Chapter 307 Oregon Laws 2001

AN ACT

HB 2604

Relating to pesticides; amending ORS 634.106, 634.116 and 634.372; and declaring an emergency.

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

SECTION 1. 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) Persons licensed as veterinarians under ORS chapter 686 who are engaged in the practice of veterinary medicine within the scope of their veterinary medicine practice and employees of [such persons] licensed veterinarians when acting within the scope of their employment.

[(4) Except as otherwise provided in ORS 634.116:]

[(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.]

[(5)] (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.

[(6)] (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.

[(7)] (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.

[(8)] (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] the application shall be under the direct supervision of a licensed public applicator.

SECTION 2. ORS 634.116 is amended to read:

634.116. (1) A pesticide operator’s license, or supplements thereto, shall authorize the licensee to engage in one or more of the classes of pest control or pesticide application business prescribed by the State Department of Agriculture under ORS 634.306 (2). The department may not issue a pesticide operator license to the United States, the State of Oregon or federal, state or local agencies, instrumentalities, political subdivisions, counties, cities, towns, municipal corporations, irrigation, drainage or other districts or other federal, state or local governmental bodies.

(2) During a license period, and after a person has been issued a license to engage in certain classes of pest control or pesticide application business during a license period, the department upon receiving an additional application and applicable fees, may authorize the licensee to engage in additional classes of pest control or pesticide application business for the remainder of the license period as prescribed in ORS 634.306 (2).

(3)(a) The department shall establish a pesticide operator license fee [shall be established by the department] not to exceed $90 for the first class of pest control or pesticide application business as prescribed in ORS 634.306 (2) and not to exceed $15 for each additional class.

(b) After a person makes first application for a specific license period, if later during the same license period the person desires to engage in additional classes of pest control or pesticide application businesses, such person shall pay the fee for each additional class established by the department not to exceed $20.

(4) At least one [person who is] owner or part owner of the pest control or pesticide application business shall also obtain and maintain a pesticide applicator’s license if the pesticide operator is a sole proprietorship or [is] a partnership. At least one officer or [one] employee shall [also] obtain and maintain a pesticide applicator’s license if the pesticide operator is a corporation. [At any time there is a] If a pesticide operator is found to be in violation of this subsection, the pesticide operator’s license, notwithstanding [the provisions of] ORS 183.310 to 183.550, [shall be] is automatically suspended until [such time as] the pesticide operator is in compliance. If the business is owned by one individual, the department shall make no charge for the pesticide applicator license issued to the individual under ORS 634.122.

(5) The department shall not issue or renew a pesticide operator’s license until the applicant or licensee has furnished evidence to the department, in the form of a public liability policy issued by an insurance company qualified to do business in Oregon, protecting the applicant or licensee against liability for injury or death to persons and loss of or damage to property resulting from the application of pesticides, or in lieu of [such insurance] a policy, has furnished a deposit of cash, surety bond or other evidence of financial responsibility acceptable to the department [which] that may be applied by the department to the payment of damages resulting from [such] operator liability. However:

(a) Except as required under paragraph (b) of this subsection, the financial responsibility required by this section shall not apply to damages or injury to crops, real or personal property being worked upon by the applicant.

(b) If the applicant or licensee is to be engaged in the business of controlling or eradicating structural pests, or pests within a public or private place, or pests within private or public places where food is served, prepared or processed or where persons are regularly housed, the financial responsibility required by this section shall apply to damages or injury to real or personal property being worked upon, as well as all the other real and personal property set forth in this section.

(6) The financial responsibility required by subsection (5) of this section [shall be in the amount of] must be not less than $25,000 for bodily injury to one or more persons and not less than $25,000 for property damage.

(7) Notwithstanding the provisions of ORS 183.310 to 183.550, [at any time] if the licensed pesticide operator fails to maintain the financial responsibility required by subsections (5) and (6) of this section, the license [shall be] is automatically suspended until the department again verifies the pesticide operator is in compliance with [the provisions of such] subsections (5) and (6) of this section. The liability insurance company shall notify the department [shall be notified] in writing [by the liability insurance company] at least 30 days prior to any cancellation of an insurance policy required by this section.

(8) Notwithstanding the provisions of ORS 105.810 and 105.815 or other laws to the contrary, the amount of damages for which a pesticide operator or pesticide applicator is liable as a result of use of pesticides, or financial responsibility for the same [shall be] is limited to actual damages only.

(9) The department shall return the deposit required by subsection (5) of this section [shall be returned] to the pesticide operator if the pesticide operator at any time establishes exemption from the financial responsibility requirements under this chapter. After the expiration of two years from the date of an injury, death, loss or damage, the department shall return any deposit remaining [shall be returned] to the pesticide operator or to the personal representative of the pesticide operator except that the department shall not make [such] a return if [it] the department has received notice that an action for damages arising out of the provisions of this section has been filed against the pesticide operator for whom the deposit was made, and the department has determined that [such] the action is pending or that any judgment resulting from [such] the action remains unpaid.

(10) If the pesticide operator is to spray by aircraft, then the department, in addition to other provisions of this section relating to financial responsibility, may by [regulation] rule allow aircraft pesticide operators to reduce, suspend or terminate the liability insurance, applicable to spraying by aircraft, and required by subsections (5) and (6) of this section during certain periods of the year.

(11) The department may by [regulation] rule allow liability insurance policies required by subsections (5) and (6) of this section to include deductible clauses of amounts to be determined by the department.

(12)(a) The United States, the State of Oregon or [its] federal, state or local agencies, instrumentalities, political subdivisions, counties, cities, towns, municipal corporations, irrigation, drainage or other districts or other federal, state or local governmental bodies [or subdivisions thereof, irrigation districts, drainage districts, public utilities and telecommunications utilities, shall not be] are not required to obtain a license as a pesticide operator or to furnish evidence of financial responsibility to the department[, while] when:

(A) Applying pesticides to [land or] property under their ownership, [supervision] possession, control or jurisdiction;

(B) Applying pesticides pursuant to an order issued by the department for purposes of controlling or eradicating noxious weeds or pests; or

(C) Applying pesticides to property under the ownership, possession, control or jurisdiction of another federal, state or local agency, instrumentality, political subdivision, county, city, town, municipal corporation, irrigation, drainage or other district or other federal, state or local governmental body if:

(i) The land is in a jurisdiction adjacent to property under their ownership, possession, control or jurisdiction;

(ii) The application is done in conjunction with, or as an extension of, an application of pesticides to property under their ownership, possession, control or jurisdiction; and

(iii) The pesticide application is done on a cost recovery, cooperative trade of services or no cost basis, and not as a source for profit.

(b) A public utility or telecommunications utility is not required to obtain a license as a pesticide operator or to furnish evidence of financial responsibility to the department when applying pesticides to property under the ownership, possession or control of the utility.

(13) Subject to subsection (15) of this section, the employees of the [persons or] agencies, instrumentalities, subdivisions, counties, cities, towns, municipal corporations, districts, governmental bodies or utilities described in subsection (12) of this section who perform or carry out the work, duties or responsibilities of a pesticide applicator are subject to the provisions of this chapter, except they shall be issued “public applicator” licenses or, if they carry out the work, duties or responsibilities of a pesticide trainee, shall be issued “public trainee” certificates, if they otherwise comply or qualify with the provisions of this chapter relating thereto.

(14) The public applicator license or public trainee certificate[, as the case may be,] shall be:

(a) Issued by the department upon payment of the fee for [a] the pesticide applicator license or pesticide trainee certificate[, as the case may be].

(b) Valid and used by the licensee or certificate holder only [while working for and employed by one of the persons, agencies or others named in subsection (12) of this section on land or property under the ownership, supervision or jurisdiction thereof] when applying pesticides as described in subsection (12) of this section.

(c) Renewed, suspended or revoked each year in the same manner, under the same provisions and at the same time as other pesticide applicator licenses and trainee certificates are renewed, suspended or revoked.

[(15) As to persons, public agencies or others described in subsection (12) of this section, and subdivisions of government and their employees,]

(15) The provisions of subsection (13) of this section [shall] apply only to:

[(a) Application of pesticides by aerial spraying; or]

[(b) The propelling through air by machine-powered devices of spray or dust containing pesticides; and]

[(c) Where such application is done by such persons or agencies and their employees, such application shall be done under the immediate supervision of a person holding a license as a pesticide applicator or public applicator.]

(a) The application of restricted-use pesticides; or

(b) The application of any pesticide by using a machine-powered device.

(16) Prior to applying pesticides to land described in subsection (12)(a)(C) of this section, a public applicator shall inform the person requesting pesticide application of the possible availability of alternative sources of assistance, including sources in the private sector that are registered with the department or with industry trade or professional organizations.

(17) A federal, state or local agency, instrumentality, political subdivision, county, city, town, municipal corporation, irrigation, drainage or other district or other federal, state or local governmental body may not solicit or advertise for pesticide application business in areas outside its jurisdiction.

SECTION 3. ORS 634.372 is amended to read:

634.372. [No] A person [shall] may not:

(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] that 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] The operator also may not engage in a class of pesticide application business [which] that is not specifically authorized by license issued by the State Department of Agriculture. [Further, no such person shall] The operator also may not 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)] (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] that is misbranded.

(16) Formulate, deliver, distribute, sell or offer for sale any pesticide [which] that is adulterated.

(17) Formulate, deliver, distribute, sell or offer for sale any pesticide [which] that 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] that 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] The person also may not 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, chapter 1059, Oregon Laws 1999, or rules adopted thereunder.

SECTION 4. ORS 634.372, as amended by section 18, chapter 1059, Oregon Laws 1999, is amended to read:

634.372. [No] A person [shall] may not:

(1) Make false or misleading claims through any media, relating to the effect of pesticides or application methods to be utilized.

(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.

(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] The operator also may not engage in a class of pesticide application business [which] that is not specifically authorized by license issued by the State Department of Agriculture. [Further, no such person shall] The operator also may not employ or use any person to apply or spray pesticides who is not a licensed pesticide applicator or pesticide trainee.