HOUSE OF REPRESENTATIVES

H.B. NO.

1514

TWENTY-EIGHTH LEGISLATURE, 2015

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO ENVIRONMENTAL PROTECTION.

 

 

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

 


SECTION 1. The legislature finds that the number of large-scale, outdoor commercial agricultural operations in Hawaii has been increasing. Unlike the majority of Hawaii's farmers, these operations regularly apply high volumes of restricted use pesticides into the environment. The legislature also finds that information pertaining to the intensive use of pesticides in large-scale commercial agriculture within the State is not readily available to the public. Thus, the public is unable to evaluate the full extent of any impacts accruing to Hawaii's environment or its residents and to decide whether the risks associated with the large-scale use of pesticides is acceptable.

The legislature further finds that the State currently does not have an adequate regulatory structure in place to monitor the human health impacts of pesticide drift near sensitive populations. Moreover, the direct, indirect, and cumulative impacts on the environment and public health related to long-term intensive commercial use of pesticides has yet to be properly or independently evaluated.

The legislature also finds that the United States Environmental Protection Agency classifies pesticides as restricted use pesticides if they are determined to cause "unreasonable adverse effects on the environment" when used "without additional regulatory restrictions." Pesticides may volatilize, or change from a solid or liquid state into a vapor state, into the lower atmosphere for days, weeks, or months after the application. Accordingly, drift from restricted use pesticides may have lingering effects on the environment long after the initial exposure.

The legislature finds that children, the elderly, and other sensitive residents have no choice but to live, work, and commute daily in close proximity to areas where restricted use pesticides are being sprayed. Children can be exposed to pesticides applied on school grounds, pesticides that drift onto school grounds, or pesticide residues. Of greatest concern are restricted use pesticides such as chlorpyrifos, which scientists have definitively linked to developmental delays in children, and other toxic exposure to pesticides during fetal, neonatal, and infant life that may disrupt critical development processes. Life-long pesticide exposure for those living in exposed areas has been linked to long-term health effects, including cancer and other serious diseases, decreased cognitive function, and behavioral problems.

The purpose of this Act is to protect the State's environment and residents from the unintended impacts of large-scale pesticide use by establishing:

(1) Disclosure requirements for outdoor applications of pesticides in proximity to schools, childcare facilities, and certain commercial agricultural entities; and

(2) Pesticide buffer zones for sensitive areas.

SECTION 2. Chapter 149A, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . disclosure and buffer zones

149A-A Definitions. As used in this part:

"Adult residential care home" means an adult residential care home as defined in section 321-15.1 that is licensed by the State.

"Ahupuaa" shall have the same meaning as in section 226-2.

"Assisted living facility" means an assisted living facility as defined in section 321-15.1 that is licensed by the State.

"Child care facility" means child care facility as defined in section 346-151 that is licensed by the State.

"Commercial agricultural entity" means any individual, partnership, association, corporation, limited liability company, or organized group of persons, regardless of whether incorporated, that is engaged in commercial agricultural production.

"Commercial agricultural production" means:

(1) Commercial production of any seed, crop, plant, timber, livestock, poultry, fish, bees, or apiary products; or

(2) Testing or experimental production of any seed, crop, plant, timber, livestock, poultry, fish, bees, or apiary products.

"Commercial agricultural production area" means real properties and areas owned, leased, or otherwise operated or controlled and used by a commercial agricultural entity for commercial agricultural production.

"Early childhood education and care facility" means any property licensed by the State for the care and instruction of children from birth to age five.

"Expanded adult residential care home" means an expanded adult residential care home as defined in section 321-15.1 that is licensed by the State.

"Experimental use pesticide" means a pesticide whose use is authorized by an experimental use permit by either the Environmental Protection Agency or the department.

"Extended care adult residential care home" shall have the same meaning as in section 323D-2.

"Family child care home" means a family child care home as defined in section 346-151 that is licensed by the State.

"Group child care center" means a group child care center as defined in section 346-151 that is licensed by the State.

"Group child care home" means a group child care home as defined in section 346-151 that is licensed by the State.

"Health" includes physical and mental health.

"Hospice home" shall have the same meaning as in section 321-15.1.

"Hospital" includes all hospitals licensed pursuant to section 321-14.5.

"Non-agricultural production area" means any area held and operated by a commercial agricultural entity in conjunction with real properties and areas utilized for commercial agricultural production.

"Outdoor application" means an application of a pesticide made outside of a building or enclosed structure. The term excludes:

(1) Indoor applications of pesticides; and

(2) Structural or termite application of pesticides,

whether the applications are applied in or outside of a building or enclosed structure.

"Primary care clinic" means a primary care clinic as defined in section 323D-2 that is licensed by the State.

"School" means an academic institution, including early education, public schools, department schools, and charter schools, as those terms are defined in section 302A-101, and private schools licensed by the State. The term does not include institutions of higher education, as defined in section 346-16.

"School grounds" means:

(1) Land associated with any school, child care facility, early childhood education and care facility, family child care home, group child care center, or group child care home, including playgrounds, athletic fields, and agricultural fields used by students or staff of these entities; and

(2) Any other outdoor area used by students or staff of a school that is under the control or operation of any school, child care facility, early childhood education and care facility, family child care home, group child care center, or group child care home.

"Sensitive area" includes any:

(1) School, hospital, adult residential care home, assisted living facility, child care facility, family child care home, group child care center, group child care home, hospice home, extended care adult residential care home, expanded adult residential care home, health care facility, and primary care clinic; and

(2) Shoreline, watershed, and bodies of perennial waters.

"Shoreline" shall have the same meaning as in section 205A-1.

"Surface water" shall have the same meaning as in section 174C-3.

"Watershed" means an area:

(1) From which the domestic water supply of any city, town, or community is or may be obtained; or

(2) Where water infiltrates into artesian or other ground-water areas from which the domestic water supply of any city, town, or community is or may be obtained,

as determined by the department of land and natural resources pursuant to section 183-31.

149A-B Mandatory disclosure and notification of outdoor pesticide use on affected grounds. Effective one year following the effective date of Act   , Session Laws of Hawaii 2015, any school, child care facility, early childhood education and care facility, family child care home, group child care center, and group child care home that uses or purchases in excess of       pounds or       gallons of restricted use pesticides during the prior calendar year shall disclose the use of all pesticides, including restricted use, general use, and experimental use pesticides, as follows:

(1) Public posting of pesticide outdoor application. At a minimum of twenty-four hours prior to the outdoor application of any pesticide on affected grounds, each entity subject to this section shall post public warning signs in the area in which pesticides are to be applied, in the manner prescribed by section 149A-D.

(2) Notification to parents and guardians. At a minimum of twenty-four hours prior to the outdoor application of any pesticide on affected grounds, each entity subject to this section shall provide written notification to the parents or guardians of children attending the school, child care facility, early childhood education and care facility, family child care home, group child care center, or group child care home, as the case may be, in the manner prescribed by section 149A-D.

(3) Recordkeeping and annual public disclosure. No later than sixty days following the end of each calendar year, each entity subject to this section shall provide to the department annual public reports of all pesticides used in outdoor applications during the preceding calendar year. The annual reports shall comply with the requirements of section 149A-E.

149A-C Mandatory disclosure and notification of commercial agricultural pesticide use. Effective one year following the effective date of Act , Session Laws of Hawaii 2015, any commercial agricultural entity that annually purchases or uses in excess of       pounds or       gallons of restricted use pesticides during the prior calendar year shall disclose the use of all pesticides, including restricted use, general use, and experimental use pesticides, as follows:

(1) Public posting of pesticide outdoor application. At a minimum of twenty-four hours prior to the outdoor application of any pesticide, any commercial agricultural entity subject to this section shall post public warning signs in the area in which pesticides are to be applied, in the manner prescribed by section 149A-D.

(2) Notification to occupants and residents of sensitive areas. At a minimum of twenty-four hours prior to the outdoor application of any pesticide, any commercial agricultural entity subject to this section shall provide written notification to any sensitive area and any property owner, lessee, or person otherwise occupying any residential property within       feet of the property line of the commercial agricultural entity where any pesticide is anticipated to be applied outdoors, in the manner prescribed by section 149A-D.

(3) Recordkeeping and annual public disclosure. No later than sixty days following the end of each calendar year, each commercial agricultural entity subject to this section shall provide to the department annual reports of all pesticides used in outdoor applications during the preceding calendar year. The annual reports shall comply with section 149A-E and shall be public records and posted online on the department's website.

149A-D Public warning signs; written notifications; contents. (a) Any public warning sign required to be posted under section 149A-B or 149A-C shall remain posted during the outdoor application of any pesticide and until expiration of the applicable restricted-entry interval established by the Environmental Protection Agency for the particular pesticide. The posting of a warning sign during and after the outdoor application of any pesticide shall conform to the worker protection standard established by the Environmental Protection Agency.

(b) The department shall adopt rules pursuant to chapter 91 requiring that all warning signs posted, and written notifications provided, under section 149A-B or 149A-C include the following information:

(1) The trade name of the pesticides to be applied;

(2) The name of the active ingredients of the pesticides to be applied;

(3) The potential hazards to humans and domestic animals, as listed in the precautionary statements of the pesticide's label;

(4) Emergency telephone numbers to call in case of poisoning from the pesticides; and

(5) Any other related information the department deems appropriate.

149A-E Public reports; contents. The department shall adopt rules, pursuant to chapter 91, requiring that public annual reports required under sections 149A-B and 149A-C include the following information:

(1) A listing of all pesticides used in outdoor applications by federal and state registrations or permit numbers, commercial product names, and active ingredients;

(2) The total quantities used for each pesticide; and

(3) A general description of the geographic location, including at minimum the tax map key number and ahupuaa, where the pesticides were used.

149A-F Pesticide buffer zones for sensitive areas. (a) Effective one year following the effective date of Act   , Session Laws of Hawaii 2015, any commercial agricultural entity that purchases or uses in excess of a total of       pounds or       gallons of restricted use pesticides annually on commercial agricultural production areas or non-agricultural production areas, or both, shall restrict the outdoor application of all pesticides, including restricted use, general use, and experimental use pesticides, as follows:

(1) No pesticide may be used within       feet of any sensitive area, excluding any surface water, watershed, or shoreline; and

(2) No pesticide may be used within       feet of any surface water, watershed, or shoreline.

(b) The restrictions in subsection (a) shall be minimum standards. If this section, or any part thereof, is determined to conflict with any information contained in the labels of the pesticide or other regulation, the more restrictive standard on pesticide application shall apply.

149A-G Sensitive areas; identification of application site and provision of site plan. (a) Any commercial agricultural entity that is subject to section 149A-F shall ensure that, prior to any outdoor application of pesticides, the application site is positively identified using a unique and verifiable method, including:

(1) An onboard, geo-referenced electronic mapping and navigation system;

(2) Effective site markings visible to the pesticide applicator; or

(3) Other methods approved by the department.

(b) Any commercial agricultural entity that is subject to section 149A-F, prior to any application of pesticides, shall provide the certified pesticide applicator, commercial pesticide applicator, private pesticide applicator, or pest control operator with a site plan that includes a site map that:

(1) Delineates the boundaries of the application area and the property lines;

(2) Depicts the type and location of sensitive areas within       feet of the application area; and

(3) Depicts the pesticide buffer zones for sensitive areas where no pesticide application is allowed.

149A-H Weather conditions. (a) No school, child care facility, early childhood education and care facility, family child care home, group child care center, or group child care home subject to section 149A-B shall conduct any outdoor application of pesticides when the wind speed is more than

      per hour.

(b) No commercial agricultural entity subject to sections 149A-C and 149A-F shall conduct any outdoor application of pesticides when the wind speed is more than       per hour.

(c) The restrictions in subsections (a) and (b) shall be minimum standards. If this section, or any part thereof, is determined to conflict with any information contained in the labels of the pesticide or other regulation, the more restrictive standard on pesticide application shall apply.

149A-I Exemptions. (a) Notwithstanding the provisions of sections 149A-F and 149A-G, any commercial agricultural entity may obtain from the department a single use exemption from the prohibition on outdoor applications of pesticides in pesticide buffer zones around sensitive areas, as provided in subsection (c).

(b) Notwithstanding section 149A-H or any other law to the contrary, any school, child care facility, early childhood education and care facility, family child care home, group child care center, group child care home, or commercial agricultural entity may obtain from the department a single use exemption from the prohibition on outdoor applications of pesticides under certain weather conditions, as provided in subsection (c).

(c) In accordance with rules adopted by the department, the department shall issue a single use exemption under this section if it determines that:

(1) The pest situation poses an immediate threat to human health and the environment; and

(2) There is no viable alternative to the use of the proposed pesticide.

(d) The department may adopt rules to reduce the buffer zone distance, by up to fifty per cent, for sensitive areas under section 149A-F; provided that the commercial agricultural entity makes an application to the department that demonstrates that pesticides used by the entity cannot drift onto the property of a sensitive area when the wind speed is equal to or less than the limit established by section 149A-H(b).

149A-J Structural or termite application of pesticides. Nothing in this part shall be construed to prohibit the use of structural or termite application of pesticides, regardless of whether the applications are applied in or outside of a building or enclosed structure.

149A-K Penalties and citizen suits. (a) The department may bring an action in a court of competent jurisdiction to enjoin any person or entity from violating this part.

(b) The department may assess a fine for any violation of this part, as follows:

(1) $         for a first violation;

(2) $         for a second violation; and

(3) $         for a third or subsequent violation.

Each day of violation shall be considered a separate violation.

(c) Any injured citizen of the State who acts in the public interest, at least sixty days after first giving notice of the alleged violation to the department and the alleged violator, may bring an action to enjoin violation of this part in any court of competent jurisdiction. The court may award to a prevailing plaintiff reasonable costs and attorney's fees incurred in investigating and prosecuting an action to enforce this part. An award may not include monetary damages, but only fee and cost recovery.

149A-L Rules. The department shall adopt rules pursuant to chapter 91 to implement this part; provided that the department may not establish exemptions not expressly authorized in this part."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 5. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 6. This Act shall take effect upon its approval.


 


 

Report Title:

Environmental Protection; Pesticides; Disclosure; Buffer Zones; Penalties

 

Description:

Establishes disclosure requirements for outdoor applications of pesticides in proximity to schools, childcare facilities, and certain commercial agricultural entities. Establishes reasonable pesticide buffer zones for sensitive areas. Establishes penalties. (HB1514 HD1)

 

 

 

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