2VAC5-690 Regulations for Pesticide Containers and Containment under Authority of the Virginia Pesticide Control Act

REGULATIONS
Vol. 30 Iss. 6 - November 18, 2013

TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Chapter 690

Fast-Track Regulation

Title of Regulation: 2VAC5-690. Regulations for Pesticide Containers and Containment under Authority of the Virginia Pesticide Control Act (adding 2VAC5-690-10 through 2VAC5-690-240).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 18, 2013.

Effective Date: January 2, 2014.

Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-1308, FAX (804) 371-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board that may adopt regulations in accordance with Title 3.2 of the Code of Virginia.

Section 3.2-3906 of the Code of Virginia authorizes the board to adopt regulations that are necessary to carry out the purposes of Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia regarding pesticides. This authority is discretionary.

Purpose: Regulatory standards and requirements for pesticide containers, repackaging pesticides, and pesticide containment structures are essential to protect the environment from potential contamination resulting from accidental pesticide discharges. The enforcement of the current federal regulations utilizing the federal credentials issued to Virginia's pesticide investigators by the U.S. Environmental Protection Agency (EPA) is sufficient to demonstrate compliance with the federal rule. However, the promulgation of Virginia's own regulations would allow more flexibility and greater discretion in the enforcement of pesticide container and containment requirements based on Virginia's unique needs and conditions, thereby benefiting the welfare of the regulants subject to the provisions of this regulation. The health, safety, and welfare of Virginians would not be adversely impacted because the proposed regulations are equivalent to those currently in place at the federal level. Moreover, the enforcement of a state pesticide container and containment regulation would be more cost effective because, under the proposed regulations, investigators would be able to perform container and containment inspections in conjunction with other inspection activities at all applicable sites.

Rationale for Using Fast-Track Process: Department staff expects the regulations will be noncontroversial because the requirements are identical to those of Part 165 of Title 40 of the Code of Federal Regulations, Pesticide Management and Disposal, with which industry is already expected to comply. Since the finalization of the federal regulations, the Department of Agriculture and Consumer Services has provided compliance assistance to the approximately 50 pesticide businesses that are required to comply with its provisions.

Substance: These regulations establish standards for (i) container design and residue removal for nonrefillable pesticide containers, (ii) container design for refillable pesticide containers, (iii) repackaging pesticide products into refillable containers, and (iv) pesticide containment structures. The regulations establish standards for both the registrant of a pesticide product and the refiller who repackages a pesticide product. The regulations also establish recordkeeping requirements.

Issues: The promulgation of Virginia's own regulations will allow more flexibility and greater discretion in the enforcement of pesticide container and containment requirements based on Virginia's unique needs and conditions. This additional flexibility and discretion will be an advantage to both regulants and the agency.

The regulations pose no disadvantages to the public or the Commonwealth as the regulations are equivalent to federal regulations that are currently in place.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Part 165 of Title 40 of the Code of Federal Regulations, Pesticide Management and Disposal, establishes standards for container design and residue removal in non-refillable pesticide containers, standards for container design in refillable pesticide containers, standards for repackaging pesticide products into refillable containers, and standards for pesticide containment structures. The Board of Agriculture and Consumer Services proposes to promulgate equivalent regulations.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. According to the Virginia Department of Agriculture and Consumer Services (Department), the enforcement of the current federal regulations utilizing the federal credentials issued to Virginia's pesticide investigators by the U.S. Environmental Protection Agency (EPA) is sufficient to demonstrate compliance with the federal rule. However, the promulgation of Virginia's own regulations would allow more flexibility and greater discretion in the enforcement of pesticide container and containment requirements based on Virginia's unique needs and conditions. The health, safety, and welfare of Virginians would not be adversely affected because the proposed regulations are equivalent to those currently in place at the federal level. Moreover, the enforcement of a state pesticide container and containment regulation would be more cost-effective since under the proposed regulations, investigators would be able to perform container and containment inspections in conjunction with other inspection activities at all applicable sites.

It is a violation of EPA policy for state investigators, during the same visit to any given facility, to conduct any type of pesticide inspection not related to the container and containment inspection being conducted under the investigator's federal credentials. With 50 regulated sites in Virginia that receive a state inspection and a container and containment inspection once a year, the proposed regulations would enable a reduction in duplicative travel that the Department anticipates will result in savings of approximately $20,000. Additionally, compliance actions under a state pesticide container and containment regulation will be processed more quickly and in accordance with Virginia-specific administrative processes and penalty matrix. The federal compliance process can be lengthy, often taking a year or longer to reach resolution.

Businesses and Entities Affected. Pesticide registrants, retailers, distributors, commercial applicators, custom blenders, and end-users may all be affected by the proposed regulations. The Department estimates that approximately 50 facilities will be required to comply with the proposed regulations, the vast majority of these facilities being small businesses.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The promulgation of these regulations will not significantly affect employment.

Effects on the Use and Value of Private Property. The promulgation of these regulations will not significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The promulgation of these regulations will not significantly affect costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The promulgation of these regulations will not adversely affect small businesses.

Real Estate Development Costs. The promulgation of these regulations will not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget.

Summary:

The regulations establish standards for (i) container design and residue removal in nonrefillable pesticide containers, (ii) container design in refillable pesticide containers, (iii) repackaging pesticide products into refillable containers, and (iv) pesticide containment structures. The regulations also establish recordkeeping requirements. The regulations are equivalent to federal regulations located at 40 CFR Part 165, Pesticide Management and Disposal.

CHAPTER 690
REGULATIONS FOR PESTICIDE CONTAINERS AND CONTAINMENT UNDER AUTHORITY OF THE VIRGINIA PESTICIDE CONTROL ACT

2VAC5-690-10. Scope.

This chapter establishes standards and requirements for pesticide containers, repackaging pesticides, and pesticide containment structures.

2VAC5-690-20. Definitions.

Terms used in this chapter have the same meaning as in the Federal Insecticide, Fungicide, Rodenticide Act (7 USC § 136 et seq.) and 40 CFR Part 152. In addition, as used in this chapter, the following terms shall have the meanings set forth below.

"Agricultural pesticide" means any pesticide product labeled for use in or on a farm, forest, nursery, or greenhouse.

"Appurtenance" means any equipment or device that is used for the purpose of transferring a pesticide from a stationary pesticide container or to any refillable container, including but not limited to hoses, fittings, plumbing, valves, gauges, pumps, and metering devices.

"Capacity" means, as applied to containers, the rated capacity of the container.

"CFR" means the Code of Federal Regulations.

"Container" means any package, can, bottle, bag, barrel, drum, tank, or other containing-device (excluding any application tanks) used to enclose a pesticide. Containers that are used to sell or distribute a pesticide product and that also function in applying the product (such as spray bottles, aerosol cans, and containers that become part of a direct injection system) are considered to be containers for the purposes of this chapter.

"Containment pad" means any structure that is designed and constructed to intercept and contain pesticides, rinsates, and equipment washwater at a pesticide dispensing area.

"Containment structure" means either a secondary containment unit or a containment pad.

"Custom blending" means the service of mixing pesticides to a customer's specifications, usually a pesticide-fertilizer, pesticide-pesticide, or a pesticide-animal feed mixture, when:

1. The blend is prepared to the order of the customer and is not held in inventory by the blender;

2. The blend is to be used on the customer's property (including leased or rented property);

3. The pesticides used in the blend bear end-use labeling directions that do not prohibit use of the product in such a blend;

4. The blend is prepared from registered pesticides; and

5. The blend is delivered to the end-user along with a copy of the end-use labeling of each pesticide used in the blend and a statement specifying the composition of the mixture.

"Dilutable" means that the pesticide product's labeling allows or requires the pesticide product to be mixed with a liquid diluent prior to application or use.

"Dry pesticide" means any pesticide that is in solid form and that has not been combined with liquids; this includes formulations such as dusts, wettable powders, dry flowables, water-soluble powders, granules, and dry baits.

"EPA" means the U.S. Environmental Protection Agency.

"Establishment" means any site where a pesticidal product, active ingredient, or device is produced, regardless of whether such site is independently owned or operated, and regardless of whether such site is domestic and producing a pesticidal product for export only, or whether the site is foreign and producing any pesticidal product for import into the United States.

"Facility" means all buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person (or by any person who controls, who is controlled by, or who is under common control with such person).

"FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136 et seq.).

"Nonrefillable container" means a container that is not a refillable container and that is designed and constructed for one-time use and is not intended to be filled again with a pesticide for sale or distribution. Reconditioned containers are considered to be nonrefillable containers.

"One-way valve" means a valve that is designed and constructed to allow virtually unrestricted flow in one direction and no flow in the opposite direction, thus allowing the withdrawal of material from, but not the introduction of material into, a container.

"Operator" means any person in control of, or having responsibility for, the daily operation of a facility at which a containment structure is located.

"Owner" means any person who owns a facility at which a containment structure is required.

"Pesticide compatible as applied to containers" means that the container construction materials will not chemically react with the formulation. A container is not compatible with the formulation if, for example, the formulation:

1. Is corrosive to the container;

2. Causes softening, premature aging, or embrittlement of the container;

3. Otherwise causes the container to weaken or to create the risk of discharge;

4. Reacts in a significant chemical, electrolytic, or galvanic manner with the container; or

5. Interacts in a way, such as the active ingredient permeating the container wall, that would cause the formulation to differ from its composition as described in the statement required in connection with its registration under § 3 of FIFRA (7 USC § 136a).

"Pesticide compatible as applied to containment" means that the containment construction materials are able to withstand anticipated exposure to stored or transferred substances without losing the capability to provide the required containment of the same or other substances within the containment area.

"Pesticide dispensing area" means an area in which pesticide is transferred out of or into a container.

"Portable pesticide container" means a refillable container that is not a stationary pesticide container.

"Produce" means to manufacture, prepare, propagate, compound, or process any pesticide, including any pesticide produced pursuant to § 5 of FIFRA (7 USC § 136c), and any active ingredient or device, or to package, repackage, label, relabel, or otherwise change the container of any pesticide or device.

"Producer" means any person, as defined by FIFRA, who produces any pesticide, active ingredient, or device (including packaging, repackaging, labeling, and relabeling).

"Refillable container" means a container that is intended to be filled with pesticide more than once for sale or distribution.

"Refiller" means a person who engages in the activity of repackaging pesticide product into refillable containers. This could include a registrant or a person operating under contract to a registrant.

"Refilling establishment" means an establishment where the activity of repackaging pesticide product into refillable containers occurs.

"Registrant" means the person registering any pesticide pursuant to the provisions of Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.

"Repackage" means to transfer a pesticide formulation from one container to another without a change in the composition of the formulation, the labeling content, or the product's EPA registration number for sale or distribution.

"Rinsate" means the liquid resulting from the rinsing of the interior of any equipment or container that has come in direct contact with any pesticide.

"Runoff" means any liquid leaving the target site, including water, pesticide rinsate, and pesticide diluents.

"Secondary containment unit" means any structure, including rigid diking, that is designed and constructed to intercept and contain pesticide spills and leaks and to prevent runoff and leaching from stationary pesticide containers.

"Stationary pesticide container" means a refillable container (i) that is fixed at a single facility or establishment or, if not fixed, remains at the facility or establishment for at least 30 consecutive days and (ii) that holds pesticide during the entire time.

"Suspension concentrate" means a stable suspension of solid particulate active ingredients in a liquid intended for dilution with water before use.

"Tamper-evident device" means a device that can be visually inspected to determine if a container has been opened.

"Transport vehicle" means a cargo-carrying vehicle such as an automobile, van, tractor, truck, semitrailer, tank car, or rail car used for the transportation of cargo by any mode.

"USDOT" means the U.S. Department of Transportation.

"VDACS" means the Virginia Department of Agriculture and Consumer Services.

"Washwater" means the liquid resulting from the rinsing of the exterior of any equipment or containers that have or may have come in direct contact with any pesticide or system maintenance compound, such as oil or antifreeze.

Part II
Nonrefillable Container Standards: Container Design and Residue Removal

2VAC5-690-30. General provisions.

A. The regulations in Part II (2VAC5-690-30 et seq.) of this chapter establish design and construction requirements for nonrefillable containers used for the distribution or sale of some pesticide products.

B. A registrant who distributes or sells a pesticide product in nonrefillable containers must comply with the regulations in Part II of this chapter. A registrant whose pesticide product is subject to the regulations in Part II of this chapter as set out in 2VAC5-690-40 must distribute or sell the pesticide product in a nonrefillable container that meets the standards of these regulations.

2VAC5-690-40. Scope of pesticide products included.

A. The regulations in Part II (2VAC5-690-30 et seq.) of this chapter do not apply to manufacturing use products, as defined in 40 CFR 158.153(h).

B. The regulations in Part II of this chapter do not apply to plant-incorporated protectants, as defined in 40 CFR 174.3.

C. The regulations in Part II of this chapter do not apply to a pesticide product if it satisfies all of the following conditions:

1. The pesticide product meets one of the following two criteria:

a. The pesticide product is an antimicrobial pesticide as defined in § 2(mm) of FIFRA (7 USC § 136(mm)); or

b. The pesticide product (i) is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime and (ii) in the intended use is subject to a tolerance under § 408 of the Federal Food, Drug, and Cosmetic Act (21 USC § 346a) or a food additive regulation under § 409 of the Federal Food, Drug, and Cosmetic Act (21 USC § 348).

2. The labeling of the pesticide product includes directions for use on a site in at least one of the following antimicrobial product use categories: food handling/storage establishments premises and equipment; commercial, institutional, and industrial premises and equipment; residential and public access premises; medical premises and equipment; human drinking water systems; materials preservatives; industrial processes and water systems; antifouling coatings; wood preservatives; or swimming pools.

3. The pesticide product is not a hazardous waste as set out in 40 CFR Part 261 when the pesticide product is intended to be disposed.

4. EPA has not specifically determined that the pesticide product must be subject to the regulations in Part II of this chapter to prevent an unreasonable adverse effect on the environment according to the provisions of subsection D of this section.

D. As established in 40 CFR 165.23(d), EPA may determine that an antimicrobial pesticide product otherwise exempted must be subject to the regulations in Part II of this chapter.

E. Except for manufacturing use products, plant-incorporated protectants, and antimicrobial products that are exempt under subsection C of this section, all of the regulations in Part II of this chapter apply to a pesticide product if it satisfies at least one of the following criteria:

1. The pesticide product meets the criteria of Toxicity Category I as set out in 40 CFR 156.62.

2. The pesticide product meets the criteria of Toxicity Category II as set out in 40 CFR 156.62.

3. The pesticide product is classified for restricted use as set out in 40 CFR 152.160 through 40 CFR 152.175.

F. Except for manufacturing use products, plant-incorporated protectants, antimicrobial products that are exempt under subsection C of this section, and other pesticide products that are regulated under subsection E of this section, a pesticide product must be packaged in compliance with 49 CFR 173.24. If the pesticide product meets the definition of a hazardous material in 49 CFR 171.8, the USDOT requires it to be packaged according to 49 CFR Part 171 through 49 CFR Part 180.

2VAC5-690-50. Nonrefillable container standards.

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 II of this chapter as described in 2VAC5-690-40.

B. A pesticide product that does not meet the definition of a hazardous material in 49 CFR 171.8 must be packaged in a nonrefillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR 173.4, 49 CFR 173.5, 49 CFR 173.6, 49 CFR 173.24, 49 CFR 173.24a, 49 CFR 173.24b, 49 CFR 173.28, 49 CFR 173.155, 49 CFR 173.203, 49 CFR 173.213, 49 CFR 173.240(c), 49 CFR 173.240(d), 49 CFR 173.241(c), 49 CFR 173.241(d), 49 CFR Part 178, and 49 CFR Part 180 that are applicable to a Packing Group III material, or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subsection apply to the pesticide product as it is packaged for transportation in commerce.

C. A registrant's nonrefillable containers must comply with the following standards if the registrant's pesticide product is a USDOT hazardous material as defined in 49 CFR 171.8:

1. The USDOT requires the pesticide product to be packaged according to 49 CFR Part 171 through 49 CFR Part 180 or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B.

2. The pesticide product must be packaged in a nonrefillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR Part 171 through 49 CFR Part 180 or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subdivision apply to the pesticide product as it is packaged for transportation in commerce.

D. Any nonrefillable container that is a rigid container with a capacity equal to or greater than three liters (0.79 gallons), is not an aerosol container or a pressurized container, and is used to distribute or sell a liquid agricultural pesticide must have at least one of the following standard closures:

1. Bung, two-inch pipe size (2.375 inches in diameter), external threading, 11.5 threads per inch, National Pipe Straight (NPS) standard;

2. Bung, two-inch pipe size (2.375 inches in diameter), external threading, five threads per inch, buttress threads;

3. Screw cap, 63 millimeters, at least one thread revolution at six threads per inch; or

4. Screw cap, 38 millimeters, at least one thread revolution at six threads per inch. The cap may fit on a separate rigid spout or on a flexible pull-out plastic spout.

E. Any nonrefillable container that has a capacity of five gallons (18.9 liters) or less; is not an aerosol container, a pressurized container, or a spray bottle; and holds a liquid pesticide must do both of the following:

1. Allow the contents of the nonrefillable container to pour in a continuous, coherent stream.

2. Allow the contents of the nonrefillable container to be poured with a minimum amount of dripping down the outside of the container.

F. Each nonrefillable container and pesticide formulation combination must meet the applicable residue removal standard of this section.

1. If the nonrefillable container is rigid and has a capacity less than or equal to five gallons (18.9 liters) for liquid formulations or 50 pounds (22.7 kilograms) for solid formulations and if the pesticide product's labeling allows or requires the pesticide product to be mixed with a liquid diluent prior to application (that is, if the pesticide is dilutable), each container/formulation combination must be capable of attaining at least 99.99% removal of each active ingredient when tested using the EPA test procedure "Rinsing Procedures for Dilutable Pesticide Products in Rigid Containers."

2. The test must be conducted only if the pesticide product is a suspension concentrate or if EPA specifically requests the records on a case-by-case basis.

3. For the rigid container/dilutable product standard in subdivision 1 of this subsection, percent removal represents the percent of the original concentration of the active ingredient in the pesticide product when compared to the concentration of that active ingredient in the fourth rinse. Percent removal is calculated by the formula: percent removal = [1.0 - RR] x 100.0, where RR = rinsate ratio = Active ingredient concentration in fourth rinsate/Original concentration of active ingredient in the product.

G. As established in 40 CFR 165.25(g) and 40 CFR 165.25(h), a registrant may obtain from EPA a waiver from or a modification to the nonrefillable container standards.

2VAC5-690-60. Reporting and recordkeeping.

B. A registrant is not required to report to VDACS with information about the registrant's nonrefillable containers under the regulations in Part II of this chapter. A registrant should refer to the reporting standards in 40 CFR Part 159 to determine if information on container failures or other incidents involving pesticide containers must be reported to EPA under § 6(a)(2) of FIFRA (7 USC § 136d(a)(2)).

C. For each pesticide product that is subject to 2VAC5-690-50 and 2VAC5-690-60 and is distributed or sold in nonrefillable containers, the registrant must maintain the records listed in this section for as long as a nonrefillable container is used to distribute or sell the pesticide product and for three years afterwards. The registrant must furnish these records for inspection and copying within 72 hours of request by an employee of VDACS. Registrants must keep the following records:

1. The name and EPA registration number of the pesticide product.

2. A description of the nonrefillable container or containers in which the pesticide product is distributed or sold.

3. At least one of the following records to document compliance with the requirement for closures in 2VAC5-690-50 D for each nonrefillable container used to distribute or sell the pesticide product that must comply with 2VAC5-690-50 D:

a. A letter or document from the container supplier that describes the closure.

b. A specification about the closure in the contract between the registrant or applicant and the container supplier.

c. A copy of EPA's approval of any nonstandard closure.

4. At least one of the following records pertaining to the container dispensing capability requirements in 2VAC5-690-50 E for each nonrefillable container used to distribute or sell the pesticide product that must comply with 2VAC5-690-50 E:

a. Test data or documentation demonstrating that the nonrefillable container meets the standards in 2VAC5-690-50 E when it contains the pesticide product.

b. Test data or documentation demonstrating that a different nonrefillable container meets the standards in 2VAC5-690-50 E when it contains the pesticide product or a different pesticide product and a written explanation of why such data or documentation demonstrates that the container meets the standards in 2VAC5-690-50 E for the pesticide product.

c. A copy of EPA's approval of a request for a waiver from the container dispensing requirement.

5. At least one of the following records pertaining to the nonrefillable container residue removal requirement in 2VAC5-690-50 F if the pesticide product is a suspension concentrate or if EPA specifically requests the records on a case-by-case basis:

a. Test data showing that the nonrefillable container and pesticide formulation meet the standard in 2VAC5-690-50 F.

b. Test data showing that a different nonrefillable container with the same or a different pesticide formulation meets the standard in 2VAC5-690-50 F, together with a written explanation of why such data demonstrate that the nonrefillable container and pesticide formulation meet the standard in 2VAC5-690-50 F.

c. A copy of EPA's approval of a request for a waiver from the residue removal standard requirement.

Part III
Refillable Container Standards: Container Design

2VAC5-690-70. General provisions.

A. The regulations in Part III (2VAC5-690-70 et seq.) of this chapter establish design and construction requirements for refillable containers used for the distribution or sale of some pesticide products.

B. The following persons must comply with the regulations in Part III of this chapter as follows:

1. A registrant must comply with all of the regulations in Part III of this chapter if the registrant distributes or sells a pesticide product in refillable containers. If the pesticide product is subject to the regulations in Part III of this chapter as set out in 2VAC5-690-80, the pesticide product must be distributed or sold in a refillable container that meets the standards of these regulations. This includes pesticide products that are repackaged according to Part IV (2VAC5-690-110 et seq.) of this chapter.

2. A refiller must comply with the regulations in 2VAC5-690-90 G for stationary pesticide containers if the refiller is not the registrant of the pesticide product. If the pesticide product is subject to the regulations in Part III of this chapter as set out in 2VAC5-690-80, the stationary pesticide containers used to distribute or sell the product must meet the standards of 2VAC5-690-90 G.

3. For a refiller of a pesticide product who is not a registrant of the pesticide product, 2VAC5-690-90 C provides an exemption from some of the requirements in 2VAC5-690-90 B.

2VAC5-690-80. Scope of pesticide products included.

A. The regulations in Part III (2VAC5-690-70 et seq.) of this chapter do not apply to manufacturing use products as defined in 40 CFR 158.153(h).

B. The regulations in Part III of this chapter do not apply to plant-incorporated protectants as defined in 40 CFR 174.3.

C. The regulations in Part III of this chapter do not apply to a pesticide product if it satisfies all of the following conditions:

1. The pesticide product meets one of the following two criteria:

a. The pesticide product is an antimicrobial pesticide as defined in § 2(mm) of FIFRA (7 USC § 136(mm)); or

b. The pesticide product (i) is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime; and (ii) in the intended use is subject to a tolerance under § 408 of the Federal Food, Drug, and Cosmetic Act (21 USC § 346a) or a food additive regulation under § 409 of the Federal Food, Drug, and Cosmetic Act (21 USC § 348).

3. The pesticide product is not a hazardous waste as set out in 40 CFR Part 261 when the pesticide product is intended to be disposed.

4. EPA has not specifically determined that the pesticide product must be subject to the regulations in Part III of this chapter to prevent an unreasonable adverse effect on the environment according to the provisions of subsection E of this section.

D. An antimicrobial swimming pool product that is not exempt by subsection A, B, or C of this section must comply with all of the regulations in Part III of this chapter except 2VAC5-690-90 E regarding marking and 2VAC5-690-90 F regarding openings. For the purposes of Part III of this chapter, an antimicrobial swimming pool product is a pesticide product that satisfies both of the following conditions:

1. The pesticide product is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime.

2. The labeling of the pesticide product includes directions for use on only a site or sites in the antimicrobial product use category of swimming pools.

E. As established in 40 CFR 165.43(e), EPA may determine that an antimicrobial pesticide product otherwise exempted must be subject to the regulations in Part III of this chapter.

F. The regulations in Part III of this chapter apply to all pesticide products other than manufacturing use products, plant-incorporated protectants, and antimicrobial products that are exempt by subsection C of this section. Antimicrobial products covered under subsection D of this section are subject to the regulations indicated in subsection D of this section.

G. 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 III of this chapter as described in subsections A through F of this section.

1. The regulations in Part III of this chapter do not apply to transport vehicles that contain pesticide in pesticide-holding tanks that are an integral part of the transport vehicle and that are the primary containment for the pesticide.

2. The regulations in Part III of this chapter do not apply to containers that hold pesticides that are gaseous at atmospheric temperature and pressure.

2VAC5-690-90. Refillable container standards.

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 III of this chapter as described in 2VAC5-690-80 A through F.

B. A pesticide product that does not meet the definition of a hazardous material in 49 CFR 171.8 must be packaged in a refillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR 173.4, 49 CFR 173.5, 49 CFR 173.6, 49 CFR 173.24, 49 CFR 173.24a, 49 CFR 173.24b, 49 CFR 173.28, 49 CFR 173.155, 49 CFR 173.203, 49 CFR 173.213, 49 CFR 173.240(c), 49 CFR 173.240(d), 49 CFR 173.241(c), 49 CFR 173.241(d), 49 CFR Part 178, and 49 CFR Part 180 that are applicable to a Packing Group III material, or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subsection apply to the pesticide product as it is packaged for transportation in commerce.

C. A refiller is not required to comply with 49 CFR 173.28(b)(2) for pesticide products that are not USDOT hazardous materials if the refillable container to be reused complies with the refillable container regulations in Part III (2VAC5-690-70 et seq.) of this chapter and the refilling is done in compliance with the repackaging regulations in Part IV (2VAC5-690-110) of this chapter.

D. A registrant's refillable containers must comply with the following standards if the registrant's pesticide product is a USDOT hazardous material as defined in 49 CFR 171.8:

2. The pesticide product must be packaged in a refillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR Part 171 through 49 CFR Part 180 or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subsection apply to the pesticide product as it is packaged for transportation in commerce.

E. Each refillable container must be marked in a durable and clearly visible manner with a serial number or other identifying code that will distinguish the individual container from all other containers. Durable marking includes, but is not limited to, etching, embossing, ink jetting, stamping, heat stamping, mechanically attaching a plate, molding, and marking with durable ink. The serial number or other identifying code must be located on the outside part of the container except on a closure. Placement on the label or labeling is not sufficient unless the label is an integral, permanent part of or permanently stamped on the container.

F. For any refillable container that is a portable pesticide container, is designed to hold liquid pesticide formulations, and is not a cylinder that complies with the USDOT Hazardous Materials Regulations in 49 CFR Part 171 through 49 CFR Part 180, each opening of the container other than a vent must have a one-way valve, a tamper-evident device, or both. A one-way valve may be located in a device or system separate from the container if the device or system is the only reasonably foreseeable way to withdraw pesticide from the container. A vent must be designed to minimize the amount of material that could be introduced into the container through it.

G. If a stationary pesticide container designed to hold undivided quantities of pesticides equal to or greater than 500 gallons (1,890 liters) of liquid pesticide or equal to or greater than 4,000 pounds (1,818 kilograms) of dry pesticide is located at the refilling establishment of a refiller operating under written contract to a registrant, the stationary pesticide container must meet the following standards:

1. Except during a civil emergency or any unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight, each stationary pesticide container (for liquid and dry pesticides) and its appurtenances must meet both of the following standards:

a. Each stationary pesticide container and its appurtenances must be resistant to extreme changes in temperature and constructed of materials that are adequately thick to not fail and that are resistant to corrosion, puncture, or cracking.

b. Each stationary pesticide container must be capable of withstanding all operating stresses, taking into account static heat, pressure buildup from pumps and compressors, and any other foreseeable mechanical stresses to which the container may be subjected in the course of operations.

2. Each stationary container of liquid pesticides must meet all of the following standards:

a. Each stationary container of liquid pesticides must be equipped with a vent or other device designed to relieve excess pressure, prevent losses by evaporation, and exclude precipitation.

b. External sight gauges, which are pesticide-containing hoses or tubes that run vertically along the exterior of the container from the top to the bottom, are prohibited on stationary containers of liquid pesticides.

c. Each connection on a stationary container of liquid pesticides that is below the normal liquid level must be equipped with a shutoff valve that is capable of being locked closed. A shutoff valve must be located within a secondary containment unit if one is required by Part V (2VAC5-690-160 et seq.) of this chapter.

H. As established in 40 CFR 165.45(g) and 40 CFR 165.45(h), a registrant may obtain from EPA a waiver from or a modification to some of the refillable container standards.

2VAC5-690-100. Reporting.

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 III of this chapter as described in 2VAC5-690-80 A through F.

A registrant is not required to report to VDACS information about the refillable containers under the regulations in Part III (2VAC5-690-70 et seq.) of this chapter. A registrant should refer to the reporting standards in 40 CFR Part 159 to determine if information on container failures or other incidents involving pesticide containers must be reported to EPA under § 6(a)(2) of FIFRA (7 USC § 136d(a)(2)).

Part IV
Standards for Repackaging Pesticide Products into Refillable Containers

2VAC5-690-110. General provisions.

A. The regulations in Part IV (2VAC5-690-110 et seq.) of this chapter establish requirements for repackaging some pesticide products into refillable containers for distribution or sale.

B. The following persons must comply with the regulations in Part IV of this chapter:

1. A registrant who distributes or sells a pesticide product in refillable containers;

2. A registrant who distributes or sells pesticide products to a refiller that is not part of the registrant's company for repackaging into refillable containers; or

3. A refiller of a pesticide product that is not the registrant of the pesticide product.

Each pesticide product that is subject to the regulations in Part IV of this chapter as set out in 2VAC5-690-120 and that is distributed or sold in a refillable container must be distributed or sold in compliance with the standards of these regulations.

2VAC5-690-120. Scope of pesticide products included.

A. The regulations in Part IV (2VAC5-690-110 et seq.) of this chapter do not apply to manufacturing use products as defined in 40 CFR 158.153(h).

B. The regulations in Part IV of this chapter do not apply to plant-incorporated protectants as defined in 40 CFR 174.3.

C. The regulations in Part IV of this chapter do not apply to a pesticide product if it satisfies all of the following conditions:

1. The pesticide product meets one of the following two criteria:

a. The pesticide product is an antimicrobial pesticide as defined in § 2(mm) of FIFRA (7 USC § 136(mm)); or

b. The pesticide product (i) is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime; and (ii) in the intended use is subject to a tolerance under § 408 of the Federal Food, Drug, and Cosmetic Act (21 USC § 346a) or a food additive regulation under § 409 of the Federal Food, Drug, and Cosmetic Act (21 USC § 348).

3. The pesticide product is not a hazardous waste as set out in 40 CFR Part 261 when the pesticide product is intended to be disposed.

4. EPA has not specifically determined that the pesticide product must be subject to the regulations in Part IV of this chapter to prevent an unreasonable adverse effect on the environment according to the provisions of subsection F of this section.

D. For the purposes of Part IV of this chapter, an antimicrobial swimming pool product is a pesticide product that satisfies both of the following conditions:

2. The labeling of the pesticide product includes directions for use on only a site or sites in the antimicrobial product use category of swimming pools.

E. An antimicrobial swimming pool product that is not exempt by subsection A, B, or C of this section must comply with all of the regulations in Part IV of this chapter except for the following requirements:

Requirement	Requirement for registrants who distribute or sell directly in refillable containers	Requirement for refillers who are not registrants
Recordkeeping specific to each instance of repackaging	2VAC5-690-130 J 2	2VAC5-690-150 K 2
Container inspection: criteria regarding a serial number or other identifying code	2VAC5-690-130 F 2	2VAC5-690-150 G 2
Container inspection: criteria regarding one-way valve or tamper-evident device	2VAC5-690-130 F 3	2VAC5-690-150 G 3
Cleaning requirement: criteria regarding one-way valve or tamper-evident device	2VAC5-690-130 G 1	2VAC5-690-150 H 1
Cleaning if the one-way valve or tamper-evident device is not intact	2VAC5-690-130 H	2VAC5-690-150 I

F. As established in 40 CFR 165.63(e), EPA may determine that an antimicrobial pesticide product otherwise exempted must be subject to the regulations in Part IV of this chapter.

G. The regulations in Part IV of this chapter apply to all pesticide products other than manufacturing use products, plant-incorporated protectants, and antimicrobial products that are exempt under subsection C of this section. Antimicrobial products covered under subsection E of this section are subject to the regulations indicated in that subsection.

H. 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 subsections A through G of this section.

1. The regulations in Part IV of this chapter do not apply to transport vehicles that contain pesticide in pesticide-holding tanks that are an integral part of the transport vehicle and that are the primary containment for the pesticide.

2. Custom blending is not subject to the regulations in Part IV of this chapter.

3. The regulations in Part IV of this chapter do not apply to containers that hold pesticides that are gaseous at atmospheric temperature and pressure.

2VAC5-690-130. Registrants who distribute or sell pesticide products in refillable containers.

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. Any registrant who distributes or sells pesticide products in refillable containers and any registrant who conducts all of the repackaging for a pesticide product and does not distribute or sell the pesticide product to a refiller that is not part of the registrant's company for repackaging into refillable containers must comply with this section. Any registrant that repackages a product directly into refillable containers for sale or distribution and also sells or distributes other quantities of that product to an independent refiller for repackaging must meet the requirements in this section for those quantities the registrant distributes or sells directly and the requirements in 2VAC5-690-140 for those quantities that the registrant distributes or sells to an independent refiller.

C. A registrant is responsible for the pesticide product that the registrant 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).

D. For each pesticide product distributed or sold in refillable containers, the registrant must develop both of the following documents in writing.

1. The registrant must develop a refilling residue removal procedure that describes how to remove pesticide residue from a refillable container (portable or stationary pesticide container) before it is refilled.

a. The refilling residue removal procedure must be adequate to ensure that the composition of the pesticide product does not differ at the time of its distribution or sale from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a).

b. If the refilling residue removal procedure requires the use of a solvent other than the diluent used for applying the pesticide as specified on the labeling under "Directions for Use," or if there is no diluent used for application, the refilling residue removal procedure must describe how to manage any rinsate resulting from the procedure in accordance with applicable federal and state regulations.

2. The registrant must develop a description of acceptable refillable containers (portable or stationary pesticide containers) that can be used for distributing or selling that pesticide product.

a. An acceptable container is one that the registrant has determined meets the standards in Part III (2VAC5-690-70 et seq.) of this chapter and is compatible with the pesticide formulation intended to be distributed and sold using the refillable container.

b. The registrant must identify the containers by specifying the container materials of construction that are compatible with the pesticide formulation and specifying information necessary to confirm compliance with the refillable container requirements in Part III of this chapter.

E. A refiller at a registrant's establishment that repackages a pesticide product into refillable containers for distribution or sale must comply with all of the following provisions.

1. The 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 registrant's description of acceptable containers for that pesticide product.

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 establishment before repackaging a pesticide product into any refillable container for distribution or sale:

a. The pesticide product's label and labeling;

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

c. The 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 G 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 F of this section.

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

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

10. The establishment must maintain records in accordance with subsection J of this section.

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

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

F. Before repackaging a pesticide product into any refillable container, a refiller at a registrant's establishment 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 of this chapter. The conditions are:

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.

G. A refiller at a registrant's establishment 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 subsection 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.

H. As required in subsection G of this section, a refiller at a registrant's establishment 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.

I. 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, the refiller must ensure that the net contents statement and EPA establishment number appear on the label.

J. Each establishment of a registrant that repackages a pesticide product into refillable containers for distribution or sale 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. The establishment 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, both of the following records must be maintained for the current operating year and for three years afterwards:

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

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

2. Each time a refiller at a registrant's establishment 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.

2VAC5-690-140. Registrants who distribute or sell pesticide products to refillers for repackaging.

B. A registrant who distributes or sells pesticide products to a refiller that is not part of the registrant's company for repackaging into refillable containers 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 registrant and the refiller that is repackaging the registrant's pesticide product under written contract with the registrant may be liable for violations pertaining to the repackaged product.

E. A registrant that allows a refiller to repackage the registrant's product as specified in subsection C of this section must provide the written contract referred to in subdivision C 3 of this section to the refiller before the registrant distributes or sells the pesticide product to the refiller.

F. A registrant is responsible for the pesticide product that the registrant distributes or sells to a refiller that is not part of the registrant's company for repackaging into 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).

G. For each pesticide product distributed or sold in refillable containers, the registrant must develop both of the following documents in writing.

b. If the refilling residue removal procedure requires the use of a solvent other than the diluent used for applying the pesticide as specified on the labeling under "Directions for Use," or if there is no diluents used for application, the refilling residue removal procedure must describe how to manage any rinsate resulting from the procedure in accordance with applicable federal and state regulations.

2. The registrant must develop a description of acceptable refillable containers (portable or stationary pesticide containers) that can be used for distributing or selling that pesticide product.

a. An acceptable container is one that the registrant has determined meets the standards Part III of this chapter and is compatible with the pesticide formulation intended to be distributed and sold using the refillable container.

H. A registrant must provide the refiller with all of the following information and documentation before or at the time of distribution or sale of the registrant's pesticide product to the refiller:

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

2. The registrant's written description of acceptable containers for the pesticide product; and

3. The pesticide product's label and labeling.

I. A registrant must maintain all of the records listed in this section for the current operating year and for three years afterwards. A registrant must furnish these records for inspection and copying within 72 hours of request by an employee of VDACS:

1. Each written contract entered into with a refiller for repackaging the registrant's pesticide product into refillable containers;

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

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

2VAC5-690-150. Refillers who are not registrants.

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

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.

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.

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.

Part V
Standards for Pesticide Containment Structures

2VAC5-690-160. General provisions.

A. The purpose of the containment regulations in Part V (2VAC5-690-160 et seq.) of this chapter is to protect human health and the environment from exposure to agricultural pesticides that may spill or leak from stationary pesticide containers. This protection is achieved by the construction of secondary containment units or pads at certain facilities handling agricultural pesticides. These regulations will also reduce waste generation associated with:

1. Storage and handling of large quantities of pesticide products.

2. Pesticide dispensing and container-refilling operations.

B. Any owner or operator of one of the following businesses who also has a stationary pesticide container or a pesticide dispensing (including container refilling) area must comply with the regulations in Part V of this chapter.

1. Refilling establishments who repackage agricultural pesticides and whose principal business is retail sale (i.e., more than 50% of total annual revenue comes from retail operations).

2. Custom blenders of agricultural pesticides.

3. Businesses that apply an agricultural pesticide for compensation (other than trading of personal services between agricultural producers).

2VAC5-690-170. Scope of stationary pesticide containers included.

A. A stationary pesticide container is a refillable container (i) that is fixed at a single facility or establishment or, if not fixed, remains at the facility or establishment for at least 30 consecutive days and (ii) that holds pesticide during the entire time.

B. Stationary pesticide containers designed to hold undivided quantities of agricultural pesticides equal to or greater than 500 gallons (1,890 liters) of liquid pesticide or equal to or greater than 4,000 pounds (1,818 kilograms) of dry pesticide are subject to the regulations in Part V (2VAC5-690-160 et seq.) of this chapter and must have a secondary containment unit that complies with the provisions of Part V of this chapter unless any of the following conditions exists:

1. The container is empty, that is, all pesticide that can be removed by methods such as draining, pumping, or aspirating has been removed (whether or not the container has been rinsed or washed).

2. The container holds only pesticide rinsates or washwater and is labeled accordingly.

3. The container holds only pesticides that would be gaseous when released at atmospheric temperature and pressure.

4. The container is dedicated to nonpesticide use and is labeled accordingly.

2VAC5-690-180. Scope of pesticide dispensing areas included.

A. A pesticide dispensing area is subject to the containment regulations in Part V (2VAC5-690-160 et seq.) of this chapter and must have a containment pad that complies with the requirements of Part V of this chapter if any of the following activities occur:

1. Refillable containers of agricultural pesticide are emptied, cleaned, or rinsed.

2. Agricultural pesticides are dispensed from a stationary pesticide container designed to hold undivided quantities of agricultural pesticides equal to or greater than 500 gallons (1,890 liters) of liquid pesticide or equal to or greater than 4,000 pounds (1,818 kilograms) of dry pesticide for any purpose, including refilling or emptying for cleaning. This applies when pesticide is dispensed from the container into any vessel, including but not limited to:

a. Refillable containers;

b. Service containers;

c. Transport vehicles; or

d. Application equipment.

3. Agricultural pesticides are dispensed from a transport vehicle for purposes of filling a refillable container.

4. Agricultural pesticides are dispensed from any other container for the purpose of refilling a refillable container for sale or distribution. Containment requirements do not apply if the agricultural pesticide is dispensed from such a container for use, application or purposes other than refilling for sale or distribution.

B. A pesticide dispensing area is exempt from the regulations in Part V of this chapter if any of the following conditions exist:

1. The only pesticides in the dispensing area would be gaseous when released at atmospheric temperature and pressure.

2. The only pesticide containers refilled or emptied within the dispensing area are stationary pesticide containers that are already protected by a secondary containment unit that complies with the provisions of Part V of this chapter.

3. The pesticide dispensing area is used solely for dispensing pesticide from a rail car that does not remain at a facility long enough to meet the definition of a stationary pesticide container, that is, 30 days.

2VAC5-690-190. Definition of new and existing structures.

A. A new containment structure is one whose installation began after November 16, 2006. Installation is considered to have begun if:

1. The owner or operator has obtained all federal, state, and local approvals or permits necessary to begin physical construction of the containment structure; and

2. The owner or operator has either begun a continuous onsite physical construction or installation program or has entered into contractual obligations. The contract must be such that it cannot be canceled or modified without substantial loss and must be for the physical construction or installation of the containment structure within a specific and reasonable time frame.

B. An existing containment structure is defined as one whose installation began on or before November 16, 2006.

2VAC5-690-200. Design and capacity requirements for new structures.

A. A new containment structure must comply with the following material specifications:

1. The containment structure must be constructed of steel, reinforced concrete, or other rigid material capable of withstanding the full hydrostatic head, load, and impact of any pesticides, precipitation, other substances, equipment, and appurtenances placed within the structure. The structure must be liquid-tight with cracks, seams, and joints appropriately sealed.

2. The structure must not be constructed of natural earthen material, unfired clay, or asphalt.

3. The containment structure must be made of materials compatible with the pesticides stored. Materials are deemed compatible if they are able to withstand anticipated exposure to stored or transferred substances and still provide containment of those same or other substances within the containment area.

B. A new containment structure must comply with the following general design requirements:

1. The owner or operator must ensure that appurtenances and pesticide containers are protected against damage from operating personnel and moving equipment. Means of protection include, but are not limited to, supports to prevent sagging, flexible connections, the use of guard rails, barriers, and protective cages.

2. Appurtenances, discharge outlets, or gravity drains must not be configured through the base or wall of the containment structure, except for direct interconnections between adjacent containment structures that meet the requirements of Part V (2VAC5-690-160 et seq.) of this chapter. Appurtenances must be configured in such a way that spills or leaks are easy to see.

3. The containment structure must be constructed with sufficient freeboard to contain precipitation and prevent water and other liquids from seeping into or flowing onto it from adjacent land or structures.

4. Multiple stationary pesticide containers may be protected within a single secondary containment unit.

C. A new secondary containment unit for a stationary container of a liquid pesticide and a new containment pad in a pesticide dispensing area must comply with the following capacity requirements:

1. New secondary containment units for stationary containers of liquid pesticides, if protected from precipitation, must have a capacity of at least 100% of the volume of the largest stationary pesticide container plus the volume displaced by other containers and appurtenances within the unit.

2. New secondary containment units for stationary containers of liquid pesticides, if exposed to or unprotected from precipitation, must have a capacity of at least 110% of the volume of the largest stationary pesticide container plus the volume displaced by other containers and appurtenances within the unit.

3. New containment pads in pesticide dispensing areas that have a pesticide container or pesticide holding equipment with a volume of 750 gallons or greater must have a holding capacity of at least 750 gallons.

4. New containment pads in pesticide dispensing areas that do not have a pesticide container or pesticide holding equipment with a volume of at least 750 gallons must have a holding capacity of at least 100% of the volume of the largest pesticide container or pesticide-holding equipment used on the pad.

D. Each stationary container of liquid pesticides protected by a new secondary containment unit must be anchored or elevated to prevent flotation in the event that the secondary containment unit fills with liquid.

E. Each new containment pad in a pesticide dispensing area must:

1. Be designed and constructed to intercept leaks and spills of pesticides that may occur in the pesticide dispensing area;

2. Have enough surface area to extend completely beneath any container on it, with the exception of transport vehicles dispensing pesticide for sale or distribution to a stationary pesticide container. For such vehicles, the surface area of the containment pad must accommodate at least the portion of the vehicle where the delivery hose or device couples to the vehicle. This exception does not apply to transport vehicles that are used for prolonged storage or repeated onsite dispensing of pesticides;

3. Allow, in conjunction with its sump, for removal and recovery of spilled, leaked, or discharged material and rainfall, such as by a manually activated pump. Automatically activated pumps that lack automatic overflow cutoff switches for the receiving container are prohibited; and

4. Have its surface sloped toward an area where liquids can be collected for removal, such as a liquid-tight sump or a depression, in the case of a single-pour concrete pad.

F. A new secondary containment unit for a stationary container of a dry pesticide must comply with the following specific design requirements:

1. The stationary containers of dry pesticides within the containment unit must be protected from wind and precipitation.

2. Stationary containers of dry pesticides must be placed on pallets or a raised concrete platform to prevent the accumulation of water in or under the pesticide.

3. The storage area for stationary containers of dry pesticides must include a floor that extends completely beneath the pallets or raised concrete platforms on which the stationary containers of dry pesticides must be stored.

4. The storage area for stationary containers of dry pesticides must be enclosed by a curb a minimum of six inches high that extends at least two feet beyond the perimeter of the container.

2VAC5-690-210. Design and capacity requirements for existing structures.

A. An existing containment structure must comply with the following material specifications:

2. The structure must not be constructed of natural earthen material, unfired clay, or asphalt.

3. The containment structure must be made of materials compatible with the pesticides stored. In this case, compatible means able to withstand anticipated exposure to stored or transferred substances and still provide containment of those same or other substances within the containment area.

B. An existing containment structure must comply with the following general design requirements:

2. All appurtenances, discharge outlets, and gravity drains through the base or wall of the containment structure must be sealed, except for direct interconnections between adjacent containment structures that meet the requirements of Part V (2VAC5-690-160 et seq.) of this chapter.

4. Multiple stationary pesticide containers may be protected within a single secondary containment unit.

C. An existing secondary containment unit for a stationary container of liquid pesticides and an existing containment pad in a pesticide dispensing area must comply with the following capacity requirements:

1. Existing secondary containment units for stationary containers of liquid pesticides must have a capacity of at least 100% of the volume of the largest stationary pesticide container plus the volume displaced by other containers and appurtenances within the unit.

2. Existing containment pads in pesticide dispensing areas that have a pesticide container or pesticide-holding equipment with a volume of 750 gallons or greater must have a holding capacity of at least 750 gallons.

3. Existing containment pads in pesticide dispensing areas that do not have a pesticide container or pesticide-holding equipment with a volume of at least 750 gallons must have a holding capacity of at least 100% of the volume of the largest pesticide container or pesticide-holding equipment used on the pad.

D. Each stationary container of liquid pesticides protected by an existing secondary containment unit must be anchored or elevated to prevent flotation in the event that the secondary containment unit fills with liquid.

E. Each existing containment pad in a pesticide dispensing area must:

1. Be designed and constructed to intercept leaks and spills of pesticides that may occur in the pesticide dispensing area.

F. An existing secondary containment unit for a stationary container of a dry pesticide must comply with the following specific design requirements:

1. The stationary containers of dry pesticides within the containment unit must be protected from wind and precipitation.

2. Stationary containers of dry pesticides must be placed on pallets or a raised concrete platform to prevent the accumulation of water in or under the pesticide.

4. The storage area for stationary containers of dry pesticides must be enclosed by a curb a minimum of six inches high that extends at least two feet beyond the perimeter of the container.

2VAC5-690-220. Operational, inspection, and maintenance requirements for all new and existing containment structures.

A. The owner or operator of a new or existing pesticide containment structure must comply with the following operating procedures:

1. Manage the structure in a manner that prevents pesticides or materials containing pesticides from escaping from the containment structure (including, but not limited to, pesticide residues washed off the containment structure by rainfall or cleaning liquids used within the structure);

2. Ensure that pesticide spills and leaks on or in any containment structure are collected and recovered in a manner that ensures protection of human health and the environment (including surface water and groundwater) and maximum practicable recovery of the pesticide spilled or leaked. Cleanup must occur no later than the end of the day on which pesticides have been spilled or leaked except in circumstances where a reasonable delay would significantly reduce the likelihood or severity of adverse effects to human health or the environment;

3. Ensure that all materials resulting from spills and leaks and any materials containing pesticide residue are managed according to label instructions and applicable federal, state, and local laws and regulations;

4. Ensure that transfers of pesticides between containers or between containers and transport vehicles, are attended at all times; and

5. Ensure that each lockable valve on a stationary pesticide container, if it is required by 2VAC5-690-90 G, is closed and locked, or that the facility is locked, whenever the facility is unattended.

B. The owner or operator of a new or existing pesticide containment structure must comply with the following inspection and maintenance requirements:

1. Inspect each stationary pesticide container and its appurtenances and each containment structure at least monthly during periods when pesticides are being stored or dispensed on the containment structure. The inspection must include looking for visible signs of wetting, discoloration, blistering, bulging, corrosion, cracks or other signs of damage or leakage;

2. Initiate repair to any areas showing visible signs of damage and seal any cracks and gaps in the containment structure or appurtenances with material compatible with the pesticide being stored or dispensed no later than the end of the day on which damage is noticed and complete repairs within a time frame that is reasonable, taking into account factors such as the weather, and the availability of cleanup materials, trained staff, and equipment; and

3. Not store any additional pesticide on a containment structure if the structure fails to meet the requirements of Part V (2VAC5-690-160 et seq.) of this chapter until suitable repairs have been made.

2VAC5-690-230. Combining a containment pad and a secondary containment unit.

An owner or operator subject to the requirements of Part V (2VAC5-690-160 et seq.) of this chapter may combine containment pads and secondary containment units as an integrated system provided the requirements set out in Part V of this chapter for containment pads and secondary containment units in 2VAC5-690-200 A and B, 2VAC5-690-210 A and B, and 2VAC5-690-220, and, as applicable, 2VAC5-690-200 C through F and 2VAC5-690-210 C through F are satisfied separately.

2VAC5-690-240. Recordkeeping.

A. A facility owner or operator subject to the requirements of Part V (2VAC5-690-160 et seq.) of this chapter, must maintain the following records and must furnish these records for inspection and copying within 72 hours of request by an employee of VDACS:

B. Records of inspection and maintenance for each containment structure and for each stationary pesticide container and its appurtenances must be kept for three years and must include the following information:

1. Name of the person conducting the inspection or maintenance;

2. Date the inspection or maintenance was conducted;

3. Conditions noted; and

4. Specific maintenance performed.

C. Records for any nonstationary pesticide container designed to hold undivided quantities of agricultural pesticides equal to or greater than 500 gallons (1,890 liters) of liquid pesticide or equal to or greater than 4,000 pounds (1,818 kilograms) of dry pesticide that holds pesticide but is not protected by a secondary containment unit meeting these regulations must be kept for three years. Records on these nonstationary pesticide containers must include the time period that the container remains at the same location.

D. Records of the construction date of the containment structure must be kept for as long as the pesticide containment structure is in use, and for three years afterwards.

VA.R. Doc. No. R14-3295; Filed October 25, 2013, 10:54 a.m.

2VAC5-690 Regulations for Pesticide Containers and Containment under Authority of the Virginia Pesticide Control Act

REGULATIONSVol. 30 Iss. 6 - November 18, 2013

Document Information

REGULATIONS
Vol. 30 Iss. 6 - November 18, 2013