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AB-1419 Pesticides: penalties for violations: civil penalty.(2017-2018)

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Date Published: 09/13/2017 09:00 PM
AB1419:v98#DOCUMENT

Amended  IN  Assembly  September 13, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1419


Introduced by Assembly Member Quirk

February 17, 2017


An act to amend Section 105206 of 12997 of, and to add Section 12999.6 to, the Health and Safety Food and Agricultural Code, relating to pesticides.


LEGISLATIVE COUNSEL'S DIGEST


AB 1419, as amended, Quirk. Pesticide poisoning. Pesticides: penalties for violations: civil penalty.
Existing law provides that every person who violates a provision of law relating to pesticides, or any regulation issued pursuant thereto, is guilty of a misdemeanor. In lieu of seeking prosecution for a misdemeanor, existing law authorizes the Director of Pesticide Regulation to prosecute a violation civilly, as specified. In lieu of a civil prosecution by the director, existing law authorizes the county agricultural commissioner to levy a civil penalty against a person violating specified provisions of law relating to pest control operations, pesticides, pesticides and worker safety, use of restricted materials, use of an unregistered pesticide, carbon monoxide pest control devices, structural pest control devices, or regulations adopted pursuant to these provisions.
This bill would provide that, if the director determines that violations of those specified provisions have been committed in multiple jurisdictions, are not appropriate matters to be enforced by a county agricultural commissioner, or involve a priority investigation involving human or environmental health effects, as defined, the director may levy a civil penalty of up to $25,000 for each violation in accordance with specified procedural and other requirements, or may refer any of those violations to the proper enforcement agency, including the district attorney of the county in which the violations occurred or the Attorney General. The bill would apply only to violations that occur on or after January 1, 2019.
The bill would also make a conforming change.

Existing law, until January 1, 2021, requires, among other things, an employer, to satisfy his or her responsibilities for medical supervision of his or her employees who regularly handle pesticides pursuant to specified regulation, to contract with a medical supervisor registered with the Office of Environmental Health Hazard Assessment (OEHHA). Existing law requires any laboratory that performs cholinesterase testing on human blood for the medical supervisor to electronically report specified information in its possession on every person tested to the Department of Pesticide Regulation. The department is required to share the information in an electronic format with OEHHA and the State Department of Public Health on an ongoing basis, as specified.

The bill would extend the operation of these requirements until July 1, 2021, and would repeal the provisions as of January 1, 2022.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 12997 of the Food and Agricultural Code is amended to read:

12997.
 In lieu of seeking prosecution of any violation of this division as a misdemeanor, and the penalty prescribed in Section 12996, the director may prosecute civilly pursuant to Sections 12998 and 12999, or may levy civil penalties pursuant to Section 12999.4 or 12999.6, or the commissioner may levy civil penalties pursuant to Section 12999.5.

SEC. 2.

 Section 12999.6 is added to the Food and Agricultural Code, to read:

12999.6.
 (a) The director may initiate and maintain enforcement actions for violations as described in subdivision (b) and levy the civil penalty described in subdivision (b), or may refer any of those violations to the proper enforcement agency, including the district attorney of the county in which the violations occurred or the Attorney General.
(b) If the director determines that violations of the statutes and implementing regulations set forth in Section 12999.5 have been committed in multiple jurisdictions, are not appropriate matters to be enforced by a commissioner, or involve a priority investigation involving human or environmental health effects, as defined in the 2005 Cooperative Agreement, or subsequent modifications to that agreement, among the Department of Pesticide Regulation, the California Agricultural Commissioners and Sealers Association, and the United States Environmental Protection Agency, Region 9, the director may take the appropriate action as authorized by subdivision (a). The director may levy a civil penalty of not more than twenty-five thousand dollars ($25,000) for each violation. The department may adopt regulations to enforce this section.
(c) Before a civil penalty is levied, the person charged with the violation shall be given a written notice of the proposed action, including the nature of the violation and the amount of the proposed penalty, and shall have the right to request a hearing within 20 days after receiving notice of the proposed action. A notice of the proposed action that is sent by certified mail to the last known address of the person charged shall be considered received even if delivery is refused or the notice is not accepted at that address. If a hearing is requested, notice of the time and place of the hearing shall be given at least 10 days before the date set for the hearing. Before the hearing, the person shall be given an opportunity to review the director’s evidence. At the hearing, the person shall be given the opportunity to present evidence on his or her own behalf. If a hearing is not timely requested, the director may take the action proposed without a hearing.
(d) If the person against whom the director levied a civil penalty requested and appeared at a hearing, the person may seek judicial review of the director’s decision within 30 days of the date of the decision pursuant to Section 1094.5 of the Code of Civil Procedure.
(e) After exhaustion of the review procedure provided in this section, the director, or his or her representative, may file a certified copy of a final decision of the director that directs the payment of a civil penalty and, if applicable, any order that denies a petition for writ of administrative mandamus, with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. No fees shall be charged by the clerk of the superior court for the performance of any official service required in connection with the entry of judgment pursuant to this section.
(f) Any money recovered under this section shall be paid to the investigating commissioner to reimburse the cost of the investigation with the remainder going into the Department of Pesticide Regulation Fund for use by the department, upon appropriation, in administering this division and Division 6 (commencing with Section 11401).
(g) This section shall apply only to violations that occur on or after January 1, 2019.

SECTION 1.Section 105206 of the Health and Safety Code is amended to read:
105206.

(a)In order for an employer to satisfy his or her responsibilities for medical supervision of his or her employees who regularly handle pesticides pursuant to Section 6728 of Title 3 of the California Code of Regulations, the employer shall contract with a medical supervisor registered with the Office of Environmental Health Hazard Assessment (OEHHA).

(b)A laboratory that performs tests ordered by a medical supervisor shall report the information specified in subdivision (c) to the Department of Pesticide Regulation. Reports shall be submitted to the Department of Pesticide Regulation on, at a minimum, a monthly basis. For the purpose of meeting the requirements in subdivision (e), the reports shall be submitted via electronic media and formatted in a manner approved by the director. The Department of Pesticide Regulation shall share information from cholinesterase reports with the OEHHA and the State Department of Public Health on an ongoing basis, in an electronic format, for the purpose of meeting the requirements of subdivisions (f) and (g).

(c)The laboratory shall report all of the following information in its possession in complying with subdivision (a):

(1)The test results in International Units per milliliter of sample (IU/mL).

(2)The purpose of the test, as indicated by the medical supervisor, as a cholinesterase test requested for an agricultural worker under medical supervision, and, if so, whether it is for a baseline, followup, or recovery test ordered to meet the requirements of Section 6728 of Title 3 of the California Code of Regulations or for the evaluation of suspected pesticide illness.

(3)The name of the person tested.

(4)The date of birth of the person tested.

(5)The name, address, and telephone number of the medical supervisor who ordered the analysis.

(6)The name, address, and telephone number of the laboratory.

(7)The date that the sample was collected from the person and the date the result was reported.

(8)Contact information for the person tested and his or her employer, if known and readily available.

(d)The registered medical supervisor ordering a cholinesterase test for a person pursuant to subdivision (a) shall note in the test order the name of the medical supervisor and the purpose of the test, pursuant to paragraph (2) of subdivision (c), and ensure that the person tested and the employer receive a copy of the cholinesterase test results and any recommendations from the medical supervisor based upon those results within 14 days of the medical supervisor’s receipt of the results. The medical supervisor shall report any worker with cholinesterase depression indicating pesticide exposure to the local health officer pursuant to Section 105200.

(e)All information reported pursuant to this section shall be confidential, as provided in Section 100330, except that the OEHHA, the Department of Pesticide Regulation, and the State Department of Public Health may share the information for the purpose of surveillance, case management, investigation, environmental remediation, or abatement with the appropriate county agricultural commissioner and local health officer.

(f)The OEHHA shall establish a procedure for registering and deregistering medical supervisors for the purposes of outreach and training and may establish reasonable requirements for performance. The OEHHA shall review the cholinesterase test results and may provide an appropriate medical or toxicological consultation to the medical supervisor. In addition to the duties performed pursuant to Section 105210, the OEHHA, in consultation with the Department of Pesticide Regulation and the local health officer, may provide medical and toxicological consultation, as appropriate, to the county agricultural commissioner to address medical issues related to the investigation of cholinesterase inhibitor-related illness.

(g)The Department of Pesticide Regulation and the OEHHA shall prepare and publicly post an update on the effectiveness of the medical supervision program and the utility of laboratory-based reporting of cholinesterase testing for illness surveillance and prevention by January 1, 2021.

(h)This section shall become inoperative on July 1, 2021, and, as of January 1, 2022, is repealed.