68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1284
House Bill 2409
Sponsored by Representative GORDLY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Imposes additional record keeping and notice requirements on
pesticide applicators. Requires operator training regarding
health and safety hazards. Removes exemption from liability under
workers' compensation law for employer who fails to comply with
safety standards. Prohibits discharge of or discrimination
against person providing information regarding pesticide
regulation. Creates cause of action for specific violations.
A BILL FOR AN ACT
Relating to employment safety; creating new provisions; and
amending ORS 634.006, 634.106, 634.122, 634.146, 634.172,
634.306, 634.372 and 656.018.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 634.006 is amended to read:
634.006. As used in this chapter unless the context requires
otherwise:
(1) 'Antidote' means a practical immediate treatment in case of
poisoning and includes first-aid treatment.
(2) 'Brand' or 'trademark' means any word, name, symbol or any
combination thereof adopted or used by a person to identify
pesticides manufactured, compounded, delivered, distributed, sold
or offered for sale in this state and to distinguish them from
pesticides manufactured, compounded, delivered, distributed, sold
or offered for sale by others.
(3) 'Department' means the State Department of Agriculture.
(4) 'Device' means any instrument or contrivance containing
pesticides or other chemicals intended for trapping, destroying,
repelling or mitigating insects or rodents or destroying,
repelling or mitigating fungi, nematodes or such other pests as
may be designated by the department, but does not include
equipment used for the application of pesticides or other
chemicals when sold separately from such pesticides or chemicals.
(5) 'Private applicator' means a person who uses or supervises
the use of any pesticide, classified by the department as a
restricted-use or highly toxic pesticide, for the purpose of
producing agricultural commodities or forest crops on land owned
or leased by the person.
(6) 'Highly toxic' means a pesticide or device determined by
the department to be capable of causing severe injury, disease or
death to human beings.
(7) 'Landowner' means a person owning three acres or more
within a proposed protected area; and in the case of multiple
ownership of land, the owner is only a person whose interest is
greater than an undivided one-half interest therein or who holds
an authorization in writing from one or more of the other owners
whose interest, when added to the interest of the person, are
greater than an undivided one-half interest in the land.
(8) 'Pesticide' includes:
(a) 'Defoliant' which means any substance or mixture of
substances intended for causing the leaves or foliage to drop
from a plant with or without causing abscission;
(b) 'Desiccant' which means any substance or mixture of
substances intended for artificially accelerating the drying of
plant tissue;
(c) 'Fungicide' which means any substance or mixture of
substances intended for preventing, destroying, repelling or
mitigating any fungus;
(d) 'Herbicide' which means any substance or mixture of
substances intended for preventing, destroying, repelling or
mitigating any weed;
(e) 'Insecticide' which means any substance or mixture of
substances intended for preventing, destroying, repelling or
mitigating any insects which may be present in any environment
whatsoever;
(f) 'Nematocide' which means any substance or mixture of
substances intended for preventing, destroying, repelling or
mitigating nematodes;
(g) 'Plant regulator' which means any substance or mixture of
substances intended, through physiological action, to accelerate
or retard the rate of growth or rate of maturation or to
otherwise alter the behavior of ornamental or crop plants or the
produce thereof, but shall not include substances to the extent
that they are intended as plant nutrients, trace elements,
nutritional chemicals, plant inoculants or soil amendments; or
(h) Any substance, or mixture of substances intended to be used
for defoliating plants or for preventing, destroying, repelling
or mitigating all insects, plant fungi, weeds, rodents, predatory
animals or any other form of plant or animal life which is, or
which the department may declare to be a pest, which may infest
or be detrimental to vegetation, humans, animals, or be present
in any environment thereof.
(9) 'Pesticide applicator' or 'applicator' means a person who:
(a) Is spraying or applying pesticides for others;
(b) Is authorized to work for and is employed by a pesticide
operator; and
(c) Is in direct charge of or supervises the spraying or
application of pesticides or operates, uses, drives or physically
directs propulsion of equipment, apparatus or machinery, either
on the ground or by aircraft in such activity.
(10) 'Pesticide consultant' means a person, including
governmental employees, who offers or supplies technical advice,
supervision, aid or recommendations to the user of pesticides
classified by the department as restricted-use or highly toxic
pesticides, whether licensed as a pesticide dealer or not.
(11) 'Pesticide dealer' means a person who sells, offers for
sale, handles, displays or distributes any pesticide classified
by the department as a restricted-use or highly toxic pesticide.
(12) 'Pesticide equipment' means any equipment, machinery or
device used in the actual application of pesticides, including
aircraft and ground spraying equipment.
(13) 'Pesticide operator' means a person who owns or operates a
business engaged in the application of pesticides upon the land
or property of another.
(14) 'Pesticide trainee' means a person who:
(a) Is employed by a pesticide operator; and
(b) Is working and engaged in a training program under special
certificate to qualify as a pesticide applicator.
(15) 'Professed standard of quality' means a plain and true
statement of the name and percentage of each active ingredient
and the total percentage of all inert ingredients contained in
any pesticide.
(16) 'Protected area' means an area established under the
provisions of this chapter to prohibit or restrict the
application of pesticides.
(17) 'Public applicator' means a person who is an employee of
the State of Oregon or its agencies, counties, cities, municipal
corporations, other governmental bodies or subdivisions thereof,
irrigation districts, drainage districts and public utilities and
telecommunications utilities and who performs or carries out the
work, duties or responsibilities of a pesticide applicator.
(18) 'Public trainee' means a person who is an employee of the
State of Oregon or its agencies, counties, cities, municipal
corporations, other governmental bodies or subdivisions thereof,
irrigation districts, drainage districts and public utilities and
telecommunications utility and who performs or carries out the
work, duties or responsibilities of a pesticide trainee.
(19) 'Registrant' means a person registering any pesticide
pursuant to this chapter.
(20) 'Restricted area' means an area established under the
provisions of this chapter to restrict, but not prohibit, the
application of pesticides.
(21) 'Restricted-use pesticide' means any pesticide or device
which the department has found and determined to be so injurious
or detrimental to persons, pollinating insects, bees, animals,
crops, wildlife, land or environment, other than the pests it is
intended to prevent, destroy, control or mitigate, that
additional restrictions are required.
{ + (22) 'Supervising' or 'under the supervision of' means,
for the purposes of ORS 634.372, that the private applicator is
physically on the same site as the employee applying the
pesticide, is able to assure compliance with label restrictions
and safety procedures and periodically monitor the handling and
application of the pesticide, is able to receive emergency
communication from the employee and is within a reasonable
distance for emergency assistance. + }
{ - (22) - } { + (23) + } 'Weed' means any plant which
grows where not wanted.
{ + (24) 'Worker' means any person who is employed in
agriculture in the vicinity of any place where pesticides are
being handled, mixed or applied, including employees of any
pesticide operator, of any private applicator, of the operator of
any farm where pesticides are applied or any adjacent farm, or of
any labor contractor supplying workers to a farm where pesticides
are applied or to any adjacent farm.
(25) 'Worker's representative' means anyone authorized by a
worker to obtain information concerning whether the worker has
been exposed to a pesticide. The representative may be authorized
in writing, or may be certified by the Department of Consumer and
Business Services, in accordance with ORS 634.146. + }
SECTION 2. ORS 634.106 is amended to read:
634.106. ORS 634.112 to 634.126 and 634.146 shall not apply to:
(1) Manufacturers of materials engaged in research or
experimental work on pesticides.
(2) Persons engaged in the business of a pesticide operator or
applicator only in the application of any pollenicide.
(3) Except as otherwise provided in ORS 634.116 { + and
634.146 + }:
(a) Agencies, instrumentalities and political subdivisions of
the United States or the State of Oregon and their officers,
agents or employees acting within the scope of their authority in
the conduct of research of pesticides or in the application of
pesticides upon property owned or under the control, supervision
or jurisdiction of such agencies, instrumentalities or political
subdivisions; however, this exemption shall not apply to
pesticide operators applying pesticides with power-driven
application equipment or devices under contract for such
agencies, instrumentalities or political subdivisions.
(b) Counties, cities or municipal corporations which only
authorize or permit their employees and their pesticide equipment
to apply pesticides on property owned or under the control,
supervision or jurisdiction of each such governmental body, or in
enforcing or carrying out a law, ordinance, rule or order
relating to the application of pesticides for the purposes of
controlling or eradicating noxious weeds or pests.
(4) A farmer or forestland owner applying pesticides, other
than restricted-use or highly toxic pesticides, by use of
equipment of the farmer or forestland owner for others on an
occasional basis not amounting to a principal or regular
occupation, if the farmer does not publicly hold out as a
pesticide applicator and if the pesticides that are applied are
furnished by the owner of the land on which such pesticides are
applied.
(5) Persons who do not advertise or publicly hold themselves
out as being in the business of applying pesticides but whose
main or principal work or business is the maintenance of small or
home lawns, shrubs or gardens.
(6) Persons who do not advertise or publicly hold themselves
out as being in the business of applying pesticides and whose
principal activity or business as related to pesticides is
selling pesticides or selling or leasing equipment.
(7) Railroads, to the extent that the application of pesticides
is by their regular employees, on land or property under their
ownership, supervision, control or jurisdiction, except that if
power-operated spray equipment is used for applying volatile
herbicides, such application shall be under the direct
supervision of a licensed public applicator.
SECTION 3. ORS 634.146 is amended to read:
634.146. (1) Pesticide operators { + and private
applicators + } shall prepare and maintain records
{ + concerning each application of any pesticide made by the
pesticide operators or private applicators + } on forms approved
by the { + State + } Department { + of Agriculture + }. Such
records shall include:
(a) The name of the person for whom the pesticide was applied.
(b) The { - approximate - } location of the land or property
on which the pesticide was applied.
(c) The date and { - approximate - } time of application.
(d) The person who supplied the pesticides.
(e) The trade name and the strength of such pesticides.
(f) The amount or concentration (pounds or gallons per acre of
active ingredient or concentration per approximately 100
gallons).
(g) The specific property, crop or crops to which the pesticide
was applied.
(h) The summary information of equipment, device or apparatus
used and, if applied by aircraft, the F.A.A. number.
(i) The names of the { - pesticide applicator or pesticide
trainees - } { + person or persons + } who did the actual
application or spraying.
{ + (j) If applied by aircraft, a chronological log showing
pesticide application activity containing sufficient information
to be able to promptly retrieve any of the information required
by this subsection by referencing the date, time and location of
the application. + }
(2) The records, which shall be kept for a period of at least
three years from the date of application of pesticides, shall be
available during business hours for review and inspection by the
department.
(3) Upon receiving a request from any owner of field crops on
which pesticides were applied, the pesticide operator within 40
days after making such application shall give or forward to the
owner a written statement setting forth the information described
in subsection (1)(a), (b), (c), (e), (f) and (g) of this section.
{ + (4) Upon receiving a request from any worker or worker's
representative for information concerning a specific incident of
suspected pesticide exposure, the pesticide operator or private
applicator shall within 24 hours give to the worker or worker's
representative a written statement setting forth the information
described in subsection (1) of this section for the date and
place of the suspected exposure.
(5) In order to become certified as a worker's representative
by the Department of Consumer and Business Services, an
individual shall submit a request under oath or penalty of
perjury including the requester's name and address, the name of
the worker, the name of the worker's employer, the address of the
worker's employer, if known, the person or persons from whom
information will be sought and the worker's written
authorization. The Department of Consumer and Business Services
shall determine within two working days whether to certify the
individual as a representative. The Department of Consumer and
Business Services shall certify the individual as a
representative if the Department of Consumer and Business
Services finds that the worker has authorized the individual
seeking certification as a representative to make inquiries
authorized by this chapter. The name of the worker shall be kept
confidential by the Department of Consumer and Business Services.
(6) Upon receiving a request for information concerning a
specific incident of suspected pesticide exposure from any person
who reasonably believes that the person has been exposed to a
pesticide in the vicinity of the place where the pesticide was
applied by a pesticide operator or private applicator, the
pesticide operator or private applicator shall within 24 hours
give to the person a written statement setting forth the
information described in subsection (1) of this section for the
date and place of the suspected exposure.
(7) Upon receiving a request for information concerning a
specific incident of suspected pesticide exposure from a
physician, nurse, emergency medical service provider, clinic or
hospital that is performing diagnosis or providing or
recommending medical care to any person who may have been exposed
to a pesticide applied by the pesticide operator or private
applicator, the pesticide operator or private applicator shall
provide immediately any requested information described in
subsection (1) of this section for the date and place of the
suspected exposure. + }
SECTION 4. ORS 634.172 is amended to read:
634.172. (1) No action { + for crop loss or property
damage + } against a pesticide operator arising out of the use or
application of any pesticide shall be commenced unless, within 60
days from the occurrence of the loss, within 60 days from the
date the loss is discovered, or, if the loss is alleged to have
occurred out of damage to growing crops, before the time when 50
percent of the crop is harvested, the person commencing the
action:
(a) Files a report of the alleged loss with the { + State + }
Department { + of Agriculture + };
(b) Mails or personally delivers to the pesticide operator who
is allegedly responsible for the loss a true copy of the report
provided for under paragraph (a) of this subsection; and
(c) Mails or personally delivers to the person for whom the
pesticide was applied a true copy of the report required under
paragraph (a) of this subsection if that person is not the person
commencing the action.
(2) Any person who claims to have sustained any loss arising
out of the use or application of any pesticide by any state
agency, county or municipality may file a report of loss with the
department, and mail or personally deliver a true copy of such
report of loss to the state agency, county or municipality
allegedly responsible, within the time provided in subsection (1)
of this section.
{ + (3) Any person who claims to have sustained any personal
injury arising out of the use or application of any pesticide may
file a report of loss with the department, and may mail or
personally deliver a true copy of such report to the person or
persons allegedly responsible within 60 days from the date when
the claimant discovered that such injury had occurred. The filing
of a report of loss with the department is not a prerequisite to
filing a suit for personal injury. + }
{ - (3) - } { + (4) + } Upon receiving a report of loss as
provided by this section:
(a) The department may investigate, examine and determine the
extent and nature of the damage alleged to have been caused to
property or crops. The department shall not determine the source
of the damage, the person who may have caused the damage or the
financial extent of the loss or damage. { + Where personal
injury is alleged, the department shall, in conducting any
investigation, consult with the Health Division. + } The
department shall prepare and file in its office a report of the
investigation, examination and determination. Copies of the
report made by the department may be given upon request to
persons who are financially interested in the matter.
(b) The department at the request of, and without cost to, any
persons financially interested in the matter may undertake to
mediate an equitable settlement of the controversy.
{ - (4) - } { + (5) + } Upon receiving a request therefor
from any person, other than a person who may file a report of
loss as provided by subsection (1) or (2) of this section, the
department may investigate, examine and determine the extent and
nature of damage alleged to have been caused to property or crops
arising out of the use or application of any pesticide by any
other person or any state agency, county or municipality,
provided that the person making such request reimburses the
department for its work. The department shall not determine the
source of the damage, the person who may have caused the damage
or the financial extent of the loss or damage. The department
shall prepare and file in its office a report of the
investigation, examination and determination. Copies of the
report made by the department may be given upon request to
persons who are financially interested in the matter.
{ - (5) - } { + (6) + } Nothing in this section shall be
construed as a waiver by the State of Oregon or any state agency,
county or municipality of any immunity against suit which
otherwise may exist.
SECTION 5. { + Section 6 of this Act is added to and made a
part of ORS chapter 634. + }
SECTION 6. { + The provisions of ORS 656.018 shall not apply
if an employee of a certified private applicator or a licensed
pesticide operator is injured by exposure to a pesticide as a
result of the private applicator or licensed pesticide operator
knowingly using, handling or applying the pesticide in a manner
inconsistent with its labeling. + }
SECTION 7. ORS 656.018 is amended to read:
656.018. (1)(a) The liability of every employer who satisfies
the duty required by ORS 656.017 (1) is exclusive and in place of
all other liability arising out of compensable injuries to the
subject workers, the workers' beneficiaries and anyone otherwise
entitled to recover damages from the employer on account of such
injuries or claims resulting therefrom, specifically including
claims for contribution or indemnity asserted by third persons
from whom damages are sought on account of such injuries, except
as specifically provided otherwise in this chapter { + or
section 14 of this 1995 Act + }.
(b) This subsection shall not apply to claims for indemnity or
contribution asserted by a corporation, individual or association
of individuals which is subject to regulation pursuant to ORS
chapter 757, 759 or 760.
(c) Except as provided in paragraph (b) of this subsection, all
agreements or warranties contrary to the provisions of paragraph
(a) of this subsection entered into after July 19, 1977, are
void.
(2) The rights given to a subject worker and the beneficiaries
of the subject worker for compensable injuries under this chapter
are in lieu of any remedies they might otherwise have for such
injuries against the worker's employer under ORS 654.305 to
654.335 or other laws, common law or statute, except to the
extent the worker is expressly given the right under this chapter
to bring suit against the employer of the worker for an injury.
(3) The exemption from liability given an employer under this
section is also extended to the employer's insurer, the
self-insured employer's claims administrator, the Department
{ + of Consumer and Business Services + }, and the contracted
agents, employees, officers and directors of the employer, the
employer's insurer, the self-insured employer's claims
administrator and the department, except that the exemption from
liability shall not apply:
(a) Where the injury is proximately caused by willful and
unprovoked aggression by the person otherwise exempt under this
subsection;
(b) Where the worker and the person otherwise exempt under this
subsection are not engaged in the furtherance of a common
enterprise or the accomplishment of the same or related
objectives; or
(c) Where the injury is proximately caused by failure of the
employer to comply with the notice posted pursuant to ORS
654.082.
(4) The exemption from liability given an employer under this
section applies both to a worker leasing company and the client
to whom workers are provided when the worker leasing company and
the client comply with ORS 656.850 (3).
(5) Nothing in this chapter shall prohibit payment, voluntarily
or otherwise, to injured workers or their beneficiaries in excess
of the compensation required to be paid under this chapter.
SECTION 8. { + Section 9 of this Act is added to and made a
part of ORS chapter 634. + }
SECTION 9. { + Whenever a pesticide has been handled, stored
or applied in a manner that results in exposure of persons or the
environment to the pesticide that is inconsistent with law, any
pesticide operator, pesticide applicator, private applicator or
pesticide trainee with knowledge of the occurrence shall promptly
report the facts and circumstances of the incident to the State
Department of Agriculture. + }
SECTION 10. ORS 634.122 is amended to read:
634.122. (1) An applicant for a pesticide applicator's license
is entitled to be examined for or to be issued a license or
supplements thereto by the { + State + } Department { + of
Agriculture + }, if the applicant:
(a) Is at least 18 years of age; { + and + }
(b) Proves to the satisfaction of the department that the
applicant:
(A) Has had experience as a pesticide trainee for the minimum
period and in the manner prescribed by the department;
{ - or - }
(B) Has educational qualifications, experience or training
which is equal to the minimum standards and requirements
established by the department; or
(C) Has been licensed in Oregon as a pesticide applicator and
actively engaged in such work during the prior license period, as
shall be prescribed by the department.
(2) An applicant for a pesticide applicator's license shall be
required to demonstrate satisfactorily by written examination or
any reexamination given by the department, an adequate knowledge
of:
(a) The characteristics of pesticides and the effect of their
application to particular crops.
(b) The practices of application of pesticides.
(c) The conditions and times of application of pesticides and
the precautions to be taken in connection therewith.
(d) The applicable laws and rules relating to pesticides and
their application in this state.
(e) Integrated pest management techniques, as defined in ORS
634.650, for pest control.
(f) Other requirements or procedures which will be of benefit
to and protect the pesticide applicator, the persons who use the
services of the pesticide applicator and the property of others.
{ + (g) Acute and chronic health risks associated with
exposure to the various classes of pesticides, and emergency
procedures that would mitigate those effects in the event of
exposure.
(h) Integrated pest management techniques that can be used to
minimize use of toxic chemicals for pest control. + }
(3) Based upon the license application and the request of the
applicant, the department may examine the applicant only in any
one or more of the classes of pest control or pesticide
application businesses established by the department under ORS
634.306 (2).
(4)(a) A pesticide applicator license fee shall be established
by the department not to exceed $50 for the first class of pest
control or pesticide application business as prescribed in ORS
634.306 (2) and not to exceed $7.50 for each additional class.
(b) After a person makes first application for a license or
renewal thereof for a specific license period, if later during
the same license period such person desires to engage in
additional classes of pest control or pesticide application
business as prescribed in ORS 634.306 (2), such person shall pay
the fee for each additional class established by the department
not to exceed $12.50.
(5) Examinations or reexaminations for pesticide applicator's
licenses shall be given by the department at such time and in any
of its branch offices or other locations it deems expedient, and
shall be under the supervision of its employees or appointees.
The department is authorized to:
(a) Appoint without pay or reimbursement, employees of other
state agencies who are authorized to give examinations.
(b) Prepare and maintain various types of examinations and
types and schedules of reexaminations and to take all other
measures deemed necessary to insure that persons receiving
passing grades thereto have been fairly and reasonably tested as
to their ability and that there have been no fraudulent or
dishonest means used by the applicants in applying for or in the
taking of examinations or reexaminations.
(6) If it verifies an applicant has received a passing grade on
the examination or reexamination and otherwise has complied with
the provisions of this chapter, the department shall issue a
pesticide applicator's license.
(7) Each person who has failed to receive a passing grade or
for other reasons was not issued a license as a result of an
examination or reexamination given by the department, shall pay
$5 to partially reimburse the department for its costs to
administer each reexamination to the applicant.
SECTION 11. ORS 634.306 is amended to read:
634.306. In accordance with the provisions of ORS 183.310 to
183.550, the { + State + } Department { + of Agriculture + } is
authorized to promulgate regulations necessary to carry out the
purposes and intent of this chapter, including but not limited to
the following:
(1) Establish and maintain a program required for a person to
work or engage in the application or spraying of pesticides as a
pesticide trainee. In this regard, the department may take into
consideration:
(a) Requirements for submission of applications by pesticide
trainees.
(b) Minimum and maximum periods of work or experience required
for pesticide trainees.
(c) Work performance records or reports to be maintained by
pesticide trainees or their employers.
(d) Acceptance of educational qualifications, applicable work
or experience in similar or other fields in lieu of, or as a part
of, periods of employment or work by pesticide trainees.
(e) Forms and types of pesticide trainee certificates to be
issued by the department, authorizing trainees to apply
pesticides in all or part of the classes of operations or
businesses set forth in subsection (2) of this section.
(f) Laws and requirements relating to other professional, trade
or industry trainee or apprenticeship programs in this or other
states.
(g) Special requirements if the pesticide trainee is to apply
pesticides by the use of aircraft, and the advisability of
allowing participation in federal flight training programs to be
substituted, all or in part, for training requirements under this
chapter.
(2) Establish and maintain classifications of the various
pesticides and of the various pest control or pesticide
application businesses in order to facilitate the licensing or
certification and regulation of pesticide consultants, operators,
applicators, private applicators and trainees. In this regard the
department may take into consideration:
(a) Various types, formulations and characteristics of
pesticides used and their purposes.
(b) Various methods of application of such pesticides.
(c) Precautions required for safe and effective application of
such pesticides.
(3) Designate pesticides authorized to be used or applied, or
prohibited from use or application, by persons in order to
qualify for an exemption under ORS 634.106.
(4) Establish and maintain classifications of pesticides and
devices which are deemed to be highly toxic or restricted-use
pesticides or devices. In this regard, the department shall take
into consideration:
(a) Laws and regulations of the Federal Government, including
the provisions of the Federal Insecticide, Fungicide and
Rodenticide Act, as amended, and the Federal Environmental
Pesticide Control Act.
(b) Laws and regulations of other states.
(c) Advice and counsel of experts in pesticides from industry,
universities and colleges and other governmental agencies or
bodies.
(5) Establish and maintain types of pesticide consultant or
applicator examinations and reexaminations, schedules for
required reexaminations and other measures deemed necessary for
fair and reasonable testing of applicants as provided in ORS
634.122 (5).
(6) Designate the conditions under which pesticide operators
spraying by aircraft may reduce, suspend or terminate the
liability insurance required by ORS 634.116, and the periods of
time therefor. In this regard, the department may take into
consideration:
(a) Changes in climate or seasons.
(b) Periods when certain crops are or have been harvested.
(c) Restricted or limited use of various types or classes of
pesticides.
(d) Possibilities of injury or death to persons and loss or
damage to real or personal property.
(7) Establish the conditions and amounts allowed for deductible
classes in the liability insurance required by ORS 634.116.
(8) Establish and maintain programs of instruction or
educational courses for pesticide consultants, operators,
applicators and private applicators in cooperation with Oregon
State University or others, wherein, as far as is practicable,
provisions are made so as to allow such pesticide operators and
applicators to participate only in the instruction or courses
directly or indirectly related to their particular activities.
Attendance of licensees may be required. { + The programs shall
include instruction as to the acute and chronic effects of
exposure to pesticides, emergency procedures to mitigate those
effects in the event of exposure and techniques of integrated
pest management that can be used to minimize the use of toxic
chemicals to control pests. + }
(9) Prepare and distribute a manual, or other form of
publication, containing information helpful and beneficial to
persons engaged in pesticide application or use or to persons
preparing to qualify for licensing as a pesticide operator,
consultants or applicator and establish charges therefor.
{ + The manual shall include information as to the acute and
chronic effects of exposure to pesticides, emergency procedures
to mitigate those effects in the event of exposure and techniques
of integrated pest management that can be used to minimize the
use of toxic chemicals to control pests. + }
(10) Establish, from time to time, advisory groups or
committees to assist the department in formulation of policies,
plans or regulations under this chapter. Each member of any such
group or committee so established shall be entitled to
compensation and expenses as provided in ORS 292.495, which shall
be charged to the department.
(11) Establish registration fees for pesticide brands and
formulae or formulations thereunder.
(12) Establish restrictions or prohibitions as to the form of
pesticides allowed to be mixed, applied or added to fertilizers,
seed or grains.
(13) Establish restrictions, methods and procedures in the
storage, transportation, use or application of restricted-use
pesticides or highly toxic pesticides in order to protect humans,
pollinating insects, bees, animals, crops, wildlife, land or
environment.
(14) Establish and maintain a system for certification of
private applicators. In this regard, the department shall take
into consideration:
(a) Laws and regulations of the Federal Government, including
the provisions of the Federal Environmental Pesticide Control Act
of 1972, 86 Stat. 973, and the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. 135 Et. Seq., as amended thereby, and
regulations thereunder.
(b) Minimum periods of experience required and types of
experience, education or work acceptable.
(c) Forms and types of private applicator certificates to be
issued by the department, authorizing private applicators to
apply pesticides in all or part of the classifications of
pesticides set forth in subsection (4) of this section.
{ + (15) Establish, in addition to other requirements of this
chapter, minimum requirements for the supervision of employees of
pesticide operators and private applicators who handle or apply
restricted-use or highly toxic pesticides. The department shall
consider the degree of risk to the public health posed by the
pesticide, and laws and regulations of the United States. + }
SECTION 12. ORS 634.372 is amended to read:
634.372. No person shall:
(1) Make false or misleading claims through any media, relating
to the effect of pesticides or application methods to be
utilized.
(2) As a pesticide applicator or operator, intentionally or
willfully apply or use a worthless pesticide or any pesticide
inconsistent with its labeling, or as a pesticide consultant or
dealer, recommend or distribute such pesticides.
(3) Operate a faulty or unsafe pesticide spray apparatus,
aircraft or other application device or equipment.
(4) Perform pesticide application activities in a faulty,
careless or negligent manner.
(5) Refuse or neglect to prepare and maintain records required
to be kept by the provisions of this chapter.
(6) Make false, misleading or fraudulent records, reports or
application forms required by the provisions of this chapter.
(7) Operate pesticide applicators' apparatus, machinery or
equipment without a licensed pesticide applicator or certified
private applicator performing the actual application, or
supervising such application if such is performed by a pesticide
trainee. This prohibition does not apply to the operation of
tractors, trucks or other vehicular equipment used only under the
supervision of a certified private applicator.
(8) As a pesticide applicator, work or engage in the
application of any classes of pesticides without first obtaining
and maintaining a pesticide applicator's license, or apply
pesticides which are not specifically authorized by such license.
(9) As a pesticide operator, engage in the business of, or
represent or advertise as being in the business of, applying
pesticides upon the land or property of another, without first
obtaining and maintaining a pesticide operator's license, nor
shall such person engage in a class of pesticide application
business which is not specifically authorized by license issued
by the { + State + } Department { + of Agriculture + }.
Further, no such person shall employ or use any person to apply
or spray pesticides who is not a licensed pesticide applicator or
pesticide trainee.
(10) As a pesticide trainee, work or engage in the application
of any class of pesticides without first obtaining and
maintaining a pesticide trainee's certificate and is otherwise in
compliance with the provisions of this chapter.
(11) Act as, or purport to be, a pesticide dealer or advertise
as such without first obtaining and maintaining a pesticide
dealer's license.
(12) Act as, or purport to be, a pesticide consultant without
first obtaining and maintaining a pesticide consultant's license.
(13) Apply any pesticide classified as a restricted-use or
highly toxic pesticide to agricultural, horticultural or forest
crops on land owned or leased by the person without first
obtaining and maintaining a private applicator certificate.
(14) As a person described in ORS 634.106 (5), use power-driven
pesticide application equipment or devices (use hand or backpack
types only), or use or apply any pesticide other than those
prescribed by the department.
(15) Deliver, distribute, sell or offer for sale any pesticide
which is misbranded.
(16) Formulate, deliver, distribute, sell or offer for sale any
pesticide which is adulterated.
(17) Formulate, deliver, distribute, sell or offer for sale any
pesticide which has not been registered as required by ORS
634.016.
(18) Formulate, deliver, distribute, sell or offer for sale any
powdered pesticide containing arsenic or any highly toxic
fluoride which is not distinctly colored.
(19) Distribute, sell or offer for sale any pesticide except in
the manufacturer's original unbroken package.
(20) Make application of pesticides, by aircraft or otherwise,
within a protected or restricted area without first obtaining a
permit for such application from the committee of the protected
or restricted area in which the application is to be made, nor
shall such person make such application contrary to the
conditions or terms of the permit so issued.
(21) Use isopropyl ester of 2,4-D, or any other ester of equal
or higher volatility with regard to plant damage as determined by
the department, without first obtaining a permit for such use as
provided in ORS 634.322 (10).
(22) Sell, use or remove any pesticide or device subjected to a
'stop sale, use or removal' order until the pesticide or device
has been released therefrom as provided in ORS 634.322 (3).
{ + (23) Discharge, intimidate or in any manner discriminate
against any person for providing information regarding pesticide
use, for exercising any right or performing any duty under this
chapter, or for conferring with anyone regarding the person's
duties and rights with respect to the handling of pesticides or
regarding the provisions of this chapter.
(24) As a private applicator, permit an employee to handle,
mix, load or apply a restricted-use or highly toxic pesticide
unless the employee is a certified private applicator or is
working under the supervision of a certified private
applicator. + }
SECTION 13. { + Section 14 of this Act is added to and made a
part of ORS chapter 634. + }
SECTION 14. { + Any person aggrieved by a violation of ORS
634.146 or 634.372 (23) may bring an action in any court of
competent jurisdiction for injunctive relief and damages. In any
such proceeding the court may award costs, including reasonable
attorney fees, to the prevailing party. + }
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