Enforcement Response Regulations – A Summary of Recent Changes
Three sections of Title 3 California Code of Regulations (3CCR) referred to as the Enforcement Response Regulations (ERR), were recently amended. The changes became operative September 22, 2011. This letter summarizes the most important changes and concludes with a discussion regarding which version to use when initiating an action on an incident that occurred previous to September 22. The affected sections are:
- 6128. Enforcement Response to Violations. This section applies to agricultural, structural, and all fumigant use violations when determining what kind of action to take.
- 6130. Civil Penalty Actions by Commissioners. This section pertains to agricultural or structural civil penalties (pursuant to Food and Agricultural Code [FAC] sections 12999.5, 15204 and 15204.5) when determining the violation class and fine amount.
- 6131. Actions Allowed Against Licensed or Certificated Employees. This section provides criteria that must be met to cite employees for not using safety equipment. Many parts of this requirement were previously in section 6130(b).
A summary of the September 2011 changes:
6128. Enforcement Response to Violations.
- The definition of “incident” was added to allow CACs the ability to combine related violations into a single case file.
- The Decision Report deadline to the DPR director has been extended from 30 days to 60 days in consideration of CAC resources.
- For class A or B violations, if a formal referral is declined, the CAC shall proceed with the enforcement response.
- It is no longer a requirement to refer cases regarding intentional ingestion of pesticides.
6130. Civil Penalty Actions by Commissioners.
- The term “Repeat violation” was removed. When determining the fine amount, the CACs shall now use relevant facts from respondent’s compliance history, and not just in that county. Relevant facts include severity of actual, or potential, effects of an incident. All relevant facts shall be included in the Notice of Proposed Action (NOPA).
- Specifies that this section applies to agricultural and structural pesticide uses and to all fumigant uses.
- Replaced the criteria for determining violation categories.
- For Class A: Changed from “health or environmental hazard” to “health, property, or environmental hazard.”
- For Class B: “Posed a reasonable possibility of creating a health or environmental effect” has been changed to “violation of a law or regulation that mitigates the risk of harm.” This new criterion is less subjective.
- Creation of more clear distinctions among the three violation classes.
| Class A | Violation that caused an actual health, property, or environmental hazard. Or, a class B violation with one of the following aggravating circumstances. – Respondent has a history of violations. – Respondent failed to cooperate in the investigation of the incident or allow a lawful inspection. – Respondent demonstrated a disregard for specific hazards of the pesticide used. |
| Class B | Violation of a law or regulation that mitigates the risk of adverse health, property, or environmental effects that is not designated as Class A. |
| Class C | Violation of a law or regulation that does NOT mitigate the risk of an adverse health, property, or environmental effect (for example, violations of pesticide use reporting or county registration requirements). |
- Addition of requirement that CACs send a copy of the final action to the Director no later than when providing it to the respondent.
- Removal of subsection (b) which is restated and further clarified in 3CCR section 6131.
6131. Actions Allowed Against Licensed or Certified Employees.
- Renumbering of section 6130(b), with some clarifying changes.
- Adds criteria that the employee acknowledges written workplace disciplinary action policy that requires the employee to use personal protection equipment, by signing that they had read it and understood it.
- Adds that the Notice of Proposed Action (NOPA) against an employee must include a copy of 3CCR section 6131, subsection (a).
These changes have raised the following question: Can the CACs operate under the newly revised regulations when taking an enforcement action based on an incident that occurred prior to September 22, 2011?
If the NOPA was issued based on the provisions of the regulations before September 22, 2011, the CAC must use the previous regulations to determine which action to take and the fine level. In all other cases, no matter when the violation occurred, the CAC must issue a NOPA according to the current regulations. Because the purpose of the regulation revision is to protect, the public and the environment, the amended regulation must be used as soon as it becomes effective, as the public will be better served using the amended sections.
Please Note: We have attached the suggested “Decision Report” template for your convenience. If you have any questions, please contact the Enforcement Branch Liaison assigned to your county.
Sincerely,
Enclosures
- Enclosure