Attorney General Opinion No.

Mary Jane Stattelman, Acting Secretary Kansas Department of Agriculture 901 S. Kansas Avenue Topeka, Kansas 66612

Dear Ms. Stattelman:

You inquire whether the Kansas Department of Agriculture (Department) is authorized to enforce the Worker Protection Standard (WPS), a federal regulation, based on the fact that the WPS is referenced on pesticide labels.

K.S.A. 2-2453 makes it unlawful for any person to use a pesticide in a manner inconsistent with the pesticide's label. Inconsistent use has been defined to include use of any pesticide in a manner not permitted by the label.¹ Because the Worker Protection Standard is made a part of each pesticide label, use of the pesticide in violation of the Standard is a use inconsistent with the pesticide label. Such a violation of the WPS is therefore a violation of K.S.A. 2-2453. The Department is authorized to enforce a violation of the WPS as a violation of K.S.A. 2-2453, but because the Department has limited enforcement of the statute, enforcement of the WPS is also limited.

The Department is authorized to establish, assess and collect civil penalties against a violator who is a pesticide business licensee,² which includes a certified commercial applicator but does not include a certified private applicator.³ A commercial applicator is defined in K.S.A. 2-2438a as

"[A] certified applicator, whether or not a private applicator with respect to some uses, who uses or supervises the use of any pesticide which is classified for restricted use for any purpose or on any property other than as provided in (2) of this subsection (c) [the definition of certified private applicator."

Thus the Department cannot assess civil fines for violations of the WPS against a certified private applicator which is defined as:

"[A] certified applicator who uses or supervises the use of any pesticide which is classified for restricted use for purposes of (A) producing any agricultural commodity, (i) on property owned or rented by such person or such person's employer or, (ii) if applied without compensation other than trading of personal services between producers of agricultural commodities, on the property of another person; or (B) controlling ornamental shrubbery or turf pests on property which is owned or rented by such person and which is used as such person's residence."

In addition to assessing a civil penalty when the violator is a pesticide business licensee, the Department can enforce a violation of the WPS by taking action against the license, registration, permit or certificate issued pursuant to the pesticide laws⁴. Otherwise, prosecution of a violation is criminal and any person found violating or failing to comply with the act is guilty of a class A misdemeanor, and if the violator is a certified private applicator, both a misdemeanor and a fine apply.⁵ The Department may also enforce the WPS by seeking an injunction in district court when the Department has not sought the institution of criminal proceedings.⁶

In conclusion it is our opinion that the Kansas Department of Agriculture has authority to enforce provisions of the WPS referenced on a pesticide label pursuant to K.S.A. 2-2453, but prosecution of violators is limited to civil penalty assessment actions against commercial applicators who work for pesticide businesses and to administrative law actions against the license of any certified applicator. Violations by certified private applicators and by those with no certification must be referred to the county or district attorney for criminal prosecution.

Very truly yours,

CARLA J. STOVALL Attorney General of Kansas

Guen Easley Assistant Attorney General

CJS:JLM:GE:jm

¹ K.S.A. 2-2438a,.

² K.S.A. 2-2440e.

³ K.S.A. 1998 Supp. 2-2440.

⁴ K.S.A. 2-2449.

⁵ K.S.A. 2-2461.

⁶ K.S.A. 2-2461, subsection (c).