1.3 Federal Pesticide Laws, Worker Protection Standard & Recordkeeping

1.3 Federal Pesticide Laws, Worker Protection Standard & Recordkeeping

Quick Answer: Under the federal FIFRA statute, "the label is the law," with specific flexibility provided under Section 2(ee) for reduced rates, unlisted pests, and unprohibited application methods. The Worker Protection Standard (WPS) mandates agricultural employers provide central safety posting, decontamination supplies (1 gal/worker, 3 gal/handler), emergency medical transport, and annual training. Applicators must consult Bulletins Live! Two for Endangered Species Act compliance and obtain NPDES permits from NDDEQ for aquatic discharges. In North Dakota, commercial and public applicators must create the application record within 24 hours under NDAC 60-03-01-07 and retain it for three years under NDCC 4.1-33-14.

The FIFRA Regulatory Framework

The foundational federal statute governing pesticides in the United States is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. § 136 et seq.), administered by the Environmental Protection Agency (EPA).

FIFRA establishes a comprehensive scientific review system. Before any pesticide formulation can be sold or distributed, the EPA evaluates toxicology, environmental persistence, leaching potential, and non-target ecological impacts. The EPA grants registration only when a chemical performs its intended pest control without causing "unreasonable adverse effects on the environment."

"The Label is the Law"

Under FIFRA Section 12(a)(2)(G), it is a direct violation of federal law to use any registered pesticide in a manner inconsistent with its labeling. The container label is a legally binding document; every direction, safety restriction, mandatory Personal Protective Equipment (PPE) specification, and buffer zone must be followed.

Four Critical FIFRA Statutory Provisions

Candidates must distinguish among four specific sections of FIFRA governing field operations in North Dakota:

The Four Allowable Deviations under FIFRA Section 2(ee)

Under Section 2(ee), an applicator may legally perform the following practices unless the product label explicitly prohibits them:

1. Applying at a Reduced Rate: Applying a dosage, concentration, or frequency less than specified on labeling. Rule: Applicators may never exceed the maximum labeled rate, and reduced rates cannot be used if the label explicitly mandates a minimum rate.
2. Targeting an Unlisted Pest: Applying against any target pest not specified on the labeling, provided the crop, animal, or application site is explicitly listed (e.g., treating an unlisted armyworm species in wheat when wheat is an approved crop site).
3. Employing Any Unprohibited Method: Employing any method of application not expressly prohibited by the labeling (e.g., ground broadcast when aerial is not prohibited).
4. Mixing with Fertilizer: Mixing a pesticide or pesticides with a fertilizer when the labeling does not prohibit the mixture. Note the limit: Section 2(ee) names fertilizer mixtures. Pesticide-with-pesticide tank mixes are permitted under the separate "any method not prohibited" principle and the labels of the products involved, and both products' directions must still be obeyed.

The EPA Worker Protection Standard (WPS) (40 CFR Part 170)

The Worker Protection Standard (WPS) is a federal regulation designed to reduce pesticide poisonings and injuries among agricultural workers and handlers in farms, forests, nurseries, and greenhouses:

• Agricultural Workers: Perform hand-labor tasks (weeding, thinning, harvesting) in treated agricultural areas.
• Pesticide Handlers: Mix, load, apply, or handle unsealed pesticide containers, clean equipment, or flag for aerial applications.

Agricultural employers must fulfill five statutory duties:

1. Central Information Display: An accessible display open 24/7 containing:
   • An EPA WPS safety poster.
   • Emergency medical information (name, address, and phone number of the nearest emergency facility).
   • Application records (product name, EPA registration number, active ingredients, treated field location, date/time, and Restricted-Entry Interval [REI]). Records must remain posted for at least 30 days following REI expiration.
2. Decontamination Supplies: Clean water, soap, and single-use towels within 1/4 mile of all work areas:
   • Workers: At least 1 gallon of clean water per worker.
   • Handlers: At least 3 gallons of clean water per handler, plus coveralls and liquid soap.
   • Eyewash: Immediate flowing eyewash capability at mixing/loading sites if the label mandates protective eyewear.
3. Emergency Medical Assistance: Prompt transportation to an emergency medical facility if exposure occurs, providing medical personnel with the Safety Data Sheet (SDS), product name, EPA registration number, and exposure details.
4. Mandatory Annual Training: EPA-approved training before working in treated areas, repeated every 12 months (annually).
5. Field Warnings: Workers must be notified orally, by posted warning signs (the WPS sign with the skull and raised hand), or both. Posting is required when the product's REI exceeds 48 hours for outdoor production or 4 hours for enclosed space production; below those thresholds the employer may choose oral notification or posting. Both oral notification and posting are required only when the pesticide labeling calls for double notification.

Endangered Species Act (ESA) & Bulletins Live! Two

Under the federal Endangered Species Act (ESA), applicators must avoid harming listed threatened or endangered species or their critical habitats (such as the Dakota skipper or pallid sturgeon in North Dakota).

The EPA enforces geographically specific pesticide use limitations through its online mapping tool, Bulletins Live! Two (BLT):

• Applicators check the label for Endangered Species Protection language directing them to BLT.
• Within the required timeframe (typically six months before application), applicators check the BLT map for Pesticide Use Limitation Areas (PULAs) in their target township or field.
• If a PULA applies, the applicator must print and obey the specific Bulletin (e.g., mandatory buffer zones, coarse spray nozzles, or seasonal spray bans). Bulletins carry the full legal weight of the pesticide label.

Clean Water Act (CWA) & NPDES Pesticide General Permits

Discharging biological pesticides or chemical pesticides leaving residues into Waters of the United States (WOTUS) requires a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act.

In North Dakota, the Department of Environmental Quality (NDDEQ) administers the state pesticide general permit under the North Dakota Pollutant Discharge Elimination System. Coverage applies to four use patterns: mosquito and other flying insect pest control, weed and algae control in water, aquatic nuisance animal control, and forest canopy pest control where the application is to, over, or near water. Large-scale operators — those exceeding the annual treatment-area thresholds stated in the current permit — must file a Notice of Intent (NOI) and maintain a Pesticide Discharge Management Plan (PDMP); all permittees must minimize discharge, keep records, and report adverse incidents promptly. Check the thresholds in the permit in force for the season, because they are revised at each five-year reissuance. Ordinary field crop spraying to dry land is not covered by this permit.

North Dakota Recordkeeping Mandates (NDAC 60-03-01-07, NDCC 4.1-33-14)

Under NDAC 60-03-01-07(2), commercial and public applicators must keep a record of all pesticide applications — general use as well as restricted use — and of the use or disposal of all pesticide rinsate. Three timing rules control:

• The record must be made within twenty-four hours of the application or of the rinsate use or disposal.
• A copy must be provided to the client as soon as possible, not to exceed thirty days, unless the applicator has on file a signed letter from the client waiving the right to a copy.
• Records must be kept three years from the date of the application, sale, or purchase (NDCC 4.1-33-14), and any or all of them must be submitted to the Commissioner on request.

Each commercial or public application record must include:

1. Name and address of the person for whom the pesticide was applied.
2. Legal description of the land, specific crops or commodities, and total acreage or other common identifying unit — or grain bin identification, railcar number, or other description of where the pesticide was applied.
3. Pest or pests controlled.
4. Start and completion time of the application (month, day, year, and hour).
5. Person who supplied the pesticide, if other than the applicator or the applicator's employer.
6. Specific trade name and EPA registration number of the pesticide applied.
7. Direction and estimated velocity of the wind and estimated outdoor air temperature at the time of application. This item does not apply to seed treatment applications, bait applications, or indoor applications.
8. Amount of pesticide used — pounds or gallons of formulated product per acre, and pounds or gallons of tank mix applied per acre.
9. Specific crops, commodities, and total acreage or other identifying unit treated.
10. Description of the equipment used in the application.
11. Signature and number of the applicator, if any.Right-of-way rule: right-of-way applicators must record weather conditions and geographic location in two-hour increments — a stricter standard than the single set of conditions required for a field application.

Private applicators (NDAC 60-03-01-07(3)) keep a narrower record, and only for restricted use pesticide applications, also made within 24 hours: legal description or grain bin identification of the site; start and completion time; specific trade name and EPA registration number; total amount used (formulated product per acre and tank mix per acre); specific crops, commodities, and total acreage treated; and the applicator's signature and certification number. Federal USDA rules require private applicators to keep federal RUP records for two years; the North Dakota three-year retention in NDCC 4.1-33-14 is the longer, controlling period for records the Commissioner may require.

Dealers (NDAC 60-03-01-07(1)) keep separate, accurate, and complete records of purchases and sales of restricted use pesticides and of all pesticides used under FIFRA Section 18 and Section 24(c), including the purchaser's name, address, certification number and signature, the certification class and expiration date, the issuing state, tribe, or federal agency, an accurate inventory by product, and — for Section 18 products — the intended application site or crop. If an RUP will be delivered to someone other than the certified purchaser, the dealer must keep a completed, signed authorization to receive restricted use pesticides form on file for the current year.

Exam traps: the ND rule does not require relative humidity, and it does not require listing active ingredients — the trade name plus EPA registration number identifies the product. It does require the equipment description, the supplier, the rinsate record, and the 24-hour deadline that many applicators miss.