The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed amendment to chapter ATCP 30, Wis. Adm. Code, relating to chloropicrin and metam sodium soil fumigants.

DATCP will hold two public hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until Friday, February 9, 2007 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, by email to jeff.postle@datcp.state.wi.us or online at https://apps4.dhfs.state.wi.us/admrules/public/Home.

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling (608) 224-4503 or emailing jeff.postle@datcp.state.wi.us. Copies will also be available at the hearings. To view the proposed rule online, go to:

https://apps4.dhfs.state.wi.us/admrules/public/Home

To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator Keeley Moll at the address above, by emailing to Keeley.Moll@datcp.state.wi.us or by telephone at (608) 224-5039.

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by January 12, 2007, by writing to Jeff Postle, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone (608) 224-4503. Alternatively, you may contact the DATCP TDD at (608) 224-5058. Handicap access is available at the hearings.

Tuesday, January 23, 2007

2:00 p.m. to 5:00 p.m.

Wis. Dept. of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive

Madison, WI 53718

Tuesday, January 30, 2007

3:00 p.m. to 7:00 p.m.

Elizabeth Inn

Highway 54 and 51

Stevens Point, WI 54481

This rule regulates the use of soil fumigant pesticides containing chloropicrin or metam sodium active ingredients. This rule does all of the following:

Creates new rules to regulate the use of chloropicrin soil fumigants.

Modifies current rules regulating the use of metam sodium soil fumigants. Among other things, this rule relaxes current post-application monitoring requirements and current setback requirements for “tarped" applications.

Statutory authority:   ss. 93.07 (1), and 94.69 (1) (i), Stats.

Statutes interpreted:   s. 94.69 (1) (i), Stats.

The Wisconsin Department of Agriculture, Trade and Consumer Protection (“DATCP") has general authority to adopt rules interpreting statutes under its jurisdiction (see s. 93.07 (1), Stats.). DATCP is specifically authorized to adopt rules under s. 94.69 (1) (i), Stats., to regulate the use of pesticides.

DATCP administers Wisconsin's pesticide laws. Chloropicrin and metam sodium are soil fumigant pesticides, used mainly by potato growers to control nematodes. Under current DATCP rules, persons using metam sodium soil fumigants must take certain steps to prevent human exposure to volatilized fumigant (there are no equivalent rules for chloropicrin applications). Under current metam sodium rules:

Applicators must be properly certified.

No agricultural application may be made within ¼ mile of a hospital, nursing home, jail or prison, or within ¼ mile of a school that will be in session during the application or within 48 hours after the application.

Agricultural application sites must be covered by a tarp or other impermeable barrier, except when the soil fumigant is injected into the soil or applied by specified chemigation procedures. Application by knife rig injection is prohibited when soil temperatures are too high.

Applicators must pre-notify county public health authorities, and neighbors within ¼ mile, prior to any “chemigation" application. “Chemigation" applications must comply with specific rule standards.

Applicators must monitor application sites after the application, and must take appropriate steps to prevent pesticide drift. Applicators must notify Wisconsin emergency management if it appears that pesticide drift may contact residences or public buildings.

Applicators must keep specified records related to metam sodium applications.

This rule regulates chloropicrin applications in the same way that current rules regulate metam sodium applications (see above). This rule also modifies current metam sodium regulations as follows (the same regulations will apply to chloropicrin):

For “tarped" agricultural applications, this rule reduces the required minimum setback from schools, hospitals, nursing homes, jails and prisons from 1/4 mile to 1/8 mile. For “untarped" agricultural applications, the required minimum setback remains at 1/4 mile.

The setback requirements applicable to schools are also made applicable to licensed daycare facilities. An exception is provided for an application to a plant nursery that was in existence prior to the first date the daycare facility was licensed if the nursery operator provides at least 24 hours prior notice of the application to the daycare facility operator.

This rule relaxes current follow-up monitoring requirements. Under current rules, a certified applicator must inspect the application site 4-6 hours after the application is completed and again 9-12 hours after the application is completed. Under this rule, a certified applicator must only conduct one follow-up inspection, within one hour of sunset on the day of application.

This rule updates current emergency government references, and makes other minor editorial changes.

The U.S. Environmental Protection Agency (EPA) regulates pesticides under the Federal Insecticide, Fungicide and Rodenticide Act. Pesticides must be registered with EPA. EPA registers pesticides and pesticide labels for specific uses. The pesticide manufacturer must provide safety, environmental and other data to support the registration. Pesticide labeling must conform to the EPA registration. Federal and state law prohibit sale or use inconsistent with label directions. Wisconsin and other states work with EPA to assure proper use and handling of pesticides.

States may regulate pesticide applications within their own territory. States may act on their own authority (independent of EPA), and may establish use restrictions that go beyond federal label restrictions. Wisconsin currently has restrictions on the use of metam sodium pesticides that go beyond federal label restrictions.

Other states, like Wisconsin, regulate pesticide applications generally. However, none of the states surrounding Wisconsin has adopted specific requirements for metam sodium or chloropicrin applications, beyond requirements specified on the federally-approved pesticide labels.

Businesses Affected

This rule regulates commercial pesticide applicators and agricultural producers that apply or receive applications of metam sodium and chloropicrin soil fumigants. Many of the regulated businesses are small businesses, but others are large. Most of the regulated farmers are potato growers.

This rule protects neighboring farms and businesses from adverse effects of improper soil fumigant applications. Many of the protected businesses are small businesses.

Effects on Business

This rule imposes new regulations on the use of chloropicrin soil fumigants (see above). Approximately 71,000 acres of potatoes were planted in Wisconsin in 2004. Chloropicrin is currently applied on approximately 2,000 acres of potatoes and 25 acres of state-owned seedling nurseries in Wisconsin. Chloropicrin applications are made by commercial pesticide applicators that have the equipment and expertise to handle and apply chloropicrin. Chloropicrin-treated acreage is expected to increase due to pest problems and the efficacy of chloropicrin products.

DATCP estimates that this rule will cost $8,000 to $12,000 per year for the industry as a whole, mainly for increased costs of applying chloropicrin to approximately 2,000 acres of potatoes. Increased pesticide applicator costs will generally be passed on to farmers. Most of the farms that use chloropicrin are small businesses, but the single largest user (accounting for approximately 25% of the treated acreage) is not a small business.

This rule relaxes some current requirements related to metam sodium applications (post-application inspection requirements and setbacks for “tarped" applications). Farmers and pesticide application businesses that apply metam sodium soil fumigants may experience a small decrease in costs as a result of these changes.

By establishing clear application standards and procedures, this rule protects neighboring farms, businesses and individuals from improper applications. It also helps protect complying pesticide users from liability for offsite movement.

This rule applies to large and small businesses alike. An exemption for small business would undermine the effectiveness of the rule in preventing human exposure to metam sodium and chloropicrin. This rule will not have a significant adverse economic impact on small business. Therefore, it is not subject to the delayed small business effective date provision in s. 227.22 (2) (e), Stats.

This rule will not have a significant fiscal impact on Wisconsin state or local government. DATCP will incur some costs for compliance monitoring. However, DATCP expects to absorb those costs. The fiscal estimate is based on the current use of chloropicrin in Wisconsin.