Mr. Rob Kavanaugh
6919 - 41st Avenue SE
Olympia, Washington 98503
Dear Mr. Kavanaugh:
On September 20, 2004, my office received your letter appealing the decision of the director of the Washington State Department of Agriculture (WSDA), denying your petition to amend WAC 16-228-1220 (6) & (7), and your petition to amend existing rules regarding aerial application of pesticides. I have reviewed your letter of appeal and reviewed the agency's response to your original petition. It is my determination to deny your appeal to amend both administrative rules for the reasons state below.
Request to amend WAC 16-228-1220 (6) & (7), relating to
security for restricted pesticides.
You have requested the amendment of the (WSDA) rules relating
to the holding, using, or disposing of pesticides.
Particularly, you request such an amendment "for added
security for restricted pesticides (Category 1) to prevent the
use of these pesticides as weapons of mass destruction." You
base this request on the following concerns - the reasons for
denial will address each concern raised:
1. Since these chemicals may potentially be used as weapons
of mass destruction, that they must be "secure from
break-ins, theft, and assault by determined terrorists."
As indicated by the WSDA in response to your petition to
amend, current administrative rules provide for the secure
storage and handling of pesticides. WAC 16-228-1220(6)
applies to Category 1 pesticides, and requires such pesticides
to be stored in containers, and within a closed and locked
vehicle, trailer, or building. Bulk storage containers fifty
gallons and larger must be secured with tight screw-type bungs
and/or secured or locked valves. [WAC 16-228-1220
(6)(d)(i-vi)].
The WSDAs response to your petition indicates that existing
WAC provisions provide sufficient protection to unattended
pesticides and their containers. The agency further states
that WAC 16-228-1231 provides additional safeguards to illegal
use of pesticides by restricting the purchase, sale and use of
Category 1 pesticides to certified applicators and licensed
dealers.
In your appeal of WSDAs denial of your petition, you fail to
provide any evidence or information that these safeguarding
requirements are insufficient. In light of this, I must
determine that WAC 16-228-1220 (6) & (7) are within the scope
of the agency's authority, that the agency had sufficiently
considered your concerns and the determination that these
rules adequately address the concerns raised was not arbitrary
or capricious.
2. Such secure facilities presently exist only on selected
military installations.
In your appeal you indicate that although the WSDA points to
the requirements of WAC 16-228-1220 (6) & (7) for the secure
storage of Category 1 pesticides, the degree of security which
you propose can only be found on selected military
installations. Again, you have provided no information or
evidence to support the proposition that Category 1 pesticides
either require such high levels of protection, or that current
rules are insufficient. The suggestion that Category 1
pesticides require such high levels of security is not well
founded and is impractical in effect.
3. Civil defense measures are urgently needed to treat mass
casualties and administer to those who have been
incapacitated by the potential chemical attack.
This concern is outside the scope of authority for the WSDA
and outside the scope of the rule at issue. It therefore will
not be addressed as part of your appeal.
4. The final factors used to determine the level of threat
should not depend upon the convenience of the
distributors or applicators.
This concern is apparently raised in response to the following
position of the WSDA:
"Members of industry and the Pesticide Advisory Board
have stated very clearly that it is in their best
interest, under any circumstance, to insure that
pesticides are kept under secure storage. They have
liability and economic concerns, as well as, a
considerable investment to protect. They believe that
the department's current regulations provide adequate
protection at this time."
This position is based upon the expert opinion of those within
the industry who handle these chemicals for sale or use.
Currently statutory and common law decisions support the
proposition that the negligent storage of such chemicals,
which are subsequently stolen and used in illegal activity,
may result in legal liability for the owner. Furthermore,
Category 1 pesticides are very expensive and it is in the best
interests of the owner to secure this product. Again, you
have not provided any information or evidence to rebut these
statements.
After reviewing the concerns raised in your appeal of the
agency's denial of your petition, after reviewing the response
of the agency to your petition, and after reviewing the
current rules regarding the safe storage and use of Category 1
pesticides, it is my determination that your appeal is denied
for reasons state above.
Request for rule amendments related to spraying pesticides by
aircraft.
You have also appealed the decision of the WSDA to not require
additional controls over aerial spray applications. After
reviewing the concerns raised in your appeal, and after
consideration of the agency's rational for denial of your
petition for amended rules, and having examined the applicable
supporting information, I have determined that the WSDA acted
appropriately in denying your petition for amended rules
relating to aerial spray application of pesticides, and I
further deny your appeal of the agency's action.
I will address the concerns you raise in your appeal as
follows:
WSDA ignores spray drift violations reported in the annual
PIRT incident reports.
A review of the 2003 Annual Report of the Pesticide Incident
Reporting and Tracking (PIRT) Review Panel, indicates that the
WSDA responded to 225 complaints in 2001 (the most recent data
reviewed). These investigations resulted in 152 violations.
(2003 PIRT Annual Report, p.9). The Report further indicates
that "the Washington State Department of Agriculture (WSDA)
investigated all reported complaints made to the department
regarding pesticide use, sales, distribution, applicator
licensing, storage and building structure inspections for Wood
Destroying Organisms (WDO)". [2003 PIRT Annual Report, p.10,
(emphasis added)]. The Report also states: "WSDA is required
to respond to cases of human exposure within 24 hours of the
receipt. Investigation begins on other cases as soon as
resources allow, generally within 2-3 days. In 2001, WSDA
responded to 93 percent of all complaints within one day, and
all 36 human exposure cases within 24 hours." [2003 PIRT
Annual Report, p.10 (emphasis added)].
From the information provided in the 2003 Annual Report of the
PIRT Review Panel, there is no evidence to support the claim
that WSDA "ignores the host of spray drift violations
reported". Indeed, WSDA has responded in a timely fashion and
has, where appropriate, instituted enforcement actions against
violators.
The department does not proactively prevent aerial spray drift
incidents on the grounds that to do so might add costs to the
applicators.
Although the PIRT report does indicated that "drift exposure
continues to be the most frequent complaint about
applications," subsequent investigation of the reported
complaints found that 74% had a severity rating of 2 or less.1
The number of incidents has decreased since PIRT first began
reporting, but the report does indicate that some preventable
drift exposure has occurred. The Review Panel attributes some
of the decline in drift exposure reports to the fact that
"applicators are also more aware of conditions that might
result in drift and are applying more targeted pesticides in
lower volumes." (2003 PIRT Summary Report to the Legislature,
p.3)
As described in WSDA letter responding to your petition, there
are a number of sections in the Washington Administration Code
that specifically address the application of pesticides.
These code provisions restrict the application of pesticides
in a manner that would pollute waterways or water supplies, or
cause damage or injury to humans, and specifically prohibit
the aerial application immediately adjacent to occupied
schools, hospitals, nursing homes or other similar
establishments. [WAC 16-228-1220 (2), (3), and (4)]. The WAC
also prohibits the application of pesticides if weather
conditions are such that drift may cause injury to humans,
plants or animals. [WAC 16-228-1220(4)]
Other administrative code provisions protect the health and
safety of workers and others who may enter the property after
application of a pesticide. Some examples are:
&sqbul; WAC 16-233-115(1) During the application of any
pesticide, the agricultural employer shall not allow any
person to enter or to remain in the treated area.
&sqbul; WAC 16-233-210(1) The pesticide handler employer and the
handler shall assure that no pesticide is applied so as
to contact, either directly or through drift, any worker
or other person. [WAC 16-233-210(2)] Handlers handling
highly toxic pesticides shall assure that any handler who
is performing any activity with a product that has the
skull and crossbones symbol on the front panel of the
label is monitored visually or by voice communication at
least every two hours.
&sqbul; WAC 16-233-120(a) After the application of any pesticide
on an agricultural establishment, the agricultural
employer shall not allow or direct any worker to enter or
to remain in the treated area before the restricted-entry
interval specified on the pesticide labeling has expired.
&sqbul; WAC 16-233-125(2) The agricultural employer shall notify
workers of any pesticide application on the farm.
&sqbul; WAC 16-233-130 When workers are on an agricultural
establishment and, within the last thirty days, a
pesticide covered by this chapter has been applied on the
establishment or a restricted-entry interval has been in
effect, the agricultural employer shall display, in
accordance with this section, specific information about
the pesticide.
&sqbul; WAC 16-233-220 Before the application of any pesticide on
or in an agricultural establishment, the handler employer
shall provide the following information to any
agricultural employer for the establishment or shall
assure that any agricultural employer is aware of:
(1) Specific location and description of the treated
area.
(2) Time and date of application.
(3) Product name, EPA registration number, and active ingredient(s).
(4) Restricted-entry interval.
(5) Whether posting and oral notification are required.
(6) Any other product-specific requirements on the product labeling concerning protection of workers or other persons during or after application.
&sqbul; WAC 16-233-235(1) The handler employer shall assure that
before the handler uses any equipment for applying
pesticides, the handler is instructed in the safe
operation of such equipment, including, safety
requirements and drift avoidance.
It is clear from these WAC provisions that the WSDA has
considered the health and safety of agricultural workers and
the public with respect to the application of pesticides.
Your letter of appeal fails to provide any substantiation for
your contention that further requirements on aerial
application of pesticides will provide any measure of improved
protection over the existing administrative requirements.
For the reasons indicated above, your request for appeal of
the Washington Department of Agriculture's denial of your
petition for rule amendments is denied.
1
Sincerely,
Gary Locke
Governor
Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.