Legislative Analyst's Office Analysis of the 2002-03 Budget Bill

Department of Pesticide Regulation (3930)

The Department of Pesticide Regulation (DPR) administers programs to protect the public health and the environment from unsafe exposures to pesticides. The department (1) evaluates the public health and environmental impact of pesticide use; (2) regulates, monitors, and controls the sale and use of pesticides in the state; and (3) develops and promotes the use of reduced-risk practices for pest management. The department is funded primarily by an assessment on the sale of pesticides in the state and by the General Fund.

The budget proposes expenditures of about $59.7 million and 426 positions in 2002-03 for the department, including $39.2 million from the DPR Fund (funded mainly by an assessment on pesticide sales) and $17 million from the General Fund. The proposed expenditures are $3.3 million, or 5 percent below estimated current-year expenditures.

State Enforcement Activities Ineffective

Background

The state uses a significant amount of pesticides, mainly for agricultural purposes. In 2000, pesticide use in the state totaled nearly 188 million pounds. The department is responsible for implementing state and federal laws to regulate the use of these pesticides in order to protect worker safety and community and environmental health.

Figure 1 shows the DPR's enforcement expenditures for 1998-99 through the proposed budget year. Enforcement activities are funded primarily from the DPR Fund. For 2002-03, the budget proposes that the DPR Fund support 64 percent of all enforcement expenditures, with the General Fund contributing approximately 29 percent of these expenditures.

State and Local Agencies Share Enforcement Responsibilities. While DPR is ultimately responsible for ensuring compliance with state pesticide laws, enforcement activities are carried out jointly by the department and the County Agriculture Commissioners (CACs). As shown in Figure 1, county enforcement activities account for more than one-half of the department's enforcement spending. In addition to state funds, counties also provide some of their own funds for these enforcement activities. Figure 2 highlights the respective enforcement responsibilities of CACs and the department.

The state is responsible for overseeing the counties' enforcement efforts. Specifically, as outlined in Figure 2, the state provides counties with program information and guidance to facilitate enforcement, while the CACs monitor pesticide application, conduct field inspections, investigate complaints, and assess penalties for violations. The state monitors the counties' enforcement efforts and effectiveness by conducting program overview inspections. In these overview inspections, DPR staff accompany county staff into the field to measure both how well a local individual applying pesticides adheres to safety regulations and how well the county assesses the level of compliance for that application. State overview inspections, however, occur on less than 1 percent of all county inspections. In addition to field inspections, DPR reviews the compliance and enforcement actions taken by the counties.

The state also reviews a large amount of local data that describe various county activities. For instance, the state reviews county inspection records of pesticide use by businesses and growers. The state reviews these records to ensure that the county is applying appropriate enforcement standards. Much of the county data provide information only on the quantity of activity carried out, not the quality or results of the activity. In effect, DPR knows what the counties are doing, but not how well they are doing it.

Recent Assessment Report Showed Compliance Needs Improvement. To gain a clearer picture of how individual pesticide users comply with the law, DPR conducted an assessment of twenty counties with high pesticide use and high agricultural activity in order to determine the effectiveness of pesticide regulation compliance programs. From June 1997 to March 2001, DPR conducted extensive field inspections and reviews of county level data, and monitored local pesticide applications to deter mine compliance levels. The department has defined 80 percent compliance with inspection criteria as an acceptable compliance level, and any compliance lower than that as needing improvement. This assessment was one-time-only in nature and was in addition to the regular compliance activities undertaken by the counties. Figure 3 summarizes the Compliance Assessment Report's findings.

Specifically, the report found lower-than-acceptable levels of compliance throughout the state, and that compliance levels for agricultural growers was below that for pest control businesses. The report noted a low level of compliance for agricultural workers that handle pesticides and for hazard posting in agricultural areas. However, the report found no real difference for worker safety between those who worked directly for growers and those who worked for labor contractors. Overall, the department concluded that compliance statewide "needs improvement."

Data Reveal Significant Noncompliance

A detailed review of the county level data from the Compliance Assessment Report reveals significant noncompliance in several counties. We recommend the enactment of legislation that holds counties accountable for enforcing and improving the compliance of local pesticide users. We further recommend that the legislation direct the Department of Pesticide Regulation to report annually on local compliance as measured by the department using appropriate performance measures.

The Compliance Assessment Report grouped all county compliance data together to gain a statewide perspective. To obtain a more detailed look of compliance by counties, we requested the 20 individual county reports for further analysis. County-level data contained information on specific inspections, as well as summary data for each county. The goal of our analysis was to get a sense of the range of compliance across the counties in the sample.

A Small Number of Counties Have a Significant Amount of Noncompliance. Our review of the individual county data shows that of the counties covered by the report, six located in the Central Valley are among the worst performing counties in the state for pesticide regulation compliance. Each of these six counties has substantial local pesticide usage. Together, they accounted for nearly forty-five percent (85 million pounds) of the state's pesticide use in 2000. Specifically, data for these six counties show several areas where compliance levels were below 50 percent, including the use of personal protective equipment and the posting of information on the handling of hazardous pesticides. As a comparison, most of the other counties reviewed by DPR had few or no areas of compliance below 50 percent. Less than 50 percent compliance in an area represents significant noncompliance.

Significant Noncompliance with Protective Equipment Requirement. Current DPR regulations require that personal protection equipment be available and used in certain pesticide applications. Our review shows that compliance with these requirements is particularly problematic. Of particular concern is the use and availability of personal protective equipment in agriculture. The data show that for growers, nearly 20 percent--or one-in-five--had a compliance level of less than 10 percent. This means that personal protection equipment, such as aprons, gloves, protective eyewear, chemical-resistant clothing, and the information on when and how to use this equipment was largely unavailable to agricultural pesticide handlers 20 percent of the time throughout the state.

High Level of Noncompliance Raises Questions of Effectiveness of Local Inspections. As Figure 1 shows, the state provides substantial funding to counties to inspect and enforce pesticide use laws and regulations. For the current year, the state provided $13.3 million and the budget proposes the same amount for 2002-03. While counties conduct about 40,000 pesticide use inspections a year using these funds, DPR's compliance assessment suggests that these inspections have not been effective in ensuring acceptable levels of compliance in several counties in the department's study.

Negotiated Work Plans Used to Set Enforcement Goals. Discussions with DPR indicate that since completion of the compliance assessment, the department has started to use "negotiated work plans" to set goals with CACs. These work plans set out the level of inspections and the scope of education and outreach to be conducted by the CACs. These work plans are negotiated individually with each county and tailored to strengthen the weakest parts of the county program. The work plans are used by DPR regional staff to monitor county enforcement activities.

Funding for Local Enforcement Should Be Tied to Attainment of Negotiated Work Plan Goals. We think that these negotiated work plans can provide a tool for DPR to help counties define enforcement and compliance goals. In order to ensure that compliance improves, we recommend the enactment of legislation requiring DPR to report annually on the level of compliance achieved by each county receiving funds for enforcement.

Based on the information reported, the Legislature can determine what further actions are needed to improve local compliance. For instance, if after several years, counties still fail to meet an acceptable level of compliance as measured against goals set in the negotiated work plans, then the Legislature could consider adopting legislation directing DPR to withhold funds to such counties, and assume the CAC's enforcement responsibility. This approach would provide sufficient time for DPR to work with counties to improve local compliance. The DPR's assumption of county enforcement would be a last resort, similar to what current law provides in the case of Air Resources Board's oversight of local air quality districts' enforcement of the air quality standard requirements.

Department Oversight of Counties Lacks Measurable Goals

Departmental oversight of county enforcement programs lacks performance measures and goals. We recommend the enactment of legislation that directs the department to develop clear goals for its enforcement program and measurable performance criteria to monitor the progress of the counties toward those goals.

While the compliance assessment report provides a useful one-time assessment of compliance with pesticide regulations, it does not provide data over time that can be used to evaluate county performance on an ongoing basis.

Negotiated Work Plans Measure Activity Not Results. As mentioned earlier, a primary tool DPR uses to improve compliance is the negotiated work plans. One problem with these work plans, however, is that they rely heavily on county workload data to determine program success and not on well-defined performance measures. For example, counties count and report on the number and type of inspections conducted as required by the work plans. Such data, however, do not provide an indication of the accuracy or rigor of the inspection. For that, the state must conduct overview inspections to assess the quality of the county program.

Overview Inspection Data Not Available. For the state's overview inspection program to be effective, data must be compiled regarding the level of compliance by pesticide users in the counties. Currently, such data are not available as an oversight tool. For instance, for our review, the department was unable to supply any summary information that would indicate how well (or poorly) a county had performed based on DPR's overview inspections. Our review of DPR field inspection records provide no evidence that the department's overview inspection efforts are either targeted towards problematic counties or focused in areas of greatest noncompliance. Without such data, DPR cannot ensure that it is allocating its staff resources in the most effective and efficient manner. It also cannot assess whether the negotiated work plans are effective in changing user behaviors and improving compliance.

Negotiated Work Plans Should Specify Performance Measures and Goals. In order that the work plans can provide an effective tool to measure compliance, DPR must set clear compliance goals in the work plans. These compliance goals should be in addition to enforcement activity goals. The DPR should also identify clear performance measures by which to measure progress towards achieving these goals. Doing so would make clear to counties what they are expected to achieve.

The DPR Needs to Compile Summary Data on Compliance. The DPR should also compile summary data based on its overview inspections of counties. The data should provide information that enables the department to (1) track the level of compliance of a county on an ongoing basis, and (2) identify specific areas of noncompliance. Only with this type of information can DPR help counties to revise their negotiated work plans to target enforcement activities in order to improve compliance. Without such data, DPR will be unaware of ongoing compliance deficiencies and unable to focus state resources in the most efficient and effective manner.

Accordingly, we recommend the enactment of legislation requiring DPR to develop compliance goals for county enforcement and identify measurable performance criteria to monitor county achievement of these goals. The legislation should also require DPR to track data on county compliance on an ongoing basis.

Department Funding

Justification for General Fund Support Incomplete and Inaccurate

We withhold recommendation on the department's request for a $3.4 million General Fund augmentation for general support of the department until it provides, at budget hearings, accurate information detailing the program impacts if these funds are not provided. Further, should the department not provide this information, we recommend deletion of the $3.4 million General Fund.

Mill Assessment Insufficient to Maintain DPR Current Program; General Fund Requested. The primary source of funding for DPR is an assessment levied on the sale of registered pesticides for use in the state (the mill assessment). Chapter 523, Statutes of 2001 (AB 780, Thomson), sets the mill assessment rate at 17.5 (1.75 cents) per dollar of sales, through June 30, 2004. Of this amount, current law requires that 6 mills be distributed to the counties for enforcement activities and 0.75 mill be distributed to the Department of Food and Agriculture. The remaining 10.75 mills are available for support of DPR. For the budget-year, DPR estimates $32 million to be available for departmental support from the mill assessment.

At the current mill assessment level, there would not be sufficient resources from the DPR Fund to support the current level of department activities. To maintain those activities, the department requests an increase of $3.4 million in General Fund support for 2002-03. The amount would fund activities that are currently supported with DPR Fund money.

Need for General Fund Support Not Accurately Identified. The department indicated that the General Fund would be needed to support certain programs that are either federally required or of relatively high priority. It further indicated, however, that should the additional General Funds not be provided it will seek alternate ways of absorbing the shortfall rather than eliminating the programs. This suggests that the General Fund is in effect requested to fund other, potentially lower priority activities.

Since the submitted request does not accurately portray either the benefits from, or the negative impacts without these General Funds, we recommend that the department provide the Legislature at budget hearings complete and accurate information that describes the actual program impact should these funds not be provided. Without such information, the Legislature cannot determine the impact of the budget proposal. Therefore, we recommend that the Legislature not act on this request until such time as the department provides this information. Should the department not provide the information, we recommend the Legislature not approve the General Fund augmentation.