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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Agriculture
Chapter : AGRICULTURAL SAFETY
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3-3101 Definitions
In this article, unless the context otherwise requires:
1. "Assistant director" means the assistant director of the office of agricultural
safety in the ARIZONA department of agriculture.
2. "De minimis violation" means a condition or practice which, although
undesirable, has no direct or immediate relationship to safety or health.
3. "Employee" means any person performing agricultural services for an employer.
4. "Employer" means any individual or type of organization, including this state
and its political subdivisions, which has in its employ one or more individuals
performing agricultural services for it in employment, including self-employed persons.
5. "Interested party" means the office and its agents, the employer and the
affected employees of the employer.
6. "Nonserious violation" means a condition or practice in a place of employment
which does not constitute a serious violation but which violates a standard or rule and
has a direct or immediate relationship to safety or health, unless the employer did not,
and could not with the exercise of reasonable diligence, know of the presence of the
condition or practice.
7. "Office" means the office of agricultural safety in the ARIZONA department of
agriculture.
8. "Recognized hazard" means an unsafe or unhealthful condition or practice
recognized as such with respect to the standard of knowledge in the industry.
9. "Rule" means a written rule of agricultural safety and health governing places
of agricultural employment which is adopted pursuant to section 3-3106 or 3-3108,
exclusive of standards.
10. "Serious violation" means a condition or practice in a place of agricultural
employment which violates a standard or rule or section 3-3104, subsection A and produces
a substantial probability that death or serious physical harm could result, unless the
employer did not, and could not with the exercise of reasonable diligence, know of the
presence of such condition or practice.
11. "Standard" means any agricultural safety and health standard which has been
adopted and promulgated by a nationally recognized standards-producing organization or
the federal government and has the same meaning as and includes the term "code".
12. "Trainer" means a person who is certified by the department pursuant to section
3-3125 for training individuals in agricultural health and safety standards.
13. "Workplace" means a location or site where temporary or permanent work is
conducted in connection with agriculture.
3-3102 Scope of chapter
The scope of this chapter is to regulate the safety and health of workers exposed to
pesticides and any other safety and health issue not covered by the industrial commission
by title 23, chapter 2, article 10 or any responsibilities required under the approved
plan of the industrial commission in accordance with the United States department of
labor, section 18 of federal occupational safety and health act of 1970.
3-3103 Assistant director for the office of agricultural safety
The director shall appoint a person as assistant director for the office of
agricultural safety who, at the time of appointment:
1. Has been employed in the agricultural safety or health profession for at least
two years and is currently engaged in the broad practice of safety or health or one of
its relevant specialties or holds a degree from an accredited college or university
appropriate to the field of agricultural safety and health and has at least one year of
experience in the broad practice of safety or one of its relevant specialties.
2. Is competent to deal with the planning, design and needs of agricultural
operations as the use of such operations relates to the safe, convenient and economic
performance of agricultural functions.
3-3104 Duties of employer and employee
A. Each employer shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees.
B. Each employer shall comply with agricultural safety and health standards and all
rules and orders issued pursuant to this article.
C. Notwithstanding subsection A of this section, a condition or practice which is
common in agriculture is not deemed a recognized hazard unless a standard or rule
concerning the condition or practice has been developed pursuant to section 3-3106,
3-3108 or 3-3109.
D. Each employee shall comply with agricultural safety and health standards and all
rules and orders issued pursuant to this article which apply to his own actions and
conduct.
3-3105 Powers and duties
The assistant director shall:
1. Administer this chapter.
2. Cooperate with the federal government to establish and maintain an agricultural
safety and health program.
3. Propose to the director for adoption by the department standards and rules
pursuant to section 3-3106, 3-3108 or 3-3109 and other rules that are necessary for the
office to function efficiently.
4. Enforce all standards and rules adopted by the department pursuant to the
procedures and requirements of this article.
5. Implement an agricultural safety and health program, including the following
duties and responsibilities:
(a) Development of a statewide agricultural safety and health education and
training program to acquaint employers, supervisors, employees and employee
representatives with the most modern and effective techniques of accident prevention and
agricultural health control.
(b) Development of training programs for employees of the office and, if necessary,
development of certification programs for recognition of competent, trained personnel.
(c) Coordinate training programs with state and federal agencies including the
university of ARIZONA college of agriculture, the United States department of agriculture
and vocational education programs.
(d) Planning, organizing, conducting or attending safety and health seminars,
conferences and meetings designed for management, supervisory personnel, employees and
employee representatives and establishing liaison with other safety and health groups as
may be necessary.
(e) Definition and establishment of necessary research projects.
(f) Arrangement and procurement of necessary contractual services and training
aids.
(g) Development of specific agricultural safety and health programs for employer
and employee representative groups.
6. Collect and analyze agricultural safety and health statistics generated by the
industrial commission, the department of health services, the department of environmental
quality and any other state or federal agency that produces such information.
7. Coordinate the responsibilities and functions of other administrative units in
the department with regard to agricultural safety and health in order to develop a
comprehensive statewide program.
3-3106 Pesticides
The department shall adopt rules consistent with this section prescribing safe work
practices for employees who mix, load, apply, store or otherwise handle pesticides for
agricultural uses and for employees who are exposed to residues of these pesticides after
application or persons who are incidentally exposed to pesticides when or after they are
applied. The rules shall include, but are not limited to, provisions that relate to:
1. Exposure to pilots, mixers, loaders, flaggers and ground and aerial applicators.
2. Employee training and instruction.
3. Emergency medical care.
4. The times and conditions under which employees may work alone with pesticides.
5. Adequate facilities, equipment and water for changing clothes and washing.
6. Necessary safety equipment and its cleaning.
7. Limiting, as necessary, field reentry after pesticide application.
3-3107 Inspection of places and practices of employment; employee initiation of investigation; violation; injunction; classification
A. The assistant director or his authorized representative, on presentation of
credentials, shall be permitted to inspect places of employment, question employees and
investigate conditions, practices or matters in connection with employment subject to
this article at reasonable times as he may deem appropriate to determine whether any
person has violated this article or any rule which is adopted under this article or which
may aid in enforcing this article. An employer or other person shall admit the assistant
director or his authorized representatives to any such place and permit the inspection if
the proper credentials are presented and the inspection is made at a reasonable time.
B. Notice of an intended inspection shall not be given to an employer before the
time of actual entry on the workplace, except by specific authorization by the assistant
director.
C. Within five days after the inspection the director shall inform any employer in
writing if the director anticipates an enforcement action. The notice of a potential
enforcement action shall indicate the nature of the alleged violation and the last
possible date for issuing a citation under section 3-3110 or an advisory notice under
section 3-3111. If in the course of an investigation the department identifies any
additional alleged violator, the director shall inform the additional alleged violator
within five days of initiating the new investigation. The notice of a potential
enforcement action against the additional alleged violator shall indicate the nature of
the alleged violation and the last possible date for issuing a citation under section
3-3110 or an advisory notice under section 3-3111. If the director does not issue a
notice of a potential enforcement action, the director shall inform the employer within
fifteen days after the inspection that the director does not anticipate any enforcement
action.
D. If the director investigates an alleged violation under this article and rules
adopted pursuant to this article and determines that the violation did not result in any
adverse health effects, the director may issue a letter of warning.
E. A representative of the employer and a representative authorized by his
employees shall be given an opportunity to accompany the assistant director or his
authorized representative during the physical inspection of any workplace for the purpose
of aiding such inspection. If there is no authorized employee representative, the
assistant director or his authorized representative shall consult a reasonable number of
employees concerning matters of safety and health in the workplace.
F. Information and facts developed by the department, the assistant director or any
employee of the department or office in the course of any inspection or investigation are
public records pursuant to title 39, chapter 1, article 2 if, pursuant to section 3-3110,
subsection D, the inspection or investigation has been closed or a citation has been
issued. Such information and facts are not admissible in any court or before any
administrative body except pursuant to this article. Notwithstanding the provisions of
this subsection, the assistant director or any employee of the department is not required
to appear at any deposition, trial or hearing concerning an office inspection or
investigation unless the appearance is related to a hearing held pursuant to this
article. Hearings held pursuant to this article are open to the public.
G. An employee or a representative of employees who believes that a violation of a
safety or health standard or rule exists that threatens physical harm or that an imminent
danger exists may request an investigation by notifying the assistant director or his
authorized representative of such violation or danger. Any such notice shall be in
writing, shall state with reasonable particularity the grounds for the notice and shall
be signed by the employees or representative of the employees. On the request of the
employee giving such notice, his name and the names of other employees referred to in the
notice shall not appear on any copy of the notice or any record published, released or
made available. If on receipt of the notice the assistant director determines that there
are reasonable grounds to believe that such violation or danger exists, he shall make an
investigation pursuant to this article as soon as practicable to determine if a violation
or danger exists. If the assistant director determines that there are no reasonable
grounds to believe that a violation or danger exists, he shall notify the employees or
the representative of the employees in writing of that determination.
H. The department, or its authorized representative, in addition to initiating an
action under subsection G of this section, may file in the superior court in the county
where the inspection was refused a verified complaint against an employer who violates
subsection A of this section and may request an injunction against the continued refusal
to permit an inspection.
I. A person who violates this section is guilty of a class 2 misdemeanor.
3-3108 Development of standards and rules
A. Safety and health standards and rules shall be formulated in the following
manner:
1. The assistant director shall either propose adoption of national consensus
standards or federal standards or draft such rules as he considers necessary after
conducting sufficient investigations through the employees of the office and through
consultation with the department advisory council, an ad hoc advisory committee if one is
appointed and other persons knowledgeable in agriculture for which the standards or rules
are being formulated
2. Proposed standards or rules, or both, shall be submitted to the director for his
approval. If the director approves the proposed standards or rules, or both, he shall
adopt them pursuant to title 41, chapter 6.
B. The assistant director shall not propose standards or rules for products
distributed or used in interstate commerce which are different from federal standards for
such products unless the standards are required by compelling local conditions and do not
unduly burden interstate commerce.
C. Any standards or rules adopted under this section shall prescribe the use of
labels or other appropriate forms of warning as are necessary to ensure that employees
are apprised of all recognized hazards to which they are exposed, relevant symptoms,
appropriate emergency treatment and proper conditions and precautions of safe use or
exposure. If appropriate, the standards or rules shall also prescribe suitable
protective equipment and control or technological procedures to be used in connection
with such hazards and shall provide for monitoring or measuring employee exposure at such
locations and intervals and in such manner as may be necessary to protect employees. In
addition, if appropriate, any such standards or rules shall prescribe the type and
frequency of medical examinations or other tests which shall be made available, by the
employer or at his cost, to employees exposed to such hazards in order to most
effectively determine whether the health of such employees is adversely affected by such
exposure. Any standards or rules adopted pursuant to this section shall assure, as far
as possible, that no employee will suffer material impairment of health or functional
capacity even if such employee has regular exposure to the hazard dealt with by such
standard for the period of his working life.
D. In case of conflict between standards and rules, the rules take precedence.
E. A person who may be adversely affected by a standard or rule issued under this
article at any time before the sixtieth day after the standard or rule is adopted may
file a complaint challenging the validity of the standard or rule with the superior court
in the county in which the person resides or has his principal place of business for a
judicial review of the standard or rule. The filing of a complaint, unless otherwise
ordered by the court, does not operate as a stay of the standard or rule. The
determinations of the director are conclusive if supported by substantial evidence in the
record considered as a whole.
3-3109 Emergency temporary standards
A. The department may provide for emergency temporary standards or rules to take
immediate effect on filing with the secretary of state if it determines that employees
are exposed to grave danger from exposure to substances or agents determined to be toxic
or physically harmful or from new hazards and that the emergency standard or rule is
necessary to protect employees from such danger.
B. Emergency temporary standards or rules are effective until superseded by
standards or rules adopted pursuant to section 3-3108.
C. On filing such a standard or rule with the secretary of state the department
shall begin a proceeding pursuant to section 3-3108 and the emergency temporary standard
or rule shall serve as a proposed standard or rule for the proceeding. The department
shall adopt a standard or rule under this subsection no later than six months after
filing the emergency temporary standard or rule
D. Emergency temporary standards are not subject to title 41, chapter 6, but the
department shall provide twenty days' advance notice of the meeting at which the
emergency temporary standard will be adopted, and the proposed standard. The department
shall receive public testimony at the meeting regarding the emergency temporary standard.
3-3110 Citations
A. If the assistant director, after an inspection or investigation, determines that
there is reasonable cause to believe that a violation exists the assistant director shall
with reasonable promptness recommend to the director that a citation be issued to the
employer. If the director issues a citation it shall be in writing and shall contain the
following:
1. A particular description of the nature of the violation, including a reference
to the provision of this article, or of the standard or rule alleged to have been
violated.
2. A reasonable time to abate the violation.
3. A notice that the employer may request a hearing if the employer is aggrieved by
the citation.
B. A certified mail delivery receipt or a signed verification of delivery in person
is prima facie evidence of the receipt of a citation.
C. Each citation or copy of a citation issued under this section shall be
prominently posted at or near each place a violation referred to in the citation existed.
D. No citation may be issued after the expiration of a period of six months from
the date of the inspection that produced evidence of the violation. If in the course of
an investigation the department identifies any additional alleged violator, the
department may investigate the additional alleged violator. No citation may be issued
after the expiration of six months from the date the additional alleged violator is
identified by the department. 3-3111 De minimis violations
A. The assistant director may issue an advisory notice stating de minimis
violations of standards and rules which carry no penalty, unless the employer or trainer
wilfully and repeatedly violates the standard or rule, in which case the assistant
director may refer the matter to the director for appropriate action pursuant to section
3-3113.
B. No advisory notice stating a de minimis violation may be issued under this
section after the expiration of a period of six months after the date of the inspection
that produced evidence of an alleged violation. If in the course of an investigation the
department identifies any additional alleged violator, the department may investigate the
additional alleged violator. No advisory notice may be issued after the expiration of
six months from the date the additional alleged violator is identified by the department.
3-3112 Enforcement procedure
A. If the director, after an inspection or investigation, issues a citation
pursuant to section 3-3110, the director shall notify the employer by mail, within a
reasonable time after termination of the inspection or investigation, of any penalty
proposed to be assessed pursuant to section 3-3113 and that the employer has thirty days
within which to request a hearing pursuant to title 41, chapter 6, article 10 if the
employer wishes to appeal the citation or proposed assessment of penalty.
B. The period permitted for correction of a violation does not begin to run until
the entry of a final order in the case of any review proceedings pursuant to this section
initiated by the employer in good faith and not solely for delay or avoidance of
penalties. If the director has reason to believe that an employer has failed to correct a
violation for which a citation has been issued within the period permitted, the director
shall notify the employer by mail of such failure, of the penalty proposed to be assessed
pursuant to section 3-3113 and that the employer has thirty days within which to request
a hearing pursuant to title 41, chapter 6, article 10 if the employer wishes to appeal
the notification or proposed assessment of penalty.
C. An affected employee or employee representative may request a hearing to appeal
the period allowed an employer to abate a particular violation if the employee or
employee representative requests the hearing within the abatement period allowed in the
citation or within thirty days from the date of receipt of the citation, whichever is
shorter.
D. On a showing by an employer of a good faith effort to comply with the abatement
requirements of a citation, and that abatement has not been completed because of factors
beyond the reasonable control of the employer, the department or its authorized designee,
after an opportunity for a hearing, shall issue an order affirming or modifying the
abatement requirements in the citation. The department shall provide affected employees
or representatives of affected employees with an opportunity to participate as parties to
hearings under this subsection. 3-3113 Penalties; violation; classification
A. An employer who wilfully or repeatedly violates the requirements of section
3-3104 or any standard or rule adopted pursuant to section 3-3106, 3-3108 or 3-3109 or
any other provision of this article may be assessed a civil penalty of not more than ten
thousand dollars for each violation.
B. An employer who has received a citation for a serious violation of any provision
of this article shall be assessed a civil penalty of up to one thousand dollars for each
such violation.
C. An employer who has received a citation for a serious violation of any provision
of this article and that violation causes death to an employee shall be assessed a civil
penalty of up to five thousand dollars for each such violation.
D. An employer or trainer who has received a citation for a nonserious violation of
any provision of this article may be assessed a civil penalty of up to one thousand
dollars for each such violation.
E. An employer or trainer who fails to correct a violation for which a citation has
been issued within the abatement period permitted for its correction, which period shall
be suspended in the case of an administrative hearing before an administrative law judge
initiated by the employer in good faith and not solely for delay or avoidance of
penalties, may be assessed a civil penalty of not more than one thousand dollars for each
day during which the failure or violation continues after the abatement date.
F. An employer who knowingly violates the requirements of section 3-3104 or any
standard or rule adopted pursuant to section 3-3106, 3-3108 or 3-3109 or any other
provision of this article and that violation causes death to an employee is guilty of a
class 6 felony, except that if the conviction is for a second or subsequent violation,
the employer is guilty of a class 5 felony.
G. A person who knowingly gives advance notice of any inspection to be conducted
under this article without authority from the assistant director is guilty of a class 2
misdemeanor.
H. A person who knowingly makes a false statement, representation or certification
in any application, record, report, plan or other document filed or required to be
maintained pursuant to this article is guilty of a class 2 misdemeanor.
I. The director may assess all civil penalties prescribed by this section, giving
due consideration to the appropriateness of the penalty with respect to the gravity of
the violation, the number of employees employed by the employer, the number of
individuals taught by the trainer, the good faith of the employer or trainer and the
history of previous violations under this article.
J. Civil penalties owed under this article shall be paid to the department for
deposit in the state general fund. After an order or decision on a civil penalty becomes
final, the civil penalty acts as a judgment against the employer or trainer. The
director shall file the civil penalty in the office of the clerk of the superior court in
any county in this state and the clerk shall enter the civil penalty in the civil order
book and judgment docket. When the civil penalty is filed and entered, it is a lien for
eight years from the date of the final order or decision on the property of the employer
or trainer located in the county. Execution may issue on the civil penalty within eight
years in the same manner and with similar effect as a judgment of the superior
court. The civil penalty judgment shall accrue interest pursuant to section
44-1201. The department may recover reasonable attorney fees incurred pursuant to this
section.
3-3114 Additional penalty for wilful or repeated violation causing employee permanent disability or death covered by workers' compensation; payment to employee; enforcement
A. In addition to penalties prescribed by section 3-3113, the director shall assess
a penalty of twenty-five thousand dollars against an employer who is assessed a penalty
under section 3-3113, subsection A for each employee injury resulting in permanent
disability or death if the director finds all of the following:
1. The employee injury resulting in permanent disability or death was caused by the
violation for which the employer is assessed a penalty under section 3-3113, subsection
A.
2. Compensation benefits are paid to the injured employee, or in the event of
death, the employee's dependents, under title 23, chapter 6.
3. The violation for which the employer is assessed a penalty under section 3-3113,
subsection A did not result from the injured or deceased employee's disobedience to
specific instructions given to the employee regarding the job condition causing the
injury or death or relating to the safety standards applicable to that job condition.
B. Each additional penalty assessed under this section shall be paid to the injured
employee, or in the event of death, the employee's dependents, in addition to the
benefits paid under title 23, chapter 6.
C. Pursuant to title 41, chapter 6, article 10, an employer may request a hearing
on an additional penalty assessed under this section. An additional penalty under this
section that becomes final operates as a judgment against the employer and may be
enforced by either the director or the injured employee, or in the case of death, the
employee's dependents, and all lawful remedies for the collection of judgments, including
provisional remedies, are available. This section does not create any right of action or
recovery against the employer's workers' compensation insurance carrier, and the
additional penalty provided by this section is not a compensation benefit under title 23,
chapter 6 and is not subject to the payment of attorney fees.
3-3115 Imminent dangers
A. The superior court has jurisdiction on filing of a verified complaint by the
director to restrain any conditions or practices in any place of employment which are
such that a danger exists which could reasonably be expected to cause death or serious
physical harm immediately or before the imminence of such danger can be eliminated
through the enforcement procedures otherwise provided by this article. Any order issued
under this section may require such steps to be taken as may be necessary to avoid,
correct or remove such imminent danger and prohibit the employment or presence of any
individual in locations or under conditions where such imminent danger exists, except
individuals whose presence is necessary to avoid, correct or remove such imminent danger
or to maintain the capacity of a continuous process operation to resume normal
operations, or if a cessation of operations is necessary, to permit the cessation to be
accomplished in a safe and orderly manner.
B. On the filing of any such complaint the superior court has jurisdiction to grant
injunctive relief or a temporary restraining order pending the outcome of an enforcement
proceeding pursuant to this article. The proceeding shall be as provided by the rules of
civil procedure.
C. If, and as soon as, the director or his authorized representative concludes that
conditions or practices described in subsection A exist in any place of employment, he
shall inform the affected employees and employers of the danger and that he is
recommending that relief be sought.
D. If the director or his authorized representative arbitrarily or capriciously
fails to seek relief under this section, any employee who may be injured by reason of
such failure or the representative of such employees may bring an action against the
director in superior court for a writ of mandamus to compel the director to seek such an
order and for such further relief as may be appropriate.
3-3119 Nonliability
Notwithstanding any law to the contrary, neither the director nor his authorized
representative is subject to civil liability for any acts or omissions in the course of
any inspection or investigation for the department if he is acting in a reasonable
manner, considering the activity in which he is engaged.
3-3120 Employee discharge or discrimination
The prohibitions, rights, remedies and procedures prescribed pursuant to section
23-425 apply to agricultural employment.
3-3121 Trade secrets; confidentiality
All information reported to or obtained by the department or its representatives in
connection with any inspection or investigation under this article which contains or
which might reveal a trade secret is considered confidential for the purpose of this
article, except that the information may be disclosed to other representatives of the
office or department concerned with carrying out this article or if it is relevant in any
proceeding under this article. In any such proceeding, the department, assistant
director, director, hearing officer or courts shall issue orders as may be appropriate to
protect the confidentiality of trade secrets.
3-3122 Employer and employee representation
Any affected employee or employer may designate any person or persons to represent
him for the purpose of proceedings before any hearing officer under this article,
regardless of the person's membership in the state bar.
3-3123 Testimony of witnesses; compensation; order of superior court to appear
The director may require the attendance and testimony of witnesses and the
production of evidence under oath. Witnesses are entitled to be paid the same fees and
mileage paid witnesses in the courts of this state. If any person fails or refuses to
obey such an order, the director may apply to the superior court in any county where the
person is found, resides or transacts business for an order requiring the person to
produce evidence and to give testimony as ordered. The failure to obey such order is
contempt of court.
3-3124 Agricultural education and training program
A. The assistant director shall develop an agricultural safety education and
training program utilizing visits to the workplace of employers to provide education and
advice to employers. The visits:
1. May be conducted only on request by an employer for education and advice on the
interpretation or applicability of standards, possible alternative ways of complying with
applicable standards or other matters related to accident prevention, agricultural health
or obligations pursuant to this article.
2. Shall be limited to matters specified in the request.
B. If, after evaluating the request, the assistant director determines an
alternative means of providing education is more appropriate and equally effective, he
may provide the alternative means rather than education at the workplace.
C. The assistant director shall make recommendations regarding solutions to matters
within the scope of the workplace education.
D. A visit pursuant to this section shall not be regarded as an inspection or
investigation pursuant to section 3-3110. No citation may be issued nor may any civil
penalties be proposed on such a visit, except that nothing in this section affects in any
manner any provision of this article the purpose of which is to eliminate imminent danger
violations.
3-3125 Trainer certification
A. The assistant director shall develop a certification program for training
persons who train employers and employees in agricultural health and safety standards as
provided by section 3-3105.
B. The assistant director may recommend to the director for the adoption of rules
relating to certifying trainers pursuant to this section.
C. The assistant director may deny, revoke or suspend a trainer certification or
training program if the assistant director has reasonable grounds to believe that the
training program does not comply, or the trainer has violated or failed to comply, with
the agricultural safety training program.
D. The trainer may request in writing that the department provide an administrative
hearing to appeal any denial, revocation or suspension of the approval pursuant to rules
adopted by the department.
E. The assistant director may provide a trainer at the request of and for the
assistance of the livestock and agriculture committee established pursuant to section
5-113, subsection C.
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