Summary of Proposed Pesticide Residue Removal Rulemaking
Why Would the Department Propose State Residue Removal Regulations?
Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 1) states must have an adequate residue removal program, in order to maintain their FIFRA authority for certification of pesticides applicators and primary pesticides enforcement; and 2) continuation of State certification and enforcement authorities hinges upon USEPA's determination of adequacy of the State's residue removal program. Certification and enforcement are long-standing, key components of the Department's pesticides program. To maintain the State's FIFRA authority in these areas, the Department is establishing the State's residue removal program. An essential component of that program is the promulgation of State regulations for residue removal, to conduct associated inspections and enforcement.
In August 2006, USEPA issued the Federal Pesticide Container and Containment Rule (40 CFR Part 156 - Labeling Requirements for Pesticides and Devices (revised), and Part 165 - Pesticide Management and Disposal (new)).1 That rule includes residue removal provisions for refillable and nonrefillable pesticide containers, which USEPA has identified as the procedures and standards for which states must have an adequate program. [NOTE: The federal rule also contains other requirements (e.g., container design, and pesticide containment facilities), which are not pertinent to this State rulemaking.] USEPA has stated that the residue removal requirements are intended to minimize human exposure to pesticides during container handling and to facilitate proper container disposal and recycling. This State rulemaking will codify those provisions in our pesticide management regulations.
What Requirements Will Be Covered in the State Rulemaking?
Three parts of the State's pesticides management regulations will be revised regarding residue removal standards: 6 NYCRR Parts 320 (Pesticides - General), 325 (Application of Pesticides), and 326 (Restricted Pesticides), in which the majority of provisions are expected to be included.
The proposed rulemaking will address three overall areas, which are summarized below. The specific provisions of 40 CFR Parts 156 and 165, which are referenced below, were identified by USEPA as those for which states must have an adequate residue removal program. Although not fully determined at this early stage, we expect that, for the most part, the Department's rulemaking will parallel the federal provisions.
Nonrefillable Pesticide Container Requirements (40 CFR Part 165 Subpart B)
The nonrefillable container residue removal standard in § 165.25(f) and the associated record keeping in § 165.27(b)(5):
- The nonrefillable container residue removal standard applies to dilutable pesticides (liquid & dry) in containers that are rigid and have capacities less than or equal to 5 gallons (liquids) or 50 pounds (solids).
- Each container/formulation combination meeting these criteria must be capable of attaining at least 99.99% removal using the prescribed testing procedure.
- Testing is only required for flowable concentrate formulations or if USEPA requests it on a case-by-case basis.
- If product is a flowable concentrate or if USEPA specifically requests testing on a case-by-case basis, registrants must keep records to show compliance with standard.
Repackaging Requirements (40 CFR Part 165 Subpart D)
Registrants must develop a residue removal procedure for cleaning refillable containers, provide it to refillers, and keep records of the procedure.
- Registrants must develop a written residue removal procedure [§§ 165.65(c)(1) & 165.67(f)(1)].
- Registrants must keep records of the residue removal procedure [§§ 165.65(i)(1)(i) & 165.67(h)(2)].
- Registrants must provide the written residue removal procedure to a refiller before or at the time of distribution or sale [§ 165.67(g)(i)].
Refillers must obtain the residue removal procedure for cleaning refillable containers and must keep records of it:
- The refiller must have the residue removal procedure before repackaging a pesticide [§§ 165.65(d)(5)(ii) & 165.70(e)(5)(iii)].
- The refiller must keep records of the residue removal procedure for the current operating year & for 3 years after that [§§ 165.65(d)(10), 165.65(i)(1)(i), 165.70(e)(10) & 165.70(j)(1)(ii)].
Refillers must clean refillable containers before repackaging pesticide into them, if cleaning is necessary.
- The refiller must clean a refillable container according to the residue removal procedure unless each tamper-evident device and one-way valve (if required) is intact and either of these conditions is met: (i) it is being refilled with the same pesticide product or (ii) the container previously held a pesticide with a single active ingredient, it is being repackaged with a pesticide with the same single active ingredient and there is no change that causes the repackaged pesticide to not meet the product integrity standard [§§ 165.65(d)(8), 165.65(f), 165.70(e)(8) & 165.70(g)].
- If a tamper-evident device or one-way valve is not intact, the refiller must clean the container using the residue removal procedure. Other procedures may also be necessary to ensure product integrity [§§ 165.65(d)(8), 165.65(g), 165.70(e)(8) & 165.70(h)].
Pesticide Container Labeling (40 CFR 156 Subpart H)
Registrants must ensure that the labels of nonrefillable and refillable containers have the required container cleaning instructions.
According to §§ 156.144 & 156.146, the cleaning instructions for nonrefillable containers must:
- Be placed under the heading "Storage and Disposal."
- Have a statement about rinsing the container promptly.
- Include triple rinsing instructions (sample language given) and may include pressure rinsing instructions (sample language given).
- Require that a registrant submit a request to USEPA if registrant wants to include instructions to rinse a container with a diluent other than water.
According to §§ 156.144 & 156.146, the cleaning instructions for refillable containers must:
- Be placed under the heading "Storage and Disposal."
- Have a statement on the timing of the rinsing procedure (e.g., before final disposal).
- Include instructions for cleaning each container before disposal, appropriate to characteristics of pesticide & adequate to protect human health and the environment.
What Will Be the Compliance Date?
Under the federal rule, nationwide, the regulated community must comply with the residue removal requirements by 2009 or 2011, depending upon the provision. By August 16, 2009: registrants must ensure that the labels of refillable and nonrefillable containers include the required cleaning instructions, pesticide users must empty and clean containers according to those label instructions, and registrants must ensure that certain nonrefillable containers are capable of attaining the 99.99% residue removal standard. By August 16, 2011, reigstrants must develop the residue removal procedure, provide it to refillers and keep records; refillers must obtain the procedure and keep records; refillers must clean refillable containers before repackaging, if necessary under the requirements. When the final State regulation is promulgated, the regulated community must comply with it; State compliance and enforcement measures will be associated with the final rule. Currently, the August 2009 is targeted to have the State regulation in place.
Under FIFRA Section 12(a)(2)(G), pesticide users must use pesticides in accordance with label directions; this includes following instructions for emptying and cleaning containers.
1NOTE: For detail on the federal rule and its specific requirements, see the August 16, 2006 Federal Register or visit their web site at: www.epa.gov/pesticides/regulating/containers.htm.
PLEASE PROVIDE YOUR INPUT TO NYSDEC
NYSDEC is seeking input on potential impacts on the regulated community of the proposed Department rulemaking. The NYSDEC Bureau of Pesticides Management has developed a questionnaire, to assist in providing that input to us. By July 30, 2007, please mail, e-mail, or fax to NYSDEC your completed questionnaire (PDF, 159 KB) and comments on the proposed rulemaking to:
Mary A. Roy
NSYDEC, Bureau of Pesticides Management
Albany, New York 12233-7254