Z-0689.1  _______________________________________________

                         SENATE BILL 5534

          _______________________________________________

State of Washington      57th Legislature     2001 Regular Session

By Senators Eide, Rasmussen, Swecker, Patterson, Fairley, Roach, Jacobsen, Kohl‑Welles, Costa, Spanel, Franklin, Shin, B. Sheldon, Constantine, Hargrove, Kastama, Prentice, Kline and Gardner; by request of Department of Agriculture

Read first time 01/25/2001.  Referred to Committee on Education.

Regulating pesticide use in schools.

    AN ACT Relating to persons applying pesticides at schools; amending RCW 17.21.020, 17.21.100, 17.21.126, 17.21.128, and 17.21.150; adding a new section to chapter 17.21 RCW; and providing an effective date.

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

    Sec. 1.  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) "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.

    (((4))) (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.

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

    (((7))) (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.

    (((8))) (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.

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

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

    (((11))) (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.

    (((12))) (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 and licensed school facility 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))) (14) "Director" means the director of the department or a duly authorized representative.

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

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

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

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

    (((18))) (19) "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))) (20) "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))) (21) "Fungicide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any fungi.

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

    (((22))) (23) "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))) (24) "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))) (25) "Insecticide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate any insect.

    (((25))) (26) "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))) (27) "Landscape application" means an application ((by a certified applicator)) of any EPA registered pesticide to any exterior landscape ((plants found)) area 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))) (28) "Nematocide" means any substance or mixture of substances intended to prevent, destroy, repel, or mitigate nematodes.

    (((28))) (29) "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))) (30) "Person" means any individual, partnership, association, corporation, or organized group of persons whether or not incorporated.

    (((30))) (31) "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))) (32) "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))) (33) "Pesticide advisory board" means the pesticide advisory board as provided for in this chapter.

    (((33))) (34) "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))) (35) "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))) (36) "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))) (37) "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))) (38) "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))) (39) "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))) (40) "School facility" means any facility used for licensed day care center, 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.

(41) "School facility applicator" means a licensed applicator that uses or supervises the use of any nonrestricted use pesticide, except an antimicrobial pesticide, on any school facility.  A school facility applicator may not apply any pesticide by means of an apparatus as defined in this section.

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

    (((40))) (43) "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))) (44) "Weed" means any plant which grows where it is not wanted.

    Sec. 2.  RCW 17.21.100 and 1994 c 283 s 9 are each amended to read as follows:

    (1) Certified applicators and school facility applicators licensed under the provisions of this chapter, persons required to be licensed under this chapter, all persons applying pesticides to more than one acre of agricultural land in a calendar year, including public entities engaged in roadside spraying of pesticides, and all other persons making landscape applications of pesticides to types of property  listed in RCW 17.21.410(1) (b), (c), (d), and (e), shall keep records for each application which shall include the following information:

    (a) The location of the land where the pesticide was applied;

    (b) The year, month, day and beginning and ending time of the application of the pesticide each day the pesticide was applied;

    (c) The product name used on the registered label and the United States environmental protection agency registration number, if applicable, of the pesticide which was applied;

    (d) The crop or site to which the pesticide was applied;

    (e) The amount of pesticide applied per acre or other appropriate measure;

    (f) The concentration of pesticide that was applied;

    (g) The number of acres, or other appropriate measure, to which the pesticide was applied;

    (h) The licensed applicator's name, address, and telephone number and the name of the individual or individuals making the application and their license number, if applicable;

    (i) The direction and estimated velocity of the wind during the time the pesticide was applied.  This subsection (1)(i) shall not apply to applications of baits in bait stations and pesticide applications within structures; and

    (j) Any other reasonable information required by the director in rule.

    (2)(a) The required information shall be recorded on the same day that a pesticide is applied.

    (b) A commercial pesticide applicator who applies a pesticide to an agricultural crop or agricultural lands shall provide a copy of the records required under subsection (1) of this section for the application to the owner, or to the lessee if applied on behalf of the lessee, of the lands to which the pesticide is applied.  Records provided by a commercial pesticide applicator to the owner or lessee of agricultural lands under this subsection need not be provided on a form adopted by the department.

(c) A commercial pesticide applicator who applies a pesticide to a school facility shall provide a copy of the records required under subsection (1) of this section to the school within twenty-four hours of when the pesticide is applied.

    (3) The records required under this section shall be maintained and preserved by the licensed pesticide applicator or such other person or entity applying the pesticides for no less than seven years from the date of the application of the pesticide to which such records refer.  If the pesticide was applied by a commercial pesticide applicator to the agricultural crop or agricultural lands of a person who employs one or more employees, as "employee" is defined in RCW 49.70.020, the records shall also be kept by the employer for a period of seven years from the date of the application of the pesticide to which the records refer.

    (4)(a) The pesticide records shall be readily accessible to the department for inspection.  Copies of the records shall be provided on request to:  The department; the department of labor and industries; treating health care personnel initiating diagnostic testing or therapy for a patient with a suspected case of pesticide poisoning; the department of health; the pesticide incident reporting and tracking review panel; and, in the case of an industrial insurance claim filed under Title 51 RCW with the department of labor and industries, the employee or the employee's designated representative.  In addition, the director may require the submission of the records on a routine basis within thirty days of the application of any restricted use pesticide in prescribed areas controlling the use of the restricted use pesticide.  When a request for records is made under this subsection by treating health care personnel and the record is required for determining treatment, copies of the record shall be provided immediately.  For all other requests, copies of the record shall be provided within seventy-two hours.

    (b) Copies of records provided to a person or entity under this subsection (4) shall, if so requested, be provided on a form adopted under subsection (7) of this section.  Information for treating health care personnel shall be made immediately available by telephone, if requested, with a copy of the records provided within twenty-four hours.

    (5) If a request for a copy of the record is made under this section from an applicator referred to in subsection (1) of this section and the applicator refuses to provide a copy, the requester may notify the department of the request and the applicator's refusal.  Within seven working days, the department shall request that the applicator provide the department with all pertinent copies of the records, except that in a medical emergency the request shall be made within two working days.  The applicator shall provide copies of the records to the department within twenty-four hours after the department's request.

    (6) The department shall include inspection of the records required under this section as part of any on-site inspection conducted under this chapter on agricultural lands.  The inspection shall determine whether the records are readily transferable to a form adopted by the department and are readily accessible to employees.  However, no person subject to a department inspection may be inspected under this subsection (6) more than once in any calendar year, unless a previous inspection has found recordkeeping violations.  If recordkeeping violations are found, the department may conduct reasonable multiple inspections, pursuant to rules adopted by the department.  Nothing in this subsection (6) limits the department's inspection of records pertaining to pesticide-related injuries, illnesses, fatalities, accidents, or complaints.

    (7) The department of agriculture and the department of labor and industries shall jointly adopt, by rule, forms that satisfy the information requirements of this section.

(8) The recordkeeping requirements of this section do not apply to applications of antimicrobial pesticides to school facilities.

NEW SECTION. Sec. 3.  A new section is added to chapter 17.21 RCW, to be codified between RCW 17.21.126 and 17.21.128, to read as follows:

    It is unlawful for any person to act as a school facility applicator without having obtained a school facility applicator license from the director.  Application for a school facility applicator license must be accompanied by a fee of twenty-five dollars.  Private commercial applicators and public operators are exempt from the requirements of this section when acting under the authority of their existing license.

    Sec. 4.  RCW 17.21.126 and 1997 c 242 s 14 are each amended to read as follows:

    It shall be unlawful for any person to act as a private pesticide applicator without first complying with requirements determined by the director as necessary to prevent unreasonable adverse effects on the environment, including injury to the pesticide applicator or other persons, for each specific pesticide use.

    (1) Certification standards to determine the individual's competency with respect to the use and handling of the pesticide or class of pesticides for which the private pesticide applicator is certified shall be relative to hazards of the particular type of application, class of pesticides, or handling procedure.  In determining these standards the director shall take into consideration standards of the EPA and is authorized to adopt these standards by rule.

    (2) Application for a private pesticide applicator license shall be accompanied by a fee of twenty-five dollars.  Individuals with a valid certified applicator license, school facility applicator license, pest control consultant license, or dealer manager license who qualify in the appropriate statewide or agricultural license categories are exempt from the private applicator fee requirement.  However, licensed public pesticide operators, otherwise exempted from the public pesticide operator license fee requirement, are not also exempted from the private pesticide applicator fee requirement.

    Sec. 5.  RCW 17.21.128 and 1994 c 283 s 13 are each amended to read as follows:

    (1) The director may renew any certification or license issued under authority of this chapter subject to the recertification standards identified in subsection (2) of this section or an examination requiring new knowledge that may be required to apply pesticides.

    (2) Except as provided in subsection (3) of this section, all individuals licensed under this chapter shall meet the recertification standards identified in (a) or (b) of this subsection, every five years, in order to qualify for continuing licensure.

    (a) Licensed pesticide applicators may qualify for continued licensure through accumulation of recertification credits.

    (i) Private pesticide applicators and school facility applicators shall accumulate a minimum of twenty department-approved credits every five years with no more than eight credits allowed per year provided that school facility applicators must obtain a minimum of four credits on integrated pest management in schools as designated by the department;

    (ii) All other license types established under this chapter shall accumulate a minimum of forty department-approved credits every five years with no more than fifteen credits allowed per year.

    (b) Certified pesticide applicators may qualify for continued licensure through meeting the examination requirements necessary to become licensed in those areas in which the licensee operates.

    (3) At the termination of a licensee's five-year recertification period, the director may waive the requirements identified in subsection (2) of this section if the licensee can demonstrate that he or she is meeting comparable recertification standards through another state or jurisdiction or through a federal environmental protection agency approved government agency plan.

    Sec. 6.  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 or school facility applicator without having provided direct supervision to an unlicensed person as defined in RCW 17.21.020(12);

    (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.

NEW SECTION. Sec. 7.  This act takes effect January 1, 2002.

                            --- END ---