BILL ANALYSIS
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| Hearing Date:June 14, 2010 |Bill No:AB |
| |1736 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: AB 1736Author:Ma
As Amended: April 7, 2010 Fiscal: Yes
SUBJECT: Structural Fumigation Enforcement Program.
SUMMARY: Extends the sunset date of the Structural Fumigation
Enforcement Program to January 1, 2014; and makes technical revisions.
Existing law:
1)Establishes a Structural Fumigation Enforcement Program (Program) in
Los Angeles, Orange, Santa Clara, and San Diego Counties,
authorizing the County Agricultural Commissioner (Commissioner) of
each county to contract with the Department of Pesticide Regulation
(DPR) to perform increased structural fumigation inspection and
enforcement activities in those counties.
2)Requires any person who performs a structural fumigation in the
county to pay a $5 fee to the Commissioner for each fumigation
performed.
3)Requires the fees collected pursuant to the Program to be used for
the sole purpose of funding enforcement and training activities
directly related to the Program.
4)Sunsets the Program on January 1, 2011
This bill:
1)Deletes the provision for each Commissioner to contract with DPR to
perform inspections under the Program, and instead provides that the
Director of DPR shall have oversight over the Program, and requires
the Commissioner of each county to perform increased structural
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fumigation inspection and enforcement under the Program.
2)Extends the sunset date of the Program to January 1, 2014.
3)Makes technical and conforming changes.
FISCAL EFFECT: The Assembly Appropriations Committee analysis, dated
April 14, 2010, indicates there are no significant costs associated
with the bill.
COMMENTS:
1. Purpose. This bill is sponsored by Pest Control Operators of
California and the California Agricultural Commissioners and
Sealers Association (Sponsors) to extend the sunset date for the
Structural Fumigation Enforcement Program from January 1, 2011 to
January 1, 2014. According to the Sponsors, without this bill the
health and safety of workers, the public, and environment will be
put at risk and enforcement officials will be unable to rectify the
improper or illegal use of fumigants.
2. Background. The Program was originally established in 1993 as a
two-year pilot project in Los Angeles County as a way to help
ensure the safety of fumigation operators. The Program sought to
ensure the proper handling of chemicals and the correct use of
safety equipment among other important features. The sunset date
has been extended a number of times since then. In 1996, the
"pilot project" status was removed and the Program was expanded to
also include Orange County and San Diego County. In 1999, San
Diego County opted out of the Program. In 2007 the Santa Clara
County was included in the Program, and in 2008, San Diego County
was again added to the Program.
The Program exercises oversight over the structural fumigation
industry and DPR inspects fumigation companies to ensure regulatory
compliance and protect the public, industry workers, and the
environment. Any person who performs a structural fumigation in
Los Angeles, Orange, Santa Clara, and San Diego Counties must pay
the county agricultural commissioner a fee of five dollars for each
treatment.
Counties use this fee-generated revenue to increase monitoring of
pesticide use through undercover inspections and surveillance.
While the DPR licenses and regulates commercial applicators,
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dealers, consultants, and other pesticide professionals statewide,
the Program originated from an increased need to enforce local
structural pest control fumigation laws in counties where most
fumigations are performed by collecting fees for more inspectors
and research on safer pest control methods.
3. Changes to the Current Program. This bill makes several technical
changes to the existing program. Currently the Commissioner of
each county is authorized to contract with the DPR to perform
increased inspection and enforcement activities in the
participating counties. The bill would revise these provisions to
instead provide that the Director of DPR shall have oversight over
the Program, and requires the Commissioner of each county to
perform increased inspections and enforcement under the Program.
CACASA states that this provision more accurately reflects how the
existing Program is operated. Currently, DPR exercises oversight
over all county pesticide programs. CACASA further states that the
"contract" requirement language in the current law does not make
sense because the industry already pays the counties directly and
the contract has no financial effect on either party. CACASA
states that the bill's revisions do not change how the Program
operates but, instead more accurately reflects the existing
relationships which exist between the agencies in carrying out the
Program.
4. Recent Inspection and Enforcement Activities. The following table
reflects the recent inspection and enforcement activities in the
counties that participate in the program in fiscal year 2008/2009
as reported to the Committee by CACASA.
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| County | Los Angeles | Orange | Santa Clara | San Diego | Totals |
| | FY 2008/09 | FY 2008/09 | FY 2008/09 | FY 2008/09 | |
|----------------+----------------+----------------+----------------+----------------+----------------|
|Number of | 27,288| 11,924| 6,321| 8,489| 54,022|
|Fumigations | | | | | |
|----------------+----------------+----------------+----------------+----------------+----------------|
|Revenue | $136,440| $59,620| $31,605| $44,355| $272,020|
|Generated | | | | | |
|----------------+----------------+----------------+----------------+----------------+----------------|
|Costs Expended | $349,600 for | $155,196| $51,950| $106,962| $663,708|
| |2.5 inspectors, | | | | |
| | Total costs=| | | | |
| | $650,000| | | | |
|----------------+----------------+----------------+----------------+----------------+----------------|
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|Number of | 1,395 Full| 2,069| 174| 181| 3819 Full|
|Inspections | 896 Partial| | | | 896 Partial|
|----------------+----------------+----------------+----------------+----------------+----------------|
|Violations | 78| 71| 23| 16| 188|
|Found | | | | | |
|----------------+----------------+----------------+----------------+----------------+----------------|
|Actions Taken | 52 NOPA's| 40- NOV's| 4 admin civil | 5 NOPA's| 78 NOPA's|
| | 35 warning | 21- NOPA's| penalties| | 40 NOV's|
| | letters| | | | 35 warning |
| | | | | | letters|
| | | | | | 4 admin |
| | | | | | pentalties|
|----------------+----------------+----------------+----------------+----------------+----------------|
|Cases Sent to | 6| 0| 0| 1|7 |
|SPCB | | | | | |
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The following notes are helpful in understanding the terms used in
the table:
Notice of Proposed Action (NOPA) . It is the original notice that
is sent to alleged violators, explaining the nature of the
violations, the proposed penalty, and offering the opportunity
for a hearing on the matter, or the opportunity to stipulate to
the offense and pay the proposed penalty. The term NOPA is
typically used to refer to the entire administrative civil
process for prosecution of a violation. The entire process, from
notice to hearing to appeal process, is set forth in
Administrative Procedures Act.
Notice of Violation (NOV) . A NOV is issued upon observation of a
violation and is the formal means of notification and
documentation that a violation was found. The DPR Enforcement
Response Regulations require violations to be prosecuted or, in
the case of minor violations committed by a company with a good
compliance record, a Decision Letter is submitted by the
Commissioner to DPR for consideration of mitigating circumstances
by the DPR. In cases where DPR concurs with the explanation of
why no prosecutorial action is justified, no further action is
taken.
Full Inspection . An inspection is considered a full inspection
when the inspector observes: the tenting process and
introduction of the fumigant; the removal of the fumigant and the
tent; and/or the complete process including the certification
phase in which the structure is verified as safer for re-entry.
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Partial Inspection . An inspection is considered a partial
inspection when the inspector arrives to a site, finds the
process already in progress, and can only observe a limited
number of compliance requirements.
Structural Pest Control Board (SPCB). The SPCB licenses and
regulates structural pest control operators in the state, and
takes disciplinary and enforcement actions against those who
violate the licensing laws.
5. Prior Legislation. AB 2223 (Horton, Chapter 450, Statutes of 2008)
included San Diego County in the existing Program and extended the
sunset date on the program to January 1, 2011.
AB 126 (Beall, Chapter 379, Statutes of 2007) added Santa Clara County
to the existing Program, specified that fees collected under the
program shall not be used to supplant other funds and
re-established a sunset date of January 1, 2010 on the Program.
SB 230 (Figueroa, Chapter 42, Statutes of 2006) eliminated the July 1,
2006 sunset of the Program in Los Angeles and Orange Counties.
SB 2026 (B&P Committee, Chapter 1013, Statutes of 2002) extended the
sunset date to July 1, 2006.
SB 1307 (B&P Committee, Chapter 983, Statutes of 1999) removed San
Diego County from the Program, and provided that revenues from fees
that are collected may be used for training in addition to
enforcement of the structural fumigation enforcement project.
Extended the sunset date to July 1, 2003.
SB 2238 (B&P Committee, Chapter 879, Statutes of 1998), AB 1678
(CPGE&ED Committee, Chapter 982, Statutes of 1999) extended the
sunset date to January 1, 2000.
SB 530 (Kelley, Chapter 71, Statutes of 1996) removed the "pilot
project" status, and expanded the Program to include Orange County,
and San Diego County in addition to Los Angeles County. Extended
the sunset date to January 1, 1999.
SB 378 (Calderon, Chapter 691, Statutes of 1995) extended the sunset
date to January 1, 1997.
AB 1053 (Tucker, Chapter, 393, Statutes of 1993) established a
two-year pilot project in Los Angeles County to perform structural
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fumigation inspections and enforcement activities. Required the
DPR to contract with the Los Angeles County Agricultural
Commissioner for this purpose. Imposed a $5 fee on each fumigation
in the county to pay for the enforcement activities. Provided that
up to 5% of revenue may be used for DPR or county administrative
expenses. Established a January 1, 1996 sunset.
6. Arguments in Support. The Pest Control Operators of California , in
sponsoring the bill, writes that the Program "provides additional
self-generated revenues to the Agricultural Commissioners of Los
Angeles, Orange, Santa Clara, and San Diego Counties for heightened
fumigation, inspection, and enforcement activities. . . The Program
is needed to provide effective review, control, and enforcement of
fumigation regulations. The law protects workers, public health,
and the environment from improper and illegal use of fumigants."
California Agricultural Commissioners and Sealers Association
(CACASA), in co-sponsoring the bill, states that this supplemental
program is operated entirely by the collection of local fees and
has no impact on the State General Fund. Currently the
Agricultural Commissioners in the four participating counties
provide an additional level of oversight and enforcement on
structural fumigation projects within their jurisdictions; which
assists in policing those who may cause health and safety hazards.
CACASA believes that the industry benefits from a level playing
field and fewer overall violations and complaints through the
Program.
The County of Santa Clara Board of Supervisors states that
approximately 6,500 structural fumigations are performed each year
in Santa Clara County, providing $32,500 in fee revenue that is
used to help protect residents from misuse of pesticides used in
termite fumigations.
7. Policy Issue : Is the Program Meeting its Intended Objectives? As
indicated, the Program was originally intended to provide better
oversight of the structural fumigation industry and to ensure
regulatory compliance and protect the public, industry workers, and
ultimately the environment from improper or illegal pesticide use.
The fees generated by this Program for local enforcement of pest
control fumigation laws were to be used primarily for more
inspectors and research on safer pest control methods.
Since the initial start of this Program in 1993, there has been no
study or audit conducted to determine the efficacy of this program
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and whether it is achieving the intended benefits of providing
safer and more effective oversight of pesticide use within these
counties which utilize this program and whether it should possibly
be expanded to other counties.
Would recommend that before this Program is continued again in three
years that a study or audit of the Program be conducted and
submitted to the Legislature by January 1, 2013.
SUPPORT AND OPPOSITION:
Support:
Pest Control Operators of California (Sponsor)
California Agricultural Commissioners and Sealers Association
(Sponsor)
County of Santa Clara Board of Supervisors
Opposition:
None received as of June 9, 2010
Consultant:G. V. Ayers