As published in the ISSA Legislative and Regulatory Update:

EPA published its long awaited final rule that establishes standards for refillable and non-refillable pesticide containers, including design specifications for rinsing, durability, and standardized closures. The final rule establishes an ISSA supported broad exemption from the container standards for antimicrobial pesticides that meet certain criteria.

The rulemaking, over a decade in the making, was initiated in 1994 when EPA issued its proposed rule. The Agency published a supplemental notice in 1999 for the purpose of considering the exemption for antimicrobial products as required by the Food Quality Protection Act (FQPA) passed by Congress in 1996. The Agency also re-opened the comment period in June 2004.

ISSA was successful in ensuring that the final rule established a broad exemption from the container requirements for antimicrobial pesticide products that meet ALL of the following criteria:

1. The product is an antimicrobial pesticide (as defined in FIFRA section 2(mm), OR it has antimicrobial properties AND is subject to a tolerance or a food additive regulation;

2. Its label includes directions for use on a site in at least one of the 10 antimicrobial product use categories identified as "household, industrial or institutional";

3. It is NOT a hazardous waste when it is intended to be disposed, as defined in 40 CFR Part 261; and

4. EPA has not specifically found that the product must be subject to these provisions to prevent an "unreasonable adverse effect" on the environment.

ISSA Ensures Broad-Based Exemption for Antimicrobials. As originally proposed by EPA, the exemption for antimicrobials would have been extremely limited, applying to only about 30% of antimicrobial products on the market, because the exemption would NOT have applied to products that fell within EPA Toxicity Category I.

ISSA argued, however, that the regulatory approach proposed by the Agency practically eliminated the exemption created by Congress, contrary to the legislative intent of the FQPA. At the time Congress passed legislation creating an exemption for antimicrobials from the container requirements, it was clearly their intent to provide relief for the vast majority of antimicrobial products based on testimony received and comments made at various committee hearings. EPA's original proposed approach to implementing the exemption, in effect, would have been at odds with the intent of Congress.

EPA agreed with ISSA and subsequently re-worded the antimicrobial exemption in such a manner that it applies to the majority of antimicrobial products on the market.

While antimicrobial products as defined above are exempt from the container portions of the final rule, they are still subject to the new labeling provisions contained in the rule.

In addition, an "antimicrobial swimming pool product" that is NOT otherwise exempt (i.e., does not meet all four of the criteria for the broad antimicrobial exemption outlined above) is subject to a reduced set of the refillable container and repackaging regulations. An antimicrobial swimming pool product includes products that are labeled for use in swimming pools, spas, hot tubs and whirlpools.

Overview of Pesticide Container Rule. The final rule includes five major sections as described below:

1. Non-refillable Containers: This section addresses "one-way" or disposable containers and applies to pesticide registrants. The purpose of these standards is to ensure that containers are strong and durable, minimize human exposure during container handling and facilitate container disposal and recycling. (Effective Date: 8/16/09)

2. Refillable Containers: This section applies to containers that are intended to be refilled and reused more than once and applies to pesticide registrants. The purpose of these standards is to ensure that containers are strong and durable, minimize cross-contamination of pesticides distributed in refillable containers, and encourage the use of refillable containers to reduce container disposal problems. (Effective Date: 8/16/11)

3. Repackaging: This section, which describes procedures and other safeguards for repackaging pesticide into refillable containers, applies to pesticide registrants and anyone who refills pesticide containers for sale (registrants, formulators, distributors and dealers). These regulations are intended to minimize cross-contamination of pesticides distributed in refillable containers, codify safe refilling management practices and encourage the use of refillable containers to reduce container disposal problems. (Effective Date: 8/16/11)

4. Container Labeling: The labeling segment includes instructions for how to properly clean pesticide containers and a statement identifying the container as non-refillable or refillable. Pesticide registrants are required to ensure that labels include the specified information. Pesticide users are required to comply with the instructions on the labels. NOTE: ALL pesticides, including ANTIMICROBIALS, are subject to the labeling provisions of the final rule. (Effective 8/16/09)

5. Containment Structures: This section applies only to agricultural pesticides. It establishes standards for secondary containment structures at certain bulk storage sites and for containment pads at certain pesticide dispensing operations. Pesticide dealers who repackage pesticides, commercial applicators and custom blenders have to comply with the requirements. The purpose of these standards is to protect the environment from leaks and spills at bulk storage areas and from contamination due to pesticide dispensing operations. (Effective 8/16/09)

Additional Information. EPA has made available several resources to help industry better comprehend the final rule's implications. An overview of the rule has been made available HERE.

In addition, EPA has published "Final Pesticide Container and Containment Regulations At a Glance" which is available HERE.