General Provisions

(1) No person shall use an herbicide for the purpose of clearing or maintaining a right-of-way unless appropriately certified by the Department, or licensed by the Department and working under the on-site supervision of an appropriately certified applicator. (2) No person shall use an herbicide for the purpose of clearing or maintaining a right-of-way except in accordance with a Vegetation Management Plan (VMP) and a Yearly Operational Plan (YOP) as approved by the Department. The YOP shall be available at the work site at all times during herbicide applications and be made available to the Department and municipal officials including the Conservation Commission and Board of Health upon reasonable request. (3) No person shall handle, mix or load an herbicide concentrate on a right-of- way within 100 feet of a sensitive area. (4) The perimeter of any sensitive areas which are not readily identifiable on the ROW shall be identified with a clearly visible marker system, consistent with the VMP, prior to any herbicide application. (5) No foliar application of herbicides shall be used to control vegetation greater than 12 feet in height except for side trimming. (6) No herbicide shall be applied when the wind velocity is such that there is a high propensity to drift off target and/or during measurable precipitation, and no person shall apply herbicides in such a manner that results in drift into any No-spray Area. (7) No person shall apply herbicides by aircraft for the purpose of clearing or maintaining a right-of-way. (8) No touch-up applications shall be carried out except under the following conditions: (a) Touch-up applications must occur within 12 months of the initial application. (b) All applicable public notification procedures of M.G.L. c. 132B, § 6B, as outlined in 333 CMR 11.07(1) and (3), are followed. (c) No more than 10% of the initially identified target vegetation on the applicant's right-of­ way in any municipality may be treated and the total amount of herbicide applied in any one year shall not exceed the limits specified by the label or Yearly Operational Plan. (d) The Department may impose such additional restrictions or conditions on the use of herbicides as it deems necessary to protect public health and the environment. (9) The Department will maintain mailing lists of individuals and groups desiring to obtain notices on various aspects of the Program. (10) No person shall apply any herbicide identified as a Potential Ground Water Contaminant pursuant to 333 CMR 12.00 to a right-of-way. (11) No person shall use an herbicide for the purpose of clearing or maintaining a right-of-way unless that person has obtained the most current available map of public ground water sources from the Department of Environmental Protection. (12) No person shall use an herbicide for the purpose of clearing or maintaining a right-of-way unless that person has done one or more of the following: (a) obtained a current list of identified Private Wells within 100 feet of the right-of-way from the Board of Health, or (b) obtained a current list of all private wells, within 100 feet of the right of way from the Department of Agricultural Resources private well registry; or (c) followed an alternative Private Well identification method outlined in an approved YOP. (13) The applicator shall provide any employee of any state agency, or authority as defined in M.G.L. c. 3, § 39, when such employee is, within a right-of-way, using pesticides, supervising the use of pesticides, or present during the use of pesticides, with personal protective equipment and clothing. Applicators should note that other federal or state laws or regulations pertaining to pesticide applications may require this personal protective equipment to include protections according to Material Safety Data Sheets (MSDS’s), the product label, and any other supporting technical data supplied by the manufacturer. (14) Notwithstanding the provisions of 333 CMR 11.03(2) or other provisions of 333 CMR 11.00, the Department may, at its sole discretion, issue Limited Application Waivers to applicants wishing to apply herbicides to clear or maintain rights-of-way without VMPs or YOPs, but only under the following conditions: (a) The applicant must demonstrate either: 1. that the application will not occur more than once in a five-year period unless a VMP and a YOP are prepared and all other requirements of 333 CMR 11.00 are met; or 2. that the application is necessary to protect public health or safety. (b) The applicant must still adhere to all public notification requirements established at 333 CMR 11.07(1) and (3). (c) The applicant must provide the Department with a letter establishing the concurrence of the chief elected official or board of selectmen of the municipality where the application is to be made. (d) The applicant may only use herbicides on the Department's "Herbicides Recommended for Use in Sensitive Areas List.” (e) If the application could impact Wetlands, the Department recommends that the applicant send a copy of its application for a Limited Application Waiver to the Department of Environmental Protection’s Division of Wetlands and Waterways no less than 21 days before the proposed application. (f) It should be noted that, with certain exceptions for public utilities, wetlands regulations at 310 CMR 10.03(6)(b) currently require Wetlands Determinations prior to any application within 100 feet of a Wetland. Limited Application Waivers shall be issued solely at the Department’s discretion, and the Department may impose such additional restrictions or conditions on the use of herbicides as it deems necessary to protect public health and the environment.