House File 782 - Introduced HOUSE FILE 782 BY COMMITTEE ON AGRICULTURE (SUCCESSOR TO HSB 249) (COMPANION TO SF 482 BY COMMITTEE ON AGRICULTURE) A BILL FOR An Act regulating the application of pesticides, including by 1 providing for the certification of applicators, and certain 2 actions taken by the department of agriculture and land 3 stewardship against private applicators, and providing 4 penalties. 5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 6 TLSB 2460HV (1) 89 da/ns
H.F. 782 Section 1. Section 206.5, subsection 6, Code 2021, is 1 amended to read as follows: 2 6. An employee of a food processing and distribution 3 establishment is exempt from the certification requirements 4 of this section provided that at least one person holding 5 a supervisory position is certified and provided that the 6 employer provides a program, approved by the department, for 7 training, testing, and certification of personnel who apply, as 8 an incidental part of their duties, any pesticide on property 9 owned or rented by the employer. However, an employee exempt 10 from the certification requirements of this section shall 11 not apply restricted use pesticides. The secretary shall 12 adopt rules to administer the provisions of this paragraph 13 subsection . 14 Sec. 2. Section 206.19, subsection 5, Code 2021, is amended 15 to read as follows: 16 5. a. Establish, assess, and collect civil penalties for 17 violations a violation of a provision in this chapter or a rule 18 adopted pursuant to this chapter by a commercial applicators 19 applicator or private applicator . In determining the amount 20 of the a civil penalty to be assessed for a violation , the 21 department shall consider all of the following factors: 22 (1) The willfulness of the violation. 23 (2) The actual or potential danger of injury to the public 24 health or safety, or damage to the environment caused by the 25 violation. 26 (3) The actual or potential cost of the injury or damage 27 caused by the violation to the public health or safety, or to 28 the environment. 29 (4) The actual or potential cost incurred by the department 30 in enforcing this chapter and rules adopted pursuant to this 31 chapter against the violator. 32 (5) The remedial action required of the violator. 33 (6) The violator’s previous history of complying with 34 orders or decisions of the department. 35 -1- LSB 2460HV (1) 89 da/ns 1/ 6
H.F. 782 b. The amount of the civil penalty that may be assessed 1 for each violation committed by a commercial applicator or 2 private applicator shall not exceed five hundred dollars for 3 each offense . 4 Sec. 3. NEW SECTION . 206.23B Private pesticide applicator 5 peer review panel. 6 1. The department shall establish a private pesticide 7 applicator peer review panel to assist the department in 8 assessing or collecting a civil penalty pursuant to section 9 206.19. The secretary shall appoint five members, including 10 three certified private applicators and two members of the 11 public who have not been licensed or certified under this 12 chapter. The appointments shall be made on a geographically 13 balanced basis. 14 2. a. The members appointed pursuant to this section 15 shall serve four-year terms beginning and ending as provided 16 in section 69.19 . However, the secretary shall appoint 17 initial members to serve for less than four years to ensure 18 that members serve staggered terms. A member is eligible for 19 reappointment. A vacancy on the panel shall be filled for the 20 unexpired portion of the regular term in the same manner as 21 regular appointments are made. 22 b. The panel shall elect a chairperson who shall serve for a 23 term of one year. The panel shall meet on a regular basis and 24 at the call of the chairperson or upon the written request to 25 the chairperson of two or more members. Three voting members 26 constitute a quorum and the affirmative vote of a majority of 27 the members present is necessary for any substantive action 28 to be taken by the panel. The majority shall not include any 29 member who has a conflict of interest and a statement by a 30 member that the member has a conflict of interest is conclusive 31 for this purpose. A vacancy in the membership does not impair 32 the duties of the panel. 33 c. Notwithstanding section 7E.6 , the members shall only 34 receive reimbursement for actual expenses for performance of 35 -2- LSB 2460HV (1) 89 da/ns 2/ 6
H.F. 782 their official duties, as provided by the department. 1 d. The panel shall be staffed by the department. 2 3. The panel shall make recommendations to the department 3 regarding the establishment of civil penalties and procedures 4 to assess and collect penalties, as provided in section 206.19 . 5 The panel may propose a schedule of penalties for minor and 6 serious violations. The department may adopt rules based on 7 the recommendations of the panel as approved by the secretary. 8 4. The panel shall review cases of persons required to 9 be certified as private applicators who are subject to civil 10 penalties as provided in section 206.19 according to rules 11 adopted by the department. A review shall be performed upon 12 request by the secretary or the person subject to the civil 13 penalty. The panel may establish procedures for the review and 14 establish a system of prioritizing cases for review, consistent 15 with rules adopted by the department. The rules may exclude 16 review of minor violations. The review may also include the 17 manner of assessing and collecting the civil penalty. The 18 findings and recommendations of the panel shall be included in 19 a response delivered to the department and the person subject 20 to the penalty. The response may include a recommendation 21 that a proposed civil penalty be modified or suspended, that 22 an alternative method of collection be instituted, or that 23 conditions be placed upon the certification of a private 24 applicator. 25 5. The department shall adopt rules establishing a period 26 for the review and response by the panel which must be 27 completed prior to a contested case hearing under chapter 17A . 28 A hearing shall not be delayed after the required period for 29 review and response, except as provided in chapter 17A . 30 6. This section does not apply to a certification revocation 31 proceeding under section 206.11. This section does not 32 require the department to delay the prosecution of a case if 33 immediate action is necessary to reduce the risk of harm to 34 the environment or public health or safety. This section also 35 -3- LSB 2460HV (1) 89 da/ns 3/ 6
H.F. 782 does not require a review or response if the department refers 1 a violation of this chapter for criminal prosecution, or for an 2 action involving a “stop sale, use, or removal” order issued 3 pursuant to section 206.16 . The department shall consider any 4 available response by the panel, but is not required to change 5 findings of an investigation, a penalty sought to be assessed, 6 or a manner of collection. 7 7. An available response by the panel may be used as 8 evidence in an administrative hearing, or a civil or criminal 9 case, except to the extent that information is considered 10 confidential including as provided in section 22.7 . 11 EXPLANATION 12 The inclusion of this explanation does not constitute agreement with 13 the explanation’s substance by the members of the general assembly. 14 GENERAL. This bill amends provisions in the “Pesticide Act 15 of Iowa” (Code chapter 206), regulating the use of pesticides 16 by certain persons referred to as applicators. A pesticide 17 includes a substance that prevents, destroys, repels, or 18 mitigates any insect, animal, nematode, fungi, weed, or virus 19 (Code section 206.2(21)). A commercial or public applicator 20 cannot apply any pesticide, and a private applicator cannot 21 apply a restricted use pesticide without being certified by the 22 department of agriculture and land stewardship (DALS) (Code 23 section 206.5(1)). A restricted use pesticide is subject to 24 more stringent regulations, and certification standards must 25 account for the application of such pesticides (Code section 26 206.7). The designation of a pesticide as belonging to the 27 class of restricted use pesticides is determined by DALS (Code 28 section 206.20) and is generally based on determinations of 29 the United States environmental protection agency (40 C.F.R. 30 §152.175). A person is required to be certified as a private 31 applicator if the person applies or supervises the application 32 of a restricted use pesticide on property owned or leased by 33 the person (Code section 206.2(6)). A commercial, private, or 34 public applicator must complete an educational program (Code 35 -4- LSB 2460HV (1) 89 da/ns 4/ 6
H.F. 782 section 206.5). In addition, certain persons must be licensed, 1 including commercial applicators (Code section 206.6) and 2 dealers (Code section 206.8). 3 EMPLOYEE OF A FOOD PROCESSING AND DISTRIBUTION 4 ESTABLISHMENT. An employee of a food processing and 5 distribution establishment may act as an applicator without 6 being certified so long as another person holding a supervisory 7 position over the employee is certified. The bill provides 8 that the exception does not apply to an employee who applies a 9 restricted use pesticide (amended Code section 206.5(6)). 10 CIVIL PENALTIES. DALS may impose a civil penalty for a 11 violation of the Code chapter by a commercial applicator and 12 the bill provides that a private applicator is subject to 13 the same civil penalty (amended Code section 206.19(5)). An 14 assessment of the civil penalty is based upon a number of 15 factors relating to the intent of the violator, the extent 16 that the violation poses a danger to the public, the cost of 17 the injury or damage caused by the violation, remedial action 18 required of the violator, and the violator’s previous history. 19 The amount of the penalty cannot exceed $500 for each offense. 20 Generally, a person who violates a provision in Code chapter 21 206 commits a serious misdemeanor (Code section 206.22). A 22 serious misdemeanor is punishable by confinement for no more 23 than one year and a fine of at least $430 but not more than 24 $2,560. 25 PRIVATE PESTICIDE APPLICATOR PEER REVIEW PANEL. The 26 bill creates a private pesticide applicator peer review 27 panel composed of five persons appointed by the secretary of 28 agriculture (new Code section 206.23B). Three of the persons 29 must be certified public applicators and two of the persons 30 must be members of the public who have not been certified 31 or licensed under the Code chapter. Otherwise, the panel 32 closely resembles the existing commercial pesticide applicator 33 peer review panel (Code section 206.23A). The new panel must 34 make recommendations to DALS regarding the establishment of 35 -5- LSB 2460HV (1) 89 da/ns 5/ 6
H.F. 782 civil penalties against private applicators. The new panel 1 must also review cases of persons required to be certified 2 as private applicators who are subject to civil penalties 3 as provided in the bill. A review requirement does not 4 apply in a number of circumstances, including certification 5 revocation proceedings or an action involving an immediate risk 6 of harm to the environment or public health. The bill does 7 not require a review if DALS refers a violation for criminal 8 prosecution, or for an action involving a stop order issued 9 by DALS. DALS is not required to change the findings of an 10 investigation, a penalty sought to be assessed, or a manner of 11 collection. A response by the panel may be used as evidence in 12 an administrative hearing, or a civil or criminal case, except 13 when the information is considered confidential. 14 -6- LSB 2460HV (1) 89 da/ns 6/ 6