e n t number of Spanish- speaking inspectors. F i n a l l y , when i t
learned i n mid 1989 about a l e g i s l a t i v e proposal to move the worker
safety function to the new Department o f A g r i c u l t u r e , i t decided not to
increase i t s inspection e f f o r t s .
However, we question ICA's commitment to enforcement of worker safety
regulations based on i t s performance record. While the o l d ACAH r u l e s
were more l i m i t e d i n scope than the new r u l e s , they d i d address the
r e s p o n s i b i l i t i e s o f farm owners, growers, employers and a p p l i c a t o r s
r e l a t i v e to the a p p l i c a t i o n o f pesticides and p r o t e c t i o n from exposure.
In addition, management and s t a f f involved i n the program t o l d us that
the a g r i c u l t u r a l inspection program was a low p r i o r i t y . As a r e s u l t , few
inspection resources have been a l located to the program since ICA assumed
program responsi b i l i t y i n August 1986.
ICA has not established e f f e c t i v e procedures for implementing the
Pesticide Worker Safety Inspection Program. For example, inspection
schedules have not been adopted. In a d d i t i o n , inspector v i s i b i l i t y i n
the d i f f e r e n t a g r i c u l t u r a l areas throughout the State has been low.
Inspection schedules never established - ICA has not established
systematic schedul ing procedures. According to ICA o f f i c i a l s , there are
no formal, r o u t i n e p e s t i c i d e inspection schedules. As a r e s u l t ,
inspections are not scheduled to conform w i t h the a g r i c u l t u r a l growing
seasons Statewide. For example, during the l e t t u c e growing season
( August through November), inspections are not s p e c i f i c a l l y planned i n
Yuma and Central Arizona. Developing inspection schedules would help
ensure that s t a f f are u t i l ized e f f i c i e n t l y and e f f e c t i v e l y .
Schedules are also needed to appropriately a l l o c a t e inspection resources
to each of the various types of employers governed by the worker safety
r u l e s . As noted e a r l i e r , few of the " permi t t e d t t growers Statewide have
been inspected. However, 98 inspections of the S t a t e ' s 59 commercial
appl i cators have been conducted. A systemat i c inspect ion schedule wou Id
provide b e t t e r balance i n the types of inspections performed.
Increased f i e l d presence needed - ICA inspectors also need to spend time
i n the f i e l d where employers are located. Although the major
a g r i c u l t u r a l areas of the State are i n Yuma and Central Arizona,
p e s t i c i d e inspectors are located only i n Phoenix and Tucson. Also,
inspectors only conduct f i e l d v i s i t s approximately one day a month;
consequently, ICA's f i e l d presence i s somewhat l i m i t e d .
Several community and State s o c i a l s e r v i c e groups representing
farmworkers feel t h i s l i m i t e d coverage reduces an inspector's a b i l i t y to
respond to a p e s t i c i d e complaint i n a timely manner. For example, a
Department of Economic Security Outreach worker who i n t e r a c t s d a i l y w i t h
farmworkers i n Yuma, feels the lack of an on- site inspector there hampers
ICA's a b i l i t i e s to respond immediately to complaints. Once a complaint
i s f i l e d with ICAts Tucson o f f i c e , before i t can be investigated, the
inspector must t r a v e l three hours to Yuma. As a r e s u l t , p o t e n t i a l
v i o l a t o r s may leave the State before the inspector a r r i v e s .
ICAts p e s t i c i d e inspectors c u r r e n t l y conduct random i n v e s t i g a t i o n s i n the
f i e l d only one day a month. In contrast, inspectors i n C a l i f o r n i a are i n
the f i e l d more f r e q u e n t l y because the s t a t e has been d i v i d e d i n t o
separate d i s t r i c t s , and uses county personnel t o enforce p e s t i c i d e
r e g u l a t i o n s . According t o the s t a t e ' s p e s t i c i d e enforcement manager,
t h i s was done to increase i n s p e c t o r v i s i b i l i t y . With a g r i c u l t u r a l
inspectors i n the f i e l d t o spot v i o l a t o r s and f o l l o w up on complaints on
a d a i l y b a s i s , the chances f o r i d e n t i f y i n g and f i n i n g v i o l a t o r s are much
g r e a t e r . This i s e s p e c i a l l y important because o f the m i g r a t o r y n a t u r e o f
farmworkers. For example, a farmworker may be i n C a l i f o r n i a one day and
i n another s t a t e the n e x t . Because C a l i f o r n i a i n s p e c t o r s are i n the
f i e l d s d a i l y , the department has no formal schedule f o r i n s p e c t i o n s .
However, the enforcement manager f e e l s t h a t because o f d a i l y i n s p e c t i o n
and m o n i t o r i n g a c t i v i t i e s , a l l a g r i c u l t u r a l areas w i t h i n the s t a t e are
being adequately covered. A r i z o n a ' s use of i n s p e c t o r s i n s p e c i f i c areas
during p a r t i c u l a r growing seasons could increase v i s i b i l i t y and i d e n t i f y
p o t e n t i a l p e s t i c i d e v i o l a t o r s .
Department Of Agriculture Should Develop
Changes In Inspection Practices
Because Chapter 374, Sect ion 445, of the 1990 Session Laws t r a n s f e r s the
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 i n s p e c t i o n from ICA t o the new Department of
A g r i c u l t u r e e f f e c t i v e January 1 , 1991, i t seems a p p r o p r i a t e t h a t changes
i n the program should be made a f t e r the t r a n s f e r . Recent i n t e r v i e w s w i t h
ICA o f f i c i a l s i n d i c a t e t h a t the p o s i t i o n s w i l l not t r a n s f e r t o the
Department, only the responsibi l i t i e s f o r enforcement. As a r e s u l t , the
basis f o r determining the resources needed f o r the i n s p e c t i o n program
should be considered by the agency e n f o r c i n g the worker s a f e t y r u l e s .
RECOMMENDATIONS
1. The new Department o f A g r i c u l t u r e should develop c r i t e r i a f o r
d e t e r m i n i n g t h e number o f FTEs needed t o conduct p e s t i c i d e worker
s a f e t y inspections. I n developing these c r i t e r i a , the Department
should consider the f o l l o w i n g :
p r o v i d i n g r o u t i n e schedules f o r the i n s p e c t i o n o f a l l c a t e g o r i e s
o f employers r e q u i r e d to comply w i t h the worker s a f e t y
r e g u l a t i o n s ;
increasing the f i e l d presence o f i n s p e c t o r s , e s p e c i a l l y i n the
large a g r i c u l t u r a l regions of the S t a t e ; and
scheduling i n s p e c t i o n s to coincide w i t h the s p e c i f i c growing
seasons throughout Arizona.
7
FINDING II
SOME REVISIONS TO WORKER SAFETY
RULES MAY BE NEEDED
Arizona should consider r e v i s i n g i t s worker s a f e t y r u l e s r e l a t i n g to
p e s t i c i d e exposure. Arizona i s one o f only s i x s t a t e s t o adopt measures
designed to p r o t e c t workers exposed to p e s t i c i d e s . Although the r u l e s
are r e l a t i v e l y new and l a r g e l y untested, comments submitted by a panel o f
experts comm i ss i oned by our O f f i ce suggest t h a t rev i s ions may be needed
i n n o t i f i c a t i o n and p o s t i n g requirements, and perhaps o t h e r p r o v i s i o n s
that address worker t r a i n i n g , f i e l d r e e n t r y , decontamination, and
p r o t e c t i v e equipment.
Few States Have
Worker Safety Rules
The Environmental Q u a l i t y Act d i r e c t e d the I n d u s t r i a l Commission t o adopt
rules p r e s c r i b i n g safe work p r a c t i c e s f o r employees exposed t o or
handling p e s t i c i d e s . A f t e r a lengthy n e g o t i a t i o n process begun i n
October 1986, the l n d u s t r i a l Commission adopted worker s a f e t y r u l e s . To
develop these r u l e s , an a g r i c u l t u r a l subcommittee o f the Occupational
Safety and Health Advisory Committee was e s t a b l i s h e d . This three- member
subcommittee was comprised o f a r e p r e s e n t a t i v e o f the a g r i c u l t u r a l
community, a r e p r e s e n t a t i v e of t h e l a b o r community, and a p u b l i c
representative who served as i t s chairman. A f t e r ten pub1 i c meetings,
the subcommittee was able t o reach agreement on most o f the r u l e s .
Recommendations were submitted i n May 1988, and the r u l e s were o f f i c i a l l y
promulgated e f f e c t i v e J u l y 1989.
These rules address several areas important t o worker s a f e t y :
t r a i n i n g f o r workers who mix, load, apply, or otherwise handle
p e s t i c i d e s ;
medical m o n i t o r i n g and medical care f o r workers exposed t o p e s t i c i d e s ;
n o t i f i c a t i o n o f workers, and p o s t i n g o f f i e l d s t r e a t e d w i t h
p e s t i c i d e s ;
p r o h i b i t i n g work i n f i e l d s immediately a f t e r p e s t i c i d e a p p l i c a t i o n s ;
washing and decontamination f a c i l i t i e s i n the event of d i r e c t
exposure ;
personal p r o t e c t i v e measures that may be needed such as p r o t e c t i v e
c l o t h i n g or equipment; and
r e s t r i c t i o n s on working alone w i t h e s p e c i a l l y dangerous p e s t i c i d e s .
I n adopting worker safety r u l e s , Arizona joined a group of only f i v e
other states that have established programs designed to protect
farmworkers or other a g r i c u l t u r a l industry employees subject to the
occupational hazards of p e s t i c i d e s . ( ' ) Under a u t h o r i t y granted by the
Federal I n s e c t i c i d e , Fungicide and Rodenticide Act ( FIFRA), the
Environmental P r o t e c t i o n Agency ( EPA) proposed worker safety r u l e s in
July 1988, but has not yet f i n a l i z e d r e g u l a t i o n s t h a t would be applicable
nationwide. Many of the provisions contained i n Arizona's r u l e s are
based e i t h e r on rules i n e f f e c t i n C a l i f o r n i a or on those proposed by the
EPA .
Some Rule Revisions
May Be Needed
Although Arizona's rules are new and have yet to be f u l l y tested,
comments submitted by a panel commissioned by our O f f i c e i n d i c a t e the
requirements addressing worker n o t i f i c a t i o n and f i e l d p o s t i n g need
r e v i s i o n . ( A l i s t i n g of the panel members and t h e i r q u a l i f i c a t i o n s i s
presented i n the Appendix.) Based on the comments of i n d i v i d u a l
p a n e l i s t s , other r u l e provisions should be studied to determine i f
a d d i t i o n a l changes may be needed.
Panel comnissioned to comnent on rules - We asked a panel of experts
representing various perspectives to provide w r i t t e n comments on the
worker safety rules i n the f o l l o w i n g areas: the adequacy and completeness
of the r u l e s , t h e i r impact on a g r i c u l t u r a l employers and the a g r i c u l t u r a l
i n d u s t r y , the c l a r i t y and e n f o r c e a b i l i t y of the p r o v i s i o n s , and any other
p e r t i n e n t aspects or issues they cared to address.
( 1 ) The o t h e r s t a t e s are C a l i f o r n i a , Texas, Washington, Oregon, and Pennsylvania.
10
Generally, comments r e f l e c t e d the p e r s p e c t i v e o f each panel member.
While r e p r e s e n t a t i v e s from the a g r i c u l t u r a l i n d u s t r y questioned the need
f o r several o f the r u l e s or f e l t r u l e s went too f a r , o t h e r p a n e l i s t s
argued t h a t the same r u l e s needed t o be expanded or strengthened t o more
e f f e c t i v e l y p r o t e c t workers. The f u l l t e x t o f a l l comments submitted to
us may be obtained from our O f f i c e upon request.
Even d i s c o u n t i n g p a n e l i s t s ' v a r i e d p e r s p e c t i v e s , reaching agreement on
the adequacy and appropriateness o f the worker s a f e t y r u l e s as a whole
may not be possible a t t h i s time, f o r three reasons. F i r s t , the r u l e s
have been i n e f f e c t o n l y one year; t h e r e f o r e , employers have had l i m i t e d
time t o learn about the new requirements and comply. Second, as
p r e v i o u s l y noted, enforcement has been l i m i t e d . Therefore, any problems
t h a t emerge as a r e s u l t o f expanded enforcement a c t i v i t i e s may not yet be
evident. F i n a l l y , much i s s t i l l unknown about the h e a l t h e f f e c t s of
p e s t i c i d e s , e s p e c i a l l y the e f f e c t s o f long- term, chronic exposure. This
knowledge gap makes i t d i f f i c u l t t o determine what measures need t o be
taken ( e . g . , what r e e n t r y i n t e r v a l s are needed) to adequately p r o t e c t
workers. However, d e s p i t e these l i m i t a t i o n s , there was general agreement
t h a t the n o t i f i c a t i o n and p o s t i n g r u l e needs r e v i s i o n .
N o t i f i c a t i o n and p o s t i n g r u l e needs r e v i s i o n - Requirements governing the
worker n o t i f i c a t i o n and f i e l d p o s t i n g e l i c i t e d s u b s t a n t i v e comments and
c r i t i c i s m s from our p a n e l i s t s , and several s a i d the i n f o r m a t i o n on the
postings i s i n s u f f i c i e n t t o make them meaningful.
A d m i n i s t r a t i v e Rule R4- 13- 704 r e q u i r e s t h a t employers v e r b a l l y warn
f i e l d w o r k e r s about areas being t r e a t e d w i t h p e s t i c i d e s f o r which the
r e e n t r y i n t e r v a l ( t h e length o f time a f t e r a p p l i c a t i o n when exposure to
p e s t i c i d e residue no longer poses a h e a l t h hazard) has not expi red. For
c e r t a i n crops ( b r o c c o l i , caul i f lower, c e l e r y , l e t t u c e , grapes,
n e c t a r i n e s , peaches, plums, s t r a w b e r r i e s , f l o w e r s , and ornamentals), i f
the r e e n t r y i n t e r v a l i s 48 hours or more. warning signs must be posted a t
the usual p o i n t s o f worker e n t r y .
Four commentators s t a t e d t h a t the c u r r e n t p o s t i n g requirement does not
ensure workers have s u f f i c i e n t i n f o r m a t i o n . While t h e signs s t a t e
" DANGER" and " PESTICIDES", they do not i n d i c a t e the p e s t i c i d e a p p l i e d ,
the date of a p p l i c a t i o n , o r the date and time t h e reentry i n t e r v a l
expires. This information i s e s p e c i a l l y useful i f a worker experiences
symptoms of p e s t i c i d e poisoning. As noted i n our report on the
Department o f Health Services ( Report No. 90- 10, page 6), c l i n i c s have
di f f i c u l t y diagnosing pest i c i d e - r e l a t e d i l lnesses. Worker knowledge of
p e s t i c i d e exposure could a i d i n proper diagnosis and treatment.
One Arizona p a n e l i s t stated t h a t the p o s t i n g r e g u l a t i o n i s v i r t u a l l y
impossible to enforce, and t h a t the lack of information on t h e signs
rendered them " of minimal p r a c t i c a l value, except to put someone on
n o t i c e t h a t a p e s t i c i d e a p p l i c a t i o n o f some type may have taken p l a c e ( o r
i s planned) on t h i s f i e l d a t some time i n the past o r f u t u r e by some
unknown e n t i t y ! " He suggested p u t t i n g a phone number on the posting
where necessary i n f o r m a t i o n c o u l d be obtained.
Other problems w i t h worker n o t i f i c a t i o n were i d e n t i f i e d by i n d i v i d u a l
panel members. For example, Arizona's r u l e on posting does not p r o h i b i t
reentry i n t o f i e l d s while warning signs are s t i l l posted. One panel
member s t a t e d that Arizona workers have been t o l d to reenter and work i n
f i e l d s while signs are s t i l l i n place. By c o n t r a s t , C a l i f o r n i a ' s posting
r u l e includes s p e c i f i c language p r o h i b i t i n g reentry i n t o posted f i e l d s ;
signs must be taken down before workers are allowed to enter the f i e l d .
Other comments suggest that farmworkers need to be b e t t e r informed about
the meaning of n o t i c e s . One p a n e l i s t said farm labor contractors should
assume r e s p o n s i b i l i t y for informing workers about posted signs and
reentry i n t e r v a l s . Our i n t e r v i e w s w i t h Community Legal Services and DES
Outreach workers i n d i c a t e farmworkers are not well informed about the
p e s t i c i d e s to which they are exposed.
Arizona may wish to consider an approach taken by Texas to inform
farmworkers of the hazards of p e s t i c i d e s . Under the s t a t e ' s " Right to
Know Program," employers must provide workers w i t h " crop sheets" l i s t ing
the p e s t i c i d e s most f r e q u e n t l y applied to the crops they w i l l be
handling. The " crop sheets," w r i t t e n i n ~ n ~ l i sanhd Spanish, provide
both w r i t t e n and graphic i n f o r m a t i o n on the most common symptoms of
i l l n e s s the worker may experience as a r e s u l t of exposure to each
p e s t i c i d e , and the safety precautions that may be necessary
Other r u l e provisions should be studied - Whi le there was no unanimous
agreement on most of the other r u l e p r o v i s i o n s , i n d i v i d u a l comments
suggested several areas where possible rule r e v i s i o n s may be needed.
These include the f o l l o w i n g :
r Training - Three p a n e l i s t s said t r a i n i n g requirements should be
expanded to include employees not already covered. Employees
handling pesticides must be given t r a i n i n g annually i n the hazards of
p e s t i c i d e s , safety procedures, c l o t h i n g and p r o t e c t i v e equipment,
medical care and related areas. Fieldworkers who p l a n t , c u l t i v a t e ,
and harvest crops are not covered.
Reentry i n t e r v a l s - Both out- of- state commentators said reentry
requirements were not long enough to protect workers. One stated
t h a t reentry i n t e r v a l s w i l l be s u f f i c i e n t to avoid the acute e f f e c t s
of exposure, but inadequate to assure p r o t e c t i o n against reproductive
t o x i c i t y and oncogenicity ( production of tumors). Based on
s c i e n t i f i c research, C a l i f o r n i a has set many p e s t i c i d e - s p e c i f i c
reentry i n t e r v a l s longer then those required i n Arizona. Arizona's
reentry r u l e i s based p r i m a r i l y on proposed Federal regulations, as
Arizona does not presently have the resources to conduct s i m i l a r
research.
Yashing and decontamination f a c i l i t i e s - Both out- of- state p a n e l i s t s
also s a i d p r o v i s i o n s f o r water and a c c e s s i b i l i t y to water were
i n s u f f i c i e n t . Arizona's r u l e requires that at least 5 gallons of
water for one employee and at least 10 gallons for two or more be
a v a i l a b l e a t the s i t e where employees m i x and load p e s t i c i d e s . A
supply of water w i t h i n one- quarter mile of the s i t e i s s u f f i c i e n t t o
meet the requirements of the r e g u l a t i o n . By c o n t r a s t , C a l i f o r n i a
requires a minimum of 10- 20 g a l l o n s , or an a l t e r n a t i v e supply w i t h i n
100 f e e t .
r Personal p r o t e c t i v e measures - Three commentators recommended
r e v i s i n g Arizona's r u l e to permit use of safety glasses w i t h temple
and brow p r o t e c t i o n . C u r r e n t l y , the r u l e requires the use of goggles
when eye p r o t e c t i o n i s needed.
F i n a l l y , one Arizona p a n e l i s t recommended ways to promote greater
compliance w i t h the r u l e s by providing information to employers. There
i s no way to e a s i l y determine from a p e s t i c i d e label what reentry
i n t e r v a l may apply, o r whether posting would be required. I t was
suggested that the State could publish and make a v a i l a b l e to i t s
licensees a l i s t of products that require p o s t i n g . The S t a t e c o u l d also
publish a l i s t i n g of s p e c i f i c products w i t h a r e e n t r y i n t e r v a l based on
Arizona r u l e s , rather than the reentry i n t e r v a l s p e c i f i e d on the product
l a b e l .
Department o f A g r i c u l t u r e should address r e v i s i o n s - Because, pursuant to
Chapter 374, Section 445, of the 1990 Session Laws, worker safety
functions r e l a t i n g t o p e s t i c i d e exposure w i l l be t r a n s f e r r e d s h o r t l y from
ICA t o the new Department of A g r i c u l t u r e , i t seems appropriate t h a t any
r e v i s i o n s should be made a f t e r the t r a n s f e r . Therefore, our
recommendations are d i r e c t e d to the Department o f A g r i c u l t u r e .
RECOMMENDATIONS
1 . The Department of A g r i c u l t u r e should consider r e v i s i n g A d m i n i s t r a t i v e
Rule R4- 13- 704 on n o t i f i c a t i o n and p o s t i n g , to provide f o r the
communication of a d d i t i o n a l information on p e s t i c i d e a p p l i c a t i o n s t o
workers.
2 . The Department should study the need to amend or modi f y rules
governing t r a i n i n g , reentry i n t e r v a l s , washing and decontamination
f a c i l i t i e s , and personal p r o t e c t i v e measures.
3. The Department should consider p u b l i s h i n g l i s t s of products w i t h
a p p l i c a b l e reentry i n t e r v a l s and posting requirements, and making
them a v a i l a b l e to growers, a p p l i c a t o r s , ana pest c o n t r o l advisors.
APPENDIX
The following persons served as our panel of experts and submitted
w r i t t e n comments on the Arizona Worker Safety Rules.
William B. Embree - president of Compliance Consultants, a consulting
f i r m based i n Yuma that assists a g r i c u l t u r a l and i n d u s t r i a l firms i n
complying with laws r e g u l a t i n g chemicals and hazardous waste; former
chairman of the Arizona Commission o f 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 Pesticide Control Board;
William T. Keane - an attorney and t o x i c o l o g i s t who represents
numerous state and national a g r i c u l t u r a l industry and trade
associations i n c l u d i n g the Arizona Aerial A p p l i c a t o r s A s s o c i a t i o n ,
and the A g r i c u l t u r a l Chemical Association;
Robert I. Krieger - c h i e f o f the Worker Health and Safety Branch of
the C a l i f o r n i a Department of Food and A g r i c u l t u r e ; former professor
of toxicology at the U n i v e r s i t y of Cal i f o r n i a , Davis, and Washington
State U n i v e r s i t y ;
Sandra Martinez - d i r e c t o r o f the " Right to Know" Program
administered by the Texas Department of A g r i c u l t u r e ; former a s s i s t a n t
d i r e c t o r of the Texas Department of A g r i c u l t u r e ' s Pesticide
Evaluation Program; present mayor o f K y l e , Texas;
* Joel k i s t e r - d i r e c t o r of the Rural Health O f f i c e , professor i n the
Department of Family and Community Medicine, and research associate
at the Southwest Border Rural Health Research Center at the
U n i v e r s i t y of Arizona;
* Colin L. ( B i l l ) Scott - partner and operator of the Marathon Farming
Company which owns 8,000 acres and several farms i n S t a n f i e l d and
~ a r i c o p a , Arizona; d i r e c t o r and former president of the Arizona
Cotton Growers Association; d i r e c t o r or member of numerous other
a g r i c u l t u r a l trade associations and research committees.
THE I N D U S T R I A L COMMIS SION OF ARIZONA
EDWARD J AYLE. CHAIRMAN P 0 BOX 19070
GOR W N MARSHALL. VlCS CHAIRMAN PHOENIX, ARIZONA 85005- 9070
GAY CONRAD KRUOLICK. MEMBER
JAMES B WHITTEN. MEMBER LARRY ETCHECHURY DIRECTOR
ANTONIO DOMINGUEZ. MEMBER ,6021 542.44 I I
MARY T LAMB. SECRETARV November 21, 1990
Mr. Douglas Norton,
Auditor General
Office of the Auditor General
2700 N. Central Avenue
Phoenix, Arizona 85004
Dear Mr. Norton:
This document represents the Industrial Commission's ( ICA)
formal response to the November 16, 1990 Auditor General's audit of
the Pesticide Worker Safety Program.
The audit is critical of the ICA in two specific areas:
1. Lack of commitment to its enforcement
responsibilities: and,
2. Regulations adopted were not effective
We, of course, disagree with the Auditor General's assertions
and will establish that not only was the agency committed to an
effective pesticide program, but that the regulation adopted by the
agency provides an excellent foundation for an effective program,
irrespective of which agency enforces them.
As the auditor's report indicated, because of the
qualifications for our industrial hygienists, we did recruit
nationally. l For a variety of reasons, which are adequately
detailed in the report, we were delayed in the hiring of our full
complement of FTEs. This certainly contributed to the problem but
it was not the major reason that there was a less than an effective
inspection program. The major reason, simply put, was that there
were no interim regulations applicable to growers, which comprised
the overwhelming majority of firms we were required to inspect.
With the creation of a Pesticide Worker Safety Program, the
Industrial Commission was given the statutory authority to utilize
and enforce applicable portions of the Agriculture & Horticulture
Commission's ( AHC) existing regulations, until the ICA was able to
develop and adopt their own. What we found, early into our
inspection program, however, was that AHC's regulations did not
match the scope of the ICA1s Pesticide Worker Safety Statute.
1. Our industrial hygienists are college trained individuals with
Master degrees in Industrial Hygiene or an equivalent science.
Because of this program, we added a preference that the applicants
speak Spanish.
Letter to Mr. Douglas Norton
November 21, 1990
Page Two
This statute provides coverage to workers applying pesticides
commercially and workers applying pesticides on behalf of growers.
AHC1s performance regulations ( not regulations involving licensing),
apply only to commercial applications and not growers. 2. As a
result, we inspected all of the commercial applicators, but we were
unable to inspect the growers. Consequently, even if we had a full
complement of industrial hygienists early in the program, we still II
could not have had an effective inspection program until we
developed and adopted our own regulations. Accordingly, the
agency's priorities shifted from inspection to the rule promulgation
process.
With the Pesticide Worker Safety statute providing for three
additional positions on our Occupational Safety and Health Advisory
Committee ( one member representing agri- business, one member
representing agri- labor and one member representing the public),
the Commission decided to adopt regulations utilizing a negotiated
rule- making process3. This subcommittee of the Advisory
Committee, which was comprised of the agri- industry members, held at 4
least 10 public meetings and conducted three hearings in Yuma, Casa
Grande and Phoenix. They came to an agreement on all the issues
except one - notification and posting. At that time, the full
Advisory Committee met on three different occasions to attempt to
resolve the impasse before producing a set of regulations. Because
there was still disagreements with respect to the notification and
posting requirement, the full Industrial Commission met on two
separate occasions to resolve this issue. All of this took place
before the state's Administrative Procedures Act was implemented to
formally adopt the regulations.
2. AHC1s existing Rule R3- 10- 03( A) states that all specific terms
used in these rules and regulations shall have the same meaning as
defined in A. R. S. 53- 371, Chapter 210, Article 6
A. R. S. 5 3- 371, Article 6 ( 4 ) defines " applicator" to mean any 4
person who owns, leases or rents ... equipment or aircraft in order
to make a custom application ( emphasis added).
A. R. S. 53- 371, Article 6( 6) defines l'custom application" to
mean any application of pesticides for hire or any application by
aircraft ...
Letter to Mr. Douglas R. Norton
November 21, 1990
Page Three
The Commission, over the two- plus years it took to develop and
adopt these regulations, has spent more time and effort and
resources on these regulations than any that we have adopted. It
should be readily apparent why this agency takes exception to the
Auditor's statement that the agency lacked commitment.
As to the second issue, Regulations, the auditors interviewed
six people who expressed various comments regarding the regulations
and this formed their conclusion that changes, particularly as it
related to notification and posting, were needed. In discussions
with the auditors, the auditors stated that changes should be made.
However, they could offer no factual basis to support a change in
the regulation for notification and posting. As I indicated
earlier, these regulations were the result of a compromise between
the various members of the industry. The people the auditors
interviewed or the organizations they represented, all particupated
in the process. It is not surprising that the various members would
favor their original position over the one that resulted from a
compromise. What is important to remember is that the final
notification and posting requirements became the cornerstone of the
regulations simply because of the significant differences in
position that originally existed between the parties. Making a
change to these regulations without a factual basis for that change
could very well establish an unraveling of the tenuous coalition
that existed in creating these rules. I guess, in the final
analysis, the fact that all industry members ( business and labor)
supported the transfer of the ICA's pesticide regulations to the new
Department of Agriculture, speaks to the quality of the final
product .
There have been many industry members who have publicly
acknowledged the time, effort and resources expended by this agency,
in order to produce a set of regulations that all parties can live
with. While I, and others, feel that these regulations represent an
excellent foundation for an effective pesticide program, everyone
recognizes that as facts are developed, these rules will change.
3. Negotiated rule- making process allows the industry represen-tatives
to essentially develop the regulations without government
intervention. Government's only role is to provide data upon
request from the industry members. Additionally, once the essence
of regulations is completed, legal advice is provided to ensure
regulations are written within acceptable parameters.
Letter to Mr. Douglas. R. Norton
November 21, 1990
Page Four
In conclusion, using the Auditor General's narrow criteria as 0
a measure of the Industrial Commission's commitment, is not only
unfair but incorrect. If we were not committed, we certainly would
not have spent the time or resources, nor would we have provided a
set of very difficult and controversial regulations that the
industry can be proud of.