Chapter 1059 Oregon Laws 1999

Session Law

AN ACT

HB 3602

Relating to pesticide tracking; creating new provisions; amending ORS 192.502, 634.306 and 634.372; appropriating money; limiting expenditures; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Sections 2 to 11 and 15 of this 1999 Act are added to and made a part of ORS chapter 634.

SECTION 2. As used in sections 2 to 11 of this 1999 Act:

(1) "Pesticide" has the meaning given in ORS 634.006, but does not include antimicrobial pesticides as defined in the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 (P.L. 92-516, as amended).

(2) "Pesticide user" means any person who uses or applies a pesticide in the course of business or any other for-profit enterprise, or for a governmental entity, or in a location that is intended for public use or access.

(3) "Retail pesticide dealer" means a person who sells, offers for sale, handles, displays or distributes any pesticide but is not licensed as a pesticide dealer under ORS 634.112.

SECTION 3. The Legislative Assembly finds and declares that the development of a comprehensive, reliable and cost-effective system for collecting and organizing information on all categories of pesticide use in Oregon is needed by government agencies, researchers, policymakers and the public to ensure the public health and safety and to protect Oregon's water and environment.

SECTION 4. The State Department of Agriculture shall establish and implement a pesticide use reporting system to meet the need described in section 3 of this 1999 Act. In establishing and implementing the system, the department shall:

(1) Design, develop and implement the system in order to collect, evaluate, summarize, retain and report information on the use of pesticides in each major category of use in Oregon, including agriculture, forestry, industrial, urban commercial and urban homeowner uses.

(2) At least one time each year, collect the best data practicable from each major category of pesticide use in a manner that reduces paperwork and reporting costs.

(3) Require all pesticide users to report basic information on their use of pesticides that includes, at a minimum:

(a) The watershed, county, zip code or other identification of the location as recommended by the work group established in section 5 of this 1999 Act for the location of use;

(b) The name and United States Environmental Protection Agency registration number for the pesticide product used;

(c) The quantity of pesticide product applied;

(d) The purpose of and type of site of the application;

(e) The month of the application; and

(f) Other data gathered by pesticide applicators that is necessary to achieve the purposes of section 3 of this 1999 Act.

(4) Develop a mechanism to ensure the accuracy, reliability and validity of the database by providing for an independent review of the pesticide use data and collection procedures by data quality assurance specialists.

(5) Develop a specific mechanism to identify household and other urban uses of pesticides. If this mechanism involves sales reporting by retail pesticide dealers, the department shall develop a minimum monthly sales quantity below which the retail pesticide dealer is exempt from reporting.

(6) Implement a limited size, pesticide reporting pilot program on or before January 31, 2001.

(7) Begin operation of the statewide required data reporting program on January 1, 2002.

SECTION 5. (1) The Governor, in consultation with the President of the Senate and the Speaker of the House of Representatives, shall appoint a pesticide stakeholder work group to advise the State Department of Agriculture in developing the pesticide use reporting system under sections 2 to 9 of this 1999 Act. The membership of the work group shall include a balanced representation from all areas of the state and shall include representatives of pesticide applicators, pesticide dealers, retail pesticide dealers, environmental organizations, labor organizations, public health organizations and public water suppliers. The work group shall make specific recommendations on stable and sufficient funding mechanisms to support the pesticide reporting program.

(2) The work group shall meet when convened by the State Department of Agriculture. All meetings of the work group shall be open to the public and shall include an opportunity to receive recommendations and comments from members of the public.

(3) In carrying out its responsibilities under sections 2 to 9 of this 1999 Act, the State Department of Agriculture shall:

(a) Consult with the work group appointed under this section; and

(b) Convene meetings of the work group as necessary.

SECTION 6. In carrying out its responsibilities under sections 2 to 9 of this 1999 Act, the State Department of Agriculture shall seek technical assistance as appropriate from at least the following entities:

(1) Oregon Department of Administrative Services;

(2) Department of Environmental Quality;

(3) State Department of Fish and Wildlife;

(4) State Forestry Department;

(5) Health Division of the Department of Human Resources;

(6) Occupational Safety and Health Division of the Department of Consumer and Business Services;

(7) Oregon Poison Center;

(8) Pesticide Analytical and Response Center; and

(9) Office of the State Fire Marshal.

SECTION 7. The State Department of Agriculture shall conduct an analytical review of any issues that must be resolved in order to establish a valid, cost-effective pesticide use reporting system in Oregon. The review shall be completed and its conclusions published not later than May 1, 2000. The analytical review shall evaluate and make recommendations on at least the following:

(1) The correlation between the point of purchase of a pesticide product from a pesticide dealer or retail pesticide dealer and the ultimate location of the use of that pesticide;

(2) The most practicable and valid method to obtain homeowner pesticide use data;

(3) How any existing state or federal database can be incorporated into the statewide system;

(4) The most appropriate hydrologic or geographic unit for compiling data based on cost and usability of data;

(5) Specific data to be gathered and data reporting formats; and

(6) Reporting frequency and data format that would be useful in:

(a) Promoting economically sound agricultural and nonagricultural pest management; and

(b) Protecting public health, water quality, fish and wildlife.

SECTION 8. In implementing the pesticide use reporting system, the State Department of Agriculture shall, at a minimum:

(1) Beginning July 1, 2003, and annually thereafter, publish an annual report summarizing the pesticide use data in Oregon on a watershed basis. The report shall include an analysis of trends in use and an assessment of accuracy of the reporting data and summary of use by regions, watershed, county or other scale as recommended by the pesticide stakeholder group appointed under section 5 of this 1999 Act.

(2) Establish policy and adopt rules relating to the public release of pesticide use information. The policy and rules may not reveal the identity of the owner or lessee of a specific property or the address of the property itself where a pesticide has been applied, and shall maintain the confidentiality of that information. Nothing in the policy or rules adopted by the department shall limit access to data for the following purposes:

(a) Information obtained as part of any investigation under any other provision of law;

(b) To release information obtained exclusively under sections 2 to 9 of this 1999 Act to any other local, state or federal agency, if the local, state or federal agency has agreed to maintain the confidentiality of any information that is required to be treated as confidential under this subsection, unless the public interest by clear and convincing evidence requires disclosure in the particular instance; and

(c) To release information obtained exclusively under sections 2 to 9 of this 1999 Act to a health or environmental researcher acting in an official capacity from an accredited university or accepted research institute who agrees to maintain the confidentiality of any information that is required to be treated as confidential under this subsection.

SECTION 9. (1) In addition to any other liability or penalty provided by law, the Director of Agriculture may impose a civil penalty in an amount of up to $10,000 on any person for violation of a confidentiality agreement established under section 8 of this 1999 Act.

(2) The State Department of Agriculture shall develop by rule a schedule establishing the amount of civil penalty that may be imposed for a particular violation under subsection (1) of this section. Under the schedule, the amount of the civil penalty shall correlate to the severity of the breach of confidentiality.

(3) Any civil penalty under this section shall be imposed as provided in ORS 183.090.

SECTION 10. Nothing in sections 2 to 9 of this 1999 Act shall be construed to create a new private right of action against any pesticide user or retail pesticide dealer.

SECTION 11. (1) As used in this section, "frivolous" means the matter is not supported by substantial evidence or the matter is initiated without reasonable prospect of prevailing.

(2) If any person files an action against another party as a result of the operation of the pesticide use reporting system created pursuant to sections 2 to 9 of this 1999 Act, and the court finds that the action is frivolous or was filed in bad faith or for the purpose of harassment, the court may impose an appropriate sanction upon the person who filed the action. The sanction may include an order to pay to the other party the amount of the reasonable expenses incurred by reason of the filing of the action, including reasonable attorney fees.

SECTION 12. ORS 192.502 is amended to read:

192.502. The following public records are exempt from disclosure under ORS 192.410 to 192.505:

(1) Communications within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to any final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.

(2) Information of a personal nature such as but not limited to that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy.

(3)(a) Public body employee or volunteer addresses and telephone numbers contained in personnel records maintained by the public body that is the employer or the recipient of volunteer services. This exemption does not apply:

(A) To such employees or volunteers if they are elected officials, except that a judge or district attorney subject to election may seek to exempt the judge's or district attorney's address or telephone number, or both, under the terms of ORS 192.445; or

(B) To such employees or volunteers to the extent that the party seeking disclosure shows by clear and convincing evidence that the public interest requires disclosure in a particular instance.

(b) Nothing in this subsection exempting employee records from disclosure relieves a public employer of any duty under ORS 243.650 to 243.782.

(4) Information submitted to a public body in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential, the public body has obliged itself in good faith not to disclose the information, and when the public interest would suffer by the disclosure.

(5) Information or records of the Department of Corrections, including the State Board of Parole and Post-Prison Supervision, to the extent that disclosure thereof would interfere with the rehabilitation of a person in custody of the department or substantially prejudice or prevent the carrying out of the functions of the department, if the public interest in confidentiality clearly outweighs the public interest in disclosure.

(6) Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services in the administration of ORS chapters 723 and 725 not otherwise required by law to be made public, to the extent that the interests of lending institutions, their officers, employees and customers in preserving the confidentiality of such information outweighs the public interest in disclosure.

(7) Reports made to or filed with the court under ORS 137.077 or 137.530.

(8) Any public records or information the disclosure of which is prohibited by federal law or regulations.

(9) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law.

(10) Public records or information described in this section, furnished by the public body originally compiling, preparing or receiving them to any other public officer or public body in connection with performance of the duties of the recipient, if the considerations originally giving rise to the confidential or exempt nature of the public records or information remain applicable.

(11) Records of the Energy Facility Siting Council concerning the review or approval of security programs pursuant to ORS 469.530.

(12) Employee and retiree address, telephone number and other nonfinancial membership records and employee financial records maintained by the Public Employees Retirement System pursuant to ORS chapter 238 and ORS 238.410.

(13) Records submitted by private persons or businesses to the State Treasurer or the Oregon Investment Council relating to proposed acquisition, exchange or liquidation of public investments under ORS chapter 293 may be treated as exempt from disclosure when and only to the extent that disclosure of such records reasonably may be expected to substantially limit the ability of the Oregon Investment Council to effectively compete or negotiate for, solicit or conclude such transactions. Records which relate to concluded transactions are not subject to this exemption.

(14) The monthly reports prepared and submitted under ORS 293.761 and 293.766 concerning the Public Employees Retirement Fund and the Industrial Accident Fund may be uniformly treated as exempt from disclosure for a period of up to 90 days after the end of the calendar quarter.

(15) Reports of unclaimed property filed by the holders of such property to the extent permitted by ORS 98.352.

(16) The following records, communications and information submitted to the Oregon Economic Development Commission, the Economic Development Department, the State Department of Agriculture, the Oregon Resource and Technology Development Corporation, the Port of Portland or other ports, as defined in ORS 777.005, by applicants for loans or services described in ORS 285A.224:

(a) Personal financial statements.

(b) Financial statements of applicants.

(d) Information of an applicant pertaining to litigation to which the applicant is a party if the complaint has been filed, or if the complaint has not been filed, if the applicant shows that such litigation is reasonably likely to occur; this exemption does not apply to litigation which has been concluded, and nothing in this paragraph shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation.

(e) Production, sales and cost data.

(f) Marketing strategy information that relates to applicant's plan to address specific markets and applicant's strategy regarding specific competitors.

(17) Records, reports or returns submitted by private concerns or enterprises required by law to be submitted to or inspected by a governmental body to allow it to determine the amount of any transient lodging tax payable and the amounts of such tax payable or paid, to the extent that such information is in a form which would permit identification of the individual concern or enterprise. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceedings. The public body shall notify the taxpayer of the delinquency immediately by certified mail. However, in the event that the payment or delivery of transient lodging taxes otherwise due to a public body is delinquent by over 60 days, the public body shall disclose, upon the request of any person, the following information:

(a) The identity of the individual concern or enterprise that is delinquent over 60 days in the payment or delivery of the taxes.

(b) The period for which the taxes are delinquent.

(18) All information supplied by a person under ORS 151.430 to 151.491 for the purpose of requesting court-appointed counsel, and all information supplied to the State Court Administrator from whatever source for the purpose of verifying indigency of a person pursuant to ORS 151.430 to 151.491.

(19) Workers' compensation claim records of the Department of Consumer and Business Services, except in accordance with rules adopted by the Director of the Department of Consumer and Business Services, in any of the following circumstances:

(a) When necessary for insurers, self-insured employers and third party claim administrators to process workers' compensation claims.

(b) When necessary for the director, other governmental agencies of this state or the United States to carry out their duties, functions or powers.

(c) When the disclosure is made in such a manner that the disclosed information cannot be used to identify any worker who is the subject of a claim.

(d) When a worker or the worker's representative requests review of the worker's claim record.

(20) Sensitive business records or financial or commercial information of the Oregon Health Sciences University that is not customarily provided to business competitors.

(21) Records of the Oregon Health Sciences University regarding candidates for the position of university president.

(22) The records of a library, including circulation records, showing use of specific library material by a named person or consisting of the name of a library patron together with the address or telephone number, or both, of the patron.

(23) The following records, communications and information submitted to the Housing and Community Services Department by applicants for and recipients of loans, grants and tax credits:

(a) Personal and corporate financial statements and information, including tax returns.

(b) Credit reports.

(d) Market studies and analyses.

(e) Articles of incorporation, partnership agreements and operating agreements.

(f) Commitment letters.

(g) Project pro forma statements.

(h) Project cost certifications and cost data.

(i) Audits.

(j) Project tenant correspondence requested to be confidential.

(k) Tenant files relating to certification.

(L) Housing assistance payment requests.

(24) Raster geographic information system (GIS) digital databases, provided by private forestland owners or their representatives, voluntarily and in confidence to the State Forestry Department, that is not otherwise required by law to be submitted.

(25) Except under the provisions of section 8 (2) of this 1999 Act, pesticide sales or use reporting data obtained by the State Department of Agriculture exclusively under the provisions of sections 2 to 9 of this 1999 Act that would reveal the identity or specific location of the owner or lessee of a specific property where a pesticide has been applied for a private agriculture or forestry production operation, or other nonpublic facility on private property. Nothing in this subsection shall limit the use that may be made of such information for regulatory purposes or its admissibility in any enforcement proceedings.

SECTION 13. 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.

(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.

(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.

(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.

(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.

(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 requirements for the reporting of pesticide sales, distribution or use by any person.

SECTION 14. 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 (6), 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) Fail to comply with any provision or requirement of sections 2 to 9 of this 1999 Act, or rules adopted thereunder.

SECTION 15. Notwithstanding the maximum registration fee established under ORS 634.016 (5):

(1) For the years beginning January 1, 2000, and January 1, 2001:

(a) The registration fee shall not exceed $130 for each pesticide, formula or formulation; and

(b) The State Department of Agriculture may collect and distribute up to $10 in registration fees for each pesticide, formula or formulation in order to fund the analytical review under section 7 of this 1999 Act and to execute the pesticide reporting pilot program under section 4 (6) of this 1999 Act.

(2) For the years beginning January 1, 2002, and ending December 31, 2009:

(a) The registration fee shall not exceed $160 for each pesticide, formula or formulation; and

(b) Up to $40 in registration fees for each pesticide, formula or formulation may be used by the department for the implementation of the pesticide use reporting system under sections 2 to 9 of this 1999 Act as long as the Legislative Assembly appropriates an equivalent amount of moneys from the General Fund for the system.

SECTION 16. ORS 192.502, as amended by section 12 of this 1999 Act, is amended to read: