CHAPTER Pes 1000 RESTRICTIONS ON THE USE OF PESTICIDES TO PROTECT GROUND AND SURFACE WATERS

PART Pes 1001 PESTICIDE APPLICATION ALONG SHORELINE OF SURFACE WATERS

Pes 1001.01 Restrictions on Pesticide Use by Residential Property Owners, Private Applicators and Commercial Applicators. No residential property owner, private applicator, or commercial applicator shall apply pesticides to ground, turf, or established vegetation within the following distances of the reference line of those waters not covered by RSA 483-B “The Comprehensive Shoreland Protection Act”:

(a) Within 25 feet as it pertains to surface waters; and

(b) Beyond 25 feet in such a manner or by such methods that would result in the presence of pesticides within 25 feet of the reference line of any surface waters.

Source. #5701, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #7553, eff 9-5-01; ss by #8131, eff 8-13-04; ss by #9712-B, eff 5-11-10; ss by #10333, eff 5-10-13

Pes 1001.02 Pesticide Applications Within 25 Feet of the Reference Line. The restrictions in Pes 1001.01 shall not apply to the following:

(a) Pesticide applications inside structures provided there is no soil contact or soil incorporation;

(b) Pesticide applications to control termites provided the applicator is in possession of a special permit issued by the division in accordance with the provisions of Pes 502.04;

(c) Pesticide applications which are subject to prior approval of the division through issuance of a special permit where distances from surface water are determined on a case by case basis; and

(d) Pesticide applications to control vegetation along the embankments of sewage lagoons of wastewater treatment facilities.

Source. #5701, eff 9-17-93; ss by #6316, eff 8-13-96; amd by #6944, eff 2-24-99; amd by #7078, eff 8-25-99; ss by #7553, eff 9-5-01; ss by #8131, eff 8-13-04; ss by 9219, eff 9-1-08; ss by #10333, eff 5-10-13

PART Pes 1002 SITE MANAGEMENT AREAS FOR GROUNDWATER AND SURFACE WATER PROTECTION

Pes 1002.01 Definition of a Site Management Area. "Site management area" means a pesticide use, handling, storage or distribution area which is connected to a ground or surface water source where pesticides are detected and where the following conditions exist:

(a) There are activities which are controlled by the authority of RSA 430:28-50 and Pes 100-1100;

(b) The site has a history of the use of the pesticide(s) that is(are) the contaminant(s), by private applicators, commercial applicators and other persons within the last 5 years; and

(c) The division has determined that supplementary pesticide use or handling restrictions beyond those found on the pesticide label and Pes 100-1100 are necessary to minimize or prevent further pesticide contamination of surface and groundwater.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.02 Definition of Potentially Responsible Party(ies). "Potentially responsible party(ies)" means a landowner or anyone applying, handling, storing or distributing pesticides detected in ground or surface water in the area found to be connected to the ground or surface water source where the detection occurred.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.03 Division Investigation. Investigation of a potential site management area by the division for purposes of obtaining information shall be initiated based on the detection of a pesticide in at least 2 samples taken at different times from a groundwater or surface water sampling point. However, an area where pesticide use has resulted in contamination which violates state ambient groundwater quality standards shall not be designated a site management area and shall be regulated under RSA 485:3 and Env-Wm 1403.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.04 Investigative Report of the Division. The division shall submit an investigative report to the site management area committee which shall contain the following:

(a) The division's findings on water quality, potential source areas of pesticide contamination and potential receptors of the contamination;

(b) A summary of pesticide use and handling activities at each potentially responsible use or handling site; and

(c) A discussion on whether or not the source of contamination is a result of pesticide activity in accordance with the label, misuse or an accident.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.05 Site Management Area Committee. The site management area committee shall consist of 6 members, as follows:

(a) One representative of the division of public health who is also a pesticide control board member;

(b) One representative of the department of environmental services who has a background in chemistry and is also a member of the pesticide control board;

(d) One representative of the United States Department of Agriculture, Natural Resources Conservation Service;

(e) The director of the division of pesticide control; and

(f) The coordinator of the state pesticide management plan for the protection of groundwater.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.06 Responsibility of the Site Management Area Committee. The site management area committee shall review the investigative report, make recommendations and provide advice to the division.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.07 Site Management Area Plan.

(a) The division shall prepare a site management plan based upon existing information.

(b) Information to be considered for purposes of preparing the site management plan shall include the following:

(1) Recommendations of the site management area committee after review of the division's investigative report and findings on the source and receptors of pesticide contamination;

(2) Whether the source of contamination is a result of pesticide use or handling in accordance with the label, misuse or an accident;

(3) Name and address of the potentially responsible party(ies) of the pesticide application or use area;

(4) Tax assessor's information including:

a. Tract/map number;

b. Lot/parcel number;

c. Deed book number; and

d. Deed page number;

(5) Pertinent physical features such as hydrology and hydrogeology, surface water or groundwater susceptibility and other relevant subjects which support the basis for recommending a particular area as a site management area(s);

(6) A map with boundaries as specified in Pes 1002.08, of the potential site management area which shall be one of the following:

a. A detailed U.S. Geological Survey map at a scale of 1:24000 or 1:25000;

b. A copy of an assessor's map at a scale of no less than 1:1000; or

c. A map prepared by a New Hampshire licensed land surveyor at a scale of no less than 1:1000;

(7) Information which shall be plotted on the map described in Pes 1002.07(b)(6) to include the following:

a. North arrow, specified as magnetic or true;

b. Distinguishable landmark such as a street, boundmarker, fence line, building or the most discernable landmark available;

c. Ownership boundaries;

d. Location of water wells in the area outside of the site management area for a distance of 1000 feet from the boundary of the potential site management area including:

1. Distance of each water well to the boundary; and

2. An indication of whether the well is public or private; and

e. Location of surface waters in the area outside of the site management area for a distance of 1000 feet from the boundary of the potential site management area including the following:

1. Name of the water body;

2. Type of surface water such as lake, pond, river, stream, swamp, marsh or bog; and

3. Whether the surface water is surface waters or their tributaries used for a public water supply;

(8) Descriptions of restrictions recommended for the site management area as described in Pes 1002.09 and a schedule and methods for review of their effectiveness;

(9) Reference to informational and educational programs concerned with increasing the competency of pesticide applicators;

(10) The presence of a soil type that favors leaching or retention of pesticides;

(11) The availability of existing wells or other water sources, such as surface waters, for monitoring purposes; and

(12) The need to conduct monitoring in order to:

a. Track the level of contaminants over time; or

b. Track the distribution of contamination so as to assess risk to abutting areas.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.08 Determination and Description of Boundaries. The site management area plan recommendations by the site management area committee shall include a determination and description of boundaries based on the following:

(a) Boundaries of a site management area shall be the area where the pesticide application or use area is determined to be a source of a detected pesticide(s);

(b) To facilitate the defining of a boundary, the following legal land descriptions shall be used if they are in close proximity to the boundary as determined in (a) above:

(1) Public roads;

(2) Political boundaries;

(3) Rights-of-way that appear on maps; and

(4) Other similar descriptions;

(c) Boundaries shall encompass sufficient area to minimize the concentration of a pesticide in surface water or in groundwater to regain or maintain the water quality below regulatory detection limits as established under RSA 485-C:6, "Ambient Groundwater Quality Standards," Env-Dw 700, "Drinking Water Quality Standards," or Env-Wq 1700, "Surface Water Quality Regulations," depending on the type of water Source.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.09 Restrictions on Pesticide Use in Site Management Areas. The site management area plan recommendations to the division shall include suggested restrictions on pesticide use or handling for the purpose of protecting groundwater and surface water including but not limited to one or more of the following:

(a) Prohibitions against the use or handling of a certain pesticide;

(b) Limitations on the purpose for which a certain pesticide shall be used or handled, including limitation on the crops and target pests for which a pesticide shall be used;

(d) Limitations on the time or frequency of use of a certain pesticide;

(e) Limitations on the method of application of a certain pesticide;

(f) Buffers or zones between wells, surface waters and contamination areas where pesticides cannot be used;

(g) Reporting or permit requirements applicable to the use or handling of a certain pesticide;

(h) Recommendations for no action stating why no supplemental action beyond compliance with RSA 430:28-50 and the administrative rules of the pesticide control board, Pes 100-1100, is necessary; and

(i) Monitoring requirements.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.10 Notification to Potentially Responsible Party. Notification shall be given by the division to potentially responsible parties providing the following information:

(a) The intent of the division to designate a site management area;

(b) Site management area plan recommendations;

(d) An opportunity to request a meeting between the potentially responsible parties, the division of pesticide control, and the site management area committee.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.11 Request for Meeting by Potentially Responsible Party(ies).

(a) The division shall schedule a meeting provided the request is received within 21 days of the notice under Pes 1002.10.

(b) The division shall notify the potentially responsible party(ies) 20 days prior to the meeting of the following:

(1) Date of the meeting;

(2) Location of meeting;

(3) Time of meeting; and

(4) That the purpose of the meeting is to provide the potentially responsible party(ies) an opportunity to comment and direct questions concerning the committee's site management area plan recommendations to the division.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.12 Site Management Area Designation. The division, taking into consideration any information from a landowner meeting, the recommendations of the site management area committee contained in the site management area plan and the detection of a pesticide in at least 2 samples taken at different times from a groundwater or surface water sampling point, shall designate a site management area provided the information and recommendations support the designation.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.13 Notice of Designation of Site Management Area. The division shall notify the potentially responsible parties by certified mail within 10 days of the division's designation of a site management area.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.14 Special Permit Required. No pesticide applications shall be made in a site management area unless such applications comply with the provisions of the site management area plan and the applicator obtains a special permit within 60 days of the designation of the site management area.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.15 Special Permit Application Procedure.

(a) Application for approval for pesticide use or handling within site management areas shall be made on forms provided by the division.

(b) Applicant shall provide on such forms the following:

(1) An attached copy of the site management area plan;

(2) Names, addresses and telephone numbers of the following:

a. Applicant; and

b. Spokesperson of group or association requesting pesticide use or handling;

(3) Description of pesticide use procedure which includes:

a. List of names of pesticides to be used;

b. Method of application of pesticide;

c. Identification of site to which pesticide will be applied upon or into including soil, plant, animal, structure or any other area as applicable;

d. Reason(s) for pesticide use and frequency of pesticide use; and

e. Measures to mitigate and/or prevent contamination consistent with the site management area plan;

(4) Signature of applicant or spokesperson representing group or association; and

(5) Date of application.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.16 Division Action on Special Permit Request.

(a) Within 30 days of receiving a special permit request the division shall respond by issuance of a special permit or by letter stating reasons why the special permit request was denied.

(b) Special permits shall be approved provided that:

(1) The application is filled out completely providing all of the information requested in Pes 1002.15; and

(2) The special permit request proposal conforms to the provision in the site management area plan and the restrictions as specified under Pes 1002.09.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

Pes 1002.17 Termination or Revision.

(a) The site management area committee and holders of special permits issued pursuant to Pes 1002.14 shall review the provisions of the site management area plan and the special permits annually to determine if provisions are still needed and if the plan needs to be revised.

(b) Termination or revision shall be determined by one or more of the following:

(1) Testing has shown that contamination levels have changed;

(2) The pesticide causing the contamination is no longer used in the site management area;

(3) There are no longer any activities in the site management area utilizing pesticides;

(4) Assessment of the provisions of the site management area plan has indicated that the protective measures are not effective; and

(5) Investigation for enforcement purposes has indicated violation of the terms of the special permit.

Source. #5702, eff 9-17-93; ss by #6316, eff 8-13-96; ss by #8131, eff 8-13-04; ss by #10333, eff 5-10-13

APPENDIX

Rule	Specific State Statute which the Rule Implements

Pes 1001.01	RSA 430:31, IV(a)
Pes 1001.02	RSA 430:31, IV
Pes 1002.01 – Pes 1002.17	RSA 430:41, IV and RSA 430:41, V