TO:                 SFIREG Working Committee on Pesticide Operations & Management (WC/PO&M)

                        EPA HQ & Regional Personnel

                        State Lead Agencies

                        Interested Parties

SUBJECT:     Minutes of April 19-20, 1999, WC/PO&M Meeting

FROM:         Phil Gray, Executive Secretary, SFIREG

Attached are the Minutes of the April 19-20, 1999, meeting held in New Orleans, LA. Attachments referred to are being either electronically provided or else scanned onto the AAPCO WebSite, rather than included here, in an effort to reduce paper consumption, copying expense, and postage.

State Lead Agency personnel should notify the following persons that the Minutes of the April 19-20 meeting are available on the AAPCO WebSite: 1.the State Pesticide Coordinator or his/her equivalent; 2. the appropriate state pest control regulatory official; and 3. the state pesticide lab director.

The next meeting of the WC/PO&M has not been set as yet. Further information will be forthcoming in August-September.

Please call me at 802-472-6956 (e-mail address is: aapco@plainfield.bypass.com) if you have questions.

TABLE OF CONTENTS

I. Worker Protection Standard Implementation and Enforcement

II. Custom Blend Policy Changes 

III. EPA Enforcement Alert

IV. Office of Compliance Document "Compliance Information You Need to Know"   

V. Inspector Training and Other Training Issues

VI. Keep Out of Reach of Children Labeling Issues

VII. Outcome of Pesticide Field Data Plan Workshop 

VIII. Bee Labeling (ed note: This topic was covered in a closed state-federal meeting)

IX. Internet Distributions of EPA Registered and Non-EPA Registered Pesticides

X. Rodenticides Stakeholders Activities Update

XI. Consumer Labeling Initiative Update

XII. State Participation in the Office of Pesticide Programs Review Process 

XIII. Certification & Training Assessment Group Report

XIV. State Lead Agency Issues with EPA Policy on Conditional Registration

XV. Office of Enforcement & Compliance Assurance Update

XVI. Office of Pesticide Programs Update

ATTACHMENTS

A. EPA Enforcement Alert, Volume 2, Number 4

B. EPA/OPP Document "Implementing CLI (Consumer Label Initiative) Recommendations"

C. EPA Document "24(c) Addendum"

MINUTES OF MEETING

Members present included: Paul Liemandt, MN, Chair; Lebelle Hicks, ME; Neil Ogg, SC; Grier Stayton, DE; Chuck Andrews, CA; Jack Peterson, AZ; Tim Creger, NE; Bob Frame, WV; Dale Mitchell, OR; Donnie Dippel, TX; and Jim Bigelow, WY. Also present were: Bob Batteese, President, AAPCO; Tobi Jones, Chair, SFIREG; Kennan Garvey, Jim Roelofs, and Elaine Lyon, OPP, Field & External Affairs Division (FEAD); Phyllis Flaherty, Office of Compliance (OC), other State Lead Agency (SLA) personnel; Carleton Layne, EPA Region IV, representing the EPA Regional Offices (ROs) ; and visitors. The following topics were covered:

I. Worker Protection Standard (WPS) Implementation and Enforcement

Phyllis Flaherty noted that EPA assessment of WPS implementation was impending; thus, state implementation strategies should be kept updated because EPA needs to know the status of such plans. She cited problems caused OC and the Office of Regulatory Enforcement (ORE) by their not knowing what was happening in the field, though EPA recognizes that much is going on. The driving forces for the assessment are: 1. the National Environmental Justice Action Coalition (NEJAC); and 2. the Children’s Health Protection Advisory Committee (CHPAC). CHPAC issued a set of five recommendations to the Agency, one of which was to revisit the WPS rule to strengthen provisions to protect children’s health. OPP did not agree to revise the Rule at this time, but rather did agree to establish a Worker Protection Assessment Group (WPAG) to determine how well WPS is working and whether further changes are needed. No schedule has as yet been set for WPAG. Region III will be doing WPS assessment this year, but Bob Frame said that a one day visit by Regional Office staff would not be enough time for the review, given the geographical separation of the areas to be considered. Jack Peterson expressed concerns about EPA’s stress on WPS label enforcement. The Agency should ask the states before listing label enforcement as a big concern. AZ has a tough WPS enforcement program. Flaherty noted that criticism of WPS implementation was coming from all over, and there was a need for EPA to respond. Paul Liemandt noted MN’s comprehensive approach to label enforcement, of which WPS is only a part. Another big part concerns drift, where MN has established a major compliance initiative. Kennan Garvey noted that the label compliance initiative had come out of a meeting in 1998 of EPA supervisors. Flaherty mentioned the need for specificity in state reporting so that facts can be passed on to other stakeholders. OC has some idea of what is happening in the field, but it needs to figure out how to pull all the information together so that everyone may know what is going on. The key question is: Is there full compliance with WPS label statements?

Concern was expressed by the states over the changing of questions about WPS by outside groups. Donnie Dippel said states need to know what specific enforcement EPA wants; the Agency then needs to ask for this. Liemandt urged that the questions not be changed without prior agreement. Tobi Jones said OPP and OC should get together and decide what are the best questions to ask SLAs; thus far, the Agency hasn’t figured out which questions to ask. Spending time on labeling compliance from a registrant viewpoint is not the way to find out what states are doing to enforce the WPS. Several WC members stressed that the questions need to be known well in advance, i.e. at the beginning of the work program, and not at the end of the reporting year. It was not worth the effort to make this task a retrospective one. ACTION ITEM: WC members will formulate the questions and then consolidate them, with Liemandt taking the lead. Carleton Layne will query the ROs for their lists of questions. These two sets of questions will be consolidated with a list of questions already formulated by OC, and these three sets of questions will be agreed upon at the next WC/POM meeting in the Fall.

II. Custom Blend Policy Changes

Flaherty noted that this was still on her "to do" list. Hopefully OC will have a work group set up and the issues identified by July. Changes desired by the states will probably require regulatory amendment; Flaherty will talk to the Office of General Counsel (OGC) about what will be necessary. One issue OGC will have to decide is whether the addition of water as a custom mix requires rule making or constitutes merely a policy interpretation. The WC/PO&M will be represented on the work group by Paul Liemandt, Tim Creger, and Donnie Dippel, with Carleton Layne repr. the ROs. Custom blending will be on the agenda for the Fall WC meeting.

III. EPA Enforcement Alert (see ATTACHMENT A for a copy of ORE’s latest issuance dealing with pesticides)

IV. OC Document "Compliance Information You Need to Know"

Liemandt moved that the content and concerns in the Consumer Labeling Initiative (CLI) be included in OC’s mailing of the above document to establishments. The motion was seconded and passed unanimously. Mickey Post will be the OC contact.

V. Inspector Training and Other Training Issues

Flaherty said OC was looking for states to host Pesticide Inspector Residential Training (PIRT) courses. WPS, product/use enforcement, and a product course with focus on anti-microbials are the areas being considered for PIRT. A work group is being set up to deal with PIRT. A closer look needs to be taken at how PIRT fits in with RO training and SLA training for inspectors. Flaherty said she didn’t know what training was going on at various levels; training needs to include forms, inspector manual, federal credentials, etc. She wants to start up another work group headed by Mickey Post on the inspector manual, and would like SLAs to participate. There is a need to add new chapters on federal credentials and federal facilities. OC would also like to develop a pocket guide for inspectors, and Liemandt suggested it contain an index of OC documents dating back over the years. Flaherty said the index would be started with 20 odd topics; certainly by Oct. there will be examples of the topics in order to see if SLA needs are being met. There needs to be an integration of topics with the federal and tribal credentials issue. Tobi Jones noted that all SLAs and tribes would have the opportunity to comment on the impending EPA policy document on credentials (the title of this is "Procedures for Issuance of Federal Inspector Credentials to Authorized Tribal,, State, and Territorial Inspectors"), and Flaherty confirmed that this document would be sent out in draft for SLA and tribal review. Liemandt mentioned the financial implications of the new credentials policy, and the need was noted for SLAs to pay attention to the resource commitment portion of the document.

VI. Keep-Out-of-Reach-of-Children Labeling Issues

Jones noted that FL plans to bring this topic up as an Issue Paper at the June full SFIREG meeting. Region IV reprs. presented the background, but there were no strong feelings among the WC that the issue needed to be discussed at this meeting.

VII. Outcome of Pesticide Field Data Plan (PFDP) Workshop

Flaherty noted availability of the minutes of the March 10 workshop in Alexandria, VA, and asked that comments on the minutes be sent to her and to Jake Mackenzie. Ed White offered to provide copies of the original state reports to Mackenzie, and Kennan Garvey asked that this be done. Liemandt noted the state-federal partnership aspect to this endeavor. A breakout session of the OPPTS National Meeting in May will be the next opportunity to discuss the PFDP, and Jones suggested discussion at the June full SFIREG meeting of where this project was headed.

VIII. Bee Labeling (Ed Note: This topic was covered at a closed State-EPA meeting)

IX. Internet Distributions of EPA Registered and Non-EPA Registered Pesticides

Liemandt noted the letter from xschem.com with its substantial website offering. Lebelle Hicks reviewed the material she had downloaded from various web sites. Flaherty said most complaints against registrants now reaching her office dealt with Internet sales practices. There is a legal issue as to whether EPA can take enforcement actions based on Internet claims. Flaherty asked if any SLA reprs. had discussed Internet sales of pesticides with their attorney general’s office; the answer was negative. She asked SLAs to check the Internet for FIFRA violations, but also for information necessary to trace companies (Layne said Region IV checks the website of any registrant against which it is developing a case). It was noted that there is no way of currently determining how much product is being sold via the Internet. Flaherty mentioned that many Internet offers were legal and proper. Liemandt raised the fees issue, noting the potential consequences for state revenues (and, by implication, for state enforcement of FIFRA) of SLAs not being able to charge fees for Internet sales of pesticides. Flaherty noted the possible use of "show cause" letters as a legal stratagem for states, and urged SLA reprs. to talk to their attorneys and have them talk to OGC.

Jones noted the fact that sales of Restricted Use Pesticides (RUPs) were taking place over the Internet, and urged that EPA pay attention to this. A prioritized approach to the problem is essential, e.g. Section 25(b) materials are less important. The system designed by EPA to deal with RUPs is what is at issue. Von McCaskill said it didn’t make sense for 50 states to take individual action here, and urged OECA to take action in a NY situation involving Internet sales of Restricted Use Pesticides in order to set an example. Flaherty said OC was beginning to discuss Internet issues with ORE. Liemandt said the registrant community should be interested in the fact that some companies are not paying fees and avoiding oversight; perhaps registrants should do something about this. Jerry Harrison, Novartis, suggested the use of PR Notices and Section 7 letters to define what can be done via the Internet. Liemandt asked that OC and ORE address the Internet issue at the full SFIREG meeting, and the WC endorsed this request. ACTION ITEM: SLAs will provide Flaherty’s office with any evidence of illegal Internet activities, with copies to Liemandt who will consolidate the material. Flaherty asked that any material coming in from states be identified as of WC/PO&M origin. She will also investigate the NY situation (see above) and be prepared to report on this at the full SFIREG. Chuck Andrews noted another related issue, that of growers selling RUPs via Internet sales conducted as auctions with no identification of either seller or buyer. There could be many FIFRA violations taking place here. EPA agreed to provide a briefing on Internet sales of pesticides at the full SFIREG meeting in June, with input from OPP, OECA OGC, and ORE.

X. Rodenticide Stakeholders Activities Update

Hicks, who is a toxicologist, noted that the Rodenticide Stakeholders’ Work Group, on which she represents the states, had met March 29 in Washington, D.C. A sub-committee including Bob Wulfhorst, OH, Bob Rosenberg, National Pest Control Association (NPCA), and herself will review national Poison Control Center data to determine where and how children are getting into rodenticides. It was noted that there is no SLA data base of surveillance of poisonings. Hicks said the Work Group needed to further define the problem, check for other data sets, and finalize the mission statement. Liemandt asked that any SLAs with a data base on poisoning of children by rodenticides contact Hicks.

XI. Consumer Labeling Initiative (CLI)Update

Jim Downing, OPP/FEAD, said OPP management wanted the CLI to be applied to all pesticide products; there will be a series of PR Notices in the next few months addressing changes to be made in labeling. There is a draft memo from OPP Director Marcia Mulkey to OPP on what changes can be made now and what can be made in the future. Downing discussed an OPP outline document entitled "Implementing CLI Recommendations" (see ATTACHMENT B for a copy). The CLI Storage & Disposal sub-group has been unable to reach agreement on the labeling of S&D recommendations, and is still working on the issue. A draft of the S&D statement will be shared with SLAs. A Pesticide Program Dialogue Committee (PPDC) sub-group is working on an ingredients statement; also, a first aid statement will be forthcoming. Jones urged that the Mulkey guidance memo, which should be out the first part of May, be sent to all SLAs. Following discussion, Hicks moved that the issue of label font size be reviewed and that a feedback mechanism with the states be provided on the issue. Andrews 2nded; the motion passed unanimously. Liemandt asked for a WC volunteer to replace M.E.Setting as state liaison with the CLI; no one volunteered. Liemandt will talk to individual members..

XII. State Participation in OPP Review Process

Kennan Garvey noted SLA participation in OPPTS national meetings and many other OPP activities. State input on the mandatory vs. advisory labeling issue has been valuable, as has SLA review of draft Reregistration Eligibility Documents (REDs). On new product decisions, OPP is working with OGC to allow more state input. Jones commended EPA for the improvement in consultation with states on registration issues, e.g. termiticides and new technology. It is important that states make known to OPP how products are being used in the field. Liemandt noted the importance of REDs review by states; he will continue to forward REDs to the WC. Downing expressed appreciation for generic label issues being brought to OPP’s attention.

XIII. Certification and Training Assessment Group (CTAG) Report

John Impson, USDA/EX, asked SLAs to comment on the CTAG report. There is $1.5M in the USDA budget for FY2000 for training of pesticide applicators, but Impson urged WC members to endorse the need for continuing USDA funding of the education and training effort. Liemandt stressed the need for training on drift mitigation. Jones urged the WC to take a close look at the CTAG recommendations, which stress the importance of new approaches to education, in the context of the evolution of pesticide regulatory programs and how they were being funded.

XIV. State Lead Agency Issues with EPA Policy on Conditional Registration

Liemandt noted the increased use by OPP of the conditional registration process, and asked for state comments. Maureen Serafini said there was no need for such products in NY, and asked what the EPA criteria were for conditional registration. Jim Roelofs replied that the conditional registrations that have attracted the states’ concerns in recent years (acetochlor, Balance, and now Chlorfenapyr (Pirate) each had significant environmental concerns that needed to be addressed before a full registration could be granted. If the core health and environmental studies result in a clean risk assessment, however, there is no basis to deny registration, even if the Agency wants additional data in some areas, such as potential for ground water contamination. Liemandt asked why EPA did not allow registration to follow its normal process. Roelofs said there was no expedited review of conditional registration candidates; most such packages have been at EPA for years prior to registration. Liemandt reiterated the concern that in the future more compounds would be conditionally registered. With each chemical, SLAs will have to do more monitoring and follow-up. This will constitute a resource drain which would be avoidable if compounds did not come with loose ends. There is a potential cascading effect. Roelofs said he did not think this would happen, and noted that EPA is becoming more and more concerned with chemicals coming in the door with questions that can’t be answered; the Agency is getting tougher on such compounds. Tim Creger noted that Region VII states had asked him to express their concerns over compounds being conditionally registered. He urged that EPA concerns over a chemical be sent out to SLAs earlier than they have been, so that states can properly evaluate whether to register or not. In the case of isoxyflutole (Balance), Region VII states did not have the opportunity to properly consider whether to prohibit use because the compound was registered and appeared for use too suddenly in 1998. Charley Clark noted that FL had decided to place the burden for monitoring several new conditionally registered chemicals on the registrant rather than on the SLA itself.

XV. Office of Enforcement & Compliance Assurance Update

Phyllis Flaherty discussed a number of topics including the October 1999 National Small Farm Conference, grant applications for efficacy testing of anti-microbials (due the week of April 26-30 with funding decisions to follow shortly), the FIFRA Section 6(a)(2) draft compliance strategy, the plant pesticide enforcement strategy, the draft grant guidance for FY2000, the Cooperative Enforcement Agreement guidance due in May 2000, and the Memorandum of Agreement Guidance, which are the overreaching documents going from OECA to the ROs, and which cover enforcement and compliance in all EPA programs. Environmental justice is a big issue this year in OECA, with the need to respond within 60 days to complaints of NEJAC over lack of enforcement of the WPS. In discussion of the grant guidance, Flaherty said OC had no plan to put the PFDP into the guidance this year. Region IV’s Compliance Activities Tracking System (CATS) was discussed. It was noted that use of CATS was expanding to Region III states, and that CATS has to integrate with the EPA/HQ system, but that a different system is being worked on for the PFDP. Finally, Flaherty reviewed enforcement implications of the Small Business Regulatory and Enforcement Flexibility Act.

XVI. Office of Pesticide Programs Update

Sheryl Reilly, OPP/Biopesticides and Pollution Prevention Division, noted there were two documents in the pipeline, a PR Notice and an FR Notice, dealing with Section 25(b) a.i.s and inerts. CA and HI are changing their laws to reflect EPA’s implementation of 25(b).

Jim Roelofs reviewed the phosphine situation, noting that the stakeholders’ meeting had been postponed to Oct-Nov. OPP plans to issue a revised version of the RED containing mitigation measures. Demos of fumigation measures are to be conducted during May with tobacco and peanuts. 600 comments were received on the draft RED. The National Phosphine Coalition now has at least 110 groups in it. The huge amount of interest and concern expressed in comments on the RED were underestimated by EPA. A more refined version of the RED will be issued, but comments will be accepted indefinitely.

Roelofs said the Quality Management Plan (QMP) guidance document would be issued in about two weeks. The document is being developed to meet EPA’s requirement for each state to have a QMP in place by Oct 1. The document, which will be tailored to SLA needs, will go out to a wide audience including state lab directors. EPA/HQ is pushing the ROs to improve their sophistication and communication with SLAs in this area.

Roelofs covered a number of other issues including: 1. Pesticide Management Plans - Arty Williams will be holding a meeting shortly to wrap up all the remaining issues. The Final Rule will hopefully go to OMB this Summer and be published in the Fall; 2. Plant Pesticides - EPA was pushed in a Congressional hearing to change the name, and has agreed to open the question of the name to public comment. The industry favors "Plant Expressed Protectants". There will be no reproposal of the Rule; 3. Mandatory vs. Advisory Labeling - A PR Notice has been drafted which OPP hopes to finalize soon. Roelofs promised to make it available in draft to SLAs as soon as the EPA internal review is completed; 4. Chlorine Gas RED - The comment period is open now, but few comments have been received; and 5. Waiver of Liability on Labels for Section 24(c) Registrations - Hopefully the one-page EPA document entitled "24(c) Addendum" (see ATTACHMENT C) will clarify the issue.

Garvey reviewed developments with international implications, particularly North Dakota legislation affecting imports of Canadian products. Also, a NAFTA industry group is to hold a discussion concerning harmonization of labels, including the idea of a North American label.

The meeting adjourned at 3 p.m.