Pesticide Management and Disposal; Standards for Pesticide
Containers and Containment
[Federal Register: August 16, 2006 (Volume 71, Number 158)]
[Rules and Regulations]
[Page 47429-47437]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au06-27]
[[pp. 47429-47437]]
Pesticide Management and Disposal; Standards for Pesticide
Containers and Containment
[[Continued from page 47428]]
[[Page 47429]]
in this subpart as set out in Sec. 165.63 and that is distributed or
sold in a refillable container must be distributed or sold in
compliance with the standards of these regulations.
(c) When do I have to comply? As of August 16, 2011, all pesticide
products distributed or sold by you in refillable containers must be
distributed or sold in compliance with these regulations.
Sec. 165.63 Scope of pesticide products included.
(a) Are manufacturing use products subject to the regulations in
this subpart? No, the regulations in this subpart do not apply to
manufacturing use products, as defined in Sec. 158.153(h) of this chapter.
(b) Are plant-incorporated protectants subject to the regulations
in this subpart? No, the regulations in this subpart do not apply to
plant-incorporated protectants, as defined in Sec. 174.3 of this chapter.
(c) Which antimicrobial pesticide products are not subject to the
regulations in this subpart? The regulations in this subpart 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:
(i) The pesticide product is an antimicrobial pesticide as defined
in FIFRA section 2(mm); or
(ii) The pesticide product: (A) 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
(B) In the intended use is subject to a tolerance under section 408
of the Federal Food, Drug, and Cosmetic Act or a food additive
regulation under section 409 of such Act.
(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
part 261 of this chapter 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 this subpart to prevent an
unreasonable adverse effect on the environment according to the
provisions of paragraph (e) of this section.
(d) Which requirements must an antimicrobial swimming pool product
comply with if it is not exempt from these regulations? (1) An
antimicrobial swimming pool product that is not exempt by paragraph
(a), (b), or (c) of this section must comply with all of the
regulations in this subpart except for the following requirements:
------------------------------------------------------------------------
Requirement for
registrants who
distribute or Requirement for
Requirement sell directly in refillers who are
refillable not registrants
containers
------------------------------------------------------------------------
Recordkeeping specific to each Sec. Sec.
instance of repackaging 165.65(i)(2) 165.70(j)(2)
------------------------------------------------------------------------
Container inspection: criteria Sec. Sec.
regarding a serial number or 165.65(e)(3) 165.70(f)(3)
other identifying code
------------------------------------------------------------------------
Container inspection: criteria Sec. Sec.
regarding one-way valve or tamper- 165.65(e)(4) 165.70(f)(4)
evident device
------------------------------------------------------------------------
Cleaning requirement: criteria Sec. Sec.
regarding one-way valve or tamper- 165.65(f)(1) 165.70(g)(1)
evident device
------------------------------------------------------------------------
Cleaning if the one-way valve or Sec. 165.65(g) Sec. 165.70(h)
tamper-evident device is not
intact
------------------------------------------------------------------------
(2) For the purposes of this subpart, an antimicrobial swimming
pool product is a pesticide product that satisfies both of the
following conditions:
(i) 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.
(ii) 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) How will EPA determine if an antimicrobial pesticide product
otherwise exempted must be subject to the regulations in this subpart
to prevent an unreasonable adverse effect on the environment? (1) EPA
may determine that an antimicrobial pesticide product otherwise
exempted by paragraph (c) of this section must be subject to the
repackaging regulations in this subpart to prevent an unreasonable
adverse effect on the environment if all of the following conditions exist:
(i) EPA obtains information, data or other evidence of a problem
with the containers of a certain pesticide product or related group of
products.
(ii) The information, data or other evidence is reliable and factual.
(iii) The problem causes or could reasonably be expected to cause
an unreasonable adverse effect on the environment.
(iv) Complying with the container regulations could reasonably be
expected to eliminate the problem.
(2) If EPA determines that an antimicrobial pesticide product
otherwise exempted by paragraph (c) of this section must be subject to
the repackaging regulations in this subpart to prevent an unreasonable
adverse effect on the environment, EPA may require, by rule, that the
product be repackaged in compliance with all or some of the
requirements in this subpart. Alternatively, EPA may notify the
applicant or registrant of its intent to make such a determination.
After allowing the applicant or registrant a reasonable amount of time
to reply, EPA may require, by notification and as a condition of
registration, that the product be repackaged in compliance with all or
some of the requirements in this subpart. For the purpose of the
previous sentence, 60 days would be a reasonable amount of time to
reply, although EPA may, in its discretion, provide more time. EPA may
deny registration or initiate cancellation proceedings if the
registrant fails to
[[Page 47430]]
comply with the repackaging regulations within the time frames
established by EPA in the rule or in its notification.
(f) What other pesticide products are subject to the regulations in
this subpart? The regulations in this subpart apply to all pesticide
products other than manufacturing use products, plant-incorporated
protectants, and antimicrobial products that are exempt paragraph (c)
of this section. Antimicrobial products covered under paragraph (d) of
this section are subject to the regulations indicated in that section.
(g) What does ``pesticide product'' or ``pesticide'' mean in the
rest of this subpart? In Sec. Sec. 165.63(h) through 165.70, the term
``pesticide product'' or ``pesticide'' refers only to a pesticide
product or a pesticide that is subject to the regulations in this
subpart as described in paragraphs (a) through (f) of this section.
(h) Are there any other exceptions? (1) The regulations in this
subpart 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 this subpart.
(3) The regulations in this subpart do not apply to containers that
hold pesticides that are gaseous at atmospheric temperature and pressure.
Sec. 165.65 Registrants who distribute or sell pesticide products in
refillable containers.
(a) Must I comply with the standards in this section? You must
comply with the standards in this section if you are a registrant who
distributes or sells pesticide products in refillable containers. This
means that you conduct all of the repackaging for a pesticide product
and that you do not distribute or sell the pesticide product to a
refiller that is not part of your company for repackaging into
refillable containers. If you are a registrant that repackages a
product directly into refillable containers for sale or distribution
and you also sell or distribute other quantities of that product to an
independent refiller for repackaging, then you must meet the
requirements in this section for those quantities you distribute or
sell directly and the requirements in Sec. 165.67 for those quantities
that you distribute or sell to an independent refiller.
(b) Am I responsible for product integrity? Yes, you are
responsible for the pesticide product that you distribute or sell in
refillable containers not being adulterated or different from the
composition described in its confidential statement of formula that is
required under FIFRA section 3.
(c) What information must I develop? For each pesticide product
distributed or sold in refillable containers, you must develop both of
the following documents in writing.
(1) You 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.
(i) 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 FIFRA
section 3.
(ii) 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) You must develop a description of acceptable refillable
containers (portable or stationary pesticide containers) that can be
used for distributing or selling that pesticide product.
(i) An acceptable container is one that you have determined meets
the standards in subpart C of this part and is compatible with the
pesticide formulation intended to be distributed and sold using the
refillable container.
(ii) You 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 subpart C of this part.
(d) What requirements must my individual establishments follow
regarding repackaging a pesticide product into refillable containers? A
refiller at your individual 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 Sec. 167.20 of this chapter.
(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 your 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:
(i) The pesticide product's label and labeling.
(ii) The written refilling residue removal procedure for the
pesticide product.
(iii) 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 paragraph (f) 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 paragraph (e) of this section.
(8) The refiller must clean each refillable container according to
paragraph (f) or (g) of this section, if required by either paragraph.
(9) The refiller must ensure that each refillable container is
properly labeled according to paragraph (h) of this section.
(10) The establishment must maintain records in accordance with
paragraph (i) of this section.
(11) The establishment must maintain records as required by part
169 of this chapter.
(12) The establishment must report as required by part 167 of this
chapter.
(e) How must my individual establishments inspect refillable
containers? Before repackaging a pesticide product into any refillable
container, a refiller at your 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
[[Page 47431]]
openings. If the condition in paragraph (e)(1) of this section exists,
the container fails the inspection and must not be refilled unless the
container is repaired, reconditioned, or remanufactured in compliance
with the relevant DOT requirement. If the condition in paragraph (e)(2)
or (e)(3) of this section exists (or both), the container fails the
inspection and must not be refilled until the container meets the
standards specified in subpart C of this part. The conditions are:
(1) The integrity of the container is compromised in at least one
of the following ways:
(i) The container shows signs of rupture or other damage which
reduces its structural integrity.
(ii) The container has visible pitting, significant reduction in
material thickness, metal fatigue, damaged threads or closures, or
other significant defects.
(iii) The container has cracks, warpage, corrosion or any other
damage which might render it unsafe for transportation.
(iv) 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 Sec.
165.45(a), (b) and (d), 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.
(f) How must my individual establishments clean refillable
containers? A refiller at your 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 paragraph (f)(1) of this
section and either paragraph (f)(2) or (f)(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:
(i) 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.
(ii) 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 FIFRA
section 3. 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.
(g) How must my individual establishments clean a refillable
container that has a broken (non-intact) tamper-evident device or one-
way valve? As required in paragraph (f) of this section, a refiller at
your establishment must clean each refillable container that has a
tamper-evident device 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.
(h) How must my individual establishments label refillable
containers? Before distributing or selling a pesticide product in a
refillable container, a refiller at your establishment 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
part 156 of this chapter. In particular, the refiller at your
establishment must ensure that the net contents statement and EPA
establishment number appear on the label.
(i) What recordkeeping must my individual establishments do? Each
of your individual establishments 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 parts 167 and 169 of this chapter. The
establishment must furnish these records for inspection and copying
upon request by an employee of EPA or any entity designated by EPA,
such as a State, another political subdivision or a Tribe.
(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 3 years after that:
(i) The written refilling residue removal procedure for the
pesticide product.
(ii) The written description of acceptable containers for the
pesticide product.
(2) Each time a refiller at your 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 3 years after the date of repackaging:
(i) The EPA registration number of the pesticide product
distributed or sold in the refillable container.
(ii) The date of the repackaging.
(iii) The serial number of the refillable container.
Sec. 165.67 Registrants who distribute or sell pesticide products to
refillers for repackaging.
(a) Must I comply with the standards in this section? You must
comply with the standards in this section if you are a registrant who
distributes or sells pesticide products to a refiller that is not part
of your company for repackaging into refillable containers.
(b) Under what conditions can I allow a refiller to repackage my
pesticide product into refillable containers? You may allow a refiller
to repackage your pesticide product into refillable containers and to
distribute or sell such repackaged product under your 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:
(i) The pesticide product is repackaged at a refilling establishment
registered with EPA as required by Sec. 167.20 of this chapter.
(ii) The pesticide product is repackaged at the site of a user who
intends to use or apply the product by a refilling establishment
registered with EPA as required by Sec. 167.20 of this chapter.
(3) You have entered into a written contract with the refiller to
repackage the pesticide product and to use the label of your pesticide
product.
(4) The pesticide product is repackaged only into refillable
containers that meet the standards of subpart C of this part.
(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.
(c) What violations are applicable to illegal repackaging?
Repackaging a pesticide product for distribution or sale without either
obtaining a registration or meeting all of the conditions in paragraph
(b) of this section is a violation of section 12 of the Act. Both you
and the refiller that is repackaging your pesticide product under
written contract with you may be liable for
[[Page 47432]]
violations pertaining to the repackaged product.
(d) When must I provide the written contract to the refiller? If
you allow a refiller to repackage your product as specified in
paragraph (b) of this section you must provide the written contract to
the refiller before you distribute or sell the pesticide product to the
refiller.
(e) Am I responsible for product integrity? Yes, for a product that
you distribute or sell to a refiller that is not part of your company
for repackaging into refillable containers, you are responsible for the
pesticide product not being adulterated or different from the
composition described in its confidential statement of formula that is
required under FIFRA section 3.
(f) What information must I develop? For each pesticide product
distributed or sold in refillable containers, you must develop both of
the following documents in writing.
(1) You 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.
(i) 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 FIFRA
section 3.
(ii) 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) You must develop a description of acceptable refillable
containers (portable or stationary pesticide containers) that can be
used for distributing or selling that pesticide product.
(i) An acceptable container is one that you have determined meets
the standards in subpart C of this part and is compatible with the
pesticide formulation intended to be distributed and sold using the
refillable container.
(ii) You 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 subpart C of this part.
(g) When must I provide the information to the refiller? You must
provide the refiller with all of the following information and
documentation before or at the time of distribution or sale of your
pesticide product to the refiller:
(1) Your written refilling residue removal procedure for the
pesticide product.
(2) Your written description of acceptable containers for the
pesticide product.
(3) The pesticide product's label and labeling.
(h) What recordkeeping must I do? You must maintain all of the
records listed in this section for the current operating year and for 3
years after that. You must furnish these records for inspection and
copying upon request by an employee of EPA or any entity designated by
EPA, such as a State, another political subdivision or a Tribe:
(1) Each written contract entered into with a refiller for
repackaging your pesticide product into refillable containers.
(2) Your written refilling residue removal procedure for the
pesticide product.
(3) Your written description of acceptable containers for the
pesticide product.
Sec. 165.70 Refillers who are not registrants.
(a) Must I comply with the standards in this section? You must
comply with the standards in this section if you are a refiller of a
pesticide product and you are not the registrant of the pesticide
product.
(b) Under what conditions can I repackage a registrant's pesticide
product into refillable containers? A registrant may allow you 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:
(i) The pesticide product is repackaged at a refilling establishment
registered with EPA as required by Sec. 167.20 of this chapter.
(ii) The pesticide product is repackaged at the site of a user who
intends to use or apply the product by a refilling establishment
registered with EPA as required by Sec. 167.20 of this chapter.
(3) The registrant has entered into a written contract with you 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 subpart C of this part.
(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 refillers EPA establishment number.
(c) What violations are applicable to illegal repackaging?
Repackaging a pesticide product for distribution or sale without either
obtaining a registration or meeting all of the conditions in paragraph
(b) of this section is a violation of section 12 of the Act. Both you
and the pesticide product's registrant may be liable for violations
pertaining to the repackaged product.
(d) Am I responsible for product integrity? Yes, you are
responsible for the pesticide product that you distribute or sell in
refillable containers not being adulterated or different from the
composition described in its confidential statement of formula that is
required under FIFRA section 3.
(e) What requirements must I follow regarding repackaging a
pesticide product into refillable containers? You must comply with all
of the following provisions.
(1) Your establishment must be registered with EPA as a producing
establishment as required by Sec. 167.20 of this chapter.
(2) You must not change the pesticide formulation unless you have a
registration for the new formulation.
(3) You 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) You 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 you can use.
(5) You must have all of the following items at your establishment
before repackaging a pesticide product into any refillable container
for distribution or sale:
(i) The written contract from the pesticide product's registrant.
(ii) The pesticide product's label and labeling.
(iii) The registrant's written refilling residue removal procedure
for the pesticide product.
(iv) 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, you must identify the pesticide
product previously
[[Page 47433]]
contained in the refillable container to determine whether a residue
removal procedure must be conducted in accordance with paragraph (g) of
this section. You may identify the previous pesticide product by
referring to the label or labeling.
(7) You must inspect each refillable container according to
paragraph (f) of this section.
(8) You must clean each refillable container according to paragraph
(g) or (h) of this section, if required by either paragraph.
(9) You must ensure that each refillable container is properly
labeled according to paragraph (i) of this section.
(10) You must maintain records in accordance with paragraph (j) of
this section.
(11) You must maintain records as required by part 169 of this chapter.
(12) You must report as required by part 167 of this chapter.
(13) The stationary pesticide containers at your establishment must
meet the standards in Sec. 165.45(f).
(14) You may be required to comply with the containment standards
in subpart E of this part.
(f) How must I inspect refillable containers? Before repackaging a
pesticide product into any refillable container, you 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 paragraph (f)(1) of this section exists,
the container fails the inspection and must not be refilled unless the
container is repaired, reconditioned, or remanufactured in compliance
with the relevant DOT requirement. If the condition in paragraph (f)(2)
or (f)(3) of this section exists (or both), the container fails the
inspection and must not be refilled until the container meets the
standards specified in subpart C of this part. The conditions are:
(1) The integrity of the container is compromised in at least one
of the following ways:
(i) The container shows signs of rupture or other damage which
reduces its structural integrity.
(ii) The container has visible pitting, significant reduction in
material thickness, metal fatigue, damaged threads or closures, or
other significant defects.
(iii) The container has cracks, warpage, corrosion or any other
damage which might render it unsafe for transportation.
(iv) 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 Sec.
165.45(a), (b) and (d), 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) How must I clean refillable containers? You 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 paragraph (g)(1) of
this section and either paragraph (g)(2) or (g)(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.
(i) 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.
(ii) 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 FIFRA
section 3. 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) How must I clean a refillable container that has a broken (non-
intact) tamper-evident device or one-way valve? As required in
paragraph (g) of this section, you must clean each refillable container
that has a tamper-evident device 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) How must I label refillable containers? Before distributing or
selling a pesticide product in a refillable container, you 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
part 156 of this chapter. In particular, you must ensure that the net
contents statement and EPA establishment number appear on the label.
(j) What recordkeeping must I do? You must maintain all of the
records listed in this section in addition to the applicable records
identified in parts 167 and 169 of this chapter. You must furnish these
records for inspection and copying upon request by an employee of EPA
or any entity designated by EPA, such as a State, another political
subdivision or a Tribe.
(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 3 years after that:
(i) The written contract from the pesticide product's registrant
for the pesticide product.
(ii) The written refilling residue removal procedure for the
pesticide product.
(iii) The written description of acceptable containers for the
pesticide product.
(2) Each time you repackage a pesticide product into a refillable
container and distribute or sell the product, the following records
must be generated and maintained for at least 3 years after the date of
repackaging:
(i) The EPA registration number of the pesticide product
distributed or sold in the refillable container.
(ii) The date of the repackaging.
(iii) The serial number of the refillable container.
Sec. Sec. 165.71-165.79 [Reserved]
Subpart E--Standards for Pesticide Containment Structures
Sec. 165.80 General provisions.
(a) What is the purpose of the regulations in this subpart? The
purpose of the containment regulations in this subpart is to protect
human health and the environment from exposure to agricultural
pesticides which 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.
[[Page 47434]]
(b) Do I have to comply with the regulations in this subpart? You
must comply with the regulations in this subpart if you are an owner or
operator of one of the following businesses and if you also have a
stationary pesticide container or a pesticide dispensing (including
container refilling) area:
(1) Refilling establishments who repackage agricultural pesticides
and whose principal business is retail sale (i.e., more that 50% of
total annual revenue comes from retail operations).
(2) Custom blenders of agricultural pesticides.
(3) Businesses which apply an agricultural pesticide for
compensation (other than trading of personal services between
agricultural producers).
(c) When do I have to comply? You must comply with all applicable
containment regulations for new and existing structures as of August
17, 2009.
Sec. 165.81 Scope of stationary pesticide containers included.
(a) What is a stationary pesticide container? A stationary
pesticide container is a refillable container 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 that holds
pesticide during the entire time.
(b) What stationary pesticide containers are subject to the
regulations in this subpart? 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 this subpart and must have a secondary
containment unit that complies with the provisions of this subpart
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 wash waters, and
is labeled accordingly.
(3) The container holds only pesticides which would be gaseous when
released at atmospheric temperature and pressure.
(4) The container is dedicated to non-pesticide use, and is labeled
accordingly.
Sec. 165.82 Scope of pesticide dispensing areas included.
(a) What pesticide dispensing areas are subject to the regulations
in this subpart? A pesticide dispensing area is subject to the
containment regulations in this subpart and must have a containment pad
that complies with the requirements of this subpart 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:
(i) Refillable containers;
(ii) Service containers;
(iii) Transport vehicles;
(iv) 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) What pesticide dispensing areas are exempt from the regulations
in this subpart? A pesticide dispensing area is exempt from the
regulations in this subpart 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 which are already
protected by a secondary containment unit that complies with the
provisions of this subpart.
(3) The pesticide dispensing area is used solely for dispensing
pesticide from a rail car which does not remain at a facility long
enough to meet the definition of a stationary pesticide container; that
is, 30 days.
Sec. 165.83 Definition of new and existing structures.
(a) What is a new containment structure? A new containment
structure is one whose installation began after November 16, 2006.
Installation is considered to have begun if:
(1) You, as the owner or operator, have obtained all Federal,
State, and local approvals or permits necessary to begin physical
construction of the containment structure; AND
(2) You have either begun a continuous on-site physical
construction or installation program OR you have 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) What is an existing containment structure? An existing
containment structure is defined as one whose installation began on or
before November 16, 2006.
Sec. 165.85 Design and capacity requirements for new structures.
(a) For all new containment structures, what construction materials
must I use? These are the material specifications for a new containment
structure:
(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. In this case, compatible means able to
withstand anticipated exposure to stored or transferred materials and
still provide secondary containment of those same or other materials
within the containment area.
(b) For all new containment structures, what are the general design
requirements? These are the general design requirements for new
containment structures:
(1) You must protect appurtenances and pesticide containers 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 which meet the
[[Page 47435]]
requirements of this subpart. 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) For new stationary liquid pesticide containment and new
containment pads in pesticide dispensing areas, what are the capacity
requirements? These are the capacity requirements:
(1) New secondary containment units for stationary liquid pesticide
containers, if protected from precipitation, must have a capacity of at
least 100 percent 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 liquid pesticide
containers, if exposed to or unprotected from precipitation, must have
a capacity of at least 110 percent 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 which 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 which 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
percent of the volume of the largest pesticide container or pesticide-
holding equipment used on the pad.
(d) For new stationary liquid pesticide containment, what are the
specific design requirements? You must either anchor or elevate each
new stationary liquid pesticide container protected by a secondary
containment unit to prevent flotation in the event that the secondary
containment unit fills with liquid.
(e) For new containment pads in pesticide dispensing areas, what
are the specific design requirements? Each new containment pad in a
pesticide dispensing area must:
(1) Be designed and constructed to intercept leaks and spills of
pesticides which 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 on-
site 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 which lack
automatic overflow cutoff switches for the receiving container are
prohibited.
(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) For new stationary dry pesticide containment, what are the
specific design requirements? These are the specific design
requirements for new stationary dry pesticide containment:
(1) The stationary dry pesticide containers within the containment
unit must be protected from wind and precipitation.
(2) Stationary dry pesticide containers must be placed on pallets
or a raised concrete platform to prevent the accumulation of water in
or under the pesticide.
(3) The stationary dry pesticide container storage area must be
enclosed by a minimum of a 6-inch high curb that extends at least 2
feet beyond the perimeter of the container.
Sec. 165.87 Design and capacity requirements for existing structures.
(a) For all existing containment structures, what construction
materials must I use? These are the material specifications for an
existing containment structure:
(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. In this case, compatible means able to
withstand anticipated exposure to stored or transferred materials and
still provide secondary containment of those same or other materials
within the containment area.
(b) For all existing containment structures, what are the general
design requirements? These are the general design requirements for
existing containment structures:
(1) You must protect appurtenances and pesticide containers 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) You must seal all appurtenances, discharge outlets and gravity
drains through the base or wall of the containment structure, except
for direct interconnections between adjacent containment structures
which meet the requirements of this subpart.
(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) For existing stationary liquid pesticide containment and
existing containment pads in pesticide dispensing areas, what are the
capacity requirements? These are the capacity requirements:
(1) Existing secondary containment units for stationary liquid
pesticide containers must have a capacity of at least 100 percent 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 which
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 which
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 percent of the volume of the largest pesticide container or
pesticide-holding equipment used on the pad.
(d) For existing stationary liquid pesticide containment, what are
the specific design requirements? You must either anchor or elevate
each existing
[[Page 47436]]
stationary liquid pesticide container protected by a secondary
containment unit to prevent flotation in the event that the secondary
containment unit fills with liquid.
(e) For existing containment pads in pesticide dispensing areas,
what are the specific design requirements? Each existing containment
pad in a pesticide dispensing area must:
(1) Be designed and constructed to intercept leaks and spills of
pesticides which 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 on-
site 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 which lack automatic
overflow cutoff switches for the receiving container are prohibited.
(f) For existing stationary dry pesticide containment, what are the
specific design requirements? These are the specific design
requirements for existing stationary dry pesticide containment:
(1) The stationary dry pesticide containers within the containment
unit must be protected from wind and precipitation.
(2) Stationary dry pesticide containers must be placed on pallets
or a raised concrete platform to prevent the accumulation of water in
or under the pesticide.
(3) The stationary dry pesticide container storage area must be
enclosed by a minimum of a 6-inch high curb that extends at least 2
feet beyond the perimeter of the container.
Sec. 165.90 Operational, inspection and maintenance requirements for
all new and existing containment structures.
(a) What are the operating procedures required for all new and
existing containment structures? As the owner or operator of a new or
existing pesticide containment structure, you must:
(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 ground water) and maximum practicable recovery of the pesticide
spilled or leaked. Cleanup must occur no later than the end of each day
on which pesticides have been spilled or leaked.
(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.
(5) Ensure that each lockable valve on a stationary pesticide
container, if it is required by Sec. 165.45(f), is closed and locked
whenever the facility is unattended.
(b) What are the inspection and maintenance requirements for all
new and existing containment structures? As owner or operator of a new
or existing pesticide containment structure, you must:
(1) Inspect each stationary pesticide container and its
appurtenances at least monthly during periods when pesticides are being
stored or dispensed on the containment structure. Your inspection must
look for visible signs of wetting, discoloration, blistering, bulging,
corrosion, cracks or other signs of damage or leakage.
(2) Immediately repair 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.
(3) Not store any pesticide on a containment structure if the
structure fails to meet the requirements of this subpart until suitable
repairs have been made. Prompt removal of pesticides, including
emptying of stationary pesticide containers, in order to effect repairs
or recovery of spilled material is acceptable.
Sec. 165.92 What if I need both a containment pad and a secondary
containment unit?
You may combine containment pads and secondary containment units as
an integrated system provided the requirements set out in this subpart
for containment pads and secondary containment units in Sec. Sec.
165.85(a) and (b), 165.87(a) and (b) and Sec. 165.90, and as applicable,
Sec. Sec. 165.85(c)-(f) and 165.87(c)-(f) are satisfied separately.
Sec. 165.95 What recordkeeping do I have to do as a facility owner or
operator?
As a facility owner or operator subject to the requirements of this
subpart, you must maintain the following records, and you must furnish
these records for inspection and copying upon request by an employee of
EPA or any entity designated by EPA, such as a State, another political
subdivision or a Tribe:
(a) Records of inspection and maintenance for each containment
structure and for each stationary pesticide container and its
appurtenances must be kept for 3 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;
(4) Specific maintenance performed.
(b) Records for any non-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 that
holds pesticide but is not protected by a secondary containment unit
meeting these regulations must be kept for 3 years. Records on these
non-stationary pesticide containers must include the time period that
the container remains at the same location.
(c) 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 3 years afterwards.
Sec. 165.97 States with existing containment programs.
(a) What options are available to States that already have
containment regulations? States that have promulgated containment
regulations effective prior to August 16, 2006, and which also have
primary enforcement responsibility and/or certification programs, have
the option of continuing to implement their own programs in lieu of
these Federal regulations.
(b) How may a State request authority to continue implementing its
State containment regulations? A State with pesticide containment
regulations may request the authority to continue implementing State
containment regulations by August 16, 2007 in the following manner:
(1) The State must submit a letter and any supporting documentation
to EPA.
[[Page 47437]]
Supporting documentation must demonstrate that the States program is
providing environmental protection equivalent to or more protective
than that expected to be provided by the Federal regulations in this
subpart.
(2) The State must identify any significant changes to State
regulations which would be necessary in order to provide environmental
protection equivalent to the EPA regulations, and develop an estimated
timetable to effect these changes. The letter must be signed by the
designated State Lead Agency.
(c) How will EPA notify the State if its request is granted? EPA's
Office of Pesticide Programs will review the State's correspondence and
determine whether the State program is adequate to provide
environmental protection equivalent to or more protective than these
Federal regulations for new and existing containment structures. EPA's
Office of Pesticide Programs will inform the State of its determination
through a letter authorizing or declining to authorize the State to
continue implementing its containment regulations and will detail any
reasons for declining authorization.
(d) How must a State inform EPA of revisions to its containment
regulations? Any state that has received authorization to continue
implementing its state containment regulations must inform EPA by
letter signed by the designated State Lead Agency within 6 months of
any revision to the State's containment regulations. EPA will inform
the state by letter if it determines that the State's containment
regulations are no longer adequate based on the revisions. The State's
containment regulations will remain in effect, unless and until EPA
sends the state a letter making this determination.
[FR Doc. 06-6856 Filed 8-15-06; 8:45 am]
BILLING CODE 6560-50-S
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