S-4229

AN ACT Relating to addressing concerns about pesticide use in schools; amending RCW 17.21.020 and 17.21.410; adding a new section to chapter 17.21 RCW; adding a new section to chapter 28A.320 RCW; adding a new section to chapter 74.15 RCW; and creating a new section.

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

NEW SECTION. Sec. 1. It is the intent of the legislature to improve student safety by providing parents and guardians with information concerning pesticides that pose risks to children. The metabolism, physiology, and diet of children puts them at higher risk than adults to pesticide exposure. Children spend much of their time in schools and day care centers, and parents and guardians have a right to be informed about potential health threats to their children.

Sec. 2. RCW 17.21.020 and 1994 c 283 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.

(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.

(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.

(6) "Commercial pesticide applicator" means any person who engages in the business of applying pesticides to the land of another.

(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.

(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.

(9) "Department" means the Washington state department of agriculture.

(10) "Desiccant" means any substance or mixture of substances intended to artificially accelerate the drying of plant tissues.

(11) "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.

(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.

(13) "Director" means the director of the department or a duly authorized representative.

(14) "Engage in business" means any application of pesticides by any person upon lands or crops of another.

(15) "EPA" means the United States environmental protection agency.

(16) "EPA restricted use pesticide" means any pesticide classified for restricted use by the administrator, EPA.

(17) "FIFRA" means the federal insecticide, fungicide and rodenticide act as amended (61 Stat. 163, 7 U.S.C. Sec. 136 et seq.).

(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, except those on or in a living person or other animals.

(20) "Fungicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any fungi.

(21) "Herbicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any weed or other higher plant.

(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.

(23) "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.

(24) "Insecticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any insect.

(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.

(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, 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) mosquito abatement, gypsy moth eradication, or similar wide-area pest control programs sponsored by governmental entities; and (c) commercial pesticide applicators making structural applications.

(27) "Nematocide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate nematodes.

(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.

(29) "Person" means any individual, partnership, association, corporation, or organized group of persons whether or not incorporated.

(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.

(31) "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, 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 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.

(32) "Pesticide advisory board" means the pesticide advisory board as provided for in this chapter.

(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.

(34) "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.

(35) "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.

(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.

(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.

(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.

(39) "School facility" means any facility used for licensed day care, preschool, kindergarten, or elementary or secondary school purposes. School facility includes the buildings or structures, playgrounds, landscape areas, athletic fields, school vehicles, or any other area of school property visited or used by children attending the school. School facility does not include a private school approved under chapter 28A.195 RCW or any postsecondary educational facility attended by secondary school students.

(40) "Snails or slugs" include all harmful mollusks.

((~~(40)~~)) (41) "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.

((~~(41)~~)) (42) "Weed" means any plant which grows where it is not wanted.

Sec. 3. RCW 17.21.410 and 1994 c 283 s 33 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.

(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.~~

~~(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.

((~~(4)~~)) (3) The property owner or tenant shall remove the marker 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.

((~~(5)~~)) (4) 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.

NEW SECTION. Sec. 4. A new section is added to chapter 17.21 RCW to read as follows:

(1) A school shall notify students, parents or guardians of students, and employees annually about the school's pest control policies and methods, including any pesticides that may be used.

(2) A school shall provide posted and written notice to students, parents or guardians of students, and employees at least forty-eight hours before a school facility application.

(3) A school shall post notification signs at the treatment site, in a central area at the school, and at points of entry at least forty-eight hours before a school facility application. Signs shall remain in place for at least one week following pesticide application to a school facility. Notification signs shall be at least eight and one‑half by eleven inches.

(4) An individual making a landscape application to a school facility shall at the time of application place a marker at each primary point of entry to the school grounds. The marker shall be at least eight and one-half by eleven inches. It shall have the words: "THIS LANDSCAPE HAS BEEN TREATED BY" as the headline and "FOR MORE INFORMATION PLEASE CALL" as the footer. 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.

(5) An individual making a school facility application shall display the name and telephone number of the applicator or the applicator's employer on any power application apparatus, and shall carry a material safety data sheet for each pesticide being applied.

(6) All notices and notification signs required under this section shall include the signal word from the pesticide label alongside the words "Pesticide/Herbicide Application"; for example, "WARNING: PESTICIDE/HERBICIDE APPLICATION." Notices shall include:

(a) The name of the pesticide;

(b) The pesticide's active ingredient;

(d) The area and rate of application; and

(e) The name and phone number of a contact person.

(7) A school facility application does not include the application of antimicrobial pesticides as defined by 7 U.S.C. Sec. 136(mm), or the placement of bait stations that are not accessible to children.

(8) Any school facility application during an extended break when children are not present, and when the treatment ends no less than ninety-six hours before the end of the break, shall send written notice before to the beginning of the break. Any school application to a landscape, athletic field, or outdoor structure during the break is subject to posted notice requirements of this subsection.

(9) An applicator is not liable for the removal of markers by unauthorized persons or removal outside the designated removal time. An applicator who complies with this section may not be held liable for personal property damage or bodily injury resulting from markers that are placed as required.

NEW SECTION. Sec. 5. A new section is added to chapter 28A.320 RCW to read as follows:

Schools shall provide notice of pesticide applications to students, parents or guardians of students, and employees pursuant to chapter 17.21 RCW.

NEW SECTION. Sec. 6. A new section is added to chapter 74.15 RCW to read as follows:

Day care centers shall provide notice of pesticide applications to children, parents or guardians of children, and employees pursuant to chapter 17.21 RCW.