Request By:
Thomas M. Troth, Esq.
General Counsel
Kentucky Department of Agriculture
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning KRS Chapter 217B which deals with "Pesticide Use and Application."
You state that pursuant to a section of the federal law, specifically 7 USCA § 136b, the Kentucky Department of Agriculture has established a certification system for persons who purchase, use or apply restricted-use pesticides. Under the state-federal agreement, so long as the Department adequately regulates restricted-use pesticides, the state retains its enforcement primacy and continues to receive federal funding.
Under KRS 217B.530(8) the examination for the structural pest control license must also serve as the certification test. The Department has a separate certification procedure for those who wish to purchase restricted-use pesticides for noncommercial uses, an administrative regulation designated as 302 KAR 31:015, which has been authorized and approved by the federal government as part of Kentucky's plan.
Some licensed structural pest control applicators and managers argue that KRS 217B.530(8) requires the licensing examination to be the only way to meet the federal certification requirement in Kentucky. The position of the Department of Agriculture has been that the purpose of KRS 217B.530(8) is to insure that commercial applicators and managers need to pass only one comprehensive examination to provide complete pest control services. Nothing in the statute prohibits the Department from certifying noncommercial users of pesticides with a separate test.
Although KRS 217B.515 requires anyone engaging in structural pest control to obtain a license, you refer to KRS 217B.500(13), (14), and (15) which you say define "license" as the authorization to manage a pest control company. In your opinion, someone who applies pesticides to his own home or business is not running a pest control company and does not need a structural pest control license. That person does, however, need certification if he wants to purchase, use or apply a restricted-use pesticide for his personal use and 302 KAR 31:015 enables him to use such a pesticide for that purpose.
The commercial license holders are saying that the state certification process is a license for employees of institutions or businesses to perform pest control work. They maintain that this special "licensing" is contrary to KRS 217B.515. In your opinion, it is not the Department's job to license employees such as hospital janitors or maintenance crews who occasionally spray buildings for pests. As long as the employee is not operating a structural pest control company he is outside the licensing statute. Like any other nonprofessional the employee may buy and use nonrestricted pesticides without obtaining any sort of license or permit from the state. The state certification process merely allows him to purchase and use those pesticides restricted by the federal government.
THE QUESTION PRESENTED
Your question to this Office is whether someone who is not a licensed structural pest control applicator or manager pursuant to KRS 217B.500 to KRS 217B.585 may be certified by the Department of Agriculture to purchase, use or apply restricted-use pesticides in noncommercial situations pursuant to 302 KAR 31:015?
OPINION OF THE ATTORNEY GENERAL
Both the state and federal governments have enacted statutes and regulations pertaining to pesticide use and application and pesticide control. The state, for example, has enacted statutes dealing with the licensing of those persons engaged in the business of structural pest control. The state has also provided in part in KRS 217B.530(8) that the commercial structural pest control examination shall also serve as the examination necessary to fulfill federal commercial pesticide applicator certification requirements.
Under the Federal Pesticide Control Provisions, 7 USCA § 136b deals with the use of restricted use pesticides and state certification of applicators of pesticides. The state of Kentucky, through its Department of Agriculture has established under this provision a federally approved program concerning a certification system for persons who purchase, use or apply restricted use pesticides. The state retains enforcement primacy and continues to receive federal funding under this procedure. The state's procedure is set forth in 302 KAR 30:015, which was enacted pursuant to the authority granted in KRS 217B.050. That statute gives the Department of Agriculture the authority to issue regulations to carry out the provisions of KRS Chapter 217B and to prescribe methods to be used in the application of pesticides.
The state therefore has provisions pertaining to the licensing of commercial structural pest control operators, including the certification of commercial pesticide applicators under federal law [KRS 217B.515 and KRS 217B.530(8)] and provisions pertaining to the certification of persons who purchase, use or apply restricted-use pesticides in noncommercial situations [302 KAR 31:015].
While KRS 217B.515 requires anyone engaging in structural pest control to obtain a license that provision is part of the statutory scheme applicable to commercial structural pest control [KRS 217B.500 to KRS 217B.585]. Those provisions do not apply to a person who is not running a commercial pest control operation and such a person does not need to obtain a structural pest control license. Such a person, however, does need certification even if he wants to purchase, use or apply a restricted use pesticide for his personal use. 302 KAR 31:015 enables that person to obtain the certification he needs to use the restricted use pesticides in noncommercial situations. Note by way of comparison, the provisions of 7 USCA § 136i (b) that when establishing or approving standards for licensing or certification, the administrator shall establish separate standards for commercial and private applicators.
Part of the problem here seems to involve dissatisfaction among some commercial structural pest control operators and others because the licensing requirements applicable to the commercial structural pest control operators are much more stringent than the certification procedures applicable to those persons who want to use restricted use pesticides in personal and noncommercial situations. Whether a stronger administrative regulation relative to the certification process is needed or whether statutory changes should be made are beyond the scope of this opinion. We can only deal with the validity of what has been done under the existing statutes and regulations.
In conclusion, it is our opinion that under the existing statutes and regulations a person who is not a licensed commercial structural pest control applicator or manager pursuant to KRS 217B.500 to KRS 217B.585 may be certified by the State's Department of Agriculture to purchase, use or apply restricted use pesticides in noncommercial situations under 302 KAR 31:015.