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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Comments On Changes To Pesticide Application Regulations  Posted: September 4, 2012
September 4, 2012

Clint Quarles, Esq.
Staff Attorney
Department of Agriculture
500 Mero Street, 7th Floor
Frankfort, Kentucky 40601

By email only Clint.Quarles@ky.gov

Re: Proposed Regulatory Amendments
302 KAR 29:020 & 302 KAR 29:060

Dear Mr. Quarles:

These comments are submitted on behalf of the membership of the Kentucky Resources Council, Inc., a nonprofit membership-based organization dedicated to prudent use and conservation of the natural resources of the Commonwealth and providing legal and strategic assistance without charge to individuals and communities across the Commonwealth on environmental, energy, and utility issues.

KRC has reviewed the proposed regulation amendments and offers these comments:

302 KAR 29:020

The Council supports the clarification that the recordkeeping requirements of Section 2(2) apply to both commercial and noncommercial structural applicators. The General Assembly noted in providing general authorization to the Department in KRS 217B.050 for development of regulations governing the use and application of pesticides, that it is not only commercial applicators but also farmers and government applicators, among others, that should be subject to regulation in order to protect both the applicator and those using the structure to which the application is made.

In order to clarify the scope of Section 5, the Council recommends that it be simplified to read as follows:

"Section 5. Pesticide Application by Structural Commercial and Noncommercial Applicators. Any person [governed by this administrative regulation] shall be certified in Category 7(a), Structural Pest Control, pursuant to 302 KAR 29:060, before making application of pesticides to a structure, except new employees being trained pursuant to KRS 217B.560."

This change would clarify that any person engaging in structural past control application would need certification. The “governed by this administrative regulation” is unnecessary, since this provision itself extends governance to all structural pesticide applicators, whether commercial or noncommercial, that fall within the ambit of 302 KAR 29:060 Category 7(a).

302 KAR 29:060 Section 5(1)(a)

The Council opposes the deletion of the sentence requiring that a person seeking certification as a structural pest control applicator demonstrate knowledge of environmental conditions. Where structural pesticides are applied to the exterior of a structure, the applicator should be required to demonstrate a knowledge of soil, climate, and meteorological conditions that might interfere with the proper application.

Additionally, maintenance of the existing language appears to be required by federal regulation. The existing language is taken almost verbatim from 40 CFR 171.4, which requires at Subsection (a) that state standards be at least equal to those in that regulation. 40 CFR 171.4 both requires a general knowledge by all certified commercial applicators of the environmental conditions, 40 CFR 171.4(b)(1)(iii), and which provides more specifically in subsection (C)(7) that for “industrial, institutional, structural, and health related pest control that the applicators:

"must demonstrate a practical knowledge of a wide variety of pests, including 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, including babies, children, pregnant women, and elderly people, 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 category. Because health related pest control may involve outdoor applications, applicators must also demonstrate practical knowledge of environmental conditions, particularly related to this activity."

40 CFR 171.5 also requires that private applicators demonstrate knowledge of environmental conditions.

Since use of structural pest control and health-related pest control pesticides can be made ineffective or dangerous when utilized without knowledge of site soil, climate, and other relevant conditions, and because maintenance of this language is required by federal regulation, the Council recommends retention of the existing language.

Thanks in advance for your consideration of these comments.

Cordially,

/s/
Tom FitzGerald
Director

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