DEE-12: Pesticide Enforcement Policy

Commissioner Policy

The DEC Policy System
Department ID: DEE - 12
Program ID: N/A
Issuing Authority: Thomas C. Jorling, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Thomas C. Jorling
Date: 26 March 1993
Issuance Date: 20 January 1987
Revised: 26 March 1993
Latest Review Date (Office Use):

Consistent with the Civil Penalty Policy; Order on Consent Enforcement Policy; Record of Compliance; Natural Resource Damages and Small Business Self-Disclosure Policy:

1. The policies and procedures set out in this document are intended solely for the use and guidance of DEC personnel. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative and judicial litigation with the State of New York. DEC reserves the right to act at variance with these policies and procedures.
2. Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
3. Pursuant to §4547 of the Civil Practice Law and Rules of the State of New York, all evidence or conduct of negotiations or settlement are inadmissible as evidence as proof of liability for or invalidity of the claim which is disputed as to either validity or amount of damages.
4. The penalty amounts calculated with the aid of this document in adjudicated cases must, on the average and consistent with consideration of fairness, be significantly higher than the penalty amounts which DEC accepts in consent orders which are entered into voluntarily by respondents.

I. Purpose

This document establishes the policies and procedures by which the Department of Environmental Conservation is to insist upon compliance with New York State law, regulations and permits governing pesticides.

II. Background

The Department's statutory authority for regulating distribution, sale, use and transportation of pesticides in New York State is found in Article 33 of the Environmental Conservation Law (ECL). (See specifically ECL Section 33.0303.1.) ⁽¹⁾ . Pursuant to the Federal Insecticide, Fungicide and Rodenticide Act, New York State has been delegated primary enforcement responsibility for the regulation of pesticides in the State.

In enacting Article 33, the Legislature expressly found that many uses of pesticides are valuable, important and necessary to the welfare, health, economic well-being and productive and industrial capabilities of the People of the State. At the same time, the Legislature recognized that unlawful use of pesticides may cause injury to health, property and wildlife.

The Commissioner's responsibilities include: registration and regulation of the sale and use of pesticides, including enforcement related to compliance with pesticides labels and labeling; certification of pesticide applicators; registration of businesses conducting commercial applications of pesticides and sale or distribution of restricted use pesticides; registration of major pesticide users; and issuance of restricted use permits for aquatic and experimental pesticide use.

The Commissioner's enforcement responsibility includes conducting all pesticide inspections within the State, investigating all suspected pesticide law violations, and taking appropriate enforcement action.

The Department's related Enforcement Directives include the Order on Consent Enforcement Policy, the Civil Penalty Policy, and the Record of Compliance Enforcement Guidance Memorandum.

III. Enforcement Objectives

Enforcement, as one phase of the regulatory process, occurs when the improper use of pesticides occurs. Enforcement of the pesticide law is necessary for the protection of public health and the environment, and is also necessary for legal and economic reasons. Equitable enforcement of the pesticide law promotes the interests of fairness in our society and deters violations of law. In keeping with these principles, the primary pesticide enforcement policy objectives of DEC are:

1. Demand strict compliance;
2. Establish an enforcement presence; and
3. Be consistent in imposing sanctions for non-compliance.

• Objective 1: DEC shall demand and, whenever necessary, compel through the enforcement process, strict compliance with all applicable requirements mandated by law.

One measure of the success of DECs pesticide program is its effectiveness in ensuring that pesticides are properly used. DEC thereby seeks to prevent injury to public health, property, wildlife and the environment resulting from improper pesticide use. To effectuate these goals, a regulatory scheme has been established to promote compliance with pesticide law. Enforcement action is appropriate to compel compliance and to penalize improper conduct.

DEC will employ the entire spectrum of its statutory powers in enforcing compliance with the pesticide law. When exercising its enforcement powers, DEC will consider the imposition of penalties, revocations or suspensions of certification, registration or permits, criminal prosecutions and other appropriate action to obtain expeditious compliance and to make compliance more attractive and less expensive than non-compliance. All enforcement action should clearly reflect DECs will and authority to impose sanctions in appropriate cases.

The Environmental Conservation Law provides for the imposition of criminal fines and civil penalties for violations of the pesticide law. Other sanctions of an injunctive or regulatory nature may be imposed under appropriate circumstances. Except for misdemeanor offenses, it is not necessary to show a culpable mental State, nor is it necessary to prove actual environmental harm DEC will endeavor consistently to obtain the greatest environmental benefit from the expenditure of its finite resources and gauge its use of enforcement powers accordingly, consistent with the Department's Civil Penalty Policy and Order on Consent Enforcement Policy guidance documents.

The circumstances warranting the imposition of significant payable penalties are:

1. Where a business or individual engages in willful, bad faith, or negligent conduct that results in violation; or
2. where a business or individual gains economic advantage by non-compliance; or
3. where tangible public health and/or environmental damages are detected, e.g., misapplication(s) of pesticides which result in exposure or injury to persons, property or environment; or
4. where substantial administrative or judicial efforts are required to bring a business into compliance with well-defined legal obligations.

In the above circumstances, payable penalties must be sought which are commensurate with the amount of the unlawful economic benefit, the extent of the injury or exposures, the culpability of the violator, if applicable, and the amount of administrative costs expended.

The above priorities should be read in conformity with the minimum enforcement responses provided in Appendix I for consent orders and stipulations as well as the Civil Penalty Policy and Order on Consent Enforcement Policy guidance documents. The Civil Penalty Policy is a penalty guidance document in the Enforcement Policy Series. It enunciates factors Administrative Law Judges may consider in recommending penalties and sanctions after hearing and provides basic guidance on penalty development strategies and policy for programs and regional offices. The Divisions of Hazardous Substances Regulation, environmental Enforcement and Law Enforcement shall review Appendix I annually for effectiveness and consistency with new Departmental policies.

Administrative orders on consent and orders after hearing remain the most frequent means for taking pesticide enforcement action. The use of the criminal and civil judicial processes, however, must also be given serious consideration in choosing compliance/enforcement strategies. The police officers of the Division of Law Enforcement (DLE) are available to take an active role in pesticide enforcement in cooperation with Pesticides Bureau technical staff. Where the elements of a criminal offense can be sustained, criminal enforcement should occur, either by issuance of Environmental Conservation Appearance Tickets or through other suitable accusatory documents, by s ark arrest by Environmental Conservation officers; or through referral of the matter to the County District Attorney, New York State Attorney General, or United States Attorney. When criminal activity is suspected, the matter may be referred to DLE, Bureau of Environmental Conservation investigations, for further development, in conjunction with the DEE Field Unit Attorney.

The Commissioner or designated representatives (the Department's Pesticide Control Specialists) have the authority under ECL Article 33 to seize, quarantine or stop use of pesticides when the pesticides do not meet legal requirements or are being used illegally. This authority should be exercised when a reasonable belief exists that an offense is being or has been committed (i.e., when it is more probable than not). (ECL Sections 33-1501 and 33-1503.) this enforcement authority should be used whenever illegal pesticide use or offers for sale are encountered by a Specialist. In addition, pesticides may be seized pursuant to warrant and/or as evidence by police officers.

• Objective 2: DEC shall establish an "enforcement presence" to deter non-compliance in the regulated community and to assure the regulatory process is and is perceived as being fair and equitable.

To establish an "enforcement presence," DEC should focus on securing the compliance of violators in such a manner that the public will receive the benefits of an enforcement program gauged to achieve the greatest environmental results. The regulated community will become increasingly aware that the DEC, while fair and equitable, will actively pursue enforcement in a firm and competent manner. Such enforcement action will remove economic benefit, punish significant offenders and require timely remedial action. While significant violators should be a priority, all classes of non-compliance should receive enforcement attention, to the extent enforcement priorities allow.

As the public becomes aware of the Department's enforcement actions against offenders, DEC must continue to develop and maintain a reputation for firm enforcement. Public awareness of pesticide control problems and of the array of strategies which can be applied to any given problem will benefit the pesticide enforcement program. Accordingly, DEC legal staff should be prepared to discuss, generally, alternative rights or actions which citizens may pursue on their own.

• Objective 3: DEC shall consistently apply the sanctions provided by law. Enforcement discretion shall be exercised consistently from Region to Region.

This memorandum reiterates the policy that the nine regional offices of DEC will implement pesticide enforcement programs which are subsets of a larger and coherent state program. Timely and appropriate minimum enforcement responses have been and will continue to be developed by DEC to ensure that New York's pesticide enforcement program is applied uniformly throughout the state.

Uniformity as to minimum enforcement responses is necessary to ensure that all violators of the pesticide law are treated fairly. Further, the establishment of minimum uniform enforcement responses will allow DEC personnel to deal swiftly and efficiently with most types of pesticide violations. At the same time, flexibility remains for regional personnel to craft appropriate responses to augment the minimum provided by Department-wide abidance. The Divisions of Hazardous Substances Regulation, Law Enforcement and Environmental Enforcement shall periodically review the practices of regional personnel to recommend further adjustment to the enforcement response guidance and to facilitate the transfer of information concerning successful approaches between the regions.

IV. Enforcement Priorities

When a pesticide violation has been identified, it is crucial to the integrity of the pesticide enforcement program that the violation be resolved quickly and adequately. The greater the risk to public health and the environment presented by an alleged violation, the higher the priority for response. Violations of an emergency nature should be given the highest priority and addressed immediately. Following is a categorization of violations and potential violations for the purpose of establishing priorities for investigation, follow up and prosecution.

The three-tier system establishes priorities, with priority rankings of violations within each tier.

Highest Priority Violations - Tier #1

1. Violations that are of an emergency nature.
2. Unlawful pesticide use that may result in short or long-term human or animal injury.
3. Unlawful pesticide use that results or may result in exposure of individuals contrary to product label instructions.
4. Unlawful pesticide use which results in significant or potentially significant environmental harm.
5. Registration violations for products which have never been registered in the state, and which violations have multi-regional or statewide impact.

High Priority Violations - Tier #2

1. Unlawful pesticide use which results in property damage.
2. Violations involving the illegal sale, offer for sale, purchase or possession of restricted use pesticides.
3. Violations regarding pesticide label notification or commercial lawn care application visual markers.
4. Violations regarding restricted use pesticide registration.
5. Violations of certification or business registration requirements.
6. Record keeping violations (no Record keeping system).
7. Commercial lawn care application violations.
8. Tier 3 violations where responsible parties received warning(s) or were subject to prior enforcement or multiple incidents involving a similar violation.

Secondary Priority Violations - Tier #3

1. Record keeping violations.
2. Use contrary to product label instructions of general use pesticides which does not involve property damage.
3. Sale of unregistered general use pesticide products.
4. All other violations.

V. Organization

Effective pesticide enforcement depends on the efficiency of DEC personnel in discharging their responsibilities. DEC personnel involved in a pesticide enforcement action must be aware of the scope of their responsibilities. Communication and cooperation among personnel involved in a pesticide enforcement action is crucial to the integrity and success of the enforcement program DEC personnel involved in the pesticide enforcement program Include:

1. Director, Division of Hazardous Substances Regulation (DHSR)

   The Director of DHSR is responsible for supervision of the Bureaus of Pesticides Regulation and Technical Support for all the regulatory and compliance activity undertaken by those Bureaus.

2. Chief, Bureau of Pesticides Regulation

   The Chief of the Bureau of Pesticides Regulation, under the supervision of the Director DHSR, conducts program communication with EPA and is responsible, with the DEE Pesticide Compliance Counsel, for developing compliance and regulating strategies and communicating approved strategies to regional personnel. the Director of DHSR establishes guidance on analytical and inspection protocols for enforcement.

3. Chief, Bureau of Technical Support

   The Pesticide Product Registration Section is located in the Bureau of Technical Support. The Chief, Bureau of Technical Support, under the supervision of the Director, DHSR, also conducts communication with, EPA, particularly in regard to pesticide product registration and, as appropriate, coordinates with the Chief, Bureau of Pesticides Regulation and with the DEE Pesticide Compliance Counsel on developing compliance and regulating strategies and communicating approved strategies to Regional personnel.

4. Regional Director

   The Regional Director has the responsibility to see that regional personnel carry out Department policy. The Regional Director must balance daily work demands and exercise judgment to allocate resources to carry out most effectively the requirements of competing environmental enforcement needs. Through docketing or other means, the Regional Director-must make case-specific decisions as to the timing and manner of regional actions to carry out Departmental enforcement policy. The Regional Director acts for the Commissioner in executing Orders on Consent, according to the Department's Order on Consent Enforcement Policy.

5. Regional Engineer

   The Regional Engineer reports directly to the Regional Director and supervises all of the Environmental Quality staff in the region. The Regional Engineer is responsible for coordinating the various environmental quality programs, and dealing directly with issues involving more than one program.

6. Regional Hazardous Substances Engineer (RHSE)

   The Regional Hazardous Substances Engineer reports directly to the Regional Engineer and directly supervises the Regional Pesticides Staff, carries out the directives of the Regional Engineer and Regional Director, and coordinates with the Chief, Bureau of Pesticides Regulation.

7. Pesticide Control Specialist II

   The Regional Pesticide Control Specialist II reports to the regional Hazardous Substances Engineer. The Pesticide Control Specialist II is responsible for carrying out the operating guidance of the Bureau of Pesticides Regulation and for implementing the Department's pesticide compliance programs. The Pesticide Control Specialist II has the responsibility to advise the Bureau of Pesticide Regulation of factors which impair or are likely to impair or enhance full and professional execution of the pesticides enforcement workplan. The Regional Pesticide Control Specialist II identifies violations, implements pre-enforcement compliance strategies, and consults with the Regional Attorney and Regional Law Enforcement Captain and Central office Bureau of Pesticides Regulation regarding enforcement Strategies.

8. Pesticide Control Specialist I

   The Regional Pesticide Control Specialist (PCS) I reports to the regional PCS II. The PCS I is directly responsible for the conduct of inspections and responses to complaints in the Regions. The PCS is responsible for advising the Regional PCS II of factors that may enhance or impair implementation and enforcement of the pesticide statute and regulations.

9. Director - Division of Law Enforcement (DLE)

   The Director of DLE is the Department's chief police officer and is responsible for providing statewide direction to the DLE in the conduct of civil and criminal investigations and enforcement of pesticide offenses. The Director of DLE will participate in the formulation of the pesticides workplans in order to plan appropriate use of DLE staff in the enforcement of pesticide Control laws.

10. Chief Environmental Conservation Officer and Bureau of Environmental Conservation Investigations Captain

    The Chief Environmental Conservation Officer (CECO) is responsible for ensuring that uniformed Environmental Conservation officers (ECOs) carry out the Department's Law Enforcement objectives and the Department's policies and procedures in relation to pesticides enforcement. The CECO will provide support to the regional pesticides workplan through the appropriate deployment of, and direction to, the Regional Law Enforcement staff in coordination with Regional Attorney, the Division of Environmental Enforcement Pesticides Compliance Counsel, Regional pesticide Staff and Central Office Bureau of Pesticides Regulation. When appropriate, the CECO will participate in docketing sessions or regional forums to coordinate Law Enforcement's participation and review compliance strategy development. The Bureau of Environmental Conservation Investigations (BECI) Captains are responsible for providing support to the regional pesticides workplan by directing lengthy and/or complex investigations, including criminal investigations, whenever appropriate. The uniformed CECO will be informed of all criminal prosecutions planned or contemplated. The BECI Captain will be responsible for managing all lengthy or complex criminal investigations.

11. Director, Division of Environmental Enforcement (DEE)

    The Director of DEE represents the General Counsel in matters of Enforcement and provides guidance and direction to Regional Attorneys in the conduct of pesticide enforcement cases. the Director of DEE has a statewide enforcement perspective, and as such, it is the duty of the Director of DEE to coordinate the enforcement activities of the Regional Attorneys to ensure adequate quality and uniformity in the provision of legal services to the pesticide enforcement program. Enforcement matters involving out-of-state respondents and cases in which a single entity is violating laws in more than one region will be directly coordinated by the Director, DEE. The General Counsel in coordination with the DEE Director, will assign these matters for Central Office prosecution or coordinate regional responses. In addition, the General Counsel through the Director of DEE, and the Pesticides Compliance Counsel, has the responsibility to approve all referrals for enforcement to other prosecuting agencies, including the Attorney General. and EPA and to provide legal guidance to the Bureau of Pesticides Regulation in the development of its directives. All such referrals shall be prepared for the General Counsel's signature.

12. Regional Attorney

    The Regional Attorney generally is responsible for handling violations of the ECL through the administrative enforcement process. Typically, the Regional Attorney also provides contact for cases referred to other prosecutorial agencies for judicial enforcement. The Regional Attorney is to render independent judgment on the merits of each case. The independent review must be preceded by a consultation with program staff. The Regional Attorney has the obligation to request that program staff provide information and consultation on any violation or suspected violation of the ECL and related regulations. Upon referral of a matter to the Regional Attorney by the program, the Regional Attorney becomes the enforcement case manager. All communication involving the case must then be handled by or in coordination with the Regional Attorney.

    Regional Attorneys shall document the fact of referral and shall docket the matter consistent with approved Departmental practice for docketing and input the matter into the Environmental Enforcement Data System (EEDS) ⁽²⁾ .

13. Pesticides Compliance Counsel. Division of Environmental Enforcement

    The Pesticides Compliance Counsel advises the Director, DEE, and the General Counsel, regarding pesticides enforcement matters. The Compliance Counsel, under the direction of the DEE Director, provides statewide enforcement guidance and coordinates the enforcement activities of the Regional Attorneys to assure adequate quality and uniformity in the provision of legal services to the pesticide enforcement program. The Pesticides Compliance Counsel will prosecute cases designated for Central Office administrative prosecution by the DEE Director. The Compliance Counsel will also review EPA and Attorney General referrals, functioning as Central Office liaison on matters which are referred by the General Counsel.

VI. Enforcement Procedures

The Environmental Conservation Law contains a large number of pesticides-related requirements. The following considerations apply in determining who should be charged with what violation.

1. The ECL contains a number of multiplier provisions making each container or article, or each day of an act, a separate violation under the law. In determining an appropriate penalty, consideration should be given to the nature of the pesticide, the number of containers or articles involved, and the number of days during which the violation continued.
2. Uncertified individuals may not apply or offer to apply pesticides commercially except under the direct supervision of a certified applicator. (Note: Some pesticide uses require all applicators to be certified.) Certified applicators are legally responsible for the conduct of the uncertified individuals whom they supervise. When an uncertified individual is working under the supervision of a certified applicator and violates the law, the staff shall separately name and charge both the certified applicator and the uncertified individual. The person or entity employing the applicator(s) is also legally responsible for violations committed by applicators and hence should be separately named and charged.
   
   In cases involving unregistered or restricted products, violations may exist at more than one level in the distribution chairs while circumstances may dictate more lenient penalties for retailers than distributors in certain cases, every entity which was a party to the distribution of such products should be the subject of enforcement action. (See minimum enforcement responses, below).
3. A principal goal of pesticide enforcement is to deter violators from committing future violations. The law also provides for double the maximum penalty where a respondent has previously committed pesticide violations. Pesticide enforcement matters settled by consent orders should seek wherever possible to establish a violation, which will then subject the respondent to greater penalties in future enforcement actions. To that end, pesticide consent orders normally should not contain a disclaimer or denial of a violation absent identifiable unusual mitigating circumstances.
4. Cases involving pesticide violations should be examined for potential violations in other program areas. Pesticide misuse engenders the distinct possibility that violations of fish and wildlife, wetlands, water and hazardous waste laws may also have occurred.
5. The statute of limitations for administrative enforcement action is governed by the State Administrative Procedure Act, Section 301(1), which provides that, "In an adjudicatory proceeding, all parties shall be afforded an opportunity for hearing within reasonable time." the requirement that certain pesticide records be maintained by businesses and applicators for a period of three years does not, as a matter of law, preclude the Department staff from charging an offender with a violation other than record keeping that occurred more than three years before. The length of time elapsed since the alleged violation occurred is one of many factors considered by staff in determining whether to go forward with an enforcement action.
6. The Commissioner has authority to stop a pesticide use or to quarantine pesticides. This authority should be exercised when there is reasonable basis to believe that it is unlawful to use or possess the pesticide in question. A stop-use or quarantine order will normally be followed up with a civil or criminal complaint to resolve the underlying violation of law.
7. Every pesticide violation for which an enforcement action is initiated may ultimately be reviewed administratively or judicially. As a consequence, it is imperative that every pesticide investigation be conducted with that eventuality in mind. Pesticide violations often involve complex technical data and require experienced professional judgment for proper and effective enforcement. Every case must, therefore, be documented and developed in such a manner as to provide a substantial basis for establishing the facts and violations involved in the case. Additionally, the procedures followed in developing the case must be adequately documented or capable of substantiation so as to connect the steps of the enforcement process.
8. Matters involving out-of-state violators affecting more than one region, as well as other violations of potential statewide impact, should be handled by or in close coordination with the Division of Environmental Enforcement and Central Office Bureau of Pesticides regulation. Regional program staff suspecting violation by an out-of-state firm, or violations of potential statewide impact, should apprise the Regional Attorney. The Regional Attorney should coordinate enforcement with the DEE Pesticides Compliance Counsel And the Central Office Bureau of Pesticides Regulation. The General Counsel, in coordination with the DEE Director, the Regional Director and the Director, DHSR, will consider assigning the case for Central Office prosecution; or a coordinated regional response; or, where appropriate, referral to another prosecutorial Agency.
9. The Environmental Enforcement Data System should be utilized to ascertain a potential respondent's enforcement history and pending cases in other regions before concluding consent order negotiation or prior proceeding to hearing.
10. All case referrals to outside prosecuting agencies, such as the NYS Attorney General or the USEPA shall be prepared for General Counsel's signature. Cases for potential NYS Attorney General referral should be reviewed by the Regional Attorney in consultation with the Regional Engineer, Regional Hazardous Substances Engineer and the regional pesticide program staff to ensure that the file contains all necessary information. the Regional Attorney should then forward a referral package to the DEE Pesticides Compliance Counsel with a copy to the Chief, Bureau of Pesticides Regulation (BPR). The referral package should contain a draft referral letter, narrative summary documents, and a brief cover memorandum explaining the nature of the case and recommending referral to the NYSAG. Any need for immediate action should be highlighted in the referral package. Cases may also be forwarded from Central Office Bureau of Pesticides Regulation to General Counsel, for renew by the DEE Pesticides Compliance Counsel for General Counsel referral.

The DEE Pesticides Compliance Counsel will then review the referral package and make a further written recommendation regarding the referral to the General Counsel, through the Director, DEE. If the General Counsel refers the case, an appropriate contact attorney will be designated. In the event regional or Central Office program staff require a status report on such a referral, the Regional Attorney or DEE Compliance Counsel should be contacted.

Potential EPA enforcement referrals will be identified by central Office Bureau of Pesticides Regulation staff or may be forwarded by regional program staff to the attention of the Chief, Bureau of Pesticides Regulation, for review. Such cases shall then be reviewed by Chief, BPR, and the Pesticides Compliance Counsel. All proposed EPA referrals will be reviewed by the Director, Division of Environmental Enforcement, prior to submission to General Counsel for referral.

VII. Conclusion

Effective enforcement against violators of the pesticide law is crucial to the overall pesticides regulatory program firm, fair and efficient enforcement protects the environment, public health and Well being of the people of the State of New York.

Dated: March 26, 1993

Albany, New York

New York State Department of Environmental Conservation

Thomas C. Jorling, Commissioner

1. Other ECL Articles confer jurisdiction upon the Commissioner to regulate pesticides. For example, Article 15 restricts use of pesticides in water and Article 24 regulates use of pesticides in certain freshwater wetlands.

2. The Visual Inspection System for Tracking and Analysis (VISTA) formally replaced EEDS on January 1, 2000.

APPENDIX I

Minimum Enforcement Responses

I. Introduction

In all cases, the Department's response to known violations of the Environmental Conservation Law (ECL) must be correlated to requirements of law, individual circumstances of the case, and statewide policy considerations enunciated in this and other Relevant Enforcement Directives.

The following Penalty Schedule should be used to guide staff in the establishment of penalties and remedies in consent orders, including administrative settlement of criminal charges. These are minimum responses. Regions are expected to seek greater sanctions as appropriate under the circumstances, including substantially higher penalties where circumstances present in a case warrant stronger sanctions. Settlement of violations by order on consent must be in accord with the Commissioner's Order on Consent Policy (issued as Enforcement Directive Number 1 and Organization and Delegation Memorandum #84-32). Settlement of violations by consent is useful not only to save administrative expense and to expedite resolution of matters, but also because consent orders can sometimes better ensure rehabilitation of the violator, where necessary, and because through consent orders the Department can obtain cooperative compliance and admissions.

Consistent with the Department's Civil Penalty Policy, the Department views the Penalty Schedule minimum penalties as an incentive available to respondents who choose settlement of violations by consent order. Accordingly, penalties assessed after a hearing in which Department staff proves the violation should be substantially higher than the minimum presented in this Schedule unless the respondent/defendant proves facts in substantial mitigation of the violation. Penalties assessed after hearing should contain a gravity component, a component for economic benefit derived from the non-compliance, and a component to reflect the Department's costs incurred in bringing the proceeding, including but not limited to, sample analysis costs.

In every instance of violation, staff should screen all relevant records, including records of prior violations, to determine whether suspension or revocation of permits, registrations and/or certifications, should be considered due to conduct indicative of disregard for health, safety and environmental protection, or perjury or fraud. Suspension or revocation of certifications and registrations may be appropriate in cases involving serious first violation offenses as well as in cases of repeat offenders.

Finally, willful, knowing, intentional or criminally negligent violations, if provable beyond a reasonable doubt, can result in criminal misdemeanor convictions. The Division of Law Enforcement should become the lead division in investigating allegations of fraud or perjury. Therefore, the Regional Chief Environmental Conservation Officer and Regional Attorney must immediately be informed of circumstances which may warrant criminal enforcement action so that measures may be taken to prevent compromise of the criminal case.

II. Penalty Schedule

The following penalty schedule represents first offense minimums, to be used in accordance with the text of this guidance Memorandum and the general aim of removing the economic gain of non-compliance consistent with the DEC Civil Penalty and Order on Consent guidance documents. Minimum penalty levels should be doubled to determine a minimum penalty level on second, or subsequent offenses. Daily multiplier and per container penalties should be sought when the violation consists of the sale, or the offering or exposing for sale or exchange of any prohibited article or substance. Description of types of violations are general in nature and are not intended to supersede Article 33 or 6 NYCRR, nor are they intended to be all inclusive. The statute and regulations delineate the exact types of violations and penalties.

Where a person gains economic advantage by non-compliance, a penalty, related to the amount of the unlawful economic benefit should be sought, consistent with the Civil Penalty Policy Enforcement Directive. Then a gravity penalty component should be calculated in addition to the economic benefit penalty component, to the extent possible within statutory maximum penalties.

In instances where an inspector identifies only a minor violation in the course of an inspection, the use of a warning letter may be appropriate to resolve the matter, as described below. Such letters should direct the violator to immediately cease the unlawful conduct. In that event, staff must request responsive documentation from the entity showing that the violation has been corrected, and that steps have been taken to preclude similar future occurrences. In the event the entity is non-responsive, further enforcement action should be pursued. It is further recommended that the inspector follow up, either by telephone or by further inspection, within 30 days of receipt of responsive documentation, to assure compliance. The following list identifies violation types which may be appropriate for disposition by use of a warning letter:

1. (a) Retail establishments, other than product registrants, which offer for sale general use pesticide products for which New York State registration has expired; or

   (b) retail establishments which sell general use pesticide products which have not been registered in New York, but for which the retail establishment received from its vendor a written guarantee that the product was registered in New York.

   In either of these circumstances, any unlawful conduct of a product producer and any party offering a written guarantee of registration shall not be resolved through a warning letter.

2. Placement of price stickers or other stickers over label content by retail establishments. If the label content is not readable, the product should be quarantined for return or disposal.
3. Insubstantial noncompliance with lawn care contract type size or lawn marker size, type size or wording requirements.
4. Record keeping violations, of the type described in footnote (2)(d), below (e.g., where a record keeping system exists and addresses all categories of required information, but entries for a few applications are incomplete).
5. Failure of a registered pesticide business to have two equipment registration stickers on each piece of application equipment for which such stickers are required.
6. Minor wrong category certification violations, where the certified applicator has a justifiable rationale.
7. Incidents of minor pesticide overspray which do not result in any property damage, animal exposure or human exposure (such as applications to the edges of driveways or sidewalks).

III. Product Registration, Product Sale and Commercial Permit Offenses

IV. Business, Applicator and Use Offense

Footnotes

1. Minimums cited here are in addition to penalties for actual illegal sale of restricted use pesticides.
2. The Department characterizes four general categories of record keeping violations:
   1. No Recordkeeping system at all.
   2. Recordkeeping system exists, but omits one or more categories of required information.
   3. Recordkeeping system exists and addresses all categories of required information, but entries for many applications are incomplete.
   4. Record keeping system exists and addresses all categories of required information, but entries for a few applications are incomplete. This would be a "minor" violation under the penalty schedule.
      The penalty amounts in the Penalty Schedule are for failure to enter specific items to an existing reporting or log system. Where A respondent fails entirely to maintain required records, higher penalties should be sought. A minimal enforcement response may be appropriate in cases of minor record keeping violations (e.g., category [d], above).]
      
3. "Misuse" means any use of a pesticide contrary to law or regulation, or contrary to label instructions, or permit or order.
   "Contamination" is defined at 6 NYCRR 325.1(1) as the "... presence of a pesticide or pesticides, in or on areas other than the target area, in quantities which are or may be injurious to man or the environment."
   
   The terms "Misuse" and "Contamination" are independent of each other. Based upon the particular facts of a case, misuse may occur absent contamination. On the other hand, in most cases contamination will occur as a result of misuse.
   
   
4. Pesticide misuse resulting in property damage or environmental damage or unknown exposure means any misuse resulting in any damage to real or personal property, or the environment, or any misuse where no known human exposure has been documented.
5. "Pesticide misuse resulting in human injury or resulting in human or animal exposure contrary to label" means any misuse where human injury or human exposure or arsenal exposure has been documented, or where it is reasonable to believe such exposure has occurred or might occur.

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