New Legislation Regarding Herbicide Application

HB 320 was signed into law earlier this year and took effect July 1, 2024.

As a result of the 2024 General Assembly session, Virginia has new legislation regarding unpaid volunteers utilizing nonrestricted herbicides to treat invasive plants on properties owned by local political subdivisions. House Bill 320 was passed in 2024 and was incorporated into the Virginia Pesticide Control Act under paragraph F of § 3.2-3931. It does not require that unpaid volunteers be certified when utilizing nonrestricted herbicides for the sole purpose of controlling invasive plants or noxious weeds, as that term is defined in § 3.2-800, with the express authorization of a local political subdivision (i.e. county or city), on properties owned by that local political subdivision.

For more information, go to: https://drive.google.com/file/d/16wEe-dE6VNjltqeuu7AphWe39yjJVBwo/view *

* Note that this document was reviewed by the Virginia Department of Agriculture and Consumer Services.

__________________________

LAWS AND REGULATIONS REGARDING VOLUNTEERS APPLYING HERBICIDES

OBJECTIVE OF THIS DOCUMENT:

● Clarify when and under what circumstances unpaid volunteers may apply herbicides

BASIC ASSUMPTIONS

● This discussion only applies to the use of nonrestricted herbicides and only for their use on invasive plants. (NOTE: just because an herbicide is not classified as restricted use doesn’t mean there are not related risks with its use or that it can’t cause you harm. Follow the label instructions at all times.)

● The term volunteer refers to any person applying herbicides and receiving no compensation for performing the application. Compensation also includes any payments given for other services provided by the individual to the property owner such as property maintenance, lawn care and landscaping. Note that just because a service is not itemized in a bill does not necessarily mean that no compensation has occurred.

WHAT DOES THE LAW SAY?

o HB320 which passed in 2024 was incorporated into the Virginia Pesticide Control Act under paragraph F of § 3.2-3931. Agencies or persons exempt or partially exempt. It states:

o Pesticide control exemptions; herbicide applications by unpaid volunteers. Exempts from the provisions of state pesticide laws and regulations any unpaid volunteer who uses any nonrestricted herbicide with the express authorization of a local political subdivision for the sole purpose of controlling invasive plants or noxious weeds on properties owned by such local political subdivision. The bill provides that such unpaid volunteer shall use such herbicide under the direct supervision of a certified commercial applicator and the local political subdivision shall provide instruction by a certified commercial applicator to the unpaid volunteer prior to application on (i) the risks associated with the herbicide utilized, (ii) the proper use of equipment used to apply the herbicide, (iii) the proper use of personal protective equipment, (iv) other information to prevent an unreasonable adverse effect on the environment, and (v) any other information relevant to the specific herbicide utilized.

o This change means that local political subdivisions may choose to use unpaid volunteers to apply nonrestricted herbicides when dealing with invasive plants as long as they follow the rules described above. Volunteers meeting the criteria given in paragraph F of § 3.2-3931 are not required to be certified as registered technicians or commercial applicators.

● § 3.2-3931 contains other exemptions relevant to volunteers who work with Government organizations. https://lis.virginia.gov/cgi-bin/legp604.exe?241+ful+CHAP0720

o Paragraph B of § 3.2-3931 states that anyone applying pesticides for state agencies, municipal corporations or other government agencies need to be certified as a registered technician or a commercial applicator. As noted above, HB320 made an exception to this law for local political subdivisions and their use of volunteers when applying nonrestricted use pesticides for the sole purpose of controlling invasive plants or noxious weeds on properties owned by such local political subdivision.

o Paragraph E of this law states “Neither the provisions of this chapter nor regulations adopted hereunder shall require the certification of any person who uses or supervises the use of any pesticide that is not a restricted use pesticide only on property owned or leased by his employer as part of his job duties. This exemption shall not apply to any person who: (i) uses or supervises the use of any pesticide on any area open to the general public at educational institutions, health care facilities, day-care facilities, or convalescent facilities; (ii) uses or supervises the use of any pesticide within any area where open food is stored, processed, or sold; (iii) uses or supervises the use of any pesticide on any recreational land over five acres in size; and (iv) is otherwise specifically required by this article to be certified as a commercial applicator.”

▪ No specific definition of Recreational Land is provided in the Act or Regulations; however, it typically entails land that is open to the public for recreational use including lands where fees may be charged to members of the public. Examples include, but are not limited to, golf courses, amusement parks, ski slopes, and privately owned parks or natural areas open to the general public for uses such as hiking, bird watching, fishing, etc. It does not include private property used by the owner, their family or their friends with no compensation.

▪ Except as noted in § 3.2-3931 paragraph B and E (i), (ii) or (iii) (see citations above) employees applying nonrestricted herbicides do not need to be certified to apply the herbicides on their employer’s lands.

● Note that neither the Virginia Pesticide Control Act nor the Regulations Pursuant to the Act address the application of nonrestricted use pesticides by a non-paid volunteer on property or land that is owned or leased by another private person, association, religious institution, or any other private group other than government owned property or the properties cited in paragraph E above. This absence of mention in the law means that it would be permitted assuming there is no compensation of any type, including compensation for other services provided to the individual or group. As noted previously, just because a service is not itemized in a bill does not necessarily mean that no compensation has occurred.

WHAT CAN ORGANIZATIONS REGULATE?

● Any organization can adopt its own rules that prohibit its members from performing these kinds of activities. So, an organization can require that any of its members, when acting as a member of that organization (as opposed to acting on their own time as a private citizen), may not apply herbicides or otherwise restrict where or how it is done. They cannot adopt rules that permit more than the law permits, but they can be more restrictive than the law.

HOW PEOPLE GET CERTIFIED

● An individual does not need to be an employee of the supervising certified applicator (or that person’s organization) in order to receive credit for the 40 hours of required work to earn a certification as a registered technician. In other words, prospective volunteers may receive credit for training from any currently certified commercial applicator who is willing to oversee their training.

This document was reviewed by the Virginia Department of Agriculture and Consumer Services.