Director’s Decision on Appeal of a County Agricultural Commissioner’s Decision (Tri-Cal, Inc., Docket Number 211)

The Director’s decision on Tri-Cal, Inc.’s appeal of the $53,000 civil penalty levied by the Fresno County Agricultural Commissioner (Fresno CAC) is enclosed. The Director affirmed the Fresno CAC’s action and penalty, and his decision became final on November 9, 2017.

The Fresno CAC found Tri-Cal, Inc. violated Title 3 California Code of Regulations sections 6724 (b), (e), pertaining to handler training, and several counts of California Food and Agricultural Code (FAC) section 12973, pesticide use in conflict with registered labeling by failing to use required equipment to seal the soil surface of the application, and in doing so exposed five emergency responders to the pesticide resulting in their acute illness.

Tri-Cal appealed the decision to the Director, contending that it should not be responsible for the first responder emergency officials who became ill as a result of Tri-Cal’s admitted pesticide use violation. The Director determined that the Fresno CAC’s decision was supported by substantial evidence, and that the Fresno CAC had properly categorized the violation.

This decision addresses the following concepts:

• Tri-Cal violated FAC section 12973, pesticide use in conflict with registered labeling which resulted in the pesticide exposure and acute illness of five emergency responders. It is irrelevant that the product label allows officials to enter an application site to perform official duties such as emergency response.
• For untarped field fumigation, all required equipment (disc, cultipacker, ring roller, and roller) must be used as described by the registered labeling to properly seal the soil and minimize off-gassing of chloropicrin.

Please make this information available to your staff as a reference in preparing and processing cases. If you have any questions, please contact the Enforcement Branch Liaison assigned to your county.

Sincerely,