H-1284

AN ACT Relating to public and worker safety in the use of pesticides; amending RCW 15.58.020, 15.58.110, 70.104.030, 15.58.040, 15.58.100, 15.58.405, 17.21.100, and 49.70.119; adding a new section to chapter 49.17 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The purpose of this act is to declare as a matter of public and environmental policy that to protect the health of the public and workers the state shall identify and reduce the use of those pesticides that by virtue of the quantity of their use and toxicity pose a significant health hazard to workers and the public.

Sec. 2. RCW 15.58.020 and 1971 ex.s. c 190 s 2 are each amended to read as follows:

The protection of the public's and workers' health and the environment is the paramount goal in regulating pesticides. It is in the state's economic, social, and environmental best interest to pursue a strategy that eliminates the use of the most toxic pesticides and reduces the use of other pesticides. The formulation, distribution, storage, transportation, and disposal of any pesticide and the dissemination of accurate scientific information as to the proper use, or nonuse, of any pesticide, is important and vital to the maintenance of a high level of public health and welfare both immediate and future, and is hereby declared to be a business affected with the public interest. The provisions of this chapter are enacted in the exercise of the police powers of the state for the purpose of protecting the immediate and future health and welfare of the people of the state.

Sec. 3. RCW 15.58.110 and 1989 c 380 s 8 are each amended to read as follows:

(1) If it does not appear to the director that the pesticide is such as to warrant the proposed claims for it or if the pesticide and its labeling and other material required to be submitted do not comply with the provisions of this chapter or rules adopted under this chapter, the registrant shall be notified of the manner in which the pesticide, labeling, or other material required to be submitted fails to comply with the provisions of this chapter so as to afford the applicant an opportunity to make the necessary corrections. If, upon receipt of such notice, the applicant does not make the corrections the director shall refuse to register the pesticide. The applicant may request a hearing as provided for in chapter 34.05 RCW.

(2) The director may, when the director determines that a pesticide or its labeling does not comply with the provisions of this chapter or the rules adopted under this chapter, cancel the registration of a pesticide after a hearing in accordance with the provisions of chapter 34.05 RCW.

(3) The director shall establish a schedule phasing out the use of any pesticide determined to pose a hazard to public or worker health by virtue of its toxicity and frequency of use or by virtue of repeated application violations. A pesticide that is to be phased out shall have its registration canceled no later than five years after the adoption of the phase-out schedule.

(4) The director shall cancel the registration of any pesticide on a date consistent with phase-out schedules established under section 4 of this act and RCW 70.104.030.

NEW SECTION. Sec. 4. A new section is added to chapter 49.17 RCW to read as follows:

The department shall monitor pesticide use and pesticide exposures for purposes of identifying pesticides and pesticide uses that repeatedly pose a health hazard to workers. The department shall, by rule adopted in accordance with chapter 34.05 RCW, establish procedures for the prevention of worker injury that results from pesticide exposure. The procedures may include establishing a schedule that phases out the use of any pesticide that is found to cause repeated work-related exposures or of any pesticide that by virtue of its toxicity and frequency of use poses a long-term health risk to workers. The phase-out schedule shall specify a date, not to exceed five years from the date of the schedule adoption, by which the director of the department of agriculture shall cancel the pesticide.

Sec. 5. RCW 70.104.030 and 1989 c 380 s 71 are each amended to read as follows:

(1) The department of social and health services shall investigate all suspected human cases of pesticide poisoning and such cases of suspected pesticide poisoning of animals that may relate to human illness. The department shall establish time periods by rule to determine investigation response time. Time periods shall range from immediate to forty-eight hours to initiate an investigation, depending on the severity of the case or suspected case of pesticide poisoning.

In order to adequately investigate such cases, the department of social and health services shall have the power to:

(a) Take all necessary samples and human or animal tissue specimens for diagnostic purposes: PROVIDED, That tissue, if taken from a living human, shall be taken from a living human only with the consent of a person legally qualified to give such consent;

(b) Secure any and all such information as may be necessary to adequately determine the nature and causes of any case of pesticide poisoning.

(2) The state department of social and health services shall, by rule ((~~and regulation~~)) adopted pursuant to the Administrative Procedure Act, chapter 34.05 RCW, ((~~as it now exists or is hereafter amended,~~)) and, in any event, with due notice and a hearing for the adoption of permanent rules, establish procedures for the prevention of any recurrence of poisoning ((~~and~~)), including a schedule to phase out the use of any pesticide that is involved in repeated pesticide poisonings and of any pesticide that by virtue of its toxicity and frequency of use poses a long-term risk to public health. The phase-out schedule shall specify a date, not to exceed five years from the date of the schedule adoption, by which the director of the department of agriculture shall be directed to cancel the pesticide. The department shall immediately notify the department of agriculture, the department of labor and industries, and other appropriate agencies of the results of its investigation for such action as the other departments or agencies deem appropriate. The notification of such investigations and their results may include recommendations for further action by the appropriate department or agency.

Sec. 6. RCW 15.58.040 and 1989 c 380 s 2 are each amended to read as follows:

(1) The director shall administer and enforce the provisions of this chapter and rules adopted under this chapter. All the authority and requirements provided for in chapter 34.05 RCW (Administrative Procedure Act) and chapter 42.30 RCW shall apply to this chapter in the adoption of rules including those requiring due notice and a hearing for the adoption of permanent rules.

(2) The director is authorized to adopt appropriate rules for carrying out the purpose and provisions of this chapter, including but not limited to rules providing for:

(a) Declaring as a pest any form of plant or animal life or virus which is injurious to plants, people, animals (domestic or otherwise), land, articles, or substances;

(b) Determining that certain pesticides are highly toxic to people. For the purpose of this chapter, highly toxic pesticide means any pesticide that conforms to the criteria in 40 C.F.R. Sec. ((~~162.10~~)) 156.10 for toxicity category I due to oral, inhalation, or dermal toxicity. The director shall publish a list annually of all pesticides, determined to be highly toxic or determined by the EPA to cause cancer or reproductive harm, by their common or generic name and their trade or brand name if practical. Such list shall be kept current and shall((~~, upon request,~~)) be made available to ((~~any interested party~~)) the department of labor and industries, the department of health, and the public;

(d) The collection and examination of samples of pesticides or devices;

(e) The safe handling, transportation, storage, display, distribution, and disposal of pesticides and their containers;

(f) Restricting or prohibiting the use of certain types of containers or packages for specific pesticides. These restrictions may apply to type of construction, strength, and/or size to alleviate danger of spillage, breakage, misuse, storage, or any other hazard to the public. In the case of products for home and garden use, the director may limit the size of containers and packages if the director finds that the size contributes to waste or disposal problems. The director shall be guided by federal regulations concerning pesticide containers;

(g) Procedures in making of pesticide recommendations;

(h) Adopting a list of restricted use pesticides for the state or for designated areas within the state if the director, the secretary of the department of health, or the directors of labor and industries or ecology determine((s)) that such pesticides may require rules restricting or prohibiting their distribution or use. The directors and the secretary may include in the rule the time and conditions of distribution or use of such restricted use pesticides and may, if it is found necessary to carry out the purpose and provisions of this chapter, require that any or all restricted use pesticides shall be purchased, possessed, or used only under permit of the director and under the director's direct supervision in certain areas and/or under certain conditions or in certain quantities or concentrations. The director ((~~may~~)) shall require all persons issued such permits to maintain and submit records as to the use of all the restricted use pesticides. The department shall use these records to report the volume of use by pesticide in its annual report of pesticides described in (b) of this subsection;

(i) Label requirements of all pesticides required to be registered under provisions of this chapter; and

(j) Regulating the labeling of devices.

(3) For the purpose of uniformity and to avoid confusion endangering the public health and welfare the director may adopt rules in conformity with the primary pesticide standards, particularly as to labeling, established by the United States environmental protection agency or any other federal agency.

Sec. 7. RCW 15.58.100 and 1979 c 146 s 2 are each amended to read as follows:

(1) The director shall require the information required under RCW 15.58.060 and shall register the label or labeling for such pesticide if ((he)) the director determines that:

(a) Its composition is such as to warrant the proposed claims for it;

(b) Its labeling and other material required to be submitted comply with the requirements of this chapter;

(c) It will perform its intended function without unreasonable adverse effects on the environment and present no greater than a negligible risk to workers;

(d) When used in accordance with widespread and commonly recognized practice it will not ((~~generally~~)) cause unreasonable adverse effects on the environment;

(e) In the case of any pesticide subject to section 24(c) of FIFRA, it meets (1) (a), (b), (c), and (d) of this section and the following criteria:

(i) The proposed classification for general use, for restricted use, or for both is in conformity with section 3(d) of FIFRA;

(ii) A special local need exists;

(iii) Effective alternative control methods including management systems and biological controls are not available.

(2) The director shall not make any lack of essentiality a criterion for denying registration of any pesticide.

Sec. 8. RCW 15.58.405 and 1979 c 146 s 5 are each amended to read as follows:

For the purpose of exercising the authority granted to the state under the provisions of FIFRA, the director may with written approval by the secretary of the department of health and the director of the department of labor and industries:

(1) Meet emergency conditions in this state by applying for an exemption from any provision of FIFRA as provided for by section 18 of that act. If such exemption is granted by the administrator of EPA the director may carry out and enforce the requirements and conditions of the exemption;

(2) Comply with the requirements necessary to issue special local needs registration under section 24(c) of FIFRA; and

(3) Comply with the requirements necessary to issue experimental use permits under section 5(f) of FIFRA.

Sec. 9. RCW 17.21.100 and 1989 c 380 s 39 are each amended to read as follows:

(1) ((~~Except as provided in subsection (7) of this section, pesticide~~)) Applicators licensed under the provisions of this chapter and all persons applying pesticides to more than one acre of agricultural land in a calendar year, including public entities engaged in roadside spraying of pesticides, shall keep records on a form prescribed by the director which shall include the following:

(a) The location of the land where the pesticide was applied.

(b) The year, month, day and time the pesticide was applied.

(c) The product name used on the registered label and the United States environmental protection agency registration number, if applicable, of the pesticide which was applied.

(d) The crop or site to which the pesticide was applied.

(e) The amount of pesticide applied per acre or other appropriate measure.

(f) The concentration of pesticide that was applied.

(g) The number of acres, or other appropriate measure, to which the pesticide was applied.

(h) The licensed applicator's name, address, and telephone number and the name of the individual or individuals making the application.

(i) The direction and estimated velocity of the wind at the time the pesticide was applied: PROVIDED, That this subsection (i) shall not apply to applications of baits in bait stations and pesticide applications within structures.

(j) Any other reasonable information required by the director.

(2) Records shall be updated on the same day that a pesticide is applied.

(3) Such records shall be kept for a period of seven years from the date of the application of the pesticide to which such records refer, and the director shall, upon request in writing, be furnished with a copy of such records forthwith by the licensee: PROVIDED, That the director may require the submission of such records within thirty days of the application of any restricted use pesticide in prescribed areas controlling the use of such restricted use pesticide.

(4) The pesticide records shall be readily available to: The department; treating medical personnel initiating diagnostic testing or therapy for a patient with a suspected case of pesticide poisoning; the department of social and health services; the pesticide incident reporting and tracking panel; and, in the case of an industrial insurance claim filed under Title 51 RCW with the department of labor and industries, the employee or the employee's designated representative and the department of labor and industries.

(5) If a request for information is made under subsection (4) of this section from an applicator referred to in subsection (1) of this section and the applicator refuses to provide a copy of the records, the department shall be notified of the request and the applicator's refusal. Within seven working days, the department shall request that the applicator provide the department with all pertinent copies, except that in a medical emergency the request shall be made within two working days. The applicator shall provide copies of the records to the department within twenty-four hours after the department's request.

(6) The department of agriculture ((~~and the department of labor and industries~~)) shall ((~~jointly~~)) adopt, by rule, ((~~one~~)) a form that satisfies the information requirements of this section ((~~and RCW 49.70.119~~)). Records kept on the prescribed form under RCW 49.70.119 may be used to comply with this section.

((~~(7) This section shall not apply to the owner or operator of a dairy farm with respect to his or her application of pesticides to the farm.~~))

Sec. 10. RCW 49.70.119 and 1989 c 380 s 77 are each amended to read as follows:

(1) An employer who applies or stores pesticides in connection with the production of an agricultural crop shall compile and maintain a workplace pesticide list by crop for each pesticide that is applied to a crop or stored in a work area. The workplace pesticide list shall be kept on a form prescribed by the department and shall contain at least the following information:

(a) The location of the land where the pesticide was applied or site where the pesticide was stored;

(b) The year, month, day, and time the pesticide was applied;

(c) The product name used on the registered label and the United States environmental protection agency registration number, if applicable, of the pesticide that was applied or stored;

(d) The crop or site to which the pesticide was applied;

(e) The amount of pesticide applied per acre, or other appropriate measure;

(f) The concentration of pesticide that was applied;

(g) The number of acres, or other appropriate measure, to which pesticide was applied;

(h) If applicable, the licensed applicator's name, address, and telephone number and the name of the individual or individuals making the application; and

(2) The employer shall update the workplace pesticide list ((~~on the same day~~)) within twenty-four hours that a pesticide is applied or is first stored in a work area.

(3) The workplace pesticide list may be prepared for the workplace as a whole or for each work area ((~~and~~)). The workplace pesticide list or the pesticide application records required by RCW 17.21.100 and the workplace list of stored pesticides must be readily available to employees and their designated representatives. New or newly assigned employees shall be made aware of the pesticide chemical list and application records before working with pesticides or in a work area containing pesticides.

(4) An employer subject to this section shall maintain one form for each crop, work area, or workplace as a whole, as appropriate, and shall add information to the form as different pesticides are applied or stored. The forms shall be accessible and available for copying and shall be stored in a location suitable to preserve their physical integrity. The employer shall maintain and preserve the forms required under this section for no less than seven years. The records shall include an estimation of the total amount of each pesticide listed on the forms.

(5) ((~~After July 23, 1989,~~)) If an employer ((~~has failed~~)) fails to maintain and preserve the forms as required, the employer shall be subject to any applicable penalties authorized under this chapter or chapter 49.17 RCW.

(6) If activities for which forms are maintained cease at a workplace, the forms shall be filed with the department. If an employer subject to this section is succeeded or replaced in that function by another person, the person who succeeds or replaces the employer shall retain the forms as required by this section but is not liable for violations committed by the former employer under this chapter or rules adopted under this chapter, including violations relating to the retention and preservation of forms.

(7) The employer shall provide copies of the forms, on request, to an employee or the employee's designated representative ((~~in the case of an industrial insurance claim filed under Title 51 RCW with the department of labor and industries~~)), treating medical personnel, the pesticide incident reporting and tracking review panel, or department representative. The designated representative or treating medical personnel are not required to identify the employee represented or treated. The department shall keep the name of any affected employee confidential in accordance with RCW 49.17.080(1). If an employee, a designated representative, treating medical personnel, or the pesticide incident reporting and tracking review panel requests a copy of a form and the employer refuses to provide a copy, the requester shall notify the department of the request and the employer's refusal. Within seven working days, the department shall request that the employer provide the department with all pertinent copies, except that in a medical emergency the request shall be made within two working days. The employer shall provide copies of the form to the department within twenty-four hours after the department's request.

(((8) The department of labor and industries and the department of agriculture shall jointly adopt, by rule, one form that satisfies the information requirements of this section and RCW 17.21.100. Records kept by the employer on the prescribed form under RCW 17.21.100 may be used to comply with the workplace pesticide list information requirements under this section.))