Stanley Mosk, Attorney General, Doris H. Maier, Assistant Attorney General, and Nat A. Agliano, Deputy Attorney General, for Real Party in Interest.
In this proceeding in prohibition petitioner seeks to preclude his trial on two counts of grand theft on the ground that the trial would twice put him in jeopardy in violation of article I, section 13 of the California Constitution.
"The Court: What is your next question?
"Foreman Ripley: That is all I have here, Your Honor, unless some question has arisen in the minds of any of the jurors at this time.
"The Court: Now, Mr. Foreman, without indicating which way you stand, that is, for guilt or for innocence, without indicating which way you stand, tell the Court numerically how the jury stands on Count 1?
"Foreman Ripley: I beg your pardon. I misunderstood your question, sir.
"The Court: All right. Numerically how do they stand?
"The Court: No. Without indicating whether it is for guilt or for innocence, indicate numerically how the jury stood.
"Foreman Ripley: 10 to 2.
"The Court: How did the Jury stand on Count 2 numerically, without indicating which way?
"Foreman Ripley: Seven to five.
"The Court: Well, it just appears to the Court, Mr. Foreman, that this Jury has been confused. Some of the jurors are off on a tangent. Apparently they have misconceived the evidence, failed to understand the instructions or have not [58 Cal. 2d 5] been able to apply the instructions to the evidence. I feel that I should declare this a mistrial.
"The Court declares this case a mistrial. The Jury is discharged with the thanks of the Court."
On January 5, 1962, the court refused to entertain petitioner's plea of once in jeopardy and reset the case for trial.
The parties have stipulated that the bailiff reported to the judge "approximately two hours after the case had been submitted to the jury, that the foreman of the jury stated to the bailiff that the jury was 'hopelessly deadlocked,' and that this report was made to said judge at a time when the court was not in session and for that reason is not a part of the record in said action." The stipulation expressly states that petitioner did not waive his right to object to the admissibility of this report.
Since petitioner did not consent to the discharge of the jury, the sole issue is whether legal necessity required it. There is such necessity when "at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree." (Pen. Code, § 1140; People v. Smalling, 94 Cal. 112, 115 [29 P. 421]; People v. Cage, 48 Cal. 323, 326 [17 Am.Rep. 436]; Ex parte McLaughlin, 41 Cal. 211, 216 [10 Am.Rep. 272].) The People contend that the trial judge was justified in concluding that there was no reasonable probability that the jury could agree [58 Cal. 2d 6] because of the bailiff's report that the jury was hopelessly deadlocked and because it was apparent from the exchange in open court between the judge and the foreman of the jury that the jurors were so confused as to the law and facts of the case that they would not be able to reach a verdict.
 The judge in the present case had less justification for discharging the jury on the basis of the bailiff's report than did the judge in the Cage case. When the jury was discharged in Cage, they had deliberated for four days. They had returned to the courtroom once for instructions and had returned on the first and third days of deliberation to announce to the court their inability to agree on a verdict. On the second of these occasions the jury stated that they saw no chance for an agreement. During the fourth day of deliberations, [58 Cal. 2d 7] when the judge ordered the sheriff to ask the jury if they had reached a verdict, the defendant's counsel was present and could have interposed an objection to this procedure and to the subsequent order adjourning the court for the term. In the present case, however, the jury was discharged after deliberating less than five hours. Although they returned to the courtroom to have four questions answered, they were given no opportunity to consider the judge's answers during further deliberations. No juror ever stated in open court that he thought the jury could not reach an agreement.petitioner's counsel was not present when the bailiff reported to the judge the foreman's opinion that the jury was hopelessly deadlocked. Indeed, it appears from the record that petitioner's counsel did not learn of this extrajudicial communication until the judge alluded to it in refusing to entertain petitioner's plea of once in jeopardy 17 days after the jury was discharged.  Such informal communications between court and jury are improper. (People v. Alcalde, 24 Cal. 2d 177, 189 [148 P.2d 627]; People v. Weatherford, 27 Cal. 2d 401, 418- 419 [164 P.2d 753].) "[A]ll communications should be made in open court. ... Ordinary procedure would require that the trial judge afford the parties an opportunity to be apprised of any such communication and to have the opportunity to make timely objection to any action by the court or jury which might be deemed irregular." (People v. Alcalde, supra.) Moreover, the judge in the Cage case discharged the jury immediately after the sheriff reported the jury's message. In the present case the judge discharged the jury three hours after the bailiff's report, during which time the jury continued to deliberate, evidently in the belief that they could reach a verdict. Whatever justification there may be for the judge's discharge of the jury must therefore be found in the exchange between him and the foreman of the jury.
 Ordinarily the trial judge should not discharge a jury on the ground that there is no reasonable probability that the jury can agree without questioning the jurors individually as to such probability. (People v. Greene, 100 Cal. 140, 141 [34 P. 630]; People v. James, 97 Cal. 400, 402 [32 P. 317]; People v. Smalling, 94 Cal. 112, 115 [29 P. 421]; Ex parte McLaughlin, 41 Cal. 211, 218 [10 Am.Rep. 272]; People v. Sullivan, 101 Cal. App. 2d 322, 327 [225 P.2d 645]; People v. Disperati, 11 Cal. App. 469, 473 [105 P. 617].)  "The statute does not provide just what proceeding shall be taken [58 Cal. 2d 8] to determine the probability of an agreement, but no better method occurs to us than to obtain from the jurors an expression of their judgment, and the court, in the exercise of the discretion committed to it, may give such weight to this opinion as the surrounding circumstances seem to demand." (People v. Disperati, supra; see also People v. Greene, supra, 100 Cal. at p. 142; People v. Cage, 48 Cal. 323, 327 [17 Am.Rep. 436].) This procedure was not followed here.
 Although the judge need not state that he is discharging the jury because there is no reasonable probability that they can agree when it is apparent from the record that he discharged the jury for that reason (People v. Greene, supra), such probability is not apparent from the record in this case. After the jury entered the courtroom, the foreman stated that no verdict had been reached, but he gave no indication that he or any other juror considered further deliberations futile. His asking the judge to instruct on two points of law and to clarify two evidentiary matters strongly suggests that the jurors felt they could reach a verdict if these legal and factual questions could be resolved. The short answer to the People's contention that the four questions related to simple matters of law and evidence and indicated that the jury was so confused that they could not be expected to reach a verdict is that the simple questions received simple, clear, and forthright answers that presumably cleared up any confusion the jury may have had. Even if the judge was of the opinion that they were still confused, it cannot be assumed from their questions or anything else in the record that the law and the evidence were so far beyond their understanding that further instructions would have been futile.
 There is no merit in the People's contention that it was necessary to discharge the jury because the ends of justice would otherwise be defeated. Gori v. United States, 367 U.S. 364 [81 S. Ct. 1523, 6 L. Ed. 2d 901], on which the People rely, held that there was no violation of the Fifth Amendment's prohibition against double jeopardy when the trial judge declared the first trial a mistrial without the defendant's consent since he "was acting according to his convictions in protecting the rights of the accused," and "in the sole interest of the defendant." (367 U.S. at pp. 366, 369.) Clearly no such motive prompted the trial judge's action in this case, for he knew that the jury stood ten for acquittal and two for conviction on Count 1. Moreover, we pointed out in Cardenas v. Superior Court, 56 Cal. 2d 273, 275-276 [14 Cal. Rptr. 657, [58 Cal. 2d 9] 363 P.2d 889], that the Gori holding is not in accord with California law.
Gibson, C.J., Peters, J., White, J., and Dooling, J., concurred.
On December 18 and 19, 1961, petitioner was tried by a jury on two counts of grand theft. The jury retired at 4:12 p.m. on December 19 and returned to the courtroom at 9:05 p.m. When the court asked if the jury had arrived at a verdict, the foreman replied: "Your Honor, we have not reached a verdict. We have some questions that we would like to ask and advice from the Court if we may?"
The first question, relating to count 1, was whether a charge of theft is nullified if the victim agreed to accept weekly payments as restitution. The court reread an instruction that restitution is not a defense.
The second question, relating to count 2, was, "Would negligence in the care of the funds, whereby another person may have stolen the money still leave the Defendant responsible and guilty of theft?" The court answered: "Well, Mr. Foreman, we are here only concerned with the charge against the Defendant. No one else is charged with theft. The Defendant is not charged with negligence, he is charged with theft. If from the evidence you find that the Defendant is not guilty, find him not guilty. If under the evidence you find that he is guilty, find him guilty in accordance with the evidence and the instructions. Now, that is all the Court can say."
The third and fourth questions involved two evidentiary matters that were clarified by the court and counsel. The following exchange then ensued: "The Court: What is your next question? Foreman Ripley: That is all I have here, Your Honor, unless some question has arisen in the minds of any of the jurors at this time. The Court: Now, Mr. Foreman, without indicating which way you stand, that is, for guilt or for innocence, without indicating which way you stand, tell the Court numerically how the jury stands on Count 1? Foreman Ripley: Last count was 10 for acquittal-- The Court: No. Foreman Ripley: I beg your pardon. I misunderstood your question, sir. The Court: All right. Numerically how do they stand? Foreman Ripley: Shall I proceed with what I said? 10 for acquittal-- The Court: No. Without indicating whether it is for guilt or for innocence, indicate numerically how the jury stood? Foreman Ripley: 10 to 2. The Court: How did the Jury stand on Count 2 numerically, without indicating which way? Foreman Ripley: Seven to five. The Court: Well, it just appears to the Court, Mr. Foreman, that this Jury has been confused. Some of the jurors are off on a tangent. Apparently they have misconceived the evidence, failed to understand the instructions or have not been able to apply the instructions to the evidence. I feel that I should declare this a mistrial. The Court declares this case a mistrial. The Jury is discharged with the thanks of the Court."
The question here presented is whether the trial judge was justified under section 1140 of the Penal Code in discharging the jury. I believe he was.
In the instant case the trial judge questioned the foreman in the presence of all parties as to how the jury stood numerically on reaching a verdict. After receiving this information and having fully instructed the jury as to the elements of the offense charged and having observed the jurors for two days and listened to the questions of the foreman and his answers to the judge's questions relative to the standing of the jury, the trial judge was justified in finding that the jury was unable to agree and therefore, under the provisions of section 1140 of the Penal Code, in coming to the conclusion that there was no reasonable probability that the jury could agree and was correct in his ruling discharging them.
In Estate of Bristol this court said, at page 223 : "It is common knowledge among judges and lawyers that many cases are determined to the entire satisfaction of trial judges or juries, on their factual issues, by evidence which is overwhelming in its persuasiveness but which may appear relatively unsubstantial--if it can be reflected at all--in a phonographic record. Appellate courts, therefore, if there be any reasonable doubt as to the sufficiency of the evidence to sustain a finding, should resolve that doubt in favor of the finding; and in searching the record and exploring the inferences which may arise from what is found there, to discover whether such doubt or conflict exists, the court should be realistic and practical." Upon such a view of the law, the finding of the trial court in the present case should be sustained.
The factual situation presented to the jury in the case at bar was not complicated. The owner of a restaurant at Lake Tahoe had engaged petitioner and his wife to manage the restaurant. The terms were $100 per week and either one-half or one-third of the net profits.petitioner was to receive $75 per week and his wife $25. They were also to have lodging and certain meals at the restaurant. The owner stayed with [58 Cal. 2d 12] petitioner for several days to show him the procedure for bookkeeping and procured for him deposit bags for the money which was to be left each evening in the bank's night depository. The owner came up to Lake Tahoe once a week and paid the employees and took back with him the tapes from the cash register and tickets in order to set up his own ledger and have his accountant post the figures.
This arrangement began about August 12 or 13. August 29 when the owner arrived at Lake Tahoe he found that petitioner had not made any deposits for the period August 21 through August 27. He had a conversation with petitioner, in which petitioner admitted that he had used this money to pay off his own pressing bad checks and promised to repay the money at $50 per week. The owner agreed, since petitioner had already taken the money.
On September 11 the owner was advised by another employee that petitioner had left the premises and taken all of his belongings with him. The owner then came up to Lake Tahoe and found that although the receipts and register tapes were left in the restaurant, no money had been deposited in the bank account for September 8, 9, or 10, nor was the $150 present which had been kept in the register for change. He also found that the special deposit bags he had given petitioner to use had been in the bank since the last deposit on September 7.
The net amount taken for the period August 22 through August 27 was approximately $642.33, and the amount taken for the period September 8 through September 11 was $411.92.petitioner made no demand for his last pay check or for an accounting and left no forwarding address. The net profit for the period that petitioner operated the restaurant was approximately $130.
Petitioner's defense was that as to the first count relating to the money taken during the period August 21 through August 27, he had this money undeposited when he spoke to the owner, and asked to borrow it, and the owner agreed that he could borrow it and repay it at $50 per week; that they had no discussion of any interest; and that he used it to pick up his outstanding bad checks, which he immediately destroyed.
As to the second count, petitioner alleged that he had each day's deposit in a money bag, which he at first put in his car when he was thinking about leaving the employ of the owner, and then just before he left, he placed these money bags in [58 Cal. 2d 13] the box in the restaurant with the register tapes and left them there with a note to the owner that he was leaving and would write him after he was settled.
A further defense was petitioner's alleged ill health from his high fever, which, according to the testimony of his expert, resulted in his suffering from an intoxication due to endogenous intoxicants. This resulted, according to the expert's testimony, in a clouding of petitioner's consciousness.
With this statement of the evidence in mind, it appears that the questions asked by the foreman of the jury patently displayed the jury's misconception of the charge of theft.
The first question was as to whether the agreement to accept weekly payments by the victim would nullify a possible charge of theft and change it to the "status of a contract to pay on installments."
The question with relation to the second count was whether negligence in the care of funds by petitioner whereby another person stole the money would leave him responsible for the theft.
A subsequent question related to the whereabouts of the keys to the bags. The record contained no testimony in this regard.
Thereafter the jury was questioned as to their numerical division on each count. It was 10-2 on the first count and 7-5 on the second. It was at this point that the court declared a mistrial.
It is apparent that if the jury believed petitioner and his testimony, he would not have had a fraudulent intent. However, they apparently did not believe this, or at least some of them did not comprehend the instructions of the court that restitution is not a defense.
The result which I have reached is supported by the Supreme Court of the United States in its holding in National Labor Relations Board v. Walton Manufacturing Co., 369 U.S. 404 [82 S. Ct. 853, 855, 7 L. Ed. 2d 829], where the court said: "But the Examiner--the one whose appraisal of the testimony was discredited by the Court of Appeals in Florida Citrus Canners Cooperative case--sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records. As we said in the Universal Camera case [340 U.S. 474 (71 S. Ct. 456, 95 L.Ed. 456)]: '... The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case.' 340 U.S., at 496, 71 S. Ct. at 469. For the demeanor of a witness '... may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.' Dyer v. MacDougall, 201 F.2d 265, 269."
The peremptory writ of prohibition, in my opinion, should be denied.


Title of Regulation: 2VAC5-690. Regulations for Pesticide Containers and Containment under Authority of the Virginia Pesticide Control Act (adding 2VAC5-690-10 through 2VAC5-690-240).
Statutory Authority: § 3.2-3906 of the Code of Virginia; 40 CFR Part 165.
Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board that may adopt regulations in accordance with Title 3.2 of the Code of Virginia.
Section 3.2-3906 of the Code of Virginia authorizes the board to adopt regulations that are necessary to carry out the purposes of Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia regarding pesticides. This authority is discretionary.
Purpose: Regulatory standards and requirements for pesticide containers, repackaging pesticides, and pesticide containment structures are essential to protect the environment from potential contamination resulting from accidental pesticide discharges. The enforcement of the current federal regulations utilizing the federal credentials issued to Virginia's pesticide investigators by the U.S. Environmental Protection Agency (EPA) is sufficient to demonstrate compliance with the federal rule. However, the promulgation of Virginia's own regulations would allow more flexibility and greater discretion in the enforcement of pesticide container and containment requirements based on Virginia's unique needs and conditions, thereby benefiting the welfare of the regulants subject to the provisions of this regulation. The health, safety, and welfare of Virginians would not be adversely impacted because the proposed regulations are equivalent to those currently in place at the federal level. Moreover, the enforcement of a state pesticide container and containment regulation would be more cost effective because, under the proposed regulations, investigators would be able to perform container and containment inspections in conjunction with other inspection activities at all applicable sites.
Rationale for Using Fast-Track Process: Department staff expects the regulations will be noncontroversial because the requirements are identical to those of Part 165 of Title 40 of the Code of Federal Regulations, Pesticide Management and Disposal, with which industry is already expected to comply. Since the finalization of the federal regulations, the Department of Agriculture and Consumer Services has provided compliance assistance to the approximately 50 pesticide businesses that are required to comply with its provisions.
Substance: These regulations establish standards for (i) container design and residue removal for nonrefillable pesticide containers, (ii) container design for refillable pesticide containers, (iii) repackaging pesticide products into refillable containers, and (iv) pesticide containment structures. The regulations establish standards for both the registrant of a pesticide product and the refiller who repackages a pesticide product. The regulations also establish recordkeeping requirements.
Issues: The promulgation of Virginia's own regulations will allow more flexibility and greater discretion in the enforcement of pesticide container and containment requirements based on Virginia's unique needs and conditions. This additional flexibility and discretion will be an advantage to both regulants and the agency.
The regulations pose no disadvantages to the public or the Commonwealth as the regulations are equivalent to federal regulations that are currently in place.
Summary of the Proposed Amendments to Regulation. Part 165 of Title 40 of the Code of Federal Regulations, Pesticide Management and Disposal, establishes standards for container design and residue removal in non-refillable pesticide containers, standards for container design in refillable pesticide containers, standards for repackaging pesticide products into refillable containers, and standards for pesticide containment structures. The Board of Agriculture and Consumer Services proposes to promulgate equivalent regulations.
Estimated Economic Impact. According to the Virginia Department of Agriculture and Consumer Services (Department), the enforcement of the current federal regulations utilizing the federal credentials issued to Virginia's pesticide investigators by the U.S. Environmental Protection Agency (EPA) is sufficient to demonstrate compliance with the federal rule. However, the promulgation of Virginia's own regulations would allow more flexibility and greater discretion in the enforcement of pesticide container and containment requirements based on Virginia's unique needs and conditions. The health, safety, and welfare of Virginians would not be adversely affected because the proposed regulations are equivalent to those currently in place at the federal level. Moreover, the enforcement of a state pesticide container and containment regulation would be more cost-effective since under the proposed regulations, investigators would be able to perform container and containment inspections in conjunction with other inspection activities at all applicable sites.
It is a violation of EPA policy for state investigators, during the same visit to any given facility, to conduct any type of pesticide inspection not related to the container and containment inspection being conducted under the investigator's federal credentials. With 50 regulated sites in Virginia that receive a state inspection and a container and containment inspection once a year, the proposed regulations would enable a reduction in duplicative travel that the Department anticipates will result in savings of approximately $20,000. Additionally, compliance actions under a state pesticide container and containment regulation will be processed more quickly and in accordance with Virginia-specific administrative processes and penalty matrix. The federal compliance process can be lengthy, often taking a year or longer to reach resolution.
Businesses and Entities Affected. Pesticide registrants, retailers, distributors, commercial applicators, custom blenders, and end-users may all be affected by the proposed regulations. The Department estimates that approximately 50 facilities will be required to comply with the proposed regulations, the vast majority of these facilities being small businesses.
Projected Impact on Employment. The promulgation of these regulations will not significantly affect employment.
Effects on the Use and Value of Private Property. The promulgation of these regulations will not significantly affect the use and value of private property.
Small Businesses: Costs and Other Effects. The promulgation of these regulations will not significantly affect costs for small businesses.
Small Businesses: Alternative Method that Minimizes Adverse Impact. The promulgation of these regulations will not adversely affect small businesses.
Real Estate Development Costs. The promulgation of these regulations will not affect real estate development costs.
The regulations establish standards for (i) container design and residue removal in nonrefillable pesticide containers, (ii) container design in refillable pesticide containers, (iii) repackaging pesticide products into refillable containers, and (iv) pesticide containment structures. The regulations also establish recordkeeping requirements. The regulations are equivalent to federal regulations located at 40 CFR Part 165, Pesticide Management and Disposal.
This chapter establishes standards and requirements for pesticide containers, repackaging pesticides, and pesticide containment structures.
Terms used in this chapter have the same meaning as in the Federal Insecticide, Fungicide, Rodenticide Act (7 USC § 136 et seq.) and 40 CFR Part 152. In addition, as used in this chapter, the following terms shall have the meanings set forth below.
"Agricultural pesticide" means any pesticide product labeled for use in or on a farm, forest, nursery, or greenhouse.
"Appurtenance" means any equipment or device that is used for the purpose of transferring a pesticide from a stationary pesticide container or to any refillable container, including but not limited to hoses, fittings, plumbing, valves, gauges, pumps, and metering devices.
"Capacity" means, as applied to containers, the rated capacity of the container.
"CFR" means the Code of Federal Regulations.
"Container" means any package, can, bottle, bag, barrel, drum, tank, or other containing-device (excluding any application tanks) used to enclose a pesticide. Containers that are used to sell or distribute a pesticide product and that also function in applying the product (such as spray bottles, aerosol cans, and containers that become part of a direct injection system) are considered to be containers for the purposes of this chapter.
"Containment pad" means any structure that is designed and constructed to intercept and contain pesticides, rinsates, and equipment washwater at a pesticide dispensing area.
"Containment structure" means either a secondary containment unit or a containment pad.
5. The blend is delivered to the end-user along with a copy of the end-use labeling of each pesticide used in the blend and a statement specifying the composition of the mixture.
"Dilutable" means that the pesticide product's labeling allows or requires the pesticide product to be mixed with a liquid diluent prior to application or use.
"Dry pesticide" means any pesticide that is in solid form and that has not been combined with liquids; this includes formulations such as dusts, wettable powders, dry flowables, water-soluble powders, granules, and dry baits.
"Establishment" means any site where a pesticidal product, active ingredient, or device is produced, regardless of whether such site is independently owned or operated, and regardless of whether such site is domestic and producing a pesticidal product for export only, or whether the site is foreign and producing any pesticidal product for import into the United States.
"Facility" means all buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person (or by any person who controls, who is controlled by, or who is under common control with such person).
"FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136 et seq.).
"Nonrefillable container" means a container that is not a refillable container and that is designed and constructed for one-time use and is not intended to be filled again with a pesticide for sale or distribution. Reconditioned containers are considered to be nonrefillable containers.
"One-way valve" means a valve that is designed and constructed to allow virtually unrestricted flow in one direction and no flow in the opposite direction, thus allowing the withdrawal of material from, but not the introduction of material into, a container.
"Operator" means any person in control of, or having responsibility for, the daily operation of a facility at which a containment structure is located.
"Owner" means any person who owns a facility at which a containment structure is required.
5. Interacts in a way, such as the active ingredient permeating the container wall, that would cause the formulation to differ from its composition as described in the statement required in connection with its registration under § 3 of FIFRA (7 USC § 136a).
"Pesticide compatible as applied to containment" means that the containment construction materials are able to withstand anticipated exposure to stored or transferred substances without losing the capability to provide the required containment of the same or other substances within the containment area.
"Pesticide dispensing area" means an area in which pesticide is transferred out of or into a container.
"Portable pesticide container" means a refillable container that is not a stationary pesticide container.
"Produce" means to manufacture, prepare, propagate, compound, or process any pesticide, including any pesticide produced pursuant to § 5 of FIFRA (7 USC § 136c), and any active ingredient or device, or to package, repackage, label, relabel, or otherwise change the container of any pesticide or device.
"Producer" means any person, as defined by FIFRA, who produces any pesticide, active ingredient, or device (including packaging, repackaging, labeling, and relabeling).
"Refillable container" means a container that is intended to be filled with pesticide more than once for sale or distribution.
"Refiller" means a person who engages in the activity of repackaging pesticide product into refillable containers. This could include a registrant or a person operating under contract to a registrant.
"Refilling establishment" means an establishment where the activity of repackaging pesticide product into refillable containers occurs.
"Registrant" means the person registering any pesticide pursuant to the provisions of Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.
"Repackage" means to transfer a pesticide formulation from one container to another without a change in the composition of the formulation, the labeling content, or the product's EPA registration number for sale or distribution.
"Rinsate" means the liquid resulting from the rinsing of the interior of any equipment or container that has come in direct contact with any pesticide.
"Runoff" means any liquid leaving the target site, including water, pesticide rinsate, and pesticide diluents.
"Secondary containment unit" means any structure, including rigid diking, that is designed and constructed to intercept and contain pesticide spills and leaks and to prevent runoff and leaching from stationary pesticide containers.
"Stationary pesticide container" means a refillable container (i) that is fixed at a single facility or establishment or, if not fixed, remains at the facility or establishment for at least 30 consecutive days and (ii) that holds pesticide during the entire time.
"Suspension concentrate" means a stable suspension of solid particulate active ingredients in a liquid intended for dilution with water before use.
"Tamper-evident device" means a device that can be visually inspected to determine if a container has been opened.
"Transport vehicle" means a cargo-carrying vehicle such as an automobile, van, tractor, truck, semitrailer, tank car, or rail car used for the transportation of cargo by any mode.
"USDOT" means the U.S. Department of Transportation.
"VDACS" means the Virginia Department of Agriculture and Consumer Services.
"Washwater" means the liquid resulting from the rinsing of the exterior of any equipment or containers that have or may have come in direct contact with any pesticide or system maintenance compound, such as oil or antifreeze.
A. The regulations in Part II (2VAC5-690-30 et seq.) of this chapter establish design and construction requirements for nonrefillable containers used for the distribution or sale of some pesticide products.
B. A registrant who distributes or sells a pesticide product in nonrefillable containers must comply with the regulations in Part II of this chapter. A registrant whose pesticide product is subject to the regulations in Part II of this chapter as set out in 2VAC5-690-40 must distribute or sell the pesticide product in a nonrefillable container that meets the standards of these regulations.
2VAC5-690-40. Scope of pesticide products included.
A. The regulations in Part II (2VAC5-690-30 et seq.) of this chapter do not apply to manufacturing use products, as defined in 40 CFR 158.153(h).
B. The regulations in Part II of this chapter do not apply to plant-incorporated protectants, as defined in 40 CFR 174.3.
b. The pesticide product (i) is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime and (ii) in the intended use is subject to a tolerance under § 408 of the Federal Food, Drug, and Cosmetic Act (21 USC § 346a) or a food additive regulation under § 409 of the Federal Food, Drug, and Cosmetic Act (21 USC § 348).
2. The labeling of the pesticide product includes directions for use on a site in at least one of the following antimicrobial product use categories: food handling/storage establishments premises and equipment; commercial, institutional, and industrial premises and equipment; residential and public access premises; medical premises and equipment; human drinking water systems; materials preservatives; industrial processes and water systems; antifouling coatings; wood preservatives; or swimming pools.
3. The pesticide product is not a hazardous waste as set out in 40 CFR Part 261 when the pesticide product is intended to be disposed.
4. EPA has not specifically determined that the pesticide product must be subject to the regulations in Part II of this chapter to prevent an unreasonable adverse effect on the environment according to the provisions of subsection D of this section.
D. As established in 40 CFR 165.23(d), EPA may determine that an antimicrobial pesticide product otherwise exempted must be subject to the regulations in Part II of this chapter.
1. The pesticide product meets the criteria of Toxicity Category I as set out in 40 CFR 156.62.
2. The pesticide product meets the criteria of Toxicity Category II as set out in 40 CFR 156.62.
3. The pesticide product is classified for restricted use as set out in 40 CFR 152.160 through 40 CFR 152.175.
F. Except for manufacturing use products, plant-incorporated protectants, antimicrobial products that are exempt under subsection C of this section, and other pesticide products that are regulated under subsection E of this section, a pesticide product must be packaged in compliance with 49 CFR 173.24. If the pesticide product meets the definition of a hazardous material in 49 CFR 171.8, the USDOT requires it to be packaged according to 49 CFR Part 171 through 49 CFR Part 180.
A. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part II of this chapter as described in 2VAC5-690-40.
B. A pesticide product that does not meet the definition of a hazardous material in 49 CFR 171.8 must be packaged in a nonrefillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR 173.4, 49 CFR 173.5, 49 CFR 173.6, 49 CFR 173.24, 49 CFR 173.24a, 49 CFR 173.24b, 49 CFR 173.28, 49 CFR 173.155, 49 CFR 173.203, 49 CFR 173.213, 49 CFR 173.240(c), 49 CFR 173.240(d), 49 CFR 173.241(c), 49 CFR 173.241(d), 49 CFR Part 178, and 49 CFR Part 180 that are applicable to a Packing Group III material, or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subsection apply to the pesticide product as it is packaged for transportation in commerce.
1. The USDOT requires the pesticide product to be packaged according to 49 CFR Part 171 through 49 CFR Part 180 or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B.
2. The pesticide product must be packaged in a nonrefillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR Part 171 through 49 CFR Part 180 or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subdivision apply to the pesticide product as it is packaged for transportation in commerce.
4. Screw cap, 38 millimeters, at least one thread revolution at six threads per inch. The cap may fit on a separate rigid spout or on a flexible pull-out plastic spout.
1. Allow the contents of the nonrefillable container to pour in a continuous, coherent stream.
2. Allow the contents of the nonrefillable container to be poured with a minimum amount of dripping down the outside of the container.
F. Each nonrefillable container and pesticide formulation combination must meet the applicable residue removal standard of this section.
1. If the nonrefillable container is rigid and has a capacity less than or equal to five gallons (18.9 liters) for liquid formulations or 50 pounds (22.7 kilograms) for solid formulations and if the pesticide product's labeling allows or requires the pesticide product to be mixed with a liquid diluent prior to application (that is, if the pesticide is dilutable), each container/formulation combination must be capable of attaining at least 99.99% removal of each active ingredient when tested using the EPA test procedure "Rinsing Procedures for Dilutable Pesticide Products in Rigid Containers."
2. The test must be conducted only if the pesticide product is a suspension concentrate or if EPA specifically requests the records on a case-by-case basis.
3. For the rigid container/dilutable product standard in subdivision 1 of this subsection, percent removal represents the percent of the original concentration of the active ingredient in the pesticide product when compared to the concentration of that active ingredient in the fourth rinse. Percent removal is calculated by the formula: percent removal = [1.0 - RR] x 100.0, where RR = rinsate ratio = Active ingredient concentration in fourth rinsate/Original concentration of active ingredient in the product.
G. As established in 40 CFR 165.25(g) and 40 CFR 165.25(h), a registrant may obtain from EPA a waiver from or a modification to the nonrefillable container standards.
B. A registrant is not required to report to VDACS with information about the registrant's nonrefillable containers under the regulations in Part II of this chapter. A registrant should refer to the reporting standards in 40 CFR Part 159 to determine if information on container failures or other incidents involving pesticide containers must be reported to EPA under § 6(a)(2) of FIFRA (7 USC § 136d(a)(2)).
1. The name and EPA registration number of the pesticide product.
2. A description of the nonrefillable container or containers in which the pesticide product is distributed or sold.
a. A letter or document from the container supplier that describes the closure.
b. A specification about the closure in the contract between the registrant or applicant and the container supplier.
c. A copy of EPA's approval of any nonstandard closure.
a. Test data or documentation demonstrating that the nonrefillable container meets the standards in 2VAC5-690-50 E when it contains the pesticide product.
b. Test data or documentation demonstrating that a different nonrefillable container meets the standards in 2VAC5-690-50 E when it contains the pesticide product or a different pesticide product and a written explanation of why such data or documentation demonstrates that the container meets the standards in 2VAC5-690-50 E for the pesticide product.
c. A copy of EPA's approval of a request for a waiver from the container dispensing requirement.
a. Test data showing that the nonrefillable container and pesticide formulation meet the standard in 2VAC5-690-50 F.
b. Test data showing that a different nonrefillable container with the same or a different pesticide formulation meets the standard in 2VAC5-690-50 F, together with a written explanation of why such data demonstrate that the nonrefillable container and pesticide formulation meet the standard in 2VAC5-690-50 F.
c. A copy of EPA's approval of a request for a waiver from the residue removal standard requirement.
A. The regulations in Part III (2VAC5-690-70 et seq.) of this chapter establish design and construction requirements for refillable containers used for the distribution or sale of some pesticide products.
1. A registrant must comply with all of the regulations in Part III of this chapter if the registrant distributes or sells a pesticide product in refillable containers. If the pesticide product is subject to the regulations in Part III of this chapter as set out in 2VAC5-690-80, the pesticide product must be distributed or sold in a refillable container that meets the standards of these regulations. This includes pesticide products that are repackaged according to Part IV (2VAC5-690-110 et seq.) of this chapter.
2. A refiller must comply with the regulations in 2VAC5-690-90 G for stationary pesticide containers if the refiller is not the registrant of the pesticide product. If the pesticide product is subject to the regulations in Part III of this chapter as set out in 2VAC5-690-80, the stationary pesticide containers used to distribute or sell the product must meet the standards of 2VAC5-690-90 G.
3. For a refiller of a pesticide product who is not a registrant of the pesticide product, 2VAC5-690-90 C provides an exemption from some of the requirements in 2VAC5-690-90 B.
2VAC5-690-80. Scope of pesticide products included.
A. The regulations in Part III (2VAC5-690-70 et seq.) of this chapter do not apply to manufacturing use products as defined in 40 CFR 158.153(h).
B. The regulations in Part III of this chapter do not apply to plant-incorporated protectants as defined in 40 CFR 174.3.
b. The pesticide product (i) is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime; and (ii) in the intended use is subject to a tolerance under § 408 of the Federal Food, Drug, and Cosmetic Act (21 USC § 346a) or a food additive regulation under § 409 of the Federal Food, Drug, and Cosmetic Act (21 USC § 348).
4. EPA has not specifically determined that the pesticide product must be subject to the regulations in Part III of this chapter to prevent an unreasonable adverse effect on the environment according to the provisions of subsection E of this section.
1. The pesticide product is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime.
2. The labeling of the pesticide product includes directions for use on only a site or sites in the antimicrobial product use category of swimming pools.
E. As established in 40 CFR 165.43(e), EPA may determine that an antimicrobial pesticide product otherwise exempted must be subject to the regulations in Part III of this chapter.
F. The regulations in Part III of this chapter apply to all pesticide products other than manufacturing use products, plant-incorporated protectants, and antimicrobial products that are exempt by subsection C of this section. Antimicrobial products covered under subsection D of this section are subject to the regulations indicated in subsection D of this section.
G. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part III of this chapter as described in subsections A through F of this section.
1. The regulations in Part III of this chapter do not apply to transport vehicles that contain pesticide in pesticide-holding tanks that are an integral part of the transport vehicle and that are the primary containment for the pesticide.
2. The regulations in Part III of this chapter do not apply to containers that hold pesticides that are gaseous at atmospheric temperature and pressure.
A. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part III of this chapter as described in 2VAC5-690-80 A through F.
B. A pesticide product that does not meet the definition of a hazardous material in 49 CFR 171.8 must be packaged in a refillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR 173.4, 49 CFR 173.5, 49 CFR 173.6, 49 CFR 173.24, 49 CFR 173.24a, 49 CFR 173.24b, 49 CFR 173.28, 49 CFR 173.155, 49 CFR 173.203, 49 CFR 173.213, 49 CFR 173.240(c), 49 CFR 173.240(d), 49 CFR 173.241(c), 49 CFR 173.241(d), 49 CFR Part 178, and 49 CFR Part 180 that are applicable to a Packing Group III material, or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subsection apply to the pesticide product as it is packaged for transportation in commerce.
C. A refiller is not required to comply with 49 CFR 173.28(b)(2) for pesticide products that are not USDOT hazardous materials if the refillable container to be reused complies with the refillable container regulations in Part III (2VAC5-690-70 et seq.) of this chapter and the refilling is done in compliance with the repackaging regulations in Part IV (2VAC5-690-110) of this chapter.
2. The pesticide product must be packaged in a refillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR Part 171 through 49 CFR Part 180 or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subsection apply to the pesticide product as it is packaged for transportation in commerce.
E. Each refillable container must be marked in a durable and clearly visible manner with a serial number or other identifying code that will distinguish the individual container from all other containers. Durable marking includes, but is not limited to, etching, embossing, ink jetting, stamping, heat stamping, mechanically attaching a plate, molding, and marking with durable ink. The serial number or other identifying code must be located on the outside part of the container except on a closure. Placement on the label or labeling is not sufficient unless the label is an integral, permanent part of or permanently stamped on the container.
F. For any refillable container that is a portable pesticide container, is designed to hold liquid pesticide formulations, and is not a cylinder that complies with the USDOT Hazardous Materials Regulations in 49 CFR Part 171 through 49 CFR Part 180, each opening of the container other than a vent must have a one-way valve, a tamper-evident device, or both. A one-way valve may be located in a device or system separate from the container if the device or system is the only reasonably foreseeable way to withdraw pesticide from the container. A vent must be designed to minimize the amount of material that could be introduced into the container through it.
a. Each stationary pesticide container and its appurtenances must be resistant to extreme changes in temperature and constructed of materials that are adequately thick to not fail and that are resistant to corrosion, puncture, or cracking.
b. Each stationary pesticide container must be capable of withstanding all operating stresses, taking into account static heat, pressure buildup from pumps and compressors, and any other foreseeable mechanical stresses to which the container may be subjected in the course of operations.
a. Each stationary container of liquid pesticides must be equipped with a vent or other device designed to relieve excess pressure, prevent losses by evaporation, and exclude precipitation.
b. External sight gauges, which are pesticide-containing hoses or tubes that run vertically along the exterior of the container from the top to the bottom, are prohibited on stationary containers of liquid pesticides.
c. Each connection on a stationary container of liquid pesticides that is below the normal liquid level must be equipped with a shutoff valve that is capable of being locked closed. A shutoff valve must be located within a secondary containment unit if one is required by Part V (2VAC5-690-160 et seq.) of this chapter.
H. As established in 40 CFR 165.45(g) and 40 CFR 165.45(h), a registrant may obtain from EPA a waiver from or a modification to some of the refillable container standards.
In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part III of this chapter as described in 2VAC5-690-80 A through F.
A registrant is not required to report to VDACS information about the refillable containers under the regulations in Part III (2VAC5-690-70 et seq.) of this chapter. A registrant should refer to the reporting standards in 40 CFR Part 159 to determine if information on container failures or other incidents involving pesticide containers must be reported to EPA under § 6(a)(2) of FIFRA (7 USC § 136d(a)(2)).
A. The regulations in Part IV (2VAC5-690-110 et seq.) of this chapter establish requirements for repackaging some pesticide products into refillable containers for distribution or sale.
3. A refiller of a pesticide product that is not the registrant of the pesticide product.
Each pesticide product that is subject to the regulations in Part IV of this chapter as set out in 2VAC5-690-120 and that is distributed or sold in a refillable container must be distributed or sold in compliance with the standards of these regulations.
2VAC5-690-120. Scope of pesticide products included.
A. The regulations in Part IV (2VAC5-690-110 et seq.) of this chapter do not apply to manufacturing use products as defined in 40 CFR 158.153(h).
B. The regulations in Part IV of this chapter do not apply to plant-incorporated protectants as defined in 40 CFR 174.3.
4. EPA has not specifically determined that the pesticide product must be subject to the regulations in Part IV of this chapter to prevent an unreasonable adverse effect on the environment according to the provisions of subsection F of this section.
F. As established in 40 CFR 165.63(e), EPA may determine that an antimicrobial pesticide product otherwise exempted must be subject to the regulations in Part IV of this chapter.
G. The regulations in Part IV of this chapter apply to all pesticide products other than manufacturing use products, plant-incorporated protectants, and antimicrobial products that are exempt under subsection C of this section. Antimicrobial products covered under subsection E of this section are subject to the regulations indicated in that subsection.
H. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part IV of this chapter as described in subsections A through G of this section.
1. The regulations in Part IV of this chapter do not apply to transport vehicles that contain pesticide in pesticide-holding tanks that are an integral part of the transport vehicle and that are the primary containment for the pesticide.
2. Custom blending is not subject to the regulations in Part IV of this chapter.
3. The regulations in Part IV of this chapter do not apply to containers that hold pesticides that are gaseous at atmospheric temperature and pressure.
2VAC5-690-130. Registrants who distribute or sell pesticide products in refillable containers.
A. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part IV of this chapter as described in 2VAC5-690-120 A through G.
B. Any registrant who distributes or sells pesticide products in refillable containers and any registrant who conducts all of the repackaging for a pesticide product and does not distribute or sell the pesticide product to a refiller that is not part of the registrant's company for repackaging into refillable containers must comply with this section. Any registrant that repackages a product directly into refillable containers for sale or distribution and also sells or distributes other quantities of that product to an independent refiller for repackaging must meet the requirements in this section for those quantities the registrant distributes or sells directly and the requirements in 2VAC5-690-140 for those quantities that the registrant distributes or sells to an independent refiller.
C. A registrant is responsible for the pesticide product that the registrant distributes or sells in refillable containers not being adulterated or different from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a).
D. For each pesticide product distributed or sold in refillable containers, the registrant must develop both of the following documents in writing.
1. The registrant must develop a refilling residue removal procedure that describes how to remove pesticide residue from a refillable container (portable or stationary pesticide container) before it is refilled.
a. The refilling residue removal procedure must be adequate to ensure that the composition of the pesticide product does not differ at the time of its distribution or sale from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a).
b. If the refilling residue removal procedure requires the use of a solvent other than the diluent used for applying the pesticide as specified on the labeling under "Directions for Use," or if there is no diluent used for application, the refilling residue removal procedure must describe how to manage any rinsate resulting from the procedure in accordance with applicable federal and state regulations.
2. The registrant must develop a description of acceptable refillable containers (portable or stationary pesticide containers) that can be used for distributing or selling that pesticide product.
a. An acceptable container is one that the registrant has determined meets the standards in Part III (2VAC5-690-70 et seq.) of this chapter and is compatible with the pesticide formulation intended to be distributed and sold using the refillable container.
b. The registrant must identify the containers by specifying the container materials of construction that are compatible with the pesticide formulation and specifying information necessary to confirm compliance with the refillable container requirements in Part III of this chapter.
E. A refiller at a registrant's establishment that repackages a pesticide product into refillable containers for distribution or sale must comply with all of the following provisions.
1. The establishment must be registered with EPA as a producing establishment as required by 40 CFR 167.20.
2. The refiller must not change the pesticide formulation unless the refiller has a registration for the new formulation.
3. The refiller must repackage a pesticide product only into a refillable container that is identified on the registrant's description of acceptable containers for that pesticide product.
4. The refiller may repackage any quantity of a pesticide product into a refillable container up to the rated capacity of the container. In addition, there are no general limits on the size of the refillable containers that the refiller can use.
c. The written description of acceptable containers for the pesticide product.
6. Before repackaging a pesticide product into any refillable container for distribution or sale, the refiller must identify the pesticide product previously contained in the refillable container to determine whether a residue removal procedure must be conducted in accordance with subsection G of this section. The refiller may identify the previous pesticide product by referring to the label or labeling.
7. The refiller must inspect each refillable container according to subsection F of this section.
8. The refiller must clean each refillable container according to subsection G or H of this section, if required by either subsection.
9. The refiller must ensure that each refillable container is properly labeled according to subsection I of this section.
10. The establishment must maintain records in accordance with subsection J of this section.
11. The establishment must maintain records as required by 40 CFR Part 169.
12. The establishment must report as required by 40 CFR Part 167.
d. There is damage to the fittings, valves, tamper-evident devices or other appurtenances that may cause failure of the container.
2. The container does not bear the markings required by 2VAC5-690-90 B through E, or such markings are not legible.
3. The container does not have an intact and functioning one-way valve or tamper-evident device on each opening other than a vent, if required.
G. A refiller at a registrant's establishment must clean each refillable container by conducting the pesticide product's refilling residue removal procedure before repackaging the pesticide product into the refillable container, unless the conditions in subdivisions 1 and either 2 or 3 of this subsection are satisfied.
1. If required, each tamper-evident device and one-way valve is intact.
2. The refillable container is being refilled with the same pesticide product.
a. The container previously held a pesticide product with a single active ingredient and is being used to repackage a pesticide product with the same single active ingredient.
b. There is no change that would cause the composition of the product being repackaged to differ from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a). Examples of unallowable changes include the active ingredient concentration increasing or decreasing beyond the limits established by the confidential statement of formula or a reaction or interaction between the pesticide product being repackaged and the residue remaining in the container.
H. As required in subsection G of this section, a refiller at a registrant's establishment must clean each refillable container that has a tamper-evident device that is not intact or one-way valve that is not intact by conducting the pesticide product's refilling residue removal procedure before repackaging the pesticide product into the refillable container. In addition, other procedures may be necessary to assure that product integrity is maintained in such cases.
I. Before distributing or selling a pesticide product in a refillable container, a refiller must ensure that the label of the pesticide product is securely attached to the refillable container such that the label can reasonably be expected to remain affixed during the foreseeable conditions and period of use. The label and labeling must comply in all respects with the requirements of 40 CFR Part 156. In particular, the refiller must ensure that the net contents statement and EPA establishment number appear on the label.
J. Each establishment of a registrant that repackages a pesticide product into refillable containers for distribution or sale must maintain all of the records listed in this section in addition to the applicable records identified in 40 CFR Part 167 and 40 CFR Part 169. The establishment must furnish these records for inspection and copying within 72 hours of request by an employee of VDACS.
b. The written description of acceptable containers for the pesticide product.
c. The serial number or other identifying code of the refillable container.
2VAC5-690-140. Registrants who distribute or sell pesticide products to refillers for repackaging.
B. A registrant who distributes or sells pesticide products to a refiller that is not part of the registrant's company for repackaging into refillable containers must comply with the standards in this section.
1. The repackaging results in no change to the pesticide formulation.
a. The pesticide product is repackaged at a refilling establishment registered with EPA as required by 40 CFR 167.20.
b. The pesticide product is repackaged by a refilling establishment registered with EPA as required by 40 CFR 167.20 at the site of a user who intends to use or apply the product.
3. The registrant has entered into a written contract with the refiller to repackage the pesticide product and to use the label of the registrant's pesticide product.
4. The pesticide product is repackaged only into refillable containers that meet the standards of Part III (2VAC5-690-70 et seq.) of this chapter.
5. The pesticide product is labeled with the product's label with no changes except the addition of an appropriate net contents statement and the refiller's EPA establishment number.
D. Repackaging a pesticide product for distribution or sale without either obtaining a registration or meeting all of the conditions in subsection C of this section is a violation of § 12 of FIFRA (7 USC § 136j). Both the registrant and the refiller that is repackaging the registrant's pesticide product under written contract with the registrant may be liable for violations pertaining to the repackaged product.
E. A registrant that allows a refiller to repackage the registrant's product as specified in subsection C of this section must provide the written contract referred to in subdivision C 3 of this section to the refiller before the registrant distributes or sells the pesticide product to the refiller.
F. A registrant is responsible for the pesticide product that the registrant distributes or sells to a refiller that is not part of the registrant's company for repackaging into refillable containers not being adulterated or different from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a).
G. For each pesticide product distributed or sold in refillable containers, the registrant must develop both of the following documents in writing.
b. If the refilling residue removal procedure requires the use of a solvent other than the diluent used for applying the pesticide as specified on the labeling under "Directions for Use," or if there is no diluents used for application, the refilling residue removal procedure must describe how to manage any rinsate resulting from the procedure in accordance with applicable federal and state regulations.
a. An acceptable container is one that the registrant has determined meets the standards Part III of this chapter and is compatible with the pesticide formulation intended to be distributed and sold using the refillable container.
3. The pesticide product's label and labeling.
3. The registrant's written description of acceptable containers for the pesticide product.
2VAC5-690-150. Refillers who are not registrants.
B. A refiller of a pesticide product that is not the registrant of the pesticide product must comply with the standards in this section.
D. Repackaging a pesticide product for distribution or sale without either obtaining a registration or meeting all of the conditions in subsection C of this section is a violation of § 12 of FIFRA (7 USC § 136j). Both the refiller and the pesticide product's registrant may be liable for violations pertaining to the repackaged product.
E. A refiller is responsible for the pesticide product that the refiller distributes or sells in refillable containers not being adulterated or different from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a).
F. A refiller must comply with all of the following provisions.
1. The refiller's establishment must be registered with EPA as a producing establishment as required by 40 CFR 167.20.
3. The refiller must repackage a pesticide product only into a refillable container that is identified on the description of acceptable containers for that pesticide product provided by the registrant.
d. The registrant's written description of acceptable containers for the pesticide product.
6. Before repackaging a pesticide product into any refillable container for distribution or sale, the refiller must identify the pesticide product previously contained in the refillable container to determine whether a residue removal procedure must be conducted in accordance with subsection H of this section. The refiller may identify the previous pesticide product by referring to the label or labeling.
7. The refiller must inspect each refillable container according to subsection G of this section.
8. The refiller must clean each refillable container according to subsection H or I of this section, if required by either subsection.
9. The refiller must ensure that each refillable container is properly labeled according to subsection J of this section.
10. The refiller must maintain records in accordance with subsection K of this section.
11. The refiller must maintain records as required by 40 CFR Part 169.
12. The refiller must report as required by 40 CFR Part 167.
13. The stationary pesticide containers at the refiller's establishment must meet the standards in 2VAC5-690-90 G.
14. The refiller may be required to comply with the containment standards in Part V (2VAC5-690-160 et seq.) of this chapter.
d. There is damage to the fittings, valves, tamper-evident devices, or other appurtenances that may cause failure of the container.
H. A refiller must clean each refillable container by conducting the pesticide product's refilling residue removal procedure before repackaging the pesticide product into the refillable container, unless the conditions in subdivisions 1 and either 2 or 3 of this section are satisfied.
3. Both of the following conditions are satisfied.
I. As required in subsection H of this section, a refiller must clean each refillable container that has a tamper-evident device that is not intact or one-way valve that is not intact by conducting the pesticide product's refilling residue removal procedure before repackaging the pesticide product into the refillable container. In addition, other procedures may be necessary to assure that product integrity is maintained in such cases.
J. Before distributing or selling a pesticide product in a refillable container, a refiller must ensure that the label of the pesticide product is securely attached to the refillable container such that the label can reasonably be expected to remain affixed during the foreseeable conditions and period of use. The label and labeling must comply in all respects with the requirements of 40 CFR Part 156. In particular, a refiller must ensure that the net contents statement and EPA establishment number appear on the label.
K. A refiller must maintain all of the records listed in this section in addition to the applicable records identified in 40 CFR Part 167 and 40 CFR Part 169. A refiller must furnish these records for inspection and copying within 72 hours of request by an employee of VDACS.
1. Storage and handling of large quantities of pesticide products.
2. Pesticide dispensing and container-refilling operations.
B. Any owner or operator of one of the following businesses who also has a stationary pesticide container or a pesticide dispensing (including container refilling) area must comply with the regulations in Part V of this chapter.
1. Refilling establishments who repackage agricultural pesticides and whose principal business is retail sale (i.e., more than 50% of total annual revenue comes from retail operations).
2. Custom blenders of agricultural pesticides.
3. Businesses that apply an agricultural pesticide for compensation (other than trading of personal services between agricultural producers).
2VAC5-690-170. Scope of stationary pesticide containers included.
A. A stationary pesticide container is a refillable container (i) that is fixed at a single facility or establishment or, if not fixed, remains at the facility or establishment for at least 30 consecutive days and (ii) that holds pesticide during the entire time.
1. The container is empty, that is, all pesticide that can be removed by methods such as draining, pumping, or aspirating has been removed (whether or not the container has been rinsed or washed).
2. The container holds only pesticide rinsates or washwater and is labeled accordingly.
3. The container holds only pesticides that would be gaseous when released at atmospheric temperature and pressure.
4. The container is dedicated to nonpesticide use and is labeled accordingly.
2VAC5-690-180. Scope of pesticide dispensing areas included.
1. Refillable containers of agricultural pesticide are emptied, cleaned, or rinsed.
3. Agricultural pesticides are dispensed from a transport vehicle for purposes of filling a refillable container.
4. Agricultural pesticides are dispensed from any other container for the purpose of refilling a refillable container for sale or distribution. Containment requirements do not apply if the agricultural pesticide is dispensed from such a container for use, application or purposes other than refilling for sale or distribution.
1. The only pesticides in the dispensing area would be gaseous when released at atmospheric temperature and pressure.
2. The only pesticide containers refilled or emptied within the dispensing area are stationary pesticide containers that are already protected by a secondary containment unit that complies with the provisions of Part V of this chapter.
3. The pesticide dispensing area is used solely for dispensing pesticide from a rail car that does not remain at a facility long enough to meet the definition of a stationary pesticide container, that is, 30 days.
2VAC5-690-190. Definition of new and existing structures.
2. The owner or operator has either begun a continuous onsite physical construction or installation program or has entered into contractual obligations. The contract must be such that it cannot be canceled or modified without substantial loss and must be for the physical construction or installation of the containment structure within a specific and reasonable time frame.
B. An existing containment structure is defined as one whose installation began on or before November 16, 2006.
2VAC5-690-200. Design and capacity requirements for new structures.
1. The containment structure must be constructed of steel, reinforced concrete, or other rigid material capable of withstanding the full hydrostatic head, load, and impact of any pesticides, precipitation, other substances, equipment, and appurtenances placed within the structure. The structure must be liquid-tight with cracks, seams, and joints appropriately sealed.
2. The structure must not be constructed of natural earthen material, unfired clay, or asphalt.
3. The containment structure must be made of materials compatible with the pesticides stored. Materials are deemed compatible if they are able to withstand anticipated exposure to stored or transferred substances and still provide containment of those same or other substances within the containment area.
1. The owner or operator must ensure that appurtenances and pesticide containers are protected against damage from operating personnel and moving equipment. Means of protection include, but are not limited to, supports to prevent sagging, flexible connections, the use of guard rails, barriers, and protective cages.
2. Appurtenances, discharge outlets, or gravity drains must not be configured through the base or wall of the containment structure, except for direct interconnections between adjacent containment structures that meet the requirements of Part V (2VAC5-690-160 et seq.) of this chapter. Appurtenances must be configured in such a way that spills or leaks are easy to see.
3. The containment structure must be constructed with sufficient freeboard to contain precipitation and prevent water and other liquids from seeping into or flowing onto it from adjacent land or structures.
4. Multiple stationary pesticide containers may be protected within a single secondary containment unit.
1. New secondary containment units for stationary containers of liquid pesticides, if protected from precipitation, must have a capacity of at least 100% of the volume of the largest stationary pesticide container plus the volume displaced by other containers and appurtenances within the unit.
2. New secondary containment units for stationary containers of liquid pesticides, if exposed to or unprotected from precipitation, must have a capacity of at least 110% of the volume of the largest stationary pesticide container plus the volume displaced by other containers and appurtenances within the unit.
3. New containment pads in pesticide dispensing areas that have a pesticide container or pesticide holding equipment with a volume of 750 gallons or greater must have a holding capacity of at least 750 gallons.
4. New containment pads in pesticide dispensing areas that do not have a pesticide container or pesticide holding equipment with a volume of at least 750 gallons must have a holding capacity of at least 100% of the volume of the largest pesticide container or pesticide-holding equipment used on the pad.
D. Each stationary container of liquid pesticides protected by a new secondary containment unit must be anchored or elevated to prevent flotation in the event that the secondary containment unit fills with liquid.
4. Have its surface sloped toward an area where liquids can be collected for removal, such as a liquid-tight sump or a depression, in the case of a single-pour concrete pad.
1. The stationary containers of dry pesticides within the containment unit must be protected from wind and precipitation.
2. Stationary containers of dry pesticides must be placed on pallets or a raised concrete platform to prevent the accumulation of water in or under the pesticide.
3. The storage area for stationary containers of dry pesticides must include a floor that extends completely beneath the pallets or raised concrete platforms on which the stationary containers of dry pesticides must be stored.
4. The storage area for stationary containers of dry pesticides must be enclosed by a curb a minimum of six inches high that extends at least two feet beyond the perimeter of the container.
2VAC5-690-210. Design and capacity requirements for existing structures.
3. The containment structure must be made of materials compatible with the pesticides stored. In this case, compatible means able to withstand anticipated exposure to stored or transferred substances and still provide containment of those same or other substances within the containment area.
2. All appurtenances, discharge outlets, and gravity drains through the base or wall of the containment structure must be sealed, except for direct interconnections between adjacent containment structures that meet the requirements of Part V (2VAC5-690-160 et seq.) of this chapter.
1. Existing secondary containment units for stationary containers of liquid pesticides must have a capacity of at least 100% of the volume of the largest stationary pesticide container plus the volume displaced by other containers and appurtenances within the unit.
2. Existing containment pads in pesticide dispensing areas that have a pesticide container or pesticide-holding equipment with a volume of 750 gallons or greater must have a holding capacity of at least 750 gallons.
3. Existing containment pads in pesticide dispensing areas that do not have a pesticide container or pesticide-holding equipment with a volume of at least 750 gallons must have a holding capacity of at least 100% of the volume of the largest pesticide container or pesticide-holding equipment used on the pad.
D. Each stationary container of liquid pesticides protected by an existing secondary containment unit must be anchored or elevated to prevent flotation in the event that the secondary containment unit fills with liquid.
1. Be designed and constructed to intercept leaks and spills of pesticides that may occur in the pesticide dispensing area.
2. Have enough surface area to extend completely beneath any container on it, with the exception of transport vehicles dispensing pesticide for sale or distribution to a stationary pesticide container. For such vehicles, the surface area of the containment pad must accommodate at least the portion of the vehicle where the delivery hose or device couples to the vehicle. This exception does not apply to transport vehicles that are used for prolonged storage or repeated onsite dispensing of pesticides.
3. Allow, in conjunction with its sump, for removal and recovery of spilled, leaked, or discharged material and rainfall, such as by a manually activated pump. Automatically activated pumps that lack automatic overflow cutoff switches for the receiving container are prohibited.
2VAC5-690-220. Operational, inspection, and maintenance requirements for all new and existing containment structures.
5. Ensure that each lockable valve on a stationary pesticide container, if it is required by 2VAC5-690-90 G, is closed and locked, or that the facility is locked, whenever the facility is unattended.
3. Not store any additional pesticide on a containment structure if the structure fails to meet the requirements of Part V (2VAC5-690-160 et seq.) of this chapter until suitable repairs have been made.
2VAC5-690-230. Combining a containment pad and a secondary containment unit.
An owner or operator subject to the requirements of Part V (2VAC5-690-160 et seq.) of this chapter may combine containment pads and secondary containment units as an integrated system provided the requirements set out in Part V of this chapter for containment pads and secondary containment units in 2VAC5-690-200 A and B, 2VAC5-690-210 A and B, and 2VAC5-690-220, and, as applicable, 2VAC5-690-200 C through F and 2VAC5-690-210 C through F are satisfied separately.
C. Records for any nonstationary pesticide container designed to hold undivided quantities of agricultural pesticides equal to or greater than 500 gallons (1,890 liters) of liquid pesticide or equal to or greater than 4,000 pounds (1,818 kilograms) of dry pesticide that holds pesticide but is not protected by a secondary containment unit meeting these regulations must be kept for three years. Records on these nonstationary pesticide containers must include the time period that the container remains at the same location.
D. Records of the construction date of the containment structure must be kept for as long as the pesticide containment structure is in use, and for three years afterwards.
VA.R. Doc. No. R14-3295; Filed October 25, 2013, 10:54 a.m.