September 3, 2010
ROUNDUP AND PESTICIDE NOTIFICATION REQUIREMENTS
By: Kevin E. McCarthy, Principal Analyst
You asked whether Roundup™ is a pesticide for purposes of CGS § 22a-66a. You also wanted to know how the notification requirements of this section apply to the application of pesticides to a five-acre parcel that has a brook running through it. The Office of Legislative Research is not authorized to provide legal opinions and this report should not be considered one.
It appears that Roundup™ is a pesticide for purposes of CGS § 22a-66a because it is intended to be used to kill or otherwise regulate weeds and other plants.
The notification requirements of CGS § 22a-66a, as they apply to the site in question and other sites, depend on who applies the pesticide, the type of site, and whether the pesticide is a restricted use pesticide (Roundup™ is not). With several significant exceptions, anyone applying pesticides outdoors within 100 yards of any property line must notify the public by posting a sign at the time of application at any conspicuous point of entry. Additional requirements apply to (1) anyone who applies a restricted use pesticide on land that produces agricultural commodities; (2) the use of pesticides by pesticide application businesses, such as lawn care companies; and (3) the application of pesticides to other specified areas, such as water bodies.
The notice requirements do not apply to the state; a municipality; a pesticide application business; or railroad company for applications made to rights-of-way, distribution lines, and roadsides, including guardrails. Nor do they apply to such applications made by utility companies, although an electric company must comply with Department of Environmental Protection (DEP) regulations concerning the on-site posting of a notice of pesticide application.
Violation of any of the notice requirements is punishable by a fine of up to $90.
DEFINITION OF PESTICIDE
CGS § 22a-47 specifies that, for purpose of CGS § 22a-66a and related sections, pesticide means “any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, or any substance or mixture of substances intended for use as a plant regulator, defoliant or desiccant.” A plant regulator is “any substance or mixture of substances intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of plants or the produce thereof.”
According to Roundup's manufacturer, the Monsanto Company, Roundup™ is designed to kill existing weeds and grass, poison ivy, and bushes such as kudzu and to prevent new grass or weeds from growing. Its active ingredient, glyphosate, inhibits the production of an enzyme, called EPSP synthase, which in turn prevents the plant from manufacturing certain amino acids essential for plant growth and life. As a result, it appears that Roundup™ is “intended for use as a plant regulator, defoliant, or desiccant” and thus is a pesticide for purposes of CGS § 22a-66a.
Applications by Individuals
Anyone applying a pesticide outdoors within 100 yards of any property line must post a sign at the time of application notifying the public of the application at any conspicuous point of entry. This requirement does not apply to (1) noncommercial applications to an area less than 100 square feet or to a fenced area or (2) applications on land that produces agricultural commodities from which gross sales in excess of $1,000 were realized or can reasonably be expected to be realized during any calendar year (but see the following paragraph).
Different requirements apply to anyone who applies a restricted use pesticide on land that produces agricultural commodities. Such people must post a sign notifying the public of the application (1) at each conspicuous point of entry and (2) at every 150 feet of road frontage of treated property if the application is within 100 yards of a public road. If the application is more than 25 feet from a public road, the person is exempt from the latter requirement for up to 500 square feet of an application. Any sign posted under these provisions (1) may be posted on a seasonal basis from the date of first application until the reentry period established under the federal Fungicide, Insecticide and Rodenticide Act (FIFRA) has lapsed for the last pesticide used or (2) may be placed for each application from the date of application until the reentry period established under FIFRA has lapsed. The sign must be at least 8.5 by 11 inches large and be substantially as follows:
RESTRICTED USE PESTICIDES ARE IN USE
PLEASE AVOID THIS AREA
The use of these products is in compliance with state and federal law. This notice is required by section 22a-66a of the general statutes.
The word “attention” must be at least 1.5 inches high, the words “restricted use pesticides are in use, please avoid this area” must be at least .75 inches high, and any other wording on the sign must be .25 inches or smaller. The person making the application must maintain the sign in a readable manner but is not responsible for vandalism to the sign.
Use of Pesticides by Pesticide Businesses
Further requirements apply to pesticide application businesses, e.g., a lawn care company. A pesticide application business, before applying a pesticide within 100 yards of any property line, must provide notice of the time and date of the application to any owner or tenant who abuts the property to be treated and who requests notification. The owner or tenant may request this notice by submitting a form prescribed by the DEP commissioner to the business or the commissioner. The form must include the (1) name, address, and telephone number of the person requesting notification and the best time for notification and (2) name, address, and telephone number, if listed in the directory, of any person whose property abuts the property of the person requesting notification.
Each pesticide application business must submit requests for notification to the commissioner who must maintain a registry of persons requesting notification.
A pesticide application business must make at least two attempts to notify any owner or tenant who requests notification. The attempts must be made as early as practicable but not later than 24 hours before the application. Notice may be by telephone, mail, in person, or by other means. If attempts at notification by the applicator fail, and an emergency application is necessary or best management practices of integrated pest management recommend an immediate pesticide application to reduce the amount of pesticides that would otherwise be needed, the pesticide application business must attempt to notify the owner or tenant in person immediately before the application. A notice of the application and attempts at notification must be placed on the door of the person requesting notification if all notification attempts fail. These requirements do not apply to aerial applications of pesticides that provide notice under DEP regulations.
A pesticide application business, before entering into a written or oral agreement to apply any pesticide, must provide to the person requesting the application and the resident or manager of the property to be treated (1) notification of the registry described above and (2) a copy of the part of the pesticide label that states the product name and registration number, the manufacturer, the active ingredients, the signal word, an emergency phone number, if listed, and any precautionary statements, including statements on environmental hazards, human and animal hazards, emergency treatment, and reentry. Thereafter, the pesticide application business must provide to these persons a copy of those parts of the label that state this information for any other pesticide to be applied before the initial application of the other pesticide. The requirements for the subsequent notice do not apply to outdoor applications made by a pesticide application business to maintain rights-of-way, facilities, or equipment for an electric company, if the application is consistent with a pesticide management plan approved under CGS § 22a-66k.
In the case of Roundup™, the product's federally required label states:
Do not apply directly to water, to areas where surface water is present or to intertidal areas below the mean high water mark. Do not contaminate water when cleaning equipment or disposing of equipment wash waters . . . . The product should only be applied when the potential for drift to adjacent sensitive areas (e.g., residential areas, bodies of water, known habitat for threatened or endangered species, non-target crops) is minimal (e.g., when wind is blowing away from the sensitive areas). Avoid direct application to any body of water.
Finally, a commercial pesticide applicator must post a sign every 150 feet of road frontage of property where pesticides have applied to notify the public. The signs must comply with DEP regulations. A commercial pesticide applicator is a person who uses or supervises the use of (1) any restricted use pesticides or (2) any pesticide on property not owned or rented by the person or his or her employer.
Other Notification Requirements
Any pesticide application business, state agency, or municipality must publish a notice in the local newspaper before applying any pesticide to any lake or pond with any public access owned by the state or municipality. It must also post a sign notifying the public of the application at each place of public access. The sign must comply with DEP regulations. Any pesticide application business must publish a notice in the local newspaper before applying pesticides to any private lake or pond with more than one owner of shoreline property.
The Department of Public Health (DPH) must publish a notice in a local newspaper before spraying to kill mosquito larvae. DPH and any municipal or district health department, must post a sign in the area that will be sprayed to kill adult mosquitoes.
A pesticide application business or any other person authorized to apply a pesticide, before applying a pesticide on a golf course, must post a sign at the clubhouse and at the first tee notifying the public of the application. The sign must comply with DEP regulations.