BEFORE THE DEPARTMENT OF AGRICULTURE

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 4.10.201, 4.10.202, 4.10.203, 4.10.205, 4.10.206, 4.10.207, 4.10.209, 4.10.311, 4.10.313, 4.10.502, 4.10.503, 4.10.1101, 4.10.1103, 4.10.1106, 4.10.1109, and 4.10.1501 relating to pesticide administration

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO:  All Concerned Persons

 

            1.  On March 18, 2010, at 10:00 the Montana Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building, 303 N. Roberts at Helena, Montana, to consider the proposed amendment of the above-stated rules.

 

            2.  The Department of Agriculture will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process and need an alternative accessible format of this notice.  If you require an accommodation, contact Department of Agriculture no later than 5:00 p.m. on March 11, 2010, to advise us of the nature of the accommodation that you need.  Please contact Cort Jensen at the Montana Department of Agriculture, 303 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; phone: (406) 444-3144; fax: (406) 444-5409; or e-mail: [email protected].

 

3.  The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

4.10.201  PESTICIDE APPLICATOR LICENSING REQUIREMENTS

(1)  remains the same.

(2)  A person shall must apply for a license on the department's application form.  The application shall must be completed in its entirety, accompanied by the licensing fee and a completed statement of financial responsibility.  Applicants submitting incomplete applications and not meeting the conditions and standards expressed in the Act and department rules will be notified of such deficiencies and the procedure for correcting the deficiencies.  The department will return the application along with the notice.

(3) and (3)(a)  remain the same.

(b)  A nonresident individual or partnership may designate the Secretary of State as its lawful agent or attorney upon whom service of process may be made in such causes of action, and such service when so made shall be valid service on the Secretary of State.  Service of process for individuals or partnerships shall apply to all employees transacting business in the state.  The individual of or partnership shall provide to the department a list of the employees and subsequent revision of the list for those employees licensed or to be licensed as pesticide applicators.

(c)  remains the same.

(4)  An individual applying for a public utility applicator's license or certification-license shall be required to meet the same conditions and standards established within these rules for commercial applicators.  For purposes of this subchapter, "public utility" means any governmental organization supplying water, electricity, transportation, etc. to the public, including utilities operated by a private entity under governmental regulation.

(5)  An individual applying for a government applicator's license or certification-license shall be required to meet the conditions and standards of these rules except for those specifically exempted in the Act.  The department may accept for certification those federal employees certified through an EPA approved federal agency certification program or if the employee has been certified by another state with comparable requirements and standards of the department.  The department reserves the responsibility to require federal employees to meet any special state certification standards.

(6)  Those individuals who cannot be classified as a commercial, public utility, or government certified pesticide applicator or who cannot be classified as a farm applicator, but desire the use of restricted-use pesticides, shall be considered to be certified noncommercial applicators.

(a) through (d)  remain the same.

(7)  No licenses or certification-licenses shall be issued to any person until the application, fees and all examination or requalification requirements are fulfilled and approved by the department.

(8)  A licensed pesticides applicator changing his employment to another company or business within a licensing period shall be required to submit his license and any employee licenses referenced to his license to the department for cancellation.  The applicator, by submission of a written request or application, may request the issuance of a new license.  If the applicator paid the license fee, the department will reissue the license.  If the company or business originally employing the applicator paid the license fee, the department shall not reissue the applicator's license until the fee is paid by the applicator or the applicator's new employer.  If the original company paid the licensing fee, the department will credit the fee to the company for issuance of another applicator's license within the same licensing period. Pprovided that the license shall must not be issued until the applicant passes the required written examination or is already an approved applicator.  Licenses and licensing fees shall must not be transferable between licensing periods.

            (9)  An applicator not renewing and maintaining his license and qualification certification within the established qualification period shall be required to retake and pass the complete examination series prior to the issuance of a new license at the beginning of the next qualification period.  The applicator may maintain his qualifications by attending approved requalification programs for a time period not to exceed four years. The applicator will be required to maintain his records of requalification for submission to the department for relicensing.  The department reserves the right to require special examination(s) on new requirements or technology.

(10)  remains the same.

(a)  When an applicator terminates his employment, transfers his license, or modifies or cancels his license, all employee operator licenses issued under the applicator's name and license are terminated, modified, or cancelled.  Employees licensed certified as applicators may retain their license provided that their financial responsibility is still valid.  New licenses will be issued to employee operators previously licensed or qualified once the business has appointed a new supervisory licensed certified applicator.

 

AUTH:  80-8-105, MCA

IMP:  80-8-105, MCA

 

REASON:  These changes clarify the use of the terms "license" meaning a document or authorization and "certification" meaning a qualifying process.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

4.10.202  CLASSIFICATION OF PESTICIDE APPLICATORS  (1)  All applicants applying for a pesticide applicator's license required by 80-8-203 and 80-8-213, MCA, or desiring a license certification, shall be classified as either a commercial pesticide applicator, public utility applicator, government pesticide applicator, or noncommercial applicator as defined in ARM 4.10.201.  Applicants that meet competency standards required by ARM 4.10.203 may shall be further classified either as individuals using only use general and restricted-use pesticides or as persons using general use and restricted use pesticides.

(a)  An applicant using general use pesticides shall be classified as either a licensed commercial, public utility, or government pesticide applicator.

(b)  An applicant using general and restricted use pesticides shall be classified as either a certified-licensed commercial, public utility, government, or noncommercial pesticide applicator.

(2)  A person, whether certified as a commercial, public utility, government, or noncommercial licensed or certified-licensed, aerial or ground applicator, shall be further classified into one or more of the specific classifications set forth in this rule.  The specific classification(s) shall determine the type, substance, and comprehensiveness of each applicant's examinations and the areas, classes of pesticides, and conditions by which the applicant may conduct pesticide operations.

            (a)  A person licensed certified as an applicator may use general use pesticides for which he is qualified throughout the state. A person certified-licensed as an applicator may use general and restricted-use pesticides for which he is qualified throughout the state.

     (i)  A licensed commercial applicator may use a restricted pesticide under the following conditions:

            (A)  under the special supervision of a certified-licensed applicator; or

(B)  under the direct supervision of a certified-licensed applicator but within 100 miles of the certified applicator.

(ii)  A licensed government applicator may use a restricted pesticide under the following conditions:

(A)  special supervision of a certified-licensed applicator; or

(B)  direct supervision of a certified-licensed applicator but within the respective jurisdiction of the certified applicator.

(b) through (3)(e)  remain the same.

     (f)  Right-of-way, rangeland, pasture, and noncrop pest control classification includes any applicator using or supervising the use of pesticides to manage weeds or other vegetation in the maintenance of public roads, electric power lines, pipelines, railway rights-of-way, or other similar areas.  This classification includes any applicator using or supervising the use of pesticides to manage weeds or other vegetation on grassland and pastures that are not harvested for forage, and any applicator using or supervising the use of pesticides on noncrop areas to manage weeds or other vegetation.

            (g) through (m)  remain the same.

 

            AUTH:  80-8-105, MCA

            IMP:  80-8-105, MCA

 

            REASON:  The proposed rule change removes the current two-tiered licensing system and replaces it with a one-tier system that permits qualified (certified) pesticide applicators to use restricted-use and general use pesticides.  This will set one standard for pesticide applicator licensing.  This will make Montana licensing standards similar to most other states in the U.S. and assure that applicators obtaining reciprocal licensing among states have met similar standards.  Levels of supervision of licensed applicators in ARM 4.10.202(2)(a) is removed because the licensed applicator tier will be removed and supervision is no longer needed.  The right-of-way license classification in ARM 4.10.202(3)(f) is expanded to permit pesticide applicators licensed in this classification to apply pesticides to rangeland and pasture to manage weeds.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

4.10.203  COMPETENCY STANDARDS FOR LICENSING AND CERTIFICATION-LICENSING OF PESTICIDE APPLICATORS  (1)  An individual applying for a commercial, public utility, governmental, or noncommercial applicator's license or certification-license shall be required to pass a written examination prior to issuance of a license or certification-license.

(a)  remains the same.

(b)  Any individual applying for a license or a certification-license shall meet the general and specific competency standards of ARM 4.10.204 and 4.10.205.

(c)  remains the same.

(d)  The department may accept the applicant's examination scores from other states if the examination or examinations are equivalent to the department's examination.  However, all other standards and requirements of the department must be met by the applicant.  All out-of-state applicators will be required to take and pass an examination based on the Montana Pesticide Act and these rules.  The scores required are set forth in (3)(a) and (b).

(2)  An applicator's examination shall must consist of:

(a)  a core basic examination consisting of, but not limited to, questions based on pesticide laws, rules, regulations, definitions, labeling, safety, toxicology, effects on animals, plants, and the environment, safety equipment, first aid, and alternatives to chemicals.

            (b)  a specific examination or examinations consisting of, but not limited to, questions based on the pests to be controlled, various control methods, pesticides utilized, environmental and safety considerations, pesticide formulations, and equipment calibration and maintenance, in the specific classification or classifications the applicator chooses for licensing or certification-licensing.

(3)  The minimum passing score for applicants shall be:

(a)  In the case of applicants qualifying for general use pesticides, 70 80% for the basic core pesticide examination, and 70 80% for each respective specific examination required.

(b)  In the case of applicants qualifying for restricted use pesticides, 80% for the basic examination, and 80% for each respective specific examination required. Applicators licensed prior to April 30, 2010 who did not receive a score of 80% or higher on their core pesticide examination and/or specific classification examinations must retest or have obtained 12 hours of recertification training approved by the department before April 30, 2011.

(4)  An applicant not receiving a passing score on one or more of the examinations shall be required to retake and pass the failed examination(s) prior to issuance of a license.  The applicant taking more than one specific examination may elect to be licensed certified only for the specific examination(s) passed if the applicant has passed the basic core pesticide examination, and at least one specific examination.

(a)  Applicants failing the basic core pesticide examination or any other examination the first time shall not be allowed to retake the examination(s) for seven days after notification of failure.  Applicants failing the examination(s) a second time may retake the examination(s) 15 days after notification.  Applicants failing the examination(s) a third time shall not be allowed to retake the examination(s) until the next licensing period beginning January 1 of the next year.  Reexamination may be taken at the department's Helena office or the applicant may make arrangements for reexamination at other locations in the state or in other states at the convenience and approval of the department.

(5)  remains the same.

(a)  The department has a staggered four-year requalification time period designated by applicator classification and subclassification.  Applicator classifications will must requalify by December 31 of the year designated by the department.  Thereafter the qualification period extends from January 1 through December 31 of the next four-year cycle.

(b)  Applicator requalification shall must be accomplished by either passing the complete examination series or by attending 12 hours of training approved by the department.  Courses must be either six, five, four, three, or two hours.  An applicator requalifying for licensing certification by attending pesticide training courses must have written verification of his/her attendance.

            (6)  The department retains the right to approve or disapprove training courses relative to meeting the qualifications for re-licensing certification.  Training course sponsors must petition the department for approval of their courses at least 30 days prior to being held.  The petition must include dates, time, location, projected attendance, speakers, and a synopsis of their presentations.

            (7)  The department may require applicators to pass an examination during any licensing certification period on new pesticide technology which applies to the applicator's classification.

 

            AUTH:  80-8-105, MCA

            IMP:  80-8-105, 80-8-206, MCA

 

            REASON:  This proposed change will set one standard for all pesticide applicator licensing, simplify sales and recordkeeping requirements for pesticide dealers, make Montana licensing standards similar to most other states in the U.S., and assure that applicators obtaining reciprocal licensing among states have met similar standards.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

4.10.205  SPECIFIC STANDARDS OF COMPETENCY FOR EACH APPLICATOR CLASSIFICATION  (1)  Licensed or certified-licensed Certified commercial, public utility, government, and noncommercial pesticide applicators shall be particularly examined and qualified with respect to the following  practical knowledge standards elaborated below:

            (a) through (e)  remain the same.

(f)  Right-of-way, rangeland, pasture, and noncrop pest control applicators are applicators who apply pesticides and who shall demonstrate practical knowledge of a wide variety of environments since right-of-way, rangeland, pasture, and noncrop   sites can traverse many different terrains, including waterways.  They shall demonstrate practical knowledge of problems on runoff, drift, and excessive foliage destruction, and potential effects to livestock and nontarget organisms. and  Applicators must have the ability to recognize target organisms plants and differentiate them from nontarget plants.  They shall also demonstrate practical knowledge of the nature of herbicides and the need for containment of these pesticides within the right-of-way areas target application site, and the impact of their application activities in the adjacent areas and communities.

(g) through (j)  remain the same.

            (k)  Demonstration and research pest control applicators demonstrating the safe and effective use of pesticides to other applicators and the public will be expected to meet comprehensive standards reflecting a broad spectrum of pesticide use.  Many different problem situations will be encountered in the course of activities associated with demonstrations.  Practical knowledge of problems, pests, and population levels occurring in each demonstration situation is required.  Further, they should demonstrate an understanding of pesticide organism interactions and the importance of integrating pesticide use with other control methods.  In general, it would be expected that applicators doing demonstration pest control work possess a practical knowledge of all the standards detailed in ARM 4.10.204.  In addition, they shall meet the specific standards required for classifications in (1)(a) through (g) applicable to their particular activity.  Persons conducting field research or method improvement work with restricted-use pesticides should shall be expected to know the general standards required for classifications in (1)(a) through (j), applicable to their particular activity, or alternatively, to meet the more inclusive requirements listed under "Demonstration".

            (l) through (m)  remain the same.

 

            AUTH:  80-8-105, MCA

            IMP:  80-8-105, 80-8-206, MCA

 

            REASON:  This proposed change expands the competency standards for right-of-way classification to include competencies for rangeland, pasture, and noncrop sites as a result of the proposed change in ARM 4.10.202(3)(f).

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

      4.10.206  INDIVIDUALS REQUIRING A PESTICIDE OPERATOR'S LICENSE          (1)  Employees of licensed or certified-licensed applicators under certain conditions of use for general and restricted-use pesticides shall be required to become licensed pesticide operators.  Provided that oOnly one certified-licensed applicator, licensed applicator or licensed operator shall be required for each spraying equipment unit when in actual operation.  Application for an operator's license shall be made on a standard application form provided by the department.

      (2)  Licensed operators shall be allowed to use and apply only those pesticides that the licensed or certified-licensed applicator he is supervised by is qualified to use and apply. A licensed operator may use general or restricted-use pesticides within one hundred (100) miles of the applicator when he is under the direct supervision of a licensed or certified-licensed applicator, respectively. Licensed operators may not apply general or restricted-use pesticides beyond one hundred (100) miles of the applicator.

      (3)  An individual may under certain conditions be licensed as a noncommercial operator under the direct supervision of a certified-licensed noncommercial applicator.  In these cases, the licensed operator may use restricted- use pesticides under the direct supervision of the certified-licensed applicator provided that the uses of the pesticides are restricted to any of the employer's premises or materials on the premises, and that the treated materials are not sold to the general public.

      (4) through (5)(b)  remain the same.

      (c)  receiving training from a certified-licensed or licensed applicator of the business or government agency who must certify the individual's completion of the training.

            (6)  The training or examination shall include knowledge of pesticide law and rules, labels and labeling, safety, first aid and toxicology, effect of pesticides, factors affecting pesticide application, equipment calibration, dilution and mixing of pesticides, and recognition of common pests to be controlled.  The examination or training for operators shall must be as specific as possible to their operations and responsibilities.  Examinations will be given at the convenience and approval of the department or its authorized representative.  The department shall cooperate with individual applicators or groups of applicators in establishing the training materials and examination questions, and may provide assistance to applicators in training applicants for an operator's license.  The passing score for the examination shall must be 70 80%.  Operators who pass the examination may not be required to pass another examination.  Operators may renew their license each year by receiving in-service business or government agency training or by attending a training course approved by the department.

            (7)  Government operators shall meet all the standards established for commercial operators in this regulation.  Government operators shall only operate within their respective governmental boundaries regardless of the number of miles from the government certified licensed or government licensed applicator's business location.

 

            AUTH:  80-8-105, MCA

            IMP:  80-8-105, 80-8-205, MCA

 

            REASON:  This proposed change clarifies licensing terminology as a result of the proposed change in ARM 4.10.202.  Operators who are not trained by a certified applicator or attend approved training may qualify by passing an examination with 80% correct which is equivalent to certified applicators and pesticide dealers.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

            4.10.207  RECORDS  (1)  All licensed, certified licensed commercial, public utility, government, certified noncommercial applicators and their operators shall be required to keep and maintain operational records for two (2) years.  For every application performed either by an applicator or operator, the application record shall must include:

            (a) through (b) (ii)  remain the same.

            (iii)  location shall must include the property owner's or lessee's name and address, the county or counties in which where the pesticide was applied.  The specific application site shall must be expressed by township, range, and section numbers, or local identifiable landmarks, or latitude and longitude coordinates.  Right-of-way applications may be expressed in general terms of identifiable landmarks.  Nonagricultural applications may specify the site, building, facility, premise, or other identifiable landmarks.

            (c)  remains the same.

            (d)  The pesticide or pesticides used which shall must include the company name, trade name, and the EPA registration number or the type of formulation.

            (e) remains the same.

            (7)(a) remains the same, but is renumbered (7).

            (b) (a)  If no applications of the restricted-use pesticides are made during the requested time period this shall must be documented to the department.

            (8)(a)  Applicators shall submit to the department an accurate typed or printed report of their use of restricted and general use pesticides every fifth year beginning in calendar year 1990 and thereafter every five years.  The report shall must include a summary of use of these pesticides by county, month, total acreage, amount of the formulated product used, crop or site treated, the product used by company name and trade name, and the EPA registration number or the type of formulation for the fifth year only.  The report shall must be submitted to the department by January 31 of the next year.  The report shall must be submitted on the standard form provided by the department or on forms approved by the department.

            (b) (a)  If no application of general and/or restricted-use pesticides are made during the calendar year, this shall must be so documented by the department.

            (9)  remains the same.

 

            AUTH:  80-8-105, MCA

            IMP:  80-8-105, MCA

 

            REASON:  The proposed changes simplify the information required for pesticide recordkeeping and reporting based on data most needed for potential regulatory oversight of pesticide use.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

      4.10.209  NOTIFICATION BY LICENSED OR CERTIFIED LICENSED APPLICATORS

      (1)  remains the same.

 

      AUTH:  80-8-105, MCA

      IMP:  80-8-105, MCA

 

      REASON:  This proposed change clarifies licensing terminology as a result of the proposed change in ARM 4.10.202.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

      4.10.311  DESIGNATION OF RESTRICTED-USE AQUATIC HERBICIDES 

      (1)  The sale and use of aquatic herbicides that contain one or more of the following active ingredients intended for remission of aquatic vegetation, shall must be designated as restricted-use:

      (a)  xylene,

      (b)  acrolein,.

      (c) endothall.

 

            AUTH:  80-8-105, MCA

            IMP:  80-8-105, MCA

 

            REASON:  Aquatic herbicides are designated as restricted use based on their potential to harm aquatic fauna.  Based on current knowledge and use, products containing the active ingredient endothall do not present significant risk to aquatic fauna and designation of products containing endothall as restricted use is no longer needed.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

      4.10.313  USE OF RESTRICTED-USE AQUATIC HERBICIDES  (1)  Only persons certified and holding an aquatic pest control applicator license or permit issued by the department may purchase, or use a restricted-use aquatic herbicide.

      (a)  To initially qualify a person must shall attend a department approved aquatic herbicide training course and pass an department aquatic herbicide examination.

      (b)  remains the same.

      (c)  All farm applicators must attend one six (6) hours of department approved aquatic training course, or pass an aquatic herbicide examination to maintain qualifications.  The permit issued will conform to the five year qualification period established for the district in which the farm applicator resides.

      (d)  The department may require additional training to obtain or maintain an aquatic pest control applicator license if significant changes occur in aquatic herbicide use patterns or aquatic vegetation control techniques.

 

      AUTH:  80-8-105, MCA

      IMP:  80-8-105, MCA

 

      REASON:  Based on past experience by the department with aquatic pesticide applicator certification, it is believed that persons becoming initially certified as aquatic pesticide applicators can demonstrate sufficient competency by examination alone and that supplemental training is not necessary.  The department is retaining the option to require training if significant changes in the application process occur or unreasonable environmental harm is documented.

 

      FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

     4.10.502  RETAIL SALE OF PESTICIDES  (1)  The retail sale of pesticides shall be limited to products:

            (a)  labeled for only home, yard, lawn, and/or garden uses; and

      (b) through (2)  remain the same.

 

      AUTH:  80-8-105, MCA

      IMP:  80-8-105, 80-8-212, MCA

 

      REASON:  The proposed change clarifies that retail pesticides are labeled and can be used only for home, yard, lawn, and/or garden uses.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

            4.10.503  PESTICIDE DEALERS REQUIREMENTS AND STANDARDS 

            (1) and (2)  remain the same.

            (3)  Competency of applicants by written examination shall be determined by their knowledge of the subjects and materials set forth in the (Montana Pesticide Manual for Applicators and Dealers Pesticide Applicator Certification Core Manual), including future revisions and any other manual, guide, or materials required by the department.  Examination questions will be derived from these manuals.  Their degree of difficulty will be based upon the degree of importance established by the department for the various subjects.  The examination shall must consist of but not be limited to questions on pesticide legislation; regulations and guidelines; safety and toxicology; disposal; storage and transportation; effects on animals, plants, and environment; fish and wildlife; alternatives to chemicals; pollinating insects; selection of control methods; factors affecting pesticide applications; classification and formulations of insecticides; fungicides, herbicides, and other pesticides and their uses; definitions; and recommendations for use of pesticides.  The minimum passing examination score for applicants to be licensed as dealers shall be 75 80%.

(4)  Dealers shall be required to requalify for licensing prior to December 31, 1986, and by the end of every fourth year thereafter.  Dealer requalification shall must be accomplished by either passing a dealer examination or by attending 12 hours of training approved by the department.  Courses must be either six, five, four, three, or two hours of training.  A dealer attending pesticide training courses must have written verification of his/her attendance.

(a)  Dealers licensed prior to April 30, 2010 who did not receive a score of 80% or higher on their core pesticide examination must retest or have obtained 12 hours of recertification training approved by the department before April 30, 2011.

            (5) through (7)  remain the same.

            (8)  A licensed dealer changing his employment to another company or business within a licensing period shall be required to submit to the department the license and any employee credentials for cancellation by the department.  The dealer, by submission of a written request or application, may request the issuance of a new license.  If the dealer paid the license fee, the department will issue the license.  If a dealership or company originally employing the dealer paid the license fee, the department shall not reissue the license to the dealer or the dealer's new employer.  If the company paid for the licensing fee, the department will credit the fee to the company for issuance of another dealer's license by the department within the same licensing period., Pprovided that the license shall must not be issued until the applicant passes the required written examination or is already a licensed dealer. Licenses and license fees shall must not be transferable between licensing periods.

            (9)  A licensed dealer or employees supervised by the dealer shall only sell restricted-use pesticides to other dealers, certified-licensed commercial, public utility, or governmental applicators, to noncommercial certified applicators, or to certified farm applicators or their credentialed family members or employees.  The dealer or dealer's employees shall only sell to a certified applicator the pesticide or pesticides within the group or class of pesticides stated on the license or permit.

            (10)  Dealers are allowed to sell restricted-use pesticides to persons possessing proper identification or credentials issued by the department.  These credentials will state that the person is purchasing the pesticide under the name and license or permit number of a certified applicator and that the certified applicator supervises the use of the pesticide by that person.  Sale of restricted-use pesticides to any person other than certified applicators or persons with departmental credentials is illegal.  Such sales to any person shall must subject a dealer to immediate revocation of the license.

 

            AUTH:  80-8-105, MCA

            IMP:  80-8-105, 80-8-207, 80-8-208, MCA

 

            REASON:  This proposed change will make certification requirements for dealers equivalent with pesticide applicators.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

      4.10.1101  DEFINITION OF TERMS  These definitions apply to all rules adopted under the Montana Pesticides Act, Title 80, chapter 8, MCA.

      (1) through (4)  remain the same.

      (5)  "Operational activities" means transferring, loading, unloading, mixing, repackaging, and refilling pesticides; and emptying, cleaning, or rinsing refillable containers.

      (6) through (10)  remain the same.

 

      AUTH:  80-8-105, MCA

      IMP:  80-8-105, MCA

 

      REASON:  The U.S. Environmental Protection Agency has implemented rules (CFR 165) for containment of bulk pesticide storage, packaging, and refilling.  States must adopt and/or modify their administrative rules to be equivalent to federal rule.  The proposed rule changes provide increased protections from spills or leaks from operational activities of a PSF.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

      4.10.1103  GENERAL REQUIREMENTS AT PERMANENT STORAGE FACILITIES  (1)  remains the same.

      (2)  A person who operates a PSF prior to January 15 April 30, 1999 2010, must shall, within four two years, bring their facility into compliance with ARM 4.10.1101 through 4.10.1109.

      (3) through (5)(d)  remain the same.

 

      AUTH:  80-8-105, MCA

      IMP:  80-8-105, MCA

 

      REASON:  This proposed rule change sets the dates for compliance with the proposed rule changes.

 

      FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

      4.10.1106  OPERATIONAL ACTIVITIES FOR BULK PESTICIDES AT A PSF

      (1) and (1)(a)  remain the same.

      (b)  a person conducting operational activities outside of secondary containment shall use at a minimum, temporary or portable catch basins under fittings or connections during pesticide transfers. An attendant must be present during all operational activities must conduct these activities on a containment pad.

      (c)  the containment pad must have a capacity of at least 750 gallons.  If the largest container to be used on the containment pad is less than 750 gallons, the capacity of containment pad must be 100 percent of the largest pesticide container or pesticide holding equipment used on the pad.

      (d)  the surface area of the containment pad must extend completely beneath any container used on the pad.  For transport vehicles, excluding railcars, the surface area of the pad must extend beyond any valve or hose coupling used in the transfer of pesticide materials.

      (e)  the containment pad must be constructed in a manner that permits removal and recovery of spilled, leaked, or discharged materials and rainfall.  The surface of the pad must be sloped toward an area where liquids can be collected for removal.

      (f)  the containment pad must be constructed of materials and with specification as required for secondary containment in ARM 4.10.1105.

      (g)  temporary or portable catch basins must be used under fittings or connections not located over a containment pad during pesticide transfers.  An attendant must be present during all operational activities.

 

      AUTH:  80-8-105, MCA

      IMP:  80-8-105, MCA

 

      REASON:  The U.S. Environmental Protection Agency has implemented rules (CFR 165) for containment of bulk pesticide storage, packaging, and refilling.  States must adopt and/or modify their administrative rules to be equivalent to federal rule.  The proposed rules changes provide increased protections from spills or leaks from operational activities of a PSF.

 

      FINANCIAL IMPACT:  All new and approximately 50 existing facilities will incur up to $750.00 in construction cost of the containment pads required by this rule change.

 

      4.10.1109  RECORDS, INSPECTION AND MAINTENANCE RECOMMENDATIONS  (1)  Any person operating a PSF should shall maintain written records of all inspections and maintenance of the PSF for at least two years that include:

      (a)  the name of the person conducting the inspection or maintenance;

      (b)  date of the inspection;

      (c)  conditions noted; and

      (d)  specific maintenance performed.

      (2)  All appurtenances and primary containment holding bulk pesticides should must be inspected weekly for damage and leakage. Secondary containment and containment pads should must be inspected at least monthly during the use season for cracks or other damage to the containment structures which may permit discharge outside the containment structures.

      (3)  Regular maintenance of PSF, and secondary containment, and containment pads should must be performed to ensure that the integrity of the sites is maintained.

      (4)  Repair of seals, cracks, gaps, or other damage in containment structures or appurtenances must be initiated upon discovery and completed within a time frame that is reasonable.

 

      AUTH:  80-8-105, MCA

      IMP:  80-8-105, MCA

 

      REASON:  The U.S. Environmental Protection Agency has implemented rules (CFR 165) for containment of bulk pesticide storage, packaging, and refilling.  States must adopt and/or modify their administrative rules to be equivalent to federal rule.  The proposed rule changes provide increased protections from spills or leaks from operational activities of a PSF.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

            4.10.1501  DEFINITION OF TERMS  These definitions apply to all regulations and rules adopted under the Montana Pesticides Act, Title 80, chapter 8, MCA unless specified differently by statute or individual rules.

            (1) through (24)  remain the same.

            (25)  "Commercial applicator license" means an authorization issued by the department to an individual to use and apply general use pesticides for which he is qualified.

            (26) through (33)  remain the same but are renumbered (25) through (32).

            (34) (33)  "Direct supervision" means the act or process whereby the use of a pesticide is made by a competent person acting under the verifiable instructions and supervision of a licensed or certified applicator, who has provided detailed guidance to the competent person for proper use of the pesticide; who has made provisions for contact in the event he is needed; and who is responsible for the actions of that person.

            (35) through (50)  remain the same but are renumbered (34) through (49).

            (51) (50)  "Conditions of use for general use pesticides" means:

            (a)  a commercial certified pesticide applicator may use and apply general use pesticides for which he is licensed anywhere within the state.

            (b)  a licensed pesticide operator, as an employee of a licensed commercial certified applicator, may use and apply general use pesticides for which the applicator is licensed and under his direct supervision within a 100 miles of the licensed certified applicator; beyond 100 miles, special supervision shall be required.

            (c)  an unlicensed employee of a licensed commercial certified applicator may use and apply general use pesticides only under the special supervision of the licensed certified applicator or licensed operator employed by the licensed certified applicator.

            (52)  remains the same but is renumbered (51).

            (53)  "Government applicator license" means an authorization issued by the department to an individual to use and apply general use pesticides for which he is qualified.

            (54) through (90)  remain the same but are renumbered (52) through (88).

            (91) (89)  "Conditions for use for restricted use pesticides" means:

            (a)  a commercial certified pesticide applicator may use and apply restricted use pesticides for which he is certified-licensed anywhere within the state;

            (b)  a licensed applicator or operator, as an employee of a certified-licensed applicator, may use and apply restricted use pesticides for which the certified-licensed applicator is licensed, only within 100 miles of the certified-licensed applicator while under his direct supervision;

            (c)  a licensed applicator, or operator working beyond the 100 mile limit, may use or apply restricted-use pesticides only under the special supervision of a certified-licensed applicator.

            (92) through (93)  remain the same but are renumbered (90) through (91).

            (94) (92)  "Special supervision" means that a certified-licensed applicator or licensed applicator must be physically present at the time of use and application of a pesticide.

            (95) through (107)  remain the same but are renumbered (93) through (105).

 

            AUTH:  80-8-105, MCA

            IMP:  80-8-105, MCA

 

            REASON:  Updates to ARM 4.10.501(25), (34), (51), (53), (91), and (94) reflect the proposed change from a two-tiered licensing system to a one-tier licensing system for pesticide applicators.

 

FINANCIAL IMPACT:  There will be no financial impact regarding this rule change.

 

4.  Concerned persons may submit their data, views, or arguments concerning the proposed action either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to: Cort Jensen at the Montana Department of Agriculture, 303 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; telephone (406) 444-3144; fax: (406) 444-5409; or e-mail: [email protected], and must be received no later than 5:00 p.m. on March 25, 2010.

 

5.  Cort Jensen, Department of Agriculture, has been designated to preside over and conduct this hearing.

 

            6.  The Department of Agriculture maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request which includes the name, e-mail, and mailing address of the person and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to Montana Department of Agriculture, 303 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; fax: (406) 444-5409; or e-mail: [email protected] or may be made by completing a request form at any rules hearing held by the Department of Agriculture.

 

7.  An electronic copy of this Notice of Proposed Amendment is available through the department's web site at www.agr.mt.gov, under the Administrative Rules section.  The department strives to make the electronic copy of the Notice conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered.  In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

8.  The amendments to ARM 4.10.207 if adopted are intended to be retroactive to January 1, 2010 to avoid companies having to maintain two different types of records for the same calendar year.

 

            9.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

 

 

DEPARTMENT OF AGRICULTURE

 

 

 

 

/s/ Ron de Yong                                                  /s/ Cort Jensen                                       

Ron de Yong, Director                                        Cort Jensen, Rule Reviewer

 

Certified to the Secretary of State, February 16, 2010.