RULES AND REGULATIONS
Title 7--AGRICULTURE
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 128b]
CHEMSWEEP Pesticide Disposal Program
[36 Pa.B. 3231]
[Saturday, July 1, 2006]The Department of Agriculture (Department) amends Chapter 128b (relating to CHEMSWEEP Pesticide Disposal Program) to read as set forth in Annex A.
Statutory Authority
This final-form rulemaking is adopted under the specific authority of the Secretary of Agriculture to promulgate appropriate regulations for the safe handling, transportation, storage, display, distribution and disposal of pesticides as set forth in section 7(b)(2) of the Pesticide Control Act of 1973 (act) (3 P. S. § 111.27(b)(2)).
Summary of Purpose
This final-form rulemaking amends and expands the existing CHEMSWEEP Pesticide Disposal Program (Program) to include the safe and effective disposal of all canceled, unused or suspended pesticides held by all citizens of this Commonwealth. The previous regulations regarding the Program were limited to agricultural production businesses and ''agricultural pesticides.''
Since its inception as a pilot program in 1992 and its subsequent promulgation as a regulatory Program in 1993 (see 23 Pa.B. 3933 (August 21, 1993)), the Program has had tremendous success in safely disposing of agricultural pesticides or other crop production chemicals in all counties throughout this Commonwealth. The express goal of the Program was, and continues to be, the prevention of toxic environmental releases and pollution of ground and surface water. As direct result of the Program's successes, the Department received numerous requests from pesticide dealers, distributors, commercial applicators and businesses to expand the Program and include nonagricultural pesticides.
In recent years, in conjunction with the Department of Environmental Protection (DEP), this Program has provided the citizens of this Commonwealth with an environmentally safe method for the disposal of household pesticide products. The Program continues to increase its collection and disposal percentages on a yearly basis. By participating in this Program, citizens of this Commonwealth can legally dispose of waste pesticides at no cost to them.
Funding for the Program continues to be derived from the Pesticide Restricted Account upon the recommendation of the Pesticide Advisory Board. Additional grant funds were received from the United States Environmental Protection Agency (EPA) to assist the Program for the year 2003 and beyond. The expansion of the Program to service additional pesticides and entities has not greatly increased the costs to the Program since the totals of agricultural pesticide inventories have been significantly decreased since 1993. The advent of the DEP alliance created the need to update the Program regulations to more accurately reflect the ongoing process and procedures.
Need for the Final-Form Rulemaking
The final-form rulemaking is needed to bring the existing Program regulations into compliance with the actual Program procedures.
Comments
Notice of proposed rulemaking was published at 35 Pa.B. 3940 (July 16, 2005) and provided for a 30-day public comment period. The only comments the Department received were from the Independent Regulatory Review Commission (IRRC). The Department's response to these comments follows:
Comment 1: For purposes of clarity, IRRC suggested that the reference in § 128b.1 (relating to authority and purpose) to ''Chapter 128a (relating to Chemsweep Pesticide Disposal Program--statement of policy)'' should be deleted since the statement of policy in Chapter 128a was superseded by Chapter 128b.
Response: The Department agrees with IRRC's suggestion and has deleted all references to Chapter 128a.
Comment 2: In § 128b.2 (relating to definitions), IRRC had several concerns with the proposed definition of ''person'' and two new proposed phrases in that definition--''citizen of this Commonwealth'' and ''doing business in this Commonwealth.'' IRRC believes that the two new phrases are unnecessary since § 128b.6(b) (relating to eligibility of persons to participate) establishes the conditions for eligibility. IRRC suggested that the Department either reference the statutory definition of ''person'' or incorporate that definition verbatim in the final-form rulemaking.
Additionally, in § 128b.6(b) IRRC suggested that the Department use the word ''person'' instead of ''individuals, corporations, associations or other forms of business entities'' since those entities are already included within the definition of ''person.'' Lastly, IRRC suggested that the Department list the substantive requirements for eligibility.
Response: The Department agrees with IRRC's comments and has implemented the appropriate changes to the definition of ''person'' that will be repeated verbatim from the definition in section 4(29) of the act (3 P. S. § 111.24(29)). The Department has also implemented the change to § 128b.6(b) by deleting the phrase ''individuals, corporations, association or other forms of business entities'' and replacing it with ''persons.''
The Department, however, did not agree with IRRC's suggestion to list ''the substantive requirements for eligibility'' in § 128b.6. The Department believes that the existing criteria in paragraphs (1) and (2) are sufficient and will keep the Program as flexible and inclusive for the citizens of this Commonwealth, without the need for further paperwork by the citizens. Accordingly, the Department has elected not to implement that suggested change.
Comment 3: IRRC suggested that the word ''may'' in § 128b.3 (relating to selection of participating counties) be replaced with the word ''will'' in accordance with the Pennsylvania Code & Bulletin Style Manual.
Response: The recommendation has been implemented in the final-form rulemaking as suggested.
Comment 4: IRRC suggested that § 128b.4 (relating to limitation of the number of participating counties) should indicate that 21 is the ''minimum'' number of counties that the Department initially selects for participation in the Program.
Response: The Department typically selects up to three counties per region of this Commonwealth to participate in the annual Program by soliciting pesticide inventory information and responses from pesticide applicators/dealers by mail. The Department has consistently used 21 as the maximum number of counties because of logistical and budgetary issues and constraints. However, when an emergency situation arises, the Department has in the past allowed more than 21 counties to participate in the Program. The Department wants to maintain that programmatic flexibility and discretion to allow more than 21, and in some instances, allow less than 21 counties to participate. By way of example, in 2006 less than 21 counties sought to participate in the Program. The Department does not believe having a minimum of 21 is appropriate and therefore, the Department declines to implement this suggestion.
Comment 5: Regarding, IRRC suggested that the Department, in its final-form rulemaking, amend § 128b.7(b)(12) (relating to preregistration application) to provide examples of what documents or information could be used by an applicant to provide ''verification.''
Response: After review and consideration of IRRC's comment, instead of providing ''verification'' examples, the Department has elected to delete subsection (b)(12), since the Department believes the information in paragraphs (1)--(11) evidences the person's eligibility and is, by itself, sufficient verification. The Department has implemented that change to the final-form rulemaking.
Comment 6: Section 128b.8(c) (relating to preregistration process) provides that the Department has discretion to accept a preregistration application form beyond the 90-day preregistration period. IRRC suggested that the final-form rulemaking should indicate whether an applicant may request an extension and when and how a request can be made.
Response: The Department, in keeping with the informal and relaxed procedures of this section, accepts all preregistration applications even those beyond the 90-day preregistration period. The initial 90-day period is to assist the Department in planning the logistics of a collection event with the contractor at applicable sites. As presently drafted, the applicant need not make any further written request for an extension. The applicant simply has to submit a completed inventory form, which the Department will consider, even after the 90-day cutoff date. Historically, the limited number of preregistration extensions has not impeded any collection event. Therefore, the Department believes that, in accordance with the general intent (safe collection and disposal) of the Program, no further procedural or paperwork requirements should be imposed upon preregistration applicants. Accordingly, the Department declines to implement this suggestion.
Comment 7: IRRC has two concerns with § 128b.12 (relating to program limitations). First, IRRC suggested the Department clarify that there is no charge to the Program participant for the first 2,000 pounds of pesticides collected. Second, IRRC is concerned with the last sentence of this section in which the ''Department reserves the right to accept any excess pesticides . . . when deemed necessary by the Department.'' IRRC clearly recognized the Department's authority and discretion in this matter, but nevertheless suggested that the Department include criteria which it would use to determine whether the Department will accept additional pounds of pesticides beyond the maximum 2,000 pounds.
Response: As to IRRC's first comment, by way of various letters, notices and publications during the preregistration process program, participants are informed that there is no charge to participants for the first 2,000 pounds of pesticides collected. However, the Department would like to maintain the flexibility to charge a fee in the future depending upon the circumstances. Accordingly, the Department believes the regulation is sufficiently clear.
As to IRRC's second suggestion, the Department has included the criteria for the acceptance of excess poundage beyond the maximum amount.
Comment 8: IRRC believes that the word ''would'' in § 128b.14(b)(3) (relating to bid specifications) could allow the pesticide contractor to deviate from the written, detailed description required with the bid specifications. IRRC suggested that the term be changed to ''shall.''
Response: The Department shares IRRC's concern with the language in subsection (b)(3) and has implemented the change in the final-form rulemaking.
Comment 9: IRRC questions the need for general references to laws or regulations which apply to pesticide disposal contractors in § 128b.14(b)(4) and §§ 128b.10(a) and 128b.16 (relating to responsibilities of applicant or participant; and central-site). IRRC suggests that as long as approval by DEP and the EPA is required for pesticide disposal contractors, there does not seem to be any need for the general references to other ''laws and regulations.''
Response: The Department does not completely agree with IRRC's conclusion that because contractors must comply with DEP and EPA laws and regulations to maintain their licensure or permits, or both, there is no need for references to ''other laws and regulations'' in the final-form rulemaking. The Department has no way of determining the vast number of potential Federal, State or local laws which may be applicable to pesticide contractors and certainly no way of citing to each statutory or regulatory provision. Nevertheless, the Department will implement the suggested changes and delete the general references to ''other laws and regulations,'' since the Department believes that in the Request for Bid process contractors sign a statement of assurance that they will comply with all applicable laws or regulations, or both.
Fiscal Impact
Commonwealth. The Department has determined that the final-form rulemaking will have little or no adverse financial impact on the Commonwealth since all funds budgeted for the Program are derived from the Pesticide Restricted Account. The funds in the Pesticide Restricted Account are obtained from licensing, permitting and registration fees and civil penalties placed upon pesticide manufacturers, dealers and applicators doing business within this Commonwealth. However, there could be a significant savings since the costs associated with the remediation of an environmental spill or exposure far outweigh the costs associated with administering the Program.
Political Subdivisions. The final-form rulemaking will impose no costs and have no adverse fiscal impact on political subdivisions.
Private Sector. The final-form rulemaking will have no adverse fiscal impact on the private sector. However, the final-form rulemaking will likely reduce costs to the private sector for the individual disposals costs of canceled, unused and suspended pesticides within this Commonwealth.
General Public. The final-form rulemaking will not impose any costs and will have no adverse fiscal impact on the general public. The Department believes there will be a positive impact upon the general public in that the Program will continue to help remove canceled, unused or suspended pesticides presently in this Commonwealth.
Paperwork Requirements
The final-form rulemaking will not appreciably increase the paperwork burden of the Department or other government units or citizens.
Sunset Date
There is no sunset date for the regulations. The Department will review the efficacy of the regulations on an ongoing basis.
Contact Person
Further information is available by contacting the Department of Agriculture, Bureau of Plant Industry, 2301 N. Cameron Street, Harrisburg, PA 17110-9408; Attention: Phillip Pitzer, (717) 772-5206.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on July 6, 2005, the Department submitted a copy of the notice of proposed rulemaking, published at 35 Pa.B. 3940, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on May 31, 2006, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 1, 2006, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) The amendments that were made to this final-form rulemaking in response to comments received do not enlarge the purpose of the proposed rulemaking published at 35 Pa.B. 3940.
(4) The adoption of the final-form rulemaking in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under authority of the authorizing statute, orders that:
(a) The regulations of the Department, 7 Pa. Code Chapter 128b, are amended by amending §§ 128b.4, 128b.8, 128b.9, 128b.11, 128b.13, 128b.15, 128b.17 and 128b.18 to read as set forth at 35 Pa.B. 3940; and by amending §§ 128b.1--128b.3, 128b.6, 128b.7, 128b.10, 128b.12, 128b.14 and 128b.16 to read as set forth in Annex A.
(b) The Secretary of Agriculture shall submit this order, 35 Pa.B. 3940 and Annex A to the Office of General Counsel and to the Office of Attorney General for approval as required by law.
(c) The Secretary of Agriculture shall certify this order, 35 Pa.B. 3940 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
DENNIS C WOLFF,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa.B. 3051 (June 17, 2006).)
Fiscal Note: Fiscal Note 2-143 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 7. AGRICULTURE
PART V. BUREAU OF PLANT INDUSTRY
CHAPTER 128b. CHEMSWEEP PESTICIDE DISPOSAL PROGRAM § 128b.1. Authority and purpose.
(a) Under the authority granted it under the act, the Department establishes a pesticide disposal program to be designated as ''CHEMSWEEP.'' This Program will allow the Department to identify and quantify canceled, unused or suspended pesticides held, owned or possessed by citizens of this Commonwealth. The information derived from this inventory shall be used in the solicitation of bids from hazardous waste disposal contractors for the safe collection, transportation and disposal of the pesticides.
(b) This Program will be conducted within counties which are designated by the Department each year.
(c) By addressing the pesticide disposal needs of Commonwealth citizens, the Program addresses the needs of persons who have accumulated and stored chemicals in this Commonwealth with the potential to affect the environment and human safety. Citizens of this Commonwealth currently lack an available, economical, environmentally sound, and effective means of disposing of potentially hazardous pesticides.
§ 128b.2. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Pennsylvania Pesticide Control Act of 1973 (3 P. S. §§ 111.21--111.61).
Agricultural commodities--Agricultural, horticultural, viticultural and dairy products, livestock and the products thereof, ranch raised fur bearing animals and the products thereof, the products of poultry and bee raising, forestry and forestry products, and products raised or produced on farms intended for human consumption and the processed or manufactured products thereof intended for human consumption, transported or intended to be transported in commerce.
Applicant--A person who owns, holds or possesses pesticides within a participating county and who has filed a Program preregistration application form with the Department.
Central-site pesticide collection--The collection by a contractor of a portion of the pesticide inventory of a participating county from a site to which two or more participants have transported their pesticides for collection.
Certified applicator--An individual who is certified by the Department under section 16.1, 17 or 17.1 of the act (3 P. S. §§ 111.36a, 111.37 and 111.37a) as being competent to use or supervise the use or application of a pesticide.
Commercial applicator--A certified applicator, whether or not the applicator is a private applicator with respect to some uses, who uses or supervises the use of a pesticide on the property or premises of another, or on easements granted under State law, or an applicator who uses or supervises the use of a restricted use pesticide on property owned or rented by him or his employer, when not for purposes of producing an agricultural commodity. The Secretary may deem certain types of applicators using a pesticide on their own property or that of their employers as commercial applicators.
Contractor--A person engaged in the business of collecting, packing, transporting and disposing of hazardous waste, who is contractually obligated, through the Program, to collect, pack, transport and dispose of the pesticide inventory of a participating county.
Department--The Department of Agriculture of the Commonwealth.
Emergency situation--An unforeseen or unexpected circumstance involving pesticides that requires immediate action to protect the public health, safety, environment, or general welfare in this Commonwealth.
EPA--The Environmental Protection Agency of the United States.
Onsite pesticide collection--The collection by a contractor of a portion of the pesticide inventory of a participating county from the site, usually a farm, at which it is stored by a participant.
Participating county--A county designated by the Department to participate in the CHEMSWEEP Program.
Participant--An applicant whose application has been accepted by the Department and whose pesticides are the subject of a disposal contract between the Department and a contractor.
Person--An individual, partnership, association, corporation or any organized group of persons whether incorporated or not.
Pesticide--A substance or mixture of substances intended for preventing, destroying, repelling or mitigating a pest, and a substance or mixture of substances intended for use as a plant regulatory, defoliant or desiccant.
Pesticide dealer--A person who distributes or offers for sale pesticides which are classified for restricted use under the act.
Pesticide inventory--The compilation of information with respect to the identification, quantification and safety of pesticides held by a participant within a particular participating county.
Private applicator--A certified applicator who uses or supervises the use of a pesticide which is classified for restricted use for purposes of producing an agricultural commodity on property owned or rented by the applicator or the applicator's employer or, if applied without compensation other than trading of personal services between producers of agricultural commodities, on the property of another person.
Program--The CHEMSWEEP Pesticide Disposal Program.
Secretary--The Secretary of the Department.
USDA--The United States Department of Agriculture.
§ 128b.3. Selection of participating counties.
(a) County participation. The Department will conduct the Program yearly in selected counties of this Commonwealth.
(b) Selection criteria. In selecting the counties to participate in the Program during a particular fiscal year, the Department will consider:
(1) The amount of funds available for the use of the Program.
(2) The availability of support from agricultural agencies and local governments within the county.
(3) The proximity of the county to other counties selected to participate in the Program in that particular fiscal year.
(4) The environmental or health risks posed by the pesticide inventory of a particular county.
(5) Other factors relevant to the selection of the county on economic, environmental or safety grounds.
§ 128b.6. Eligibility of persons to participate.
(a) Requirements. To be eligible to be considered for participation in the Program, a person shall meet the following requirements:
(1) Hold, own or possess pesticides that are or have been registered for sale and use within this Commonwealth.
(2) Hold, own or possess the pesticides within a participating county.
(b) Exclusions. Empty pesticide containers may not be accepted for disposal. Persons not located within this Commonwealth are not eligible for participation in the Program.
§ 128b.7. Preregistration application.
(a) Application required. A person who seeks to participate in the Program shall complete and file with the Department a preregistration application form.
(b) Mandatory information. The Department will develop a Program preregistration application form, and will provide prospective applicants with the form upon request. The form will require that an applicant provide the following information, when known and applicable, with respect to each pesticide for which disposal is sought:
(1) The compound or trade name of the pesticide.
(2) The active ingredient or common name of the pesticide.
(3) The EPA registration number of the pesticide.
(4) The United States Department of Agriculture (USDA) registration number of the pesticide.
(5) The type of formulation of the pesticide.
(6) The type of container of the pesticide.
(7) The number of containers of the pesticide.
(8) The condition of the container holding the pesticide.
(9) The total quantity of the pesticide.
(10) The exact location of the pesticide.
(11) The name, address and telephone number of the applicant.
(c) Incomplete information. If an applicant cannot ascertain the identity of a particular pesticide in its possession, or provide other applicable information required by subsection (b), the applicant shall state on the preregistration application form as much information relating to the particular pesticide as is known to the applicant. The Department will then endeavor to obtain the information which the applicant was unable to provide. If the applicable information required by subsection (b) cannot be readily obtained with respect to a particular pesticide, the Department may obtain a sample for analysis, providing that the quantity of pesticide exceeds either 50 pounds or 5 gallons. If no pesticides are found in the sample through analysis, the Department may refuse to accept the product for disposal.
(d) Additional information. The Department may require that an applicant provide additional information, which the Department deems relevant to its evaluation of a preregistration application.
(e) Exception to preregistration. A person who participates in a household hazardous waste jointly sponsored by the Department and DEP will be exempt from the preregistration portion of this section.
§ 128b.10. Responsibilities of applicant or participant.
(a) Generally. An applicant or participant is responsible for the safe storage of pesticides held, owned or possessed by the applicant or participant. This exclusive responsibility does not lapse with the filing of a preregistration application, with an inspection of the pesticide or pesticide storage area or with the notice of acceptance of the pesticide for disposal through the Program as described in § 128b.15 (relating to notification of participants). Action by the Department does not relieve the applicant or participant of the responsibility to store pesticides in a safe and lawful manner. With respect to central-site pesticide collection, the participant shall retain sole responsibility for the safe transport of pesticides and for the cleanup, if necessary, of the site at which the pesticide was stored. With respect to onsite pesticide collection, the contractor is responsible for the cleanup, if necessary, of the site at which the pesticide was stored. The contractor is responsible for property damage, personal injuries and the cleanup of spills or other contamination which it causes. The contractor will not be responsible for the clean up of any areas outside of the site at which the pesticides are stored.
(b) Right to withdraw. An applicant or participant may withdraw from the Program at any time.
§ 128b.12. Program limitations.
(a) The Department will accept a maximum of 2,000 pounds of pesticide for disposal from any one participant annually. The participant may pay the contractor directly for collection, transport and disposal of pesticides in excess of 2,000 pounds at the Commonwealth's contract price. The Department reserves the right to accept any excess pesticides or renegotiate acceptable poundage when deemed necessary by the Department.
(b) Criteria for acceptance or renegotiation of excess acceptable poundage when deemed necessary by the Department will include the following:
(1) Quantity of excess over 2,000 pounds.
(2) Condition of pesticides or containers to be collected.
(3) Location and condition of storage area.
(4) Ability of participant to pay for excess poundage.
§ 128b.14. Bid specifications.
(a) General. After the Department completes its compilation of the pesticide inventory for a particular participating county, it shall develop bid specifications for use in contracting for the disposal of the pesticide inventory. The Department may make the pesticide inventories of two or more participating counties the subject of a single disposal contract.
(b) Contractor qualifications. The bid specifications for the collection, packing, transportation and disposal of a pesticide inventory shall require that the following requirements are met:
(1) A contractor shall be approved by the EPA to collect, handle, transport and dispose of hazardous materials.
(2) A contractor shall be approved by the Department of Environmental Protection to collect, handle, transport and dispose of hazardous materials.
(3) A contractor shall provide a written, detailed description of the procedures which it shall use in collection, packing, transportation, and disposal of the pesticide inventory, including packing procedures, transportation methods, selection of pesticide collection sites, disposal sites and methods of disposal, including a description of required State and Federal permits and documentation necessary to accomplish disposal.
(4) A contractor shall handle, collect, pack, transport and dispose of pesticides, in compliance with the written description provided the Department.
(5) A contractor shall provide a specific time within which it shall complete its work under the contract.
(c) The bid specification in subsection (b) shall contain other requirements the Department deems appropriate.
(d) Pesticide collection options. The Department may solicit bids for several different pesticide collection options: The Department may require that participants arrange for the safe transportation of their pesticides to a central site from which the contractor shall collect, pack, transport and dispose of the pesticides, or the Department may require that the contractor collect, pack, transport and dispose of pesticides from the individual storage locations throughout the participating county, or the Department may require that a contractor employ a combination of onsite pesticide collection and central-site pesticide collection. Regardless of the pesticide collection options with respect to which the Department solicits bids, the contractor shall perform onsite pesticide collection when required under § 128b.17 (relating to conditions requiring on-farm pesticide collection).
§ 128b.16. Central-site.
Although the Department will assist the contractor in obtaining a central site for pesticide collection prior to transportation and disposal, the decision whether to use a particular site for pesticide collection is exclusively the contractor's. The contractor is responsible for establishing, insuring and operating the site and is responsible in the event of a pesticide spill or other environmentally-impacting incident which gives rise to legal liability.
[Pa.B. Doc. No. 06-1198. Filed for public inspection June 30, 2006, 9:00 a.m.]
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