Structural Pesticide Ordinance Development In A

Tribal Community

Presented At The 17th Annual Region 9 Tribal EPA Conference

October 21-23, 2009

Barry AbbottGila River Indian Community

Pesticide Control Office

The Community’s Pesticide Ordinance

• One of the first Tribes to have a pesticide program and receive federal funds

• The pesticide ordinance was adopted in 1983; created the Pesticide Control Office

• Focus was agricultural and adopted AZ Department of Agricultural statutes by reference

• Office’s permitting program requires proof of ADoA licenses

• Ordinance revised in 1996; retained emphases on agriculture; added WPS (EPA’s Worker Protection Standards)

• Structural Pesticide Ordinance was drafted in 2007

• Adoption was in process in 2008; when the Office learned that ….

…. EPA had stated that the application of a restricted use pesticide on an Indian reservation that does not have an EPA approved Certification and Training Program for applicators of restricted use pesticide is illegal

DecisionWhat Type Pesticide Ordinance

• Separate:– Agricultural (GRIC’s current)– Structural– Certification and Training (C&T) of RUP

Applicators

• Combinations: (Arizona)– Agricultural with C&T – Structural with C&T

• Comprehensive: (most other states)– C&T component with no distinguishing between

agricultural and structural

Review of AZ OFFICE PEST MANAGEMENT RULES

Review of AZ Office of Pest Management Rules - very few technical provisions – therefore could

easily incorporate technical provisions into existing ordinance

Decision: Single Ordinance TO DO:• Review / revise as needed existing

GRIC ‘agricultural’ ordinance• Review FIFRA & EPA’s regulations for

approval of a Certification and Training Plan

A Selected Overview Of FIFRA

• Pesticide Registration (EPA & States)

• Pesticide Classification (EPA)

– Restricted Use and General Use • Pesticide Labeling & Use (EPA)

• C&T for Restricted Use Pesticide Applicators (EPA, States and Tribes)

• Regulation of Producers and Sellers (EPA, States and Tribes)

• Record Keeping (EPA, States and Tribes)

• Experimental, Special Local Needs, & Emergency Exemption (EPA, States and Tribes)

FIFRA Requirementsto Include in an Ordinance

• Pesticides Used According to Label • C&T for Restricted Use Pesticide

Applicators• Regulation of Producers and Sellers• Record Keeping:

– Producers, RUP Dealers, Applicators

• Experimental, Special Local Needs, & Emergency Exemption (optional)

EPA’s Pesticide Regulations40 CFR Parts 150 Through 180

Parts to Consideration for Inclusion in an Ordinance

– Part 170 – WPS– Part 171 – Certification of Pesticide

Applicators [Restricted Use]

A Selected Overview Of 40 CFR 171 (Certification of Pesticide Applicators)

►171.3   Categories of commercial applicators of pesticides • 171.4   Standards for certification of commercial applicators• 171.5   Standards for certification of private applicators • 171.6   Standards for supervision of noncertified applicators

by certified private and commercial applicators • 171.7   Submission and approval of State plans for

certification of commercial and private applicators of restricted use pesticides

• 171.9   Submission and approval of Government Agency Plan

• 171.10   Certification of applicators on Indian Reservations • 171.11   Federal certification of pesticide applicators in

States or on Indian Reservations where there is no approved State or Tribal certification plan in effect

►171.3 Categories ofCommercial RUP Applicators

– Agricultural pest control (Plant / Animal);– Forest pest control;– Ornamental and turf pest control;– Seed treatment;– Aquatic pest control;– Right-of-way pest control;– Industrial, institutional, structural and health related

pest control;– Public health pest control;– Regulatory pest control;– Demonstration and research pest control; and– Other categories and subcategories

• GRIC listed all in Ordinance

A Selected Overview Of 40 CFR 171 (Certification of Pesticide Applicators)

• 171.3   Categories of commercial applicators of pesticides►171.4   Standards for certification of commercial applicators• 171.5   Standards for certification of private applicators • 171.6   Standards for supervision of noncertified applicators

by certified private and commercial applicators • 171.7   Submission and approval of State plans for

certification of commercial and private applicators of restricted use pesticides

• 171.9   Submission and approval of Government Agency Plan

• 171.10   Certification of applicators on Indian Reservations • 171.11   Federal certification of pesticide applicators in

States or on Indian Reservations where there is no approved State or Tribal certification plan in effect

►171.4   Standards for Certification

of Commercial Applicators • Determination of competency … use & handling

of pesticides … determined by written examinations … applicable to all categories– principles & practices of pest control and safe use of

pesticides • Label & labeling comprehension• Safety• Environment• Pests• Pesticides • Equipment• Application techniques• Laws and regulations

A Selected Overview Of 40 CFR 171 (Certification of Pesticide Applicators)

• 171.3   Categories of commercial applicators of pesticides• 171.4   Standards for certification of commercial applicators► 171.5   Standards for certification of private applicators ► 171.6   Standards for supervision of noncertified applicators

by certified private and commercial applicators • 171.7   Submission and approval of State plans for

certification of commercial and private applicators of restricted use pesticides

• 171.9   Submission and approval of Government Agency Plan

• 171.10   Certification of applicators on Indian Reservations • 171.11   Federal certification of pesticide applicators in

States or on Indian Reservations where there is no approved State or Tribal certification plan in effect

►171.5   Standards for certification of private applicators

► 171.6   Standards for supervision of noncertified applicators by certified private and commercial applicators

Above two requirements similar to standards for certification of commercial applicators

• GRIC - to much effort to draft ordinance to meet above standards for so few applicators, therefore GRIC stated in the Ordinance …

… An applicator wishing to use or supervise the use of a restricted use pesticide within the Community shall comply with both of the following:

– Be certified to apply restricted use pesticides by the U.S. Environmental Protection Agency ("U.S. EPA") or from any state or other federal agency with a C&T Program that has been authorized by the U.S. EPA pursuant to 40 CFR § 171.7 .

– Pass the Office’s written examination about the Ordinance.

A Selected Overview Of 40 CFR 171 (Certification of Pesticide Applicators)

• 171.3   Categories of commercial applicators of pesticides • 171.4   Standards for certification of commercial applicators• 171.5   Standards for certification of private applicators • 171.6   Standards for supervision of noncertified applicators

by certified private and commercial applicators • 171.7   Submission and approval of State plans for

certification of commercial and private applicators of restricted use pesticides GRIC chose this option based on 171.10

• 171.9   Submission and approval of Government Agency Plan ►171.10   Certification of applicators on Indian Reservations • 171.11   Federal certification of pesticide applicators in

States or on Indian Reservations where there is no approved State or Tribal certification plan in effect

►171.10   Certification of Applicators on Indian Reservations

• Indian Reservations not subject to State jurisdiction:– They may utilize the State certification

program with concurrence of the State (could result in possible state oversight of Tribal program – therefore GRIC rejected this option)

–…

…

–They may develop own plan •The plan is based on either Federal standards (§§171.1 through 171.8) or State standards for certification which have been accepted by EPA•The plan is submitted through the US Department of the Interior to the EPA Administrator for approval

A Selected Overview Of 40 CFR 171 (Certification of Pesticide Applicators)

• 171.3   Categories of commercial applicators of pesticides • 171.4   Standards for certification of commercial applicators• 171.5   Standards for certification of private applicators • 171.6   Standards for supervision of noncertified applicators

by certified private and commercial applicators

► 171.7   Submission and approval of State plans for certification of commercial and private applicators of restricted use pesticides GRIC chose this option based on 171.10

• 171.9   Submission and approval of Government Agency Plan• 171.10   Certification of applicators on Indian Reservations • 171.11   Federal certification of pesticide applicators in

States or on Indian Reservations where there is no approved State or Tribal certification plan in effect

►171.7   Submission of State C&T Plan

• Designates a State Agency (recommend in ordinance)

• Legal Authority and Qualified Personnel – Supported by Opinion of the Legal

Counsel • Copy of Appropriate State Law/Regulation,

which:

–…

Copy of Appropriate State Law/Regulation, which:

– list acts for denying … certification of applicators, & provisions for assessing criminal/civil penalties

– review applicator's certification if criminal conviction

– right-of-entry by consent or warrant– unlawful if not a certified applicator or

under direct supervision to use RUPs– certified commercial applicators keep …

for least two years routine operational records

–…

– list acts for denying … certification of applicators, & provisions for assessing criminal/civil penalties

– review applicator's certification if criminal conviction

– right-of-entry by consent or warrant– unlawful if not a certified applicator or under

direct supervision to use RUPs– certified commercial applicators keep … for least

two years routine operational records

Most were already covered in GRIC’s ‘agricultural ordinance’; if not, then GRIC borrow/modified state law

New Provisions• Created a new category “Community

Applicators”– Community employees that use only general

use pesticides (no restricted use pesticides)– Community members that wish to operate

there own business that use only general use pesticides (no restricted use pesticides)

• Termite treatment standards with a 5 year warranty

• Advance notice of all agricultural pesticide applications and termite pretreatments

Barry Abbott, ManagerPesticide Control OfficeGRIC DEQP.O. Box 97Sacaton, AZ 85147(520) 562-2234barry.abbott@gric.nsn.us