BEFORE THE DEPARTMENT OF AGRICULTURE

                                               OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rules I and II and amendment of ARM 4.10.1803, 4.10.1804, and 4.10.1806 pertaining to the pesticide container recycling program and waste pesticide disposal program

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND AMENDMENT

 

TO: All Concerned Persons

 

            1. On May 22, 2018, at 10:30 a.m., the Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building, at 302 N. Roberts, Helena, Montana, to consider the proposed adoption and amendment of the above-stated rules.

 

2. The Department of Agriculture will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Agriculture no later than 5:00 p.m. on May 18, 2018, to advise us of the nature of the accommodation that you need. Please contact Cort Jensen, Department of Agriculture, P.O. Box 200201, Helena, Montana, 59620-0201; telephone (406) 444-3144; fax (406) 444-5409; or e-mail agr@mt.gov.

 

3. The rules as proposed to be adopted provide as follows:

 

NEW RULE I PESTICIDE CONTAINER RECYCLING PROGRAM  (1) The program only accepts high-density polyethylene (HDPE) #2 pesticide-related container plastic (e.g., seed treatment, surfactant, adjuvants, and dye containers) for recycling.

(2) The program does not accept non-plastic containers and non-pesticide containers for recycling.

(3) All containers must be properly prepared for recycling:

(a) Emptied and triple or power rinsed to remove pesticide residues. The container owner is responsible for cleaning and rinsing pesticide containers and complying with all pesticide label requirements;

(b) Removal of the following from the pesticide container:

(i) lid and foil liner;

(ii) label booklets (glued on labels may remain on the container);

(iii) rubber gaskets;

(iv) metal handles, magnets, or metal based security devices; and

(v) any other item that may cause harm or delay to the machines used to recycle the containers.

(c) Containers larger than 2.5 gallons may require cutting into smaller pieces. Please contact the department for more information before cutting the containers.

(4) The department does not accept improperly prepared and cleaned containers.

(5) The department posts a map of collection sites on its website. Prior to delivering clean containers to an established collection site, individuals recycling pesticide containers should contact the collection site manager. Established collection sites accept properly prepared small containers less than 2.5 gallons and 2.5 gallons, 30 gallons, or 55 gallons containers.

(6) The department does not normally accept containers or totes larger than 55 gallons.

(7) The department approved establishment of 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 (e.g., site selection, construction specifications, and site hosting considerations).

(8) The department recycling technician services all pre-determined collection sites to grind and bag all pesticide plastic during the recycling season.

(9) Department of Environmental Quality (DEQ) registration and EPA hazardous waste identification number are not required for a contractor involved solely in recycling pesticide plastic containers.

(10) The department may contract for part of or all of the operational aspects of a pesticide recycling program. Contractors must meet all state qualifications and state regulations.

 

AUTH: 80-8-105, MCA

IMP: 80-8-105, MCA

 

REASON: The proposed change creates a rule specific for pesticide container recycling. The rule reflects the current requirements and practices of the program, provides additional information for program participants, and provides for a section of a rule for pesticide recycling separate from waste pesticides and exchangeable pesticides.

 

NEW RULE II EXCHANGEABLE PESTICIDES (1) The department establishes the following 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.

(b) Owners of exchangeable pesticides must apply to the department or the department’s designee and provide information on a department form pursuant to ARM 4.10.1804(5)(a).

(c) Persons wanting to receive exchangeable pesticides must provide their name, address, telephone number, and pesticides wanted to the department. Persons receiving pesticides classified as restricted use must be licensed to use restricted use pesticides by the department.

(d) The department or department designee will match donors to users.

(e) Transfer of ownership of exchangeable pesticides may occur during scheduled pesticide disposal collections or through other arrangements approved by the department.

(f) The department may require the pesticide offered for exchange to be analyzed for label claim.

 

AUTH: 80-8-105, MCA

IMP: 80-8-111, 80-8-112, MCA

 

REASON: The rule change creates a distinct section of rule related to Exchangeable Pesticide, separate from Waste Pesticide Disposal and Pesticide Container Recycling. It also creates a new requirement that the department keeps records of pesticide transfers and exchanges.

 

ECONOMIC IMPACT: There is no economic impact associated with the reorganization of the rules. There may be a fee associated with exchangeable pesticides, addressed in the amendment to ARM 4.10.1806 (also contained in this proposal).

 

4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            4.10.1803 STANDARDS FOR DISPOSAL PROGRAM OPERATION WASTE PESTICIDE DISPOSAL PROGRAM (1) The waste pesticide disposal program may accept:

            (a) acceptable pesticides;

            (b) non-plastic recyclable pesticide containers; such as containers made of recyclable materials like metal, fiberboard, or other similar material; and

            (c) exchangeable pesticides.

            (2) The disposal program shall does not accept:

            (a) nonpesticide materials; or

            (b) unacceptable pesticides.

            (3) Contractors conducting the disposal program must meet qualifications that include but are not limited to the following items:

            (a) be registered as a hazardous waste generator with the Montana Department of Environmental Quality (DEQ) and possess a hazardous waste identification number issued by the United States Environmental Protection Agency (EPA). DEQ registration and an EPA hazardous waste identification number shall not be is 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 wastes; and

            (c) remains the same.

            (4) The department may issue request for bid proposals Requests for Proposals (RFPs) and enter into written contracts with contractors to conduct the operational aspects of the disposal program. The department may require that entities responding to the RFP provide specific information on methods and procedures that the contractors will use in conducting a disposal program. This information provided by the contractor may include, but is not limited to:

            (a) through (f) remain the same.

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

            (h) remains the same.

            (5) The department shall must establish criteria for awarding the disposal program contract(s). Selection criteria shall must include, but not be limited to:

            (a) through (d) remain the same.

            (e) clarity and completeness of bid proposal; and

            (f) remains the same.

 

AUTH: 80-8-105, MCA

IMP: 80-8-111, 80-8-112, MCA

 

REASON: The department would like to create separate rule sections for waste disposal, pesticide container recycling, and exchangeable pesticides. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana requirements.

 

            4.10.1804 PESTICIDE DISPOSAL PROGRAM OPERATION (1) and (2) remain the same.

            (3) The department selects Ccollection site(s) shall be selected by in consultation with the contractor.

            (4) and (5) remain the same.

            (a) Persons intending to participate in the disposal program must make application to the department or the department designee on forms provided by the department. Information provided on the form must include, but is not limited to:

            (i) and (ii) remain the same.

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

            (iv) remains the same.

            (v) container size, composition, condition; and

            (vi) remains the same.

            (b) Persons who submit applications to the program must receive written approval from the department or the department’s designee to participate in the program.

            (c) Prior The department will provide the participant with a list of pesticides for disposal prior to the collection day, the department shall provide the participant with a form listing the acceptable pesticides approved for disposal. This form will serve 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 will also serves to transfer ownership of the pesticide(s) from the participant to the contractor by a pesticide product release statement on the form.

            (d) remains the same.

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

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

            (6) The department establishes the following procedures for recycling disposal of pesticide containers which cannot be recycled.

            (a) The waste disposal program accepts pesticide containers made of metal, fiberboard, or similar materials but not plastic pesticide containers suitable for recycling. Persons intending to participate in the disposal program for the purpose of recycling disposing of pesticide containers not acceptable to recycle must make application to the department on forms provided by the department. Information provided on the form must include but may not be limited to:

            (i) and (ii) remain the same.

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

            (iv) number and size of each pesticide container and quantity to be disposed of;

            (v) container’s composition;

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

            (vii) other information deemed necessary by the department or disposal contractor.

            (7) The following procedures apply to pesticide containers recycled in the waste pesticide program:

            (b) (a) Recyclable Rinsing of recyclable pesticide containers must be rinsed according to label directions as addressed in the code of federal regulations (40 CFR 156.10) is required.

            (c) (b) The contractor shall department or its designee inspects each container and rejects containers with visible residue. The contractor must not accept any container that in the judgement of the contractor has any visible residue.

            (d) A form completed by the department following review of the participant's application will list containers approved for recycling under the disposal program. A copy of this form will be returned to the participant and must be in the participant's possession during transport of the containers to the collection site and must be provided to the contractor at the collection site.

            (7)  The department establishes the following 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.

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

            (c)  persons wanting to receive exchangeable pesticides must provide their name, address, telephone number and pesticides wanted to the department.   Persons wanting pesticides classified as restricted use must be licensed to use restricted use pesticides by the department;

            (d)  the department or department designee will match donors to users;

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

            (f)  the department may require the pesticide offered for exchange to be analyzed for label claim.

 

AUTH: 80-8-105, MCA

IMP: 80-8-111, 80-8-112, MCA

 

REASON: The proposed change organizes the waste pesticide program rule for clarity and updates processes and procedures used in the program. The department proposes a distinct section of rule related to exchangeable pesticides later in these proposed rules. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.

 

            4.10.1806 FEES (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. There is no fee for the first 200 pounds of waste pesticide disposal. The fee for each pound of waste pesticide disposal over 200 pounds is $0.50.

            (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) (2) 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) (3) Participants The department may charge participants who receive an exchangeable pesticide under ARM 4.10.1804(7) shall pay 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.  Fees The department, at its discretion, may waive the fees charged to participants who receive exchangeable pesticides can be lowered at the discretion of the department if the established fee is higher than the retail value of the exchangeable pesticide.

            (5) Applicators licensed by the department shall be given a monetary credit if they are a participant in the disposal program. The credit must be used during the certification period for farm applicators or the licensing period for dealers, commercial applicators, commercial operators, and government applicators in which the fee is paid;

            (a) farm applicators shall receive a one time credit of $15 during the farm applicator's certification period.

            (b) commercial applicators shall receive an annual credit of $10 for each licensing period that the applicator is licensed. Commercial applicators shall receive an annual credit of $15 for the first two commercial operators operating under their license for each licensing period the operator is licensed. A credit of $5 shall be received for each additional commercial operator operating under the applicator's license for each licensing period the operator is licensed;

            (c) government agencies shall receive an annual credit of $10 for each licensing period that each applicator is licensed for the first four licensed applicators. A credit of $10 shall be received for each additional applicator for each licensing period that the applicator is licensed. The total credit must not exceed $280; and

            (d) dealers shall receive an annual credit of $10 for each licensing period that the dealer is licensed.

 

AUTH: 80-8-105, MCA

IMP: 80-8-111, 80-8-112, MCA

 

REASON: While the department does facilitate pesticide exchanges, it does so infrequently. At this time, the department does not need to charge for facilitation services. The fee section for waste pesticide disposal and container recycling should list the fee rather than saying "the fee may not exceed" a certain amount. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.

 

            5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Cort Jensen, Department of Agriculture, P.O. Box 200201, Helena, Montana, 59620-0201; telephone (406) 444-3144; fax (406) 444-5409; or e-mail agr@mt.gov, and must be received no later than 5:00 p.m., June 1, 2018.

 

6. Cort Jensen, Department of Agriculture, has been designated to preside over and conduct this hearing.

 

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

9. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption and amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ Cort Jensen                                            /s/ Ben Thomas                                          

Cort Jensen                                                 Ben Thomas

Rule Reviewer                                             Director

                                                                     Agriculture

 

Certified to the Secretary of State April 17, 2018.