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MGL 132B Massachusetts Pesticide Control Act
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Chapter 132B: Section 1. Title;
purpose.
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Section 1. This
chapter shall be known and may be cited as the Massachusetts Pesticide
Control Act.
The purpose of this chapter is to conform the laws of the commonwealth
to the Federal Insecticide, Fungicide, and Rodenticide Act, Public
Law 92-516, as amended, and the regulations promulgated thereunder
and to establish a regulatory process in the commonwealth. The exclusive
authority in regulating the labeling, distribution, sale, storage,
transportation, use and application, and disposal of pesticides in
the commonwealth shall be determined by this chapter.
Chapter 132B: Section 2. Definitions.
Section 2. Unless the context clearly requires otherwise, when used
in this chapter, the following words and phrases shall have the following
meanings:ª
"Active ingredient", in the case of a pesticide other than
a plant regulator, defoliant, or desiccant, an ingredient which prevents,
destroys, repels, or mitigates any pest; in the case of a plant regulator,
an ingredient which through physiological action accelerates or retards
the rate of growth or rate of maturation or otherwise alters the behavior
of ornamental or crop plants or the products thereof; in the case
of a defoliant, an ingredient which causes the leaves or foliage to
drop from a plant; and, in the case of a desiccant, an ingredient
which artificially accelerates the drying of plant tissue.
"Administrator", the Administrator of the United States
Environmental Protection Agency.
"Adulterated", when used with reference to a pesticide,
any pesticide the strength or purity of which falls below the professed
standard of purity as expressed on its labeling under which it is
sold; a pesticide for which any substance has been substituted wholly
or in part; or a pesticide from which any valuable constituent has
been wholly or in part abstracted.
"Advisory council", a council established by regulations
adopted by the department for the purposes set forth in section five.
"Agricultural commodity", a plant, or part thereof, or animal
or animal product produced by a person primarily for sale, consumption,
propagation, or other use by man or animals.
"Animal", all vertebrate and invertebrate species, including
but not limited to man and other mammals, birds, fish and shellfish.
"Certified applicator", an individual who is certified under
the provisions of section ten as authorized to use or supervise the
use of any pesticide which is classified by the department as being
for restricted use.
"Private applicator", a certified applicator who uses or
supervises the use of any pesticide which is classified by the department
as being for restricted use for purposes of producing any agricultural
commodity on property owned or rented by him or his employer or if
applied without compensation other than trading of personal services
between producers of agricultural commodities on the land of another
person.
"Commercial applicator", a certified applicator, whether
or not he is a private applicator with respect to some users, who
uses or supervises the use of any pesticide which is classified by
the department as being for restricted use for any purpose or on any
land other than as provided in the preceding paragraph.
"Licensed applicator", an individual who is licensed under
the provisions of section ten as authorized to be present while pesticides
classified by the department as being for restricted use are being
applied under the direct supervision of a certified applicator, or
to use or to be present to supervise the use or land of another for
hire any pesticide classified by the department as being for general
use.
"Beneficial insects", insects which, during their life cycle,
are effective pollinators of plants, are parasites or predators of
pests, or are otherwise beneficial.
"Board", the pesticide board, established by section three.
"Commissioner", the commissioner of food and agriculture.
"Defoliant", a substance or mixture of substances intended
to cause the leaves or foliage to drop from a plant, with or without
causing abscission.
"Department", the department of food and agriculture.
"Desiccant", a substance or mixture of substances intended
to artificially accelerate the drying of plant tissue.
"Device", an instrument or contrivance, other than a firearm,
intended to hold or dispense a pesticide and used in conjunction with
a pesticide, the purpose of which is to trap, destroy, repel, or mitigate
any pest or any other form of plant or animal life, other than man
and other than bacteria, virus, or other micro-organism on or in living
man or other living animals, but not including equipment used for
the application of pesticides when sold separately therefrom.
"Director", the pesticides program director established
by section four.
"Distribution" or "Distribute", to offer for sale,
hold for sale, sell, barter, ship, deliver for shipment, or receive.
"Environment", includes water, air, land, and all plants
and man and other living animals therein, and the interrelationships
which exist among these.
"Federally registered pesticide", a pesticide which is registered
pursuant to FIFRA.
"FIFRA", the Federal Insecticide, Fungicide, and Rodenticide
Act, Public Law 92-516, as amended.
"Fungi" or "Fungus", non-chlorophyll-bearing thallophytes
of a lower order than mosses and liver-worts, as, for example, rusts,
smuts, mildews, molds, yeasts, and bacteria, except those on or in
living man or other living animals, and except those in or on processed
food, beverages, or pharmaceuticals.
"Imminent hazard", a situation in which the continued use
of a pesticide would result in unreasonable adverse effects on the
environment.
"Inert ingredient", an ingredient which is not active.
"Insect", a small invertebrate animal generally having the
body more or less obviously segmented, for the most part belonging
to the class insecta, comprising six-legged, usually winged forms,
as for example, moths, beetles, bugs, bees, flies, and their immature
stages, and to other allied classes of anthropods whose members are
wingless and usually have more than six legs, as for example, spiders,
mites, ticks, millipedes, and wood lice.
"Label", the written, printed, or graphic matter, on or
attached to, the pesticide or device or any of its containers or wrappers.
"Labeling", all labels and all other written, printed or
graphic matter accompanying the pesticide or device at any time, or
to which reference is made on the label or in literature accompanying
the pesticide or device, but shall not include publications of the
United States Environmental Protection Agency, the United States Department
of Agriculture, or Interior, or Health, Education and Welfare, state
experiment stations, state agricultural colleges, and other similar
federal or state institutions or agencies authorized by law to conduct
research or disseminate information in the field of pesticides, except
as otherwise provided by regulation of the department.
"Land", land and water areas, including airspace, and structures,
buildings, contrivances, and machinery appurtenant thereto or situated
thereon, fixed or mobile.
"Licensed pesticide dealer", a person who distributes pesticides
classified by the department as being for restricted use or pesticides
whose uses or distribution are further restricted by regulations adopted
by the department, with the approval of the board.
"Misbranded", (a) in the case of a pesticide or device,
if the labeling bears any statement, design, or graphic representation
relative thereto or to its ingredients which is false or misleading
in any particular;
(b) in the case of a pesticide or device, if it is an imitation
of, or is offered for sale under the name of, another pesticide or device;
(c) in the case of a pesticide
or device, if any word, statement, or other information required by or
under authority of FIFRA or this chapter to appear on the label or labeling
is not prominently placed thereon with such conspicuousness, as compared
with other words, statements, designs, or graphic matter in the labeling,
and in such terms as to render it likely to be read and understood by
the ordinary individual under customary conditions of purchase and use;
(d) in the case of a pesticide,
if it is contained in a package or other container or wrapping which does
not conform to standards established pursuant to FIFRA or this chapter;
e) in the case of a pesticide,
if it does not contain a label bearing the registration number assigned
under FIFRA to each establishment in which it was produced;
(f) in the case of a pesticide,
if the labeling accompanying it does not contain directions for use which
are necessary for effecting the purpose for which the product is intended
and if complied with, together with any requirements imposed under FIFRA
or this chapter, is adequate to protect health and the environment;
(g) in the case of a pesticide,
if its label does not contain a warning or caution statement which may
be necessary and if complied with, together with any requirements imposed
under FIFRA or this chapter, is adequate to protect health and the environment;
(h) in the case of a pesticide,
if its label does not bear an ingredient statement on that part of the
immediate container, and on the outside container or wrapper of the retail
package, if there be one, through which the ingredient statement on the
immediate container cannot be clearly read, which is presented or displayed
under customary conditions or purchase, except that a pesticide is not
misbranded if the administrator has permitted the ingredient statement
to be placed on another part of the container pursuant to FIFRA;
(i) in the case of a pesticide,
if its labeling does not contain a statement of the use classification
under which it is registered;
(j) in the case of a pesticide,
if there is not affixed to its container, and to the outside container
or wrapper of the retail package, if there be one, through which the required
information on the immediate container cannot be clearly read, a label
bearing the name and address of the producer, registrant, or person for
whom the pesticide is produced; the name, brand, or trademark under which
the pesticide is distributed; the net weight or measure of the content,
as required by the administrator; and the registration number assigned
to the pesticide by said administrator pursuant to FIFRA;
(k) in the case of a pesticide
containing any substance or substances in quantities highly toxic to man,
unless the label shall bear, in addition to any other matter required
by FIFRA or this chapter the skull and crossbones; the word "POISON"
prominently in red on a background of distinctly contrasting color; and
a statement of practical treatment, first aid or otherwise, in case or
poisoning by the pesticide; and (%93) in the case of a pesticide, if its
container does not bear a label, as required by the department pursuant
to this chapter.
"Nematode", invertebrate animals of the phylum nemathelminthes
and class nematoda, that is, unsegmented round worms with elongated, fusiform,
or sac-like bodies covered with cuticle, and inhabiting soil, water, plants
or plant parts. Nematodes may also be referred to as nemas or eel-worms.
"Person", an individual, association, partnership, corporation,
company, business organization, trust, estate, the commonwealth or its
political subdivisions, administrative agencies, public or quasi-public
corporation or body, or any other legal entity or its legal representative,
agent or assign, or a group of persons.
"Pest", an insect, rodent, nematode, fungus, weed, or any other
form of terrestrial or aquatic plant or animal life or virus, bacterium,
or other micro-organism, except viruses, bacteria or other micro-organisms
on or in living man or other living animal, which is declared to be a
pest by the administrator or by the department with the approval of the
board.
"Pesticide", a substance or mixture of substances intended for
preventing, destroying, repelling, or mitigating any pest, and any substance
or mixture of substances intended for use as a plant regulator, defoliant,
or desiccant; provided that the term "Pesticide" shall not include
any article that is a "new animal drug" within the meaning of
section 201 (w) of the Federal Food, Drug and Cosmetic Act (21 U.S.C.
s 321 (w), or that has been determined by the Secretary of the United
States Department of Health, Education and Welfare not to be a new animal
drug by a regulation establishing conditions of use for the article, or
that is an animal feed within the meaning of section 201 (x) of such act
(21 U.S.C. s 321 (x)).
"Plant regulator", a substance or mixture of substances intended,
through physiological action, to accelerate or retard the rate of growth
or rate of maturation, or to otherwise alter the behavior of plants or
the produce thereof, but shall not include substances to the extent that
they are intended as plant nutrients, trace elements, nutritional chemicals,
plant inoculants, and soil amendments. Also, the term "plant regulator"
shall not include any nutrient mixtures or soil amendments commonly known
as vitamin-hormone horticultural products, intended for improvement, maintenance,
survival, health, and propagation of plants, and as are not for pest destruction
and are nontoxic, nonpoisonous in the undiluted package concentration.
"Produce", to manufacture, prepare, compound, propagate, process
or repackage any pesticide or device.
"Producer", a person who manufactures, prepares, compounds,
propagates, processes or repackages any pesticide or device.
"Protect health and the environment" or "protection of
health and environment", protection against any unreasonable adverse
effects on the environment.
"Registrant", a person who has registered any pesticide pursuant
to the provisions of this chapter.
"Under the direct supervision of a certified applicator", unless
otherwise prescribed by its labeling, a pesticide shall be considered
to be applied under the direct supervision of a certified applicator if
it is applied by a competent person acting under the instructions and
control of a certified applicator who is available if and when needed,
and who is responsible for the pesticide applications made by that person,
even though such certified applicator is not physically present at the
time and place the pesticide is applied.
"Unreasonable adverse effects on the environment", an unreasonable
risk to man or the environment, taking into account the economic, social
and environmental cost and benefits of the use of any pesticide.
"Weed", a plant which grows where not wanted.
"Wildlife", vertebrate animals, excluding man, that are wild
by nature, including fish, birds, mammals, reptiles and amphibians.
Chapter 132B: Section 3. Pesticide board.
Section 3. There shall be within the department of food and agriculture
a pesticide board which shall consist of the commissioner of environmental
protection or his designee, the commissioner of food and agriculture or
his designee, the director of the division of food and drugs or his designee,
the commissioner of fisheries, wildlife and recreational vehicles or his
designee, the commissioner of environmental management or his designee,
the commissioner of public health or his designee, and seven persons appointed
by the governor one of whom shall have been engaged in the commercial
production of a plant-related agricultural commodity for at least the
preceding five years on land owned or rented by him, one of whom shall
have been an active commercial applicator of pesticides for at least the
preceding five years, one of whom shall have expertise in the health effects
of pesticide use, one of whom shall be a physician, one of whom shall
be experienced in the conservation and protection of the environment,
and two of whom shall represent the public at large. The commissioner
of food and agriculture or his designee shall be chairman of the board.
The appointive members of the board shall receive fifty dollars for each
day or portion thereof spent in the discharge of their official duties
and shall be reimbursed for their necessary expenses incurred in the discharge
of their official duties. Each appointive member shall be appointed for
a term of four years, except for persons appointed to fill vacancies who
shall serve for the unexpired term. Any member shall be eligible for reappointment.
The board shall hold an annual meeting in March, and regularly at three
other times annually, and from time to time at the call of the chairman
or upon the request of any two members.
Seven members of the board shall constitute a quorum. The board may, by
vote of a majority of its members then in office, adopt rules and regulations
for the conduct of its business. Rules and regulations adopted may be
amended or repealed by a two-thirds vote of its members.
The board in addition to other powers conferred in this chapter shall
advise the commissioner of food and agriculture with respect to the implementation
and administration of this chapter.
The pesticides program director established by section four shall attend
meetings of the board, shall serve as secretary thereto, but shall have
no vote in its deliberation.
Chapter 132B: Section 3A. Pesticide board subcommittee.
Section 3A. A subcommittee of the pesticide board shall be established
and shall be charged with the responsibility of registering all pesticides
for use in the commonwealth pursuant to section seven. Said subcommittee
shall also be responsible for issuing all experimental use permits pursuant
to section eight. Said subcommittee shall consist of five members, the
director of the division of food and drugs, who shall act as chairman,
the commissioner of the department of food and agriculture or his designee,
the commissioner of the department of environmental management or his
designee, the commissioner of public health or his designee, and one person
appointed by the governor, who shall have been actively engaged in commercial
application of pesticides for at least the preceding five years who shall
be a member of the pesticide board. Any person aggrieved by the decision
of said subcommittee may appeal any such decision according to the provisions
of section thirteen.
Chapter 132B: Section 4. Programs director.
Section 4. The pesticide regulatory functions conferred upon the department
under the provisions of this chapter shall be under the administrative
supervision of a pesticide programs director who shall be qualified by
training and experience to perform such duties. Said director shall be
appointed by the commissioner with the approval of the board for a term
of five years. Said person shall be eligible for reappointment, but may
be removed by the commissioner for cause. The position of director shall
not be subject to the provisions of chapter thirty-one or the provisions
of section nine A of chapter thirty. If an employee serving in a position
which is classified under chapter thirty-one or in which he has tenure
by reason of section nine A of chapter thirty shall be appointed director,
he shall upon termination of his service as director be restored to the
position which he held immediately prior to such appointment or to a position
equivalent thereto in salary grade in the same state department; provided,
however, that his service in such unclassified position shall be determined
by the civil service commission in administering chapter thirty-one. Such
restoration shall be made without impairment of his civil service status
or tenure under section nine A of chapter thirty and without loss of seniority,
retirement, or other rights to which uninterrupted service in such prior
position would have entitled him. During the period of such appointment,
the person so appointed from a position in the classified service shall
be eligible to take any competitive promotional
examination for which he would otherwise have been eligible.
Chapter 132B: Section
5. Powers and duties of department.
Section 5. The department with the approval of the board may cooperate
and enter into cooperative agreements and contracts with appropriate federal
agencies, the agencies of other states, interstate agencies, other agencies
of the commonwealth or its political subdivisions, or private or nonprofit
organizations in matters related to the purposes of this chapter or FIFRA,
and may receive from and dispense to such agencies such funds as may be
available for the purposes of this chapter and FIFRA.
The department with the approval of the board shall take all action necessary
or appropriate to secure for the commonwealth the benefits of FIFRA and
other pertinent federal legislation.
The department with the approval of the board and subject to the provisions
of chapter thirty A may from time to time adopt, amend or repeal such
forms, regulations and standards as it deems necessary for the implementation
and administration of this chapter.
The department with the approval of the board shall by regulation establish
and formulate procedures whereby the advice or relevant advisory councils
shall be sought incident to the development of policy or the adoption,
amendment or repeal of regulations related to the administration of this
chapter.
The department may with the approval of the board declare such pests and
devices as it deems necessary to be subject to the provisions of this
chapter.
Chapter 132B: Section
6. Prohibited distributions, etc.
Section 6. No person shall distribute a pesticide not registered pursuant
to the provisions of section seven. This prohibition shall not apply to
the transfer of a pesticide from one plant or warehouse to another plant
or warehouse and used solely at such plant or warehouse as a constituent
part to make a pesticide which is or will be registered pursuant to the
provisions of this act; or the distribution of a pesticide pursuant to
the provisions of an experimental use permit issued under section eight.
No person shall distribute a pesticide classified by the department as
being for restricted use to a person not appropriately certified to use
that pesticide. This prohibition shall not apply to the distribution of
a pesticide to a competent individual acting under the direct supervision
of an individual appropriately certified to use that pesticide.
No person shall distribute a pesticide that is adulterated or misbranded
or a device that is misbranded.
No person shall distribute any pesticide unless it is in the registrant's
or the producer's unbroken, unopened, and sealed container. This prohibition
shall not apply to the repackaging of pesticides because of damage in
transit.
No person shall distribute any pesticide that does not conform to any
requirement of its registration or permit.
No person shall distribute any pesticide in containers that are unsafe
due to damage or design.
No person shall detach, alter, deface, or destroy, wholly or in part,
any label or labeling provided for in this chapter or in regulations adopted
thereunder, or to add any substance to, or take any substance from, a
pesticide in a manner that may defeat the purposes of this chapter or
regulations adopted thereunder.
No person shall distribute, handle, dispose of, discard, or store any
pesticide or pesticide container in such a manner as to cause injury to
humans, vegetation, crops, livestock, wildlife, beneficial insects, to
cause damage to the environment, or to pollute or contaminate any water
supply, waterway, groundwater or waterbody.
No person shall act in the capacity of, or advertise as, or assume to
act as a licensed pesticide dealer unless that person is in possession
of a currently valid license issued by the department pursuant to the
provisions of section nine. No person possessing a pesticide dealer license
shall violate or allow to be violated any term, condition, restriction
or provision of said license.
No person shall purchase or use a pesticide that is not registered by
the department under the provisions of section seven; provided, however,
that this prohibition shall not apply to the use of a pesticide consistent
with the terms of an experimental use permit issued by the department
under the provisions of section eight.
Chapter 132B: Section 6A. Prohibited activities.
Section 6A. No person shall use a registered pesticide in a manner that
is inconsistent with its labeling or other restrictions imposed by the
department. No person shall use a pesticide which is the subject of an
experimental use permit inconsistently with the terms and conditions of
said permit.
No individual certified or licensed as a pesticide applicator shall violate
any provision, condition, term or restriction of his certification or
license.
No person shall use a pesticide that has been classified by the department
as being for restricted use unless he is an appropriately certified private
applicator, an appropriately certified commercial applicator, or a competent
individual acting under the direct supervision of an appropriately certified
applicator.
Chapter 132B: Section 6B. Herbicides; application by utilities;
notice.
Section 6B. No gas, electric, telephone or other utility company licensed
to do business in the commonwealth shall spray, release, deposit, or apply
any herbicide to any land which it owns or as to which it holds an easement
or similar right and over which it maintains power, high tension or other
lines without first notifying, by registered mail, the mayor, city manager
or chairman of the board of selectmen and the conservation commission
in the city or town where such land lies twenty-one days prior to such
spraying.
The notice shall contain the following information: the approximate dates
on which such spraying shall commence and conclude; provided, however,
that said spraying shall not commence more than ten days prior nor conclude
more than ten days after said approximate dates; the type of herbicide
to be used and a copy of all information supplied by the manufacturers
thereof to the utility relative thereto; the name and address of the contractor
who will make the application for the utility or the name, title and business
address of the employee who will be responsible for carrying out the application
if it is to be made by utility company employees.
Chapter 132B: Section
7. Registration.
Section 7. Pesticides, including pesticides that are federally registered
may be registered by the subcommittee of the pesticide board for use in
the commonwealth.
Each applicant for the registration of a pesticide shall annually file
with the subcommittee an application providing thereon such information
as said subcommittee shall require. Said subcommittee may require of applicants
for pesticide registrations any information that it deems necessary to
determine whether, or how, the pesticide should be registered.
An applicant desiring to register or reregister a pesticide shall pay
such registration fee, not to exceed twenty-five dollars, as said subcommittee
may by regulation require. All pesticide registrations shall be for a
period not to exceed one year.
In the event that any person files with said subcommittee an application
to reregister a pesticide which is registered on the date of application
for reregistration and pays the appropriate fee therewith, such registration
shall be deemed to be in effect until the earlier of the following two
events shall occur, ninety days have elapsed after the registration was
scheduled to expire, or the subcommittee notifies the applicant for reregistration
that the registration has been renewed, modified or denied.
If said subcommittee determines that a pesticide, when used in accordance
with its directions for use, warnings and cautions and for the uses for
which it is registered, or for one or more such uses, or in accordance
with a widespread and commonly recognized practice, will not generally
cause unreasonable adverse effects on the environment, it may classify
the pesticide, or the particular use or uses of the pesticide to which
the determination applies, as being for general use.
If said subcommittee determines that a pesticide, when used in accordance
with its directions for use, warnings and cautions and for the use for
which it is registered, or for one or more of such uses, or in accordance
with a widespread and commonly recognized practice, may cause, without
additional restrictions, unreasonable adverse effects on the environment,
including injury to the applicator, it may classify the pesticide or the
particular use or uses to which the determination applies, for restricted
use.
Said subcommittee shall register a pesticide if it determines that its
composition is such as to warrant the proposed claims for it; its labeling
and other material required to be submitted comply with the requirements
of this chapter; it will perform its intended function without unreasonable
adverse effects on the environment; and when used in accordance with widespread
and commonly recognized practice it will not generally cause unreasonable
adverse effects on the environment.
As part of the registration of a pesticide, said subcommittee may require
that the pesticide be colored or discolored if such requirement is necessary
for the protection of health or the environment, may classify for restricted
use any pesticide or pesticide use classified for general use under FIFRA,
and may include in the registration such conditions of use as it deems
necessary.
If at any time it appears that a pesticide registration does not comply
with the provisions of FIFRA, this chapter, or rules and regulations promulgated
thereunder, or when used as registered, or a pesticide may cause unreasonable
adverse effects on the environment, or a registered pesticide is an imminent
hazard, the subcommittee as established in section three A, may, forthwith
by an order suspend the registration of such pesticide. Notification of
such order shall be sent to the applicant and shall be a public record.
Chapter 132B: Section
8. Experimental use permits.
Section 8. Any person may apply to the subcommittee for an experimental
use permit for a pesticide. Each applicant for an experimental use permit
shall file with the department an application providing thereon such information
as the department may require. Each applicant for an
experimental use permit shall pay such registration fee, not to exceed
twenty-five dollars, as the department may by regulation require.
The subcommittee may grant an experimental use permit to an applicant
therefor if it determines that the applicant needs such a permit to accumulate
information necessary to register a pesticide.
The subcommittee shall refuse to grant an experimental use permit if it
believes that the pesticide applications to be made under the proposed
terms and conditions may cause unreasonable adverse effects on the environment,
or if it believes that the applicant or person to conduct the experimentation
is not competent to conduct such experimentation without causing unreasonable
adverse effects on the environment.
The subcommittee shall revoke any experimental use permit, at any time,
if it believes that its terms or conditions are being violated, or that
its terms and conditions are inadequate to avoid unreasonable effects
on the environment.
Chapter 132B: Section 9. Dealers' licenses.
Section 9. A person may apply to the department to be a licensed pesticide
dealer. Said applicants shall submit to the department a statement supplying
such information thereon as the department may require. An applicant for
such a license shall pay such registration fee, not to exceed twenty-five
dollars, as the department may by regulation require, for each principal
distribution center, branch outlet, or direct sales representative of
an out-of-state distributor.
In the event that any person files with the department an application
to renew a pesticide dealer's license which is in effect on the date of
application for renewal and pays the appropriate fee therewith, such license
shall be deemed to be in effect until the earlier of the following two
events shall occur: ninety days have elapsed after the license was scheduled
to expire; or the department notifies the applicant for renewal that the
license has been renewed, modified or denied.
The department shall grant a pesticide dealer's license for a term not
to exceed one year. The department shall grant such licenses subject to
such terms, conditions and restrictions as it deems necessary or appropriate.
The department shall refuse to grant a pesticide dealer's license if it
finds that the proposed distributor or his agent has acted in a manner
inconsistent with the purposes for requirements of this chapter or FIFRA.
The department shall revoke any pesticide dealer's license, at any time,
if it finds that its terms, conditions or restrictions are being violated
or are inadequate to avoid unreasonable adverse effects on the environment.
As part of its determination to refuse to grant, or to revoke, a pesticide
dealer's license the department may specify a period, not to exceed two
years, within which the applicant may not reapply for a pesticide dealer's
license. In the event that the department has specified a period for nonapplication,
the department may later, at its discretion, shorten or waive such period.
Chapter 132B: Section
10. Certificates and licenses; issuance, suspension and revocation.
Section 10. Certifications and licenses to use pesticides may be issued
to individuals by the department in accordance with the provisions, standards
and procedures contained in and established pursuant to this chapter.
Each certification and license issued pursuant to this section shall be
valid only for the individual to whom it is issued, may not be transferred,
and shall not continue in force and effect after the death of the individual
to whom it is issued. All certifications and licenses shall be for a period
not to exceed one year, unless sooner revoked or suspended.
The department may authorize individuals to use pesticides in classifications
as a certified commercial applicator, a certified private applicator,
and a licensed applicator provided, however, that the department shall
require that all persons who are applicators of pesticides in public and
private places used for human occupation and habitation, except residential
properties with three or less dwelling units, shall be so licensed or
certified with such special designation.
The department may establish such categories and subcategories as it deems
necessary to restrict or condition the scope of pesticide use permitted
within each classification. The department may establish such standards
and criteria, take such action and impose such requirements as it deems
necessary to determine or redetermine levels of competence and experience
to qualify for each classification and each category and subcategory thereof.
Each applicant for a certification or license shall annually file with
the department an application providing thereon such information as the
department may require.
Each applicant desiring to be certified or licensed shall annually pay
such application fee, not to exceed twenty dollars, as the department
may by regulation require.
In the event that any individual files with the department an application
to renew a certification or license which is in effect on the date of
the application for renewal and pays the appropriate fee therewith, such
certification or license shall be deemed to be in effect until the earlier
of the following two events shall occur: ninety days have elapsed after
the certification or license was scheduled to expire; or the department
notifies the applicant that the certification or license has been renewed,
modified or denied.
The department may issue a certification or license to an applicant therefor
if it determines that the applicant satisfies the criteria established
for that certification or license and the category or subcategory for
which the certification or license is sought. The department may thus
issue a certification or license subject to such terms, conditions, restrictions
and requirements as it deems necessary. The department may require that
an applicant for a certification or license has obtained and maintains
in effect a contract of liability insurance conforming to regulations
established by the department.
The department shall prior to issuing a certificate or license evaluate
each applicant to determine his competence with respect to the use and
handling of pesticides, or to the use and handling of the pesticides or
class of pesticides covered or to be covered by said individual's certification
or license. Said evaluation shall include such examinations as the department
may require. Examinations may be taken only upon payment of a fee, not
to exceed ten dollars for each examination given, as the department may
require by regulation approved by the board.
The department may revoke, suspend, cancel or deny any certification or
license, or any class thereof, at any time, if it believes: that the terms
or conditions thereof are being violated or are inadequate to avoid unreasonable
adverse effects on the environment, or that the holder of or applicant
for the certification or license has violated any provision of this chapter
or FIFRA or any regulation, standard, order, license, certification or
permit issued thereunder or that the holder or applicant for said certification
or license is not competent with respect to the use and handling of pesticides,
or to the use and handling of the pesticides or class of pesticides covered
by said individual's certification or license. Any person whose certification
or license is suspended or revoked hereunder shall also be subject to
such other punishment, penalties, sanctions or liabilities as may be provided
by law. As part of its determination to refuse to grant, to revoke, or
to suspend a certification or license the department may specify a period,
not to exceed two years, within which the applicant may not reapply for
a certification or license. In the event that the department has refused
to issue or has revoked or suspended such a certification or license,
and has specified a period for non-application, the department may later,
at its discretion, shorten or waive such period.
The department may, at its discretion, appropriately license or certify
any person possessing a valid certification or license, or equivalent
rating, issued by the pesticide control agency of any other state or the
federal government whose standards for the issuance of such rating are
not less stringent than those of the department, provided that the pesticide
control agency of that state extends similar privileges to persons so
licensed or certified by the commonwealth. Any person so licensed or certified
shall be subject to the annual fee requirements of this section.
Chapter 132B: Section
11. Protection of health and environment; regulations.
Section 11. The department shall by regulation establish such restrictions
and prohibitions upon the disposal and storage of pesticides, packages
and containers of pesticides, and materials used in the testing or application
of pesticides as it deems necessary to protect health and the environment.
Chapter 132B: Section
12. Departmental orders; hazards; adverse environmental effects; violations.
Section 12. Whenever it appears to the department that there is an imminent
hazard, or a potential threat of unreasonable adverse effect on the environment,
or a violation or a potential violation of any provision of this chapter
or of any license, certification, permit, order, registration or regulation
issued or adopted thereunder, the department may issue to such persons
as it deems necessary an order requiring the production of samples and
records, or an order imposing restraints on or requiring such action,
as it deems necessary. Issuance of an order under this section shall not
preclude and shall not be deemed an election to forego any action to recover
for damages to interests of the commonwealth or, under section fourteen
of this act, for civil penalties or for criminal fines and penalties.
Chapter 132B: Section
13. Adjudicatory hearings.
Section 13. Any person aggrieved by a determination by the department
to register or not to register a pesticide, to suspend a pesticide registration,
to issue, not issue or revoke an experimental use permit, to issue, deny,
revoke or suspend any certification or license, or to issue an order,
made under the provisions of this chapter, may request an adjudicatory
hearing before the board under the provisions of chapter thirty A. Said
determination shall contain a notice of a right to request a hearing and
may specify a time limit, not to exceed twenty-one days, within which
said persons may request a hearing before the board under the provisions
of said chapter thirty A. If no such request is timely made, the determination
shall be deemed assented to. If a timely request is received, the board
shall within a reasonable time hold a hearing and comply with the provisions
of said chapter thirty A. In hearings so held the board shall designate
a hearing officer to preside over the hearing, to assemble an official
record thereof, and to render a tentative decision as provided in paragraph
(7) of section eleven of said chapter thirty A. The board shall make the
final decision on the basis of the official record and tentative decision
so rendered.
If, in making a determination which under the provisions of the preceding
paragraph may be the subject of an adjudicatory hearing, the department
finds that an imminent hazard or an unreasonable adverse effect on the
environment could result pending the conclusion of the adjudicatory hearing
requested thereon, the department may order that the determination shall
become provisionally effective and enforceable immediately upon issuance,
and shall remain so notwithstanding and until the conclusion of any adjudicatory
hearing procedures timely requested. In the event that the department
has thus made a determination provisionally effective, it may later, at
its discretion, shorten the duration of or waive such order.
As part of a final decision in an adjudicatory proceeding held under the
provisions of this section, the board may specify a reasonable time period
within which the matter may be barred from further proceedings before
the department or the board. In the event that the board has so specified
a time period, the board may later, at its discretion, shorten or waive
such period.
A person aggrieved by a final adjudicatory determination of the board
may obtain judicial review thereof pursuant to the provisions of chapter
thirty A.
Chapter 132B: Section 14. Violations; penalties; injunctions.
Section 14. Any person who knowingly violates any provision of section
six shall be punished by a fine of not more than twenty-five thousand
dollars, or by imprisonment for not more than one year, or both such fine
and imprisonment, for each such violation, or shall be subject to a civil
penalty not to exceed twenty-five thousand dollars for each such violation,
which may be assessed in an action brought on behalf of the commonwealth
in any court of competent jurisdiction. Each day of violation shall constitute
a separate offense.
Any person who violates any provision of section six A or six B or who
violates any regulation adopted under the provisions of this chapter,
(a) shall be punished by a fine of not more than one thousand dollars,
or imprisonment for not more than six months, or both such fine and imprisonment,
for the second and each subsequent offense knowingly committed, or (b),
shall be subject to a civil penalty not to exceed ten thousand dollars
for any offense, which may be assessed in an action brought on behalf
of the commonwealth in any court of competent
jurisdiction. Each day of violation shall constitute a separate offense.
Any person who violates any order issued under the provisions of this
chapter, (a) shall be punished by a fine of not more than twenty-five
thousand dollars or imprisonment for not more than two years, or both
such fine and imprisonment, for each violation knowingly committed, or
(b) shall be subject to a civil penalty not to exceed twenty-five thousand
dollars for each violation, which may be assessed in an action brought
on behalf of the commonwealth in any court of competent jurisdiction.
Each day of violation shall constitute a separate offense.
The superior court shall have jurisdiction to enjoin violations of, or
grant such relief as it deems necessary or appropriate to secure compliance
with, any provision of this chapter or the terms of an order, license,
certification, registration, permit or regulation issued or adopted thereunder.
Chapter 132B: Section 15. Departmental personnel, agents and inspectors;
powers; evidence; confidential information.
Section 15. For the purpose of administering the provisions of this chapter,
personnel or agents of the department and its inspectors shall have access
and entry at reasonable times to any premises pursuant to a search warrant
duly issued by a court of competent jurisdiction, provided that no sample
of a pesticide obtained in the course of such inspection and no result
of any analysis or test of any such sample shall be received in evidence
in any criminal proceeding under this chapter unless the sample shall
have been taken and the analysis or test conducted by a chemist in the
agricultural extension service of the University of Massachusetts authorized
by the department. Personnel or agents of the department may take such
samples as are reasonably necessary to accomplish the purpose of their
investigation and inspection. Any information relating to secret processes,
methods of manufacture, production or use obtained in the course of such
inspection shall be kept confidential upon request, when not required
to be disclosed incident to the enforcement of this chapter. This section
shall not be construed to abrogate any of the powers and duties, as defined
by general or special law or common law, of any agency or political subdivision
of the commonwealth.
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