Section 150. Refillers who are not registrants

A. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part IV of this chapter as described in 2VAC5-690-120 A through G.

B. A refiller of a pesticide product that is not the registrant of the pesticide product must comply with the standards in this section.

C. A registrant may allow a refiller to repackage the registrant's pesticide product into refillable containers and to distribute or sell such repackaged product under the registrant's existing registration if all of the following conditions are satisfied:

1. The repackaging results in no change to the pesticide formulation.

2. One of the following conditions regarding a registered refilling establishment is satisfied:

a. The pesticide product is repackaged at a refilling establishment registered with EPA as required by 40 CFR 167.20.

b. The pesticide product is repackaged by a refilling establishment registered with EPA as required by 40 CFR 167.20 at the site of a user who intends to use or apply the product.

3. The registrant has entered into a written contract with the refiller to repackage the pesticide product and to use the label of the registrant's pesticide product.

4. The pesticide product is repackaged only into refillable containers that meet the standards of Part III (2VAC5-690-70 et seq.) of this chapter.

5. The pesticide product is labeled with the product's label with no changes except the addition of an appropriate net contents statement and the refiller's EPA establishment number.

D. Repackaging a pesticide product for distribution or sale without either obtaining a registration or meeting all of the conditions in subsection C of this section is a violation of § 12 of FIFRA (7 USC § 136j). Both the refiller and the pesticide product's registrant may be liable for violations pertaining to the repackaged product.

E. A refiller is responsible for the pesticide product that the refiller distributes or sells in refillable containers not being adulterated or different from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a).

F. A refiller must comply with all of the following provisions.

1. The refiller's establishment must be registered with EPA as a producing establishment as required by 40 CFR 167.20.

2. The refiller must not change the pesticide formulation unless the refiller has a registration for the new formulation.

3. The refiller must repackage a pesticide product only into a refillable container that is identified on the description of acceptable containers for that pesticide product provided by the registrant.

4. The refiller may repackage any quantity of a pesticide product into a refillable container up to the rated capacity of the container. In addition, there are no general limits on the size of the refillable containers that the refiller can use.

5. The refiller must have all of the following items at the refiller's establishment before repackaging a pesticide product into any refillable container for distribution or sale:

a. The written contract referred to in subdivision C 3 of this section from the pesticide product's registrant;

b. The pesticide product's label and labeling;

c. The registrant's written refilling residue removal procedure for the pesticide product; and

d. The registrant's written description of acceptable containers for the pesticide product.

6. Before repackaging a pesticide product into any refillable container for distribution or sale, the refiller must identify the pesticide product previously contained in the refillable container to determine whether a residue removal procedure must be conducted in accordance with subsection H of this section. The refiller may identify the previous pesticide product by referring to the label or labeling.

7. The refiller must inspect each refillable container according to subsection G of this section.

8. The refiller must clean each refillable container according to subsection H or I of this section, if required by either subsection.

9. The refiller must ensure that each refillable container is properly labeled according to subsection J of this section.

10. The refiller must maintain records in accordance with subsection K of this section.

11. The refiller must maintain records as required by 40 CFR Part 169.

12. The refiller must report as required by 40 CFR Part 167.

13. The stationary pesticide containers at the refiller's establishment must meet the standards in 2VAC5-690-90 G.

14. The refiller may be required to comply with the containment standards in Part V (2VAC5-690-160 et seq.) of this chapter.

G. Before repackaging a pesticide product into any refillable container, a refiller must visually inspect the exterior and (if possible) the interior of the container and the exterior of appurtenances. The purpose of the inspection is to determine whether the container meets the necessary criteria with respect to continued container integrity, required markings, and openings. If the condition in subdivision 1 of this subsection exists, the container fails the inspection and must not be refilled unless the container is repaired, reconditioned, or remanufactured in compliance with the relevant USDOT requirement. If the condition in subdivision 2 or 3 of this subsection (or both) exists, the container fails the inspection and must not be refilled until the container meets the standards specified in Part III (2VAC5-690-70 et seq.) of this chapter. The conditions are the following:

1. The integrity of the container is compromised in at least one of the following ways:

a. The container shows signs of rupture or other damage that reduces its structural integrity;

b. The container has visible pitting, significant reduction in material thickness, metal fatigue, damaged threads or closures, or other significant defects;

c. The container has cracks, warpage, corrosion, or any other damage that might render it unsafe for transportation; or

d. There is damage to the fittings, valves, tamper-evident devices, or other appurtenances that may cause failure of the container.

2. The container does not bear the markings required by 2VAC5-690-90 B through E, or such markings are not legible.

3. The container does not have an intact and functioning one-way valve or tamper-evident device on each opening other than a vent, if required.

H. A refiller must clean each refillable container by conducting the pesticide product's refilling residue removal procedure before repackaging the pesticide product into the refillable container, unless the conditions in subdivisions 1 and either 2 or 3 of this section are satisfied.

1. If required, each tamper-evident device and one-way valve is intact.

2. The refillable container is being refilled with the same pesticide product.

3. Both of the following conditions are satisfied.

a. The container previously held a pesticide product with a single active ingredient and is being used to repackage a pesticide product with the same single active ingredient.

b. There is no change that would cause the composition of the product being repackaged to differ from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a). Examples of unallowable changes include the active ingredient concentration increasing or decreasing beyond the limits established by the confidential statement of formula or a reaction or interaction between the pesticide product being repackaged and the residue remaining in the container.

I. As required in subsection H of this section, a refiller must clean each refillable container that has a tamper-evident device that is not intact or one-way valve that is not intact by conducting the pesticide product's refilling residue removal procedure before repackaging the pesticide product into the refillable container. In addition, other procedures may be necessary to assure that product integrity is maintained in such cases.

J. Before distributing or selling a pesticide product in a refillable container, a refiller must ensure that the label of the pesticide product is securely attached to the refillable container such that the label can reasonably be expected to remain affixed during the foreseeable conditions and period of use. The label and labeling must comply in all respects with the requirements of 40 CFR Part 156. In particular, a refiller must ensure that the net contents statement and EPA establishment number appear on the label.

K. A refiller must maintain all of the records listed in this section in addition to the applicable records identified in 40 CFR Part 167 and 40 CFR Part 169. A refiller must furnish these records for inspection and copying within 72 hours of request by an employee of VDACS.

1. For each pesticide product distributed or sold in refillable containers, all of the following records must be maintained for the current operating year and for three years after that:

a. The written contract from the pesticide product's registrant for the pesticide product;

b. The written refilling residue removal procedure for the pesticide product; and

c. The written description of acceptable containers for the pesticide product.

2. Each time a refiller repackages a pesticide product into a refillable container and distributes or sells the product, the following records must be generated and maintained for at least three years after the date of repackaging:

a. The EPA registration number of the pesticide product distributed or sold in the refillable container;

b. The date of the repackaging; and

c. The serial number or other identifying code of the refillable container.

Historical Notes

Derived from Volume 30, Issue 06, eff. January 2, 2014.

Statutory Authority

§ 3.2-3906 of the Code of Virginia; 40 CFR Part 165.