(Notification to the Code Reviser)

Enclosed herewith is a copy of my decision regarding the Petition to Repeal or Amend a Rule pursuant to RCW 34.05.330 (2)(3).

Name of Petitioner: Pacific Northwest Aerial Applicators Alliance (PNWAAA).

Date Petition Received: May 27, 1998.

Agency: Department of Agriculture.

Comments:

July 9, 1998

Mr. Timothy E. Miller

Miller and Associates

5005 SW Meadows Road, Suite 405

Lake Oswego, Oregon 97035

Dear Mr. Miller:

On April 27, 1998, Jim Jesernig, Director of the Department of Agriculture (the "Department") denied your petition for amendment of WAC 16-229-010 through 16-229-480 and WAC 16-201-010 through 16-201-290, rules relating to fertilizer and pesticide containment (the "Rules"). You timely appealed the agency's denial of your petition to the Governor as authorized by RCW 34.05.330.

The Department's denial of your petition is affirmed for the reasons discussed below.

Your appeal seeks amendment of the Rules to exclude commercial aerial applicators from coverage. You cite four reasons for such amendment; I will address each of your points in turn.

1. The Small Business Economic Impact Statement ("SBEIS") prepared by the Department does not comply with RCW 19.85.040 and the Department failed to comply with RCW 19.85.030 in its preparation.

As noted in Director Jesernig's response to your petition, the Regulatory Fairness Act, 19.85 RCW, which contains SBEIS statutes, has been amended since the Rules were adopted in March 1994. The shortcomings you cite in asserting that the Department and the SBEIS failed to comply with the Regulatory Fairness Act reflect amendments made subsequent to the adoption of the Rules, and therefore cannot be used as measures of adequacy.

The SBEIS includes several mitigation measures expressly designed to reduce the Rules' impacts on small businesses. Those measures go well beyond the statutory requirements in place at the time. In fact, it appears that they may go far enough to satisfy the amended statutes' requirements, had they been in place at the time.

2. There is insufficient evidence in the rule-making file for a rational decision-maker to conclude that commercial applicators could be a source of ground water contamination by fertilizers or pesticides.

Your appeal asserts that the Rules are not needed because there is no evidence of ground or surface water contamination caused by spills at commercial aerial applicator mixing/loading sites in Washington. You point out that no comparison was made between the Environmental Contamination at Wisconsin Pesticide Mixing/Loading Facilities case study in the rulemaking file and actual soil, groundwater, and climatic conditions in Washington.

While it does not appear that additional research was done to test the applicability of the Wisconsin case study to conditions in Washington, I am not convinced that such research was necessary. The rule-making file includes letters from the Department of Ecology citing problems of ground water contamination from pesticide and fertilizer spills in Washington.

Director Jesernig acted within his authority and as a rational decision-maker in adopting rules that would avert potential spills from reaching ground water. The Director had the authority to adopt the Rules under the Washington Commercial Fertilizer Act and the Washington Pesticide Control Act (RCW 15.54.800 and RCW 15.58.020, respectively), and I believe that he acted rationally on the evidence in the rulemaking file.

3. The rules could conflict with rules that may be adopted by the U.S. Environmental Protection Agency ("EPA").

Four years have elapsed since the Department adopted the Rules, and the EPA has not yet initiated any rule-making on this subject. Given that representatives of federal agencies cannot speculate as to what rules might eventually be adopted, the Department did not act unreasonably by failing to coordinate with the EPA on the content of the Rules.

Moreover, virtually every statute implemented by the EPA, including the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act and the Federal Insecticide Fungicide and Rodenticide Act, expressly allows states to adopt more stringent standards than their federal counterparts. Thus, if the EPA eventually adopts regulations for pesticide and fertilizer containment, any stricter Washington regulations would not be preempted. The state would certainly have extensive opportunity in the EPA's rule adoption process to press for federal regulations that accommodate the Rules.

4. The rules impose unreasonable costs on commercial aerial applicators.

As you point out, the SBEIS notes that "a mix/load pad for a typical aerial applicator can range from $20,000 and up." However, it should also be noted that the SBEIS cites several ways in which the Department sought to mitigate the Rules' impacts on small businesses. It should be noted that the Regulatory Fairness Act, both as in effect at the time the Rules were adopted and as amended, does not preclude agencies from adopting rules that impact small businesses.

Rather, it directs them to reduce the economic impact of rules on small businesses by structuring the rules to accommodate small businesses to the extent possible. The Department went well beyond what was minimally required of it by taking several specific steps to mitigate the small business impact of the Rules.

Conclusion:

One of my first orders as Governor was to direct all state agencies to undertake a thorough review and reform of their regulations, with the goal of streamlining and reducing the number and complexity of state regulations. I strongly believe that regulations should be as clear and easy to comply with as possible. The Department is in the process of reviewing its regulations, and plans to take a look at WAC 16-229-010 through 16-229-480 and WAC 16-201-010 through 16-201-290 next June. That review will be open to input from stakeholders, and I suggest that you remain in touch with the Department so that you may participate.

While I can see how the Rules may create burdens for small businesses, I believe that the Department acted properly under the law and made significant efforts to minimize those burdens. The arguments advanced in your appeal do not compel me to conclude that the Department should be directed to amend the Rules. Please direct any questions on this matter to my counsel, Everett Billingslea, at 360-753-6780.

Sincerely,

Gary Locke

Governor

Distribution: Secretary of State; Chief Clerk, House of Representatives; Agency; Citizen's Response Unit; and Executive Policy Office.

Legal Counsel

Office of the Governor

Leslie McGuire

for Everett Billingslea

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