SENATE BILL NO. 415
AS AMENDED BY NOS. 1, 3 & 4
AN ACT TO AMEND CHAPTER 12 OF TITLE 3, DELAWARE CODE, RELATING TO THE REGISTRATION AND CLASSIFICATION OF PESTICIDE PRODUCTS AND CERTIFICATION OF THOSE WHO USE PESTICIDES CLASSIFIED FOR RESTRICTED USE AND FURTHER PROVIDING FOR THE ENFORCEMENT OF SAME.
Be it enacted by the General Assembly of the State of Delaware:
Section 1. Amend Chapter 12 of Title 3, Delaware
Code, by striking said chapter in its entirety and substituting in lieu thereof a new Chapter 12, to read as follows:
"CHAPTER 12. PESTICIDES SUBCHAPTER I. GENERAL PROVISIONS
§1201. Declaration of purpose.
The purposes of this Chapter are:
(1) To regulate the sale, use and application of pesticides in the interest of the overall public welfare;
(0) To protect the consumer by requiring that pesticides sold in this State be correctly labeled with warnings and adequate directions for use;
(1) To restrict the use of any pesticides which are found to be so hazardous to man or to his environment that restrictions are necessary in the overall public interest, weighing the benefits and the risks of that use.
For the purposes of this Chapter:
(1) 'Active ingredient' means -
(a) In the case of pesticides other than a plant regulator, cefoliant, or desiccant, an ingredient which will prevent, destroy, repel, or mitigate insects, mites, nematodes, fungi, rodents, weeds, or other pests;
(b) In the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or rate of maturation or otherwise alter the behavior of ornamental or crop plants or the produce thereof;
() In the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from the plant; or
(a) In the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissue.
(2) 'Adulterated' shall apply to any pesticide if its strength or purity falls below the standard of quality expressed on labeling under which it is sold, or if any substance has been substituted wholly or in part for the article, or if any valuable constituent of the article has been wholly or in part abstracted.
(3) 'Animal' means all vertebrate and invertebrate species, including but not limited to man and other mammals, birds, fish and shell fish.
(4) 'Applicators' -
(a) 'Certified applicator' means any individual who is certified under this Chapter to use or supervise the use of any pesticide which is classified for restricted use.
(b) 'Private applicator' means a certified applicator who uses or supervises the use of any pesticide which is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by him or his employer or (if applied without compensation other than trading of personal services between producers of agricultural commodities) on the property of another person.
(c) 'Commercial applicator' means a certified applicator (whether or not he is a private applicator with respect to some uses) who uses or supervises the use of any pesticide which is classified for restricted use for any purpose or on any property other than as provided by §1202(4) (b).
(d) 'Under the direct supervision of a certified applicator' Unless otherwise prescribed by its labeling, a pesticide shall be considered to be applied under the direct supervision of a certified applicator if it is applied by a competent person acting under the instructions and control of a certified applicator who is available if and when needed, even though such certified applicator is not physically present at the time and place the pesticide is applied.
(5) 'Committee' means the Pesticide Advisory Committee.
(6) 'Defoliant' means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission.
(7) 'Department' means the Department of Agriculture of the State of Delaware.
(8) 'Desiccant' means any substance or mixture of substances intended for artificially accelerating the drying of plant tissues.
(9) 'Device' means any instrument or contrivance (other than firearm) which is intended for trapping, destroying, repelling, or mitigating any pest or any other form of plant or animal life (other than man and other than bacteria, virus or other microorganism on or in living man or other living animals); but shall not include equipment used for the application of pesticides when sold separately therefrom.
(10) 'Distributed' means to offer for sale, hold for sale, sell, barter or supply pesticides or devices within this State.
(11) 'Environment' includes water, air, land, and all plants and man and other animals living therein, and the interrelationships which exist among these.
(12) `E.P.A.' means the United States Environmental Protection Agency.
(13) TIFRA' means the Federal Insecticide, Fungicide, and Rodenticide Act, as amended October 21, 1972.
(14) "Fungus' means any non-chlorophyll-bearing thallophytes (that is, any non-chlorophyll-bearing plan of a lower order than mosses and liverworst), as for example, rust, smut, mildew, mold, yeast and bacteria, ex
cept those on or in living man or other animals, and except those on or in processed food, beverages, or pharmaceuticals.
(15) 'Ingredient statement' means a statement which contains
(a) the name and percentage of each active ingredient, and the total percentage of all inert ingredients, in the pesticide; and
(b) if the pesticide contains arsenic in any form, a statement of the percentages of total and water soluble arsenic, calculated as elementary arsenic.
(16) 'Inert ingredient' means an ingredient which is not an active ingredient.
(17) 'Insect' means any of the numerous small invertebrate animals generally having the body more or less obviously segmented, for the most part belonging to the class Insecta, comprising sixlegged, usually winged forms, as for example, beetles, bugs, bees, flies, and to other allied classes of arthropods whose members are wingless and usually have more than six legs, as for example, spiders, mites, ticks, centipedes, and wood lice.
(18) 'Label' means the written, printed, or graphic matter on, or attached to, the pesticide or device or its containers or wrappers.
(19) 'Labeling' means all labels and all other written, printed or graphic matter -
(a) accompanying the pesticide or device at any time; or
(b) to which reference is made on the label or in literature accompanying the pesticide or device, except to current official publications of the E.P.A., the United States Department of Agriculture and Interior, the Department of Health, Education and Welfare, state experiment stations, state agricultural colleges and other similar Federal or state institutions or agencies authorized by law to conduct research in the field of pesticides.
(20) 'Land' means all land and water areas, including airspace, and all plants, animals, structures, buildings, contrivances and machinery, appurtenant thereto or situated thereon, fixed or mobile, including any used for transportation.
(21) 'License' is written permission issued by the Department to engage in the business of applying any pesticides to the lands of another.
(22) 'Misbranded' shall apply -
(a) to any pesticide or its container if its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular;
(b) to any pesticide -
(i) if it is an imitation of or is offered for sale under the name of another pesticide;
() if its labeling bears any reference to registration under this Chapter and such pesticide has not been registered pursuant to this Chapter;
(i) if the labeling accompanying it does not contain directions for use which are necessary for effecting the purpose for which the product is intended and if complied with, together with any requirements imposed under Section 3 (d) of FIFRA, are adequate to protect health and the environment;
(ii) if the label does not contain a warning or caution statement which may be necessary, and if complied with, adequate to prevent injury to living man and other vertebrate animals;
(iii) if the label or container of the product does not bear an ingredient statement that may be clearly read and understood when the unit for sale is displayed under customary conditions of purchase, handling, storage, and use; or
(iv) if any word, statement, or other information required by or under the authority of this Chapter to appear on the labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs or graphic matters in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
(c) to any device or its container if its labeling bears any statement, design or graphic representation relative thereto or to its ingredients which is false or misleading in any particular.
(23) 'Nematode' includes invertebrate animals of the phylum Nemathelminthes and class Nematoda, that is, unsegmented round worms with elongated, fusiform or saclike bodies covered with cuticle, and inhabiting soil, water, plants or plant parts; may also be referred to as nemas or eelworms.
(24) 'Permit' means a written certificate, issued by the Department, authorizing the purchase, possession, and/or use of certain pesticides which are to be used for purposes designated as 'state restricted pesticide uses' or for experimental use.
(25) 'Person' means any individual, partnership, association, fiduciary, corporation, or any organized group of persons whether incorporated or not.
(26) 'Pest' means -
(a) any insect, rodent, nematode, fungus, weed, or
(b) any other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other microorganism (except viruses, bacteria, or other microorganisms on or in living man or other living animals) which is declared to be a pest under regulations pursuant to Section 1203(e) of this Chapter.
(27) 'Pesticide' means -
(a) any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any pest; or
(b) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant.
(28) 'Plant regulator' means 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 or-
namental or crop plants or the produce thereof, but shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, or soil amendments.
(29) 'Registrant' means the person who has registered any pesticide pursuant to the provisions of this Chapter.
(30) 'Restricted use pesticide' means any pesticide or pesticide use classified by the Administrator of E.P.A. for use only by a certified applicator or competent individual under the direct supervision of a certified applicator.
(31) 'State restricted pesticide use' means any pesticide use which, when used as directed or in accordance with a widespread and commonly recognized practice, the Department determines, subsequent to a hearing, requires additional restrictions to prevent unreasonable adverse effects on the environment.
(32) 'Unreasonable adverse effects on the environment', means any unreasonable risk to man or the environment, taking into account the economic, social and environmental costs and benefits of the use of any pesticide.
(33) 'Weed' means any plant which grows where not wanted.
(34) 'Wildlife' means all living things that are neither human, domesticated, nor, as defined in this Chapter, pests, including but not limited to mammals, birds and aquatic life.
SUBCHAPTER II. REGULATION OF SALE AND USE OF PESTICIDES AND DEVICES
§1203. Regulation: duties and powers.
(a) In order to regulate the sale and/or use of pesticides and devices in this State the Department shall, by regulation, provide that every pesticide and device distributed and/or used within this State shall be duly registered with the Department. The Department may require a registration fee, not to exceed $15.00, for each pesticide or device registered.
(b) Any regulation adopted by the Department pursuant to its authority under §1237 of this Chapter may prescribe the methods to be used in application of pesticides, and may relate to the time, place, manner, materials, and amounts and concentrations, in connection with the application of the pesticides, and may restrict or prohibit use of pesticides in designated areas during specified periods of time and shall encompass all reasonable factors which the Department deems necessary to prevent damage or injury by drift or misapplication to:
(1) Plants, including forage plants, or adjacent or nearby lands;
(2) Wildlife in the adjoining or nearby areas;
(3) Fish and other aquatic life in waters in reasonable proximity to the areas to be treated; or
(4) Humans, animals, or beneficial insects.
The Department may also, by regulation, after a public hearing following due notice, determine "State restricted pesticide uses" for the State or for designated areas within the State, and may require a permit for purchase, possession, and application of a pesticide labeled for a use which is designated as a "State restricted pesticide use".
(c) In issuing such regulations, the Department shall give consideration to pertinent research findings and recommendations of other agencies of the State, the Federal government, or other reliable sources.
(d) The Department shall adopt "restricted use pesticide" classifications. For the purpose of uniformity and in order to enter into cooperative agreements, these classifications shall conform to all current and future classifications adopted by E.P.A.
(e) The Department, after notice and hearing, and in agreement with the Department of Natural Resources and Enviromental Control of the State of Delaware, is authorized to declare a pest any form of plant or animal life (other than man and other than bacteria, virus, and other microorganisms on or in living man or other living animals) which is injurious to health or the environment.
(f) In order to comply with Section 4 of FIFRA, the Department is authorized to make such reports to the E.P.A. in such form and containing such information as E.P.A. may from time to time require.
(g) The Department is authorized, by regulation, to determine standards of coloring or discoloring for pesticides.
§1204. Registration of pesticides which do not have E.P.A. registration for intended use.
(a) Applicability of Section.
The provisions of this Section shall become effective upon certification of the State by the Administrator of E.P.A. pursuant to Section 24(c) of FIFRA.
(b) Requirements of registration
Every pesticide which does not have E.P.A. registration for the use intended and which is formulated for distribution and use within this State shall be duly registered with the Department in accordance with the provisions of this Section.
(c) Registration procedure
under the provisions of this section shall be filed with the Department and include the information set forth pursuant to the regulations adopted under §1203. The Department may register such pesticide if it determines that:
(1) Its composition is such as to warrant the proposed claim for it;
(2) Its labeling and other material required to be submitted comply with the requirements of this Chapter;
(3) It will perform its intended function without unreasonable adverse effects on the environment;
(4) When used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects upon the environment;
(5) The classification for general or restricted use is in conformity with Section 3 (d) of FIFRA; and provided, that the Department shall not make any lack of essentiality a criterion for denying registration of any pesticide. Where two pesticides meet the requirements of this paragraph, one should not be registered in preference to the other; or
(0) Special local needs exist.
§1205. Revocation-Suspension of registration.
(a) The Department may, after due notice, including notice to registrant and opportunity for a hearing, revoke the registration of a pesticide registered pursuant to this Chapter if the pesticide or its labeling does not comply with the requirements of this Chapter or the regulations promulgated by the Department, or to prevent unreasonable adverse effects on the environment. A person affected by such revocation may request a hearing before the Department. A hearing shall be held within thirty days after request. Within thirty days after the hearing the Department shall affirm, withdraw or modify its action by an order based upon the record of the hearing. An appeal
from that order may be taken to Superior Court within thirty days of the date of the order.
(b) The Department may suspend the registration of any pesticide pending the completion of revocation proceedings if the continued use of a pesticide during the time required for revocation proceedings would be likely to result in unreasonable adverse effects on the environment. A revocation order shall be issued with the suspension order so that the hearing procedure may be initiated as provided in cases of revocation of registration. If no request for a hearing is made within thirty days of the suspension order the revocation order will be effective and the registration is revoked.
(a) No person shall engage in the business of applying pesticides to the lands of another unless such person has been duly licensed by the Department. Further, no license shall be issued to any person, nor shall it remain valid, unless such person is certified or has a certified applicator in his employ at all times. No license shall be required of any private applicator.
(b) The Department shall classify or subclassify licenses to be issued under this Chapter. Such classifications may include but not be limited to pest control operators, ornamental, agricultural, or right-of-way pesticide applicators. Separate subclassifications may be specified as to ground, aerial, or manual methods used by any licensee to apply pesticides or to the use of pesticides to control pests (provided, that no person shall be required to pay an additional license fee if such person desires to be licensed in one or all of the license classifications provided for by the Department under the authority of this Chapter).
§1207. Licensing procedure.
(a) Application for a license shall be made in writingto the Department on a designated form obtained from the Department.
(b) The Department shall require an annual fee not to exceed $25.00 for each licensee.
(c) If the Department finds the applicant qualified to apply pesticides in the classifications he has applied for, and if the applicant files the proper proof of financial responsibility as required under §1208 (a) of this Chapter, and if the applicant applying for a license to engage in aerial application of pesticides has met all the requirements of the Federal Aviation Administration and any other applicable federal or state laws or regulations to operate the equipment described in the application, the Department shall issue a license limited to the classifications for which he is qualified, provided, that such financial security required under § 1208 (a) of this Chapter is not dated to expire at an earlier date, in which case said license shall be dated to expire upon expiration date of said financial security. The Department may limit the license of the applicant to the use of certain pesticides, or to certain areas, or to certain types of equipment if the applicant is only so qualified. If a license is not issued as applied for the Department shall inform the applicant in writing of the reasons therefor.
§ 1208. Denial of license.
(a) The Department shall refuse to grant a license until the applicant has furnished evidence of financial responsibility with the Department consisting either of a surety bond or a liability insurance policy or certification thereof, or other evidence of financial responsibility acceptable to the Department, within the financial capabilities of the industries involved. The Department may determine the insurance and surety requirements after due notice and a hearing.
(b) The Department may refuse to grant a license to any person who has committed any unlawful acts pursuant to Section 1224 of this Chapter.
§1209. Suspension; modification; revocation.
(a) The Department may, after notice and opportunity for a hearing, suspend or modify any license granted under this Chapter, where the Department has reasonable grounds to believe that the licensee is responsible for any unlawful acts pursuant to Section 1224 of this Chapter. The Department shall furnish the licensee with notice of the time and place of the hearing, which notice shall be served personally or by registered mail directed to his place of business or last known address with postage fully paid within ten (10) days prior to the time fixed for the hearing.
(b) (1) The Department may, after notice and opportunity for hearing, revoke any license granted under this Chapter if the licensee has been found guilty of any unlawful act under this Chapter.
(b) (2) Should the surety furnished become unsatisfactory, said licensee shall, upon notice, immediately execute a new bond, insurance, or other financial responsibility and shall he fail to do so, the Department shall revoke his license and give him notice of said fact.
§1210. Renewal of License.
All licenses shall continue in full force and effect until December 31st of each year whereupon they shall become invalid unless renewed, except that a license for which a renewal application has been submitted to the Department by November 30th, shall remain in full force and effect until such time as the Department gives written notice to the registrant of renewal or denial. Forms for renewal shall be mailed to all holders of current licenses by the Department by October 1st of each year.
and requirements for their issuance shall not apply to research personnel applying pesticides to bona fide experimental plots.
§ 1212. Registering non-certified individuals.
The Department shall by regulation provide a program of registering non-certified individuals in the employ of licensees.
§1213. Nonresidents; service of process.
Any nonresident applying for a license under this Chapter shall appoint and constitute the Secretary of State of this State, his agent for the acceptance of legal process in any civil action against him. Any such process when so served shall be of the same legal force and validity as if served upon such non-resident personally within the State. Such appointment shall be irrevocable and binding on his executor or administrator; provided, however, that any such non-resident who has a duly appointed resident agent upon whom process may be served as provided by law shall not be required to designate the Secretary of State as such agent. The Secretary of State shall be allowed such fees therefor as provided by law for designating resident agents. The Department shall be furnished with a copy of such designation of the Secretary of State or of a resident agent, such copy to be duly certified by the Secretary of State.
(a) No person shall use a pesticide for a use designated as a "State restricted pesticide use" until that person has a permit duly issued by the Department.
(b) Applications for permits shall be made to the Department on forms prepared by it. The Department shall grant a permit to purchase and/or use a pesticide designated for use as a "State restricted pesticide use" subject to such restrictions as it finds necessary in each case to protect the overall public interest and welfare. The permit may specify the area, time, amount or rate of application or such other conditions of use as the Department finds necessary to carry out the purposes of this Chapter. Permits shall be issued on an annual basis.
(c) The Department shall promulgate such rules, regulations and fees necessary to carry into effect the provisions of this Section and to alter or uniformly suspend such rules, regulations, and fees when necessary. Prior to the promulgation of any rules, regulations, and fees, the Department shall hold public hearings following due notice. The hearing shall be conducted by the Department for the purpose of receiving evidence relevant and material to the issues, following the conclusion of which the Department shall issue such rules, regulations and fees as it sees fit, based on the evidence received at such hearings. An appeal from that order may be taken to the Superior Court within thirty (30) days of the date of the order.
(d) The Department may require a permit fee.
(e) Provided the State is authorized by the Administrator of E.P.A. to issue experimental use permits, the Department may:
(1) issue an experimental use permit to any person applying for an experimental use permit if it determines that the applicant needs such permit in order to accumulate information necessary to register a pesticide under Section 1204 of this Chapter. An application for an experimental use permit may be filed at the time of or before or after an application for registration if filed;
(2) prescribe terms, conditions, and period of time for the experimental use permit which shall be under the supervision of the Department; and
(3) revoke or modify any experimental use permit, at any time, if it finds that its terms or conditions are being violated, or that its terms and conditions are inadequate to avoid unreasonable adverse effects on the environment.
(f) All permits, except experimental use permits, shall continue in full force and effect until December 31st of each year whereupon they shall become invalid unless renewed, except that a permit for which a renewal application has been submitted to the Department by December 31st shall remain in full force and effect until such time as the Department gives written notice to the permit holder of renewal or denial. Forms for renewal shall be mailed to all holders of current permits by the Department by October 1st of each year.
(g) (1) The Department may deny a permit to any person if it finds after a hearing that the public interest requires such denial.
(g) (2) The Department may revoke a permit, after due notice to permit holder and opportunity for hearing, if it finds that the permit holder has violated this Chapter, or if an emergency creates a clear and present danger to the overall public interest and welfare from the uses authorized by the permit.
(g) (3) A person whose permit is denied or revoked may request a hearing before the Department. A hearing shall be held within thirty (30) days after request. Within thirty (30) days after the hearing the Department shall affirm, withdraw, or modify its action by an order based upon the record of the hearing. An appeal from that order may be taken to the Superior Court within thirty (30) days of the date of the order.
SUBCHAPTER III: CERTIFICATION OF APPLICATORS.
§1215. Applicability of Subchapter.
The provisions of this Subchapter shall become applicable upon approval by the Administrator of E.P.A. of the State Plan submitted by the Governor pursuant to Section 4(a) (2) of FIFRA.
§1216. Requirement of Certification.
In order to prevent unreasonable adverse effects on the environment, including injury to users of pesticides and others, no individual shall use any restricted use pesticide unless such individual has either been duly certified by the Department or is under the direct supervision of a certified applicator.
§1217. Standards; classifications.
(a) The Department in promulgating regulations under this Chapter shall prescribe standards for the certification of applicators of pesticides. Such standards shall relate to the use and handling of pesticides, or to the use and handling of the pesticides or class of pesticides covered by the individual's certification, and shall be relative to the hazards involved. In determining standards, the Department shall consider the characteristics of the pesticide formulation such as: the acute mammalian toxicity; the persistence, mobility, and susceptibility to biological concentration; the use experience which may reflect an inherent misuse or an unexpected good safety record which does not always follow laboratory toxicological information; the relative hazards of patterns of use such as granular soil applications, ultra low volume or aerial dust applications, or air blast sprayer applications; and the extent of the intended use. Further, the Department shall adopt by regulation the certification standards of the E.P.A.
(b) The Department shall classify or subclassify certifications to be issued under this Chapter. Such classifications shall include commercial applicators and private applicators, and classifications and subclassifications may include, but not be limited to, pest control operators, ornamental, agricultural, or right-of-way pesticide applicators. Separate subclassifications may be specified as to ground, aerial, or manual methods used by any applicator to apply pesticides or to the use of pesticides to control insects and plant diseases, rodents, or weeds. Each classification shall be subject to separate examination procedures and requirements.
§1218. Certification procedure.
The Department, by regulation, shall provide for a certification procedure. Such procedure shall consist, in part, of an application, and examination, except that the examination requirement may be waived in part or whole by the Department on a reciprocal basis with any other state which has substantially the same standards.
§1219. Renewal of certification.
An applicator's certification shall automatically renew under the classification or subclassification for which such applicator is certified, provided, however, re-examination may be required by the Department;
(1) of any applicator whose certification, license, or permit has been suspended, revoked, or modified;
(2) at any time if significant technological developments have occurred to require additional knowledge related to the classifications or subclassifications for which the applicator has been certified, and to assure a continuing level of competence and ability to use pesticides safely and properly; or
(3) when required by additional standards established by the E.P.A.
Such re-examination or special examination requirements may be waived by the Department when the applicator can furnish satisfactory evidence of completion of educational courses, programs, or seminars approved by the Department relating to the applicator's certification.
§1220. Denial; revocation; suspension; modification.
(a) If the applicant is not certified under the provisions of this Subchapter the Department shall notify such applicant, in writing, of the reasons therefor.
(b) The Department, after due notice and opportunity for hearing may suspend, revoke, or modify any provision of any certification, including reciprocal certification, issued under this subchapter if the Department finds that the certified applicator or any individual acting under the direct supervision of such certified applicator has committed any acts declared by this Chapter to be unlawful, or the certified applicator has been convicted or is subject to a final order imposing a civil penalty under Section 14 of FIFRA.
§1221. Hearing Procedure.
All hearings which are held for the suspension, modification, or revocation of license, permit, or certification shall be conducted by the Secretary of the State Department of Agriculture or his designee. The licensee, permit holder, or certified applicator shall have the right to appear personally, and to be represented by Counsel, and to produce evidence and witnesses in his own behalf. The Department shall supply a stenographer to take down the testimony and shall preserve a full record of the proceeding. A transcript of the record may be purchased by any person interested in such hearing on payment to the Department the cost of preparing such transcript. The Department shall notify the licensee, permit holder, or certified applicator of its decision in writing within ten (10) days after the conclusion of the hearing.
Any licensee, permit holder, or certified applicator who feels aggrieved by an action of the Department in denying, suspending, modifying, or revoking his license, permit, or certification may take an appeal, within thirty (30) days of such action, to the Superior Court, and after full hearing the Court shall make such decree as seems just and proper. Written notice of such appeal, together with the grounds therefor, shall be served upon the Secretary of the Department.
Upon denial, suspension, modification, or revocation of a license, permit, or certification any person may reapply to the Department after a time period set by the Department not to exceed one year.
SUBCHAPTER IV: UNLAWFUL ACTS - PENALTIES - JURISDICTION.
§1224. Unlawful Acts; Penalties; Jurisdiction.
(a) The following acts shall constitute a class A misdemeanor:
(1) Making a pesticide recommendation or use or application inconsistent with the labeling, the E.P.A., or Delaware State registration for the pesticide, or in violation of the E.P.A., or Delaware State restrictions of the use of that pesticide; except that the first offense shall constitute a class B misdemeanor;
(2) Making false or fraudulent records, invoices or reports;
(3) Engaging in the business of applying a pesticide on the lands of another without having a license granted by the Department;
(4) Applying a restricted use pesticide without a certified applicator in direct supervision;
(5) Using fraud or misrepresentation in making an application for, or renewal of, a license, permit, or certification;
(6) Aiding or abetting a licensed or an unlicensed person to evade the provisions of this Chapter, conspiring with such a licensed or an unlicensed person to evade the provisions of this Chapter, or allowing one's license, permit, or certification to be used by another person;
(7) Distributing, selling, or offering for sale within this State any of the following:
(i) any pesticide unless it is in the registrant's or the manufacturer's unbroken immediate container, and there is visibly affixed to such container a label approved by the E.P.A. or by the Department, in the case of State registration;
(ii) any pesticide which is adulterated, not branded, or misbranded, or any container which is misbranded or not branded.
(8) Detaching, altering, defacing, or destroying, in whole or in part, any label or labeling prior to purchase by the ultimate consumer, provided for in this Chapter or regulations promulgated hereunder or to add any substance to, or take any substance from a pesticide in a manner that may defeat the purpose of this Chapter;
(9) Using for one's own advantage or to reveal any information relative to formulas of products acquired by authority of Section 1203 or Section 1204 of this Chapter.
(b) The following acts shall constitute a class B misdemeanor:
(1) The first offense of Section 1224 (a)(1);
(2) Refusing or neglecting to comply with any limitations or restrictions on or in a duly issued license, permit, or certification;
(3) Distributing, selling, or offering for sale within this State any pesticide required to be colored or
discolored by the E.P.A. under Section 25(c)(5) of FIFRA unless such pesticide is so colored or discolored.
(c) The following acts shall constitute a class C misdemeanor:
(1) Operating in a faulty, careless, or negligent man
(2) Neglecting or, after notice, refusing to comply with the provisions of this Chapter, the rules adopted hereunder, or any lawful order of the Department;
(0) Refusing or neglecting to keep and maintain the records required by this Chapter, or to make reports when and as required;
(1) Purchasing or using a restricted use pesticide except in accordance with a duly issued certification from the Department;
(2) Selling or offering to sell a restricted use pesticide unless the purchaser is a certified applicator and is certified to use that restricted use pesticide, and that certification is valid;
(3) Purchasing or using a pesticide designated for "State restricted pesticide use" except in accordance with a permit granted by the Department;
(4) Selling or offering to sell a pesticide designated for "State restricted pesticide use" unless the purchaser has a permit for its purchase and use and that permit is valid;
(5) Engaging in the business of applying pesticides to the lands of another without financial security which is currently in compliance with the requirements of Section 1208 of this Chapter;
(6) Distributing, selling, or offering for sale within
this State any pesticide which has not been registered pursuant to the provisions of Section 1203 or Section 1204 of this Chapter, or any pesticide if any of the claims made for it or any of the directions for its use differ in substance from the representations made in this connection with its registration, or if the composition of a pesticide differs from its composition as represented in connection with its registration; provided, that in the discretion of the Department, a change in the labeling or formula of a pesticide may be made within a registration period without requiring re-registration of the product.
(d) The Superior Court shall have exclusive original jurisdiction over offenses under this Chapter.
The penalties provided by this Chapter shall not apply to:
(a) Any carrier while lawfully engaged in transporting a pesticide or device within this State, if such carrier shall, upon request, permit the Department to copy all records showing the transactions in and movement of the pesticide or device;
(b) Any person who prepares or packs any pesticide or device intended solely for export to a foreign country according to the specifications or directions of the purchaser;
(c) The manufacturer or shipper of a pesticide for experimental use only:
1. by or under the supervision of an agency of this State or of the Federal Government authorized by law to conduct research in the field of pesticides; or
2. by others if the pesticide is not sold and if the container thereof is plainly and conspicuously marked "for experimental use only, not to be sold," together with the manufacturer's name and address; provided, however, that if an experimental use permit has been obtained from the Department, pesticides may be sold for experiment purposes subject to such restrictions and conditions as may be set forth in the permit.
SUBCHAPTER V: INSPECTION AND SEIZURE.
For the purpose of carrying out the provisions of this Chapter the Department may enter upon any public premises, and in the case of private premises may enter with the written approval of the occupier of the premises, in order to:
(1) inspect and sample lands actually or reported to be exposed to pesticides:
(2) inspect storage or disposal areas; or
(3) inspect or investigate complaints of injury to humans or land; or
(4) sample pesticides being applied or to be applied; or
(5) observe the use of a restricted use pesticide or State restricted pesticide use.
Should the Department be denied access to any land where such a access was sought for the purposes set forth in this Chapter it may apply to any court of competent jurisdiction for a search warrant authorizing access to such land for said purposes. The court may upon such application issue the search warrant for the purposes requested.
Department upon application to Superior Court in and for the County wherein the pesticide in question is located;
(1) in the case of a pesticide, the court shall order forfeiture without compensation;
(a) if it is adulterated or misbranded; or
(b) if it has not been registered under the provisions of Section 1203 or 1204 of this Chapter; or
(c) if it fails to bear on its label the information required by this Chapter; or
(d) if it is a white powder pesticide and is not colored as required under this Chapter; or
(2) in the case of a device, if it is misbranded.
(B) If the pesticide or device is forfeited or condemned, it shall, after entry of decree, be disposed of by destruction or sale as the Department may direct and the proceeds, if such pesticide or device is sold, less legal costs, shall be paid to the General Fund; provided, that the pesticide or device shall not be sold contrary to the provisions of this Chapter; and provided, further, that upon payment of costs and execution and delivery of a good and sufficient bond conditioned that the pesticide or device shall not be disposed of unlawfully, the Department may direct that said pesticide or device be delivered to the owner thereof for relabeling or reprocessing as the case may be.
(C) When a decree of condemnation or forfeiture is entered against the pesticide or device, Department costs and fees and storage and other proper expenses shall be awarded against the person, if any, intervening as claimant of the pesticide or device.
SUBCHAPTER VI: PESTICIDE ADVISORY COMMITTEE.
§1228. Establishment of Committee.
A Pesticide Advisory Committee is hereby established.
§1229. Composition; appointments; terms; removal; vacancies.
(a) The Pesticide Advisory Committee shall consist of three pesticide applicators residing in the State, one qualified to operate ground equipment, one qualified to operate aerial equipment, and one qualified for structural pest control; one entomologist in public service; one environmental health specialist from the State Department of Health and Social Services; one toxicologist in public service; one plant pathologist in public service; one member from the agricultural chemical industry; one member from the food processing industry; one producer of agricultural crops or products on which pesticides are applied or which may be affected by the application of pesticides; two representatives of the Department of Natural Resources and Environmental Control - one who in his employment is responsible for the protection of environmental control, and one who in his employment is responsible for fish and wildlife protection.
() Such members shall be appointed by the Governor for terms of three years and may be appointed for successive three year terms at the discretion of the Governor, provided, however, that at the inception of this Chapter the current members of the Committee established by 58 Delaware Laws, Chapter 166, continue to serve until the expiration of their respective terms.
(a) The Governor may remove for cause any member of the Committee prior to the expiration of his term.
(b) Upon the death, resignation, or removal for cause of any member of the Committee, the Governor shall fill such vacancy.
The Committee shall advise the Department on any and all problems relating to the sale, use, disposal, and storage of pesticides in the State.
The Committee shall elect one of' its members chairman, and shall meet at such time and place as shall be specified by the chairman, the Department, or a majority of the members of the Committee.
Each member of the Committee shall be reimbursed for all proper and necessary expenses but shall receive no compensation for time spent in attending the work of the Committee.
SUBCHAPTER VII: MISCELLANEOUS.
§1233. Reports of pesticide accidents, incidents, or loss.
(a) The Department may by regulation require the reporting of significant pesticide accidents or incidents to the Department.
(b) Any person claiming damages from a pesticide application shall have filed with the Department on a form prescribed by the Department a written statement claiming that he has been damaged. This report shall have been filed within sixty (60) days after the date that damage occurred, except that if a growing crop is alleged to have been damaged, the report must be filed prior to the time that twenty-five percent (25070) of the damaged crop has been harvested. Such statement shall contain, but shall not be limited to the name of the person allegedly responsible for the application of said pesticide, if known; the name of the owner or lessee of the land on which the crop is grown and for which damage is alleged to have occurred, and the date on which the alleged damage occurred. The Department shall prepare a form to be furnished to persons to be used in such cases and such form shall contain such other requirements as the Department may deem proper. The Department shall, upon receipt of such statement, notify the licensee and the owner or lessee of the land or other person who may be charged with the responsibility of the damages claimed, and furnish copies of such statements as may be requested. The Department shall inspect damages whenever possible and when it determines that the complaint has sufficient merit it shall make such information available to the person claiming damage and to the person who is alleged to have caused the damage.
(1) The filing of such report or the failure to file such a report need not be alleged in any complaint which might be filed in a court of law, and the failure to file the report shall not be considered any bar to the maintenance of any criminal or civil action.
(2) Where damage is alleged to have occurred, the claimant shall permit the Department, the licensee and his representatives, such as bondsman or insurer, to observe within reasonable hours the lands or non-target organism alleged to have been damaged in order that such damage may be examined. Failure of the claimant to permit such observation and examination of the damaged lands shall automatically bar the claim against the licensee.
(c) Nothing in this Chapter shall be construed to relieve any person from liability for any damage to the person or lands of another caused by the use of pesticides even though such use conforms to the rules and regulations of the Department.
§1234. Licensee to keep records; duration; submission to Department.
(a) The Department shall require licensee or certified commercial applicators to maintain records with respect to applications of pesticides. Such relevant information as the Department may deem necessary may be specified by regulation. The Department may require licensee to maintain records related to applications of certain "State restricted pesticide uses".
(b) Such records shall be kept for a period of two (2) years from the date of the application of the pesticide to which such records refer.
(c) Such records shall be made available for inspection to the Department by the licensee or certified applicator upon request in writing by the Department.
§1235. Storing and disposal of pesticides and pesticide containers.
No person shall transport, store, or dispose of any pesticide or pesticide container in such a manner as to cause injury to humans, vegetation, crops, livestock, wildlife, beneficial insects or to pollute any waterway in a way harmful to any wildlife therein. The Department may promulgate rules and regulations governing the storing and disposal of such pesticides or pesticide containers. In determing these standards, the Department shall take into consideration any regulations issued by the E.P.A.
§1236. Stop sale, use or removal orders.
When the Department has reasonable cause to believe a pesticide or device is being distributed or used in violation of any of the provisions of this Chapter, or any of the prescribed regulations under this Chapter, it may issue and serve a written 'Stop Sale, Use or Removal' order upon the owner or custodian of any such pesticide or device. Any such 'Stop Sale, Use or Removal' order shall remain in effect no longer than thirty (30) days, or until a permanent injunction is obtained from the Court of Chancery, or until voided by the Superior Court, whichever comes first. The pesticide or device shall not be sold, used or removed until the provisions of this Chapter have been complied with and the pesticide or device has been released in writing by the Department or the violation has been otherwise disposed of as provided in this Chapter by a court of competent jurisdiction.
§1237. Enforcement of chapter.
This Chapter shall be enforced by the State Department of Agriculture. The Department may establish regulations, but only after public hearing following due notice to carry out the purposes of this Chapter, and all authority vested in the Department by virtue of the provisions of this Chapter may with like force be executed by such employees of the Department as may be designated for said purpose. Due notice shall be given under this Section at least ten days prior to the public hearing and shall consist of publication in newspapers of general circulation, a registered letter to the Pesticide Advisory Committee, and may also be sent to representatives of pesticide application trade associations.
§1238. Cooperative agreements.
The Department may cooperate, receive grants-in-aid, and enter into agreements with any agency of the Federal Government, of this State or its subdivisions, or with any agency of another State, to obtain assistance in the implementation of this Chapter, in order to;
(a) secure uniformity of regulations;
(b) cooperate in the enforcement of the Federal pesticide control laws through the use of state and/or federal personnel and facilities and to implement cooperative enforcement programs;
(c) develop and administer state plans for training and for certification of certified applicators consistent with the Federal standards;
(d) contract for training with other agencies for the purpose of training certified applicators;
(e) contract for monitoring pesticides for the national plan;
(1) prepare and submit state plans to meet Federal certification standards, as provided for in Section 4 of FIFRA; or
(g) regulate certified applicators. §1239. Information.
The Department may, in cooperation with the University of Delaware, Delaware State College, other educational institutions, or trade associations publish information and conduct short courses of instruction in the areas of knowledge required in this Chapter.
Jurisdiction in all matters pertaining to the distribution, sale, use, application, and transportation of pesticides and devices, is by this Chapter vested exclusively in the Department, and all acts and parts of acts inconsistent with this Chapter, with the exception of Chapter 60, Title 7, are hereby expressly repealed.
§1241. Severability and savings clause.
If any provision of this Chapter is declared unconstitutional, or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remainder of this Chapter and the applicability thereof to other persons and circumstances shall not be affected thereby."
Section 2. A sum of $25,230 is hereby appropriated to this Department for fiscal year 1977 for the purpose of establishing an administrative staff to begin carrying out the provisions of this Chapter.
Section 3. This Act shall become effective January 1, 1977.
Approved July 30, 1976.