SPBC Newsletter ** June 1999

Structural Pest Control Board Newsletter June 1999

In this issue:

SPCB mission statement
SPCB board members
SPCB new general counsel
SPCB web site
Fee Review committee
Rule review committee
Properly mixing termiticides
Labels and personal protection equipment (PPE)
Prepare your employees and yourself for a visit from a SPCB investigator
Pre-consturction termite treatments
Administrative penalities - mid year 1999
Contested cases
Law book replacement pages
Regulation changes
Who will help me when I call the SPCB office

SPCB mission statement:

The mission of the Structural Pest Control Board is to provide a Vital function in the protection of the health and welfare of the citizens of Texas and the Environment by licensing, regulating, and setting standards and criteria for Structural Pest Control

SPCB board members

Ms. Jo-Christy Brown * Chair
Mr. Charles Coyle * Vice Chair
Dr. Jay D. Stone
Mr. Gary L. Gillen
Ms. Madeline Gamble
Mr. Les Hoyt
Dr. Roger Gold
Mr. Elias Briseno
Mr. Donnie Dippel

SPCB NEW GENERAL COUNSEL

We were sorry to say goodbye to our General Counsel, Roger Borgelt who left us for bigger and better things (so he thinks). Putting all jokes aside Roger will be missed and we wish him well in all that he does.

Fortunately for us we now have William "Bill" F. Greve, Jr. as the Board’s new General Counsel. Bill is new to the pest control industry but is catching on fast. We hope all of you will take time to welcome him to our staff next time you see or talk with him.

SPBC web site

The SPCB web site address changed earlier this fiscal year. The change was so subtle that some of you may not have noticed. Please make note of the new address: www.spcb.state.tx.us. Be sure to change your bookmark.

We are aware that many of you have had problems downloading the application forms off of our web site. We are currently working on correcting this and many other problems. Look for many new changes to our web site in the very near future.

Although we hope to fix the majority of problems with downloading forms soon, keep in mind; however, that it is currently impossible to make forms available in a format that will be entirely compatible with all software.

FEE REVIEW COMMITTEE

We are happy to report that the 76th Legislature has approved our request for additional investigative staff, three (3) new investigators to be exact. We plan to place investigators in the Harlingen Area, the El Paso Area and another to be strategically located.

As a result of the increase in the agency budget for personnel, the SPCB has formed a committee to review our current fee structure. The members of the Fee Review Committee are Ms. Jo-Christy Brown, Mr. Gary Gillen, Dr. Jay Stone, Ms. Madeline Gamble, Mr. Scott Turner, Mr. Bob McQueen and Ms. Sharilyn Gunn.

The fees structure that we follow is currently set out in Section 7 of the Structural Pest Control Act, and Section 593.7 of the Structural Pest Control Board Regulations. You may want to review those sections, and if you have any comments or questions, please let us know.

RULE REVIEW COMMITTEE

The 75^th Legislature (1997) required each agency to review their regulations and to amend, repeal, and adopt as necessary to streamline the regulatory process and to allow the agency to function more appropriately within limited agency resources.

As a result of this, we have formed a Rule Review Committee. The committee consists of the following members: Ms. Jo-Christy Brown, Mr. Gary Gillen, Dr. Jay Stone, Ms. Madeline Gamble, Mr. Scott Turner, Mr. Mike Dickens and Ms. Sue Pitman.

At this time the committee has completed all of section 591. The resulting revisions have either been adopted or await final revisions prior to adoption (see the next article for the regulations that have been adopted).

Section 593 is currently under review. The next rule review committee meeting is to be held July 27, 1999, immediately following the Board meeting. If you have any comments or questions concerning the Rule Review Process please do not hesitate to fax or e-mail us your comments and we will be glad to forward them to the Rule Review committee for comment.

Properly Mixing Termiticides

Van Brock; Supervising Investigator - Houston

SPCB investigators often observe pesticides, particularly termiticides, being mixed improperly. Label language can/does vary from product to product, however, many termiticides have similar mixing instructions. These instructions direct the user to put approximately 1/3 of the desired total amount of water into the tank, add the required amount of termiticide, and then add the remainder of the water. The label also directs the user to recirculate the mixture through the spray hose for some specified amount of time. This recirculating "through the spray hose" is necessary to insure the active ingredient is equally distributed throughout the mixture. Recirculating "through the bypass on the pump" instead of "through the spray hose" does not produce the desired mixing. Failure to properly mix results in an uneven distribution of the active ingredients (and has been proven by analysis of samples collected by SPCB investigators). This can result in termites penetrating what was thought to be "treated soil" and causing problems for the Pest Control Operator and/or homeowner that were unnecessary had the product been mixed and applied as directed. Before concluding that a product does not work, make absolutely sure it is being mixed and applied according to the label directions. Remember, "if you were having open-heart surgery, you would want the surgeon to follow the instructions exactly, not just approximately".

Labels and Personal Protection Equipment (PPE)

Van Brock; Supervising Investigator - Houston

Many label violations occur as the result of the user of a pesticide not reading or not understanding the label directions. The Environmental Protection Agency (EPA) has put a particular emphasis on insuring that the parts of a label that deal with personal protection equipment (PPE) be strictly followed. Required PPE differs depending on whether the user is "mixing" or "applying" pesticides. Therefore, the user must be aware of what they are doing with the pesticide and what the label language states must be done during that particular process. It is extremely important that the owner or manager of a pest control business be familiar with PPE requirements for the products their service people will be using. A familiarity with the requirements by the owner or manager of the company can insure the required equipment is available to their service people as well as the necessary instructions and training for use of the PPE. Directions for required PPE dealing with fumigants can differ depending upon whether the fumigant is being released or the fumigation site is being cleared. Therefore, all owners and managers of pest control companies should constantly keep a check on all product labels to insure that new language has not been overlooked. Management should include, and document training provided, label review, and the proper use of PPE as a part of their ongoing training/retraining. By doing so, the company is lessening the chances for a violation or accident.

Prepare Your Employees And Yourself For A Visit From A SPCB Investigator.

Van Brock; Supervising Investigator - Houston

"Prepare" is probably a poor choice for a word in this instance. There really does not need to be any great deal of preparation. Whenever you receive a visit from one of our investigators, they are simply doing something that is required as a part of their job. There is one thing of which you can be certain; there is no need for the visit to be a "confrontational situation". Like yourselves, they have a job to do. Every phase of it is not pleasurable, but someone has to do it. If they ask to see something or ask some questions, it is because it is necessary in order to accomplish their assigned task. They are not just being "nosey" or trying to find out your company secrets. We as investigators and you as the pest control operator both have the right to expect to be treated in a courteous and considerate manner. This is everyone’s responsibility to each other.

Some steps you can take to facilitate inspections by SPCB investigators:

Educate your employees on the role of SPCB as a licensing and regulatory agency.

Ensure someone will be in the office who knows the location of the following:

Forms (i.e. Consumer Information Sheets, contracts, termite disclosures, etc.)

Treatment records (or access if in computer)

Employee records such as date of hire, training, and continuing education.

Have access to pesticide storage.

If an employee is involved in a complaint, have them available for an interview.

Inspections are also a good time to have your questions on laws and regulations answered. Preparing a list is a good way to organize your questions so that nothing is missed. The SPCB’s goal is safe and proper pesticide use. Inspectors work with businesses and applicators to be sure they understand the pesticide law and regulations and what they must do to comply. The agency’s objective is to obtain compliance and prevent repeat violations without having to use enforcement actions.

We realize you and your people have a job to do but so do we. Let us strive to cooperate in an effort to help each other. Mutual cooperation allows for both to get on with their assigned tasks.

PRE-CONSTRUCTION TERMITE TREATMENTS

The Texas Structural Pest Control Board and other state pesticide regulatory agencies have historically viewed pre-construction termite treatments as a potential problem. The pre-construction termite treatments made by some individuals are below standard in the amount of termiticide applied and compliance with label guidelines. The pricing of these treatments by some individuals has historically been below chemical cost. Many states, including Texas, do not regulate price, but are aware and suspicious of a pre-construction termite treatment that is priced less than the cost routinely charged by a pest control company. The suspicions are justified when investigated and findings show label rates and amount of concentrate, or total gallons used at the pre-construction treatment site are less than label requirements.

The States have tried to address this problem by working with the Environmental Protection Agency (EPA) to revise the termiticide labels and develop specific rules that address pre-construction termite treatments. The labels have the statement "Do not apply at a lower dosage and/or concentration than specified on this label for applications made prior to installation of the finished grade." This label language allows states to enforce label rates and concentration at pre-construction termite treatment sites. The new label language was a major step in addressing the potential and existing problems with pre-construction termite treatments because establishing a vertical and horizontal barrier is essential to a successful pre-construction subterranean termite treatment. Labels also contain language that require applicators to notify the general contractor, construction superintendent or responsible party to instruct construction workers to leave the treatment area during the application and not return until the termiticide is absorbed into the soil. The notification to the responsible party will limit the applicator’s responsibility as to unauthorized persons that may be on the site.

In 1997, The Structural Pest Control Board of Texas began steps to address pre-construction termite control. The agency adopted regulations in 1998 for pre-construction termite treatments. A specific builder disclosure form and notice to builders for proper pre-construction termite treatments that are to be given prior to pre-construction treatments were developed by the Board. The handouts include a definition of a proper pre-construction termite treatment, explanation of application rates, and explanation of the applicable regulations. It was determined in the development stage of the disclosure document that the contractor does have responsibility along with the applicator. A section of the disclosure states, "A contractor may have civil or criminal liability if they conspire to violate the Structural Pest Control Board Regulations." The regulations contain a base penalty of $3000 per violation of the pre-construction requirements that include notice, label rates, and disclosure violations.

The four (4) hour minimum prior notice to the Board requirement for commercial pre-construction termite treatments allows the agency the ability to have an investigator present at pre-construction termite treatment sites. Single family dwellings are not included in the rule that addresses prior notice. Although all pre-construction termite treatment sites cannot be monitored, the agency has observed 240 pre-construction termite treatments in 1998 and 1999. The results of these observations have been 66 administrative actions that include approximately $90,000 in fines and 6 revocations or suspensions in the past 20 months.

Although Texas has taken actions against applicators who have not fulfilled requirements on the label or in the regulations, there is still a problem in the pre-construction area. With continuous enforcement, cooperation of the legitimate pest control industry, and identification of the problems with pre-construction termite treatments, we will be able to assure that proper pre-construction termite treatments will be done in the future.

ADMINISTRATIVE PENALTIES – MID YEAR 1999

# Violations	Base Penalty	Nature of Violations	Amount Assessed
3	1	Failure to Maintain Pest Control Use Records	$2,250
10	2	Failure to Provide Termite Treatment Disclosure	$9,450
3	2	Failure to Register an Employee	$4,000
9	3	Lapse in Insurance Coverage	$5,500
3	3	Inaccurate Wood Destroying Insect Report	$2,000
2	3	Failure to Comply with Contract Specifications	$2,000
2	3	Failure to Adequately Supervise an Employee	$1,700
22	4	Use Inconsistent with Label	$17,050
14	4	Advertising or Operating Without a License	$38,500
10	4	Failure to Perform a Proper Pre-Construction Termite Treatment	$21,000
2	4	Failure to Provide Notice of Pre-Construction Termite Treatment	$5,500
2	4	Violation of IPM Regulations	$2,000
1	4	Falsifying License Application	$2,000
1	4	Misrepresentation	$1,000
		Total Amount Assessed:	$113,950

CONTESTED CASES

The following contested cases were heard by the State Office of Administrative Hearingson December 11, 1998.

Name of Company	Violation	Final Order
Sierra Lawn and Landscape	Failure to Maintain Liability Insurance Coverage	$500
ASC Pest Control	Failure to Maintain Liability Insurance Coverage	$500
Bill Chalkers Tree Company	Failure to Maintain Liability Insurance Coverage	$500
D & B Landscaping	Operating without a license	$5,000*
A First Choice Pest Control	Failure to Comply with Contract Specifications	$1,000*
Mobile Pest Managers	Failure to Maintain Liability Insurance Coverage	$500

*These companies were also assessed the cost of the hearing ($823.01)

REGULATION CHANGES

The following are changes to the regulations that have been adopted. Replacement pagesfor the law books will be mailed out to everyone in the Fall 1999 newsletter.

Sec. 591.1 Purpose of the Board – Effective September 1, 1999