conducting custom blending and repackaging (producing). These
facilities must register as establishments because they are producing
establishments. Instead, condition 6 is intended to describe
the facilities that are exempt from the establishment registration
requirements, i.e., facilities that custom blend and do not repackage
or otherwise produce pesticides.
    However, EPA considered the request from commenters to allow custom
blends to be diluted with water. Various offices and Regions within
EPA, as well as the States, have not had a consistent policy about
whether custom blends can be diluted with water or another diluent.
After reviewing this issue, it is appropriate to clarify our position
on diluting custom blends. EPA believes that the definition of custom
blender in Sec.  167.3 provides flexibility. Custom blenders are
defined as ``any establishment which provides the service of mixing
pesticides to a customer's specifications, usually a pesticide(s)-
fertilizer(s), pesticide-pesticide, or a pesticide-animal feed mixture,
when'' the six conditions described above are met. In particular, the
word ``usually'' in this definition provides flexibility and allows
water (or other diluents when specified by the labeling of the
pesticide[s] in the blend) to be added to custom blends.
    EPA believes that the language of Sec.  167.3 allows custom blends
to be diluted with water or a diluent specified on the labels of all
pesticides in the blend. In many ways, it is more efficient and
possibly more accurate for the facility that is measuring and blending
pesticides, fertilizers and/or animal feed to also measure and blend
the diluent into the custom blend. In addition, custom blends (with
diluents) that are delivered to an end user as a use-dilution (usually
in refillable containers) offer worker exposure and environmental
protection benefits including eliminating the need for end users to
mix, handle and potentially spill the pesticide in the field;
eliminating the need for the end user to rinse containers in the field;
allowing the use of closed systems; and reducing the number of
nonrefillable containers that must be disposed or recycled. However,
EPA wants to clarify that custom blends with a diluent added still must
comply with all five conditions in the definition of custom blend in
Sec.  165.3: ``Custom blending means the service of mixing pesticides
to a customer's specifications, usually a pesticide(s)-fertilizer(s),
pesticide-pesticide, or a pesticide-animal feed mixture, when:
    (1) The blend is prepared to the order of the customer and is not
held in inventory by the blender;
    (2) The blend is to be used on the customer's property (including
leased or rented property);
    (3) The pesticide(s) used in the blend bears end-use labeling
directions which do not prohibit use of the product in such a blend;
    (4) The blend is prepared from registered pesticides; and
    (5) The blend is delivered to the end-user along with a copy of the
end-use labeling of each pesticide used in the blend and a statement
specifying the composition of the mixture.''
    EPA will monitor the practices and procedures that develop and
proliferate in the field with this interpretation. If problems develop,
EPA will consider options, including revising its interpretation,
adding protective conditions if diluents are added to custom blends,
and subjecting custom blending to the repackaging requirements in part
165.
    In addition, EPA does not view a difference between custom blending
and custom mixing from a regulatory point of view. A custom mixer is a
facility that stores materials previously purchased by end-users and
that custom mixes the products just prior to application. A custom
mixer does not own, sell or apply the product, although the conditions
in the Sec.  165.3 definition of custom blending are met. Over the
years, there have been different interpretations of whether or not
there is a difference between custom blending and custom mixing. At
least a few businesses have been established as custom mixers under the
determination that they are not custom blenders. This final rule does
not distinguish between custom blenders and custom mixers. Similarly,
the policy of allowing diluents to be added to custom blends applies to
both custom blenders and custom mixers. As discussed above, custom
blending is excluded from the subpart D repackaging requirements.
However, custom blenders (including custom mixers) would be subject to
the subpart E containment standards if they blend (mix) agricultural
pesticides.
    7. Comments - service containers. A few dealer groups noted that
the proposed rule does not address service containers, which are used
to move pesticides from bulk storage to end-use applications in the
field, e.g., the tanks that are an integral part of application or
nurse vehicles. These commenters pointed out some advantages of service
containers including: reducing the number of nonrefillable containers
used, keeping pesticides separate from water or fertilizers during
transportation, accommodating on-board injection systems and allowing
the applicator to adjust pesticides in the field. These commenters
urged EPA and industry to consider providing for the expanded use of
service containers, with some exclusions from the refillable container
requirements, to increase the use of bulk pesticides. A State
regulatory agency supported keeping the Bulk Policy because they don't
want to register each facility where bulk pesticides are metered, such
as where pest control operators place pesticides into service
containers.start here
    8. EPA response - service containers. The pesticide container and
repackaging regulations do not regulate service containers, because the
container and repackaging regulations only apply to containers that are
used to sell or distribute pesticide products and to the repackaging of
products for sale or distribution. For the purposes of this discussion,
a service container is defined as ``any container used to hold, store,
or transport a pesticide concentrate or a pesticide use-dilution
mixture, other than the original labeled container in which the product
was distributed or sold, the measuring device, or the application
device.''
    EPA does not currently regulate service containers. In 1976, EPA
issued a Pesticide Enforcement Policy Statement (PEPS) on ``Structural
Pest Control: Use and Labeling of Service Containers for the
Transportation or Temporary Storage of Pesticides,'' which defined
minimal labeling requirements and several other limitations for the
acceptable use of service containers by structural pest control
operators. (Ref. 76) However, this PEPS was later rescinded. EPA
continues to believe that it is a good management practice to ensure
that the contents of service containers are identified and that the
label of a pesticide product that is in a service container is
available to the person handling and/or applying the pesticide. EPA may
consider developing a separate policy on service containers while the
pesticide container and containment regulations are being phased in.

M. Registrant Refilling Residue Removal Procedure (Sec.  165.65(c)(1)
and 165.67(f)(1))

    1. Final Regulation. Registrants who sell or distribute pesticide
products directly in refillable containers and registrants who sell or
distribute products to independent refillers for repackaging must
develop a refilling

residue removal procedure that describes how to remove pesticide
residue from a refillable container (portable or stationary pesticide
container) before it is refilled. Registrants must specify a cleaning
procedure for each product sold or distributed in refillable
containers, although the same procedure can be used for multiple
products. The refilling residue removal procedure must provide
instructions for removing residues from all refillable containers. The
same procedure can apply to portable and stationary pesticide
containers, or the registrant can describe different procedures if it
is appropriate and necessary. Finally, the refilling residue removal
procedure describes how to remove residue from a refillable container.
While this generally involves rinsing the container with water, the
regulations do not specifically require rinsing with water. If a
different procedure is appropriate for a given formulation, it can be
used as long as it meets the following performance standard.
    The refilling residue removal procedure must meet the performance
standard of being adequate to ensure that the composition of the
pesticide product does not differ at the time of its distribution or
sale from the composition described in its confidential statement of
formula. This standard ensures that the products distributed and sold
in refillable containers meet the existing product integrity
requirements, as described in Unit VII.H.
    The refilling residue removal procedure must describe how to manage
any rinsate resulting from the procedure in accordance with applicable
Federal and State regulations if: (1) The procedure requires the use of
a solvent other than the diluent used for applying the pesticide, or
(2) there is no diluent used for application. This information is
necessary to help refillers manage rinsate that cannot easily be used
as make-up water in future applications.
    2. Changes. This requirement is the same as it was in the proposed
rule. Several minor editing change have been made to improve the
clarity and the different refillable containers are described as
portable and stationary pesticide containers because the definitions of
minibulk and bulk are not being finalized. These modifications have not
changed the requirement or intent of the requirement.

N. Registrant Description of Acceptable Containers (Sec. Sec.
165.65(c)(2) and 165.67(f)(2))

    1. Final regulation. Registrants who sell or distribute pesticide
products directly in refillable containers and registrants who sell or
distribute products to independent refillers for repackaging must
develop a description of acceptable refillable containers (portable and
stationary pesticide containers) that can be used for distributing or
selling that pesticide product. An acceptable container is one which
the registrant has determined meets the refillable container standards
in subpart C and is compatible with the pesticide formulation intended
to be distributed and sold using the refillable container. The
registrant must identify the containers by specifying: (1) The
container materials of construction that are compatible with the
pesticide formulation; and (2) information necessary to confirm
compliance with the refillable container requirements in subpart C. The
refillable container requirements include the adopted DOT standards,
being marked with a serial number or other identifying code, having a
one-way valve or tamper-evident device on each opening (other than a
vent) of a portable pesticide container designed for liquids, and the
stationary pesticide container requirements.
    Similar to the refilling residue removal procedure, registrants
must specify a description of acceptable containers for each product
sold or distributed in refillable containers, although the same
description can be used for multiple products if it meets the
standards.
    2. Changes. This requirement was changed significantly from the
proposed rule. The proposal would have required registrants to develop
lists (not descriptions) of acceptable containers, which would have
been identified by specifying the container manufacturer and model
number of the container. This was proposed because registrants are
responsible for ensuring that the refillable containers used to sell
and distribute their products meet the requirements in the container
regulations. When EPA proposed the rule, specifying the container
manufacturer and model number seemed like a relatively easy way for
registrants to identify acceptable containers for their refillers.
    However, the final rule's approach of referring to and adopting
some DOT requirements provides an even easier way for registrants to
identify acceptable containers to the refillers. Rather than citing
specific model numbers, the registrants can provide refillers with a
much less prescriptive approach by identifying characteristics, such as
the material of construction, how to determine if the container meets
the applicable DOT standards, how to comply with the serial number
requirement, how to obtain and apply one-way valves and/or tamper-
evident devices to the openings of portable pesticide containers for
liquids and information for complying with the stationary pesticide
container standards.
    3. Comments. Several commenters (registrants and a registrant
group) recommended that instead of a list of acceptable containers, the
registrants should identify acceptable containers by providing the
compatible materials of construction and the necessary information to
apply the DOT standards. The registrant group and a distributor
commented that this requirement will be helpful to ensure that
formulators and subregistrants know and obtain information about the
proper packaging.
    4. EPA response. In the final rule, EPA changed the requirement for
identifying acceptable containers so registrants can describe
acceptable containers by specifying compatible materials of
construction and the information necessary to comply with the
refillable container requirements. This includes information for
complying with the adopted DOT standards, but also the other
requirements in subpart C.

O. Requirements for All Refillers (Sec. Sec.  165.65(d) and 165.70(e))

    1. Final regulation. All refillers, including those at registrant's
facilities and those who are not part of a registrant's company must
comply with the following provisions regarding repackaging a pesticide
product into refillable containers:
    *(1) The establishment must be registered with EPA as a producing
establishment as required by Sec.  167.20 of this chapter.
    *(2) The refiller must not change the pesticide formulation unless
he has a registration for the new formulation.
    (3) The refiller must repackage a pesticide product only into a
refillable container that is identified on the description of
acceptable containers for that pesticide product.
    (4) The refiller may repackage any quantity of a pesticide product
into a refillable container up to the rated capacity of the container.
In addition, there are no general limits on the size of the refillable
containers that can be used.
    (5) The refiller must have all of the following items at the
establishment

before repackaging a pesticide product into any refillable container
for distribution or sale:
    *(A) The written contract from the pesticide product's registrant.
[Subparagraph A applies only to independent refillers.]
    *(B) The pesticide product's label and labeling.
    (C) The written refilling residue removal procedure for the
pesticide product.
    (D) The written description of acceptable containers for the
pesticide product.
    (6) Before repackaging a pesticide product into any refillable
container for distribution or sale, the refiller must identify the
pesticide product previously contained in the refillable container to
determine whether a residue removal procedure must be conducted in
accordance with the cleaning requirements described in Unit VII.Q. The
refiller may identify the previous pesticide product by referring to
the label or labeling.
    (7) The refiller must inspect each refillable container as
discussed in Unit VII.P.
    (8) The refiller must clean each refillable container, if required,
as discussed in Unit VII.Q.
    *(9) The refiller must ensure that each refillable container is
properly labeled as discussed in Unit VII.R.
    (10) The refiller's establishment must maintain records, as
discussed in Unit VII.S.
    *(11) The refiller's establishment must maintain records as
required by 40 CFR part 169.
    *(12) The refiller's establishment must report as required by 40
CFR part 167.
    (13) Stationary pesticide containers (that meet the specified size
criteria) at the establishments of independent refillers must meet the
standards in Sec.  165.45(f). [Paragraph 13 is only included in the
regulations in Sec.  165.70(e) for independent refillers. The
refillable container regulations state that both the registrant and
independent refillers are responsible for complying with the stationary
pesticide container requirements.]
    (14) Refillers may be required to comply with the containment
standards in subpart E. [Paragraph 14 applies only to independent
refillers.]
    These requirements, except for items 5(A), 13 and 14 which apply
only to independent refillers, apply to any refiller that repackages a
product subject to the regulations regardless of the main business of
the refiller (registrant, retailer, etc.). Some of these conditions
(indicated by an asterisk) simply refer to or reinforce key
requirements in existing regulations, including 40 CFR parts 156, 167
and 169 or incorporate existing standards of the Bulk Policy (having a
copy of the registrant's contract). These provisions are included here
for the sake of completeness and as a reference for refillers.
    In other words, the new provisions for refillers are that each
refiller:
     Must repackage a product only into a container identified
on the registrant's description of acceptable containers;
     May repackage any quantity of a product into a refillable
container (up to its rated capacity) and there are no general limits on
the size of the refillable containers;
     Must have certain documents before repackaging;
     Must identify the product previously in the container by
its label;
     Must inspect and, if necessary, clean the container; and
     Must maintain certain records.
    EPA believes that these provisions are good management practices
that are intended to ensure product and container integrity. The second
provision actually removes a condition on container size from the bulk
policy. In other words, it provides more flexibility to registrants and
refillers than currently exists.
    2. Changes. Regarding the list of requirements for refillers, the
final regulations are very similar to the proposed rule. However, the
structure and order of the final rule was revised to list these
requirements in one section. EPA believes this makes the regulations
more clear, which should facilitate compliance. The items that refer to
existing requirements in 40 CFR parts 167 and 169 were added to the
list to provide a more complete reference for refillers. However, these
statements simply refer to existing requirements; they don't add new
ones.
    Adjustments were made to a few of the provisions. Specifically, the
requirements in the proposed rule that referred to the registrant's
list of acceptable containers were changed to refer to the registrant's
description of acceptable containers (see items 3 and 5 above), to
accommodate the changes described in Unit VII.N. Also, the proposed
regulatory text did not explicitly allow any size refillable container
to be used, although the preamble discussed removing the size limit in
the Bulk Policy in some detail. Therefore, a sentence clarifying that
there are no general limits for the size of refillable containers was
added to the statement allowing any quantity of pesticide (up to the
container's rated capacity) to be repackaged. (See item 4.)
    Specific modifications made to the inspecting, cleaning, labeling
and recordkeeping requirements and comments on these standards are
discussed in detail in Units VII.P. - VII.S.
    The refillable container regulations were modified to clarify that
both registrants and refillers are responsible for complying with the
stationary pesticide container requirements in Sec.  165.45(f). The
final repackaging rule includes this provision in the list of
requirements as a reminder for independent refillers.

P. Inspecting Refillable Containers (Sec. Sec.  165.65(e)and 165.70(f))

    1. Final regulation. Before repackaging pesticide products into
refillable containers, refillers must visually inspect the exterior and
(if possible) the interior of the container and the exterior of
appurtenances. The purpose of the inspection is to determine whether
the container meets the necessary criteria with respect to continued
container integrity, required markings and openings (tamper-evident
devices or one-way valves). As with the proposed regulations,
inspecting the containers is the responsibility of the refillers, since
they are the ones who are actually handling and refilling the
containers. If any of the failure conditions in this section are
observed during the inspection, the container cannot be refilled unless
the problems are rectified and the associated acceptability criterion
(either reconditioning according to DOT's requirements or coming into
compliance with the refillable container standards in subpart C) is
satisfied.
    The container fails the inspection and must not be refilled (unless
the applicable DOT standards for reconditioning are met) if the
integrity of the container is compromised in any of the following ways:
     The container shows signs of rupture or other damage which
reduces its structural integrity. [Based on the criterion in 49 CFR
173.28(a)]
     The container has visible pitting, significant reduction
in material thickness, metal fatigue, damaged threads or closures, or
other significant defects. [Based on the criterion in 49 CFR
173.28(c)(1)(iii)]
     The container has cracks, warpage, corrosion or any other
damage which might render it unsafe for transportation. [Based on the
criterion in 49 CFR 180.352(b)(2)(iii)]
     There is damage to the fittings, valves, tamper-evident
devices or other appurtenances that may cause failure of the container.
[Similar to the criterion in

49 CFR 180.352(b)(2)(ii) for service equipment.]
    If either of the following conditions exists (or both), the
container fails the inspection and must not be refilled until the
container meets the refillable standards specified in subpart C. The
conditions are:
     The container does not bear the markings required by
subpart C or such markings are not legible.
     The container does not have an intact and functioning one-
way valve or tamper-evident device on each opening other than a vent,
if required.
Note that these two conditions are written so refillers of
antimicrobial products used in swimming pools and related sites would
not have to inspect for a serial number (because it's not a marking
required by subpart C for these products) or for an intact and
functioning one-way valve or tamper-evident device on each opening,
because neither is required for these products.
    2. Changes. The general obligation to inspect refillable containers
before repackaging pesticide products into them is the same as the
proposed rule. However, EPA made several changes to the details of the
inspection. First, we based the conditions for failing the inspection
on conditions specified in the DOT regulations in 49 CFR 173.28 and
180.352(b)(2). A commenter suggested this change and EPA believes it is
an appropriate modification and is consistent with other changes in the
regulation to refer to and adopt the DOT standards for container
design, construction and marking. While we don't think the criteria in
the final rule are necessarily more stringent than those in the
proposed rule, we believe that consistency with DOT is beneficial.
Second, the inspection requirement was modified to clarify that if
problems found during the inspection are fixed and certain criteria are
met, the container can be refilled. Under the proposed standard, it was
not clear that a container could be reconditioned or brought into
compliance with the refillable container standards and then refilled.
Several other minor modifications were made to account for changes in
the regulations, including: (1) removing the reference to a standard
for the age of the container and (2) clarifying that vents do not need
to have one-way valves or tamper-evident devices. Because the
refillable container regulations in subpart C exempt antimicrobial
products used in swimming pools and related sites from the serial
number requirement and the standard requiring a one-way valve or
tamper-evident device, the final rule was written so that refillers of
these products are not subject to the failure criteria that address
serial numbers, one-way valves, or tamper-evident devices.

Q. Cleaning Refillable Containers (Sec. Sec.  165.65(f) - (g) and
165.70(g) - (h))

    1. Final regulation. Refillers must clean refillable containers by
conducting the pesticide product's refilling residue removal procedure
before repackaging the product into the refillable container, unless
condition 1 and either condition 2 or 3 are
satisfied:
    (1) Each tamper-evident device and one-way valve is intact (if
required).
    (2) The refillable container is being refilled with the same
pesticide product.
    (3) Both of the following conditions are satisfied.
    (A) The container previously held a pesticide product with a single
active ingredient and is being used to repackage a pesticide product
with the same single active ingredient.
    (B) There is no change that would cause the composition of the
product being repackaged to differ from the composition described in
its confidential statement of formula that is required under FIFRA
section 3. Examples of unallowable changes include the active
ingredient concentration increasing or decreasing beyond the limits
established by the confidential statement of formula or a reaction or
interaction between the pesticide product being repackaged and the
residue remaining in the container.
If a tamper-evident device or one-way valve is not intact, the refiller
must clean the container according to the product's refilling residue
removal procedure. In addition, the final regulations state in Sec.
165.65(g) for registrants who refill and in Sec.  165.70(h) for
independent refillers that other procedures may be necessary in this
case to assure that product integrity is maintained.
The first condition is written so it would not apply to refillers of
antimicrobial products used in swimming pools because neither a one-way
valve or tamper-evident device is required.
    2. Changes. The biggest change from the proposed regulations is
adding the condition where the container is being refilled with the
same pesticide product as a case for not needing to clean the
container. Some commenters pointed out that the conditions in the
proposed regulation and the 1991 amendment to the Bulk Pesticides
Enforcement Policy (Ref. 71) would require a refillable container
holding a product with multiple active ingredients to be cleaned even
when it was refilled with that product. This is true because the
proposed rule, based on the 1991 amendment to the Bulk Policy,
specified a product with a single active ingredient in a compatible
formulation as an acceptable condition for refilling without cleaning.
EPA corrected this oversight in the final rule, because refilling with
the same product (regardless of how many active ingredients there are)
is certainly the most clear way to ensure product integrity and should
be allowed (assuming any tamper-evident devices and one-way valves are
intact).
    Several other minor changes include:
    (1) Changing the first condition so it includes one-way valves and
not just tamper-evident devices like in the proposal;
    (2) Adding ``if required'' to the first condition, since one-way
valves or tamper-evident devices are only required on portable
pesticide containers for liquids and are not required on the containers
of antimicrobial products used in swimming pools;
    (3) Using the phrase ``described in its confidential statement of
formula that is required under FIFRA section 3'' because it is more
straightforward than the proposed phrase as described in Unit VII.H.;
    (4) The condition in criterion 3(B) was modified to be more general
to account for situations other than reactions or interactions between
the two products such as very different active ingredient
concentrations that could cause the repackaged product to differ from
the confidential statement of formula; and
    (5) Splitting the situation of a broken tamper-evident device or
one-way valve into a separate paragraph for clarity.

R. Labeling Refillable Containers (Sec. Sec.  165.65(h) and 165.70(i))

    1. Final regulation. Before distributing or selling a pesticide
product in refillable containers, refillers must ensure that the label
of the product is securely attached to the refillable containers such
that the label can reasonably be expected to remain affixed during the
foreseeable conditions and period of use. The label and labeling must
comply in all respects with the requirements of 40 CFR part 156. In
particular, refillers must ensure that the net contents statement and
EPA establishment number appear on the label. This part of the
regulations simply re-states requirements from 40 CFR part 156 and
FIFRA for clarity.
    2. Changes. The major change to the labeling requirement was to
change it

from an ``active'' standard (i.e., the refiller must securely attach
the label) to a ``passive'' standard (i.e., the refiller must ensure
that the label is securely attached). Also, the regulatory text was
modified to state that the net contents and EPA establishment number
appear on the label (rather than the new label as proposed). Both of
these changes account for situations where the label is embossed on the
container or the container already has an intact label that meets all
the requirements. For example, a commenter said that 1-gallon
refillable containers for the swimming pool market are embossed with
label information because they are refilled automatically at a rate of
100-120 bottles per minute.

S. Recordkeeping (Sec. Sec.  165.65(i), 165.67(h), 165.70(j))

    1. Final regulation. All of the companies subject to the
repackaging standards must keep certain records, although the specific
records vary according to who the company is and what it does. These
records must be furnished and made available for inspection and copying
upon request of EPA or our designee, such as a State or Tribe.
Informational records (listed in the first few rows of Table 16) must
be maintained for the current operating year and for 3 years after
that. The repackaging records (listed in the last three rows of Table
16) must be generated each time a product is repackaged into a
refillable container for distribution or sale and must be maintained
for at least 3 years after the date of repackaging. All of the records
are product-specific. In other words, this information must be kept for
each product distributed or sold in refillable containers. The same
cleaning procedure or description of containers can be used for
different products, but there must be a record documenting a procedure
and a description for each product distributed or sold in refillables.

                                          Table 16.--Recordkeeping Requirements in the Repackaging Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Registrants who d/s directly in refillables\1\   Registrants who d/s         Refillers who aren't registrants
                                    ------------------------------------------------    to refillers for   ---------------------------------------------
                                                                                repackaging into
      Product-Specific Record                                                           refillables \1\
                                      Swim pool products\2\    All other products   ----------------------- Swim pool products\2\    All other products
                                                                                All products
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Informational Records
--------------------------------------------------------------------------------------------------------------------------------------------------------
Contract to repackage                No                      No                      Yes                    Yes                    Yes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Refilling residue removal procedure  Yes                     Yes                     Yes                    Yes                    Yes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Description of acceptable            Yes                     Yes                     Yes                    Yes                    Yes
 containers
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Repackaging Records
--------------------------------------------------------------------------------------------------------------------------------------------------------
EPA registration number of the       No                      Yes                     No                     No                     Yes
 product distributed or sold in the
 container
--------------------------------------------------------------------------------------------------------------------------------------------------------
Date of the repackaging              No                      Yes                     No                     No                     Yes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Serial number of the container       No                      Yes                     No                     No                     Yes
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ``d/s''= distributed or sold.
\2\ Swim pool products = antimicrobial products used in swimming pools and closely related sites, that are subject to the pesticide container-related
  regulations.

    EPA reminds registrants and refillers that the records identified
in Sec. Sec.  165.65(i), 165.6(h) and 165.70(j) of the repackaging
regulations do not change other recordkeeping requirements that
currently apply to them, such as restricted use product records or
applicable records required in 40 CFR parts 167 and 169.
    2. Changes. EPA made the following significant changes in the
recordkeeping requirements in the final regulations:
     The informational records must be kept for the current
operating year and for 3 years after that rather than the proposed time
period of as long as the pesticide product is distributed or sold in
refillable containers and for 3 years thereafter. The specific
informational records kept by each of the three categories of
businesses is the same in the final rule as in the proposal, although
the list of acceptable containers was changed to the description of
acceptable containers.
     The repackaging records in the final rule are a subset of
what was included in the proposed rule. The final regulations do not
include the name or quantity of the product, the name and address of
the consignee, a record that the refiller has inspected the container
(and the results), and a record of whether a refilling residue removal
procedure was conducted (and, if not, why not). Additionally, the date
of the distribution or sale (in the proposal) was changed to the date
of the repackaging in the final rule.
     Refillers that repackage antimicrobial products used only
in swimming pools or closely related sites would not have to comply
with the repackaging recordkeeping. However, these refillers would have
to comply with the informational recordkeeping.
     The proposed regulations would have required refillers to
maintain certain records of containers that were received by them to be
refilled, including the name and address of the person providing the
container, its serial number, the date it was received and the name and
EPA registration number of the product that was last distributed or
sold in the refillable container. These records are not being finalized
in today's final regulations.

    3. Comments - refiller records. Many commenters (registrants,
registrant groups, State regulatory agencies, a dealer, a dealer group,
and an equipment manufacturer) opposed the recordkeeping requirements
for refillers. Most of these respondents commented that the proposed
recordkeeping requirements were too burdensome and several stated that
these standards will discourage the use of refillable containers. A
registrant group recommended requiring refillers to maintain records of
the serial number, the amount of product placed in the container and
the date the refilling took place.
    4. EPA response - refiller records. EPA modified the refiller
recordkeeping requirements to minimize the paperwork burden of
maintaining these records. However, EPA believes that some records are
necessary to ensure safe repackaging and compliance with these
requirements. First, the refiller must have the informational records,
including the registrant's contract (if applicable), the refilling
residue removal procedure and the description of acceptable containers.
These records are necessary so the refiller has the information needed
to properly repackage a product into refillable containers and to
ensure that an independent refiller has the proper approval from a
registrant to repackage the product.
    Second, certain information about when a product is repackaged into
a refillable container is needed in case there is a problem with a
product sold in refillable containers, i.e., it is adulterated or
contaminated or it causes damage to the site after application.
However, EPA pared the repackaging records down to the minimum amount
of information that would allow the refiller and investigators to
identify the product, the container, and the date of the repackaging.
All of this information is readily available at the time the pesticide
product is repackaged into the refillable container, unlike in the
proposed rule where the information also included the name and address
of the person receiving the container. EPA deleted the requirement to
record the results of the inspection and whether the container was
cleaned because these records would probably not be useful in
enforcement cases. We will be able to determine that a container was
not inspected if a container in poor condition (that did not just
sustain recent damage) is found and, similarly, we'll be able to tell
if a container was not properly cleaned if we find high levels of
contamination in the product in that refillable container.
    5. Comments - sodium hypochlorite. Several respondents from the
sodium hypochlorite industry commented on the proposed rule and stated
that the refiller recordkeeping requirements would be especially
burdensome for this market. One registrant group described a typical
sodium hypochlorite delivery, where a truck holding up to 4,000, 1-
gallon refillable containers stops at several locations, delivers
various volumes of product, and picks up empty containers. This
commenter estimated all the recordkeeping standards could triple the
time for deliveries and increase the cost of the product by 100
percent. An association representing many businesses involved with
swimming pools commented that the requirement for individual serial
numbers and the recordkeeping requirements attendant to the serial
number marking would be completely unworkable for refillable pool
chemical containers. These respondents and a swimming pool supply
company stated that the recordkeeping would discourage the use of
refillables in the pool chemical industry.
    When commenting on the supplemental notice, the registrant group
representing the sodium hypochlorite industry reiterated its estimate
of the increase in time and costs that could be attributed to the
proposed recordkeeping. In addition, a sodium hypochlorite manufacturer
requested EPA to exempt all refillable plastic containers of sodium
hypochlorite from the requirements for serial numbers, one-way valves,
tamper-evident devices and burdensome recordkeeping that would
negatively impact the currently used refillable container system.
    6. EPA response - sodium hypochlorite. EPA was persuaded by the
arguments from the companies who repackage sodium hypochlorite into
refillable containers for use in swimming pools. Because of the huge
number of small (1- and 2.5-gallon) refillable containers used in this
market segment, EPA acknowledges that compliance with this
recordkeeping would be burdensome. Therefore, the final rule exempts
refillers of antimicrobials used in swimming pools and similar sites
from the repackaging recordkeeping, although they must comply with the
informational recordkeeping.

T. Proposed Standards That Are Not Being Finalized

    Final regulation/changes. The following proposed requirements
relating to repackaging are not being finalized in today's final rule:
     Sec.  165.134(f): Age of plastic liquid minibulk
containers; and
     Sec.  165.136(b): Records on the return of refillable
containers to refillers.
    The proposed rule would have prohibited a refiller from repackaging
a product into a plastic liquid minibulk container more than 6 years
after the container's date of manufacture. EPA decided not to finalize
this provision to be consistent with the DOT regulations, which do not
establish a life limit for plastic nonbulk containers (which may be
portable pesticide containers under our regulations) or for plastic
intermediate bulk containers (which also may be portable pesticide
containers under our regulations).
    As discussed in Unit VII.S., EPA is not finalizing the requirement
for refillers to keep records on the return of refillable containers to
minimize the burden on refillers. Also, this information would have
been of limited use because it would not have been sufficient to
conclusively identify where a container had been and who had had
possession of it.

VIII. Containment

A. Introduction

    1. Regulatory background. In 1994, EPA proposed standards in
subpart H of 40 CFR part 165 for containment of large pesticide
containers and procedures for container refilling operations. Standards
for pesticide containers, including large storage containers, are
covered in Units III. through VII. of this notice, and apply to all
pesticides unless specifically exempted. The requirements for a
secondary containment unit (either a containment structure around a
stationary container, or a containment pad under a container refilling
operation) only apply to agricultural pesticides. The requirements are
intended to protect human health and the environment from contamination
by spills and leaks which may occur during container filling or when a
stationary container fails. Affected facilities are required to have
structures which intercept and contain spills and leaks of agricultural
pesticides in areas where stationary containers are stored and
agricultural containers are refilled or cleaned.
    Secondary containment means a structure, such as rigid diking,
berms or walls, designed to intercept and contain leaks and spills from
the enclosed containers. Some States define bulk quantities as a
pesticide container with a volume exceeding 55 gallons; others use 210,
300, or 500 gallon criteria. EPA's proposed definition of bulk
quantities was 3,000 liters (793 gallons)

for liquid pesticides and 2,000 kilograms (4,409 pounds) for dry
pesticides. The final rule establishes quantities of 500 gallons (1,890
liters) for liquids and 4,000 pounds (1,818 kilograms) as the threshold
for requiring secondary containment. Thus, EPA's regulations cover only
relatively large containers which pose the greatest risk of
catastrophic contamination in case of failure.
    EPA believes the Federal containment standards, together with
requirements for container design and residue removal, are essential
for ensuring the safe use, reuse and refill of containers as required
by FIFRA section 19. The regulations promulgated today will be located
in 40 CFR part 165 in Sec.  Sec. 165.80 - 165.97.
    2. Summary of proposed and final containment standards. The
proposed and final standards include criteria for design, maintenance
and operation of containment structures (units and pads) at certain
facilities. The design criteria include standards for material of
construction, capacity, and protection from stormwater and
precipitation. The facilities subject to the requirements are
agricultural pesticide refilling establishments and custom blenders (as
defined in Sec.  167.3), and facilities of businesses that apply
agricultural pesticides for compensation (also referred to as for-hire
applicators in this preamble). In the preamble to the proposal, the
Agency explained its rationale for choosing these facilities. Although
spills can occur throughout the chain of pesticide commerce (from
manufacturer to user), the accumulated evidence points to agrichemical
dealerships, custom blenders, and for-hire applicators as facilities
where pesticide contamination of soil and water is most frequently
documented. (See 59 FR 6750 (Ref. 66) and Unit VIII.C. for a detailed
discussion.) The agricultural chemical distribution system has the most
potential for spills and a requirement for reporting spills, and is
uniquely characterized by the use of large tanks and container
refilling operations, often outdoors, while other sectors generally use
smaller containers, pre-packaged indoors by a manufacturer.
    Standards which are considered critical are required for all
existing and new containment units and pads, and some additional
criteria are imposed for new containment structures. For this final
rule, the criteria identified as critical reflect the comments received
and new information, and are not necessarily the same criteria used in
the proposed rule. For example, hydraulic conductivity criteria were
considered critical in the proposed rule, but, as a result of comments
we received on hydraulic conductivity, are not being finalized in the
final rule (see discussion in VIII.H).
    Many respondents provided comments on specific provisions of the
containment regulations. EPA has made certain revisions to the proposed
regulations based on these comments. The following units of the
preamble discuss the comments received on each of the major issues
raised in the proposed rule, any differences between the proposal and
the final rule, and the Agency's reasons for making the changes.
    Costs and benefits of the rule have been revised from those
projected at the time of the proposed rule. Total costs are predicted
to be less than estimated in the proposal, due to the changes made as a
result of comments and new information.
    3. State secondary containment regulations. At least 19 States have
already promulgated and begun implementing their own secondary
containment regulations for bulk storage of pesticides. The 1992 State
of the States Report (Pesticide Storage, Disposal and Transportation,
Ref. 70) cited in the proposed rule showed the wide variety of
containment regulations among States. There are variations in the
facilities affected, the container volume triggering the requirement
for secondary containment, etc. The economic assessment for the
proposed rule estimated the number of facilities with bulk pesticide
storage in each State based on commercial, State and government
business census data. EPA estimated that a total of 5,214 agrichemical
dealers in all States and the District of Columbia have containers of a
size defined in the proposed rule as bulk (greater than 3,000 liters
liquid or 2,000 kilograms dry). (Ref. 21) EPA has reviewed the
secondary containment regulations in all 19 States and has found that
they are generally comparable to or more stringent than the
requirements in today's final rule. These 19 States contain 81 percent
(4,220) of the agrichemical facilities regulated by this final rule.
    EPA received many comments on the negative impact of the proposed
regulations on facilities in States with preexisting regulations.
Today's containment standards are intended to introduce basic
safeguards in States that currently lack containment regulations and to
harmonize with containment requirements in States where adequate
containment safety programs already exist. While EPA believes a
national standard must provide baseline environmental protection, a
mechanism is being provided to accommodate States that are already
successfully implementing pesticide containment programs.
    4. Key terms for understanding the requirements of subpart E. The
following terms, defined in Sec.  165.3 of subpart A, are key to
understanding the containment standards in subpart E:
    (1) Agricultural pesticide.
    (2) Appurtenances.
    (3) Container.
    (4) Containment pad.
    (5) Containment structure.
    (6) Dry pesticide.
    (7) Establishment.
    (8) Facility.
    (9) Owner.
    (10) Operator.
    (11) Pesticide compatible.
    (12) Pesticide dispensing area.
    (13) Refillable container.
    (14) Refilling establishment.
    (15) Rinsate.
    (16) Secondary containment unit.
    (17) Stationary pesticide container.
    (18) Transport vehicle.
    (19) Washwater.
    i. Changes. Based on commenters' suggestions and additional
research, the definitions of the following terms were added to the
final rule to clarify the requirements: facility, pesticide compatible,
and rinsate.
    ii. Comments. A regulatory agency in a State with many bulk
containment facilities commented that the definition of a stationary
bulk container uses the words ``facility'' and ``establishment,'' but
only defines the latter. The State agency advised that those trying to
avoid the costly container and containment requirements might choose to
view this as a legal loophole, and that the term facility should also
be defined.
    Several State agencies requested that EPA clarify the phrase
``resistant to pesticide,'' because its meaning could be either
compatible or unreactive and could be difficult or burdensome to
enforce. Alternatives were proposed, including ``chemically
compatible,'' defined as the ability of the containment structure
materials to withstand anticipated exposure to stored or transferred
materials without losing the ability to provide the required secondary
containment of the same or other materials within the containment area.
    Several State regulatory agencies commented that their regulations
require containment of rinsate, and recommend containment for wash
waters, because hazardous waste violations at pesticide facilities are
often linked to problems with rinsate/wash waters. One State agency
asked if a 300-

gallon spill mixed with 600 gallons of cleanup water can be considered
rinsate. Another State agency has an expanded definition of rinsate to
include recovered sedimentation, washwater, contaminated precipitation,
or other contaminated debris.
    iii. EPA response. The word facility has been added to the list of
definitions. The Agency agrees that the phrase pesticide compatible is
clearer than pesticide resistant and has changed the regulation
accordingly. For the purpose of this regulation, rinsate is being
defined as the liquid (usually water) used to rinse the interior of any
equipment or container that has come in direct contact with any
pesticide. The Agency agrees that it is a good management practice to
place rinsate tanks within containment and is recommending that
practice, but does not have information on the risks of storage of such
dilute pesticides.

B. Purpose (Sec.  165.80(a))

    1. Final regulations. The purpose of the containment standards is
to protect people and the environment from exposure to agricultural
pesticides from spills and leaks, and to reduce wastes produced during
pesticide storage, handling or refilling of pesticide containers.
    2. Changes. This is the same as the proposed purpose in Sec.
165.140.

C. Who Must Comply (Sec.  165.80(b))

    1. Final regulations. You must comply with these regulations if you
are the owner or operator of a facility that stores pesticides in a
stationary pesticide container or conducts any of the regulated
pesticide transferring activities and if you are a retailer, for-hire
applicator, or custom blender (as defined in 40 CFR 167.3) of
agricultural pesticides.
    2. Changes. This is the same approach and scope that we proposed in
Sec.  165.141. The proposed regulations included only retailers, for-
hire applicators, and custom blenders because they are the three
categories for which EPA has accumulated the most substantial evidence
of soil and groundwater contamination by pesticides. The final rule
maintains the same scope. These facilities represent only a subset of
the realm of operations where containment requirements might be
appropriate. The Agency may consider further containment rulemaking for
other elements of the pesticide industry if further information
indicates that such requirements are needed. In addition, the final
rule revises the regulatory language to clarify that the containment
regulations only apply to agricultural pesticides. (See Unit VII.L. for
a discussion of custom blending and custom mixing.) Also, a description
of ``principal business is retail sale'' -- more than 50% of total
annual revenue comes from retail operations -- was added to the final
regulation for clarity.
    3. Comments. Many commenters (dealer groups, dealers, State
regulatory agencies, and a distributor/registrant) responding to both
the 1994 proposal and the 2004 reopening of the comment period argued
for a level playing field and urged EPA to expand the scope of the
containment standards to include manufacturing plants, distributors,
farms, and non-agricultural facilities. Commenters argued that there
are similar potential risks of environmental contamination at any
facility that meets the volume, time or activity criteria, regardless
of the location of the facility or the type of pesticide, Many
commenters (State regulatory agencies, a dealer, a dealer group, an
aerial applicator and an aerial applicator group) stated that there are
some farms which store and handle more pesticides than some small
retailers, and that the regulations should focus on the activity and/or
the quantity stored, not the individual storing it.
    Commenters to the 2004 Federal Register Notice reopening the
comment period stated that there have been changes in pesticide use
patterns in the 11 years since the regulations were proposed. They
stated that equipment technology developments in the handling and
application of bulk agricultural chemicals have advanced dramatically,
and that these new technologies coupled with the increase in the number
of farms with large acreage have led to end users becoming a dramatic
growth sector of purchasers of commercial application equipment. A
dealer association stated it had surveyed chemical equipment dealers in
Kansas and that 20 to 25 percent of all new large commercial
application rigs and 80 percent of all used application equipment is
currently purchased by end users, most of whom are farmers. The
commenter said that using such equipment requires large quantities of
chemicals on site and concluded that on-farm bulk storage is growing.
    Another dealer association commented in 2004 that by the end of
2006, 70 percent of all crop protection products, mainly herbicides,
will be off-patent, creating a marketing opportunity for non-
traditional suppliers and chemical brokers. They noted that end users
could become direct crop protection customers without appropriate
facilities, resulting in increased environmental incidents. The
association also stated that at least 58 percent of U.S. farmland is
not farmed by the landowner, countering the belief that farmers are
better stewards because they have a vested interest in protecting their
farmland from contamination. They commented that retailers are
professionals trained in handling hazardous materials compared to end
users, who tend to have less knowledge and training in safety,
containment, and cleanup procedures. A dealer stated that some farmers
have become tool shed dealers who store bulk without containment and
repackage for neighboring farmers. This point was reinforced by
retailers during a meeting in 2004 following the reopening of the
comment period (Ref. 31), where the dealer associations and individual
dealers reiterated their submitted written comments and cited a growing
problem of cash and carry dealers who repackage product on farms
illegally without a license.
    Several commenters opposed expanding the scope to include farmers.
In 2004, the Farm Bureau and associated grower groups opposed any
change in the proposed scope. A registrant group recommended that EPA
work jointly with State pesticide regulatory officials and industry to
devise a method for obtaining reliable data on the number of farmers
storing bulk nationwide. The Association of American Pest Control
Officials recommended that EPA not expand the scope to farmers without
first researching the number, volumes and other pertinent data
regarding on-farm bulk practices, an assessment of the risks of on-farm
operations, and an analysis of the costs and benefits of on-farm bulk
containment.
    Several commenters specifically supported requiring non-
agricultural pesticides stored in bulk to be subject to the rule. They
state that bulk pesticide storage presents potential hazards regardless
of use or activity, and that risk may be even higher due to greater
population density compared to rural agricultural settings.
    EPA response. Due to the large number of commenters in 1994 and
2004 from all sectors who supported requiring farms to have containment
for stationary container pesticide storage, the Agency considered the
option of expanding the scope of the rule to include farms and other
entities. Although the Agency had solicited data on bulk pesticide
storage on farms and at non-agricultural facilities in both the 1994
proposed rule and the 1999 supplemental notice, only anecdotal
information was received alleging an

increase of stationary container pesticide storage on farms. (Ref. 27)
    The Agency therefore researched the issue of whether pesticide
storage on farms is a significant problem. The Agency contacted several
commenters to the rule for clarification and was unable to confirm that
the use of larger spray equipment relates to increased bulk pesticide
storage or only to fertilizer storage and application. In cases where
bulk storage of pesticide most likely occurs on large farms, such as
with metam-sodium, it is not clear that pesticide remains in the tank
for 30 days or more. The Agency asked the USDA to contact its sources
in the extension network, and Agency staff contacted regulatory
representatives and dealers in several States, particularly those with
large areas under field crops. In general, the persons contacted knew
of few, if any, farms with bulk pesticide storage, with the definition
of bulk as 500 gallon containers or greater.
    USDA contacted Colorado, where less than 1 percent of farmers
potentially store pesticides in bulk, and where minibulks up to 660
gallons are exempt from the requirement for containment if they are
approved by DOT or MACA. USDA also contacted Illinois, Kansas and
Nebraska. Illinois has implemented new regulations which require
farmers to have secondary containment if they meet the volume criteria,
so any farmers with large tanks are taking them out of service. They
learned that Kansas has three to six farms with bulk pesticides, and
most farmers are using 250 gallon minibulks. Nebraska representatives
could not estimate how many farms have bulk pesticide, but the most
commonly used containers are 85 to 250 gallon minibulks. The only State
with hard data was Indiana, which has 65 farmers with bulk storage
(defined as larger than 55 gallons), of which 31 reportedly had tanks
larger than 500 gallons.
    EPA has no data on the existence of bulk storage in non-
agricultural facilities. EPA assumes that at such facilities,
pesticides are often stored indoors, where the building itself affords
some measure of containment. EPA is aware of some isolated mosquito-
control facilities which may store pesticides in large stationary tanks
during the treatment period, but does not have any way to estimate the
existence of such facilities nationwide.
    In short, EPA has not received sufficient evidence of contamination
at manufacturing plants, distributors, farms and non-agricultural sites
to justify regulating them. In the proposed rule, we outlined the data
available to the Agency documenting contamination at agricultural
retailers, refilling establishments and commercial applicator sites. At
least 30 of the references to the proposed rule were State monitoring
studies showing contamination at such sites. Data documenting
widespread contamination at other facilities were not submitted, and
have not been identified.
    The consensus, even from commenters who support expansion of the
scope to include farmers, is that on-farm bulk storage is still rare.
The Agency does not wish to regulate in anticipation of a potential
problem, particularly since it is questionable that such a regulation
could be enforced on an equitable basis. We recognize the staff and
resource restrictions of State agencies, and do not wish to add to
their burden in anticipation of a problem which may or may not occur in
the future.
    The Agency recognizes that all large, stationary tanks have the
potential to leak or burst, and considered requiring all stationary
tanks, regardless of location, to conform to the containment standards.
However, the Agency also believes that the volume through-put of tanks
used for retail sale or commercial application of pesticides is higher
than that expected for individual farms, resulting in a higher
potential risk associated with their usage. The Agency further believes
that an end-user who is not significantly involved in resale of product
has less opportunity and motivation to finance the purchase of large
tanks and the construction of secondary containment.
    EPA added a description of the phrase ``principal business is
retail sale'' to the final rule so Sec.  165.180(b)(1) states that
refilling establishments who repackage agricultural pesticides and
whose principal business is retail sale (i.e., more than 50% of total
annual revenue comes from retail operations) must comply with the
containment regulations. EPA's intent of including the phrase principal
business in the 1994 proposed rule was to distinguish between refilling
establishments whose principal business is retail sale and refilling
establishments whose primary function is formulation or manufacturing
of pesticides. The description of principal business was added to the
final rule to provide clarification on how to make this distinction. In
addition, the information we received during the 2004 comment period
about some farmers reportedly repackaging pesticides for sale further
supported the need to clarify the meaning of principal business is
retail sale. For the reasons discussed in this section, EPA decided not
to apply the final containment regulations to farmers. We believe that
adding the clarification of principal business to the final rule will
help identify the retail facilities that we intend to regulate with
Sec.  165.180(b)(1). However, EPA wants to clarify that anyone
including a farmer - who is repackaging pesticides for sale or
distribution must comply with the existing requirements in 40 CFR part
167 to register their establishments and report their production
(repackaging) to EPA and must also keep records of pesticide production
according to 40 CFR part 169. In addition, such facilities would be
regulated as refillers under this final rule and would have to comply
with the refiller requirements in subpart D, Standards for Repackaging
Pesticide Products into Refillable Containers. These facilities would
have to comply with the containment requirements in subpart E if they
repackage agricultural pesticides and if more than 50% of their total
annual revenue comes from retail operations.
    The Agency is willing to amend the regulation to include such sites
if a pervasive pattern of contamination or other handling problems
appear at other sites in the future. It is recommended that State and
local agencies regulate such facilities at the local level as needed.

D. Compliance Dates (Sec.  165.80(c))

    1. Final regulations. All containment structures subject to today's
rule must comply with all applicable containment regulations for new
and existing structures within 3 years of today's date.
    2. Changes. The proposed rule required new structures to comply
with the containment standards beginning 2 years after publication of
the final rule. Existing structures would have been required to comply
with interim standards for a period of 8 years, beginning 2 years after
publication of the final rule, and then existing structures would have
to comply with the same standards as new structures. The interim
standards were defined as critical to safe containment, and considered
readily implemented within 2 years. The interim period was intended to
allow existing structures which have design or structural features not
amenable to upgrading without major modification to phase in those
modifications over time. The final rule has no provision for an interim
period; the final rule applies only one set of requirements to existing
structures over their life spans. Both new and existing structures must
comply with applicable standards beginning 3 years after publication of
the final rule.

    3. Comments. Many commenters had objections or changes to propose
on the interim period. Several respondents commented specifically on
the length of the interim period. A registrant thought it should be
longer and a State regulatory agency said it should be shortened to 5
years and be based on the structure's age and performance. A State
regulatory agency said that the nine critical standards were sufficient
and that the only distinction between new and existing facilities
should be the compliance date. A dealer opposed the interim period
because States already have containment standards and would have to
learn two new sets of standards above and beyond existing State rule.
Several respondents commented on the different possibilities for an
interim period discussed in the preamble. A State regulatory agency
supported an age-based approach of setting the compliance date on a
formula using 20 years minus the existing containment facility's age.
Many commenters (dealers, a dealer group and a State regulatory agency
group) opposed setting any standards that are more stringent than
existing State standards. A principal reason for opposition was that
interim requirements would comprise an extra, unnecessary set of
requirements to be learned by regulators and regulated parties,
particularly in States with containment programs in place. It would
also be costly for existing structures to have to retrofit,
particularly in States where facilities had already been constructed to
conform with State requirements. Several commenters (State regulatory
agencies, a dealer, and a grower group) recommended that EPA
grandfather existing containment facilities that are already in
compliance with State standards. A State regulatory agency group
requested EPA to seriously consider accepting small discrepancies in
some standards due to differences in existing State rules and
legislation. This commenter said that national uniformity in regulation
is desirable, although progress toward this goal should not be at the
expense of States that have already enacted rules and statutes that
vary slightly from the proposed Federal regulations. A dealer group
suggested that EPA set the Federal standards as a baseline, which would
allow the proactive work of some States to stand. Many dealers
recommended that EPA adopt the Iowa standards in lieu of those in the
proposal. A dealer said that making States enforce standards different
from their own would cause difficulties for enforcing agencies,
distributors, retailers and end users, and a State regulatory agency
elaborated, stating that States with containment requirements would
have to reinitiate their compliance efforts and would lose credibility
and trust of the regulated community. A few State regulatory agencies
suggested adding a provision that would use the time during the interim
period to collect data about the adequacy of State regulations. If the
collected information indicated a State's requirements weren't
adequate, EPA could justify compliance with the Federal standards.
    4. EPA response. The interim period was intended to allow
substandard facilities sufficient time to retrofit and come into full
compliance with the regulations and for owners to recoup the benefits
from the depreciation of their capital investment and financially
prepare to upgrade their structure. EPA has maintained a dialogue and
information exchange with States and the regulated community
(facilities and their associations) since the rule was published in
1994. EPA has decided not to finalize the most onerous and contentious
standards from the requirements for existing facilities, such as a
hydraulic conductivity standard, thereby significantly reducing the
effort and expense needed to comply. EPA believes that 33 months
between the reference date for new structures (3 months after
publication) and the compliance date (36 months after publication)
would provide a reasonable period of time for new structures to be
planned and built in compliance with the full requirements of subpart
E. If an existing structure does not already comply with the standards
for existing structures, EPA believes that the remaining modifications
can be readily implemented at existing structures within 3 years. The
proposed period of 2 years before compliance may not have provided
ample time for facilities to meet the requirements, particularly
facilities in locales with significant seasonal constraints on
construction. In addition, allowing 3 years as a compliance date for
both new and existing structures will allow one year for States with
their own containment regulations to apply for an equivalency
determination, and still avoid confusion by retaining the same
compliance date for all facilities. EPA believes that allowing one more
year before implementation will not have a significant adverse impact
on the environment, particularly given the many State regulations that
are already in effect. This is a shorter time frame than the 5-year
phase-in period allowed for the refillable container and repackaging
regulations, but given that most States with dealerships have already
implemented containment regulations, the Agency considers 3 years
sufficient time for facilities to comply. The Agency is allowing 5
years for compliance with the refillable container standards because
registrants need to phase out existing containers without recalling
them prior to the completion of their normal usable life. The
transition period helps distribute costs over time and improve
regulatory compliance.
    The critical standards cited in the preamble of the proposed rule
(59 FR 6765, February 11, 1994) for implementation during the interim
period have been modified based on comments, additional research, and
evaluation of existing State regulations. The modified standards for
existing structures are considered crucial to safe containment and
comprise the basic standards demonstrated to be effective for existing
structures in States with containment regulations. The following table
compares standards in the proposed rule to today's final standards for
existing structures. New structures are subject to these standards plus
additional standards representing further protectiveness.

     Table 17.--Comparison of Standards for Proposed and Final Rule
------------------------------------------------------------------------
                                                           Additional
  Standard in Proposed Rule for    Standard in Final   Standard in Final
       Existing Structures         Rule for Existing     Rule for New
                                      Structures          Structures
------------------------------------------------------------------------
Construction with rigid           Same.               NA
 materials.
------------------------------------------------------------------------
Use of pesticide-resistant        Use of pesticide-   NA
 materials.                        compatible
                                   materials.
------------------------------------------------------------------------

Hydraulic conductivity no         None. Liquid-       NA
 greater than 1 x 10-6 cm/sec      tight.
 during interim, 1 x 10-7 cm/sec
 after 10 years.
------------------------------------------------------------------------
Withstand full hydrostatic head.  Same.               NA
------------------------------------------------------------------------
Stormwater run-on protection for  Sufficient          NA
 a 25-year, 24-hour storm.         freeboard to
                                   contain
                                   precipitation and
                                   prevent water and
                                   other liquids
                                   from seeping into
                                   or flowing onto
                                   it.
------------------------------------------------------------------------
Protection of appurtenances and   Same.                Appurtenances
 containers.                                           configured so
                                                       leaks can be
                                                       observed.
------------------------------------------------------------------------
Seal joints and cracks and        Same.               NA
 repair any visible damage.
------------------------------------------------------------------------
Inventory reconciliation of       None.               NA
 liquid remaining in tank during
 interim only.
------------------------------------------------------------------------
Pad capacity 1,000 gallons.       Pad capacity 750    Sloped to liquid-
                                   gallons.            tight sump.
------------------------------------------------------------------------
Liquid stationary containers -    Liquid stationary   Liquid stationary
 unit capacity 100 percent/110     containers - unit    outdoor capacity
 percent indoor/outdoor minimum    capacity 100        110 percent
 during interim, 110 percent/125   percent indoor/     minimum.
 percent indoor/outdoor after 10   outdoor minimum.
 years.
------------------------------------------------------------------------
Anchoring liquid stationary       Anchoring or        NA
 containers.                       elevating liquid
                                   stationary
                                   containers.
------------------------------------------------------------------------
Prevent pesticide-containing      Seal                Appurtenances must
 material from escaping from       appurtenances,      be configured in
 containment.                      discharge outlets   such a way that
                                   and gravity         spills or leaks
                                   drains through      are easy to see.
                                   base or wall of
                                   containment unit,
                                   including sump.
                                   Containment pads
                                   may drain to a
                                   watertight sump
                                   with method of
                                   removing
                                   accumulated
                                   liquids, such as
                                   a pump, which
                                   transfers
                                   contents to
                                   aboveground
                                   container.
------------------------------------------------------------------------
Dry product stationary container  Dry product         NA
 - no capacity requirement         stationary
 during interim, 100% after 10     container
 years.                            protected from
                                   wind/rain with 6-
                                   inch berm at
                                   least 2 feet from
                                   container.
------------------------------------------------------------------------
Attended transfers; locked        Same.               NA
 valves; cleanup by the end of
 day of spill; monthly
 inspection.
------------------------------------------------------------------------

E. Stationary Containers Included (Sec.  165.81)

    1. Final regulations. Stationary pesticide containers designed to
hold undivided quantities of agricultural pesticides equal to or
greater than 500 gallons (1,890 liters) of liquid pesticide or equal to
or greater than 4,000 pounds (1,818 kilograms) of dry pesticide are
subject to the containment regulations. Containers of less than these
volume/weight capacities are not required to be protected with a
secondary containment unit. The definition of stationary pesticide
container includes transport vehicles that are fixed or remain at a
facility for at least 30 consecutive days.
    A stationary pesticide container is subject to the containment
regulations and must have a secondary containment unit unless it
satisfies any one of the following conditions:
     The container is empty, which means that it has been
cleared of all pesticide that can be removed by customary methods such
as draining, pumping, or aspirating (whether or not residues have been
removed by washing or rinsing).
     The container holds pesticide rinsates or wash waters and
is so labeled.
     The container holds only pesticides which would be gaseous
when released at atmospheric temperature and pressure.
     The container is dedicated and labeled for non-pesticide
use.
    2. Changes. This is not the same subset of stationary containers
proposed in Sec.  165.142(a) as subject to, or exempt from, the
standards. The three differences are that the: (1) Liquid container
size subject to the rule is 500 gallons rather than 793 gallons; (2)
dry container size subject to the rule is 4,000 pounds rather than
4,409 pounds; and (3) period of time that a container can remain fixed
or at a single facility in order to be considered stationary is 30
days, rather than the 14-day period in the proposed rule.
    3. Comments - holding capacity. Many commenters (State regulatory
agencies, dealer groups, and another government agency) urged EPA to
reduce the capacity threshold for containers for which secondary
containment is required. Specific alternative suggestions included: (1)
300 gallons for liquids or 100 pounds for dry products; (2) 300 gallons
for liquids or 500 pounds for dry products; (3) 500 gallons for liquids
or 2,000 pounds for dry products. A registrant group commented in 2004
that packaging experts believe plastic containers larger than 330
gallons would not meet DOT

Packing Group III standards, which they cite as further evidence that
containers that size and larger need secondary containment. A State
agency stated that they are already seeing a shift in container size
(below the regulatory cut-off) in order to be exempt from the State's
containment regulations. Another State agency suggested that States
have geographical differences and that perhaps EPA should allow
individual States to mandate storage limits based on their individual
situation. A dealer group and a registrant group jointly commented that
containers with a liquid capacity of greater than 330 gallons should be
protected by containment. There were no commenters who thought the
container size of 793 gallons was appropriate or that it should be
larger.
    4. EPA response - holding capacity - liquids. The Agency recognized
that the liquid capacity proposed was substantially greater than volume
criteria adopted by many States with containment regulations. These
States use lower limit ``bulk'' criteria ranging from 55 to 500 gallons
to trigger secondary containment requirements for liquid pesticides.
The reasoning for the proposed definition (793 gallons) of liquid bulk
container was to be consistent with the DOT definitions in
distinguishing between intermediate bulk containers and bulk
containers. Since the final containment regulations do not use
definitions of bulk or intermediate bulk, the DOT definitions are
irrelevant here. As discussed in Unit VI.A., EPA is not finalizing the
definitions of minibulk and bulk containers in the final rule. The
Agency's intent for the secondary containment requirement is to prevent
the most catastrophic spills, and the larger the container, the greater
the risk of contamination. The Agency believes contamination from
failure of a 500-gallon container would be significant, and agrees with
commenters that a 330-gallon container is generally considered the
largest size container that can be moved by a fork lift and can be
considered mobile. The next most common size used in the field is 500
gallons. The Agency agrees with States that those 500 gallon tanks
should be required to have secondary containment, and is lowering the
size cut off to capture those tanks and harmonize with existing
regulations. The Agency has confirmed by personal communication with
some State regulators and extension staff (Ref. 28) that there are few,
if any, containers between the sizes of 500 and 793 gallons, (the next
most common size after 500 gallons is 1,000 gallons) and expects that
today's rule will discourage demand for container sizes in that range
in an attempt to be exempt from the containment regulations. The Agency
confirmed that 500-gallon tanks are common in the field, and recognizes
that the regulations may prompt some demand for tanks slightly smaller
(e.g., 450 gallons) in order to be exempt from the Federal requirement.
There may always be facilities which try to skirt the law in such ways,
but the Agency intended the containment regulations to prevent the
environmental consequences from the most catastrophic spills. The
smaller the tank size, the less contamination will result from leaks or
spills. The Agency also reviewed containment regulations in the 19
States which have them, and determined that the size cut-off which
triggers the requirement for secondary containment varies from 55 to
550 gallons, with many states selecting 300- or 330-gallon tanks as the
cut-off size. The Agency believes that selecting a volume cut off
between 55 and 500 gallons would conflict with some State regulations
at a cost to both States and facilities, with no measurable benefit to
the environment (Ref. 25) and has therefore selected 500 gallons as a
realistic, practical and protective size which triggers the need for
secondary containment.
    5. EPA response - holding capacity - dry pesticides. As with liquid
pesticides, the Agency's goal in proposing larger weight criteria for
dry pesticides, was to target containers that pose the greatest risk of
catastrophic consequences in the event of failure. The proposed size
criterion for dry pesticide containers was 4,409 pounds (2,000
kilograms). There were many comments on the size criterion for dry
pesticide containers in 1994. Those comments objected specifically to
the proposed standard for 100 percent containment capacity for such
containers based on the physical nature of a dry spill. The Agency has
confirmed with the packaging industry (Ref. 29) that dry pesticides are
not packaged in containers between the sizes of 4,000 and 4,409 pounds.
Therefore, EPA is lowering the size of the container for which
containment is required to 4,000 pounds (1,818 kilograms) for
simplicity and clarity, since 4,000 is an easier number to remember for
compliance and enforcement purposes, and there is no functional
difference between 4,000 and 4,409 pounds for refillable dry bulk
containers, since neither size exists. In addition, EPA has replaced
the requirement for 100 percent containment capacity for dry pesticides
with a requirement for a 6-inch berm in the final rule.
    6. Comments - 14-day residence. Several commenters suggested
increasing the time criterion to 30 days to account for factors beyond
the control of the facility. One commenter questioned the associated
recordkeeping as burdensome and unclear as to what was required. A
registrant requested that EPA exempt packaged product in nonrefillable
containers from the 14-day time trigger because it would burden small
facilities.
    7. EPA response - 14-day residence. Although most large containers
used at commercial agrichemical facilities are stationary, some
containers are actually vehicles (such as tank trucks) used for
prolonged storage or repeated on-site dispensing of pesticide at one
location. In this case, the primary function of the vessels shifts from
pesticide transport to pesticide storage or handling, and therefore
containment is required. Since monthly inspection is required at such
facilities, EPA believes that it would be reasonable to allow a 30-day
maximum residence time without containment requirements, since any
transport vehicles temporarily stored would have to be inspected by the
owner or operator within that period. The recordkeeping required for
stationary containers which do not have secondary containment could
simply be a signature of the driver and/or facility owner/operator on a
paper listing the driver's arrival date. The regulation is not intended
to impose burdensome recordkeeping. The regulations will not affect
packaged pesticide in small quantities used by small entities, since
the quantities required that would trigger containment requirements are
500 gallons liquid or 4,000 pounds dry pesticide.

F. Pesticide Dispensing Areas Included (Sec.  165.82)

    1. Final regulations. Dispensing areas are subject to the
requirements for a containment pad if one of the following activities
is conducted in the dispensing area:
     Emptying, cleaning, and rinsing of refillable containers
that hold agricultural pesticides.
     Dispensing of an agricultural pesticide from a stationary
pesticide container of a size holding 500 gallons or more of liquid or
4,000 pounds or more of dry pesticide for any purpose.
     Dispensing of an agricultural pesticide from a transport
vehicle to fill a refillable container.
     Dispensing of an agricultural pesticide from any other
container for

the purpose of refilling a refillable container for sale or
distribution.
    A dispensing area is exempt from subpart E requirements for a
containment pad if it satisfies any of the following conditions:
    (1) The only pesticides handled in the pesticide dispensing area
are pesticides which would be gaseous if released at atmospheric
temperature and pressure.
    (2) The only pesticide containers refilled within the pesticide
dispensing area are stationary pesticide containers protected by a
secondary containment unit that complies with the requirements of this
subpart.
    (3) The pesticide dispensing area is used solely for dispensing
pesticide from a rail car that is not a stationary pesticide container.
However, if a rail car is used as a stationary pesticide container,
secondary containment is required.
    2. Changes. This is the same approach and scope that was proposed
in Sec.  165.142(b) for including and exempting pesticide dispensing
areas from the requirement for a containment pad. The language in Sec.
165.82(a)(2) has been slightly revised to reflect the lower container
sizes, and all of the conditions have been slightly revised to be
clearer.
    3. Comments. As with the scope of facilities subject to the
containment requirements above, many commenters responding to both the
1994 proposal and the 2004 Notice (State regulatory agencies, a few
dealer groups and a registrant) urged EPA to expand the scope to all
permanent areas where the transfer of pesticides from any container
occurs, regardless of container size or pesticide type. In particular,
they argued for requiring containment pads for mixer/loader activities
by farmers or for-hire applicators, citing significant soil and
groundwater contamination in agricultural States, and equivalent risk
whenever large quantities of pesticides are handled. They noted the
possibility that farmers are less well-trained in pesticide management
than commercial dealers. State agencies supported including farmer
mixer/loader pads in order to strengthen their own regulations.
    Arguments by State regulatory agencies, user groups, a registrant,
and a registrant group against including farmers in the scope cited the
difficulty of monitoring numerous individual farms and lower quantities
of pesticides used. Two user groups opposed including farmers because
the costs would be significant to farmers and could not be passed on;
the costs of monitoring the large number of farm sites would be
burdensome; and farm sites generally handle less material, which should
result in fewer spills.
    4. EPA response. As discussed above in Unit VIII.C., Who Must
Comply, EPA focused on commercial agrichemical facilities because these
have the clearest pattern of soil and ground water contamination by
pesticides. EPA did not include farms because farms conduct operations
on an occasional basis and would not have the same environmental
impacts as refilling establishments. Containment on a farm would also
be expensive and require year-round maintenance but only be needed on a
seasonal basis. EPA does not have a good estimate of the number of
farms with stationary bulk storage, nor evidence that significant
contamination is occurring at farm sites. Although it follows logically
that any area where pesticides are transferred between containers and
application equipment may become contaminated, the quantities
transferred at dealer and commercial sites for sale to multiple
customers are expected to far exceed quantities transferred at
individual farms.
    EPA noted that the language in Sec.  165.82(a)(4) did not fit the
plain-English standard for simplicity and revised it to clarify that
the activity of refilling refillable containers for sale or
distribution, even if the source container is smaller than the size
requiring secondary containment, requires a secondary containment pad.
For example, refilling a 15-gallon minibulk from a 400-gallon
stationary tank would still require a containment pad if the product
was intended to be sold or distributed.

G. Definition of New and Existing Structures (Sec.  165.83)

    1. Final regulations. A new containment structure is one whose
installation begins more than 3 months after the final rule is
published. Installation is considered to have begun if:
    (1) You, as the owner or operator, have obtained all Federal,
State, and local approvals or permits necessary to begin physical
construction of the containment structure; AND
    (2) You have either begun a continuous on-site physical
construction or installation program OR you have entered into
contractual obligations for physical construction of the containment
structure. The contract must be such that it cannot be canceled or
modified without substantial loss, and must be for the physical
construction or installation of the containment structure within a
specific and reasonable time frame.
    An existing containment structure is one whose installation began
on or before the date 3 months after the final rule is published.
    2. Changes. This is identical to the definitions of new and
existing containment structures proposed in Sec.  165.144. However, the
general structure of the final rule is different from the proposal, as
explained in more detail in Unit VIII.K. The proposed rule would have
required existing structures to comply with interim standards for a
period of 8 years, beginning 2 years after publication of the final
rule, and then existing structures would have had to comply with the
same standards as new structures. Instead, the final rule establishes
critical design standards for both new and existing structures, and
several additional standards for new structures. In other words,
certain standards in the final rule apply to all existing structures
for their lifetimes. Similar but slightly different standards apply to
all new containment structures. As noted earlier, these standards would
not apply in States that show that their regulations afford
environmental protection at least equivalent to that provided by EPA's
regulations.
    Also, EPA reorganized the regulatory text so all the design and
capacity standards for new structures are grouped together in Sec.
165.85. (See Unit VIII.H.) All the design and capacity standards for
existing structures are grouped together in Sec.  165.87. (See Unit
VIII.I.) The regulations that follow these two groupings of standards,
including but not limited to operational, inspection, maintenance and
recordkeeping requirements, apply to both new and existing structures.
EPA believes this format is clearer and should facilitate compliance
compared to the structure of the proposed rule, which intermingled
requirements for the interim period and for new structures.

H. Design and Capacity Requirements for All New Structures (Sec.
165.85)

    1. Construction materials for new containment structures (Sec.
165.85(a))--i. Final regulations. New containment structures must be
made of steel, reinforced concrete or other rigid material which will
withstand the full hydrostatic head, load and impact of any pesticides,
precipitation, other substances, equipment and appurtenances placed
within the structure. The construction material must not be natural
earthen material, unfired clay, or asphalt, and must be compatible with
the stored pesticide.
    ii. Changes. The proposed rule stated that the construction
material had to be

resistant to pesticide. The final rule states that the material must be
compatible with the pesticide. The proposed rule also had the following
additional requirement for new structures, which is not being finalized
in the final rule:
    Each new containment structure must have a hydraulic conductivity
less than or equal to 1 x 10-7 centimeters per second.
During the interim period, each existing structure must have a
hydraulic conductivity standard less than or equal to 1 x
10-6 centimeters per second.
    iii. Comments - rigid structures. A few State regulatory agencies
supported requiring rigid structures. One recommended allowing flexible
synthetic liners in the base. A university and a registrant supported
the use of steel structures. A few State regulatory agencies and a
containment materials supplier supported portable rigid or non-rigid
structures.
    iv. EPA response - rigid structures. EPA does not believe that
flexible, portable, or non-rigid structures can adequately ensure the
permanent and continuous liquid-tight containment of large quantities
of agricultural pesticides or of areas where pesticides are transferred
and handled regularly. Years of State experience with secondary
containment has shown that structures of concrete, steel or other rigid
material are effective in containing spills and leaks. Furthermore, as
stated in the proposed rule, key technical guidance documents recommend
that rigid materials, especially reinforced concrete, be used for
structural support in pesticide containment facilities. Industry
guidance (Ref. 11) indicates that water-tight concrete can be achieved
with nonporous aggregate, high-quality cement paste, proper curing,
etc., and that maintenance plays an important role in keeping the
structure impermeable to liquids. Although flexible, portable
containment structures may be appropriate in certain other situations,
EPA believes that durable, rigid materials should be required for
stationary pesticide containment at facilities covered in today's final
rule.
    v. Comments - hydraulic conductivity. Several State regulatory
agencies supported the hydraulic conductivity standard as proposed.
Many commenters (including State regulatory agencies, another agency,
registrants, a registrant group, dealer groups, and a dealer) commented
that a hydraulic conductivity standard would be difficult to implement,
generally citing a lack of methods to verify compliance with such a
standard. Some respondents (dealers, State regulatory agencies,
registrants and a registrant group) commented that there are no on-
site, non-destructive tests to verify hydraulic conductivity.
Respondents from a variety of commenter categories opposed the standard
as too restrictive, unnecessary, unachievable, and too costly. Some
commenters (registrants, a registrant group, and State regulatory
agencies) pointed out that RCRA-mandated wood preservative drip pads
serve as primary containment, whereas the proposed regulations apply to
secondary containment, arguing that the same standard should not apply
in both cases. A few State regulatory agencies expressed concern that
construction modifications of existing structures to comply with the
capacity and hydraulic conductivity standards may not be technically
feasible and could penalize proactive States. A few State regulatory
agencies and a dealer group commented that there is no evidence of
pesticide moving through concrete slabs or unsatisfactory performance
by existing concrete structures, and one commenter observed that most
releases from secondary containment are through unsealed cracks and
installed drains.
    Respondents commented on the methods needed to achieve a hydraulic
conductivity standard, such as use of coatings, sealants, and liners. A
State regulatory agency supported the use of sealants and coatings and
a few dealer groups acknowledged that coatings on concrete would extend
the useful life of the structure and make it less permeable. Many
commenters expressed concerns about the use of coatings and sealants on
containment structures, for reasons such as: coatings can cover cracks
and problems that would not be visible (dealer, dealer association and
a State regulatory agency); abrasion from traffic (State regulatory
agency) and deterioration of sealants due to ultraviolet light
(registrant group and several registrants) could prevent a structure
from maintaining compliance; and high cost of maintenance and
replacement. Some commenters (dealer groups, State regulatory agencies)
suggested qualitative alternative ways to implement an impermeability
standard: liquid-tight with cracks, seams and joints sealed; spill
retention; leakproof, coupled with permit and other requirements;
leakproof and constructed with materials resistant to pesticides. A
State regulatory agency observed that most releases from secondary
containment are through unsealed cracks or installed drains.
    vi. Comments - hydrostatic head. A few State regulatory agencies
argued that a requirement for construction to withstand full
hydrostatic head would require dike walls to be unreasonably thick in
order to withstand a very rare but not impossible tidal wave impact of
a large tank rupture. A dealer group urged EPA to replace the standard
with the following language from the Association of American Pest
Control Officials (AAPCO) model rule: ``Secondary containment shall be
constructed of sufficient thickness, density, and composition so as to
contain any discharged material...''
    vii. EPA response - hydraulic conductivity and hydrostatic head.
Based on the comments and additional research, EPA agrees that the
proposed hydraulic conductivity requirements would be unnecessarily
burdensome, and that rigid walls of chemically compatible material have
been proven effective in controlling accidental spills. The 1 x
10-7 cm/sec standard was based on the hydraulic conductivity
requirement found in current RCRA requirements for wood preservative
drip pads in subpart W of 40 CFR parts 264 and 265. EPA agrees that
secondary containment structures are intended to catch and briefly
retain spills and releases, not store them indefinitely, and recognizes
the difficulty in verifying hydraulic conductivity. The Agency has
therefore decided not to finalize the standards for hydraulic
conductivity. The Agency disagrees that the requirement to withstand
full hydrostatic head is unreasonable. It is a requirement in many
State containment regulations. The final rule was modified slightly to
delete the phrase (dynamic or static) because that phrase adds more
confusion than clarity. However, EPA believes that the standard of
being ``capable of withstanding the full hydrostatic head, load and
impact of any pesticides, precipitation...'' requires the secondary
containment unit to be able to contain a catastrophic spill. EPA
believes that using industry construction guidance on concrete quality
and reinforcement bars will ensure that containment structure's
integrity in the case of a catastrophic spill of a large tank.
    2. General design requirements for all new containment structures
(Sec.  165.85(b))--i. Final regulations. These are the general design
requirements for new containment structures:
    (1) You must protect appurtenances and pesticide containers against
damage from operating personnel and moving equipment. Means of
protection include, but are not limited to, supports to prevent
sagging, flexible connections, the use of guard rails, barriers, and
protective cages.
    (2) Appurtenances, discharge outlets, or gravity drains must not be
configured

through the base or wall of the containment structure, except for
direct interconnections between adjacent containment structures which
meet the requirements of this subpart. Appurtenances must be configured
in such a way that spills or leaks are easy to see.
    (3) The containment structure must be constructed with sufficient
freeboard to contain precipitation and prevent water and other liquids
from seeping into or flowing onto it from adjacent land or structures.
    (4) Multiple stationary pesticide containers may be protected
within a single secondary containment unit. The volume of the largest
container determines the capacity requirement of the unit.
    ii. Changes. Requirements in Sec.  165.85(b)(1) and (2) are
identical to those proposed in Sec.  165.146(b). Paragraph (4) is added
to clarify a statement in the proposed rule under Sec.  165.152. The
requirement in Sec.  165.85(b)(3) has been changed. In the proposed
rule, the requirement was to prevent storm water run-on from seeping
into or flowing onto it from adjacent land or structures during a 25-
year, 24-hour rainfall event.
    iii. Comments - storm protection. Several respondents (a registrant
and two State regulatory agencies) supported the stormwater control
provision. Several others (a dealer group and two State regulatory
agencies) suggested alternative language, such as diverts water, no
discharge, or constructed to prevent any surface water from moving onto
or across the structure. Several commenters (a dealer group, a
registrant group and two State regulatory agencies) noted that it would
be difficult to comply because (1) a watershed runoff study would be
needed; (2) the 25-year, 24-hour criterion would be difficult to
determine at different sites; (3) rainfall varies substantially from
year to year. A few State regulatory agencies commented that the
stormwater control standard doesn't adequately address precipitation
and stated that the containment capacity requirements must be based on
rainfall volume, such as a 25-year, 24-hour rainfall event. A few
dealers recommended the example of the Illinois pesticide containment
rule, which requires that stormwater be diverted from containment
structures.
    iv. EPA response - storm protection. A 25-year, 24-hour storm is
commonly used as a benchmark for the capacity of secondary containment
structures, and is recommended in the National Pollution Discharge
Elimination System (NPDES) Best Management Practices Guidance
Document.(Ref. 74) EPA believes that, just as a 25-year, 24-hour storm
is a reasonable criterion for stormwater retention (prevention of run-
off), it would also serve as sufficient freeboard and a reasonable
standard for prevention of stormwater seepage and run-on from adjacent
lands or structures. Such a standard allows flexibility for varying
climatic conditions. It is also the standard required for certain tank
systems storing or treating hazardous waste. See, for example, 40 CFR
265.1(e)(1)(ii) and (e)(2)(ii). However, the Agency has decided not to
require a 25-year, 24-hour storm criterion here in order to be
consistent with the final EPA rule on Oil Pollution Prevention and
Response: Non-Transportation-Related Onshore and Offshore Facilities
(67 FR 47042, Ref. 47). The Oil Prevention Rule states that while a 25-
year, 24-hour storm event standard is appropriate for most facilities
and protective of the environment, it may be difficult and expensive
for some facilities to secure recent information concerning such storm
events at this time. Recent data do not exist for all areas of the
United States, or may be costly for small operators to secure. Should
recent and inexpensive information concerning a 25-year, 24-hour storm
event become easily accessible for every part of the United States, we
will reconsider proposing such a standard. Instead, at this time, we
are requiring, as a few commenters suggested, that the containment
structure have sufficient freeboard to contain precipitation and
prevent water and other liquids from seeping into or flowing onto it
from adjacent land or structures. Most States with containment
regulations do not use a 25-year, 24-hour storm criterion, and have
indicated that, in their experience, requiring a numerical capacity
(110 percent) or sufficient freeboard to accommodate local
precipitation conditions provides adequate protection.
    3. Capacity requirements for new stationary liquid pesticide
containment units and new containment pads in pesticide dispensing
areas (Sec.  165.85(c))--i. Capacity for new stationary liquid
pesticide containment units--Final regulations. These are the capacity
requirements:
     New secondary containment units for stationary liquid
containers, if protected from precipitation, must have a capacity of at
least 100 percent of the volume of the largest stationary container
plus the volume displaced by other containers and appurtenances within
the unit.
     New secondary containment units for stationary liquid
containers, if exposed to or unprotected from precipitation, must have
a capacity of at least 110 percent of the volume of the largest
stationary container plus the volume displaced by other containers and
appurtenances within the unit.
    a. Changes. The proposed rule required higher capacity of 110
percent for units protected from precipitation and 125 percent for
units exposed to precipitation.
    b. Comments. Several State regulatory agencies supported the
proposed standards, stating that adjusting the standard to reflect
variable rainfall would add confusion. Many commenters (dealers, dealer
groups and a State regulatory agency) supported instead the standard
that EPA had proposed for the interim period for existing structures,
namely 100 percent/110 percent capacity (indoor/outdoor). Reasons cited
included: (1) Many dikes that meet this standard have been in place for
years with no overflows; (2) EPA provides little or no justification
that capacity in excess of 100 percent of the volume of the largest
container is necessary; (3) modifying a dike to add additional capacity
would be expensive; and (4) many Midwestern States have adopted the 100
percent/110 percent standard from the AAPCO model rule.
    c. EPA response. EPA agrees with comments based on practical field
experience and has reduced the volumes needed to 100 percent and 110
percent, respectively for indoor and outdoor units. The 110 percent
criterion for storage areas without roofing adds an extra margin of
safety for retention of precipitation. An extra 10% is not needed
indoors as long as the displaced volume or other containers is added.
However, the Agency recognizes that, for enforcement purposes, it may
be difficult to reconcile capacity with climatic conditions. For
example, in the case of a 2-inch rain, capacity at a new outdoor liquid
pesticide facility could be temporarily reduced to less than 110
percent of the largest tank if that tank were full, and the facility
would no longer be in compliance. To avoid disputed calculations of
capacity, the Agency recommends that facilities make allowances for
additional capacity beyond the 110 percent required, such as 125
percent, to build in a margin of error.
    ii. Capacity for new containment pads in pesticide dispensing
areas--i. Final regulations. These are the capacity requirements:
     New containment pads in pesticide dispensing areas subject
to the regulations in this subpart which have a pesticide container or
pesticide-holding equipment with a volume of

750 gallons or greater must have a holding capacity of at least 750
gallons.
     New containment pads in pesticide dispensing areas subject
to the regulations in this subpart which do NOT have a pesticide
container or pesticide-holding equipment with a volume of at least 750
gallons must have a holding capacity of at least 100 percent of the
volume of the largest pesticide container or pesticide-holding
equipment used on the pad.
    ii. Changes. The proposal required that pads have a minimum holding
capacity of 1,000 gallons, or, if no equipment used on the pad exceeded
1,000 gallons, at least 100% of the capacity of the largest container
or equipment used on the pad. Today's rule reduces the minimum pad
holding capacity to 750 gallons in the most likely scenario where large
(greater than 750 gallon) containers or pesticide-holding equipment
will be on the pad. Additionally, the capacity requirement refers to
gravity capacity, as defined in oral comments by Wisconsin state
regulatory officials (Ref. 46) in 2003. The gravity capacity of a sump
or containment structure is the capacity before any method of removing
or transferring the contained liquid by pump or other means is
employed. For example, a facility is prohibited from claiming a
capacity of 750 gallons if the sump or containment structure has an
actual capacity of less than 750 gallons but is serviced by a pump
which transfers accumulated liquid into holding tanks such that the
effective capacity would be 750 gallons. Since achieving 750-gallon
storage capacity under those circumstances relies on the proper and
dependable functioning of a pump as well as a continual supply of fuel
or electrical current to run the pump, this is not an acceptable way of
achieving the required capacity because if these conditions are not
met, a spill is more likely.
    iii. Comments. Indiana state regulators argued that the state had
spent three difficult years and had invested considerable resources in
implementing its regulations, which require a pad capacity of 750
gallons. They stated that to get the cooperation and voluntary
compliance of the impacted industries, they had to suggest to those
making the investment that there would be no significant changes in
requirements. To reverse themselves now, they stated, would jeopardize
their credibility. Illinois, a state with over 1,000 bulk facilities,
suggested that the pad capacity requirement should take into account
the additional volume of a 6-inch rainfall (the volume expected from a
24-year, 25-hour storm). A few State regulatory agencies did not object
to EPA's proposed pad capacity requirements, although their State
regulations are slightly more stringent. A State regulatory agency
noted that the difference between 750 gallon and 1,000 gallon capacity
would do little to accommodate a spill from a 3,000 gallon delivery
truck.
    iv. EPA response. The Agency did not have a technical basis for
choosing the 1,000 gallon capacity in the proposed rule, but based it
on a review of proposed and actual State containment regulations. Based
on comments and subsequent research, we determined that the criteria of
750 gallons used in some States has proven adequate. We believe that in
most actual situations of spillage on a pad, 750 gallons would be
adequate, especially since product transfers must be attended under the
requirements of this subpart. In a catastrophic event, neither 750
gallons nor 1,000 gallons would be sufficient to contain a large spill,
and the added cost of increasing capacity to 1,000 from 750 would
exceed any marginal environmental benefit. The Agency also agrees with
Wisconsin State regulators that a 750-gallon pad may be as small as 12
feet square, and that a top-loaded tank may risk splashing during the
refilling process. Consequently, while we are lowering the gallon
capacity to 750 gallons of gravity capacity, we are recommending that
the pad have a minimum size of 15 feet by 15 feet (or 225 square feet).
Additionally, for new operational pads unprotected from precipitation,
we recommend constructing a pad with a gravity capacity of 1,000
gallons.
    4. Specific requirements for new stationary liquid pesticide
containment units (Sec.  165.85(d))--i. Final regulations. In addition
to meeting the requirements of Sec.  165.85(a), (b) and (c), each new
stationary liquid container protected by a secondary containment unit
must either be anchored or elevated to prevent flotation in the event
that the secondary containment unit fills with liquid.
    ii. Changes. The proposed rule required that the containment unit
had to allow for observation of leakage from the base of any enclosed
stationary pesticide container. Thus, a flat-bottomed container would
have had to be elevated so that leakage would be visible. In addition,
the proposed rule required that flotation of the container, in the
event the containment filled with liquid, be prevented by either
elevating or anchoring the container. The final rule requires either
elevation or anchoring in response to comments that argued that
elevating containers is not necessary to detect leaks and may engender
risks from inadequate support devices.
    5. Specific requirements for new containment pads in pesticide
dispensing areas (Sec.  165.85(e))--i. Final regulations. In addition
to meeting the requirements for Sec.  165.85(a), (b) and (c), each new
containment pad in a pesticide dispensing area must:
     Be designed and constructed to intercept leaks and spills
of pesticides which may occur in the pesticide dispensing area.
     Have enough surface area to extend completely beneath any
container on it, with the exception of transport vehicles dispensing
pesticide for sale or distribution to a stationary container. For such
vehicles, the surface area of the containment pad must accommodate at
least the portion of the vehicle where the delivery hose or device
couples to the vehicle. This exception does not apply to transport
vehicles that are used for prolonged storage or repeated on-site
dispensing of pesticides.
     Allow, in conjunction with its sump, for removal and
recovery of spilled, leaked, or discharged material and rainfall, such
as by a manually activated pump. Automatically activated pumps which
lack automatic overflow cutoff switches for the receiving container are
prohibited.
     Have its surface sloped toward a liquid-tight sump where
liquids can be collected for removal.
    ii. Changes. These requirements are identical to those in Sec.
165.152(b) of the proposed rule. The proposed rule noted that tanker
trucks are considerably larger than containers or equipment normally
used on the containment pad, but that such deliveries are not expected
to be frequent, and did not propose that the pad had to be large enough
to accommodate the entire vehicle. This exception does not apply to
transport vehicles that are used for prolonged storage or repeated on-
site dispensing of pesticides, since the primary function of such a
vehicle would be pesticide storage rather than transport. EPA reasons
that the full containment requirements imposed on fixed containers
would also apply to non-fixed containers that remain at an applicable
facility for at least 30 days.
    6. Specific Requirements for new stationary dry pesticide
containment units (Sec.  165.85(f))--i. Final regulations. In addition
to the requirements in Sec.  165.85(a) and (b), each new stationary dry
pesticide containment must meet the following requirements:
     The stationary dry pesticide containers within the
containment unit

must be protected from wind and precipitation.
     Stationary dry pesticide containers must be placed on
pallets or a raised concrete platform to prevent the accumulation of
water in or under the pesticide.
     The stationary dry pesticide container storage area must
be enclosed by a curb that is a minimum of a 6 inches high and that
extends at least 2 feet beyond the perimeter of the container.
    ii. Changes. The proposal required that dry bulk secondary
containment units have a capacity of 100 percent of the largest
container plus the volume displaced by other containers and
appurtenances within the containment. The Agency was concerned that dry
pesticide could still mix with rainwater, fire suppression water, etc.,
to reach and contaminate groundwater and soil. The proposed rule did
not have any provisions for protection from wind and precipitation, nor
for elevated storage to prevent water accumulation under the pesticide,
but did request comment on such options. The final rule does not have a
numerical capacity requirement.
    iii. Comments. Several commenters (State regulatory agencies and a
dealer group) opposed the 100 percent proposed capacity as excessive,
since dry materials do not spread and disperse like liquid materials.
Several State regulatory agencies suggested that dry bulk secondary
containment should be protected by roofing or similar cover from wind
and precipitation, which would make 100 percent capacity unnecessary.
One State noted that it already has dry bulk containment regulations
which require that the containers be raised off the floor, and several
States require at least a 6-inch curb around an area extending at least
2 feet beyond the perimeter of the bulk tank. A registrant stated that
the typical practice is to store dry pesticides under a roof. Some
commenters offered alternative strategies, generally based on existing
State regulations, including a curb 6 inches high at least 2 to 3 feet
beyond the perimeter.
    iv. EPA response. EPA has reviewed State bulk storage regulations
and best management practices for storing dry bulk pesticides and has
noted that States require storage under a roof and, if outdoors, on
pallets or raised concrete platforms, and that the most common
requirement for dry bulk is a 6-inch berm at least 2 to 3 feet from the
container. (Ref. 34) Given that the States with the most experience
with dry bulk storage have the most practical experience with dry spill
containment, EPA agrees with the common sense arguments of commenters
regarding protection from precipitation, elevation, and the flow
properties of dry material, and has changed the dry containment
requirement accordingly. In regard to roofing, EPA believes that the
advantages of keeping rainwater out of containment will outweigh the
cost of installing a roof. However, in arid regions, a roof may not be
cost-effective, and if EPA provided roofing specifications, it is
possible that they would conflict with local construction requirements
and building codes. Therefore, the final rule requires protection from
wind and precipitation rather than specifically requiring a roof to
allow some flexibility. The Agency agrees that 100 percent capacity,
given that dry materials spread differently that liquids, would be
excessive. We also recognize that significant quantities of dust may be
generated during the refilling process, where the dry product is a
dust, granules or flowable formulation. While today's rule makes no
requirement for dust minimization or collection, we recommend that
every effort be made to contain the dust generated, both for the
respiratory protection of the persons attending the transfer and for
the preservation of air and soil quality in the vicinity of the
facility.

I. Design and Capacity Requirements for Existing Structures (Sec.
165.87)

    1. Construction Materials for all existing containment structures
(Sec.  165.87(a))--i. Final regulations. Existing containment
structures must be made of steel, reinforced concrete or other rigid
material which will withstand the full hydrostatic head, load and
impact of any pesticides, precipitation, other substances, equipment
and appurtenances placed within the structure. The construction
material must not be natural earthen material, unfired clay, or
asphalt, and must be compatible with the stored pesticide.
    ii. Changes. The requirements in Sec.  165.87(a) for existing
structures are identical to the requirements for construction materials
for new containment structures in Sec.  165.85(a). The proposed rule
stated that the construction material had to be resistant to pesticide,
while the final rule requires the material to be compatible with the
stored pesticides. In addition, the following proposed standard for
existing structures is not being finalized:
    During the interim period, each existing structure must have a
hydraulic conductivity standard less than or equal to 1 x
10-6 centimeters per second. After the interim period, each
new containment structure must meet the hydraulic conductivity standard
for new structures of less than or equal to 1 x 10-7
centimeters per second.
    iii. Comments. General comments and EPA's response on construction
material are discussed in Unit VIII.H.1. EPA believes that existing
structures should easily meet these requirements based on the
information we have gathered. We are not aware of secondary containment
units being constructed of any of the prohibited materials. We are
aware of the existence of some asphalt containment pads, but we believe
these are mostly used by aerial applicators that probably are not
subject to these regulations because they do not have large stationary
pesticide containers.
    2. General design requirements for all existing containment
structures (Sec.  165.87(b))--i. Final regulations. These are the
general design requirements for existing containment structures:
    (1) Protect appurtenances and pesticide containers against damage
from operating personnel and moving equipment. Means of protection
include, but are not limited to, supports to prevent sagging, flexible
connections, the use of guard rails, barriers, and protective cages.
    (2) Seal (permanently close) all appurtenances, discharge outlets
and gravity drains through the base or wall of the containment
structure, except for direct interconnections between adjacent
containment structures which meet the requirements of this subpart.
    (3) Construct the containment structure with sufficient freeboard
to contain precipitation and prevent water and other liquids from
seeping into or flowing onto it from adjacent land or structures.
    (4) Multiple stationary pesticide containers may be protected
within a single secondary containment unit.
    ii. Changes. Requirements are similar to those proposed in proposed
Sec.  165.146, except that (4) is added to clarify a statement in the
proposed rule under Sec.  165.152. The requirement in paragraph (2) was
proposed for existing structures 10 years after the publication date of
the rule (at the expiration of an interim period that was proposed for
existing units. See discussion on compliance dates in Unit VIII.D.
above.) In addition, at the end of the interim period, existing
structures had to meet the requirements for new structures, including
configuring appurtenances in such a way that leaks and spills could be
readily observed. The final rule requires facilities with existing
structures to seal appurtenances, discharge outlets and gravity drains
at the base and walls. EPA believes it is

necessary for existing structures to comply with this requirement
because some studies cited in the proposed rule estimated that 30
percent of the reported pesticide spill incidents resulted from
appurtenance failure, and many releases were reported from discharge
outlets and gravity drains. Requirements in paragraph (3) have also
been changed. In the proposed rule, the requirement was to prevent
storm water run-on from seeping into or flowing onto it from adjacent