1. (a) The definitions set forth in 40 C.F.R. §§ 122.2 and 124.2 are all adopted herein by reference in 8 CAR § 25-104.

2. (b) In addition, the following definitions also apply to this part:

   1. (1) “Animal feeding operation” or “AFO” means a lot or facility (other than an aquatic animal production facility) where the following conditions are met:

      1. (A) Animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of forty-five (45) days or more in any twelve-month period; and
      2. (B) Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility;
   2. (2) “Approved publicly owned treatment works pretreatment program” or “pretreatment program” means a program administered by a publicly owned treatment work that meets the criteria established in 40 C.F.R. §§ 403.8 and 403.9 and that has been approved by the Director of the Division of Environmental Quality in accordance with 40 C.F.R. § 403.11;

   3. (3) “Biochemical pesticide” means a pesticide that:

      1. (A) Is a naturally occurring substance or structurally similar and functionally identical to a naturally occurring substance;
      2. (B) Has a history of exposure to humans and the environment demonstrating minimal toxicity, or in the case of a synthetically derived biochemical pesticide, is equivalent to a naturally occurring substance that has such a history; and
      3. (C) Has a nontoxic mode of action to the target pest or pests;

   4. (4) “Biological pesticides” or “biopesticides” includes:

      1. (A) Microbial pesticides;
      2. (B) Biochemical pesticides; and
      3. (C) Plant-incorporated protectants;
   5. (5) “Chemical pesticides” means all pesticides not otherwise classified as biological pesticides;
   6. (6) “Commission” means the Arkansas Pollution Control and Ecology Commission;

   7. (7)

      1. (A) “Concentrated animal feeding operation” or “CAFO” means an AFO that is defined as a Large CAFO or as a Medium CAFO pursuant to 40 C.F.R. § 122.23, or that is designated as a CAFO in accordance with 40 C.F.R. § 122.23(c).
      2. (B) Two (2) or more AFOs under common ownership are considered to be a single AFO for the purposes of determining the number of animals at an operation if they adjoin each other or if they use a common area or system for the disposal of wastes;
   8. (8) “Director” means the Director of the Division of Environmental Quality, unless the context dictates otherwise, see 40 C.F.R. §§ 122.2 and 124.2 and Arkansas Code § 8-1-202 et seq.;
   9. (9) “Division” means the Division of Environmental Quality, or its successor;
   10. (10) “Domestic wastewater” means the spent wastewater originating from all aspects of human sanitary water usage;
   11. (11) “Effluent” means water that is not reused after flowing out of any wastewater treatment facility or other works used for the purpose of treating, stabilizing, or holding wastes;
   12. (12) “General permit” means a permit issued by the Division of Environmental Quality to a category of qualifying sources in lieu of individual permits for every source;
   13. (13) “Indirect discharge” means the introduction of pollutants into a publicly owned treatment works from any nondomestic source regulated under Section 307(b), (c), or (d) of the Clean Water Act;
   14. (14) “Industrial user” or “user” means a source of indirect discharge;

   15. (15)

       1. (A) “Larger common plan of development” means a contiguous (sharing a boundary or edge, adjacent, or touching) area where multiple and distinct construction activities may be taking place at different times on different schedules under one (1) plan.
       2. (B)

3. (i) This plan might consist of many small projects, e.g., a common plan of development for a residential subdivision might lay out the streets, house lots, and areas for parks, schools, and commercial development that the developer plans to build or sell to others for development.

   1. (ii) All these areas would remain part of the common plan of development or sale.

      1. (C) The term ‘‘plan’’ is broadly defined as any announcement or piece of documentation (including a sign, public notice or hearing, sales pitch, advertisement, drawing, permit application, zoning request, computer design, etc.) or physical demarcation (including boundary signs, lot stakes, surveyor markings, etc.) indicating construction activities may occur on a specific plot;

   2. (16) “Microbial pesticide” means a microbial agent intended for preventing, destroying, repelling, or mitigating any pest, or intended for use as a plant regulator, defoliant, or desiccant that is a:

      1. (A) Eukaryotic microorganism including, but not limited to:

         1. (i) Protozoa;
         2. (ii) Algae; and
         3. (iii) Fungi;
      2. (B) Prokaryotic microorganism, including, but not limited to, Eubacteria and Archaebacteria; or
      3. (C) Parasitically replicating microscopic element, including but not limited to viruses;
   3. (17) “Nondomestic wastewater” means any wastewater that does not meet the definition of domestic wastewater;
   4. (18) “Nonmunicipal domestic sewage treatment works” means a device or system operated by an entity other than a city, town, county, or sewer improvement district that treats, in whole or in part, waste or wastewater from humans or household operations and must continuously operate to protect human health and the environment despite a permittee’s failure to maintain or operate the device or system;
   5. (19) “National Pollutant Discharge Elimination System” or “NPDES” means the national program for issuing, modifying, revoking, reissuing, terminating, monitoring, and enforcing permits, and imposing and enforcing pretreatment requirements under Sections 307, 318, 402, and 405 of the Clean Water Act;

   6. (20)

      1. (A)

         1. (i) “Owner or operator” means the owner or operator or any “facility or activity” subject to regulation under the NPDES program.
         2. (ii) For the purposes of a permit, “owner or operator” means any person (an individual, association, partnership, corporation, municipality, or state or federal agency) who has the primary management and ultimate decision-making responsibility over the operation of a facility or activity.
      2. (B) The owner or operator is responsible for ensuring compliance with all applicable environmental rules, regulations, and conditions;

   7. (21)

      1. (A) “Pesticide” means any:

         1. (i) Substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest;
         2. (ii) Substance or mixture of substances intended for use as a plant:
4. (a) (a) Regulator;

5. (b) (b) Defoliant; or

   1. (c) (c) Desiccant; and

      1. (iii) Nitrogen stabilizer, except that the term pesticide shall not include any article that is:
6. (a) (a) A “new animal drug” within the meaning of Section 201(w) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(v), that has been determined by the United States Secretary of Health and Human Services not to be a new animal drug by a regulation establishing conditions of use for the article; or

7. (b) (b) An animal feed within the meaning of Section 201(x) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(w), bearing or containing a new animal drug.

   1. (B)

      1. (i) The term “pesticide” does not include liquid chemical sterilant products, including any sterilant or subordinate disinfectant claims on such products, for use on a critical or semi-critical device, as defined in Section 201 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 321.

         1. (ii) For purposes of subdivision (b)(16)(B)(i) of this section, the term “critical device” includes any device introduced directly into the human body, either into or in contact with the bloodstream or normally sterile areas of the body, and the term ‘‘semi-critical device’’ includes any device that contacts intact mucous membranes but that does not ordinarily penetrate the blood barrier or otherwise enter normally sterile areas of the body, see the Federal Insecticide, Fungicide, and Rodenticide Act, Section 2(u), 7 U.S.C. § 136(u).

      2. (C) The term “pesticide” applies to:

         1. (i) Insecticides;
         2. (ii) Herbicides;
         3. (iii) Fungicides;
         4. (iv) Rodenticides; and
         5. (v) Various other substances used to control pests.
      3. (D) The definition encompasses all uses of pesticides authorized under the Federal Insecticide, Fungicide, and Rodenticide Act including uses authorized under Sections 3 (registration), 5 (experimental use permits), 18 (emergency exemptions), 24(c) (special local needs registrations), and 25(b) (exemptions from the Federal Insecticide, Fungicide, and Rodenticide Act), see 7 U.S.C. § 136.

      4. (E) Note.

         1. (i) Drugs used to control diseases of humans or animals (such as livestock, fish stock, and pets) are not considered pesticides.
         2. (ii) Such drugs are regulated by the United States Food and Drug Administration.
      5. (F) Fertilizers, nutrients, and other substances used to promote plant survival and health are not considered plant growth regulators and thus are not pesticides.

      6. (G)

         1. (i) Biological control agents, except for certain microorganisms, are exempted from regulation under the Federal Insecticide, Fungicide, and Rodenticide Act.
         2. (ii) Biological control agents include beneficial predators such as birds or ladybugs that eat insect pests, parasitic wasps, fish, etc.;

   2. (22)

      1. (A) “Pesticide residue” includes that portion of a pesticide application that is discharged from a point source to waters of the state and no longer provides pesticidal benefits but which may impact nontarget species.
      2. (B) It may include the pesticide and degradents of the pesticide;

   3. (23)

      1. (A) “Plant-incorporated protectant” means a pesticidal substance that is intended to be produced and used in a living plant, or in the produce thereof, and the genetic material necessary for production of such a pesticidal substance.
      2. (B) It also includes any inert ingredient contained in the plant or produce;
   4. (24) “Publicly owned treatment works” or “POTW” means a treatment works owned by a state or municipality as defined by Section 212 of the Clean Water Act;

   5. (25)

      1. (A) “Small construction site” means construction activities including clearing, grading, and excavating that result in land disturbance of equal to or greater than one (1) acre and less than five (5) acres.
      2. (B) Small construction activity also includes the disturbance of less than one (1) acre of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than one (1) and less than five (5) acres.
      3. (C) Small construction activity does not include routine maintenance;

   6. (26) “Stormwater” means:

      1. (A) Runoff from rainfall;
      2. (B) Snow melt runoff; and
      3. (C) Surface runoff and drainage;
   7. (27) “Stormwater pollution prevention plan” means a plan that describes the measures and practices used to control the discharge of pollutants through stormwater discharges;
   8. (28) “Ten States Standards” means the latest edition of the “Recommended Standards for Wastewater Facilities” or “Recommended Standards for Water Works” published by Health Research, Inc., Health Education Services Division; and

   9. (29)

      1. (A) “Treatment area” means an area of land, including any waters of the state, within a pest management area where pesticides are being applied at a concentration that is adequate to control the targeted pests within that area.
      2. (B) Multiple treatment areas may be located within a single pest management area.

Codification Notes: The sections referred to in this section as part of the Federal Insecticide, Fungicide, and Rodenticide Act were enacted in Pub. L. No. § 92-516.