Warning Agent Waiver Request for Structural Fumigation

Effective January 1, 2015, Business and Professions Code section 8505.12 was amended to allow for a waiver from the requirement to fumigate a structure using the warning agent chloropicrin (amended text italicized):

8505.12. A registered company performing fumigation shall use an adequate warning agent with all fumigants which lack those properties. There may be circumstances in which the use of chloropicrin is not possible due to its unknown effects on sensitive items, including, but not limited to, artifacts in museums or in police evidence storage. In these circumstances, waiving the use of chloropicrin shall be approved by the state regulatory authority and documented in advance and shall include alternative safety precautions which address initial clearance of the site to be fumigated, potential movement of the fumigant to unattended areas, and continued site security. When conditions involving abnormal hazards exist, the licensee exercising direct and personal supervision shall take those safety precautions in addition to those prescribed by this chapter as are reasonably necessary to protect the public health and safety.

A request for a waiver can be considered in the following situation:

1. The use of chloropicrin will likely have an effect on sensitive items. Sensitive items can include, but are not limited to, artifacts in museums or police evidence lockers; and
2. When allowed by the fumigant product labelling. Currently, only the Vikane (EPA Registration No. 62719 -4) and Master Fume (EPA Registration No. 19713-596) labeling allow waiving the use of a warning agent if certain criteria are met.

Waiver Submission:

The registered Branch 1 structural pest control company must submit the waiver request to the County Agricultural Commissioner’s (CAC’s) Office in the county where the fumigation will occur at least 30 days prior to the proposed date of the fumigation. The CAC will notify the Department of Pesticide Regulation (DPR) Enforcement Branch Regional Office that a request for a waiver has been received. The CAC may submit recommendations for approval, modification, or denial with the waiver request to DPR. The CAC and the DPR will then jointly evaluate the request for a waiver.

Criteria for Evaluating a Waiver Request:

At a minimum, the following will be evaluated when reviewing the request:

1. Compliance history of the structural pest control company\licensee (the number of fumigations performed and type of violations may be considered).
2. Reason for the waiver; alternative measures to protect sensitive items have been considered and information supporting why there is a valid concern that chloropicrin will have an adverse effect on the item(s) to be fumigated.
3. Proposed safety precautions include:
   1. additional steps (beyond what is required by labeling or regulation) that will be taken to address how the site to be fumigated will be cleared.
   2. any sensitive areas near the site are identified and documented.
   3. a plan to address potential movement of the fumigant/leaks to unattended areas (for example: use of a remote access continuous monitoring system during the fumigation and aeration).
   4. from the time of the introduction of the fumigant through the completion of aeration a licensed Branch 1 representative, Branch 3 representative, or security guard(s) who has been instructed on emergency procedures, must continuously be present on-site. Include this person’s emergency contact information.
   5. 24 hour contact information of primary licensee(s) in case of an emergency.
   6. statement that danger signs at site will display that only sulfuryl fluoride was used.
   7. notification to the local fire and police departments that no warning agent will be used.
4. Fumigation site information: diagram with points of entry to the fumigated structure identified; surrounding area identified (including the approximate distances to those areas near the site), and available emergency evacuation routes; target pest, EPA label registration number, volume of the structure (cubic feet); label rate and estimated amount of fumigant to be applied; and estimated time period from introduction of fumigant to aeration.

Within 15 days of receipt of the waiver request from the CAC, DPR will notify the CAC if the waiver is approved, denied, or may request modifications to the waiver.

If you have any questions, please contact the Enforcement Branch Liaison assigned to your county.

Sincerely,