N.H. Admin. Code § Pes 505.06

Current through Register No. 45, November 7, 2024

Section Pes 505.06 - Notification of Spraying in Rights-of-Way

(a) "Active Railroads" means a railroad corridor where the tracks are still in place and they can be traversed by railroad locomotives, rail cars, or rail mounted inspection vehicles, or maintenance of way equipment.

(b) This section shall not pertain to the following types of herbicide applications:

(1) By the cut surface treatment where herbicides are applied directly to the cut surface of the stump after vegetation is cut, provided that:

a. The herbicide shall be applied before the end of the work day during which the vegetation has been cut or if application is impossible due to rain, during the next work day, following such weather event; and

b. The pesticides are applied according to label recommendations;

(2) To control poison ivy;

(3) For the control of invasive species as listed within Agr 3802.01 NH Prohibited Invasive Species, New Hampshire restricted invasive species as described within RSA 430:53 IV, Common Reed (Phragmites australis, formerly P. communis), or Purple Loosestrife (Lythrum salicaria);

(4) In conjunction with landscape plantings on roadside rights-of-way;

(5) Upon roadway pavement, active railroads, curbing, and guardrail; and

(6) Pesticide use not related to the purpose of maintaining the rights-of-way.

(c) No application of herbicides shall be made to rights-of-way in the state, including but not limited to, rights-of-way for power transmission and distribution lines, gas pipelines, and public roads, during the months of June 15 through September 30 without first providing notification to the public of intent to spray.

(d) Notification pursuant to (c) above shall not be given until such time as a special permit has been issued.

(e) Notification pursuant to (c) above shall be made by means of the following:

(1) Through the use of notices in newspapers in accordance with (f) below;

(2) Certified mail, return receipt requested, to the selectmen, mayor, or town manager, depending on the form of government, in the municipality where the right-of-way is located; and

(3) Written notification to residents within 200 feet of a right-of-way.

(f) Notification by newspaper shall comply with the following:

(1) Notice of intent to spray shall be published in both a newspaper of statewide circulation and in all locally published newspapers which have distribution principally in the area where treatment will occur;

(2) Notices shall appear at least once a week for 2 weeks;

(3) Notices shall be at least 2 columns wide by 3 inches high;

(4) There shall be a minimum of 45 days between the second or last notification and the date of commencement of the seasonal herbicide application;

(5) Notification shall contain only the following information and provisions:

a. A title at the beginning of the notice in 15 point bold face print which states, "Herbicide Use Notification";

b. A list of towns where treatment will occur;

c. A statement as to which herbicides, identified by common chemical name, will be applied to rights-of-way within the respective towns;

d. The approximate date of commencement of the vegetation control program for that year;

e. The name and phone number of contact person, the company he or she represents, and hours that person can be reached;

f. The statement, "further information may be requested by contacting" followed by the name of the contact person;

g. An offering in the form of a notification request coupon to individual landowners whose property abuts the right-of-way, or over whose property the right-of-way passes, of an opportunity to request and receive an individual written notification 30 days prior to any treatment; and

h. An actual clip-out, mail-in coupon for purposes of registration of the request and upon which the contracting entity shall maintain a permanent list for notification purposes.

(g) Notification to selectmen, mayor, or town manager, depending on the form of government in the municipality, shall comply with the following:

(1) Notices shall be by certified mail return receipt requested no less than 45 days prior to commencement of seasonal herbicide applications;

(2) Notification shall include:

a. A title at the beginning of the notice in 15 point bold face print which states, "Herbicide Use Notification";

b. The designation of right-of-way to be treated;

c. The approximate date of commencement of vegetation control program for that year, in that locality;

d. Common chemical name(s) of herbicide(s) to be used;

e. Name and phone number of contact person at the contracting entity, and hours that person can be reached; and

f. The name of the contracting entity; and

(3) Notification shall include the following:

a. A current U.S. Geological Survey map, of a scale of no less than 1:24000, or 1:25000 if metric, if available, delineating the right-of-way to be treated;

b. The information in Pes 505.06(i), (j) and (k); and

c. A supply of mail-in notification-request coupons equivalent to the number of landowners abutting or owning land on the right-of-way in the respective towns for use by such landowners to request specific written notice.

(h) Direct notification to residents within 200 feet of a right-of-way shall be as follows:

(1) Notice shall contain the information in Pes 505.06(f)(5)a., b., c., d., e. and f.;

(2) Notice shall be conveyed by:

a. A personally delivered written notification that is physically passed to the occupant or, if the occupant is not present, left in a conspicuous place such as attached to the door at the place of occupancy; or

b. Certified mail, return receipt requested; and

(3) Notification shall be made during the calendar year of spraying, at least 10 days prior to such application of pesticides.

(i) The applicant for the special permit shall provide the following information on the notification with the coupon, or on the coupon itself:

(1) A method to identify the owner of a utility line by examining poles or other landmarks;

(2) How the public would determine which particular line is to be treated;

(3) A statement that the landowner, as specified in Pes 505.06 (f)(5)g., has a right to receive notice by mail as set forth in Pes 505.06(l);

(4) How to contact the contracting entity for further information;

(5) A request to each landowner or resident to make the contracting entity aware of the location of a potentially affected water supply, and of any other environmentally sensitive area where herbicide application should be further restricted;

(6) An offering which specifically states "you have the right to request and receive the approximate date, plus or minus 5 days, that pesticides will be applied to the right-of-way in your area"; and

(7) Where to return the coupons.

(j) The notification request coupons that accompany newspaper notices and notices to selectmen, mayors or town managers shall provide adequate space for the landowner to record the following information:

(1) Name, address, and telephone number of the person making the request;

(2) Town/city of affected property;

(3) Utility subscriber account number, if applicable, to help a utility identify the location of the person requesting notification;

(4) Name of the company that contracted for the vegetation control program;

(5) Property of concern and sensitive areas;

(6) Identifying notations or features found on applicable utility poles or towers, pursuant to (j)(1) and (2) above;

(7) Any additional information requested by the contracting entity for purposes of identifying the location of the landowner in relation to the right-of-way; and

(8) The landowner's request for specific notification pursuant to Pes 505.06(i)(6).

(k) In order to receive individual written notification during a given year, persons requesting such notification shall provide mail-in requests to the applicant no later than 35 days prior to commencement of the vegetation control program for that year. Requests received later than that shall be honored during the next treatment cycle.

(l) Applicants shall, upon receipt of requests for individual written notification, compile and maintain a permanent list of landowners who have made such requests, and shall provide such notification as requested to those landowners, in accordance with (k) above.

(m) Applicants shall, upon receipt of requests for approximate date of application pursuant to Pes 505.06(j)(8), provide such information.

(n) Prior to being granted final approval of a special permit by the division, the applicant shall provide written attestation to the division, at least 10 days prior to commencement of spraying, that it has complied with the provisions of Pes 505.06.

(o) The attestation required pursuant to (n) above shall include the following:

(1) A tear sheet or the text of newspaper notices including the name of the publications, areas served, and dates the notices appeared;

(2) A copy of the notification to selectmen including the same map that was provided;

(3) A copy of the mail-in coupon request for specific written notification;

(4) A copy of the list of persons who have requested written notification; and

(5) A signed statement attesting that individual specific written notification has been made to those who have made the request.

(p) Herbicide applications due to public health emergency shall be exempt from the requirements under Pes 505.06(c)-(o).

(q) Persons applying pesticides to rights of way due to a public health emergency shall provide notification in accordance with Pes 505.06(r) and (s) to the following:

(1) The local government official(s) such as selectmen, mayor(s), or town manager(s), depending on the form of government, in the municipalities where the application will occur;

(2) The health officer of each municipality in which pesticides will be applied;

(3) Owners of apiaries whose operations would be affected by the pesticide application; and

(4) The general public, to include at a minimum, those persons who would be directly affected by the pesticide application.

(r) Notification provided under (q) above shall include at a minimum:

(1) Proposed date(s) of treatment;

(2) Location(s) of treatment area(s);

(3) Pesticides to be applied, listed by common chemical name of active ingredient; and

(4) Name, address, and telephone number of contact person.

(s) The applicant shall provide notification under (q) above at least 12 hours prior to commencement of any pesticide application, as follows:

(1) Notification to local government officials and health officers under (q)(1) and (2) above shall be in writing, by one or more of the following means:

a. U.S. mail;

b. Electronic mail; or

c. Facsimile; and

(2) Notification to the public who would be directly affected by the pesticide application shall be by one or more of the following media:

a. Television;

b. Radio; or

c. Newspaper.

N.H. Admin. Code § Pes 505.06

#150, eff 1-9-74; ss by #2209, eff 12-13-82; ss by #2781, eff 7-26-84; amd by #4031, eff 4-1-86; amd by #4185, eff 12-9-86; ss by #4866, eff 7-19-90; ss by #6258, eff 5-30-96; ss by #6698, eff 2-28-98; amd by #7341, EMERGENCY, eff 8-7-00 EXPIRED: 2-3-01

New. #7553, eff 9-5-01; ss by #8131, eff 8-13-04; ss by #9712-B, eff 5-11-10

Ss by #10333, eff 5/10/2013.

Amended by Volume XXXVII Number 10, Filed March 9, 2017, Proposed by #12122, Effective 2/28/2017, Expires 2/28/2027.