Federal Laws Affecting Pesticide Mixing/Loading Facilities 1

Transcription

1 Fact Sheet RF-AS056 April 1993 Federal Laws Affecting Pesticide Mixing/Loading Facilities 1 Steven E. Dwinell 2 INTRODUCTION Pesticide mixing/loading facilities are built to reduce the potential for soil, groundwater and surface water contamination. In general, facilities that are designed and operated with environmental protection in mind will comply with the provisions of four basic laws that are pertinent to pesticide mixing/loading operation. (See Table 1) The four fundamental laws are the Federal Insecticide, Fungicide, and Rodenticide Act (), the Resource Conservation and Recovery Act (), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Clean Water Act (CWA). These laws, and the regulations implementing them, establish a set of requirements for the handling of pesticides and pesticide waste materials. Designers and operators of these facilities should be aware of the pertinent provisions of these laws and review design and operation features to be certain they are in compliance. (See Table 2) It should be noted that, as of the time of this writing, there are no federal regulations that directly specify how a pesticide mixing and loading facility is to be built and operated. There are state regulations, but no federal regulations. THE FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT () This law, and its numerous amendments, regulates the production, sale and use of pesticides. allows the United States Environmental Protection Agency (USEPA) to establish regulations and policies that protect the environment from improper or unsafe use of pesticides. USEPA requires certain pesticide handling practices and prohibits others primarily by requiring certain statements to be placed on the pesticide label. prohibits use of a pesticide in a manner inconsistent with its labeling. There are two label requirements that affect design and management of mixing and loading facilities. These are: Prohibition of Contamination of Water, Food or Feed This requirement is found in the "Pesticide Disposal" statement on the labels of all pesticides except those intended for household use. It prohibits the contamination of water, food or feed through storage or disposal. This statement establishes the basic requirement for designers and operators of pesticide mixing/loading facilities. The facility must be built and operated in such a manner that pesticides and 1. This document is Fact Sheet RF-AS056, a series of the Agricultural Engineering Department, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida. Publication date: April Steve E. Dwinell, environmental manager, Pesticides and Data Review Section, Florida Department of Environmental Regulation, Tallahassee, FL The Institute of Food and Agricultural Sciences is an equal opportunity/affirmative action employer authorized to provide research, educational information and other services only to individuals and institutions that function without regard to race, color, sex, age, handicap, or national origin. For information on obtaining other extension publications, contact your county Cooperative Extension Service office. Florida Cooperative Extension Service / Institute of Food and Agricultural Sciences / University of Florida / John T. Woeste, Dean

2 Federal Laws Affecting Pesticide Mixing/Loading Facilities Page 2 materials that contain pesticide residues do not come into contact with groundwater, surface water, food or feed. The label statement applies to the use of the pesticide itself, not to the facility, yet it affects the facility directly. If the facility is poorly designed or managed, and contamination of water, food or feed results, then the pesticide user will have used the pesticide in a manner inconsistent with. This label statement can be the basis for enforcement action. If, for example, containers leak onto soil or into a drain which is connected to a surface water supply and groundwater or surface water become contaminated with a pesticide, then the pesticide has not been used in compliance with the label, since contamination of water has occurred as a result of storage. Requirements for Cleaning Empty Containers This requirement is found in the "Container Disposal" section of the label. Pesticide containers must be cleaned in some manner before they are disposed. Facilities that make container cleaning inconvenient or require container cleaning be done as an operation separate from container emptying, will likely result in instances where containers are not properly cleaned before disposal. Properly cleaning pesticide containers also allows pesticide applicators to avoid violating provisions of. Containers that held pesticides regulated as hazardous waste are hazardous wastes when empty unless they have been properly cleaned. Application of a pesticide at a rate less than the specified rate is not a use inconsistent with the label. This definition allows the application of rinsewater containing low concentrations of pesticides resulting from cleaning of application equipment and containers as a pesticide. Congress passed amendments to in l988 that allow the USEPA to develop regulations that will directly affect the design and operation of pesticide mixing and loading facilities. RESOURCE CONSERVATION AND RECOVERY ACT The Resource Conservation and Recovery Act () establishes requirements for the management of materials managed as wastes. These materials are defined as hazardous in 40 CFR Part 261, and are either listed by chemical name or defined as hazardous based upon certain characteristics, such as flammability or corrosivity. Persons who produce waste products (generators) that meet the definition of hazardous wastes must manage those wastes in compliance with the requirements established in regulations. Violations of hazardous waste regulations can result in expensive fines. Only a limited number of pesticides are regulated as hazardous wastes and most commonly used pesticides are not defined as hazardous under. A few common ones, such as 2,4-D, aldicarb, and phorate are, however. pertains to facilities where pesticides are mixed and loaded whenever a waste is produced. Wastes are those materials that are discarded, abandoned, or used in a manner constituting disposal. If these materials are not used as a pesticide or there is no intention to use them as a pesticide, then they are a waste that must be managed. If the pesticide or pesticide residue in the materials meets the definition of a hazardous waste, then the waste must be managed as a hazardous waste. In most cases, wastes classified as hazardous wastes will have to be removed by a licensed hazardous waste contractor. Costs for hazardous waste disposal vary, but are in the neighborhood of $500 to $1,000 per fifty-five gallon drum. The best management practice for operators of mixing/loading facilities is to use all pesticide containing materials produced in the facility as pesticides. Effects of the provisions on facility design and operation for these types of waste products are: Pesticide Rinsewaters Pesticide equipment rinsewaters and empty container rinsewaters should be applied to a labeled site as a dilute pesticide. Rinsewaters can also be collected and used at a later time to make a batch of

3 Federal Laws Affecting Pesticide Mixing/Loading Facilities Page 3 the same or compatible pesticide. As long as the pesticide containing material is used as a pesticide, it will not be waste. If the rinsewater contains pesticides regulated as hazardous waste, it should not be stored for more than ninety days. requires notification and permitting of storage of hazardous waste for more than ninety days. It is preferable to avoid this potential by using all collected rinsewater as soon as possible. Never store pesticide rinsewater in a sump. Sumps are essentially underground storage tanks, and the possibility of a leak always exists. Ideally, sumps should be pumped dry every day. Storage or abandonment of rinsewater in a sump could trigger requirements for registration and permitting of underground storage of hazardous wastes. It is possible to treat pesticide rinsewater or other pesticide containing materials that cannot be used as a pesticide. However, until regulations are changed, it is impractical for pesticide mixing and loading facilities to attempt to use treatment systems for pesticides regulated as hazardous waste due to the cost of obtaining the necessary permits, and designers should avoid including such systems in facilities. Sediments, Sludges, and Spill Control Materials Materials used to collect spills and leaks, and sediment and sludges that accumulate on the pads or in the sumps of mixing/loading facilities require diligent management. The facility operator must know what pesticides these solid or semi-solid materials contain. This is only practical when the operator knows what pesticides have been present on the pad. If the sediment or sludge is collected on a frequent and regular basis, the operator will know what materials have been used and, consequently, what pesticide residues will be in the sediment. Spill control materials should be stored as a pesticide with proper identification until application or disposal can be made. These materials can be applied as a pesticide if the applicator knows the pesticide and the amount of pesticide in the material. If the amount is not known, the applicator can apply it as if it was 100 percent active ingredient. An application using that assumption would always be less than the labeled rate. If the pesticide or pesticides in the solid, sludge, or sediment is not known, the material cannot be legally applied as a pesticide. It will have to be managed as a waste and, if some of the pesticides are regulated as hazardous wastes, the sediment will have to be disposed of as a hazardous waste. The pad design plays a large role in sediment and sludge management. The pad should be designed to minimize sludge and sediment accumulation and allow easy clean-out of sumps. Examples of features that can accomplish this are troughs to wash tires before the equipment comes on the pad and sump liners that can be removed for cleaning. Designs that do not take sediment and sludge management into account may lead to accumulations of sediments that have to be managed as hazardous wastes. CLEAN WATER ACT The Clean Water Act (CWA) affects design and operation of pesticide mixing/loading facilities in one very direct way. One part of the law prohibits the discharge of pollutants to waters of the United States without a permit. It establishes what levels of pollution are acceptable for permitable discharges to water bodies. As a result of these provisions, water produced by pesticide mixing/loading facilities cannot be discharged into surface water bodies that are considered "waters of the United States". Any release of water containing pesticide residues into a water body may be a violation of the law. The CWA also includes effects of surface waters due to stormwater run-off. For some pesticide mixing/loading facilities, this may mean that stormwater which runs off of pads or other parts of the facility that have been exposed to pesticide residue, will have to meet the effluent guidelines before it reaches a water body. The CWA does allow for discharge of treated effluent, or water that has been treated in such a way that it meets the effluent limitation standards low levels (less than one µg/kg). For most facilities, use of a treatment system to remove pesticide residues from rinsewater will not be cost effective. For those operations where use of the

4 Federal Laws Affecting Pesticide Mixing/Loading Facilities Page 4 rinsewater as a pesticide is not possible, the use of a treatment system permitable under the CWA can be explored. Such a system would have to be capable of removing the pesticide residues very effectively. Monitoring of the effluent would be required to ensure compliance with the CWA. COMPREHENSIVE ENVIRON RESPONSE COMPENSATION AND LIABILITY ACT The Comprehensive Environmental Response Compensation and Liability Act (CERCLA), also known as Superfund, requires notification of releases of materials that are considered hazardous to human health or the environment and investigation and clean-up of sites contaminated through such releases. CERCLA defines "hazardous" more broadly than, and many commonly used pesticides are considered hazardous under its definitions. CERCLA also uses USEPA broad authority to require investigations of suspected releases of hazardous materials, and to require clean-ups of areas found to be contaminated. Under the authority of CERCLA, USEPA can conduct investigations and clean-ups and then recover costs plus penalties from landowners that have contaminated property. CERCLA affects design and operation of mixing/loading facilities in two ways. Requirements for Site Investigation Clean-up Under CERCLA, the USEPA can require the investigation and clean-up of any site it suspects is contaminated with hazardous materials. A tracking system called the CERCLIS is maintained by USEPA or state government under contract to USEPA for all sites that have been reported to be contaminated through a release of a hazardous substance. Sites can be placed on the list through discovery by a state agency, USEPA personnel, or public complaints. Locations where pesticide mixing and loading has occurred in the past may have contamination of the soil or water as a result of releases of hazardous materials, i.e. pesticides. Consequently, such places will be eligible for inclusion on the CERCLIS and evaluation using the CERCLA process. Such sites may require extensive investigation and clean-up to meet CERCLA standards. Because of this possibility, it is important to avoid locating new pesticide mixing/loading facilities on sites where pesticide mixing and loading, or any other activity involving hazardous materials, has occurred. If the facilities are built on contaminated sites, the possibility exists that the facility or parts of the facility would have to be demolished to allow an investigation of the extent of previous contamination. It is also possible that a new facility would have to be removed in order to comply with a required clean-up action, such as soil removal or on-site incineration. Designers and builders of pesticide mixing/loading facilities must take this into account when determining where to locate a new facility. The best practice is to locate the facility at a site never used for the storage, handling, mixing, loading, or disposal of pesticides, fuels, solvents, or any other hazardous material. If such a site is not available, the second best alternative is to conduct a bona-fide environmental audit of the site to be used. Professional environmental consultants familiar with pesticide contaminated sites should be used. Trade associations may have information on consultants that have experience in the area. Audits that are not done to professional standards will probably not be acceptable and the money will be wasted. Reporting of Releases to the Environment Facilities that have design features or operating practices that allow releases of pesticides or pesticide containing materials to the environment may eventually end up dealing with CERCLA. Releases are those activities which result in a hazardous material entering the environment through the air, water or soil. Legal applications of pesticides are not considered releases. CERCLA requires reporting of releases of certain materials above specific quantities. Compliance with these reporting requirements should be a goal of facility operators, and they should be familiar with the SARA Title III program. The reporting requirement becomes very important when spills and leaks occur, and also as the facility ages. As the facility develops cracks, leaks, and other structural weaknesses, the potential for

5 Federal Laws Affecting Pesticide Mixing/Loading Facilities Page 5 "releases" increases. Maintenance of the facility is critical for preventing these occurrences. Facility design and operation should be reviewed to ensure that all pesticides and pesticide wastes are either contained within the facility, applied as pesticides, or disposed of properly as wastes. Facility designers and operators should recognize that laws and regulations are always changing. A practice that is acceptable today may not be acceptable tomorrow. There are two ways to cope with this phenomenon: The laws and regulations that exist and are being developed are imperfect attempts to require actions that prevent or eliminate contamination. As contamination problems are discovered, government must respond, and the environmental laws are revised and made stricter. The more common the approach of reducing contamination potential is among pesticide mixing/loading facility designers and operators, the less likely it is that the USEPA or state agencies will impose strict mixing and loading facility requirements on pesticide applicators. 1. do your best to keep informed and influence law and regulation development; and 2. operate with the goal of preventing contamination.

6 Federal Laws Affecting Pesticide Mixing/Loading Facilities Page 6 Table 1. Example of design features and potential compliance problems for pesticide mixing and loading facilities. DESIGN FEATURE PERTINEN T LAW POTENTIAL COMPLIANCE PROBLEM REMEDY Drain in storage area CWA Contamination of soil or water with pesticide Eliminate drain in storage area or connect drain to above-ground collection tank so material can be collected. Storage of food or feed with pesticides Contamination of food or feed Store food and feed in separate storage area. Rain water collected on operational area pad and then discharged outside of pad area CWA Contamination of soil or water with pesticide Prevent rain accumulation by using roof or collect rain water and apply as a pesticide. Container cleaning area separate from mixing area Containers not cleaned immediately will be harder to clean or may not get cleaned Provide for container cleaning area as part of mixing area. Facility built on site previously used for mixing and loading CERCLA Site may be contaminated Use site not used previously or have Environmental Audit conducted to demonstrate no contamination. Equipment rinse water stored underground CERCLA Storage of rinsewater that contains pesticides regulated as hazardous may require a permit. If storage tank leaks, hazardous substances may be released and contamination of groundwater may occur. Store pesticide rinsewater above ground inside of containment dike.

7 Federal Laws Affecting Pesticide Mixing/Loading Facilities Page 7 Table 2. Examples of operational practices and potential problems for pesticide mixing and loading facilities. OPERATIONAL PRACTICE PERTINENT LAW POTENTIAL COMPLIANCE PROBLEM REMEDY Storage waste water over ninety days Might be considered violation of regulation requiring permit for storage of hazardous waste. Use rinsewater as a pesticide within ninety days. Cleaning sludge from sumps infrequently Unknown pesticides in sediment, sludge. Not legal to apply as a pesticide since unknown material. Collect sludge or sediment after each day s operation or when pesticides used are changed. Keeptrack of pesticides used in facility. Discharge of equipment rinse water to site not on label of pesticide residue in rinsewater CERCLA Use inconsistent with label, if pesticide regulated as hazardous than improper disposal of hazardous waste. If listed in CERCLA as hazardous, then release of hazardous substance. Apply rinsewater to a site on label of pesticide. Discharge of rainwater from operational area pad offsite without treatment of permit CWA If rainwater discharged to surface water, possible violation of CWA. If contamination of soil or water occurs, possible violation of label prohibition of contamination of water. Prevent rainwater accumulation by use of roof or other cover, or collect and use all rainwater as a pesticide. Dumping of sediment or sludge that collects on operational area pad. CERCLA Use of pesticide inconsistent with label. If pesticide regulated as hazardous under, than improper disposal of hazardous waste. If regulated under CERCLA, then release of hazardous material. Manage sludge and sediment by using as a pesticide.