BILL REQ. #:  S-4005.1 

Read first time 01/20/12.   Referred to Committee on Labor, Commerce & Consumer Protection.

     AN ACT Relating to protecting workers and other community members from pesticide drift; amending RCW 49.70.020, 49.70.110, and 70.104.030; adding new sections to chapter 49.70 RCW; and prescribing penalties.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 49.70 RCW to read as follows:
     The legislature finds that pesticide exposure results in lost wages and worker productivity, increased industrial insurance costs, and acute and chronic health problems for workers and other community members. Further, the legislature finds that drift from pesticide spray applications poses significant risks to workers and community members in the vicinity of the pesticide application. The legislature therefore declares that workers and other community members have a right to be protected from pesticide exposure and notified of certain pesticide applications to prevent unnecessary exposure. The legislature further declares its policy and purpose to protect workers from hazardous exposure to pesticides in accordance with the mandates of Article II section 35 of the state Constitution.

Sec. 2   RCW 49.70.020 and 1985 c 409 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) "Department" means the department of labor and industries.
     (2) "Employee" means an employee of an employer who is employed in the business of his or her employer whether by way of manual labor or otherwise and every person in this state who is engaged in the employment of or who is working under an independent contract the essence of which is personal labor for an employer under this chapter whether by way of manual labor or otherwise. However, for the purposes of this chapter, employee shall not mean immediate family members of the officers of any corporation, partnership, sole proprietorship or other business entity or officers of any closely held corporation engaged in agricultural production of crops or livestock.
     (3) "Employer" means any person, firm, corporation, partnership, business trust, legal representative, or other business entity that engages in any business, industry, profession, or activity in this state and employs one or more employees or who contract with one or more persons, the essence of which is the personal labor of such person or persons and includes the state, counties, cities, and all municipal corporations, public corporations, political subdivisions of the state, and charitable organizations.
     (4) "Buffer zone" means an area extending one-half mile in all directions from the boundaries of the intended pesticide application.
     (5) "Person" includes any natural person, firm, partnership, association, or corporation.
     (6) "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, nematode, snail, slug, fungus, weed, and any other form of plant or animal life or virus, except virus on or in a living human being or other animal, which is normally considered to be a pest or which the director of agriculture may declare to be a pest; or
     (b) Any substance or mixture of substances intended to be used as a plant regulator, defoliant, or desiccant; or
     (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; or
     (d) Any fungicide, rodenticide, herbicide, insecticide, and nematocide.
     (7) "Pesticide drift" means the movement of pesticide through the air away from the intended target.
     (8) "Restricted-entry interval" means the time after the end of a pesticide application during which entry into the treated area is restricted.
     (9) "Willfully" means conducted in a way that is volitional and that is not the result of a good faith error.

NEW SECTION.  Sec. 3   A new section is added to chapter 49.70 RCW to read as follows:
     (1) A person may not apply any pesticide by airplane, air-blast sprayer, fumigation, or any other application method that poses a substantial risk of pesticide drift:
     (a) Within the greater of:
     (i) One-half mile of: (A) A child care facility, a residence, or school; or (B) any natural person who is outdoors, unless the person applying the pesticides has reasonably concluded that no natural persons are present outdoors at the time of the application; or
     (ii) The distance necessary to avoid pesticide drift given conditions onto: (A) A child care facility, residence, or school; or (B) any natural person who is outdoors, unless the person applying the pesticides has reasonably concluded that no natural persons are present outdoors at the time of the application; or
     (b) At a time not within reasonable proximity to the time listed on the notice under subsection (2) of this section.
     (2) Any person applying pesticides by airplane, air-blast sprayer, fumigation, or any other application method that poses a substantial risk of pesticide drift, must provide written notice to child care facilities, schools, and residences within the buffer zone and to persons whom the applicator can reasonably determine will likely be outdoors within the buffer zone at any time during application. Notice to the employer of persons satisfies this requirement if the persons are likely to be outdoors in the buffer zone because of employment.
     (a) The applicator must provide the written notice a minimum of twenty-four hours before the application, but no sooner than forty-eight hours before the application.
     (b) Notice of the intended pesticide application must be provided in person if feasible, or if in-person notice is not feasible, posted on the primary entrance of buildings within the buffer zone that may be occupied.
     (c) Notice must be translated into an appropriate language when the applicator knows or a reasonable person would know that persons entitled to notice do not speak English as their primary language.
     (3) The notice must include:
     (a) Time, date, and location of the application;
     (b) Name, telephone number, and address of the person applying the pesticide;
     (c) Name, address, and telephone number of the person who contracts for the application;
     (d) A list of the common and chemical names of all pesticides to be applied;
     (e) Telephone number of the Washington state department of health pesticide program;
     (f) Telephone number of the Washington poison control center;
     (g) A statement that aerial, air-blast, and fumigation application of pesticides is not allowed within a distance of no less than one-half mile of child care facilities, schools, residences, and people who are outdoors;
     (h) A list of the precautions related to drift that appear on the label of the pesticide to be applied; and
     (i) The restricted-entry interval on the pesticide label and a statement that if the pesticide lands in an area, persons should stay out of that area for the restricted-entry interval. When two or more pesticides are applied at the same time, the restricted-entry interval used in the notice is the longest of the applicable intervals.
     (4) Employers who are notified of pesticide application under this section shall provide their employees copies of the notice provided by the applicator. When employees entitled to notice under this subsection do not speak English as their primary language, the employer must also provide each employee written notice in an appropriate language for the employee or give a full verbal translation of the notice to each employee. The employer must give the notice to the employees at least four hours before the time listed for pesticide application. Employers shall ensure that employees remain outside of the buffer zone or work in fully enclosed indoor work spaces during application of pesticides.
     (5) Compliance with this section does not limit the liability of any person for pesticide exposure to other persons.

Sec. 4   RCW 49.70.110 and 1984 c 289 s 16 are each amended to read as follows:
     No employer may discharge, cause to be discharged, or otherwise discipline, penalize, or discriminate against any employee because the employee or the employee's representative has exercised any right established in this chapter. The discrimination provisions of chapter 49.17 RCW apply to this chapter, except as provided in section 5 of this act.

NEW SECTION.  Sec. 5   A new section is added to chapter 49.70 RCW to read as follows:
     (1) Any employer who discharges, causes to be discharged, or otherwise disciplines, penalizes, changes the terms or conditions of employment, intimidates or discriminates against an employee who has or whose representative has made or is planning to make any safety complaint, participated in an investigation, or has been part of a lawsuit, regarding any provision of section 3 of this act is liable in a civil action for actual damages or for statutory damages of five thousand dollars, whichever is greater, including costs of litigation and reasonable attorneys' fees.
     (2) Any person who attempts to intimidate another person because that person or that person's representative has made or plans to make a safety complaint, participate in an investigation, or been part of a lawsuit, regarding any provision of section 3 of this act is liable in a civil action for actual damages or for statutory damages of five thousand dollars, whichever is greater, including costs of litigation and reasonable attorneys' fees.
     (3)(a) The department may investigate and issue a citation upon notice to any person if the department reasonably believes that the person has violated section 3 of this act. A person who is found to have violated section 3 of this act is liable for a civil penalty of up to ten thousand dollars for each violation. Chapter 34.05 RCW applies to appeals of citations.
     (b) The department of health may investigate and enforce violations of section 3 of this act as provided in RCW 70.104.030.
     (c) The department and department of health shall share relevant information when investigating violations of section 3 of this act. The department and department of health may not issue duplicate citations to a person for the same violation of this chapter.
     (4) Any person exposed to pesticides by a person willfully applying pesticides in violation of section 3 of this act may bring a civil action for twice the amount of damages suffered or statutory damages of five thousand dollars, whichever is greater.      
     (5) The remedies in this section are in addition to, and do not affect, any other remedy.

Sec. 6   RCW 70.104.030 and 2009 c 495 s 10 are each amended to read as follows:
     (1) The department of health may investigate all suspected human cases of pesticide poisoning and such cases of suspected pesticide poisoning of animals that may relate to human illness. 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 case or suspected case of pesticide poisoning.
     In order to adequately investigate such cases, the department shall have the power to:
     (a) Take all necessary samples and human or animal tissue specimens for diagnostic purposes: PROVIDED, That tissue, if taken from a living human, shall be taken from a living human only with the consent of a person legally qualified to give such consent;
     (b) Secure any and all such information as may be necessary to adequately determine the nature and causes of any case of pesticide poisoning.
     (2) The department of health may investigate and issue a citation upon notice to any person if the department of health reasonably believes that the person has violated section 3 of this act with respect to a violation that does not involve potential or actual exposure of workers to pesticides. A person who is found to have violated section 3 of this act is liable for a civil penalty of up to ten thousand dollars for each violation. Chapter 34.05 RCW applies to appeals of citations.
     (3) The department shall immediately notify the department of agriculture, the department of labor and industries, and other appropriate agencies of the results of its investigation for such action as the other departments or agencies deem appropriate. The notification of such investigations and their results may include recommendations for further action by the appropriate department or agency. The department must coordinate investigations and penalty assessments for any violations of section 3 of this act with the department of labor and industries. The department of health and the department of labor and industries may not issue duplicate citations to a person for the same violation of this chapter.
     (4) By December 1, 2012, the department of health and the department of labor and industries shall jointly establish a formal agreement that identifies the roles of each of the two agencies in conducting investigations of activities under section 3 of this act.

NEW SECTION.  Sec. 7   A new section is added to chapter 49.70 RCW to read as follows:
     By December 1, 2012, the department and the department of health shall jointly establish a formal agreement that identifies the roles of each of the two agencies in conducting investigations of activities under section 3 of this act.