State of Nebraska Plan for Certification of Pesticide Applicators

ENVIRONMENTAL PROTECTION AGENCY

[OPP-42074; FRL-4772-6]

State of Nebraska Plan for Certification of Pesticide Applicators

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of intent to approve, on a contingent basis, a

certification plan.

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SUMMARY: In accordance with the provisions of section 4(a)(2) of the

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as

amended, and 40 CFR part 171, the Governor of the State of Nebraska, E.

Benjamin Nelson, has submitted a Plan for Certification of Pesticide

Applicators in the State of Nebraska to the EPA for approval. EPA has

been certifying applicators of restricted use pesticides in the State

of Nebraska since 1977. The Plan submitted by the State of Nebraska

provides details for the certification of commercial and private

pesticide applicators and subsequent enforcement of pesticide laws and

regulations pursuant to the Nebraska Pesticide Act. Notice is hereby

given of the intention of the Regional Administrator, EPA, Region VII,

to approve this Plan on a contingency basis as provided at 40 CFR

171.7.

Dates: Written comments should be submitted on or before May 23, 1994.

ADDRESSES: Send written comments, identified by the docket control

number OPP-42074, to: Richard O. Jacobson, Lincoln Field Office,

Environmental Protection Agency, 100 Centennial Mall North, Room 289,

Lincoln, NE 68508.

The comments received pursuant to this notice will be available at

the aforementioned location from 7:30 a.m. to 3:30 p.m., Monday through

Friday. Copies of the State of Nebraska Plan for Certification of

Pesticide Applicators and attached appendices are available for review

at the following locations during normal business hours:

1. Environmental Protection Agency, Lincoln Field Office, 100

Centennial Mall North, Rm. 289, Lincoln, NE 68508. Contact: Richard O.

Jacobson (402) 437-5080.

2. Nebraska Department of Agriculture, Bureau of Plant Industry,

301 Centennial Mall South, Lincoln, NE 68509. Contact: Geir Friisoe

(402) 471-2394.

3. Environmental Protection Agency, Field Operation Division

(7506C), Office of Pesticide Programs, Rm. 1128, CM #2, 1921 Jefferson

Davis Highway, Arlington, VA 22202. Public Docket: (703) 305-5805,

Contact: Jeanne Heying (703) 305-7371.

FOR FURTHER INFORMATION CONTACT: Richard O. Jacobson, Lincoln Field

Office, Environmental Protection Agency, 100 Centennial Mall North, Rm.

289, Lincoln, NE 68508, Telephone: (402) 437-5080.

SUPPLEMENTARY INFORMATION: The Nebraska Department of Agriculture has

been designated as the State Lead Agency for the administration of the

pesticide applicator certification program.

The responsibility for the program's implementation has been vested

in the Department's Bureau of Plant Industry. Cooperating State

agencies include the Institute of Agriculture and Natural Resources

(IANR, Cooperative Extension Division), Nebraska Association of

Resources Districts, Nebraska Department of Aeronautics, Nebraska

Department of Environmental Quality, Nebraska Department of Health,

Nebraska Department of Water Resources, Nebraska Game and Parks

Commission, and Nebraska Natural Resources Commission. The Plan

proposes that agreements or memoranda of understandings be developed

with the cooperating State agencies, as appropriate, to ensure

consistency of programs throughout the State. The Plan provides

provisions for developing a Memorandum of Agreement and Cooperation

with any Indian Tribe requesting such a Memorandum.

The IANR, Cooperative Extension Division, will: (1) Conduct

certification and recertification training sessions, (2) make IPM

instructional materials available, (3) advise and assist the Department

by identifying, adopting, developing, producing and disseminating

educational and training materials necessary for the certification

program, (4) assist the Department in preparing certification

examinations, and (5) furnish evidence to the Department that

applicators have satisfactorily completed the requisite certification

criteria.

The legal authority for the certification program is provided in

The Pesticide Act, Neb. Rev. Stat. sections 2-2622 to 2-2655.

Regulations to implement certain provisions of the Act have yet to be

adopted. A copy of the Nebraska Pesticide Act and a schedule for the

adoption of supporting regulations are attached to the Plan. Because

this is proposed as a contingent approval, pending the State's adoption

of supporting regulations, certain Federal regulations remain in

effect. As examples, until such time as Nebraska adopts regulations

concerning recordkeeping requirements for commercial pesticide

applicators and recordkeeping requirements for restricted use pesticide

dealers, regulations at 40 CFR 171.11(c)(7) and 40 CFR 171.11(g) will

be enforced. The State of Nebraska Attorney General has provided an

opinion that the Department has the legal authority to carry out the

Plan.

The Department will recognize private and commercial certifications

issued through the EPA administered Nebraska certification program

until the expiration date indicated on the individual applicator's

certification. Applicators with EPA issued Nebraska certifications will

be allowed to recertify through the Nebraska certification program. The

Department estimates that 8,159 commercial applicators and 38,352

private applicators will apply for certification. Certified applicators

will be issued licenses which indicate the category(s) in which they

are certified. The Plan indicates that the State will issue licenses

for commercial, noncommercial, and private applicators. A noncommercial

applicator shall mean a certified applicator who applies restricted use

pesticides only on lands owned or controlled by his or her employer or

for a governmental agency or subdivision of the State. A noncommercial

applicator will be required to be certified and recertified by the same

process as a commercial applicator. Noncommercial applicators will be

exempt from a licensing fee. Private applicators will not be charged a

licensing fee. Commercial, noncommercial, and private applicator

licenses will expire 3 years from the date of issue and the applicator

must recertify to renew the appropriate license.

The commercial applicator categories and subcategories are as

follows:

(01) Agricultural pest control - plant,

(01A) Fumigation of soil,

(02) Agricultural pest control - animal,

(03) Forest pest control,

(04) Ornamental and turf pest control,

(05) Aquatic pest control,

(06) Seed treatment,

(07) Right-of-way pest control,

(08) Structural/health-related pest control,

(09) Public health pest control,

(10) Wood preservation and treatment,

(11) Fumigation (other than soil),

(12) Aerial pest control, and

(13) Regulatory/demonstration and research.

Applicators certified in (01A) Fumigation of soil will be required

to be certified in (01) Agricultural pest control plant. Applicators

certified in (12) Aerial pest control will be required to be certified

in one or more additional categories relevant to the type of

application being accomplished. Individuals who apply lawn care

pesticides, either restricted use or general use, to the land of

another for hire or compensation shall be certified in category (04)

Ornamental and turf pest control. Individuals who apply structural pest

control pesticides, either restricted use or general use, to the land

of another for hire or compensation must be certified in category (08)

Structural and health-related pest control.

The standards of competency for commercial applicators in Nebraska

include those listed at 40 CFR 171.4 where the Nebraska categories

correspond to EPA's. Where Nebraska has established categories beyond

those at 40 CFR 171.4, Nebraska has defined corresponding standards of

competency. All commercial and noncommercial applicators will be

required to pass written examinations to become initially certified.

The examinations will cover the general standards and the specific

standards for the category(s) or subcategory in which the applicator

aspires to be certified. All commercial and noncommercial applicators

shall recertify by either passing the written examinations or by

participating in a training course approved by the Department.

The standards of competency for private applicators in Nebraska

include those listed at 40 CFR 171.5. Those private applicators using a

restricted use pesticide through an irrigation system must also be

licensed according to the Nebraska Chemigation Act, Neb. Rev. Stat.

sections 46-1101 through 46-1148. Private applicators applying

restricted use pesticides by fixed or rotary wing aircraft shall be

required to meet the same general and specific standards of competency

as those set forth for commercial applicators. Nebraska has established

that, included in the certification standards as established by the

State, private applicators will be provided training concerning the

proper and safe use of fumigants. Private applicators will be certified

by one of three options: (1) Attending and actively participating in a

training program approved by the Department, or (2) satisfactorily

completing a comprehensive examination provided by the Department, or

(3) satisfactorily completing a home study manual approved by the

Department.

The direct supervision of a noncertified applicator by a certified

applicator, if not prohibited by the label, requires adherence to the

standards at 40 CFR 171.6. The noncertified applicator may work under

the direct supervision of a certified applicator for a period not to

exceed 60 days. After the 60-day period, in order to accomplish an

application of a pesticide which requires certification, the

noncertified applicator is required to become certified. Notification

of direct supervision is required and a noncertified applicator cannot

avoid the certification requirement by changing employers or by elapsed

time intervals.

The Plan provides for the recognition of licenses or certificates

issued by any other valid Federal, State or tribal entity. The

Department will evaluate the issuing agency's standards of competency

for each category or subcategory and either accept the license or

certificate and waive further demonstration of competency if the

category or subcategory standards are sufficiently comparable, or deny

the license or certificate if the standards are not sufficiently

comparable.

In addition to The Nebraska Pesticide Act which provides for

enforcement authority for the State to implement a certification and

training program, EPA believes that appropriate regulations need to be

promulgated by Nebraska as outlined in an attachment to the Plan so the

State may fully implement the Plan. Additionally, EPA maintains that

the development of agreements by the State Lead Agency with the

Cooperating State Agencies also involved in the certification process,

is necessary in order to provide for relevant pesticide applicator

training. Thirdly, through internal EPA review, it was determined that

the Plan lacked language found at 40 CFR 171.4(c)(7) for the specific

standards of competency for Nebraska's proposed category 08 Structural/

health-related pest control.

Satisfaction of the above contingency specifications shall be

accomplished by the State prior to January 1, 1995. Upon contingency

approval, the State Lead Agency (the Nebraska Department of

Agriculture) will initiate the certification of pesticide applicators

as described in the Plan. EPA solicits comments on this proposal to

give contingent approval to the Nebraska Plan. EPA will evaluate the

comments and publish its final decision whether to give contingent

approval.

Dated: April 12, 1994.

Dennis Grams,

Regional Administrator, Region VII.

[FR Doc. 94-9664 Filed 4-20-94; 8:45 am]

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