BILL REQ. #:  H-3226.2 

Read first time 01/11/2006.   Referred to Committee on Economic Development, Agriculture & Trade.

     AN ACT Relating to pesticide application notification of pesticide-sensitive individuals; amending RCW 17.21.020, 17.21.150, 17.21.420, and 17.21.430; adding a new section to chapter 17.21 RCW; providing an effective date; and declaring an emergency.

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

Sec. 1   RCW 17.21.020 and 2004 c 100 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) "Antimicrobial pesticide" means a pesticide that is used for the control of microbial pests, including but not limited to viruses, bacteria, algae, and protozoa, and is intended for use as a disinfectant or sanitizer.
     (4) "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.
     (5) "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.
     (6) "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, private applicator, limited private applicator, rancher 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.
     (7) "Commercial pesticide applicator" means any person who engages in the business of applying pesticides to the land of another.
     (8) "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.
     (9) "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.
     (10) "Department" means the Washington state department of agriculture.
     (11) "Desiccant" means any substance or mixture of substances intended to artificially accelerate the drying of plant tissues.
     (12) "Device" means any instrument or contrivance intended to trap, destroy, control, repel, or mitigate pests, but not including equipment used for the application of pesticides when sold separately from the pesticides.
     (13) "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. However, direct supervision for forest application does not require constant voice and visual contact when general use pesticides are applied using nonapparatus type equipment, the certified applicator is physically present and readily available in the immediate application area, and the certified applicator directly observes pesticide mixing and batching. Direct supervision of an aerial apparatus means the pilot of the aircraft must be appropriately certified.
     (14) "Director" means the director of the department or a duly authorized representative.
     (15) "Engage in business" means any application of pesticides by any person upon lands or crops of another.
     (16) "EPA" means the United States environmental protection agency.
     (17) "EPA restricted use pesticide" means any pesticide classified for restricted use by the administrator, EPA.
     (18) "FIFRA" means the federal insecticide, fungicide and rodenticide act as amended (61 Stat. 163, 7 U.S.C. Sec. 136 et seq.).
     (19) "Forest application" means the application of pesticides to agricultural land used to grow trees for the commercial production of wood or wood fiber for products such as dimensional lumber, shakes, plywood, poles, posts, pilings, particle board, hardboard, oriented strand board, pulp, paper, cardboard, or other similar products.
     (20) "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.
     (21) "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, except those on or in a living person or other animals.
     (22) "Fungicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any fungi.
     (23) "Herbicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any weed or other higher plant.
     (24) "Immediate service call" means a ((landscape)) pesticide application to satisfy an emergency customer request for service((, or a treatment to control a pest to landscape plants)).
     (25) "Insect" means any small invertebrate animal, in any life stage, whose adult form is segmented and which generally belongs to the class insecta, comprised of six-legged, usually winged forms, as, for example, beetles, bugs, bees, and flies. 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.
     (26) "Insecticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any insect.
     (27) "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.
     (28) "Landscape application" means an application of any ((EPA registered)) pesticide registered for use in this state to any exterior landscape area around residential property as defined in this chapter, commercial properties such as apartments or shopping centers, parks, golf courses, schools including nursery schools and licensed day cares, or cemeteries or similar areas. This definition shall not apply to: (a) Applications made by private applicators, limited private applicators, or rancher private applicators; (b) mosquito abatement, gypsy moth eradication, or similar wide-area pest control programs sponsored by governmental entities; and (c) commercial pesticide applicators making structural applications to the perimeter of a structure.
     (29) "Limited private applicator" means a certified applicator who uses or is in direct supervision, as defined for private applicators in this section, of the use of any herbicide classified by the EPA or the director as a restricted use pesticide, for the sole purpose of controlling weeds on nonproduction agricultural land owned or rented by the applicator or the applicator's employer. Limited private applicators may also use restricted use pesticides on timber areas, excluding aquatic sites, to control weeds designated for mandatory control under chapters 17.04, 17.06, and 17.10 RCW and state and local regulations adopted under chapters 17.04, 17.06, and 17.10 RCW. A limited private applicator may apply restricted use herbicides to the types of land described in this subsection of another person if applied without compensation other than trading of personal services between the applicator and the other person. This license is only valid when making applications in counties of Washington located east of the crest of the Cascade mountains.
     (30) "Limited production agricultural land" means land used to grow hay and grain crops that are consumed by the livestock on the farm where produced. No more than ten percent of the hay and grain crops grown on limited production agricultural land may be sold each crop year. Limited production agricultural land does not include aquatic sites.
     (31) "Maintenance applicator" means any individual, except for a certified applicator, who, in the course of his or her employment, applies pesticides to the pesticide notification area of a pesticide-sensitive individual who lives in a multifamily dwelling, including the manager or owner of the multifamily dwelling.
     (32) "Nematocide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate nematodes.
     (((32))) (33) "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.
     (((33))) (34) "Nonproduction agricultural land" means pastures, rangeland, fencerows, and areas around farm buildings but not aquatic sites.
     (((34))) (35) "Person" means any individual, partnership, association, corporation, or organized group of persons whether or not incorporated.
     (((35))) (36) "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.
     (((36))) (37) "Pesticide" means, but is not limited to:
     (a) Any substance or mixture of substances intended to prevent, destroy, control, repel, or mitigate any pest;
     (b) Any substance or mixture of substances intended to be used as a plant regulator, defoliant or desiccant; and
     (c) Any spray adjuvant as defined in RCW 15.58.030.
     (((37))) (38) "Pesticide advisory board" means the pesticide advisory board as provided for in this chapter.
     (((38))) (39) "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.
     (((39))) (40) "Private applicator" means a certified applicator who uses or is in direct supervision of the use of any pesticide classified by the EPA or the director as a restricted use pesticide, 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.
     (((40))) (41) "Private-commercial applicator" means a certified applicator who uses or supervises the use of any pesticide classified by the EPA or the director as a restricted use pesticide for purposes other than the production of any agricultural commodity on lands owned or rented by the applicator or the applicator's employer.
     (((41))) (42) "Rancher private applicator" means a certified applicator who uses or is in direct supervision, as defined for private applicators in this section, of the use of any herbicide or any rodenticide classified by the EPA or the director as a restricted use pesticide for the purpose of controlling weeds and pest animals on nonproduction agricultural land and limited production agricultural land owned or rented by the applicator or the applicator's employer. Rancher private applicators may also use restricted use pesticides on timber areas, excluding aquatic sites, to control weeds designated for mandatory control under chapters 17.04, 17.06, and 17.10 RCW and state and local regulations adopted under chapters 17.04, 17.06, and 17.10 RCW. A rancher private applicator may apply restricted use herbicides and rodenticides to the types of land described in this subsection of another person if applied without compensation other than trading of personal services between the applicator and the other person. This license is only valid when making applications in counties of Washington located east of the crest of the Cascade mountains.
     (((42))) (43) "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.
     (((43))) (44) "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.
     (((44))) (45) "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.
     (((45))) (46) "School facility" means any facility used for licensed day care center purposes or for the purposes of a public kindergarten or public elementary or secondary school. School facility includes the buildings or structures, playgrounds, landscape areas, athletic fields, school vehicles, or any other area of school property.
     (((46))) (47) "Snails or slugs" include all harmful mollusks.
     (((47))) (48) "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.
     (((48))) (49) "Weed" means any plant which grows where it is not wanted.

Sec. 2   RCW 17.21.150 and 1994 c 283 s 18 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 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) Acted as a certified applicator without having provided direct supervision to an unlicensed person as defined in RCW 17.21.020(((12))) (13);
     (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;
     (15) Applied a restricted use pesticide 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; or
     (18) Failed to notify a pesticide-sensitive individual of a pesticide application as required by this chapter.

Sec. 3   RCW 17.21.420 and 1994 c 283 s 34 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 the street address of each ((property owner with)) property abutting the applicant's principal place of residence. In the case of a multifamily dwelling, the applicant shall provide the name, street address, and telephone number of the property manager. The pesticide sensitivity of an individual shall be certified by a physician who holds a valid license to practice medicine in this state.
     (3) For a pesticide-sensitive individual who lives in a single-family dwelling, the lands listed on ((an)) the application ((for inclusion on the pesticide-sensitive list)) form shall constitute the pesticide notification area for that ((applicant. For highway or road rights of way, a property abutting shall mean that portion of the property within one-half mile of the principal place of residence)) individual for landscape and right of way applications.
     (((3))) (4) For a pesticide-sensitive individual who lives in a multifamily dwelling, such as an apartment or condominium, the lands listed on the application form, including all landscape areas on the property of the multifamily dwelling, shall constitute the pesticide notification area for that individual for landscape and right of way applications. The pesticide notification area for that individual for pesticide applications to structures includes:
     (a) The individual's dwelling;
     (b) All interior areas of the individual's building that are accessible to the individual, except the interior of other dwellings;
     (c) All common areas of the multifamily dwelling that are for use by and accessible to the individual, including but not limited to kitchens, laundry rooms, clubhouses, and recreational rooms;
     (d) All exterior areas, including the perimeter, of any structure on the property of the multifamily dwelling.
     (5) For highway or road rights of way, a property abutting shall mean that portion of the property within one-half mile of the principal place of residence.
     (6) 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))) (c) the sensitivity is deemed to no longer exist.
     (((4))) (7) 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))) (8) The department shall distribute the list by January 1 and June 15 of each year to all certified applicators likely to make ((landscape)) applications to the pesticide notification area of a pesticide-sensitive individual. 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. 4   RCW 17.21.430 and 1992 c 176 s 4 are each amended to read as follows:
     (1) A certified applicator making a ((landscape application or a right of way)) pesticide application to the pesticide notification area((, as defined in RCW 17.21.420(2), of a person)) of an individual on the pesticide-sensitive list shall notify the ((listed pesticide-sensitive)) individual of the application. Notification shall be made at least ((two)) ten hours prior to the scheduled application, or in the case of an immediate service call, the applicator shall provide notification at the time of the application. The applicator must make the application within twenty-four hours following the date and approximate time stated in the notification. If the application is not made within twenty-four hours, the notification process must be repeated.
     (2) Notification under this section shall be made in writing, in person, or by telephone, and shall disclose the address or the specific location on the property where the pesticide is to be applied and the date and approximate time of the application. In the event a certified applicator is unable to provide prior notification because of the absence or inaccessibility of the individual, the applicator shall leave a written notice at the residence of the individual ((listed on the pesticide-sensitive list)) at the time of the application. If ((a person on the pesticide-sensitive list)) the individual lives in a multifamily dwelling ((such as an apartment or condominium)) and the residence is inaccessible, the applicator shall ((notify the person on the list or shall advise)) leave written notice with the manager or other property owner's representative ((to)) who shall notify the ((person on the list)) individual of the application.
     (3) The pesticide-sensitive individual may request in writing, in person, or by telephone that the certified applicator provide the name of each pesticide applied within the individual's pesticide notification area. The applicator shall provide the information within twenty-four hours of the application or of receiving the request.
     (4) The notification requirements of this section do not apply to routine applications of an antimicrobial pesticide.

NEW SECTION.  Sec. 5   A new section is added to chapter 17.21 RCW to read as follows:
     (1) An individual on the pesticide-sensitive list who lives in a multifamily dwelling is entitled to receive prior notification of all pesticide applications made by maintenance applicators to property within the pesticide notification area of that individual. The department shall inform the manager of the property within the individual's pesticide notification area in writing that the individual is on the pesticide-sensitive list and that the manager has certain duties under this section and RCW 17.21.430.
     (2) Following receipt of the information, the manager of the property shall provide prior notification to the pesticide-sensitive individual of all pesticide applications made by maintenance applicators to property within the pesticide notification area of that individual. Notification must be made at least ten hours prior to the scheduled application, or in the case of an immediate service call, the manager or maintenance applicator shall provide notification at the time of the application. The applicator must make the application within twenty-four hours following the date and approximate time stated in the notification. If the application is not made within twenty-four hours, the notification process must be repeated.
     (3) Notification must be provided in writing, in person, or by telephone and must disclose the address or the specific location on the property where the pesticide is to be applied and the date and approximate time of the application. In the event the manager of the property is unable to provide prior notification because of the absence or inaccessibility of the pesticide-sensitive individual, the manager shall leave a written notice at the residence of the individual at the time of the application.
     (4) The pesticide-sensitive individual may request in writing, in person, or by telephone that the property manager or maintenance applicator provide the name of each pesticide applied within the individual's pesticide notification area. The manager or applicator shall provide the information within twenty-four hours of the application or of receiving the request.
     (5) Requests for notification expire on December 31st of each year.
     (6) The notification requirements of this section do not apply to routine applications of an antimicrobial pesticide.

NEW SECTION.  Sec. 6   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect June 1, 2006.