WSR 04-22-117

OFFICE OF THE GOVERNOR


[ Filed November 3, 2004, 9:20 a.m. ]

October 28, 2004

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 The most severe rating is 6 - an incident resulting in human death due to pesticide exposure. The least severe is 0 - a problem not due to pesticides or no cause determined. A rating of 2 indicates that a residue is found, but there are no adverse health symptoms.

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.

Legislature Code Reviser 

Register

Washington State Code Reviser's Office