S-4340.1 _______________________________________________
SUBSTITUTE SENATE BILL 6100
_______________________________________________
State of Washington 53rd Legislature 1994 Regular Session
By Senate Committee on Agriculture (originally sponsored by Senators M. Rasmussen, Newhouse, Snyder, Prentice and Fraser; by request of Department of Agriculture)
Read first time 1/20/94.
AN ACT Relating to pesticide application regulation; amending RCW 17.21.020, 17.21.030, 17.21.060, 17.21.065, 17.21.070, 17.21.080, 17.21.100, 17.21.110, 17.21.122, 17.21.126, 17.21.128, 17.21.129, 17.21.130, 17.21.132, 17.21.134, 17.21.150, 17.21.160, 17.21.170, 17.21.180, 17.21.190, 17.21.200, 17.21.203, 17.21.220, 17.21.230, 17.21.240, 17.21.260, 17.21.280, 17.21.290, 17.21.310, 17.21.360, 17.21.400, 17.21.410, 17.21.420, and 17.21.910; reenacting and amending RCW 17.21.050; adding a new section to chapter 17.21 RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 17.21.020 and 1992 c 176 s 1 are each amended to read as follows:
Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
(1) "Agricultural commodity" means any plant or part of a plant, or animal, or animal product, produced by a person (including farmers, ranchers, vineyardists, plant propagators, Christmas tree growers, aquaculturists, floriculturists, orchardists, foresters, or other comparable persons) primarily for sale, consumption, propagation, or other use by people or animals.
(2) "Agricultural land" means land on which an agricultural commodity is produced or land that is in a government-recognized conservation reserve program. This definition does not apply to private gardens where agricultural commodities are produced for personal consumption.
(3) "Apparatus" means any type of ground, water, or aerial equipment, device, or contrivance using motorized, mechanical, or pressurized power and used to apply any pesticide on land and anything that may be growing, habitating, or stored on or in such land, but shall not include any pressurized handsized household device used to apply any pesticide, or any equipment, device, or contrivance of which the person who is applying the pesticide is the source of power or energy in making such pesticide application, or any other small equipment, device, or contrivance that is transported in a piece of equipment licensed under this chapter as an apparatus.
(((3))) (4) "Arthropod"
means any invertebrate animal that belongs to the phylum arthropoda, which in
addition to insects, includes allied classes whose members are wingless and
usually have more than six legs; for example, spiders, mites, ticks,
centipedes, and isopod crustaceans.
(((4))) (5) "Certified
applicator" means any individual who is licensed as a commercial pesticide
applicator, commercial pesticide operator, public operator, private-commercial
applicator, demonstration and research applicator, or certified private
applicator, or any other individual who is certified by the director to use or
supervise the use of any pesticide which is classified by the EPA or the
director as a restricted use pesticide ((or by the state as restricted
to use by certified applicators only)).
(((5))) (6) "Commercial
pesticide applicator" means any person who engages in the business of
applying pesticides to the land of another.
(((6))) (7) "Commercial
pesticide operator" means any employee of a commercial pesticide
applicator who uses or supervises the use of any pesticide and who is required
to be licensed under provisions of this chapter.
(((7))) (8) "Defoliant"
means any substance or mixture of substances intended to cause the leaves or
foliage to drop from a plant with or without causing abscission.
(((8))) (9)
"Department" means the Washington state department of agriculture.
(((9))) (10) "Desiccant"
means any substance or mixture of substances intended to artificially
accelerate the drying of plant tissues.
(((10))) (11) "Device"
means any instrument or contrivance intended to trap, destroy, control, repel,
or mitigate pests((, or to destroy, control, repel, or mitigate fungi,
nematodes, or such other pests, as may be designated by the director)), but
not including equipment used for the application of pesticides when sold
separately from the pesticides.
(((11))) (12) "Direct
supervision" by certified private applicators shall mean that the
designated restricted use pesticide shall be applied for purposes of producing
any agricultural commodity on land owned or rented by the applicator or the
applicator's employer, by a competent person acting under the instructions and
control of a certified private applicator who is available if and when needed,
even though such certified private applicator is not physically present at the
time and place the pesticide is applied. The certified private applicator
shall have direct management responsibility and familiarity of the pesticide,
manner of application, pest, and land to which the pesticide is being applied.
Direct supervision by all other certified applicators means direct on-the-job
supervision and shall require that the certified applicator be physically
present at the application site and that the person making the application be
in voice and visual contact with the certified applicator at all times during
the application. Direct supervision of an aerial apparatus means the pilot
of the aircraft must be appropriately certified.
(((12))) (13)
"Director" means the director of the department or a duly authorized
representative.
(((13))) (14) "Engage in
business" means any application of pesticides by any person upon lands or
crops of another.
(((14))) (15) "EPA"
means the United States environmental protection agency.
(((15))) (16) "EPA
restricted use pesticide" means any pesticide ((with restricted uses as))
classified for restricted use by the administrator, EPA.
(((16))) (17) "FIFRA"
means the federal insecticide, fungicide and rodenticide act as amended (61
Stat. 163, 7 U.S.C. Sec. 136 et seq.).
(((17))) (18) "Fumigant"
means any pesticide product or combination of products that is a vapor or gas
or forms a vapor or gas on application and whose method of pesticidal action is
through the gaseous state.
(19) "Fungi" means all
nonchlorophyll-bearing thallophytes (all nonchlorophyll-bearing plants of lower
order than mosses and liverworts); for example, rusts, smuts, mildews, molds, and
yeasts((, and bacteria)), except those on or in a living person or other
animals.
(((18))) (20)
"Fungicide" means any substance or mixture of substances intended to
prevent, destroy, repel, or mitigate any fungi.
(((19))) (21)
"Herbicide" means any substance or mixture of substances intended to
prevent, destroy, repel, or mitigate any weed or other higher plant.
(((20))) (22) "Immediate
service call" means a landscape application to satisfy an emergency
customer request for service, or a treatment to control a pest to landscape
plants.
(((21))) (23) "Insect"
means any ((of the numerous)) small invertebrate animal((s)),
in any life stage, whose ((bodies are more or less obviously)) adult
form is segmented((,)) and which ((for the most part)) generally
belongs to the class insecta, ((comprising)) comprised of
six-legged, usually winged forms, as, for example, beetles, bugs, bees, and
flies((, and)). The term insect shall also apply to other allied
classes of arthropods whose members are wingless and usually have more than six
legs, for example, spiders, mites, ticks, centipedes, and isopod crustaceans.
(((22))) (24)
"Insecticide" means any substance or mixture of substances intended
to prevent, destroy, repel, or mitigate any insect((s which may be present
in any environment whatsoever)).
(((23))) (25) "Land"
means all land and water areas, including airspace and all plants, animals,
structures, buildings, devices, and contrivances, appurtenant to or situated
on, fixed or mobile, including any used for transportation.
(((24))) (26) "Landscape
application" means an application by a certified applicator of any EPA
registered pesticide to any exterior landscape plants found around residential
property, commercial properties such as apartments or shopping centers,
parks, golf courses, ((or)) schools including nursery schools and
licensed day cares, or cemeteries or similar areas. This definition shall not
apply to: (a) Applications made by certified private applicators; (b)
((state and local health departments and mosquito control districts when
conducting mosquito control operations)) mosquito abatement, gypsy moth
eradication, or similar wide-area pest control programs sponsored by
governmental entities; and (c) commercial pesticide applicators making
structural applications.
(((25))) (27)
"Nematocide" means any substance or mixture of substances intended to
prevent, destroy, repel, or mitigate nematodes.
(((26))) (28)
"Nematode" means any invertebrate animal of the phylum
nemathelminthes and class nematoda, that is, unsegmented round worms with
elongated, fusiform, or saclike bodies covered with cuticle, and inhabiting
soil, water, plants or plant parts((,)). Nematodes may also be
called nemas or eelworms.
(((27))) (29) "Person"
means any individual, partnership, association, corporation, or organized group
of persons whether or not incorporated.
(((28))) (30) "Pest"
means, but is not limited to, any insect, rodent, nematode, snail, slug, weed,
and any form of plant or animal life or virus, except virus, bacteria, or
other microorganisms on or in a living person or other animal or in or
on processed food or beverages or pharmaceuticals, which is normally
considered to be a pest, or which the director may declare to be a pest.
(((29))) (31)
"Pesticide" means, but is not limited to:
(a) Any substance or mixture of substances
intended to prevent, destroy, control, repel, or mitigate any ((insect,
rodent, snail, slug, fungus, weed, and any other form of plant or animal life
or virus except virus on or in a living person or other animal which is
normally considered to be a pest or which the director may declare to be a))
pest;
(b) Any substance or mixture of substances intended to be used as a plant regulator, defoliant or desiccant; and
(c) Any spray adjuvant, such as a wetting
agent, spreading agent, deposit builder, adhesive, emulsifying agent,
deflocculating agent, water modifier, or similar agent with or without toxic
properties of its own intended to be used with any ((other)) pesticide
as an aid to the application or effect thereof, and sold in a package or
container separate from that of the pesticide with which it is to be used.
(((30))) (32) "Pesticide
advisory board" means the pesticide advisory board as provided for in this
chapter.
(((31))) (33) "Plant
regulator" means any substance or mixture of substances intended through
physiological action, to accelerate or retard the rate of growth or maturation,
or to otherwise alter the behavior of ornamental or crop plants or their
produce, but shall not include substances insofar as they are intended to be
used as plant nutrients, trace elements, nutritional chemicals, plant inoculants,
or soil amendments.
(((32))) (34) "Private
applicator" means a certified applicator who uses or is in direct
supervision of the use of (((a))) any pesticide classified by the
EPA or the director as a restricted use pesticide((; or (b) any
restricted use pesticide restricted to use only by certified applicators by the
director)), for the purposes of producing any agricultural commodity and
for any associated noncrop application on land owned or rented by the
applicator or the applicator's employer or if applied without compensation
other than trading of personal services between producers of agricultural
commodities on the land of another person.
(((33))) (35)
"Private-commercial applicator" means a certified applicator who uses
or supervises the use of (((a))) any pesticide classified by the
EPA or the director as a restricted use pesticide ((or (b) any
restricted use pesticide restricted to use only by certified applicators))
for purposes other than the production of any agricultural commodity on lands
owned or rented by the applicator or the applicator's employer.
(((34))) (36) "Residential
property" includes property less than one acre in size zoned as
residential by a city, town, or county, but does not include property zoned as
agricultural or agricultural homesites.
(((35))) (37) "Restricted
use pesticide" means any pesticide or device which, when used as directed
or in accordance with a widespread and commonly recognized practice, the
director determines, subsequent to a hearing, requires additional restrictions
for that use to prevent unreasonable adverse effects on the environment
including people, lands, beneficial insects, animals, crops, and wildlife,
other than pests.
(((36))) (38)
"Rodenticide" means any substance or mixture of substances intended
to prevent, destroy, repel, or mitigate rodents, or any other vertebrate animal
which the director may declare by rule to be a pest.
(((37))) (39) "Snails or
slugs" include all harmful mollusks.
(((38))) (40) "Unreasonable
adverse effects on the environment" means any unreasonable risk to people
or the environment taking into account the economic, social, and environmental
costs and benefits of the use of any pesticide, or as otherwise determined by
the director.
(((39))) (41) "Weed"
means any plant which grows where it is not wanted.
Sec. 2. RCW 17.21.030 and 1989 c 380 s 34 are each amended to read as follows:
The director shall administer and enforce the
provisions of this chapter and rules adopted ((hereunder)) under this
chapter.
(1) The director ((shall)) may
adopt rules:
(a) Governing the loading, mixing,
application and use, or prohibiting the loading, mixing, application, or
use((, or possession for use,)) of any pesticide;
(b) Governing the time when, and the conditions
under which restricted use pesticides shall or shall not be used in different
areas((, which areas may be)) as prescribed by the director((,))
in the state;
(c) Providing 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 of concentrations; however, any person licensed to sell such pesticides may purchase and possess such pesticides without a permit;
(d) Establishing recordkeeping requirements for licensees, permittees, and certified applicators;
(e) Fixing and collecting examination fees and fees for recertification course sponsorship;
(f) Establishing testing procedures, licensing classifications, and requirements for licenses and permits, and criteria for assigning recertification credit to and procedures for department approval of courses as provided by this chapter;
(g) Concerning training by employers for employees who mix and load pesticides;
(h) Concerning minimum performance standards for spray boom and nozzles used in pesticide applications to minimize spray drift and establishing a list of approved spray nozzles that meet these standards; and
(((g))) (i) Fixing and collecting
permit fees.
(2) The director may adopt any other rules necessary to carry out the purpose and provisions of this chapter.
Sec. 3. RCW 17.21.050 and 1989 c 380 s 36 and 1989 c 175 s 58 are each reenacted and amended to read as follows:
All hearings for the imposition of a civil penalty and/or the suspension, denial, or revocation of a license, certification, or permit issued under the provisions of this chapter shall be subject to the provisions of chapter 34.05 RCW concerning adjudicative proceedings.
Sec. 4. RCW 17.21.060 and 1961 c 249 s 6 are each amended to read as follows:
The director may issue subpoenas to compel the attendance of witnesses and/or production of books, documents, and records anywhere in the state in any hearing affecting the authority or privilege granted by a license, certification, or permit issued under the provisions of this chapter. Witnesses shall be entitled to fees for attendance and travel as provided for in chapter 2.40 RCW as enacted or hereafter amended.
Sec. 5. RCW 17.21.065 and 1967 c 177 s 17 are each amended to read as follows:
The director may classify licenses to be issued
under the provisions of this chapter((, such)). These
classifications may include but are not ((be)) limited to pest
control operators, ornamental sprayers, agricultural crop sprayers or right of
way sprayers; separate classifications may be specified as to ground, aerial,
or manual methods used by any licensee to apply pesticides.
Each such classification shall be subject to
separate testing procedures and requirements((: PROVIDED, That)). No
person shall be required to pay an additional license fee if such person
desires to be licensed in one or all of the license classifications provided
for by the director under the authority of this section, except as provided for
in RCW 17.21.110.
Sec. 6. RCW 17.21.070 and 1993 sp.s. c 19 s 4 are each amended to read as follows:
It shall be unlawful for any person to engage
in the business of applying pesticides to the land of another without a
commercial pesticide applicator license. Application for the license shall be
accompanied by a fee of one hundred thirty-six dollars and in addition a fee of
eleven dollars for each apparatus, exclusive of one, used by the applicant in
the application of pesticides: PROVIDED, That the provisions of this section
shall not apply to any person employed only to operate any apparatus used for
the application of any pesticide, and in which such person has no financial
interest or other control over such apparatus other than its day to day
mechanical operation for the purpose of applying any pesticide. ((Commercial
pesticide applicator licenses shall expire annually on a date set by rule by
the director. License fees shall be prorated where necessary to accommodate
staggering of expiration dates of a license or licenses.))
Sec. 7. RCW 17.21.080 and 1989 c 380 s 38 are each amended to read as follows:
Application for a commercial pesticide
applicator license provided for in RCW 17.21.070 shall be on a form prescribed
by the director ((and)).
(1) The application shall include the following information:
(((1))) (a) The full name of the
((person)) individual applying for such license.
(((2))) (b) The full name of the
business the individual represents with the license.
(c) If the applicant is an individual, receiver, trustee, firm, partnership, association, corporation, or any other organized group of persons whether incorporated or not, the full name of each member of the firm or partnership, or the names of the officers of the association, corporation or group.
(((3))) (d) The principal
business address of the applicant in the state ((and)) or
elsewhere.
(((4))) (e) The name of a person
whose domicile is in the state, and who is authorized to receive and accept
services of summons and legal notice of all kinds for the applicant.
(((5))) (f) The model, make,
horsepower, and size of any apparatus used by the applicant to apply
pesticides.
(((6))) (g) License
classification or classifications for which the applicant is applying ((for)).
(((7))) (h) A list of the names of
individuals allowed to apply pesticides under the authority of the commercial
applicator's license.
(i) Any other necessary information prescribed by the director.
(2) Any changes to the information provided on the prescribed commercial applicator form shall be reported by the business to the department within thirty days of the change.
NEW SECTION. Sec. 8. A new section is added to chapter 17.21 RCW to read as follows:
(1) No commercial pesticide applicator shall allow a person to apply pesticides under the authority of the commercial pesticide applicator's license unless the commercial pesticide applicator has, by mail or facsimile transmissions, submitted the name to the department on a form prescribed by the department as provided in RCW 17.21.080(2). The department shall maintain a list for each commercial pesticide applicator of persons authorized to apply pesticides under the authority of the commercial pesticide applicator's license.
(2) Violations of this chapter by a person acting as an employee, agent, or otherwise acting on behalf of or under the license authority of a commercial pesticide applicator, may, in the discretion of the department, be treated as a violation by the commercial pesticide applicator.
Sec. 9. RCW 17.21.100 and 1992 c 173 s 1 are each amended to read as follows:
(1) ((Pesticide)) Certified
applicators licensed under the provisions of this chapter ((and)),
persons required to be licensed under this chapter, 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, and
all other persons making landscape applications of pesticides to types of
property listed in RCW 17.21.410 (1)(b), (c), (d), and (e), shall keep
records for each application which shall include the following information:
(a) The location of the land where the
pesticide was applied((.));
(b) The year, month, day and beginning and
ending time of the application of the pesticide each day 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((.)) and their license number, if applicable;
(i) The direction and estimated velocity of the
wind ((at)) during 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((.)); and
(j) Any other reasonable information required by the director in rule.
(2)(a) The ((records)) required
information shall be ((updated)) recorded on the same day
that a pesticide is applied.
(b) A commercial pesticide applicator who applies a pesticide to an agricultural crop or agricultural lands shall provide a copy of the records required under subsection (1) of this section for the application to the owner, or to the lessee if applied on behalf of the lessee, of the lands to which the pesticide is applied. Records provided by a commercial pesticide applicator to the owner or lessee of agricultural lands under this subsection need not be provided on a form adopted by the department.
(3) The records required under this section shall be maintained and preserved by the licensed pesticide applicator or such other person or entity applying the pesticides for no less than seven years from the date of the application of the pesticide to which such records refer. If the pesticide was applied by a commercial pesticide applicator to the agricultural crop or agricultural lands of a person who employs one or more employees, as "employee" is defined in RCW 49.70.020, the records shall also be kept by the employer for a period of seven years from the date of the application of the pesticide to which the records refer.
(4)(a) The pesticide records shall be readily accessible to the department for inspection. Copies of the records shall be provided on request to: The department; the department of labor and industries; treating health care personnel initiating diagnostic testing or therapy for a patient with a suspected case of pesticide poisoning; the department of health; the pesticide incident reporting and tracking review 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. In addition, the director may require the submission of the records on a routine basis within thirty days of the application of any restricted use pesticide in prescribed areas controlling the use of the restricted use pesticide. When a request for records is made under this subsection by treating health care personnel and the record is required for determining treatment, copies of the record shall be provided immediately. For all other requests, copies of the record shall be provided within seventy-two hours.
(b) Copies of records provided to a person or entity under this subsection (4) shall, if so requested, be provided on a form adopted under subsection (7) of this section. Information for treating health care personnel shall be made immediately available by telephone, if requested, with a copy of the records provided within twenty-four hours.
(5) If a request for a copy of the record is made under this section from an applicator referred to in subsection (1) of this section and the applicator refuses to provide a copy, the requester may notify the department 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 of the records, 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 shall include inspection of the records required under this section as part of any on-site inspection conducted under this chapter on agricultural lands. The inspection shall determine whether the records are readily transferable to a form adopted by the department and are readily accessible to employees. However, no person subject to a department inspection may be inspected under this subsection (6) more than once in any calendar year, unless a previous inspection has found recordkeeping violations. If recordkeeping violations are found, the department may conduct reasonable multiple inspections, pursuant to rules adopted by the department. Nothing in this subsection (6) limits the department's inspection of records pertaining to pesticide-related injuries, illnesses, fatalities, accidents, or complaints.
(7) The department of agriculture and the department of labor and industries shall jointly adopt, by rule, forms that satisfy the information requirements of this section.
Sec. 10. RCW 17.21.110 and 1993 sp.s. c 19 s 5 are each amended to read as follows:
It shall be unlawful for any person to act as
an employee of a commercial pesticide applicator and apply pesticides manually
or as the operator directly in charge of any apparatus which is licensed or
should be licensed under the provisions of this chapter for the application of
any pesticide, without having obtained a commercial pesticide operator license
from the director. The commercial pesticide operator license shall be in
addition to any other license or permit required by law for the operation or use
of any such apparatus. Application for a commercial operator license shall be
accompanied by a license fee of thirty-three dollars. The provisions of this
section shall not apply to any individual who is a licensed commercial
pesticide applicator. ((Commercial pesticide operator licenses shall
expire annually on a date set by rule by the director. License fees shall be
prorated where necessary to accommodate staggering of expiration dates of a
license or licenses.))
Sec. 11. RCW 17.21.122 and 1993 sp.s. c 19 s 6 are each amended to read as follows:
It shall be unlawful for any person to act as a
private-commercial pesticide applicator without having obtained a
private-commercial pesticide applicator license from the director.
Application for a private-commercial pesticide applicator license shall
be accompanied by a license fee of seventeen dollars before a license may be
issued. ((Private-commercial applicator licenses issued by the director
shall be annual licenses expiring on a date set by rule by the director.
License fees shall be prorated where necessary to accommodate staggering of
expiration dates of a license or licenses.))
Sec. 12. RCW 17.21.126 and 1993 sp.s. c 19 s 7 are each amended to read as follows:
It shall be unlawful for any person to act as a
private pesticide applicator without first complying with the
certification requirements determined by the director as necessary to prevent
unreasonable adverse effects on the environment, including injury to the pesticide
applicator or other persons, for ((that)) each specific pesticide
use.
(1) Certification standards to determine
the individual's competency with respect to the use and handling of the
pesticide or class of pesticides for which the private pesticide
applicator is ((to be)) certified ((to use)) shall be relative to
hazards ((according to RCW 17.21.030 as now or hereafter amended)) of
the particular type of application, class of pesticides, or handling procedure.
In determining these standards the director shall take into consideration
standards of the EPA and is authorized to adopt ((by rule)) these
standards by rule.
(2) Application for private pesticide
applicator certification shall be accompanied by a license fee of seventeen
dollars ((before a certification may be issued)). Individuals with a
valid certified applicator license, pest control consultant license, or dealer
manager license who qualify in the appropriate state-wide or agricultural
license categories are exempt from ((this)) the private applicator
fee requirement ((provided that)). However, licensed public pesticide
operators, otherwise exempted from ((that)) the public
pesticide operator license fee requirement, are not also
exempted from the private pesticide applicator fee requirement. ((Private
applicator certification issued by the director shall expire annually on a date
set by rule by the director. License fees shall be prorated where necessary to
accommodate staggering of expiration dates of a license or licenses.))
Sec. 13. RCW 17.21.128 and 1986 c 203 s 9 are each amended to read as follows:
(1) The director may renew any
certification or license issued under authority of this chapter ((under the
classification for which such applicant is licensed or certificated))
subject to the recertification standards ((as determined by the
director)) identified in subsection (2) of this section or an
examination ((regarding)) requiring new knowledge that may be
required to apply pesticides.
(2) Except as provided in subsection (3) of this section, all individuals licensed under this chapter shall meet the recertification standards identified in (a) or (b) of this subsection, every five years, in order to qualify for continuing licensure.
(a) Licensed pesticide applicators may qualify for continued licensure through accumulation of recertification credits.
(i) Private pesticide applicators shall accumulate a minimum of twenty department-approved credits every five years with no more than eight credits allowed per year;
(ii) All other license types established under this chapter shall accumulate a minimum of forty department-approved credits every five years with no more than fifteen credits allowed per year.
(b) Certified pesticide applicators may qualify for continued licensure through meeting the examination requirements necessary to become licensed in those areas in which the licensee operates.
(3) At the termination of a licensee's five-year recertification period, the director may waive the requirements identified in subsection (2) of this section if the licensee can demonstrate that he or she is meeting comparable recertification standards through another state or jurisdiction or through a federal environmental protection agency approved government agency plan.
Sec. 14. RCW 17.21.129 and 1993 sp.s. c 19 s 8 are each amended to read as follows:
Except as provided in RCW 17.21.203(((1))),
it is unlawful for a person to use or supervise the use of any experimental
use pesticide or any restricted use pesticide ((which is
restricted to use by certified applicators,)) on small experimental plots
for research purposes when no charge is made for the pesticide and its
application((,)) without a demonstration and research applicator's
license.
((A license fee of seventeen dollars shall
be paid before a demonstration and research license may be issued. The
demonstration and research applicator license shall be an annual license
expiring on a date set by rule by the director. License fees shall be prorated
where necessary to accommodate staggering of expiration dates of a license or licenses.))
(1) Application for a demonstration and research certification shall be accompanied by a license fee of seventeen dollars.
(2) Persons licensed in accordance with this section are exempt from the requirements of RCW 17.21.160, 17.21.170, and 17.21.180.
Sec. 15. RCW 17.21.130 and 1989 c 380 s 46 are each amended to read as follows:
Any license, permit, or certification provided for in this chapter may be revoked or suspended, and any license, permit, or certification application may be denied by the director for cause. If the director suspends a license under this chapter with respect to activity of a continuing nature under chapter 34.05 RCW, the director may elect to suspend the license for a subsequent license year during a period that coincides with the period commencing thirty days before and ending thirty days after the date of the incident or incidents giving rise to the violation.
Sec. 16. RCW 17.21.132 and 1991 c 109 s 35 are each amended to read as follows:
Any person applying for a license or certification authorized under the provisions of this chapter shall file an application on a form prescribed by the director.
(1) The application shall state the
license or certification and the classification(s) for which the
applicant is applying ((for)) and the method in which the pesticides are
to be applied.
(2) For all classes of licenses except private applicator, all applicants shall be at least eighteen years of age on the date that the application is made. Applicants for a private pesticide applicator license shall be at least sixteen years of age on the date that the application is made.
(3) Application for a license to apply pesticides shall be accompanied by the required fee. No license may be issued until the required license fee has been received by the department. License fees shall be prorated where necessary to accommodate staggering of expiration dates of a license or licenses.
(4) Each classification of license issued
under this chapter shall expire annually on a date set by rule by the
director. License expiration dates may be staggered for administrative
purposes. Renewal applications shall be filed on or before the applicable
expiration date ((set by rule by the director. License fees shall be
prorated where necessary to accommodate staggering of expiration dates of a
license or licenses)).
Sec. 17. RCW 17.21.134 and 1989 c 380 s 45 are each amended to read as follows:
(1) The director shall not issue a commercial
pesticide applicator license until the applicant, if he or she is the sole
owner and manager of the business((, or if there is more than one
owner, the person managing the business,)) has passed ((an examination))
examinations in all classifications that the business operates. If there is
more than one owner or the owner does not participate in the pesticide
application activities, the person managing the pesticide application
activities of the business shall be licensed in all classifications that the
business operates. The director shall not issue a commercial pesticide
operator, public operator, private commercial applicator, or demonstration and
research applicator license until the applicant has passed an examination((.
Such examinations shall require the applicant to demonstrate to the director))
demonstrating knowledge of:
(a) How to apply pesticides under the
classification for which he or she has applied ((for)), manually
or with the various apparatuses that he or she may operate;
(b) The nature and effect of pesticides he or she may apply under such classifications; and
(c) Any other matter the director determines to be a necessary subject for examination.
(2) The director shall charge an examination
fee established ((by the director)) by rule when an examination is
necessary before a license may be issued or when application for such license
and examination is made at other than a regularly scheduled examination date ((as
provided for by the director)).
(3) The director may prescribe separate testing procedures and requirements for each license.
Sec. 18. RCW 17.21.150 and 1989 c 380 s 48 are each amended to read as follows:
A person who has committed any of the following acts is declared to be in violation of this chapter:
(1) Made false or fraudulent claims through any media, misrepresenting the effect of materials or methods to be utilized;
(2) Applied worthless or improper ((materials))
pesticides;
(3) Operated a faulty or unsafe apparatus;
(4) Operated in a faulty, careless, or negligent manner;
(5) Refused or neglected to comply with the provisions of this chapter, the rules adopted hereunder, or of any lawful order of the director including a final order of the director directing payment of a civil penalty. In an adjudicative proceeding arising from the department's denial of a license for failure to pay a civil penalty the subject shall be limited to whether the payment was made and the proceeding may not be used to collaterally attack the final order;
(6) Refused or neglected to keep and maintain the pesticide application records required by rule, or to make reports when and as required;
(7) Made false or fraudulent records, invoices, or reports;
(8) ((Engaged in the business of applying a
pesticide without having an appropriately licensed person in direct
"on-the-job" supervision)) Acted as a certified applicator
without having provided direct supervision to an unlicensed person as defined
in RCW 17.21.020(12);
(9) Operated an unlicensed apparatus or an apparatus without a license plate issued for that particular apparatus;
(10) Used fraud or misrepresentation in making an application for a license or renewal of a license;
(11) Is not qualified to perform the type of pest control under the conditions and in the locality in which he or she operates or has operated, regardless of whether or not he or she has previously passed a pesticide license examination;
(12) Aided or abetted a licensed or an unlicensed person to evade the provisions of this chapter, combined or conspired with such a licensed or an unlicensed person to evade the provisions of this chapter, or allowed one's license to be used by an unlicensed person;
(13) Knowingly made false, misleading or erroneous statements or reports during or after an inspection concerning any infestation or infection of pests found on land or in connection with any pesticide complaint or investigation;
(14) Impersonated any state, county or city
inspector or official; ((or))
(15) ((Used or supervised the use of a))
Applied a restricted use pesticide ((restricted to use by certified
applicators)) without having a certified applicator in direct supervision((.));
(16) Operated a commercial pesticide application business: (a) Without an individual licensed as a commercial pesticide applicator or (b) with a licensed commercial pesticide applicator not licensed in the classification or classifications in which the business operates; or
(17) Operated as a commercial pesticide applicator without meeting the financial responsibility requirements including not having a properly executed financial responsibility insurance certificate or surety bond form on file with the department.
Sec. 19. RCW 17.21.160 and 1989 c 380 s 49 are each amended to read as follows:
The director shall not issue a commercial
pesticide applicator license until the applicant has furnished evidence of
financial responsibility ((with the director consisting)).
(1) Evidence of financial responsibility
shall consist of either ((of)) a surety bond; or a liability
insurance policy or certification thereof, protecting persons who may suffer
legal damages as a result of the operations of the applicant((: PROVIDED,
That such)). The surety bond or liability insurance policy need not
apply to damages or injury to agricultural crops, plants or land being worked
upon by the applicant. The director shall not accept a surety bond or
liability insurance policy except from authorized insurers in this state or if
placed as a surplus line as provided for in chapter 48.15 RCW((, as enacted
or hereafter amended)).
(2) Evidence of financial responsibility shall be supplied to the department on a financial responsibility insurance certificate or surety bond form (blank forms supplied by the department to the applicant).
Sec. 20. RCW 17.21.170 and 1983 c 95 s 7 are each amended to read as follows:
The following requirements apply to the amount of bond or insurance required for commercial applicators:
(1) The amount of the surety bond or liability insurance, as provided for in RCW 17.21.160, shall be not less than fifty thousand dollars for property damage and public liability insurance, each separately, and including loss or damage arising out of the actual use of any pesticide. The surety bond or liability insurance shall be maintained at not less than that sum at all times during the licensed period.
(2) The property damage portion of this requirement may be waived by the director if it can be demonstrated by the applicant that all applications performed under this license occur under confined circumstances and on property owned or leased by the applicant.
(3) The director shall be notified ten days before any reduction of insurance coverage at the request of the applicant or cancellation of the surety bond or liability insurance by the surety or insurer and by the insured.
(4) The total and aggregate of the surety and insurer for all claims is limited to the face of the bond or liability insurance policy. The director may accept a liability insurance policy or surety bond in the proper sum which has a deductible clause in an amount not exceeding five thousand dollars for all applicators for the total amount of liability insurance or surety bond required by this section, but if the applicant has not satisfied the requirement of the deductible amount in any prior legal claim the deductible clause shall not be accepted by the director unless the applicant furnishes the director with a surety bond or liability insurance which shall satisfy the amount of the deductible as to all claims that may arise in his application of pesticides.
Sec. 21. RCW 17.21.180 and 1989 c 380 s 50 are each amended to read as follows:
The commercial pesticide applicator license
shall, whenever the licensee's surety bond or insurance policy is reduced below
the requirements of RCW 17.21.170 or whenever the commercial applicator has
not supplied evidence of financial responsibility, as required by RCW 17.21.160
and 17.21.170, by the expiration date of the previous policy or surety bond,
be automatically suspended until such licensee's surety bond or insurance
policy again meets the requirements of RCW 17.21.170((: PROVIDED, That)).
In addition, the director may pick up such licensee's license plates during
such period of automatic suspension and return them only at such time as the ((said))
licensee has furnished ((the director with)) written proof that he or
she is in compliance with the provisions of RCW 17.21.170.
Sec. 22. RCW 17.21.190 and 1991 c 263 s 1 are each amended to read as follows:
Any person suffering property loss or damage
resulting from the use or application by others of any pesticide shall file
with the director a verified report of loss ((setting)).
(1) The report shall set forth, so far as known to the claimant, the following:
(((1))) (a) The name and address
of the claimant((.));
(((2))) (b) The type, kind,
property alleged to be injured or damaged((.));
(((3))) (c) The name of the
person applying the pesticide and allegedly responsible((.)); and
(((4))) (d) The name of the owner
or occupant of the property for whom such application of the pesticide was
made.
(2) The report shall be filed within thirty days from the time that the property loss or damage becomes known to the claimant. If a growing crop is alleged to have been damaged, the report shall be filed prior to harvest of fifty percent of that crop, unless the loss or damage was not then known. 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 damage.
(3) Any person filing a report of loss under this section shall cooperate with the department in conducting an investigation of such a report and shall provide the department or authorized representatives of the department access to any affected property and any other necessary information relevant to the report. If a claimant refuses to cooperate with the department, the report shall not be acted on by the department.
(4) The filing of ((such)) a
report or the failure to file ((such)) a report need not be alleged in
any complaint which might be filed in a court of law, and the failure to file
the report shall not be considered any bar to the maintenance of any criminal
or civil action.
(5) The failure to file ((such))
a report shall not be a violation of this chapter. However, if the person
failing to file such report is the only one suffering loss from such use or
application of a pesticide by a pesticide applicator or operator, the director
may refuse to act upon the complaint.
Sec. 23. RCW 17.21.200 and 1992 c 170 s 9 are each amended to read as follows:
The provisions of this chapter relating to commercial pesticide applicator licenses and requirements for their issuance shall not apply to:
(1) Any forest landowner, or his or her
employees, applying pesticides with ground apparatus or manually, on his or her
own lands or any lands or rights of way under his or her control; or ((to))
(2) Any farmer owner of ground apparatus
applying pesticides for himself or herself or if applied on an occasional basis
not amounting to a principal or regular occupation without compensation other
than trading of personal services between producers of agricultural commodities
on the land of another person; or ((to))
(3) Any grounds maintenance person conducting grounds maintenance on an occasional basis not amounting to a regular occupation; or
(4) Persons who apply pesticides as an incidental part of their business, such as dog grooming services or such other businesses as shall be identified by the director.
However, persons exempt under this section
shall not use restricted use pesticides ((restricted to use by
certified applicators)) and shall not advertise or publicly hold themselves
out as pesticide applicators.
Sec. 24. RCW 17.21.203 and 1981 c 297 s 23 are each amended to read as follows:
(((1))) The licensing provisions of this
chapter shall not apply to research personnel of federal, state, county, or
municipal agencies when performing pesticide research in their official
capacities((: PROVIDED, That)), however when such persons are
applying restricted use pesticides ((restricted to use by certified
applicators)), they shall be licensed as public operators.
(((2) The licensing provisions of this
chapter shall not apply to any other person when applying pesticides to small
experimental plots for research purposes when no charge is made for the
pesticide and its application: PROVIDED, That if such persons are not provided
for in subsection (1) of this section and are applying pesticides restricted to
use by certified applicators, they shall be required to be licensed as
demonstration and research applicators in accordance with RCW 17.21.129, but
shall be exempt from the requirements of RCW 17.21.160, 17.21.170, and
17.21.180.))
Sec. 25. RCW 17.21.220 and 1993 sp.s. c 19 s 9 are each amended to read as follows:
(1) All state agencies, municipal corporations, and public utilities or any other governmental agency shall be subject to the provisions of this chapter and rules adopted thereunder concerning the application of pesticides.
(2) It shall be unlawful for any employee of a
state agency, municipal corporation, public utility, or any other government
agency to use or to supervise the use of any restricted use pesticide ((restricted
to use by certified applicators)), or any pesticide by means of an
apparatus, without having obtained a public operator license from the
director. A license fee of seventeen dollars shall be paid before a public
operator license may be issued. The license fee shall not apply to public
operators licensed and working in the health vector field. ((Public
operator licenses shall expire annually on a date set by rule by the director.
License fees shall be prorated where necessary to accommodate staggering of
expiration dates of a license or licenses.)) The public operator license
shall be valid only when the operator is acting as an employee of a government
agency.
(3) The jurisdictional health officer or his or
her duly authorized representative is exempt from this licensing provision when
applying pesticides that are not restricted ((to use by certified
applicators)) use pesticides to control pests other than weeds.
(4) Such agencies, municipal corporations and public utilities shall be subject to legal recourse by any person damaged by such application of any pesticide, and such action may be brought in the county where the damage or some part thereof occurred.
Sec. 26. RCW 17.21.230 and 1989 c 380 s 54 are each amended to read as follows:
(1) There is hereby created a pesticide
advisory board consisting of ((three)) four licensed pesticide
applicators residing in the state (one shall be licensed to operate agricultural
ground apparatus, one shall be an urban landscape applicator, one shall
be licensed to operate aerial apparatus, and one shall be licensed for
structural pest control), one licensed pest control consultant, one licensed
pesticide dealer manager, one entomologist in public service, one toxicologist
in public service, one pesticide coordinator from Washington State University,
one member from the agricultural chemical industry, one member from the food
processing industry, one member representing agricultural labor, one health
care practitioner in private practice, ((one)) two members
from the environmental community, one producer of aquacultural products,
and two producers of agricultural crops or products on which pesticides are
applied ((or which may be affected by the application of pesticides)).
(2) Such members shall be appointed by
the ((governor)) director for terms of four years and may be
appointed for successive four-year terms at the discretion of the ((governor.
The governor)) director. The terms shall be staggered so that
approximately one-fourth of the terms expire on June 30 of each calendar year.
In making appointments, the director shall seek nominations from affected
agricultural and environmental groups. The director may remove any member
of the pesticide advisory board prior to the expiration of his or her term of
appointment for cause. The pesticide advisory board shall also include the
following nonvoting members: The director of the department of labor and
industries or a duly authorized representative, the environmental health
specialist from the ((division of health of the department of social and
health services)) department of health, the ((supervisor)) assistant
director of the ((chemical)) pesticide management division of
the department, and the directors, or their appointed representatives, of the
department((s)) of ((wildlife, fisheries)) fish and wildlife,
natural resources, and ecology.
Sec. 27. RCW 17.21.240 and 1989 c 380 s 55 are each amended to read as follows:
Upon the death, resignation or removal for
cause of any member of the pesticide advisory board, the ((governor)) director
shall attempt to fill such vacancy, within thirty days of its creation,
for the remainder of its term in the manner herein prescribed for appointment
to the board.
Sec. 28. RCW 17.21.260 and 1989 c 380 s 57 are each amended to read as follows:
The pesticide advisory board shall elect one of
its members ((chairman)) as chair. The members of the board
shall meet at such time and at such place as shall be specified by the call of
the director, ((chairman)) chair, or a majority of the board.
Sec. 29. RCW 17.21.280 and 1989 c 380 s 59 are each amended to read as follows:
All moneys collected under the provisions of
this chapter shall be paid to the director and deposited in the agricultural
local fund, RCW 43.23.230, for use exclusively in the enforcement of this
chapter((: PROVIDED, That)). All fees, fines, forfeitures and
penalties collected or assessed by a district court because of the violation of
a state law shall be remitted as provided in chapter 3.62 RCW ((as now
exists or is later amended)).
Sec. 30. RCW 17.21.290 and 1989 c 380 s 60 are each amended to read as follows:
All licensed apparatuses shall be identified by
a license plate furnished by the director, at no cost to the licensee, which
plate shall be affixed in a location and manner upon such apparatus as
prescribed ((by the director)) in rule.
Sec. 31. RCW 17.21.310 and 1967 c 177 s 16 are each amended to read as follows:
Any person who shall violate any provisions or
requirements of this chapter or rules adopted ((hereunder)) under
this chapter for which a penalty is not otherwise provided shall be deemed
guilty of a misdemeanor and guilty of a gross misdemeanor for any second and
subsequent offense((: PROVIDED, That)). Any offense committed
more than five years after a previous conviction shall be considered a first
offense.
Sec. 32. RCW 17.21.360 and 1993 sp.s. c 19 s 10 are each amended to read as follows:
Each registration and licensing fee under this
chapter is increased by a surcharge of six dollars to be deposited in the
agricultural local fund, provided that an additional one-time surcharge of five
dollars shall be collected on January 1, 1990. The revenue raised by the
imposition of this surcharge shall be used to assist in funding the pesticide
incident reporting and tracking review panel, department of ((social and
health services')) health's pesticide investigations, and the
department of agriculture's pesticide investigations.
Sec. 33. RCW 17.21.400 and 1992 c 176 s 2 are each amended to read as follows:
(1)(a) A certified applicator making a landscape application shall display the name and telephone number of the applicator or the applicator's employer on any power application apparatus. The applicator shall also carry the material safety data sheet for each pesticide being applied.
(b) A certified applicator making a right of way application shall display the name and telephone number of the applicator or the applicator's employer and the words "VEGETATION MANAGEMENT APPLICATION" on any power application apparatus. The applicator shall also carry the material safety data sheet for each pesticide being applied.
(2) If a certified applicator receives a written request for information on a landscape or right of way spray application, the applicator shall provide the requestor with the name or names of each pesticide applied and (a) a copy of the material safety data sheet for each pesticide; or (b) a pesticide fact sheet for each pesticide as developed or approved by the department.
(3) The director shall adopt rules establishing the size and lettering requirements of the apparatus display signs required under this section.
Sec. 34. RCW 17.21.410 and 1992 c 176 s 5 are each amended to read as follows:
(1) A certified applicator making a landscape application to:
(a) Residential property shall at the time of the application place a marker at the usual point of entry to the property. If the application is made to an isolated spot that is not a substantial portion of the property, the applicator shall only be required to place a marker at the application site. If the application is in a fenced or otherwise isolated backyard, no marker is required.
(b) Commercial properties such as apartments or shopping centers shall at the time of application place a marker in a conspicuous location at or near each site being treated.
(c) A golf course shall at the time of the application place a marker at the first tee and tenth tee or post the information in a conspicuous location such as on a central message board.
(((c))) (d) A school, nursery
school, or licensed day care shall at the time of the application place a
marker at each primary point of entry to the school grounds.
(((d))) (e) A park, cemetery,
rest stop, or similar property as may be defined in rule shall at the time
of the application place a marker at each primary point of entry.
(2) An individual making a landscape application to a school grounds, nursery school, or licensed day care, and not otherwise covered by subsection (1) of this section, shall be required to comply with the posting requirements in subsection (1)(d) of this section.
(3) The marker shall be a minimum of four inches by five inches. It shall have the words: "THIS LANDSCAPE HAS BEEN TREATED BY" as the headline and "FOR MORE INFORMATION PLEASE CALL" as the footer. Larger size requirements for markers may be established in rule for specific applications. The company name and service mark with the applicator's telephone number where information can be obtained shall be included between the headline and the footer on the marker. The letters and service marks shall be printed in colors contrasting to the background.
(((3))) (4) The property owner or
tenant shall remove the marker ((the day following the application)) according
to the schedule established in rule. A commercial applicator is not liable
for the removal of markers by unauthorized persons or removal outside the
designated removal time.
(((4))) (5) A certified
applicator who complies with this section cannot be held liable for personal
property damage or bodily injury resulting from markers that are placed as
required.
Sec. 35. RCW 17.21.420 and 1992 c 176 s 3 are each amended to read as follows:
(1) The department shall develop a list of pesticide-sensitive individuals. The list shall include any person with a documented pesticide sensitivity who submits information to the department on an application form developed by the department indicating the person's pesticide sensitivity.
(2) An applicant for inclusion on the pesticide-sensitive list may apply to the department at any time and shall provide the department, on the department's form, the name, street address, and telephone number of the applicant and of each property owner with property abutting the applicant's principal place of residence. The pesticide sensitivity of an individual shall be certified by a physician who holds a valid license to practice medicine in this state. The lands listed on an application for inclusion on the pesticide-sensitive list shall constitute the pesticide notification area for that applicant. For highway or road right of ways, a property abutting shall mean that portion of the property within one-half mile of the principal place of residence.
(3) A person whose name has been included on the pesticide-sensitive list shall notify the department of a need to update the list as soon as possible after: (a) A change of address or telephone number; (b) a change in ownership of property abutting a pesticide-sensitive individual; (c) a change in the applicant's condition; or (d) the sensitivity is deemed to no longer exist.
(4) The pesticide-sensitive list shall expire on December 31 of each year. The department shall distribute application forms for the new list at a reasonable time prior to the expiration of the current list, including mailing an application form to each person on the current list at the address given by the person in his or her most recent application. Persons desiring to be placed on or remain on the list shall submit a new application each year.
(5) The department shall distribute the list by
((February 15)) January 1 and June 15 of each year to all
certified applicators likely to make landscape applications. The list shall
provide multiple methods of accessing the information so that certified
applicators making landscape applications or right of way applications are able
to easily determine what properties and individuals require notification for a
specific application. An updated list shall be distributed whenever deemed
necessary by the department. Certified applicators may request a list of newly
registered individuals that have been added to the list since the last
distribution. Registered individuals shall receive verification that their
name has been placed on the list.
Sec. 36. RCW 17.21.910 and 1992 c 170 s 10 are each amended to read as follows:
Unless revoked for cause by the director, any license issued under the provisions of this chapter and in effect on June 7, 1961, shall continue in full force and effect until its expiration date: PROVIDED, That public pesticide operator, private commercial pesticide applicator and demonstration and research pesticide applicator licenses in effect on December 31, 1985, shall expire on December 31, 1990, and any public operator, private commercial applicator and demonstration and research pesticide applicator licenses issued after December 31, 1985, and in effect on December 31, 1986, shall expire on December 31, 1991. Unless revoked for cause, any private commercial pesticide applicator and demonstration and research pesticide applicator licenses issued prior to June 11, 1992, shall be valid until their expiration date.
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