Background:

Pesticides are regulated by the state and federal government. At the state level, several state agencies have responsibilities.

The Department of Labor and Industries (L&I) administers and enforces the Washington Industrial Safety and Health Act (WISHA). Under the WISHA, the L&I adopts safety and health standards, provides consultation and advice, and conducts inspections and investigations.

The Worker and Community Right to Know Act (Right to Know Act) requires that information regarding hazardous substances be provided to employees and community members. The L&I administers the worker right-to-know portion of the law and the Department of Ecology provides information to community members. Under the Right to Know Act, employers must provide agricultural employees information and training on hazardous chemicals in the workplace and must keep specified records regarding pesticides.

An employer who discharges or otherwise discriminates against an employee because the employee or the employee's representative has exercised any right under the Right to Know Act is subject to the discrimination provisions of the WISHA. The WISHA discrimination provision allows the Director of the L&I (or the employee if the Director determines a violation has not occurred) to bring a cause of action to restrain violations and order all appropriate relief, including reinstatement and backpay.

The Department of Agriculture (Agriculture) administers and enforces the Federal Insecticide, Fungicide, and Rodenticide Act, as well as the state Pesticide Control Act and the state Pesticide Application Act. It's activities include adopting rules requiring the registration and restricting the use of pesticides, testing and certifying pesticide applicators, issuing handler and worker pesticide training documentation, and providing technical assistance to pesticide applicators and workers.Agriculture and the L&I have adopted identical rules on worker protection from pesticides. These rules impose various duties on agricultural employers, including requirements that pesticides be used in a manner consistent with their labels and that workers be notified of pesticide applications.

The Department of Health (DOH) tracks and investigates pesticide-related illnesses, and provides education and technical assistance to physicians and other agencies.

Schools must notify interested parents or guardians of students and employees at least 48 hours before a pesticide application and must place signs regarding pesticide applications.

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Summary of Substitute Bill:

Intent is stated that pesticide exposure in agricultural communities results in lost wages and worker productivity; increased industrial insurance costs; and health problems for workers and other community members. The Legislature declares that workers and other community members have a right to be protected from pesticide exposure and notified of certain applications to prevent exposure.

New sections are added to the Right to Know Act.

Notice of Pesticide Application.

Persons applying pesticides by aircraft or air-blast sprayer must provide written notice to employers of outdoor employees on a farm or nursery within one-quarter mile of the intended application area.

The notice by the applicator must be: (1) given at least 24 hours but no sooner than 48 hours before the application; (2) provided in person if feasible or posted on the primary entrance of workplace buildings; and (3) translated when the applicator knows or a reasonable person would know that persons entitled to notice do not speak English as their primary language. If in-person notice or posting is not feasible, the applicator must make reasonable efforts to notify persons by other means.

The applicator's notice must include:

the date and location of the application;
the time of application, which may be stated as a range of no greater than 24 hours;
the name, telephone number, and address of the person applying the pesticide and the person who contracts for the application;
the common names and active ingredients of the pesticides;
the telephone number of the Washington Poison Control Center;
a statement that aircraft and air-blast application of pesticides is not allowed within one-quarter mile of child care facilities, schools, residences, and people outdoors;
a list of the precautions related to drift that are on the pesticide label; and
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. The "restricted-entry interval" is the time after the end of an application during which entry into the treated area is restricted.

If the applicator is unable to apply the pesticide within the time specified because of conditions, the applicator must make a reasonable effort to contact employers with updated information. Five days after the latest time on the written notice, the notice expires.

Employers must give employees copies of the applicator's notice. When the employees do not speak English as their primary language, the employer must also provide written notice in an appropriate language or a full verbal translation to each employee. The employer must give the notice at least four hours before the intended application and must give employees notice of any updated time.

Employers must ensure that employees remain at least one-quarter mile from the intended area of application or work in fully enclosed indoor work spaces during the application of pesticides.

A state or local government, or its contractor applying pesticide in compliance with a state-issued permit, is exempt from the notice requirements if other notice is required under law or permitting processes.

Restriction on Pesticide Application.

Application of a pesticide on a farm by aircraft or air-blast sprayer is prohibited within one-quarter mile of a child care facility, school, residence (including occupied temporary worker housing), and a person who the applicator knows or should know is outdoors at the time of application.

Application is also prohibited at a time other than the time listed on the notice, unless the applicator provides updated information and the application is within five days of the latest time on the written notice.

A state or local government or its contractor applying pesticide in compliance with a state-issued permit is exempt from the application restriction.

Remedies.

An employer who discharges or otherwise discriminates against an employee because the employee or employee's representative has made or plans to make a complaint, participated in an investigation, or been part of a lawsuit regarding the provisions is liable for actual damages or $5,000, whichever is greater, including costs of litigation and attorney's fees. A cause of action for the same remedies is available against any person who attempts to intimidate another person because the other person or their representative has made or plans to make a complaint, participated in an investigation, or been part of a lawsuit regarding the provisions.

Subject to workers' compensation provisions, any person exposed to pesticides by a person willfully applying pesticides in violation of the provisions may bring a civil action for twice the damages or $5,000, whichever is greater.

An employee entitled to notice may bring a civil action against an employer who acts willfully for statutory damages of $500.

The remedies provided are in addition to and do not affect any other remedy. Compliance with the requirements do not limit the liability of any person for pesticide exposure to other persons.

The WISHA penalties and procedures do not apply.

Other.

A "farm" is any operation engaged in the outdoor production of plants destined in whole or in part for human or animal ingestion or direct application to the body, and seed and cover crops for such plants.

Definitions are also added for "nursery," "person," "pesticide," "temporary worker housing," and "willfully."

Substitute Bill Compared to Original Bill:

The substitute bill:

limits the restricted application lands to farms;
strikes fumigation and other methods with substantial risk of drift from restricted application methods;
changes the restricted areas from one-half mile (or further to avoid drift) to one-quarter mile;
changes the restriction regarding persons outdoors in the original bill which stated that the applicator may not apply pesticide to a person unless the applicator reasonably concludes no one is outdoors to a restriction that the applicator may not apply pesticides when the applicator knew or should have knows persons are outdoors;
adds reference to temporary worker housing and defines temporary worker housing;
provides that employers must assure workers remain at least one-quarter (rather than one-half) mile from the intended area of application or work indoors;
limits the notice requirements to employers of persons who work outdoors on farms and nurseries within one-quarter mile of the intended application area; and defines ''nursery;''
allows the time of application to be stated as a range and adds a provision allowing application up to five days after the time specified if updates are provided;
deletes the requirement that the notice include a phone number for the DOH's pesticide program, and requires the notice to state the active ingredients, rather than the chemical names;
adds reasonable method of notification if in-person or posting is not feasible;
adds the state and local government exemption;
deletes the civil penalty provisions;
adds the civil cause of action allowing an employer to recover statutory damages against an employer and provides that the cause of action for willful exposure is subject to workers' compensation provisions;
adds a provision stating that the WISHA penalties and procedures do not apply;
modifies the intent section to refer to agricultural communities and delete "unnecessary" with respect to exposure; and
adds definition of ''farm.''

Staff Summary of Public Testimony:

(In support) This bill came out of discussions going on for several years and a farm worker tour. Last year, a dangerous situation occurred in Mattawa. When a group of workers picking apples stopped to eat lunch, they were sprayed. They waved their arms at the pilot but the pilot made additional passes. Fifty workers were sent to medical clinics. One worker still has swelling in her nose. Agriculture did not fine the applicator or suspend the license. The employer could not protect the workers because the employer did not know the neighbor was spraying.

Children and families are affected by pesticide drift. Farm workers are bombarded on a regular basis by pesticides which are known to be harmful to health. We want to allow working lands to stay working but not use application methods that put people at risk.

A recent study showed that poor communication is a significant factor causing drift exposure. The Pesticide Incidence Report found that 75 percent of pesticide incidents are caused by drift. Recommendations include reducing the use of air-blast sprayers. Most exposures are inadvertent.

A clear buffer zone is needed. Labels do not protect against drift and farmers will say they were following the label.

There is a one-mile buffer for grapes and vineyards. Salmon and commercial greenhouses have a buffer zone. Farm workers are treated like they are invisible. Our policies disproportionally affect low-income people of color.

(With concerns) Clarity is key. The bill uses terms like "substantial risk.'' The bill may be an impediment to selling abroad. Some urban areas may be included; Agriculture has a pest eradiation program including gypsy moth. An education program for farmers is in high demand.

(Opposed) This bill makes illegal what is already illegal. The Environmental Protection Agency (EPA) regulations specify what is on the label and Agriculture has enforcement authority. The EPA conducts studies before it approves labels. The DOH, Agriculture, and the L&I have been working together for 20 years. There will be mistakes but the numbers are very low. In 2008 a study found virtually no residue at 25 feet from air-blast spraying. When Agriculture tried to survey for problems, it got almost no response.

This bill does not protect health; it harms efforts to control the spread of pests and disease. It will lead to huge problems for the agricultural industry. The agricultural industry was not consulted on the bills. Farming could not take place under this bill. There is a labor shortage so farmers must provide housing, but housing cannot be within one-half mile of an orchard. To be able to export to other states or internationally, farmers must be able to show the products have no pests. "Reasonably believe" is a startling standard.