H-2665

AN ACT Relating to pesticide registration and licensing; amending RCW 15.58.040, 15.58.070, 15.58.170, 15.58.180, 15.58.200, 15.58.210, 15.58.220, 15.58.411, 15.58.420, 17.21.070, 17.21.110, 17.21.122, 17.21.126, 17.21.129, 17.21.132, 17.21.220, 17.21.280, and 17.21.350; adding a new section to chapter 15.58 RCW; adding a new section to chapter 43.23 RCW; repealing RCW 15.58.245, 17.21.910, 15.58.415, and 17.21.360; and providing an effective date.

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

Sec. 1. RCW 15.58.040 and 1996 c 188 s 4 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 of all pesticides, determined to be highly toxic, 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;

(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, or any other hazard to the public. 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 determines that such pesticides may require rules restricting or prohibiting their distribution or use. The director 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 require all persons issued such permits to maintain records as to the use of all the restricted use pesticides;

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

(j) Regulating the labeling of devices;

(k) The establishment of criteria governing the conduct of a structural pest control inspection; and

(l) Declaring crops, when grown to produce seed specifically for crop reproduction purposes, to be nonfood and/or nonfeed sites of pesticide application. The director may include in the rule any restrictions or conditions regarding: (i) The application of pesticides to the designated crops; and (ii) the disposition of any portion of the treated crop.

(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. 2. RCW 15.58.070 and 1995 c 374 s 66 are each amended to read as follows:

(1) ((~~Except as provided in subsection (4) of this section,~~)) Any person desiring to register a pesticide with the department shall pay to the director an annual registration fee for each pesticide registered by the department for such person. The registration fee ((~~for the registration of pesticides for any one person during a calendar year~~)) shall be((:)) one hundred ((~~five~~)) forty-five dollars for each ((~~of the first twenty-five~~)) pesticide((s)) registered((; one hundred dollars for each of the twenty-sixth through one-hundredth pesticides registered; seventy-five dollars for each of the one hundred first through one hundred fiftieth pesticides registered; and fifty dollars for each additional pesticide registered. In addition, the department may establish by rule a registration fee not to exceed ten dollars for each registered product labeled and intended for home and garden use only)).

(2) The revenue generated by the ((~~pesticide~~)) registration fees shall be deposited in the agricultural local fund to support the activities of the pesticide program within the department. ((~~The revenue generated by the home and garden use only fees shall be deposited in the agriculture~~C~~local fund, to be used to assist in funding activities of the pesticide incident reporting and tracking review panel.~~))

(3) All pesticide registrations expire on December 31st of each year. A registrant may elect to register a pesticide for a two-year period by prepaying for a second year at the time of registration.

(4) ((A person desiring to register a label where a special local need exists shall pay to the director a nonrefundable application fee of two hundred dollars upon submission of the registration request. In addition, a person desiring to renew an approved special local need registration shall pay to the director an annual registration fee of two hundred dollars for each special local needs label registered by the department for such person. The revenue generated by the special local needs application fees and the special local needs renewal fees shall be deposited in the agricultural local fund to be used to assist in funding the department's special local needs registration activities. All special local needs registrations expire on December 31st of each year.

~~(5)~~)) Any registration approved by the director and in effect on the 31st day of December for which a renewal application has been made and the proper fee paid, continues in full force and effect until the director notifies the applicant that the registration has been renewed, or otherwise denied in accord with the provision of RCW 15.58.110.

Sec. 3. RCW 15.58.170 and 1989 c 380 s 13 are each amended to read as follows:

(1) After service of a "stop sale, use or removal" order is made upon any person, either that person or the director may file an action in a court of competent jurisdiction in the county in which a violation of this chapter or rules adopted under this chapter is alleged to have occurred for an adjudication of the alleged violation. The court in such action may issue temporary or permanent injunctions mandatory or restraining, and such intermediate orders as it deems necessary or advisable. The court may order condemnation of any pesticide or device which does not meet the requirements of this chapter or rules adopted under this chapter: PROVIDED, That no authority is granted hereunder to affect the sale or use of products on which legally approved pesticides have been legally used.

(2) If the pesticide or device is condemned, it shall, after entry of decree, be disposed of by destruction or sale as the court directs, and the proceeds, if such pesticide or device is sold, less cost including legal costs, shall be paid to the state treasury ((~~as provided in RCW 15.58.410~~)): PROVIDED, That the pesticide or device shall not be sold contrary to the provisions of this chapter or rules adopted under this chapter. Upon payment of costs and execution and delivery of a good and sufficient bond conditioned that the pesticide or device shall not be disposed of unlawfully, the court may direct that the pesticide or device be delivered to the owner thereof for relabeling or reprocessing as the case may be.

(3) When a decree of condemnation is entered against the pesticide, court costs, fees, and storage and other proper expenses shall be awarded against the person, if any, appearing as claimant of the pesticide.

Sec. 4. RCW 15.58.180 and 1989 c 380 s 14 are each amended to read as follows:

(1) Except as provided in subsections (4) and (5) of this section, it is unlawful for any person to act in the capacity of a pesticide dealer or advertise as or assume to act as a pesticide dealer without first having obtained an annual license from the director. The license shall expire on the master license expiration date. A license is required for each location or outlet located within this state from which pesticides are distributed. A manufacturer, registrant, or distributor who has no pesticide dealer outlet licensed within this state and who distributes such pesticides directly into this state shall obtain a pesticide dealer license for his or her principal out-of-state location or outlet, but such licensed out-of-state pesticide dealer is exempt from the pesticide dealer manager requirements.

(2) Application for a license shall be accompanied by a ((~~thirty-dollar annual license~~)) fee of fifty dollars and shall be made through the master license system and shall include the full name of the person applying for the license and the name of the individual within the state designated as the pesticide dealer manager. If the applicant is a partnership, association, corporation, or organized group of persons, the full name of each member of the firm or partnership or the names of the officers of the association or corporation shall be given on the application. The application shall further state the principal business address of the applicant in the state and elsewhere, the name of a person domiciled in this state authorized to receive and accept service of summons of legal notices of all kinds for the applicant, and any other necessary information prescribed by the director.

(3) It is unlawful for any licensed dealer outlet to operate without a pesticide dealer manager who has a license of qualification. The department shall be notified forthwith of any change in the pesticide dealer manager designee during the licensing period.

(4) This section does not apply to (a) a licensed pesticide applicator who sells pesticides only as an integral part of the applicator's pesticide application service when such pesticides are dispensed only through apparatuses used for such pesticide application, or (b) any federal, state, county, or municipal agency that provides pesticides only for its own programs.

(5) A user of a pesticide may distribute a properly labeled pesticide to another user who is legally entitled to use that pesticide without obtaining a pesticide dealer's license if the exclusive purpose of distributing the pesticide is keeping it from becoming a hazardous waste as defined in chapter 70.105 RCW.

Sec. 5. RCW 15.58.200 and 1992 c 170 s 2 are each amended to read as follows:

The director shall require each pesticide dealer manager to demonstrate to the director knowledge of pesticide laws and rules; pesticide hazards; and the safe distribution, use and application, and disposal of pesticides by satisfactorily passing a written examination after which the director shall issue a license of qualification. Application for a license shall be accompanied by a ((~~license~~)) fee of ((~~fifteen~~)) twenty-five dollars. The pesticide dealer manager 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.~~))

Sec. 6. RCW 15.58.210 and 1992 c 170 s 3 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, no individual may perform services as a pest control consultant without obtaining a license from the director ((~~an annual license, which~~)). The license 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.~~)) Except as provided in subsection (3) of this section, no individual may act as a structural pest control inspector without first obtaining from the director a pest control consultant license in the special category of structural pest control inspector. Application for a license shall be on a form prescribed by the director and shall be accompanied by a fee of ((~~thirty~~)) forty-five dollars.

(2) The following are exempt from the licensing requirements of subsection (1) of this section when acting within the authorities of their existing licenses issued under chapter 17.21 RCW: Licensed commercial pesticide applicators and operators; licensed private‑commercial applicators; and licensed demonstration and research applicators. The following are also exempt from the licensing requirements of subsection (1) of this section: Employees of federal, state, county, or municipal agencies when acting in their official governmental capacities; and pesticide dealer managers and employees working under the direct supervision of the pesticide dealer manager and only at a licensed pesticide dealer's outlet.

(3) The following are exempt from the structural pest control inspector licensing requirement: Individuals inspecting for damage caused by wood destroying organisms if such inspections are solely for the purpose of: (a) Repairing or making specific recommendations for the repair of such damage, or (b) assessing a monetary value for the structure inspected. Individuals performing wood destroying organism inspections that incorporate but are not limited to the activities described in (a) or (b) of this subsection are not exempt from the structural pest control inspector licensing requirement.

Sec. 7. RCW 15.58.220 and 1991 c 109 s 40 are each amended to read as follows:

For the purpose of this section public pest control consultant means any individual who is employed by a governmental agency or unit to act as a pest control consultant as defined in RCW 15.58.030(28). No person shall act as a public pest control consultant ((~~on or after February 28, 1973~~)) without first obtaining ((~~an annual~~)) a license from the director. The license 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.~~)) Application for a license shall be on a form prescribed by the director and shall be accompanied by ((~~an annual license~~)) a fee of ((~~fifteen~~)) twenty-five dollars. Federal and state employees whose principal responsibilities are in pesticide research, the jurisdictional health officer or a duly authorized representative, public pest control consultants licensed and working in the health vector field, and public operators licensed under RCW 17.21.220 shall be exempt from this licensing provision.

Sec. 8. RCW 15.58.411 and 1995 c 374 s 67 are each amended to read as follows:

All license fees collected under this chapter shall be paid to the director for use exclusively in the enforcement of this chapter. All moneys collected for civil penalties levied under this chapter shall be deposited in the state general fund.

Sec. 9. RCW 15.58.420 and 1989 c 380 s 30 are each amended to read as follows:

NEW SECTION. Sec. 10. A new section is added to chapter 15.58 RCW to read as follows:

(1) The director may renew any license issued under this chapter subject to the recertification standards identified in subsection (2) of this section or an examination 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. Individuals licensed 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) Licensed 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 recertification requirements 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. 11. RCW 17.21.070 and 1994 c 283 s 6 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~~)) a commercial applicator license shall be accompanied by a fee of one hundred ((~~thirty-six~~)) seventy dollars and in addition a fee of ((~~eleven~~)) twenty 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.

Sec. 12. RCW 17.21.110 and 1994 c 283 s 10 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~~)) fifty dollars. The provisions of this section shall not apply to any individual who is a licensed commercial pesticide applicator.

Sec. 13. RCW 17.21.122 and 1994 c 283 s 11 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~~)) twenty-five dollars ((~~before a license may be issued~~)).

Sec. 14. RCW 17.21.126 and 1994 c 283 s 12 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 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 certified shall be relative to hazards 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 these standards by rule.

(2) Application for a private pesticide applicator ((~~certification~~)) license shall be accompanied by a ((~~license~~)) fee of ((~~seventeen~~)) twenty-five dollars. 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 the private applicator fee requirement. However, licensed public pesticide operators, otherwise exempted from the public pesticide operator license fee requirement, are not also exempted from the private pesticide applicator fee requirement.

Sec. 15. RCW 17.21.129 and 1994 c 283 s 14 are each amended to read as follows:

Except as provided in RCW 17.21.203, it is unlawful for a person to use or supervise the use of any experimental use pesticide or any restricted use pesticide 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.

(1) Application for a demonstration and research ((~~certification~~)) license shall be accompanied by a ((~~license~~)) fee of ((~~seventeen~~)) twenty-five 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. 16. RCW 17.21.132 and 1994 c 283 s 16 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 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.

Sec. 17. RCW 17.21.220 and 1994 c 283 s 25 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, or any pesticide by means of an apparatus, without having obtained a public operator license from the director. ((~~A license~~)) Application for a public operator license shall be accompanied by a fee of ((~~seventeen~~)) twenty-five 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. 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 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. 18. RCW 17.21.280 and 1994 c 283 s 29 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, 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.

(2) All moneys collected for civil penalties levied under RCW 17.21.315 shall be deposited in the state general fund. 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.

Sec. 19. RCW 17.21.350 and 1989 c 380 s 64 are each amended to read as follows:

By ((~~December 1, 1989, and each subsequent December 1,~~)) February 1st of each year the department shall report to the appropriate committees of the house of representatives and the senate on the activities of the department under this chapter. The report shall include, at a minimum: (1) A review of the department's pesticide incident investigation and enforcement activities, with the number of cases investigated and the number and amount of civil penalties assessed; and (2) a summary of the pesticide residue food monitoring program with information on the food samples tested and results of the tests, a listing of the pesticides for which ((no)) testing is done, and other pertinent information.

NEW SECTION. Sec. 20. A new section is added to chapter 43.23 RCW to read as follows:

The director of agriculture shall appoint an agricultural presidents' advisory council composed of the presidents of the major state agricultural organizations. The council shall provide advice to the director of agriculture regarding the administration of chapters 15.58 and 17.21 RCW and the policies that guide the administration of those laws. The organizations represented on the council shall include the broad range of state associations of agricultural commodity producers, agricultural employers, silvicultural producers, suppliers of fertilizers and plant protection products, handlers of agricultural commodities, and food processors as well as those state agricultural associations organized for the support of the agricultural industry and agricultural families in general. As used in this section, an "agricultural commodity" includes, but is not limited to, a private sector cultured aquatic product as defined in RCW 15.85.020.

A member of the advisory council shall serve only as long as the person is also the president of the organization represented. The members shall serve without compensation or reimbursement for their travel expenses.

NEW SECTION. Sec. 21. The following acts or parts of acts are each repealed:

(1) RCW 15.58.245 and 1992 c 170 s 4 & 1989 c 380 s 21; and

(2) RCW 17.21.910 and 1994 c 283 s 35, 1992 c 170 s 10, 1989 c 380 s 65, & 1961 c 249 s 32.

NEW SECTION. Sec. 22. The following acts or parts of acts are each repealed:

(1) RCW 15.58.415 and 1993 sp.s. c 19 s 3 & 1989 c 380 s 32; and

(2) RCW 17.21.360 and 1994 c 283 s 31, 1993 sp.s. c 19 s 10, & 1989 c 380 s 66.

NEW SECTION. Sec. 23. Sections 2, 4 through 7, 11 through 15, 17, and 22 of this act take effect January 1, 1998.