Enforcement...

Enforcement Issues

TPPC MeetingJune 21-22, 2016

Enforcement Issues

• Time Factors Update• TPPC Action Items• 2011 Enforcement Issues Paper Summary

Time Factor Analysis

• What are they? How are they used?

• The 2015-2017 Cooperative Agreement Guidance includes time estimates for each type of inspection and states:The time factor values should take into account all inspectional or analytical time spent to complete an activity, including travel time, document preparation, sample shipment, etc. The work hours should also include the prorated time for administrative activities of inspectors and chemists.

Time Factor Analysis -- History

• SFIREG surveyed states• TPPC adapted survey, shared with tribes• Not good tool to identify tribal influences on inspections• April 11, 2016 Conference call with tribal inspectors, project

officers:• Tribal participants::

– Eric Gjevre -- Tony McCandless– Jeff Biakeddy -- Frank Venegas– Jayme Mestes

• Subsequent calls with Jasmine Brown, Willie Keenan

,

Time Factor Analysis -- Findings

• Significant changes to current estimates• Data provided by:

– Jeff Biakeddy– Jayme Mestes– Tony McCandless– Willie Keenan/Jasmine Brown

Inspection Activities & Types

Current Grant Hrs

85-115% Jeff Biakeddy Jayme Mestes Tony McCandless

Jasmine C-Brown, Willie

Keenan

Ag Use 20 20-2519-22(plus 6 travel)

25 21(plus travel)

Ag Follow-Up 20 21(plus travel)

Non-Ag Use 15 21(plus travel)

Non-Ag Follow-Up 20 21(plus travel)

Experimental Use 15 21(plus travel)

Applicator License & Records 5 12

Dealer Records 5 15-20 12

Federal Producer Establishment (PEI) 15 25

Federal Marketplace 5 15-20 12


Identification of factors unique to tribal inspectors• Vehicle maintenance handled by inspector• Vehicle break-downs, there are no back-up vehicles• Keep vehicles longer, may not have funds to repair/replace• For a new vehicle, must complete all paperwork, drive to

car’s location, return• Must meet with tribal environmental offices before and

after inspection• Lack of program support (can’t call the office for assistance)• Redo neutral inspection scheme every year• Old computers and equipment that require frequent

maintenance


Identification of factors unique to tribal inspectors• Lack of access to tools, e.g., no computer in the vehicle• No cell phone coverage on reservations, very rural areas,

poor roads, difficult to find establishment• Difficult to determine if facility is on the reservation, mailing

address may be off reservation.• Tribes don’t have lists of applicators, may have to get data

from states, do analysis

Time Factor Analysis - Options

• Establish new time factors for tribes– Tribes could offer revised estimates of the time required for

the different types of inspections, for incorporation into the next cooperative agreement guidance.

– Add text re flexibility to next cooperative agreement guidance

– Tribes could suggest text be added to the FY 17-19 Cooperative Agreement Guidance to describe the factors that influence the time needed to conduct tribal inspections and the need for flexibility.

Time Factor Analysis

• Next Steps?

Jan 2016 Action Item – 18/24c question

• May 2013 OPP Memo on Use of 18 and 24(c) products in Indian Country

• This memo explains that state special uses under sections 18 and 24 are not effective in Indian Country, and that use of those products in Indian Country would be a violation. If the tribe has an enforcement program they may be able to enforce those violations.

• Tribes may only apply for a Sec 24C or 18 through a federal agency such as the USDA

• Continuing discussions

Jan 2016 Action Item – Credentials Issue

• Guidance for Issuing Federal EPA Inspector Credentials to Authorize Employees of State/Tribal Governments to Conduct Inspections on Behalf of EPA, Sept. 30, 2004

• https://www.epa.gov/compliance/guidance-issuing-federal-epa-inspector-credentials-authorize-employees-statetribal


Inspections under a federal credential: logistics of a – tribe inspecting for a state– state inspecting for a tribe

Guidance:• Matter of policy, inspections conducted by state with federal

credentials are only within the state• Inspections conducted by tribe with federal credentials are

only within the state


Exceptions:• Emergencies (without written agreement, but with agreement

from tribe)• EPA identifies a specific need and notifies state/tribe where

inspection will be conducted and state/tribe agreed and EPA memorializes in writing OR

• EPA may request state/tribe conduct an inspection by written request after consulting and getting agreement from the state/tribe where inspection will be conducted.

2016 Call Action Items: Compliance Monitoring Strategy

• Compliance Monitoring Strategy provides a multi-year framework and guidance with goals for FIFRA monitoring. Promotes national consistency. Provides a strategic approach to focus on the greatest risks to human health and the environment.

• Heads up -- October 2014 TPPC meeting• Distributed for state and tribal review January 2015• No tribal comments received• https://www.epa.gov/compliance/compliance-monitoring-

strategy-federal-insecticide-fungicide-and-rodenticide-act-fifra

2016 Call Action Items: Compliance Monitoring Strategy

• Key state concern over inspection frequency goals.

Type of Facility Inspection Frequency

PEI All at least once every 5 years

Imports 2% of all annually

RUP Dealers All at least once every 5 years

Marketplace

Must be part of a balanced planCertified Applicators

Use

WPS

2011 Enforcement Issues Paper

1. Inappropriate performance measuresTPPC Recommendation:• OECA should work closely with tribes to determine the criteria

that should be used to measure the success of pesticide programs in Indian country, and incorporate the criteria into the performance measures used by OECA.

Actions:• Elaine Wilson of ITCA is participating in the work group

evaluating and revising pesticide program performance measures.


2. Lack of follow-up on enforcement referralsTPPC Recommendation:• OECA should establish a transparent and consistent policy on

how EPA will respond to enforcement cases referred to the Agency by tribes.

Actions: • At the March 2012 TPPC meeting, OC shared target timelines

previously developed. There was no discussion.• On 10-25-12 CGalloway emailed a copy of the timelines to Fred

Corey and Bob Gruenig for distribution to the TPPC.


3. Lack of publicity for enforcement actionsTPPC Recommendation:• OECA should assist tribes in working more closely with EPA’s

press offices to issue more press releases about enforcement actions taken in Indian country.

Actions:• OECA/PMOD staff met with OECA Press staff to discuss how to

raise the visibility of enforcement actions on tribal lands and agreed to procedures to coordinate with Regional press offices.

2011 OECA Enforcement Issues Paper

4. Jurisdiction and State inspection actions on tribal landsTPPC Recommendation:• OECA should reissue guidance to each state that its inspectors

cannot conduct inspections in Indian country unless the state has a Memorandum of Understanding with the tribe on whose land it wishes to inspect, an emergency exists that necessitates the state inspectors to conduct inspections, or the state is acting on behalf of EPA. Further, the state inspector must provide notification to the tribe in advance of his or her inspection.

2011 OECA Enforcement Issues Paper

4. Jurisdiction and State inspection actions on tribal landsActions:• OC shared with the TPPC the current policy/guidance on jurisdiction of

tribal and state inspectors and use of federal credentials by tribal inspectors.

• Investigated the extent of violation of tribal sovereignty by state inspectors by asking Regions. Appears to be an issue in R8, in MT and ND.

• Consider the feasibility of holding a joint discussion with SFIREG and TPPC to discuss jurisdictional issues.

• Fred Corey may pursue this issue through SFIREG and/or quarterly meetings with state members of CTAG (Certification and Training Assessment Group).

2011 Enforcement Issues Paper5. Inconsistent issuance of federal inspector credentials to Tribal inspectorsTPPC Recommendation: • OECA should provide a written explanation to the TPPC on why there

are regional differences in issuing federal credentials to tribes, and why the Region 9 tribes are precluded from obtaining federal inspector credentials.

Actions: • Surveyed the Regions to identify where credentials are issued to tribes.

Identified only one tribal individual who has been denied a credential. • CGalloway made a presentation on EPA’s credentials process to the

TPPC on 10-17-12. The presentation included how the decision is made to issue a credential, the required training and other limits and conditions of use.


6. Concern about jurisdictional authority for Treaty-based usual and accustomed locationsTPPC Recommendation:• OECA should develop written guidance on how it addresses these

lands with treaty-protected resources that are not located in Indian country.

Actions:• OECA/PMOD will raise this cross-media issue to AIEO for

consideration.• At the October 2012 TPPC meeting, members asked what AIEO

is planning/doing in response to this concern, and requested that any EPA actions include areas protected by Executive Order as well as by treaty.


7. Pesticide Enforcement Q &A DocumentTPPC Recommendation:• OECA should develop a Question & Answer document that

provides tribes with different enforcement scenarios that they may face and recommended responses.

Actions:• OC invited questions at the March 2012 TPPC meeting.• The TPPC identified a question at the October 2012 TPPC

meeting – What veterinary products are controlled under FIFRA by EPA and which fall under FDA’s jurisdiction?

• CGalloway will draft a Q and A to answer this question.


8. Funding inadequacies and inspection quotasTPPC Recommendation:• OECA must either improve funding levels for tribes or set more

reasonable inspection quotas based on existing tribal budgets.

Actions:• OC held a conference call to discuss tribal funding with Regions.

Regions indicated the 2011 guidance is still being phased in and it is too early to evaluate its success.


8. Funding inadequacies and inspection quotasActions:• At the October 2012 TPPC meeting, the members again

expressed objections to the 25 inspection quota. They indicated the cooperative agreement guidance appears to discourage small tribes from even attempting to obtain a cooperative enforcement agreement as the minimum 75-100 inspection targets is presented as a requirement.

New Enforcement Issues?

• Issues?

Enforcement...

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