(1) Effective January 2021, persons applying for a commercial pesticide applicator's license must provide, on forms approved by the department, proof of insurance in the amount required as follows:

(a) the minimum insurance must be in the amount of $50,000 for aerial applicators, and $30,000 for all other applicators; and

(b) the insurance must cover damages caused by the unintentional violations of the Montana Pesticides Act in MCA Title 80, chapters 1 through 4.

(2) Commercial seed treatment and elevator pest control applicators, whether at farm sites or their own business locations, vertebrate pest control applicators using ground applied baits only, public utility, and non-commercial applicators applying pesticides in or on properties managed by them are exempt from the financial responsibilities required in ARM 4.10.101 through 4.10.103. Demonstration and research pest-control applicators may be exempt from the financial responsibilities required in ARM 4.10.101 through 4.10.103 upon appropriate application for exemption duly approved by the department. The department will evaluate each applicant's situation as shown on the waiver application considering particularly the following factors: actual pesticide applications used by the applicant, the use of co-operators, the size of plots, and the hazards and drift potential of pesticides utilized. All applicators must comply with the requirements in ARM 4.10.104 through 4.10.108.

(3) The department will facilitate a one-year phase-in period starting January 2020 to allow pesticide applicators to begin transitioning to the new requirements before January 2021.

(1) The insurance policy must provide coverage for each and every pesticide the applicator may choose to apply.

(2) The financial responsibility requirement imposed by ARM 4.10.101 must be maintained in full force and effect during each entire licensing period. In the event of a lapse, suspension, or termination in the means assuring financial responsibility, the applicator's license(s) will automatically terminate, coinciding with the lapse, suspension, or termination of financial responsibility, and the licensee and any employees must immediately cease all applications of pesticides. In the event a previously licensed applicator whose license(s) was terminated by the provisions of this rule desires to have their license reissued for the balance of the calendar year, they must notify the department and demonstrate, to the satisfaction of the department, that they once again meet the financial responsibility requirements of ARM 4.10.101. Upon approval by the department, the applicator's license(s) may be reissued unless some other legal or regulatory cause exists for non-issuance. 

(1) The department must ascertain that the means establishing financial responsibility filed by the applicant fully complies with the act, and fully satisfies the rules adopted thereunder, prior to issuance of any license. The information demonstrating financial responsibility must be submitted on forms approved by the department. The licensee must provide a complete copy of the insurance policy upon written request from the department. The applicator has the duty and responsibility to ensure that the policy obtained provides damage coverage for every pesticide proposed to be applied during the licensing period. In the event the applicator's proposed policy of insurance contains exclusions against coverage of one or more pesticides the applicator proposed to apply, then and in that event, the applicator may submit the proposed insurance policy to provide such coverage as it affords. The applicator must, in addition, provide evidence of financial responsibility to indemnify the public against pesticide damage arising out of the use, misuse, or attempted use of each and every pesticide proposed to be used or applied which is excluded from coverage of the proposed liability insurance policy. The amount of additional coverage must be in the minimum amount required under ARM 4.10.101.

(2) The department must be notified by registered mail ten days prior to any proposed modification of the liability insurance policy requested by the licensee. Such modification must be approved by the department before the proposed modification can become final. A notice of ten days by registered mail to the department is also required prior to an insurer cancelling the licensee's liability insurance, and prior to settlement of claims made against the licensee's liability insurance.

(2)  No licensee nor certificate holder shall permit any judgement against him for damages or injury arising out of his pesticide operation to remain unsatisfied for a period of more than thirty (30)  calendar days.

(3)  Individuals experiencing non-crop vegetative damage, may upon mutual agreement with the licensee, reduced to writing, duly notarized, filed with the department, delay the final determination of the dollar amount of the damage, and judgement thereon, for a period of time, not to exceed one year from the date damage is first observed by the damaged party.

(4)  Individuals experiencing crop damage may, upon mutual agreement with the licensee, reduced to writing, duly notarized, filed with the department, delay the final determination of the dollar amount of crop damage for a period of time, not to exceed sixty (60)  days following the completion of harvest on the crops and fields allegedly damaged, provided that the licensee and the individual experiencing crop damage provide an estimate to the department of the approximate dollar value of the damages, and if necessary, that the licensee provides evidence of damaged party for the estimated damages and still maintain his minimum required financial responsibility under ARM 4.10.101.

(2)  A complete record of all settled and pending claims from the preceding licensing period must be filed when reapplying for an applicator's license. The record shall indicate for each and every incident the names of all parties involved, the location of the incident, the manufacturer and the technical name of the pesticide involved, the type of formulation, the method of application, the intended use, and the target or site, specifying the animals, wildlife, plant and aquatic life, soil, or people subjected to the unintentional pesticide application(s)  .

(3)  For settled claims, report the information required in (2)  above, together with the dollar amount of the economic loss and the final settlement agreement between all parties.

(a)  Applicators failing to file the foregoing reports, or falsifying them in any fashion, shall be subject to immediate revocation of current licenses and/or shall not be issued a license until the requirements of this section are fully satisfied.

(2)  In the event the financial responsibility guaranteed is not adequate to satisfy the judgement when fully applied thereto, then, and in that event, the applicator shall apply such additional monies or assets as may be required to fully satisfy the judgement, and the applicator's license shall not be issued until the judgement has been fully satisfied and the required financial responsibility once again brought up to the amount required of the particular applicator under rule.

(1) The licensing period shall be from the date of license issuance through December 31 of that calendar year. An applicator who applies pesticides seasonally may cancel or put on hold their financial responsibility (in effect, terminating their license) the day after their last pesticide application.

(a) The fact that an applicator cancels or puts on hold their financial responsibility is not to be construed as absolving an applicator from a suit or a claim of damages filed in a court of competent jurisdiction within the time provided by statute of limitation sections 27-2-204 and/or 27-2-207, MCA.

(1) An individual who by contract or for hire uses or applies pesticides not under the special supervision of a licensed applicator is required to become a licensed commercial pesticide applicator, except as provided for in these rules. Each pesticide applicator business location must have a licensed pesticide applicator. Any owner or person who has a financial interest in a pesticide applicator business may appoint a partner or salaried employee to become the licensed pesticide applicator. The owner or person having the financial interest in a pesticide application business shall continue to assume and is financially responsible for all uses and applications of a pesticide. The owner, manager, or licensed applicator of a pesticide applicator business may elect to have some or all of the employees of the business licensed as applicators.

(2) A person must apply for a license on the department's application form. The application must be completed in its entirety, accompanied by the licensing fee and a completed statement of financial responsibility. Applicants submitting incomplete applications and not meeting the conditions and standards expressed in the Act and department rules will be notified of such deficiencies and the procedure for correcting the deficiencies. The department will return the application along with the notice.

(3) Nonresident applicants shall be required to submit the license application, fee, financial responsibility and a completed form provided by the department designating an agent for service of process in the state. The form shall be accompanied by the appropriate fee for filing payable to the Secretary of State. The service of process shall remain valid until cancelled or modified.

(a) A nonresident corporation, which has an effective certificate of process shall appoint its own resident agent or attorney upon whom service of process may be made in such causes of action, and such service when so made shall be valid service on the agent or attorney. Service of process for these corporations shall apply to all employees transacting business in the state. The corporation shall provide to the department a list of its employees and subsequent revisions of the list for those employees licensed or to be licensed as pesticide applicators.

(b) A nonresident individual or partnership may designate the Secretary of State as its lawful agent or attorney upon whom service of process may be made in such causes of action, and such service when so made shall be valid service on the Secretary of State. Service of process for individuals or partnerships shall apply to all employees transacting business in the state. The individual or partnership shall provide to the department a list of the employees and subsequent revision of the list for those employees licensed or to be licensed as pesticide applicators.

(c) A nonresident corporation which does not have an effective certificate of authority from the Secretary of State to transact its business in Montana and which does not transact business in Montana so as to require it to procure such a certificate of authority may designate the Secretary of State as its lawful agent or attorney upon whom service of process may be made in such causes of action, and such service when so made on the Secretary of State shall constitute valid service. Service of process for corporations shall apply to all its employees transacting business in the state. The corporation shall provide to the department a list of its employees and subsequent revision of the list for those employees licensed or to be licensed as pesticide applicators.

(4) An individual applying for a public utility applicator's license shall be required to meet the same conditions and standards established within these rules for commercial applicators. For purposes of this subchapter, "public utility" means any governmental organization supplying water, electricity, transportation, etc. to the public, including utilities operated by a private entity under governmental regulation.

(5) An individual applying for a government applicator's license shall be required to meet the conditions and standards of these rules except for those specifically exempted in the Act. The department may accept for certification those federal employees certified through an EPA approved federal agency certification program or if the employee has been certified by another state with comparable requirements and standards of the department. The department reserves the responsibility to require federal employees to meet any special state certification standards.

(6) Those individuals who cannot be classified as a commercial, public utility, or government pesticide applicator or who cannot be classified as a farm applicator, but desire the use of restricted-use pesticides, shall be considered to be noncommercial applicators.

(a) The noncommercial applicators desiring to use restricted use pesticides in the state shall be required to meet the same application, examination, qualification, general and specific competency standards, recordkeeping, requalification, and other related pesticide usage and application standards as required of commercial applicators by the Act.

(b) These individuals shall be classified into one of the categories established for commercial applicators.

(c) Certified noncommercial applicators may only use restricted use pesticides on lands owned, rented, or leased by his/her employer or himself/herself.

(d) Noncommercial applicators, whether certified or not, violating the Act or these rules shall be subject to the same penalties and administrative procedures as commercial applicators.

(7) No licenses shall be issued to any person until the application, fees and all examination or requalification requirements are fulfilled and approved by the department.

(8) A licensed pesticide applicator changing his employment to another company or business within a licensing period shall be required to submit his license and any employee licenses referenced to his license to the department for cancellation. The applicator, by submission of a written request or application, may request the issuance of a new license. If the applicator paid the license fee, the department will reissue the license. If the company or business originally employing the applicator paid the license fee, the department shall not reissue the applicator's license until the fee is paid by the applicator or the applicator's new employer. If the original company paid the licensing fee, the department will credit the fee to the company for issuance of another applicator's license within the same licensing period provided that the license must not be issued until the applicant passes the required written examination or is already an approved applicator. Licenses and licensing fees must not be transferable between licensing periods.

(9) An applicator not renewing and maintaining his license and certification within the established qualification period shall be required to retake and pass the complete examination series prior to the issuance of a new license at the beginning of the next qualification period. The applicator may maintain his qualifications by attending approved requalification programs for a time period not to exceed four years. The applicator will be required to maintain his records of requalification for submission to the department for relicensing. The department reserves the right to require special examination(s) on new requirements or technology.

(10) Applicators and their employees licensed as applicators or operators shall reveal their license upon request by any individual or business, for whom the applicator or his employee is performing pesticide applications or to an authorized representative of the department.

(a) When an applicator terminates his employment, transfers his license, or modifies or cancels his license, all employee operator licenses issued under the applicator's name and license are terminated, modified, or cancelled. Employees certified as applicators may retain their license provided that their financial responsibility is still valid. New licenses will be issued to employee operators previously licensed once the business has appointed a new supervisory certified applicator.

(1) All applicants applying for a pesticide applicator's license required by 80-8-203 and 80-8-213, MCA, or desiring certification, shall be classified as either a commercial pesticide applicator, public utility applicator, government pesticide applicator, or noncommercial applicator as defined in ARM 4.10.201. Applicants that meet competency standards required by ARM 4.10.203 may use general and restricted-use pesticides.

(2) A person, whether certified as a commercial, public utility, government, or noncommercial licensed, aerial or ground applicator, shall be further classified into one or more of the specific classifications set forth in this rule. The specific classification(s) shall determine the type, substance, and comprehensiveness of each applicant's examinations and the areas, classes of pesticides, and conditions by which the applicant may conduct pesticide operations.

(a) A person certified as an applicator may use general and restricted-use pesticides for which he is qualified throughout the state.

(b) The department shall determine and classify each applicant into the most appropriate specific classification that reflects or describes the applicant's business or operation. Applicants may be classified and licensed into more than one specific classification if they meet and satisfy the requirements of each specific classification.

(c) The following specific classifications set forth in this rule do not apply to the following individuals for purposes of this regulation:

(i) individuals conducting laboratory-type research involving restricted use pesticides; and

(ii) doctors of medicine and doctors of veterinary medicine applying pesticides as drugs or medication during the course of their normal practice.

(3) The following classifications are:

(a) Agricultural pest control classification includes any applicator using or supervising the use of pesticides in the following subclasses:

(i) Plant classification includes any applicator using or supervising the use of pesticides in the production of agricultural crops, including without limiting the foregoing: small grains, feed grains, soybeans and forage, vegetables, small fruits, tree fruits and nuts, as well as on grasslands and noncrop agricultural lands.

(ii) Animal classification includes any applicator using or supervising the use of pesticides on animals including without limiting the foregoing, beef cattle, dairy cattle, swine, sheep, horses, goats, poultry and livestock, and to places on or in which animals are confined. Doctors of veterinary medicine engaged in the business of applying restricted use pesticides for hire, publicly holding themselves out as pesticide applicators, or engaged in a large scale use of restricted pesticide are included in this classification and must be certified-licensed.

(iii) Vertebrate classification includes any applicator using or supervising the use pesticides in the management of vertebrate animals normally wild or feral, including certain predators, rodents and birds, which may adversely affect man's health or property or are a nuisance to man.

(b) Forest pest control classification includes any applicator using or supervising the use of pesticides in forests, forest nurseries, and forest seed-producing areas.

(c) Ornamental and turf pest control classification includes any applicator using or supervising the use of pesticides to control pests in the maintenance and production of ornamental trees, shrubs, flowers, and turf.

(d) Seed treatment and elevator pest control classification includes any applicator using or supervising the use of pesticides onto seeds, the use of fumigants in seed storage areas or on or in seeds and the use of pesticides in or around the elevator seed storage facilities.

(e) Aquatic pest control classification includes any applicator using or supervising the use of pesticides purposefully applied to standing or running water, excluding applicators engaged in public health related activities included in classification (3)(i).

(f) Right-of-way, rangeland, pasture, and noncrop pest control classification includes any applicator using or supervising the use of pesticides to manage weeds or other vegetation in the maintenance of public roads, electric power lines, pipelines, railway rights-of-way, or other similar areas. This classification includes any applicator using or supervising the use of pesticides to manage weeds or other vegetation on grassland and pastures that are not harvested for forage, and any applicator using or supervising the use of pesticides on noncrop areas to manage weeds or other vegetation.

(g) Industrial, institutional, structural, and health related pest control classification includes any applicator using or supervising the use of pesticides in, on, or around food handling and manufacturing establishments, human dwellings, institutions such as schools and hospitals, industrial establishments including warehouses, and any other structures and adjacent areas, public or private, and for the protection of stored, processed, or manufactured products.

(i) School integrated pest management (IPM) classification includes applicators using or supervising the use of pesticides in the school environment under a "Model School Integrated Pest and Pesticide Management Safety Program", including but not limited to school yards, buildings, playing fields, and other property under the jurisdiction of the school districts.

(h) Wood product pest control classification includes any applicator using or supervising the use of pesticides for pole framing, silling applications, some home and farm uses, brush on treatments, sapstain control, and uses in nonpressure treatment plants for the protection of wood products.

(i) Public health pest control classification includes state, federal, or other governmental employees or contracted commercial applicators using or supervising the use of pesticides in public health programs for the management and control of pests having medical and public health importance. The jurisdictional health officer, state veterinarian, their duly authorized representatives, and governmental research personnel are exempt from licensing when applying general use pesticides to experimental areas.

(j) Regulatory pest control classification includes state, federal, or other governmental employees who use or supervise the use of pesticides in the control of regulated pests. The following subclassifications of government applicators are established to more accurately reflect some government applicator's specific duties and areas of operation:

(i) mosquito abatement;

(ii) predator;

(iii) quarantine;

(iv) rodent;

(v) weed;

(vi) school IPM; and

(vii) piscicide.

(k) Demonstration and research pest control classification includes:

(i) individuals who, as part of their business or job responsibility, demonstrate to the public the proper use of pesticides and pesticide application techniques or supervise such demonstrations or make or approve recommendations on pesticide product use and/or selection. Such individuals may include extension specialists, county extension agents, government employees, representatives of pesticide manufacturers or related businesses. Not included are individuals licensed as a pesticide dealer or individuals that make recommendations for pesticide products used only for home, yard, lawn or garden use; and

(ii) individuals conducting field research with pesticides and in doing so, use or supervise the use of pesticides. Such individuals include state, federal, commercial, and other individuals conducting field research on or utilizing pesticides. Demonstration and research applicators shall qualify in one or more of the classifications in (3)(a) through (j) that best represent their operations or responsibilities.

(l) Special utility classification includes applicators using or supervising the use of pesticides in the maintenance of utility rights of way, substations, and pole conditioning or other similar areas.

(m) Piscicide classification includes applicators using or supervising the use of pesticides purposefully applied to waters to eliminate fish species as a fishery management tool.

(n) Aerial applicator classification includes applicators that apply pesticides by aircraft. Aerial applicators shall qualify in one or more of the classifications in (3) (a) through (m).

(1) An individual applying for a commercial, public utility, governmental, or noncommercial applicator's license shall be required to pass a written examination prior to issuance of a license.

(a) Examinations may be taken at the department's Helena office or the applicant may make arrangements for examination at other locations in the state or in other states at the convenience and approval of the department.

(b) Any individual applying for a license shall meet the general and specific competency standards of ARM 4.10.204 and 4.10.205.

(c) The competency of applicants shall be determined by their knowledge and passage of written examinations on the subjects set forth in the department's designated manuals for applicators, including revisions, and any other manual, guide, or materials as designated by the department. Examination questions will be derived from these manuals and their degree of difficulty will be based upon the degree of importance established by the department for the various subject areas. (d) The department may accept the applicant's examination scores from other states if the examination or examinations are equivalent to the department's examination. However, all other standards and requirements of the department must be met by the applicant. All out-of-state applicators will be required to take and pass an examination based on the Montana Pesticide Act and these rules. The scores required are set forth in (3).

(2) An applicator's examination must consist of:

(a) a core examination consisting of, but not limited to, questions based on pesticide laws, rules, regulations, definitions, labeling, safety, toxicology, effects on animals, plants, and the environment, safety equipment, first aid, and alternatives to chemicals.

(b) a specific examination or examinations consisting of, but not limited to, questions based on the pests to be controlled, various control methods, pesticides utilized, environmental and safety considerations, pesticide formulations, and equipment calibration and maintenance, in the specific classification or classifications the applicator chooses for certification.

(3) The minimum passing score for applicants shall be:

(a) 80% for the core pesticide examination, and 80% for each respective specific examination required.

(b) Applicators licensed prior to April 30, 2010 who did not receive a score of 80% or higher on their core pesticide examination and/or specific classification examinations must retest or have obtained 12 hours of recertification training approved by the department before April 30, 2011.

(4) An applicant not receiving a passing score on one or more of the examinations shall be required to retake and pass the failed examination(s) prior to issuance of a license. The applicant taking more than one specific examination may elect to be certified only for the specific examination(s) passed if the applicant has passed the core pesticide examination, and at least one specific examination.

(a) Applicants failing the core pesticide examination or any other examination the first time shall not be allowed to retake the examination(s) for seven days after notification of failure. Applicants failing the examination(s) a second time may retake the examination(s) 15 days after notification. Applicants failing the examination(s) a third time shall not be allowed to retake the examination(s) until the next licensing period beginning January 1 of the next year. Reexamination may be taken at the department's Helena office or the applicant may make arrangements for reexamination at other locations in the state or in other states at the convenience and approval of the department.

(5) Applicators shall be required to requalify for licensing prior to every fifth licensing period.

(a) The department has a staggered four-year requalification time period designated by applicator classification and subclassification. Applicator classifications must requalify by December 31 of the year designated by the department. Thereafter the qualification period extends from January 1 through December 31 of the next four-year cycle.

(b) Applicator requalification must be accomplished by either passing the complete examination series or by attending 12 hours of training approved by the department. Courses must be either six, five, four, three, or two hours. An applicator requalifying for certification by attending pesticide training courses must have written verification of his/her attendance.

(6) The department retains the right to approve or disapprove training courses relative to meeting the qualifications for recertification. Training course sponsors must petition the department for approval of their courses at least 30 days prior to being held. The petition must include dates, time, location, projected attendance, speakers, and a synopsis of their presentations.

(7) The department may require applicators to pass an examination during any certification period on new pesticide technology which applies to the applicator's classification.

(a)  Label and labeling comprehension:

(i)  the general format and terminology of pesticide labels and labeling;

(ii)  the understanding of instructions, warnings, terms, symbols, and other information commonly appearing on pesticide labels;

(iii)  classification of the product, general or restricted;

(iv)  necessity for use consistent with the label.

(b)  Safety factors including:

(i)  pesticide toxicity and hazard to man and common exposure routes;

(ii)  common types and causes of pesticide accidents;

(iii)  precautions necessary to guard against injury to applicators and other individuals in or near treated areas;

(iv)  need for and use of protective clothing and equipment;

(v)  symptoms of pesticide poisonings;

(vi)  first aid and other procedures to be followed in case of a pesticide accident;

(vii)  proper identification, storage, transport, handling, mixing procedures, and disposal methods for pesticides and pesticide containers, including precautions to be taken to prevent children from having access to pesticides and pesticide containers.

(c)  Environmental consequences of the use and misuse of pesticides as may be influenced by such factors as:

(i)  weather and other climatic conditions;

(ii)  types of terrain, soil, or other substrate;

(iii)  presence of fish, wildlife, and other non-target organisms;

(iv)  drainage patterns.

(d)  Pest factors such as:

(i)  common features of pest organisms and characteristics of damage needed for pest recognition;

(ii)  recognition of relevant pests;

(iii)  pest development and biology as it may be relevant to problem identification and control;

(e)  Pesticide factors such as:

(i)  types of pesticides;

(ii)  types of formulations;

(iii)  compatibility, synergism, persistence, and animal and plant toxicity of the formulations;

(iv)  hazards and residues associated with use;

(v)  factors which influenced effectiveness or lead to such problems as resistance to pesticides;

(vi)  dilution procedures.

(f)  Equipment factors (relevant to applicator's operation)  includinq:

(i)  types of equipment and advantages and limitations of each type;

(ii)  uses, maintenance, and calibration.

(g)  Application technique factors including:

(i)  methods and procedures used to apply various formulations of pesticides, solutions, and gases together with a knowledge of which technique of application to use in a given situation;

(ii)  relationship of discharge and placement of pesticides to proper use, unnecessary use, and misuse;

(iii)  prevention of drift and pesticide loss into the environment.

(h)  State and federal laws, regulations, and rules.

(1) Certified commercial, public utility, government, and noncommercial pesticide applicators shall be examined and qualified with respect to the following practical knowledge standards:

(a) Agricultural pest control applicators may be classified into one of three areas:

(i) Plant applicators must demonstrate practical knowledge of crops grown and the specific pests of those crops on which they may be using pesticides. The importance of such competency is amplified by the extensive areas involved, the quantities of pesticides needed, and the ultimate use of the quantities of pesticides needed, and the ultimate use of many commodities as food and feed. Practical knowledge is required concerning soil and water problems, preharvest intervals, reentry intervals, phytotoxicity, and potential for environmental contamination, nontarget injury, and community problems resulting from the use of pesticides in agricultural areas.

(ii) Animal applicators applying pesticides directly to animals must demonstrate practical knowledge of such animals and their associated pests. A practical knowledge concerning specific pesticide toxicity and residue potential is also required since host animals will frequently be used for food. Further, the applicator must know the relative hazards associated with such factors as formulation, application techniques, age of animals, stress, and extent of treatment.

(iii) Vertebrate applicators must demonstrate practical knowledge of vertebrates for which they may be using pesticides. They should possess practical knowledge of the cyclic occurrence of certain pests and specific population dynamics as a basis for programming pesticide applications. The applicator must demonstrate a practical knowledge of control and application methods which will minimize the possibility of secondary problems such as unintended effects on wildlife. These applicators must demonstrate knowledge of the use of these pesticides which will minimize or prevent hazards to humans, pets, and other domestic animals.

(b) Forest pest control applicators shall demonstrate practical knowledge of the types of forest, forest nurseries, and seed production in their state and the pests involved. They should possess practical knowledge of the cyclic occurrence of certain pests and specific population dynamics as a basis for programming pesticide applications. A practical knowledge of the relative biotic agents and their vulnerability to the pesticides to be applied is required. Because forest stands may be large and frequently include natural aquatic habitats and harbor wildlife, the consequences of pesticide use may be difficult to assess. The applicator must therefore demonstrate practical knowledge of control methods which will minimize the possibility of secondary problems such as unintended effects on wildlife. Proper use of specialized equipment must be demonstrated, especially as it may be related to meteorological factors and adjacent land use.

(c) Ornamental and turf pest control applicators shall demonstrate practical knowledge of pesticide problems associated with the production and maintenance of ornamental trees, shrubs, plantings, and turf, including cognizance of potential phytotoxicity due to a wide variety of plant material, drift, and persistence beyond the intended period of pest control. Because of the frequent proximity of human habitations to application activities, applicators in this classification must demonstrate practical knowledge of application methods which will minimize or prevent hazards to humans, pets, and other domestic animals.

(d) Seed treatment and elevator pest control applicators shall demonstrate practical knowledge of the types of seeds that require pesticide protection against pests, and factors such as seed coloration, carriers, and surface active agents which influence pesticide binding and may affect germination. They must demonstrate practical knowledge of hazards associated with handling, sorting and mixing, and misuse of treated seed such as introduction of treated seed into food and feed channels as well as proper disposal of unused treated seeds. Applicators must demonstrate proper use of grain fumigants to protect seeds, knowledge of the safe handling and application techniques, worker exposure and protection considerations, and reentry standards into fumigated structures. They must demonstrate practical knowledge of using herbicides around and rodenticides and avicides in and around these structures.

(e) Aquatic pest control applicators shall demonstrate practical knowledge of the secondary effects which can be caused by improper application rates, incorrect formulations, and faulty application of pesticides used in this classification. They shall demonstrate practical knowledge of various water use situations and the potential of downstream effects. Further, they must have practical knowledge concerning potential pesticide effects on plants, fish, birds, beneficial insects, and other organisms which may be present in aquatic environments. These applicators shall demonstrate practical knowledge of the principles of limited area application.

(f) Right-of-way, rangeland, pasture, and noncrop pest control applicators are applicators who apply pesticides and who shall demonstrate practical knowledge of a wide variety of environments since right-of-way, rangeland, pasture, and noncrop sites can traverse many different terrains, including waterways. They shall demonstrate practical knowledge of problems on runoff, drift, excessive foliage destruction, and potential effects to livestock and nontarget organisms. Applicators must have the ability to recognize target plants and differentiate them from nontarget plants. They shall also demonstrate practical knowledge of the nature of herbicides and the need for containment of these pesticides within the target application site, and the impact of their application activities in the adjacent areas and communities.

(g) Industrial, institutional, structural, and health related pest control applicators must demonstrate a practical knowledge of a wide variety of pests and their life cycles, types of formulations appropriate for their control, and methods of application that avoid contamination of food, damage and contamination of habitat and exposure of people and pets. Since human exposure includes babies, children, pregnant women, and elderly people and is frequently a potential problem, applicators must demonstrate practical knowledge of the specific factors which may lead to a hazardous condition, including continuous exposure in the various situations encountered in this classification. Because health-related pest control may involve outdoor applications, applicators must also demonstrate practical knowledge of environmental conditions particularly related to this activity.

(i) School integrated pest management applicators must demonstrate a practical knowledge in the principles of integrated pest management and a knowledge of pesticides registered for use in the school environment, in addition to the knowledge required by applicators in the industrial, institutional, structural, and health-related category.

(h) Wood product pest control applicators shall demonstrate practical knowledge of the specific wood preservative products used in their operation (creosote, pentachlorophenol, inorganic arsenicals). They shall be knowledgeable about the protective clothing and equipment requirements and the requirements for proper care and disposal of work clothing and equipment. They shall demonstrate practical knowledge of application techniques which will prevent direct exposure to domestic animals and livestock, or in contamination of food, feed or drinking and irrigation water. They shall be aware of the prohibitions against eating, drinking and smoking and other potential avenues of work exposure while applying wood preservative chemicals. They must demonstrate practical knowledge of hazards of handling treated products as well as the requirements for proper disposal of pesticide waste. They must be familiar with the consumer awareness program [CAP] which will be implemented through the use of Consumer Information Sheets [CIS's] provided to the end users of the products (consuming public).

(i) Public health pest control applicators shall demonstrate practical knowledge of vector-disease transmission as it relates to and influences application programs. A wide variety of pests are involved. It is essential that they be known as recognized and appropriate life cycles and habitats be understood as a basis for control strategy. These applicators shall have practical knowledge of a great variety of environments ranging from streams to those conditions found in buildings. They should also have practical knowledge of the importance and employment of such nonchemical control methods as sanitation, waste disposal, and drainage.

(j) Regulatory pest control applicators shall demonstrate practical knowledge of regulated pests, applicable laws relating to quarantine and other regulation of pests, and the potential impact on the environment of pesticides used in suppression and eradication programs. They shall demonstrate knowledge of factors influencing introduction, spread, and population dynamics of relevant pests. In the case of some federal agency applicators, their knowledge shall extend beyond that required by their immediate duties since their services are frequently required in other areas of the country where emergency measures are invoked to control regulated pests, and where individual judgments must be made in new situations.

(k) Demonstration and research pest control applicators demonstrating the safe and effective use of pesticides to other applicators and the public will be expected to meet comprehensive standards reflecting a broad spectrum of pesticide use. Many different problem situations will be encountered in the course of activities associated with demonstrations. Practical knowledge of problems, pests, and population levels occurring in each demonstration situation is required. Further, they should demonstrate an understanding of pesticide organism interactions and the importance of integrating pesticide use with other control methods. In general, it would be expected that applicators doing demonstration pest control work possess a practical knowledge of all the standards detailed in ARM 4.10.204. In addition, they shall meet the specific standards required for classifications in (1)(a) through (g) applicable to their particular activity. Persons conducting field research or method improvement work with restricted-use pesticides shall be expected to know the general standards required for classifications in (1)(a) through (j), applicable to their particular activity, or alternatively, to meet the more inclusive requirements listed under "Demonstration".

(l) Special utility pest control applicators shall demonstrate practical knowledge of a wide variety of utility right-of-way environments. They shall demonstrate practical knowledge of problems on runoff, drift and excessive foliage destruction, and ability to recognize target organisms. They shall also demonstrate practical knowledge of the nature of herbicides and soil sterilants, the need for containment of these pesticides within the designated areas, and the impact of their application activities in the adjacent areas. They shall demonstrate practical knowledge of the specific wood preservative products used in their operation. They shall be knowledgeable about the protective clothing and equipment requirements and the requirements for proper care and disposal of work clothing and equipment. They shall demonstrate practical knowledge of application techniques which will prevent direct exposure to domestic animals and livestock, or in contamination of food, feed or drinking and irrigation water. They shall be aware of the prohibitions against eating, drinking and smoking and other potential avenues of work exposure while applying wood preservative chemicals. They must demonstrate practical knowledge of hazards of handling treated products as well as the requirements for proper disposal of pesticide waste.

(m) Piscicide pest control applicators shall demonstrate a knowledge of registered piscicides, and safety practices for use, storage and transportation. They shall demonstrate practical knowledge of the secondary effects which can be caused by improper application rates, incorrect formulations, and faulty application of pesticides used in this classification. They shall demonstrate practical knowledge of various water use situations, the potential of downstream effects and piscicide decontamination procedures. They must have practical knowledge concerning potential pesticide effects on plants, fish, birds, beneficial insects and other organisms which may be present in aquatic environments. They must show practical knowledge of water chemistry, pest identification, and the ecology within the aquatic environment. Applicators must also have knowledge of applicable laws and regulation related to introduction of pesticides into state waters, and demonstrate practical knowledge of the principles of limited area application.

(n) Aerial applicators shall demonstrate practical knowledge of laws and regulations for aerial applicator pilots, operation and application safety, preventing pesticide drift, aerial pesticide dispersal systems, calibrating aerial application equipment, and making an aerial pesticide application.

(1) Employees of certified applicators under certain conditions of use for general and restricted-use pesticides shall be required to become licensed pesticide operators. Only one certified applicator, or licensed operator shall be required for each spraying equipment unit when in actual operation. Application for an operator's license shall be made on a standard application form provided by the department.

(2) Licensed operators shall be allowed to use and apply only those pesticides that the certified applicator he is supervised by is qualified to use and apply. A licensed operator may use general or restricted-use pesticides within 100 miles of the applicator when he is under the direct supervision of a certified applicator. Licensed operators may not apply general or restricted-use pesticides beyond 100 miles of the applicator.

(3) An individual may under certain conditions be licensed as a noncommercial operator under the direct supervision of a certified noncommercial applicator. In these cases, the licensed operator may use restricted-use pesticides under the direct supervision of the certified applicator provided that the uses of the pesticides are restricted to any of the employer's premises or materials on the premises, and that the treated materials are not sold to the general public.

(4) Applicator employees required to become licensed operators shall make application for license on a form approved by the department. The license fee shall be $25 per applicant, provided that only the first two operator applicants per applicator business shall have to pay the $25 licensing fee. Thereafter, the fee per additional applicant shall be $10. Fifteen dollars ($15) of the fee for each of the first two operators and $5 of the fee for each additional operator shall be deposited in the state special revenue account as required by 80-8-205, MCA.

(5) Individuals using and applying general or restricted use pesticides shall qualify for an operator license by:

(a) passing a department examination;

(b) attending a department training course; or

(c) receiving training from a certified applicator of the business or government agency who must certify the individual's completion of the training.

(6) The training or examination shall include knowledge of pesticide law and rules, labels and labeling, safety, first aid and toxicology, effect of pesticides, factors affecting pesticide application, equipment calibration, dilution and mixing of pesticides, and recognition of common pests to be controlled. The examination or training for operators must be as specific as possible to their operations and responsibilities. Examinations will be given at the convenience and approval of the department or its authorized representative. The department shall cooperate with individual applicators or groups of applicators in establishing the training materials and examination questions, and may provide assistance to applicators in training applicants for an operator's license. The passing score for the examination must be 80%. Operators who pass the examination may not be required to pass another examination. Operators may renew their license each year by receiving in-service business or government agency training or by attending a training course approved by the department.

(7) Government operators shall meet all the standards established for commercial operators in this regulation. Government operators shall only operate within their respective governmental boundaries regardless of the number of miles from the government certified applicator's business location.

(1) Commercial, public utility, government, noncommercial applicators and their operators must keep and maintain application records for two years.

(2) Every application record performed either by an applicator or operator must include:

(a) The name of the applicator or operator applying the pesticide:

(b) Date of application;

(c) Time of application, including both start and end times;

(d) Location, including the property owner's or lessee's name and address where the pesticide was applied;

(i) The specific application site must be expressed by township, range, and section numbers, local identifiable landmarks, or latitude and longitude coordinates.

(ii) Right-of-way applications may be expressed in general terms of identifiable landmarks.

(iii) Nonagricultural applications may specify the site, building, facility, premise, or other identifiable landmarks.

(e) Equipment used;

(i) If the same piece of equipment is used for all applications, then this equipment may be listed only once. If more than one piece of equipment is utilized, the applicator may assign a number to each piece of equipment and list the equipment once by description and thereafter by number.

(f) The pesticide or pesticides used, including the company name, trade name, and the EPA registration number;

(g) The rate of application, including the amount of formulated product per volume or weight to be applied on a given unit area;

(h) The area treated (number of acres, trees, livestock, square feet or yards, etc.) or the type of treatment for structural, seed treatment, or wood product applications;

(i) The primary pest or pests involved;

(j) The site or crop treated and stage of crop development, if applicable; and

(k) Weather conditions such as wind speed, wind direction, and temperature, if applicable.

(3) Applicators utilizing two or more pesticides in a tank must record all required data for each pesticide in the tank mix.

(4) Applicators must record application information on a daily basis not to exceed 24 hours from the time of the application.

(5) Applicator records must be open to inspection by authorized employees of the department during all business hours. Applicators must submit written copies of their records or any portion of the records when requested in writing by the department.

(6) Seed treat applicators and wood product applicators must maintain records only on items set forth in (2)(a) through (h).

(7) As ruled by opinion of the Montana attorney general (Vol. No. 38, Opinion No. 1), pesticide applicator and dealer records held by the Department of Agriculture are subject to public disclosure unless the department finds that the applicator's or dealer's right to privacy clearly outweighs the public's right to know. Such determination will be considered under department policy on a case by case basis.

(a) Department publication of any information of these records which may disclose operations of selling, production, or use of pesticides by any person is prohibited under 80-8-107, MCA, and confirmed under department interpretation of a letter of explanation to the above cited opinion from the attorney general.

(8) Applicators, upon written request, must submit to the department records of each application performed with all pesticides, or those specifically named by the department. The records must be submitted within 14 calendar days of the request or as otherwise requested by the department. The request for records may include the records for the complete calendar year. The record must contain all the items listed in (2)(a) through (k), unless not required based on (6).

(a) If no applications of pesticides occurred during the requested time period, applicators must document this to the department.

(9) Farm applicators are exempt from the requirements of this rule, unless a specific reporting requirement is established in another rule.

(1) Applicators applying environmental protection agency restricted pesticides shall notify the owner, lessee or manager of the property of all precautions and restrictions prior to application of the restricted pesticide. The applicator, if requested, shall provide a copy of the label to the owner, manager or lessee. Applicators applying Environmental Protection Agency restricted pesticides in an easement or right-of-way situation shall not be required to notify any person if the applicator is employed by or specifically contracted by the person holding or managing the easement or right-of-way.

(1) All fees for services are payable upon purchase or on receipt of a billing statement. The department may assess a collection fee of 18% annual percentage rate, or assess a minimum fee of $25, whichever is greater, for any payment amount not received on or before the last regular business day of each month. The department may require past due payment of fees prior to allowing additional purchases or providing additional services, such as inspections. The fees shall be as follows:

(a) pesticide study manuals: a maximum fee of $15 for each study manual; and

(b) pesticide applicator training courses:

(i) initial pesticide applicator training courses: a maximum fee of $75; and

(ii) fall pesticide core and category-specific training courses: a maximum fee of $30.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) The sale and use of aquatic herbicides that contain one or more of the following active ingredients intended for remission of aquatic vegetation, must be designated as restricted-use:

(a) xylene,

(b) acrolein.

(1) Only licensed pesticide dealers may sell a registered, restricted-use aquatic herbicide and only under the following conditions:

(a) Sale or distribution can only be made to a certified applicator who holds an aquatic pest control license or permit issued by the department.

(b) Each dealer must maintain a complete record of each restricted-use aquatic herbicide sale. These records must be retained for a period of two (2) years. Records shall include all requirements contained within ARM 4.10.504.

(1) Only persons certified and holding an aquatic pest control applicator license or permit issued by the department may purchase, or use a restricted-use aquatic herbicide.

(a) To initially qualify a person shall pass a department aquatic herbicide examination.

(b) To maintain qualifications for certification, all applicators, except farm applicators, must comply with ARM 4.10.203(5), MCA.

(c) All farm applicators must attend six hours of department approved aquatic training, or pass an aquatic herbicide examination to maintain qualifications. The permit issued will conform to the five year qualification period established for the district in which the farm applicator resides.

(d) The department may require training to obtain or maintain an aquatic pest control applicator license if significant changes occur in aquatic herbicide use patterns or aquatic vegetation control techniques.

(a) Submit for approval a preseason aquatic vegetation management plan to the department by at least two (2) weeks prior to the first aquatic herbicide application. No applicator shall apply a restricted-use aquatic herbicide without management plan approval by the department. Management plan forms are available upon request from the department. The management plan must contain:

(i) a legible map of the ditch (preferably drawn on a USGS 7.5' topographic map or other appropriately detailed base map) area showing the location of:

(A) all ditch or canal segments, or other surface waters to be treated;

(B) all structures (flumes, siphons, wiers, waste gates, etc.) along treated segments;

(C) all state waters within the general area which treated waters parallel, cross or could potentially contaminate;

(D) all herbicide application points;

(E) all areas where treated water will be discharged;

(ii) application date(s) ;

(iii) herbicide to be used;

(iv) amount and rate of herbicide to be used;

(v) application techniques, and

(vi) weed(s) to be controlled.

(b) Maintain and update the plan as changes or modifications occur that differ from the original management plan submitted to the department. This management plan will remain on file at the department.

(c) If no changes in the management plan are anticipated, the applicator must still notify the department in writing of their intent to treat. This written notification will serve as that year's plan. A letter of approval from the department will still be required before the application may proceed.

(d) Allow an inspection of the treatment area by the department or its authorized agents prior to approval of the plan and application by the applicator. The department will notify the applicant of its decision for approval once any required inspections are completed. If the applicant desires an inspection of the treatment area, advance notice to the department of at least one (1) week is recommended.

(e) Consult the Montana department of fish, wildlife and parks prior to applying a restricted-use aquatic herbicide.

(a) These records shall include:

(i) name of the applicator and/or operator;

(ii) name of the ditch, canal, or area treated and county where located;

(iii) application point(s) and areas of ditch, canal or other surface waters treated;

(iv) company name, trade name, and the EPA registration number or formulation of the herbicide(s) used;

(v) date of application and amount and rate of herbicide used;

(vi) weeds controlled;

(vii) type of equipment used and method of application.

(b) These records will satisfy reporting requirements for all non-farm applicators described within ARM 4.10.207(1) . The records required in ARM 4.10.315 will satisfy the requirements for applicators subject to ARM 4.10.208(8) . Farm applicators are exempt from the reporting requirements of ARM 4.10.207(8) .

This rule has been repealed.

(1) A farm applicator desiring to use restricted use pesticides is required to apply for a special use permit or certificate on a form approved by the department. Each application form must be completed in its entirety prior to processing by the department.

(a) Applicants, who have completed the application form, paid the fee, passed the required examination or have attended an approved training course and have taken an ungraded quiz at the conclusion of the course, will be issued a certificate by the department to purchase and use restricted use pesticides. Passage of the required examination or attendance at a training course qualifies applicators for five consecutive years. The applicator's first requalification and recertification date will be based upon the staggered schedule established for the permit district in which the person resides.

(b) The certificate is effective for five years from the date of issuance to December 31 of the fifth year except as provided in (1)(a). Farm applicators may renew their certification to purchase and use restricted use pesticides by submitting their application and fee to the department.

(c) Training manuals and/or training materials for farm applicators are approved by the department. If the applicator elects to qualify by examination, these training manuals and/or training materials serve as the basis for the examination.

(2) The farm applicator examination or training standards, as a minimum requirement, must include those set forth in 80-8-209(3), MCA.

(3) The farm applicant passing the examination or attending an approved training course is certified to use restricted use pesticides for the purpose of producing agricultural commodities. The passing examination score is 70%.

(4) Certified farm applicators must recertify to use restricted use pesticides. Recertification may be achieved by passing an examination or by earning six credits of training approved by the department. The certification period is determined by the county and district the farm applicator resides in, and the established recertification year for each district. The districts are staggered on a five-year rotation, and the recertification period ends on December 31 of the fifth year. The districts and the counties within are listed below:

(a) DISTRICT I: Flathead, Lake, Lincoln, Mineral, Missoula, Ravalli, and Sanders;

(b) DISTRICT II: Beaverhead, Broadwater, Deer Lodge, Gallatin, Granite, Jefferson, Lewis and Clark, Madison, Meagher, Park, Powell, and Silver Bow;

(c) DISTRICT III: Blaine, Cascade, Choteau, Glacier, Hill, Liberty, Pondera, Teton, and Toole;

(d) DISTRICT IV: Carter, Custer, Daniels, Dawson, Fallon, Garfield, McCone, Phillips, Powder River, Prairie, Richland, Roosevelt, Rosebud, Sheridan, Treasure, Valley, and Wibaux; and

(e) DISTRICT V: Big Horn, Carbon, Fergus, Golden Valley, Judith Basin, Mussellshell, Petroleum, Stillwater, Sweet Grass, Wheatland, and Yellowstone.

This rule has been repealed.

(1) Certified farm applicators may request the department to issue credentials for two members of their immediate family or employees allowing them to purchase and use pesticides under the applicator's certificate and supervision. A person in possession of such credentials may only purchase restricted use pesticides for which the farm applicator is certified and may only use such pesticides upon lands owned, rented, or leased by the farm applicator.

(1) No farm applicator, family member or employee may use or recommend use of a pesticide in a manner inconsistent with registered labeling, or with any agency or department restrictions that have been placed on the use of that pesticide.

(2) No farm applicator, family member, or employee may purchase or use a restricted pesticide without either a permit or a credential. All applications made by family members or employees must be under the direct supervision of a farm applicator.

(3) For the purposes of applying 80-8-209, MCA, the term "vicinity" means using nonrestricted (general use) pesticides on lands immediately adjacent or across a road from lands owned, leased, or rented by the farm applicator doing the applications.

(4) Except as allowed in 80-8-209, MCA, and (3), a farm applicator, family member, or employee who applies pesticides for hire or regularly engages in the business of applying pesticides for others must be licensed as a commercial applicator.

(2)  Non-resident applicants shall be required to submit the license application, fee, and a completed form of service of process in the state prior to processing the application by the department.  The form shall be accompanied by the appropriate fee for filing, payable to the secretary of state. The service of process shall remain valid until cancelled or modified.

(3)  A non-resident corporation, which has an effective certificate of authority to transact its business in Montana, filing the service of process shall appoint its own resident agent or attorney upon whom service of process may be made in such causes of action, and such service when so made shall be valid service on the agent or attorney.  Service of process for these corporations shall apply to all employees transacting business in the state.  The corporation shall provide to the department a list of its employees, if more than one, the subsequent revisions of the list for those employees licensed or to be licensed as dealers.

(4)  A non-resident individual or partnership may designate the secretary of state as its lawful agent or attorney upon whom service of process may be made in such causes of action, and such service when so made shall be valid service on the secretary of state.  Service of process for individuals or partnerships shall apply to all employees transacting business in the state.  The individuals or partnership shall provide to the department a list of the employees and subsequent revision of the list for those employees licensed or to be licensed as pesticide dealers.

(5)  A non-resident corporation which does not have an effective certificate of authority from the secretary of state to transact its business in Montana and which does not transact business in Montana so as to require it to procure such a certificate of authority may designate the secretary of state as its lawful agent or attorney upon whom service of process may be made in such causes of action, and such service when so made shall be valid service on the secretary of state.  Service of process for corporations shall apply to all employees transacting business in the state.  The corporation shall provide to the department a list of its employees and subsequent revision of the list for those employees licensed or to be licensed as pesticide dealers.

(6)  Pesticide dealer outlets with a licensed dealer shall be required to list the names and address of all their employee pesticide field men and salesmen employed directly out of the same outlet as the licensed dealer.  These employees traveling and transacting pesticide sales in the state shall be required to possess and carry credentials stating that the employee is transacting business under the name and license number of a licensed dealer.  The department will provide the necessary credentials to the licensed dealer for the field men and salesmen listed on the application.  Dealers may request additional field men or salesmen credentials for new employees provided that the dealers shall return to the department any credentials for those employees terminated or no longer supervised by the dealer.  Dealers and dealer field men or salesmen shall be required upon request to show their license or license credentials to any buyer of a pesticide or to employees of the department.

(1) The retail sale of pesticides shall be limited to products:

(a) labeled for only home, yard, lawn, and/or garden uses; and

(b) classified as general use.

(2) Retail sales of pesticides not meeting these limitations shall be considered a violation of the act. All retailers shall maintain for inspectional purposes, shipping, purchase, or invoice records of pesticide products received. These records shall be maintained for two years.

(1) Licensed pesticide dealers may purchase, sell, offer for sale, or distribute any pesticide classified as general or restricted use registered in that state. Dealers will not be allowed to handle certain restricted pesticides which are registered for use, sale, or distribution by government agencies only.

(2) New applicants for a dealer license must pass a written examination prior to issuance of a license by the department. An applicant not receiving a passing score on the first examination and upon notification of failure, may retake the examination seven days after notification. Applicants failing the second examination and upon notification of failure, may retake the examination 15 days after notification. Applicants failing the third examination shall not be allowed to retake the examination until the next licensing period beginning January 1 the next year. Applicants may be reexamined at the department's Helena office or the applicant may make arrangements for reexamination at other locations in the state or in other states at the convenience and approval of the department.

(3) Competency of applicants by written examination shall be determined by their knowledge of the subjects and materials set forth in the (Pesticide Applicator Certification Core Manual), including future revisions and any other manual, guide, or materials required by the department. Examination questions will be derived from these manuals. Their degree of difficulty will be based upon the degree of importance established by the department for the various subjects. The examination must consist of but not be limited to questions on pesticide legislation; regulations and guidelines; safety and toxicology; disposal; storage and transportation; effects on animals, plants, and environment; fish and wildlife; alternatives to chemicals; pollinating insects; selection of control methods; factors affecting pesticide applications; classification and formulations of insecticides; fungicides, herbicides, and other pesticides and their uses; definitions; and recommendations for use of pesticides. The minimum passing examination score for applicants to be licensed as dealers shall be 80%.

(4) Dealers shall be required to requalify for licensing prior to December 31, 1986, and by the end of every fourth year thereafter. Dealer requalification must be accomplished by either passing a dealer examination or by attending 12 hours of training approved by the department. Courses must be either six, five, four, three, or two hours of training. A dealer attending pesticide training courses must have written verification of his/her attendance.

(a) Dealers licensed prior to April 30, 2010 who did not receive a score of 80% or higher on their core pesticide examination must retest or have obtained 12 hours of recertification training approved by the department before April 30, 2011.

(5) The department retains the right to approve or disapprove training courses relative to meeting the qualifications for relicensing. Training course sponsors must petition the department for approval of their courses 30 days prior to being held. The petition must include dates, time, location, projected attendance, speakers, and synopsis of their presentations.

(6) The department may require dealers to pass an examination during any licensing period on new pesticide technology.

(7) A dealer, not renewing and maintaining his license and qualification, within the established qualification period shall be required to retake and pass the examination prior to the issuance of a new license at the beginning of the next qualification period. The dealer may maintain his qualifications by attending approved requalification programs for a time period not to exceed four years. The dealer will be required to maintain his records of requalification for submission to the department for relicensing. The department will not maintain qualification data for persons that have not relicensed. The department reserves the right to require special examination(s) on new requirements or technology.

(8) A licensed dealer changing his employment to another company or business within a licensing period shall be required to submit to the department the license and any employee credentials for cancellation by the department. The dealer, by submission of a written request or application, may request the issuance of a new license. If the dealer paid the license fee, the department will issue the license. If a dealership or company originally employing the dealer paid the license fee, the department shall not reissue the license to the dealer or the dealer's new employer. If the company paid for the licensing fee, the department will credit the fee to the company for issuance of another dealer's license by the department within the same licensing period, provided that the license must not be issued until the applicant passes the required written examination or is already a licensed dealer. Licenses and license fees must not be transferable between licensing periods.

(9) A licensed dealer or employees supervised by the dealer shall only sell restricted-use pesticides to other dealers, certified commercial, public utility, or governmental applicators, to noncommercial certified applicators, or to certified farm applicators or their credentialed family members or employees. The dealer or dealer's employees shall only sell to a certified applicator the pesticide or pesticides within the group or class of pesticides stated on the license or permit.

(10) Dealers are allowed to sell restricted-use pesticides to persons possessing proper identification or credentials issued by the department. These credentials will state that the person is purchasing the pesticide under the name and license or permit number of a certified applicator and that the certified applicator supervises the use of the pesticide by that person. Sale of restricted-use pesticides to any person other than certified applicators or persons with departmental credentials is illegal. Such sales to any person must subject a dealer to immediate revocation of the license.

(1) Pesticide dealers, including pharmacists, veterinarians and certified pharmacies must maintain shipping, purchase, or invoice records of all pesticide products received. These records must be retained for two years.

(2) Dealers, including pharmacists, veterinarians and certified pharmacies must maintain a complete record of all restricted use pesticides purchased and sold. These records must be retained for two years.

(3) The sales record of restricted use pesticides must include:

(a) The company name on the label;

(b) The complete trade name;

(c) The EPA registration number;

(d) The volume sold;

(e) The license or permit number of the applicator or the dealer purchasing the pesticide;

(f) The date of sale; and

(g) The name of the applicator, dealer, employee, or family member purchasing the pesticide.

(4) Upon request of the department, pesticide dealers, including pharmacists, veterinarians, and certified pharmacies selling restricted pesticides, must submit records providing the information in (3).

(a) The records must be submitted within 14 calendar days of the request.

(b) If no restricted use pesticides are sold during the time period requested, this must be documented to the department.

(5) Records required of dealers, pharmacists, veterinarians and certified pharmacies must be available for inspection by authorized employees of the department during all business hours.

(6) Dealers and retailers selling retail pesticides, as designated in ARM 4.10.502, are exempt from the record keeping and reporting requirements of this rule. Records of retail pesticides must be maintained as required in ARM 4.10.502(2).

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) All persons selling, distributing, offering for sale, exchanging, giving away, bartering, using, or applying pesticides must follow label directions and labeling requirements. Only persons certified by the department may purchase, use, and apply restricted use pesticides. It is unlawful to make a restricted pesticide available for use to anyone who is not a certified applicator unless they are allowed such use in law or by rule.

(2) Only certified applicators or those under their direct supervision may use restricted use pesticides. The department may impose other restrictions, such as the type of applicator who may use the pesticide, or the time and place that the pesticide(s) may be used.

(3) Pesticides registered in the state are classified by the department as either restricted use or general. The department may classify a pesticide as restricted use if it determines that, without regulatory restrictions, the pesticide would cause unreasonable adverse effects to the environment, animals, or humans. Additional registration restrictions will be established and adopted by the department in rule.

(4) In addition to the requirements set forth in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), pesticide labeling must also meet state standards set forth in (5) through (7).

(5) Any pesticide exempted from registration under the provisions of section 18 of FIFRA must provide the department with an application in accordance with Title 40 of the Code of Federal Regulations (CFR), Part 166.

(a) Pesticides distributed under section 18 of FIFRA must include department-approved labels prior to distribution. The label must include all conditions granting emergency exemption and all other required items determined by the department. The department may establish additional requirements for registration of section 18 pesticides.

(b) Documents granting emergency exemptions may be used in lieu of labeling in situations where a label cannot be developed and approved prior to the intended use period. Conditions submitted as part of the granting document and any attached or associated documentation from the department may be considered labeling for the purpose of enforcement.

(6) Pesticides registered under the provisions of section 24(c) of FIFRA must provide the department with an application in accordance with 40 CFR, Part 162.

(a) Additional requirements for the registration of section 24(c) pesticides may be established by the department.

(7) Minimum risk pesticides must meet the provisions listed in 40 CFR, Part 152.25(f) of FIFRA. These items must also meet the requirements of the department and may be subject to refusal, suspension, or cancellation per 80-8-201, MCA. Items required by FIFRA and the state include:

(a) label(s);

(b) safety data sheet(s);

(c) statement of formula(s);

(d) efficacy data, including test methods that substantiate any pesticidal claims that appear on the product label may be required; and

(e) all claims on the manufacturer's website comply with the same conditions required of the product label.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) Pesticides registered for use in Montana under section 24(c) of FIFRA for use on alfalfa seed only are covered by this rule. The use of these pesticide products is not permitted on fields producing alfalfa for livestock feed and no portion of the treated field, including seed, seed screening, hay forage or stubble, may be used for human food or animal feed.

(2) The current year's treated alfalfa seed crop may not be used or distributed for animal feed purposes such as cut for hay, green chop, pellets, meal, or stubble, nor can grazing take place on the current year's treated alfalfa seed crops.

(3) Screenings or other crop byproducts cannot enter feed channels by distribution and/or direct use. All alfalfa seed screenings and/or crop byproducts that were treated with any of the section 24(c) of FIFRA pesticides for alfalfa seed production only must be immediately removed from the feed market, and disposed of in such a manner that they cannot be distributed or used for feed or food purposes. The alfalfa seed conditioner must keep records of all alfalfa seed screenings and their disposal (site, method, amount and type of material, date of shipment) and furnish these records to the department upon request. Treated alfalfa seed must not be used or distributed for human food (sprouting).

(4) All alfalfa seed treated with any of section 24(c) of FIFRA pesticides registered for use in alfalfa seed production only must be tagged at processing plants and such tag must state NOT FOR HUMAN CONSUMPTION AND/OR ANIMAL FEED. It is the grower's responsibility to notify the processing plants of any seed crops treated with any of the section 24(c) of FIFRA pesticides for use in alfalfa seed production only.

(5) All usage, in addition to the requirements of this rule, must comply with the section 24(c) of FIFRA labels for the pesticides registered for use in alfalfa seed production only.

(1) The annual pesticide registration fee is $130.

(2) The pesticide registration special needs fee is $8.

(1)  "Empty pesticide container" means any pesticide container from which the pesticide contents have been removed by pouring, shaking, pumping, aspirating or by other means and in which no pesticide contents remain that can be practically removed by these or similar methods.

(2)  "Pesticide container" means any package or packaging in which a pesticide is in contact with the inner surface. The term does not include any shipping material used to hold more than one pesticide container or a bulk container used for transporting or delivering a pesticide.

(3)  "Rinsate" means any mixture of rinse material and the residual contents of an empty pesticide container that is produced in the process of rinsing an empty pesticide container.

(4)  "Rinse material" means any liquid or other material permitted by the labeling or otherwise approved by the U.S. environmental protection agency or the department to rinse empty pesticide containers.

(5)  "Rinsed pesticide container" means an empty pesticide container that has been triple or power rinsed or rinsed by equivalent procedures as described in ARM 4.10.803.

(6)  "Visible residue" means any rinsate with an amber, milky or other coloration associated with a specific pesticide.

(1)  All empty pesticide containers shall be triple or power rinsed or

(a)  Aerosol containers, fiber drums with liners, paper, fiber and plastic bags, containers designated by label for refilling, water soluble containers and compressed gas cylinders are exempted from this rule. Rinsing instructions on the pesticide container label must be followed.

(b)  Containers from retail pesticides labeled only for home, yard, and garden uses as set forth in ARM 4.10.502 are exempt from this rule. These containers should be rinsed according to the procedures of this rule.

(2)  The following procedures are the standard for triple, power or equivalent rinsing:

(a)  Triple rinse procedures:

(i)  The minimum amount of rinse material for each rinse shall be based upon the container size as specified below:

    container size                  amount of rinse material

     less than 5 gallons         1/4 of the container's volume

     5 gallons or more           1/5 of the container's volume

(ii)  The required amount of rinse material shall be added to the pesticide container. The lid or other closure device shall be secured and the container agitated to ensure contact of the rinse material with all inside surfaces.

(iii)  The rinsate shall be poured from the container and the container allowed to drain for 30 seconds.

(iv)  The rinse procedures shall be repeated a second and a third time.

(v)  The rinse procedure shall be repeated until no visible residue is present.

(b)  Power rinse procedures:

(i)  The minimum amount of rinse material shall be 1/2 the volume of the container.

(ii)  The minimum pressure of the rinse material shall be 15 pounds per square inch.

(iii)  The nozzle shall be capable of rinsing all inner surfaces of the container.

(iv)  Rinsing shall continue until no visible residues are present.

(v)  The container shall be drained for 30 seconds.

(c)  Equivalent rinse procedures: Any person may apply for department approval of a procedure for rinsing pesticide containers. The application shall include:

(i)  A narrative description of the procedure.

(ii)  Laboratory analytical results that demonstrate that removal of residues is as effective as triple rinsing or power rinsing.

(iii)  Documentation that the analytical methods are scientifically acceptable and results are statistically valid. This may include submittal of quality assurance/quality control documentation, policy and practices.

(iv)  Information and data that illustrate that pesticide exposure to persons conducting the procedure is not greater than exposure from triple or power rinsing procedures.

(v)  Information and data that illustrate that adverse effects to the environment are not greater than from triple or power rinsing procedures.

(vi)  The department may deny or approve the request based upon the information from the applicant and from data and information from other sources. The department may also withdraw its approval should further information reveal that the procedure is not equivalent to accepted procedures, pesticide exposure is greater than previously believed or adverse environmental problems result.

(2)  Rinsates may be used as a diluent in pesticide mixtures where:

(a)  the pesticides in the rinsate and the mixture are the same or compatible;

(b)  tank mixing is not prohibited by the pesticide labels;

(c)  the application site is listed on each pesticide label.

(3)  Disposal of rinsates is prohibited except as permitted by the label or by Title 75, chapter 10, MCA and rules adopted thereunder.

(4)  Rinsates may be temporarily stored but shall not be stored longer than one year.

(a)  The container(s)  storing the rinsate must have the following information on a label attached to the container:

(i)  The date that the rinsate was placed in the container;

(ii)  the active ingredient(s)  in the rinsate;

(iii)  company name, trade name, formulation and environmental protection agency registration number for each product in the rinsate;

(iv)  signal word; and

(v)  name of responsible person(s)  .

(5)  Rinsates must be used or disposed of in a manner that prevents any agricultural, environmental or human health problems.

(2)  Empty pesticide containers not required to be rinsed shall be disposed of within 7 days, preferably within 48 hours, following procedures in ARM 4.10.806.

(3)  Containers authorized by the label for refilling are exempted from this rule.

(a)  The cap shall be replaced.

(b)  The container shall be wrapped in absorbent material.

(c)  The container shall be discarded in a sanitary landfill.

(d)  Aerosol containers shall not be punctured, burned or incinerated.

(2)  Fiber drums with liners and paper or plastic bags shall be handled in the following manner:

(a)  Clinging particles shall be loosened by shaking and tapping sides and bottom of the liner or bag and placed in application equipment.

(b)  The drum and liner or bag shall be discarded in a sanitary landfill.

(3)  Compressed gas cylinders shall be handled in the following manner:

(a)  Label directions, precautions, and procedure for returning the container to the dealer, registrant or formulator shall be followed.

(4)  Other pesticide containers not described in this rule must be disposed of according to the label directions.

(1) The Department of Environmental Quality (DEQ) must approve pesticide container burning or incineration.

(2)  No person shall use, reuse, offer for sale, exchange or give away an empty or rinsed pesticide container for any purpose, except as allowed by these rules.

(3)  Any person licensed, certified or permitted under the Montana Pesticides Act or persons that are required to possess such credentials shall be responsible for training, supervising and monitoring employees or any other person involved with the rinsing and/or disposal of pesticide containers. The responsibilities include educating and training employees or other persons on labeling precautions and directions; the rules contained in this sub-chapter; and appropriate measures to protect agriculture, human health and the environment.

(4)  Empty or rinsed pesticide containers shall be stored within an enclosure that restricts entry by unauthorized persons. Transportation of empty or rinsed pesticide containers shall be in a manner that protects human health and the environment.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1)  "Animal poisoning" means a pesticide exposure to humans, livestock or domestic and wild animals resulting in acute and/or chronic illness, harm or death normally verified respectively by a physician, a veterinarian or a recognized wildlife pathologist. This verification should include documentation either by a laboratory bioassay, analytical confirmation, or another department approved scientific method.

(2)  "Exposure" means the process and/or result of introducing a pesticide by any method or route onto or into humans, livestock, animals, crops, plants or the environment. Entry into treated areas in violation of a restricted entry interval, failure to provide required protective equipment (PPE)  or clothing, failure to provide required decontaminating facilities or failure to provide required facilities for care, storage or cleaning PPE or clothing constitutes exposure.

(3)  "Harm" means the exposure due to the improper use or misuse of a pesticide by direct application or otherwise resulting from application or use, resulting in but not limited to:

(a)  physical or biological acute, subacute or chronic pesticide damage, injury or poisoning to humans, livestock, animals, crops, plants or to the environment;

(b)  pesticide residues that prevent the planting, harvesting production, grazing, consumption or sale of crops, livestock, plants or animals;

(c)  contamination of potable drinking water or contamination of ground or surface waters or air exceeding state or federal standards.

(4)  "Pesticide poisoning" means animal or plant poisoning which may result in discernible adverse effects on the physical structure, growth, population level, or reproduction rates of organisms verified by qualified animal or plant specialists in combination with either a laboratory bioassay, laboratory analytical confirmation or another department approved scientific method.

(5)  "Plant poisoning" means a pesticide exposure to plants or crops resulting in the acute or chronic destruction, loss, reduction or damage to the plants, verified by either a recognized plant pathologist, botanist or a trained department pesticide specialist. This verification should include documentation from either a laboratory bioassay, a laboratory analytical confirmation or another department approved scientific method.

(6)  "Proven exposure" in cases of misuse means:

(a)  to establish the validity or authenticity of exposure by documentation of pesticide residues on or in humans, agricultural commodities or livestock by laboratory analysis or bioassay;

(b)  documentation of exposure by other investigative or scientific methods including signs and symptoms caused by exposure to pesticides;

(c)  documentation of entry by a person into a treated area in violation of a restricted entry interval; or

(d)  documentation of failure to provide protective equipment, clothing, decontamination facilities, or facilities for care, storage or cleaning of personal protective equipment required by a pesticide label.

(7)  "Proven harm" in cases of misuse means to establish the validity or authenticity of exposure, harm or poisoning by demonstrating adverse effects through verification by a recognized animal, plant, human health, or pesticide specialist, which may include documentation of the pesticide by laboratory analytical or bioassay confirmations or other approved scientific methods.

(8)  "Significant harm" means having a measurable or verified observation of adverse effect(s)  , on health, environment, agricultural crops or livestock.

(1)  Where a determination of the appropriate amount of the penalty must be made under 80-8-306(5)(d), MCA the "effect on the person's ability to stay in business" will be considered when the charged person submits bonafide financial information accompanied by appropriate documentary evidence. The charged person may request a reduction in a civil penalty or an alternate payment schedule.

(1)  Each violation of the Montana Pesticides Act and/or rules adopted thereunder is considered a separate offense. Each offense is subject to a separate penalty not to exceed $2,500, with the exception of farm applicators whose penalty cannot exceed $500 for the first offense.

(2)  The penalty matrixes in this rule establish the penalty for each offense that is a major violation or reoccurrence of a major violation. The values in parentheses establish the penalty for farm applicators possessing a permit. The gravity of the violation, the degree of care exercised and the degree of harm to health, environment, agricultural commodities, or livestock may decrease or increase the penalties listed below. The department shall have the option to select the most appropriate penalty and penalty value for each violation.

(3)  Where a penalty is assessed for reoccurrence of a violation within two years of the first violation, the two year period will start on the date that the preceding violation occurred. All appeals procedures and rights to contest and a final order concluding the violation must be completed for the preceding violation(s).

(4)  Penalties are assessed according to the following penalty matrix:

(a)  misuse resulting in proven exposure or proven harm to:

(b)  misuse resulting in proven harm to environment:

Surface or ground water
Poisoning or harm to aquatic plants or animals	$ 500 (100)	$1,000	$2,500
Domestic, livestock, or irrigation purposes or other beneficial uses affected	1,000 (200)	2,000	2,500
Residues equal or exceed state or federal standards	1,000 (200)	2,500	2,500
Soil
Residues that prevent growth of plants	500 (100)	1,000	2,500
Structure or biota adversely affected	500 (100)	1,000	2,000
Animals
Illness or harm	500 (100)	1,000	2,500
Death	1,000 (200)	2,000	2,500
Residues that prevent or restrict consumption by humans	1,000 (200)	2,000	2,500
Plants other than agricultural commodities
Damaged, normal the following season	500 (100)	1,500	2,500
Damaged, abnormal the following season	1,000 (200)	2,000	2,500
Destroyed	2,000 (400)	2,500	2,500
Air
Contaminated at or above state or federal health standards	1,000 (200)	2,500	2,500

 

(c)  sale of a restricted pesticide to a person not certified or authorized to purchase restricted pesticides:

(d)  use or sale of an unregistered pesticide:

General	$1,000 (200)	$2,000	$2,500
Restricted	1,500 (300)	2,500	2,500
Canceled or suspended	1,500 (300)	2,500	2,500

 

(e)  failure to maintain any individual pesticide application and sales records:

General use pesticides	$250 (50)	$500	$1,000
Restricted use pesticides	500 (100)	750	1,500

 

(f)  use of a pesticide without having obtained the

required license or permit:

Commercial, government, public utility or non- commercial applicators or operators or farm applicators
General	$ 500	$1,500	$2,500
Restricted	1,000	2,000	2,500
Permitted farm applicator Restricted	250	1,000	2,000

  

(g)  sale of a pesticide without having obtained the required license:

General	$ 500 (100)	$1,500	$2,500
Restricted	1,000 (200)	2,000	2,500

 

(h)  noncompliance with pesticide worker protection standards and labeling:

(i)  noncompliance with pesticide ground water and environmental protection agency endangered species standards and labeling:

(j)  noncompliance with pesticide or pesticide container disposal, labeling or handling requirements and standards:

(k) reoccurrence of any identical violation of this chapter (Title 80, chapter 8, MCA) within two years of the first violation excluding the major violations set forth above:

(a)  a restricted use pesticide is involved versus a general use pesticide;

(b)  a more toxic pesticide is involved;

(c)  an antidote to the pesticide is not available;

(d)  pesticide residue levels exceed established federal tolerances or action levels;

(e)  pesticide residue levels exceed established federal or state standard or health guidelines for surface or ground water;

(f)  the extent, type, kind, nature and severity of exposure or harm to human health, commodities, environment, or livestock;

(g)  the person's history of compliance with the Montana Pesticides Act, rules, and department orders illustrates continued noncompliance or disregard for compliance;

(h)  whether ambient air levels of a pesticide exceed state or federal standards or guidelines;

(i)  timeliness in correcting a violation;

(j)  cooperation during an inspection or investigation;

(k)  multiple violations are present;

(l)  violations that have potential to result in exposure or harm;

(m)  timely and voluntary settlement of damages;

(n)  the person has knowledge of the act or rules which were violated.

(a)  misuse which occurs through little or no negligence of the charged party may mitigate the penalty;

(b)  misuse which occurs through negligence may have a neutral effect in either mitigating or enhancing the penalty;

(c)  misuse which occurs as a result of gross negligence may enhance the penalty.

(2)  In further determining the applicability of the above categories, the following definitions will apply:

(a)  no negligence means an inadvertent violation which was unavoidable by the exercise of reasonable care;

(b)  negligence means a failure to exercise reasonable care;

(c)  reasonable care means that degree of care demonstrated with a knowledge of the nature and probable consequences of the act or omission that a prudent man would ordinarily exercise in acting in his own concerns;

(d)  gross negligence means knowing, intentional or reckless conduct.

(1)  For purposes of 80-8-306(5)  (b)  (ii)  through (vi)  , MCA a violation is deemed to have occurred if the conduct falls under any of the enumerated categories, without regard to the standard of care exercised. However, the department may consider evidence thereof for purposes of determining and mitigating the amount of penalty. To the extent they are applicable, the department will evaluate the standard of care in the same manner as is stated for determining misuse under ARM 4.10.1007.

(1) Failure to comply with the worker protection standard and associated labeling requirements violates the Montana Pesticides Act and is subject to civil penalties pursuant to 80-8-306, MCA.

(2) Persons using pesticides referencing the worker protection standard, labeled 40 CFR, part 156, subpart K, must comply with worker protection statements and the worker protection standard. Failure to comply constitutes use of a pesticide in a manner inconsistent with the label.

(3) Pesticides labeled for use in the production of agricultural plants on agricultural establishments, defined in 40 CFR 170.3, must be labeled with worker protection statements set forth in 40 CFR, Part 156, subpart K. A pesticide not so labeled is misbranded. It is a violation to distribute, sell, or offer for sale or deliver for transportation or transport in intrastate commerce any misbranded pesticide, and is subject to a civil penalty pursuant to 80-8-306, MCA.

(a)  failure to comply with label or labeling directions relating to ground water or endangered species requirements including requirements in bulletins referenced by labels;

(b)  failure to comply with administrative rules requiring containment, spill reporting, spill cleanup, or emergency response plans; or

(c)  failure to comply with ground water specific management plans adopted as administrative rules pursuant to Title 80, chapter 15, MCA.

(2)  For the purpose of determining civil penalties, any such violations shall constitute misuse. If a misuse violation results in proven exposure of humans, agricultural commodities, or livestock, or proven harm to human health, agricultural commodities, livestock, or the environment, the amount of a civil penalty may be determined by using the penalty matrix established for 80-8-306(5)  (e)  (i)  , MCA. Other violations will be subject to civil penalties established in ARM 4.10.1005(4)  (i)  of the civil penalty matrix.

(1)  The following are considered violations:            

(a)  failure to comply with label directions for disposal of a pesticide;            

(b)  failure to comply with ARM 4.10.801 through 4.10.808 (Rinsing and Disposing of Pesticide Containers);

(c)  failure to comply with pesticide label directions for handling such as application instructions, storage, protective clothing or equipment, precautionary statements, restrictions, re-entry intervals, mixing and loading instructions and others; or

(d)  distribution, sale, or offering for sale or delivering for transportation, or transport in intrastate commerce between points in the state any pesticide that is not labeled as required by ARM 4.10.1009 through 4.10.1011.

(2)  For the purpose of determining civil penalties, violations in (1)(a) through (d) shall constitute misuse. If a misuse violation results in proven exposure of humans, agricultural commodities, or livestock, or proven harm to human health, agricultural commodities, livestock, or the environment, the amount of a civil penalty may be determined by using the penalty matrix established for 80-8-306(5)(e)(i), MCA. All other violations under this rule will be subject to civil penalties established in ARM 4.10.1005(4)(j) of the civil penalty matrix.

(1)  A person subject to a civil penalty or charged with a violation may submit a written application to conduct remedial action ( 80-8-306(3)  , MCA)  in lieu of all or part of a civil penalty. The department will consider remedial actions that exceed the requirements of statute, rules or orders and that:

(a)  correct harm caused by pesticides to human health, agricultural commodities, livestock, or the environment;

(b)  prevent the occurrence of harm; and

(c)  benefit the public.

(2)  The department will consider applications upon receipt of a written application or plan that describes in detail the remedial action, procedures, costs, the benefits of the remedial action, responsible persons, dates and schedules.

(3)  The department may require that the persons submit written confirmation upon satisfactory completion of the action.

(4)  Upon demonstration by the charged person that remedial actions are completed as approved by the department, the civil penalty or a portion thereof may be dismissed.

These definitions apply to all rules adopted under the Montana Pesticides Act, Title 80, chapter 8, MCA.

(1) "Appurtenances" means all valves, pumps, fittings, pipes, hoses, metering devices and mechanical devices which are connected to a pesticide storage container or are used to transfer a material into or out of a storage container.

(2) "Bulk pesticide" means any pesticide which is transported or held in an individual container in undivided quantities of greater than 55 U.S. gallons liquid measure or 100 pounds net dry weight.

(3) "Dry pesticide" means any pesticide which is in solid form.

(4) "Liquid pesticide" means any pesticide in liquid form.

(5) "Operational activities" means transferring, loading, unloading, mixing, repackaging, and refilling pesticides; and emptying, cleaning, or rinsing refillable containers.

(6) "Permanent storage facility" or "PSF" means a facility or location where any primary containment capable of storing more than 500 U.S. gallons or 4,500 pounds of formulated bulk pesticides is in-service for more than 14 consecutive days. Primary containment capable of being moved and not in-service at a single site for more than 14 days is not a PSF. PSF will include primary containment and secondary containment.

(7) "Precipitation" means rain, snow, sleet or hail.

(8) "Primary containment" means a dedicated container or vessel effectively designed and constructed to contain a pesticide. Application equipment is excluded.

(9) "Secondary containment" means a device or an area or structure designed, constructed and maintained to hold or confine or prevent a discharge of pesticides from primary containment and appurtenances.

(10) "Spill" means a release, leak, discharge, disposal or escape of pesticides or pesticide mixtures into the environment, whether accidentally or not, including the discarding or abandonment of pesticide containers, but excludes the use or disposal of pesticides or pesticide containers in a manner consistent with approved labels and in compliance with the Montana Pesticides Act and the Federal Insecticide, Fungicide and Rodenticide Act, as amended.

(a)  an immediate response to pesticide spills should be undertaken according to local emergency operations plans; and responsible persons can, where appropriate, contact the local emergency operations jurisdiction or the state 24-hour number for disaster and emergency services at (406)444-6911.

(2)  All persons shall report to the department within 48 hours spills occurring as a result of their use of pesticides or spills of pesticides in facilities or from equipment under the control of that person.

(a)  spills confined within secondary containment are exempt from the reporting requirement.

(b)  spills of pesticides not exceeding an aggregate amount of 5 U.S. gallons or 100 U.S. dry pounds are exempt from reporting. The aggregate amount includes formulated product, diluent and other additives.

(c)  the reporting requirements include, but are not limited to the following information:

(i)  the specific location of the pesticide spill, including legal description, landmark references or address. The location shall be described in terms that are adequate for the department or emergency responders to locate the spill;

(ii)  the manufacturer's name and complete trade name of the product or products spilled;

(iii)  the amount of pesticide spilled; and

(iv)  the name, address and telephone number of the person reporting the spill or the person who is the primary contact.

(3)  All pesticides or contaminated material recovered from a spill shall be placed in containers.

(a)  the container(s)  must have the following information on a label attached to the container:

(i)  date the material was recovered into the container(s)  ;

(ii)  the active ingredient(s)  , trade name, and formulation;

(iii)  environmental protection agency registration number for each product;

(iv)  signal word; and

(v)  name, address and telephone number of the responsible person.

(b)  contained materials must be stored, recycled, used or disposed of in accordance with label instructions, rinsing and disposing of pesticide containers as per ARM 4.10.801, and all state and federal disposal regulations.

(4)  All persons not subject to ARM 4.10.1103 through 4.10.1109, constructing a mixing and loading or containment facility may follow the bulk pesticide containment rules or the guidelines in the publication "Designing Facilities for Pesticide and Fertilizer," David W. Kammel, MidWest Service, or similar construction guidelines.

(5)  Persons using water to mix or load pesticides or to clean or rinse pesticide equipment or containers shall use a backflow prevention device or procedures, such as an air gap or check valve, to prevent contamination of all water sources. Any person using a public water supply must comply with ARM 17.38.301 and 17.38.305.

(6)  Any person that causes pesticide contamination of soil or water through faulty, careless or negligent mixing, loading, transferring, or storage of pesticides may be required by the department to construct containment for the control of pesticide spills. Implementation of this provision does not preclude the department from initiating other remedial or enforcement actions authorized by Title 80, chapter 8, MCA.

(7)  Persons, whether licensed or not, who use or sell pesticides are responsible for remediating spills caused during their use or sale of pesticides or caused by persons under their supervision or employment.

(8)  The department encourages all persons mixing, loading or transferring pesticides, and using or cleaning pesticide application equipment to have an emergency spill response plan as set forth in ARM 4.10.1108.

(9)  Upon the written request by a person, the Montana department of agriculture may approve a deviation from this rule if the deviation maintains the intent of the rule. This request shall describe the proposed deviation and reason for the deviation.

(1) Any person constructing or operating a new PSF or making an addition to an existing PSF must comply with ARM 4.10.1101 through 4.10.1109.

(2) A person who operates a PSF prior to April 30, 2010, shall, within two years, bring their facility into compliance with ARM 4.10.1101 through 4.10.1109.

(3) Mobile containers such as railcars or tank trucks used to transfer pesticide to or from a PSF must use catch basins that may be temporary and portable, to recover spills from connections.

(4) Protection against vandalism or unauthorized access shall be provided for at a PSF. Valves on primary containment shall be closed, locked or otherwise secured when not in use.

(5) Floor drains are not permitted in facilities designed to contain spills of pesticide and pesticide mixtures unless:

(a) complete and reasonable access for routine inspections is provided for the entire system.

(b) all parts of the drain and its systems are constructed above the normal ground plane of the immediate surrounding area.

(c) the floor drain shall be for recovery purposes only.

(d) discharge outlets, valves and gravity drains on existing secondary containment that do not comply with this rule shall be sealed upon adoption of these rules.

(a)  primary containment and appurtenances shall be constructed, installed and maintained to prevent a spill of pesticide.

(b)  primary containment and appurtenances shall be of materials which are resistant to corrosion, puncture and cracking.

(c)  materials used in the construction or repair of primary containment and appurtenances may not be of a type which react chemically or electrolytically with stored pesticides in a way which may weaken the storage container or appurtenances, or create a risk of discharge.

(d)  materials used for valves, fittings and repairs shall be compatible with the materials used in the primary containment.

(e)  primary containment and appurtenances shall handle all operation stresses, taking into account static head, pressure buildup from pumps and compressors, and any other mechanical stresses to which the primary containment and appurtenances may be subject in the foreseeable course of operations.

(f)  every primary containment connection, except a safety relief valve and conservation vent connection, shall be equipped with a manual shut-off valve.

(g)  appurtenances shall be adequately supported to prevent sagging and possible breakage because of gravity and other forces encountered in the ordinary course of operation.

(h)  primary containment and appurtenances shall be protected against reasonably foreseeable risks of damage by moving vehicles or objects.

(i)  primary containment, not in-service for longer than two years shall be thoroughly cleaned with all hatches secured and all valves or connections secured. Vents shall be functional. An integrity test shall be performed before primary containment can be placed back in service.

(j)  primary containment shall be anchored or secured or elevated to prevent instability or flotation as a result of liquid accumulations within the secondary containment.

(k)  primary containment may not be filled beyond the capacity for which it is designed, taking into account the density of the liquid being stored and thermal expansion during storage.

(l)  primary containment retaining liquid shall be equipped with a liquid level gauging device by which the level of liquid in the storage container can be readily and safely determined. A gauging device is not required if the liquid in the container can be measured safely by other means. The gauging device shall be secured to protect against breakage or vandalism which may result in a discharge. External sight gauges must be equipped with an automatic shut-off valve.

(m)  primary containment used for liquid pesticide shall be equipped with a conservation vent which opens and closes within the designed pressure limits of the container.

(n)  All primary containment shall be labeled in accordance with the labeling requirements set forth in the Code of Federal Regulations Title 40, parts 152 and 156 (July 1, 1996)  , which are hereby incorporated by reference. Copies of 40 CFR, parts 152 and 156 are available upon request to the Montana Department of Agriculture, P.O. Box 200201, Helena, MT 59620-0201. The registered product label shall be attached to primary containment in a prominent location. The label shall be complete and legible.

(a)  secondary containment not protected from precipitation shall contain at least 125% of the volume of the largest primary containment within the secondary containment plus the displacement of all other primary containment, appurtenances, and other items which cause displacement within the secondary containment.

(b)  secondary containment located indoors or under a roof to prevent accumulation of precipitation shall contain at least 110% of the volume of the largest primary containment plus the displacement of all other primary containment, appurtenances, and other items which cause displacement within the secondary containment.

(c)  the walls and floors of secondary containment shall be constructed of steel, poured reinforced concrete, precast concrete modules, solid masonry, synthetic liners, or other materials that will provide secondary containment. Floors and walls constructed of clay, natural soil, natural soil clay mixtures or clay bentonite mixtures are prohibited. Materials used in the secondary containment shall be chemically compatible with the pesticides being stored. A written conformation of compatibility from the manufacturer and kept on file at the PSF or at the nearest office from which the PSF is administered is recommended.

(d)  walls shall withstand a full hydrostatic head of any spill, and shall be sealed to prevent leakage.

(e)  piping through the outside walls of a secondary containment is prohibited.

(f)  the secondary containment floor shall slope to a liquid tight collection point or sump that allows spilled or deposited material to be easily removed. Any pump used for recovering materials from the secondary containment shall be manually activated.

(g)  synthetic liners shall be installed under the supervision of a qualified representative of the manufacturer, a contractor certified by the manufacturer, or a certified engineer. All seams shall be tested and repaired, if necessary, in accordance with the manufacturer's recommendation. A record regarding installation date, life expectancy and chemical compatibility must be kept.

(h)  a prefabricated secondary containment shall be composed of a rigid prefabricated basin having a base and walls constructed of steel or synthetic materials which are resistant to corrosion, puncture and cracking.

(i)  the prefabricated secondary containment shall withstand all foreseeable loading conditions, including the primary containment load and a full hydrostatic head of any spill. Multiple basins shall be connected in a manner which assures an adequate transfer of discharge between basins.

(j)  discharge outlets, valves or gravity drains shall comply with ARM 4.10.1103(5)  .

(k)  secondary containment for pesticides must be separate from containment for fertilizer, but they may have a common wall or partition.

(1) Operational activities must meet the following standards:

(a) if operational activities are conducted within secondary containment, the containment shall comply with ARM 4.10.1105 and must withstand the weight of any vehicles and storage containers used within the secondary containment.

(b) a person conducting operational activities outside of secondary containment must conduct these activities on a containment pad.

(c) the containment pad must have a capacity of at least 750 gallons. If the largest container to be used on the containment pad is less than 750 gallons, the capacity of containment pad must be 100 percent of the largest pesticide container or pesticide holding equipment used on the pad.

(d) the surface area of the containment pad must extend completely beneath any container used on the pad. For transport vehicles, excluding railcars, the surface area of the pad must extend beyond any valve or hose coupling used in the transfer of pesticide materials.

(e) the containment pad must be constructed in a manner that permits removal and recovery of spilled, leaked, or discharged materials and rainfall. The surface of the pad must be sloped toward an area where liquids can be collected for removal.

(f) the containment pad must be constructed of materials and with specification as required for secondary containment in ARM 4.10.1105.

(g) temporary or portable catch basins must be used under fittings or connections not located over a containment pad during pesticide transfers. An attendant must be present during all operational activities.

(1)  Precipitation or other liquids or debris shall not be allowed to accumulate in secondary containment to the point where required containment capacity is not maintained. Spills, debris, precipitation or wash water in secondary containment shall be recovered immediately if the capacity is reduced to less than required by ARM 4.10.1105(1)  (a)  and (b)  .

(2)  The department must be immediately notified of any spills outside of the secondary containment in accordance with ARM 4.10.1102(2)  .

(3)  Recovered pesticides and contaminated materials shall be labeled, and stored, recycled, used, or disposed of in accordance with ARM 4.10.1102(3)  .

(2)  The plan shall include, but not be limited to, the following elements:

(a)  the names and telephone numbers of the persons and agencies who are to be contacted in the event of a spill.

(b)  a material safety data sheet for each pesticide stored at the facility and a copy of its label and labeling.

(c)  the procedures used for controlling and recovering a spill for each type of pesticide stored. These procedures should be kept current.

(d)  an inventory of all pesticides and their total volume at the PSF. An inventory shall be updated at least monthly and when a shipment of greater than 500 U.S. gallons or 4,500 pounds of product in undivided quantities is received or dispatched.

(e)  the type of emergency equipment and supplies and their location to protect personnel, to contain, recover and store in the event of a spill.

(f)  at least one copy of the emergency response plan shall be located at the PSF and a second copy maintained off the premise to ensure its availability in case of an emergency. A responsible person shall be knowledgeable of the locations of plans.

(1) Any person operating a PSF shall maintain written records of all inspections and maintenance of the PSF for at least two years that include:

(a) the name of the person conducting the inspection or maintenance;

(b) date of the inspection;

(c) conditions noted; and

(d) specific maintenance performed.

(2) All appurtenances and primary containment holding bulk pesticides must be inspected weekly for damage and leakage. Secondary containment and containment pads must be inspected at least monthly during the use season for cracks or other damage to the containment structures which may permit discharge outside the containment structures.

(3) Regular maintenance of PSF, secondary containment, and containment pads must be performed to ensure that the integrity of the sites is maintained.

(4) Repair of seals, cracks, gaps, or other damage in containment structures or appurtenances must be initiated upon discovery and completed within a time frame that is reasonable.

(1) The department establishes rules regarding the registration and restricted use of 1080 livestock protection collars to control coyotes (Canis latrans) that depredate sheep and goats.

(2) Registrants of the collar, dealers selling the collar, and applicators using the collar are subject to future labeling restrictions and requirements designated by the department.

(1) Registration of the collars for sale or distribution in the state is limited to state and federal registrants only.

(2) The registrant may not sell, transfer, transport, give away, or entrust collars to any individual who is not properly licensed or permitted by the department.

(3) Only the registrant or the collar manufacturer is authorized to fill collars with 1080 solution.

(1) The department or a federal agency may become licensed dealers for the sale and distribution of the collars. The dealer must maintain an inventory record of collars purchased, sold, distributed, given away, or entrusted. The record must include the date of sale, the applicator's name, address, phone number, license or permit number, EPA registration number, expiration date, and the number of collars.

(2) The dealer may only sell, give away, or entrust collars to properly licensed or permitted applicators.

(1) An individual who uses collars must be a licensed or permitted applicator as required in ARM 4.10.201 or 4.10.401. All individuals must pass a written examination as required in ARM 4.10.203(3)(a) and (4)(a) and attend a training course sponsored by the department. The training course includes, but is not limited to:

(a) The safe use, handling, and attachment of collars;

(b) Disposal of punctured or leaking collars, contaminated animal remains, contaminated vegetation and soil, and contaminated clothing;

(c) Practical treatment of 1080 poisoning in humans and domestic animals;

(d) Record keeping requirements;

(e) Montana pesticide laws and rules; and

(f) Collar labeling.

(2) Applicators maintaining their license for four consecutive licensing periods are required to follow ARM 4.10.203(5)(a) and (b), (6), and (7).

(3) Applicators using the Livestock protection collar must have the "Technical Bulletin for the Livestock Protection Collar" in their possession and must use collars in accordance with the Livestock Protection Label.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) The department establishes rules regarding the registration and restricted use of M-44 cyanide capsules in M-44 ejector devices to control canids as allowed by the product label that depredate livestock and poultry, vector communicable disease, or harm populations of threatened and endangered species.

(2) Registrants of the cyanide capsules and applicators using the capsules in the M-44 devices, cyanide spring-loaded ejector mechanisms, are subject to future labeling restrictions and requirements by the department.

(1) Registration of the M-44 cyanide capsules for sale or distribution in the state is limited to state and federal registrants only.

(2) Registrants must not sell, transfer, transport, give away, or entrust M-44 cyanide capsules to any individual who is not properly licensed or permitted by the department.

(1) The department or a federal agency may become licensed dealers for the sale and distribution of M-44 cyanide capsules. The dealer must maintain an inventory record of capsules purchased, sold, distributed, given away, or entrusted. The record must include the date of sale, the applicator's name, address, phone number, license or permit number, EPA registration number, expiration date, and the number of capsules.

(2) The dealer may only sell, give away, or entrust M-44 cyanide capsules to properly licensed or permitted applicators.

(3) Dealer sales and distribution of M-44 cyanide capsules to licensed or permitted applicators may be limited at the discretion of the department. Federal or state agencies providing capsules to their employees are not limited by this restriction.

(1) An individual who uses cyanide capsules in M-44 devices must be a licensed or permitted applicator as required in ARM 4.10.201 or 4.10.401. All individuals must pass a written examination as required in ARM 4.10.203(3)(a) and (4)(a) and attend a training course sponsored by the department. The training course includes, but is not limited to:

(a) The safe use and handling of the capsules and the M-44 ejector device;

(b) The proper use and handling of personal protective equipment;

(c) Instructions and practical demonstration on the proper placement of the M-44 ejector device;

(d) Federal, state, and local laws and regulations on the cyanide capsules and M-44 devices;

(e) Labels, biology of wild canids, environmental considerations, disposal, and storage; and

(f) Record keeping requirements.

(2) Applicators maintaining their license for four consecutive licensing periods are required to follow ARM 4.10.203(5)(a) and (b), (6), and (7).

(3) Licensed commercial M-44 applicators are exempt from the financial responsibilities required in ARM 4.10.101 through 4.10.103. These applicators must comply with all the requirements in ARM 4.10.104 through 4.10.108 on liability.

(4) Applicators using the M-44 device must have the Use Restriction Bulletin on their person and must use the M-44 device in accordance with the M-44 cyanide capsule label.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

These definitions apply to all regulations and rules adopted under the Montana Pesticides Act, Title 80, chapter 8, MCA unless specified differently by statute or individual rules.

(1) "Accident" means an unexpected, undesirable event caused by the use or presence of a pesticide that adversely affects man or the environment.

(2) "Act" means the Montana Pesticides Act, as amended, Title 80, chapter 8, part 2, MCA; and other legislation supplementary thereto and amendatory thereof.

(3) "Actions" means some procedure or decision taken or to be taken by the department against a person committing, having committed, or allegedly committed a prohibited act or violation of the Act.

(4) "Acute dermal LD₅₀" means a single dermal dose of a substance, expressed as milligrams per kilogram of body weight, that is lethal to 50% of the test population of animals within a specified time period under specified test conditions as prescribed in the Registration Guidelines.

(5) "Acute LC₅₀" means a concentration of a substance, expressed as parts per million parts of medium, that is lethal to 50% of the test population animals under test conditions as specified in the Registration Guidelines.

(6) "Acute oral LD₅₀" means a single orally administered dose of a substance, expressed as milligrams per kilogram of body weight, that is lethal to 50% of the test population of animals under test conditions as specified in the Registration Guidelines, 40 CFR et seq., and adopted by the department.

(7) "Acute toxicity" means the property of a substance or mixture of substances to cause adverse effects in an organism through a single short-term exposure.

(8) "Agency" means the United States Environmental Protection Agency.

(9) "Agricultural commodity" means any plant or part thereof, or animal or animal product produced by a person (including farmers, ranchers, vineyardists, plant propagators, Christmas tree growers, aquaculturists, floriculturists, orchardists, foresters, or other comparable persons) primarily for sale, consumption, propagation, or other use by man or animal.

(10) "Animal" means all vertebrate and invertebrate species, including but not limited to man and other mammals, birds, fish, and shellfish.

(11) "Applicant" means a person who applies for a registration pursuant to 80-8-201, MCA; or a person who applies for a license pursuant to 80-8-203, MCA; 80-8-205, MCA; 80-8-207, MCA; 80-8-213, MCA; or a person who applies for a permit pursuant to 80-8-209, MCA; of the Act.

(12) "Application form" means the form approved by the department which must be completed in its entirety by persons requesting a registration, license, certified-license or permit.

(13) "Application of a pesticide" means the placement of a pesticide at or on the site where the pest control or other response is desired.

(14) "Authorized agent or representative" means any authorized employee of the department or an individual authorized by the department to act as an official representative of the department.

(15) "Calibration of equipment" means measurement of dispersal or output of application equipment and adjustment of such equipment to control the rate of dispersal, and droplet or particle size of a pesticide dispersed by the equipment.

(16) "Cancellation of license, permit, certificate" means the process by which the department invalidates a license, permit, or certificate.

(17) "Certificate" means the authorizing document issued by the department to a person who has qualified to use a restricted use pesticide(s), or in the case of registration, the authorization to sell, offer for sale, or distribute a pesticide in the state.

(18) "Certificate period" means one complete calendar year, January 1 through December 31, for which an individual has been issued a certificate by the department even though the person was not issued a certificate for the complete calendar year.

(19) "Certification" means the determination by the department that an individual is competent and thus authorized to use or supervise the use of restricted use pesticides.

(20) "Certified applicator" means any individual who is certified and licensed or issued a special use permit to use or supervise the use of any restricted use pesticide covered by his certification.

(21) "Chronic toxicity" means the property of a substance or mixture of substances to cause adverse effects in organisms upon repeated or continuous exposure over a period of at least one-half the lifetime of that organism.

(22) "Classification of applicator" means the process by which commercial, government, public utility, non-commercial, and farm applicators are classified by the department according to type of operation, types or classes of pesticides use, or where and how the pesticide is to be used or applied.

(23) "Classification of pesticides" means the process by which the department under specific standards classifies a pesticide into general use or restricted use.

(24) "Commercial applicator certified license" means an authorization issued by the department to an individual to use and apply restricted use and general use pesticides for which he is qualified.

(25) "Common exposure route" means a likely way (oral, dermal, respiratory) by which a pesticide may reach and/or enter an organism.

(26) "Compatibility" means that property of a pesticide which permits its use with other chemicals without undesirable results being caused by the combination.

(27) "Competent or competency" means properly and legally qualified to perform functions associated with pesticide application, the degree of capability required being directly related to the nature of the activity and the associated responsibility.

(28) "Cooperative agreement" means an agreement of the department with any other local, county, state, other state, or federal agency or department for the purposes of carrying out the Act, for securing uniformity of rules, and for establishing reciprocal agreements on accepting licenses, permits, or certificates under certain conditions and standards.

(29) "Credential" means an authorizing document issued to an individual to sell pesticides under the supervision of a licensed dealer; or farm applicator, family members, or employees allowing them to purchase or use restricted use pesticides under the supervision of the farm applicator.

(30) "Degradation product" means a substance resulting from the transformation of a pesticide by physical, chemical, or biochemical means.

(31) "Denying, denial" means the process by which the department refuses to register a product, issue a license, grant a permit, or certify an individual.

(32) "Department" means the Montana Department of Agriculture.

(33) "Direct supervision" means the act or process whereby the use of a pesticide is made by a competent person acting under the verifiable instructions and supervision of a certified applicator, who has provided detailed guidance to the competent person for proper use of the pesticide; who has made provisions for contact in the event he is needed; and who is responsible for the actions of that person.

(34) "Director" means the director of the Montana Department of Agriculture or any officer or employee of the department to whom authority has heretofore been delegated or to whom authority may hereafter be delegated to act in his stead.

(35) "Disposal" means the process of discarding pesticides or pesticide containers in a permanent manner so as to avoid endangering or injuring public health, or causing unreasonable adverse effects on the environment.

(36) "Domestic application" means the application of a pesticide directly to humans or pets, application of a pesticide in, on, or around all structures, vehicles, or areas associated with household or home life, patient care areas of health related institutions or areas where children spend time, including but not limited to:

(a) gardens, noncommercial greenhouses, yards, patios, houses, pleasure marine craft, mobile homes, campers and recreational vehicles, noncommercial campsites, home swimming pools, and kennels;

(b) articles, objects, devices, or surfaces handled or contacted by humans or pets in all structures; vehicles or areas listed above;

(c) patient care areas of nursing homes, mental institutions, hospitals, and convalescent homes;

(d) education, lounging, and recreational areas of preschools, nurseries, and day camps.

(37) "Drift" means movement of a pesticide during or immediately after application or use through air to a site other than the intended site of application or use.

(38) "Efficacy" means the capacity of a pesticide product when used according to label directions to control, kill, or induce the desired action in the target pest.

(39) "Examination" means a method or examining process in writing, which is used for determining competency of an individual prior to the issuance of a license, permit, or certificate. The licensing examination may include specific types of examinations to determine competency on required subjects.

(40) "Examination score" means the percentile score a person received on each and every examination taken.

(41) "Farm applicator" means a person applying pesticide to his own crops or land. In the case of restricted use pesticides, a person certified as a farm applicator to use or supervise the use of a restricted use pesticide for purposes of producing any agricultural commodity on lands owned, rented, or leased by him or his employer.

(42) "Federal act" means the Federal Insecticide, Fungicide, and Rodenticide Act, as amended, by the Federal Environmental Pesticide Control Act of 1972 and other legislation supplementary thereto and amendatory thereof.

(43) "Fee" means the money payable by a person to the department for training, registration, licensing or permitting.

(44) "Final printed labeling" means the printed label and the labeling which will appear on or will accompany the pesticide product.

(45) "Financial interest" means the economic or monetary interest, compensation, or commission a person has invested or receives from an applicator business or operation other than hourly or monthly wages.

(46) "Financial responsibility" means proof of a commercial pesticide applicator, licensed or certified-licensed, that he has obtained and will maintain either an insurance policy, surety bond, or escrow account for his liability relating to the use and application of pesticides in the monetary amounts and conditions established by the department.

(47) "Forest" means a concentration of trees and related vegetation in nonurban areas, sparsely inhabited by and infrequently used by humans, and characterized by natural terrain and drainage patterns.

(48) "Front panel" means that portion of the label of a pesticide product that is ordinarily visible to the purchaser under the usual conditions of display for sale.

(49) "General use pesticides" means a pesticide that is classified for general use under specific criteria promulgated by the department and/or the agency.

(50) "Conditions of use for general use pesticides" means:

(a) a certified pesticide applicator may use and apply general use pesticides for which he is licensed anywhere within the state.

(b) a licensed pesticide operator, as an employee of a certified applicator, may use and apply general use pesticides for which the applicator is licensed and under his direct supervision within 100 miles of the certified applicator; beyond 100 miles, special supervision shall be required.

(c) an unlicensed employee of a certified applicator may use and apply general use pesticides only under the special supervision of the certified applicator or licensed operator employed by the certified applicator.

(51) "Government applicator certified license" means an authorization issued by the department to an individual to use and apply restricted use and general use pesticides for which he is qualified.

(52) "Group or class of pesticides" means those pesticides grouped or classified as related pesticides as established by the department. Such grouping or classes will primarily be based upon the chemical makeup or uses of pesticides.

(53) "Hazard" means the likelihood that use of a pesticide would result in an adverse effect on man or the environment in a given situation.

(54) "Host" means any plant or animal on or in which another lives for nourishment, development, or protection.

(55) "Immediate container" means that container which is directly in contact with the pesticide or device.

(56) "Inhalation LC₅₀" means concentration of a substance, expressed in milligrams per liter of air or parts per million parts of air, that is lethal to 50% of the test population of animals under test conditions as specified in the Registration Guidelines.

(57) "Land" means all land and water areas, including airspace, and all plants, animals, structures, buildings, contrivances, and machinery appurtenant thereto or situated thereon, fixed or mobile, including any used for transportation.

(58) "Lateral movement" (in soils) means to transfer through soil. This is generally in a horizontal plane from the original site of application or use.

(59) "Leach" means to undergo the process by which pesticides in the soil are moved into a lower layer of soil or are dissolved and carried through soil by water.

(60) "License" means an authorization to apply or sell pesticides, issued by the department to a person who has qualified by meeting the conditions and standards of the Act and rules adopted thereunder.

(61) "Licensing period" means a complete calendar year, January 1 through December 31, for which a person has been issued a license by the department (even though the person was not issued a license for the complete calendar year).

(62) "Metabolite" means any substance produced in or by living organisms by biological processes and derived from a pesticide.

(63) "Misuse" means the use, handling, or release of a pesticide by a person in a manner inconsistent with the label or labeling or in violation of department pesticide application, storage, mixing, and loading rules or pesticide and container disposal rules (see 80-8-306(5)(e)(i), MCA).

(64) "Modification" means the process of altering, limiting, or modifying a license, permit, or certificate of a person by the department.

(65) "Mutagenic" means the property of a substance or mixture of substances to induce changes in the genetic complement of either somatic or germinal tissue in subsequent generations.

(66) "Noncommercial certified applicator" means an individual who cannot be classified as a commercial, public utility, or government certified applicator or who cannot be classified as a private applicator but desires the use of restricted use pesticides. A certified noncommercial application may only use restricted use pesticides on lands owned, rented, or leased by his employer or himself.

(67) "No discernible adverse effect" means no adverse effect observable within the limitations and sensitivity specified in the Registration Guidelines.

(68) "Nontarget organisms" means a plant or animal other than the one against which the pesticide is applied.

(69) "Oncogenic" means the property of a substance or mixture of substances to produce or induce benign or malignant tumor formations in living animals.

(70) "Order" means a lawful directive of the department directing a person to perform or cease a specific action or operation.

(71) "Ornamental" means trees, shrubs, and other plantings in and around habitations generally, but not necessarily, located in urban and suburban areas, including residences, parks, streets, retail outlets, industrial, and institutional buildings.

(72) "Outdoor applications" means any pesticide application or use that occurs outside enclosed man-made structures or the consequences of which extends beyond enclosed man-made structures, including but not limited to pulp and paper mill water treatments and industrial cooling water treatments.

(73) "Permit" means a special use document, which may be referred to as a certificate, issued by the department to a farm applicator to purchase, use or apply restricted use pesticides.

(74) "Permit period" means a complete calendar year, January 1 through December 31, for which a person has been issued a permit or certificate by the department (even though the person was not issued a permit or certificate for the complete calendar year).

(75) "Practical knowledge" means the possession of pertinent facts and the ability to use them in dealing with specific problems and situations.

(76) "Administrative Procedure Act" means the Montana Administrative Procedure Act, Title 2, chapter 4, MCA and rules promulgated thereunder.

(77) "Protect health and the environment" means protection against any unreasonable adverse effects on the environment.

(78) "Protective equipment" means clothing or any other materials or devices that shield against unintended exposure to pesticides.

(79) "Qualification period" means the period of time for which a person is qualified for a license, certificate, or permit.

(80) "Records" means a procedure whereby a person is required to record, maintain, reveal, or submit certain data and information, required by the Act.

(81) "Reentry" means the action of entering an area or site at, in, or on which a pesticide has been applied.

(82) "Registered" means a product which is labeled as a pesticide or intended for use as a pesticide which has been approved by the department for sale, exchange, or distribution, for use or application in the state.

(83) "Registration guidelines" means the guidelines and standards used and published by the agency and adopted by the department in reviewing, approving, modifying, denying, suspending, or cancelling the registration of a pesticide formulation.

(84) "Regulated pest" means a specific organism considered by a state or federal agency to be a pest requiring regulatory restrictions, regulations, or control procedures in order to protect the host, man, and/or his environment.

(85) "Renewal or renewing" means the process and procedure by which a person renews a registration, license, permit, or certificate.

(86) "Requalification or requalify" means a process by which an individual becomes eligible by reexamination and/or retraining for a license, permit, or certificate.

(87) "Residue" means the active ingredient(s), metabolite(s), or degradation product(s) that can be detected in the crops, soil, water, or other component of the environment, including man, following the use of the pesticide.

(88) "Restricted use pesticide" means a pesticide that is classified for restricted use under specific criteria promulgated by the department and/or the agency.

(89) "Conditions for use for restricted use pesticides" means:

(a) a certified pesticide applicator may use and apply restricted use pesticides for which he is certified anywhere within the state;

(b) a licensed operator, as an employee of a certified applicator, may use and apply restricted use pesticides for which the certified applicator is licensed, only within 100 miles of the certified applicator while under his direct supervision;

(c) a licensed operator working beyond the 100 mile limit may use or apply restricted-use pesticides only under the special supervision of a certified applicator.

(90) "Revocation or revoking" means the process or procedure of the department to temporarily and/or permanently rescind a person's license, permit, or certificate.

(91) "Sale" means to sell, wholesale, offer or expose for sale, exchange, barter, or give away a pesticide or pesticide formulation in the state.

(92) "Special supervision" means that a certified applicator must be physically present at the time of use and application of a pesticide.

(93) "Standard" means the measure of knowledge and ability which must be demonstrated as a requirement for certification, or some criteria, measurement limitation or condition imposed by the department on a pesticide, process, license, permit, or certificate.

(94) "Storage" means the process whereby a person stores a pesticide or pesticide containers so as to prevent unreasonable adverse effects on the environment and protect the storage life of the product.

(95) "Subacute dietary LC₅₀" means a concentration of a substance, expressed as parts per million in feed, that would be lethal to 50% of the test population of animals under test conditions as specified in the Registration Guidelines.

(96) "Subacute toxicity" means the property of a substance or mixture of substances to cause adverse effects in an organism upon repeated or continuous exposure within less than one-half the lifetime of that organism.

(97) "Susceptibility" means the degree to which an organism is affected by a pesticide at a particular level of exposure.

(98) "Teratogenic" means the property of a substance or mixture of substances to produce or induce functional deviations or developmental anomalies, not hereditable, in or on an animal, embryo, or fetus.

(99) "Toxicity" means the property of a substance or mixture of substances to cause any adverse effects.

(100) "Unreasonable adverse effects on the environment" means unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.

(101) "Use" means the handling or release of a pesticide by a person in a manner that is consistent with the label or labeling and in compliance with department rules on application, storage, mixing, loading, pesticide and container disposal and required supervision.

(102) "Use-dilution" means a dilution specified on the label or labeling which produces the concentration of the pesticide for a particular purpose or effect.

(103) "Use pattern" means the manner in which a pesticide is applied and includes the following parameters of pesticide application: target pest; crops or animals treated; application site, application technique, rate, and frequency.

(104) "Violation" means an act or action not in conformity with the Act or rules adopted thereunder.

(105) "Volatility" means the property of a substance or substances to convert into vapor or gas without chemical change.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(2)  The purpose and intent of these rules is to:

(a)  reduce the amount of stored waste pesticides and empty pesticide containers in Montana;

(b)  dispose of waste pesticides and empty pesticide containers in a manner safe to the environment and human health;

(c)  facilitate exchange of useable pesticides among pesticide applicators in Montana; and

(d)  permit the department to issue contracts to qualified entities who will conduct the operational aspects of a waste pesticide disposal program.

(2)  "Contractor" means an entity or entities contracted by the department to conduct the disposal program.

(3)  "Disposal program" means the collection of pesticides and pesticide containers for disposal, recycling or use by methods and procedures approved by the department.

(4)  "Participant" means a person or persons authorized by the department to submit acceptable pesticides to the disposal program.

(5)  "Recyclable" means a pesticide container rinsed according to label directions as addressed in the code of federal regulations (40 CFR 156.10)  .

(6)  "Unacceptable pesticide" means a pesticide that is not permitted to be incinerated according to state or federal regulations or an empty pesticide container that contained an unacceptable pesticide.

(7)  "Exchangeable pesticide,, means a pesticide in a sealed, unopened container authorized by the disposal program for exchange from one person to another.

(1) Disposal program contractors must:

(a) register as a hazardous waste generator with the Montana Department of Environmental Quality (DEQ) and possess a hazardous waste identification number issued by DEQ. DEQ registration and a hazardous waste identification number are not required for a contractor involved solely with recyclable pesticide containers and exchangeable pesticides;

(b) possess or subcontract only with transporters that possess all necessary federal and state permits, licenses and registrations required for the transportation of hazardous waste; and

(c) certify that employees conducting the disposal program meet occupational safety and health administration safety and training requirements in 29 CFR 1910.120.

(2) The department may issue request for bid proposals (RFPs) and enter into written contracts to conduct disposal program operations. The department may require that responding entities provide specific information on methods and procedures contractors will use in conducting a disposal program. Contractor information may include but is not limited to:

(a) a collection site preparation and restoration plan to provide for safe transfer of acceptable pesticides, exchangeable pesticides, and recyclable pesticide containers including provisions for site selection, protection of the environment and public health, and restoration of the site to its original condition;

(b) evidence of an established quality assurance/quality control program used by the contractor;

(c) provisions for the development of a site-specific health and safety plan for the chosen collection site;

(d) written documentation provided to the department before collection ensuring that the acceptable pesticides collected under the disposal program will be accepted by an EPA-permitted disposal facility for incineration;

(e) methods for management of collected acceptable pesticides from the collection site to the disposal facility in compliance with ARM Title 17, chapter 54;

(f) provisions for the inspection and monitoring of the disposal program by the department;

(g) attendance at organizational meeting(s) prior to collection day(s); and

(h) provisions for written documentation of collection activities provided to the department within established time schedules.

(3) The department establishes criteria for awarding the disposal program contract. Selection criteria includes but is not limited to:

(a) ability to perform service;

(b) related experience or similar waste disposal projects;

(c) references;

(d) federal Resource Conservation and Recovery Act (RCRA) record;

(e) clarity and completeness of bid proposal; and

(f) cost.

(1) The department or its designated agent may conduct outreach and educational activities to inform the public about the functions of the disposal program. Outreach activities may be conducted in cooperation with the Montana State University Extension Service, local governments, the contractor and others.

(2) The department may target disposal program activities to regions or areas within the state each fiscal year.

(3) The department selects waste pesticide collection site(s) in consultation with the contractor.

(4) The department establishes minimum criteria for a collection site(s).

(5) The department establishes procedures for disposal of acceptable pesticides, including:

(a) Persons intending to participate in the disposal program for disposal of waste pesticides or non-plastic recyclable pesticide containers such as containers made of materials like metal, fiberboard, or other similar material must apply to the department on forms provided by the department. Information provided on the form must include, but is not limited to:

(i) brand name of the pesticide if present on label or if known;

(ii) active ingredient of the pesticide if present on label or if known;

(iii) EPA registration number or United States Department of Agriculture (USDA) number, if present on label or if known;

(iv) container size, composition, condition, and quantity to be disposed;

(v) applicant's name, address and telephone number; and

(vi) other information deemed necessary by the department.

(b) Written approval from the department is required to participate in the program.

(c) The department provides participants with a form listing the acceptable pesticides approved for disposal. This form serves as a bill of lading and must be in the possession of the participant during transport of the acceptable pesticides to the collection site. This form also serves to transfer ownership of the pesticide(s) from the participant to the contractor by a pesticide product release statement.

(d) Participants in the disposal program must transport acceptable pesticide products to the collection site according to the Montana Pesticides Act and United States Department of Transportation regulations.

(e) A participant may assign a designee to transport the participant's acceptable pesticides to the collection site only if approved by the department during preregistration.

(f) Ownership of acceptable pesticides approved for disposal transfers from the participant to the contractor at the collection site.

(6) The department approves establishment of pesticide container recycling collection sites, public or private, meeting minimum requirements. Individuals or entities interested in establishing a collection site must contact the department to discuss requirements and considerations.

(a) The department establishes guidelines for individuals to participate in the pesticide container recycling program.

(7) The department establishes procedures for the exchange of exchangeable pesticides:

(a) a pesticide may be exchanged or transferred from one person to another for the purpose of using the pesticide according to label directions. The pesticide offered for exchange must be:

(i) registered or meet provisions of 80-8-201(9)(a) or (b), MCA; and

(ii) in the original, labeled, unopened sealed container.

(8) The department allows pesticide exchange(s) under these conditions:

(a) owners of exchangeable pesticides apply to the department and provide information on a department form, according to ARM 4.10.1804(5)(a);

(b) Persons interested in obtaining exchangeable pesticides must provide their name, address, telephone number, and desired pesticides to the department. Persons interested in obtaining pesticides classified as restricted use must be licensed by the department;

(c) the department matches donors to users;

(d) transfer of ownership of exchangeable pesticides may occur during scheduled pesticide disposal collections or through other arrangements approved by the department; and

(e) the department may require a label claim analysis for the pesticide offered for exchange.

(1)  The department may set priorities for the type and amount of acceptable pesticides collected under the disposal program.   Criteria for setting the type and amount of acceptable pesticide collected may include but are not limited to:

(a)  funding available to operate the disposal program;

(b)  registration status of acceptable pesticides (e.g., canceled/suspended pesticides may have priority over presently registered pesticides)  ;

(c)  toxicity;

(d)  hazard to human health or the environment; and

(e)  condition of the pesticide container.

(2)  The department may set priorities for which portions of the disposal program under ARM 4.10.1804(5)  , (6)  and (7)  will be conducted based on funding and personnel resources that are available to operate the disposal program.

(1) Participants in the disposal program may be required to pay a fee commensurate with department program costs. The fee will be set by the director annually by June 30, and will not exceed $2 per pound.

(2) Participants who submit recyclable pesticide containers to the program may be required to pay a fee commensurate with department program costs for recycling. The fee will be set by the director annually by June 30, and will not exceed 50 cents per pound.

(3) Fees for pesticide disposal and plastic container recycling may exceed the fees set in (1) and (2) for pesticides or containers that have handling and/or disposal requirements resulting in costs exceeding the fees set under (1) and (2). The fee for these pesticides or containers will not exceed the cost of disposal or recycling.

(4) The department may charge participants who receive an exchangeable pesticide a fee of $5 for each container with a net content of less than or equal to one gallon or ten pounds and $10 for each container with a net content of greater than one gallon or ten pounds. The department, at its discretion, may waive fees for participants who receive exchangeable pesticides if the established fee is higher than the retail value of the exchangeable pesticide.

(2)  The contractor assumes ownership of all pesticide products and pesticide containers collected under the disposal program.

(3)  As provided in 80-8-111, MCA, participants may not be subject to an administrative or judicial penalty as a result of participation in the disposal program.

This rule has been repealed.