The 2022-23 Budget: Pesticide Enforcement

The 2022-23 Budget: Pesticide Enforcement MAY 2022 Summary. In this post, we assess the licensing laws and regulations. The department Governor’s 2022-23 budget proposals to: also oversees local enforcement of pesticide (1) provide the Department of Pesticide Regulation use laws and regulations by County Agricultural (DPR) with administrative penalty authority to Commissioners (CACs) and tests pesticide residues enforce pesticide use violations, (2) increase of fresh produce—both of which we discuss in more several existing pesticide use penalties, (3) enhance detail below. DPR’s pesticide residue enforcement and Most Pesticide Use Enforcement Is penalty authority, (4) increase several existing Conducted by CACs. Currently, most of the administrative penalties for pesticide sales and responsibility for enforcing the lawful use of licensing violations, (5) provide funding to DPR for pesticides lies with CACs. Specifically, state statute positions to investigate and pursue pesticide use tasks CACs with being the primary enforcement and residue enforcement cases, and (6) provide agencies for pesticide use laws and regulations, funding to DPR for the Attorney General’s Office such as illegal application, worker protections, and to represent the department in civil and criminal pesticide drift. (Drift is the movement of pesticide pesticide use enforcement actions. Overall, we dust or droplets through the air at the time of find merit in increasing DPR’s statutory authority application or soon after to any site other than the to enforce pesticide use and residue violations, area intended.) DPR uses its statewide authority to as well as providing funding to support these oversee, evaluate, and improve local pesticide use efforts. We recommend the Legislature increase enforcement by CACs. pesticide-related penalties to levels it thinks will CACs Have Statutory Authority to Levy effectively deter violations—either by adopting the Administrative Penalties for Pesticide Use Governor’s proposed penalty levels or through Violations. CACs have the sole authority to somewhat comparable increases. administratively enforce pesticide use violations. (DPR previously was able to levy penalties for Background certain pesticide use violations, however, that DPR Is Responsible for Regulating statutory authority expired in 2006.) CACs may Pesticides. While pesticides can protect people levy administrative penalties of up to $5,000 and agricultural products from pests, their improper for each violation. The administrative penalties use can be hazardous. DPR is charged with levied by CACs are governed by DPR regulations protecting public health and the environment by that categorize violations according to level regulating pesticide sales and use. The department of severity. For instance, penalties for serious is responsible for evaluating and registering (Class A) violations—those that cause health, pesticide products at the state level, assessing the property, or environmental hazards—can reach health and environmental impacts of pesticides, $5,000, whereas penalties for moderate (Class B) and encouraging alternative pest management violations—those that violate laws or regulations— practices through grants and incentives. DPR is are capped at $1,000. responsible for licensing individuals and businesses Pesticide Use Violations Also Subject to that sell, consult on, or apply pesticides. The State Civil and Criminal Penalties and Federal department may levy administrative penalties Penalties. Pesticide users who violate state laws of up to $5,000 on those who violate sales and can also face civil and criminal enforcement actions. 2022-23 Budget Series 1 Civil and criminal cases can be filed by a county funding for DPR positions to investigate and pursue district attorney at the request of a CAC or by the pesticide use and residue enforcement cases, and state Attorney General’s Office at the request of (6) provide funding for DPR to retain the Attorney DPR. Civil and criminal proceedings are considered General’s Office to represent the department in civil for repetitive, negligent, or intentional violations and criminal pesticide use enforcement actions. that have created a hazard to human health or the Figure 1 provides an overview of the Governor’s environment. Civil penalties range from $1,000 to proposed changes to pesticide use, residue, and $25,000 for each violation, while criminal penalties licensing and sales penalties, which we describe range from $500 to $50,000 per violation, along in more detail below. The Governor also proposes with potential imprisonment. Additionally, the statutory language that would authorize the Director United States Environmental Protection Agency of DPR to adjust the new administrative and civil (U.S. EPA) may independently bring pesticide use penalty levels for inflation in future years. enforcement cases upon referral. U.S. EPA can Authorizes DPR to Enforce Administrative levy penalties of roughly $9,000 for violations of Penalties for Serious Pesticide Use Violations. federal pesticide use requirements, but for serious The Governor proposes budget trailer legislation to violations, penalties can be as high as $50,000 provide DPR with the authority to levy administrative along with potential imprisonment. penalties of up to $20,000 for pesticide use DPR Is Responsible for Pesticide Residue violations. The proposal would change state Monitoring. DPR administers a statewide law to allow DPR—instead of a CAC—to levy monitoring program that samples and analyzes administrative penalties for multi-jurisdictional domestic and imported fresh produce for pesticide pesticide use violations that have serious human residues. DPR collects samples from various or environmental health impacts. This authority locations such as packing sites, wholesale and retail would apply specifically for “priority investigations” markets, and farmers markets. Residue monitoring that involve multiple counties or a person who is is based on enforcing U.S. EPA tolerances—the the subject of an investigation in multiple counties. maximum amount of a pesticide allowed to remain Priority investigations include pesticide incidents in or on a food. If illegal residues are found, DPR that cause serious impacts such as death or illness; quarantines and removes the illegal produce from contamination of drinking water, air, or land; animal sale. The department can levy administrative and wildlife mortality; or property damage. penalties of up to $5,000 for certain pesticide residue violations, such Figure 1 as for selling produce that carries pesticide residue in excess of the Governor’s Proposed Changes to permissible tolerance levels. State Pesticide Penalties Governor’s Proposals Penalty Type Existing Proposeda As part of the budget for Pesticide Use DPR administrative None Up to $20,000 2022-23, the Governor proposes to CAC administrative Up to $5,000 Up to $15,000 (1) provide DPR with administrative Civil $1,000 to $25,000 $3,000 to $75,000 penalty authority to enforce Criminal $500 to $50,000 $5,000 to $100,000 pesticide use violations, (2) increase Residue several existing pesticide use DPR administrative Up to $5,000 Up to $15,000b penalties, (3) enhance DPR’s Licensing and Sales pesticide residue enforcement DPR administrative Up to $5,000 Up to $15,000 and penalty authority, (4) increase a The proposed statute would authorize the Director of DPR to adjust administrative and several existing administrative civil penalty levels for inflation in future years. b Adds new penalties for (1) failing to provide produce sale and distribution information penalties for pesticide sales and when requested by DPR and (2) distributing/moving quarantined produce. licensing violations, (5) provide DPR = Department of Pesticide Regulation and CAC = County Agricultural Commissioner. 2022-23 Budget Series 2 DPR also would be able to levy administrative Increases Existing Pesticide Sales and penalties if a CAC and the Director of DPR agree Licensing Penalties. The Governor also proposes that enforcement by the department would be more to increase several existing DPR administrative appropriate, or if the Director finds that a CAC failed penalties for pesticide sales and licensing to discharge their duties. Because serious pesticide violations. These include violations such as selling use violations are relatively rare, the department pesticides not registered in the state and acting as estimates that its use of this new authority likely a pesticide advisor without a license. Specifically, would be somewhat infrequent. Specifically, DPR the Governor proposes to increase these current estimates it might levy one administrative penalty penalties from a maximum of $5,000 to up every two years. to $15,000. Increases Several Existing Pesticide Use Provides Funding for Positions to Penalties. As shown in Figure 1, the Governor’s Investigate and Pursue Pesticide Use and proposed budget trailer legislation also would make Residue Enforcement Cases. The Governor’s several changes to existing pesticide use penalties. budget includes $582,000 from the DPR Fund First, the proposed legislation would increase (the department’s primary fund source, largely CAC administrative penalties to up to $15,000 for supported by a fee on pesticide sales and other each violation. (Class A violations could result in regulatory fees) in 2022-23 and ongoing to a fine of up to $15,000, while lower-level violation support three new enforcement staff positions that penalties would be capped at $3,000.) Second, would investigate and pursue pesticide use and the legislation would increase civil penalties to a residue enforcement cases. This workload would minimum of $3,000 and a maximum of $75,000 include levying DPR administrative penalties and for each violation, while criminal penalties would coordinating referrals to the Attorney General’s increase to a minimum of $5,000 and a maximum Office and U.S. EPA. The positions also would of $100,000 per violation. (The Governor does be responsible for conducting oversight and not propose any adjustments to minimum and supporting CACs, such as through trainings maximum prison sentences for criminal penalties.) and providing guidance and support on local Expands DPR Pesticide Residue Enforcement enforcement cases. and Penalty Authority. The Governor’s proposed Provides Funding for DPR to Hire Attorney budget trailer legislation also authorizes DPR General’s Office for Civil and Criminal to request sales and distribution records for Enforcement Cases. The Governor’s budget produce grown, processed, shipped, and sold in proposes $300,000 annually from the DPR Fund the state. The legislation would allow DPR to levy over the next three years for the department to hire new administrative penalties of up to $15,000 for the Attorney General’s Office to represent DPR entities who do not provide this information within in civil and criminal pesticide use enforcement 48 hours after being requested. DPR indicates actions. The department estimates that it will refer that this information would only be requested about one pesticide use enforcement case every after the department identifies that a particular two years. DPR indicates that hiring the Attorney lot of produce carries illegal pesticide residues. General’s Office to pursue pesticide use violations Additionally, the proposed legislation would would be a new activity, so the department is authorize DPR to levy new administrative penalties viewing this initiative as a pilot to determine the of up to $15,000 for entities that distribute and/or appropriate level of ongoing resources to request in move quarantined produce. Lastly, the Governor the future. proposes to increase existing residue penalties— such as for selling produce that carries pesticide residue in excess of allowable tolerance levels—to up to $15,000. 2022-23 Budget Series 3 Assessment local agencies are tasked with being the primary enforcement entities. For instance, the Department Providing DPR With Authority to Levy of Toxic Substances Control may take enforcement Pesticide Use Penalties Is Important Step in actions against hazardous waste generators that Enhancing Statewide Enforcement Efforts. violate state laws and regulations, even though Given its important role in protecting public health state statute delegates most first-level enforcement and the environment, the state should have multiple responsibilities to local Certified Unified enforcement tools available to ensure statewide Program Agencies. compliance of pesticide use laws and regulations. Misapplication of pesticides can result in acute Increasing Pesticide Use Penalties and impacts on human health (such as rashes, nausea, Adjusting for Inflation Is Reasonable... The goal and dizziness), as well as negative impacts to the of the state’s pesticide use penalties should be environment (such as air and water contamination to deter individuals and businesses from violating and impacted ecosystems). Additionally, some state laws and regulations. Successful deterrence research suggests that some pesticides could be is important because it protects public health related to chronic health impacts such as such and the environment by dissuading businesses as cancer and reproductive harm. While serious and individuals from committing violations and pesticide use violations do not occur with great persuading violators to take precautions against frequency, enhancing the state’s ability to deter falling into noncompliance again. Overall, we find and correct for serious incidents is worthwhile, it reasonable to provide some level of increase to given the hazards that can result. We therefore existing pesticide use penalties given that many find that providing DPR with the authority to levy have not been increased in decades—roughly administrative penalties would further advance its 20 years for CAC administrative penalties and ability to meet its mission, while at the same time 30 years for most civil and criminal penalties. preserving the state’s current structure of having This means that penalties have not kept pace with CACs serve as the primary local enforcement inflation and thus have lost some of their relative agencies. The Governor’s proposed approach power to deter violations over time. Statewide data would allow the state to serve as a “backstop” to has not shown a significant increase in violations local enforcement when merited, such as for cases over the past several years—collectively, the CACs that represent severe violations that stretch across have averaged about 600 enforcement actions multiple jurisdictions and when a CAC and DPR per year from 2012 through 2019, with the majority agree that enforcement by the department would being more minor Class B and Class C violations. be more appropriate. However, the department indicates that there have been situations where the same violators have been Increased State-Level Enforcement Authority levied penalties on multiple occasions for pesticide Has Precedent. Providing DPR with additional drift and worker protection violations, which could pesticide use enforcement authority would not indicate that current penalty levels do not fully be a unique approach for the state. First, DPR compel compliance. Increasing maximum penalties had similar authority from 2000 to 2006 under could help reduce existing rates of violations Chapter 806 of 2000 (SB 1970, Costa), which and/or prevent future incidents. Additionally, authorized the department to levy administrative authorizing the Director of DPR to adjust penalty penalties of up to $5,000 for serious pesticide levels for inflation has merit since it would allow use violations. (Based on our conversations with penalties to maintain their relative deterrent effects the department and stakeholders, it appears over time. that this authority was allowed to sunset due to CAC administrative penalties being increased to …However, Difficult to Determine What up to $5,000 under Chapter 457 of 2002 [AB 947, Amount of Increase Is Most Appropriate. Jackson].) Second, other state environmental The level at which penalties would serve as an regulatory departments possess some level of effective deterrent for pesticide violations but do overarching enforcement authority even when not present an excessive burden for violators— 2022-23 Budget Series 4 particularly for more minor offenses—is not clear Additionally, we find it reasonable to increase existing cut. If trued up for inflation, CAC administrative residue penalties given that penalties have not been penalties and civil and criminal penalties would be increased in roughly 30 years. These changes could roughly 1.5 and 2 times higher than their current better enable the state to prevent contaminated levels, respectively. The Governor, however, produce from reaching consumers. proposes to increase penalties above the inflation The Governor’s approach of setting the new adjustments—3 times their current levels in most administrative penalties for residue violations at cases. According to the department, this is to comparable levels to those that CACs levy for further deter the most egregious pesticide use pesticide use makes sense. However, as with the violations. For example, this could include cases proposed increases to pesticide use penalties, where improper application leads to pesticide drift while we find the Governor’s proposed levels for causing skin and eye irritations in surrounding new pesticide residue penalties to be reasonable, communities. We find this argument to be moderately lower or higher levels could also be somewhat compelling, and the levels the Governor adequate to the degree they still serve as an effective proposes seem reasonable. However, moderately deterrent. Regardless of where the Legislature lower or higher levels could also achieve the ultimately decides to set penalty levels, authorizing same goal without being ineffective or excessive. the Director of DPR to adjust penalty levels for Additionally, we find that the Governor’s proposal inflation—as proposed by the Governor—has merit to set the maximum DPR administrative penalty since it would allow penalties to maintain their higher than the maximum CAC administrative relative influence in the coming years. penalty makes sense, given these would be applied Increasing Existing Administrative Penalties to the most serious, multijurisdictional pesticide for Pesticide Sales and Licensing Violations use violations. Would Provide Parity in Penalty Levels. We find it Increasing DPR Pesticide Residue reasonable to provide some level of increase to the Enforcement and Penalty Authority Could existing pesticide penalties for sales and licensing Improve Produce Safety. The state has a vested violations, given that they have not been increased interest in ensuring that fresh produce in the state in roughly 30 years. Additionally, it makes sense to maintains safe levels of pesticide residues and that maintain relative comparability across most of DPR’s contaminated produce is properly quarantined administrative penalties. Similar to earlier discussion, and removed from sale when identified. Data we find that (1) the Governor’s proposed increases to from DPR indicate multiple cases in recent sales and licensing violation penalties are reasonable years where regulated entities did not provide but moderately lower or higher levels could also be requested sale and distribution information for adequate to the degree they still serve as effective contaminated produce in a timely manner (roughly deterrents, and (2) authorizing the Director of DPR to 45 cases annually over the past five years) and adjust penalty levels for inflation has merit. where regulated entities distributed and/or moved Funding for Positions and Representation quarantined produce (roughly three cases annually From Attorney General’s Office Would Further over the past five years). Currently, the department Support Statewide Enforcement. We find that does not have the authority to enforce these the proposed funding for DPR state operations actions other than through resource-intensive court would further support statewide enforcement of proceedings. Accordingly, we find it reasonable to pesticide use and residue laws and regulations. provide DPR with the authority to (1) require entities In particular, funding for additional enforcement to provide sale and distribution information, (2) levy positions would provide the staff needed to support administrative penalties for failing to produce such the workload associated with the proposed records, and (3) levy administrative penalties for increase in enforcement and penalty authority. This distributing and/or moving quarantined produce. includes investigating and pursuing cases to levy administrative penalties and coordinating referrals to the Attorney General’s Office or U.S. EPA. 2022-23 Budget Series 5 The positions also would further support local Approve Expansion of DPR’s Pesticide enforcement actions by providing additional Residue Enforcement and Penalty Authority. assistance to CACs. We recommend the Legislature approve the Additionally, funding for DPR to hire the Attorney Governor’s proposal to provide DPR with the General’s Office would provide the department authority to (1) require entities to provide sale and with the resources needed to ensure that egregious distribution information, (2) levy administrative violations are appropriately referred for civil and penalties for failing to produce such records, criminal enforcement. We find the Governor’s (3) levy administrative penalties for distributing proposal to provide this funding over a three-year and/or moving quarantined produce, and period to be reasonable. This would allow the (4) increase existing residue penalties. These department to pilot these efforts and report back to changes could better enable the state to prevent the Legislature on outcomes during future budget contaminated produce from reaching consumers. hearings. This information could then be used to We recommend the Legislature set the new guide whether (and at what level) to continue funding administrative penalties for pesticide residue these efforts. violations at levels that mirror whatever new thresholds it sets for CAC administrative pesticide Recommendations use penalties and authorize the Director of DPR Approve DPR Authority to Enforce to adjust penalty levels for inflation. Administrative Penalties for Pesticide Use Increase Existing Administrative Penalties Violations. We recommend the Legislature approve for Pesticide Sales and Licensing Violations. the Governor’s proposal to provide DPR with the We recommend the Legislature increase existing authority to levy administrative penalties for serious administrative penalties for pesticide sales and pesticide use violations. Providing additional licensing violations and authorize the Director of enforcement authority to DPR would further enhance DPR to adjust penalty levels for inflation in future the state’s ability to ensure statewide compliance years. Penalty levels have not been increased in of pesticide use laws and regulations, while still roughly 30 years and thus have lost some of their maintaining CACs as the primary local enforcement relative power to deter violations. To maintain agencies. The additional enforcement authority parity, we recommend the Legislature set the would allow the state to serve as a backstop to local new maximum penalties at a comparable level to enforcement when merited. Furthermore, it would those it establishes for other DPR administrative reestablish similar authority that the department penalties. This could include approving the previously held and establish a somewhat Governor’s proposed penalty levels or establishing comparable enforcement structure to some other somewhat higher or lower thresholds. state environmental regulatory departments. Approve Funding for Positions to Investigate Increase Pesticide Use Penalties at Levels and Pursue Pesticide Residue and Use That Will Help Deter Violations. We recommend Enforcement Cases. We recommend the the Legislature increase pesticide use penalties and Legislature approve the $582,000 from the DPR authorize the Director of DPR to adjust penalty levels Fund in 2022-23 and ongoing to support three new for inflation in future years. In deciding appropriate enforcement staff positions that would investigate increases for the various penalties (including the and pursue pesticide residue and use enforcement new DPR administrative penalty), the Legislature will cases. The additional positions would enable the want to consider how increases would further deter department to conduct the workload associated individuals and businesses from violating state laws with the proposed additional enforcement and and regulations. This could include approving the penalty authority, as well as further support local Governor’s proposed penalty levels—which increase enforcement efforts by CACs. penalties above an inflationary adjustment—or setting penalty levels somewhat higher or lower based on what the Legislature deems appropriate to achieve its goals. 2022-23 Budget Series 6 Approve Funding for DPR to Hire Attorney The funding would allow the department to General’s Office for Civil and Criminal appropriately refer egregious violations for civil and Enforcement Cases. We recommend the criminal enforcement and gather data regarding Legislature approve the Governor’s proposal to what level of funding might be appropriate in provide $300,000 annually from the DPR Fund future years. The Legislature may want to consider over the next three years to hire the Attorney specifying which metrics the department should General’s Office to represent the department in civil track and present to inform these future decisions. and criminal pesticide use enforcement actions. 2022-23 Budget Series 7 LAO PUBLICATIONS This post was prepared by Frank Jimenez, and reviewed by Rachel Ehlers and Anthony Simbol. The Legislative Analyst’s Office (LAO) is a nonpartisan office that provides fiscal and policy information and advice to the Legislature. 2022-23 Budget Series 8