THE SENATE

S.B. NO.

2874

TWENTY-NINTH LEGISLATURE, 2018

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING to agriculture.

 

 

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

 


SECTION 1. The legislature finds that the State should establish provisions governing the use of pesticides and genetically engineered crops by large-scale commercial agricultural entities in Hawaii. Article XI, section 1, of the state constitution states, "For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people." The legislature finds that the growth of commercial agricultural entities engaged in the use and development of genetically engineered crops and the widespread use of pesticides in the State have created a situation where residents live, work, and commute daily in close proximity to areas where there is regular application of restricted use pesticides and general use pesticides. There are increasing concerns about the direct and long-term impacts of the large-scale use of pesticides and the impacts that intensive agricultural cultivation is having on the land, natural environment, and human health.

The legislature also finds that Hawaii has become a location of increasing commercial agriculture operations that utilize genetically engineered crops for the production of crop seed and field testing of new varieties of genetically engineered crops. Genetically engineered crops potentially disperse into private property and the environment through pollen drift, seed commingling, and inadvertent transfer of seeds by humans, animals, weather events, and other means. This could have environmental and economic impacts.

The legislature further finds that records obtained from the state department of agriculture indicate that twenty-two different restricted use pesticides, comprising approximately 5,477 pounds and 5,885 gallons, were used during 2012 on Kauai by five commercial agricultural entities, which constituted approximately ninety-nine per cent of the restricted use pesticides utilized by agricultural operations on Kauai, which represents only a single county. Pesticides have the ability to contaminate groundwater and are often toxic to humans, animals, bees, and other insects. Some restricted use pesticides used in Hawaii are banned by the entire European Union. Dust and drift from restricted use pesticides and general use pesticides sometimes travel beyond commercial agricultural operations. Dust, pesticide drift, and long-term exposure to toxic chemicals are potential sources of pollution endangering human health and the natural environment.

The legislature therefore finds that the impacts of large-scale intensive cultivation and associated agricultural practices on Hawaii must be further evaluated but cannot be properly evaluated until full disclosure of the pesticides in use is made mandatory statewide. Information pertaining to the intensive use of pesticides within the State and the experimentation and growing of genetically engineered crops at biotech research facilities is currently withheld from the public. Thus the public is unable to evaluate the full extent of the impacts on the residents and environment. In the interest of protecting the health of the people and fragile natural environment of the State of Hawaii, the people of Hawaii have the right to know what pesticides are being used on a significant scale, and what genetically engineered crops are being grown within the State. The people of Hawaii have the right to know what pesticides are being used in their communities and informed on the potential impacts to the health of their selves and their families and the health of the environment.

The purpose of this Act is to establish statewide provisions to inform and protect the public from any direct, indirect, or cumulative negative impacts on the health of the people and the natural environment of Hawaii by regulating the use of pesticides and genetically engineered crops statewide and establishing penalties for violations.

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

"PART    . PROTECTION AGAINST NEGATIVE EFFECTS OF PESTICIDES AND GENETICALLY ENGINEERED CROPS

149A-A Definitions. As used in this part, unless the context otherwise requires:

"Adult family boarding home" means any family home providing, for a fee, twenty-four hour living accommodations to no more than five adults, unrelated to the family, who are in need of minimal protective oversight care in their daily living activities, and licensed under chapter 346.

"Adult family group living home" means any family home providing twenty-four hour living accommodations for a fee to five to eight elderly, handicapped, developmentally disabled, or totally disabled adults, unrelated to the family, who are in need of long-term minimal assistance and supervision in the adult's daily living activities, health care, and behavior management, in compliance with licensing requirements.

"Ahupuaa" means a land division usually extending from the uplands to the sea.

"Commercial agricultural entity" means a firm, corporation, association, partnership, or any organized group of persons, whether incorporated or not, that is engaged in growing, developing, cultivating, or producing agricultural products.

"Crop" means a plant or product thereof that can be grown and harvested for subsistence, profit, or research.

"Day care center" means any facility where seven or more children under the age of eighteen are cared for without overnight accommodations at any location other than their normal place of residence, in compliance with licensing requirements. This term includes child care services and other similar uses and facilities consistent with this definition that are not services or uses provided by family child care homes.

"Dwelling" means a structure, or part of a structure, that is used as a home, residence, or sleeping place by one person or by two or more persons maintaining a common household, to the exclusion of all others.

"Experimental genetically engineered crop" means a crop that has not received final approval by the federal Food and Drug Administration, United States Department of Agriculture, Environmental Protection Agency, or the appropriate federal regulatory body, for human consumption, release into the environment, or both.

"Family care home" means any care home occupied by no more than five care home residents and licensed by the State.

"Family child care home" means providing child care services and other similar uses consistent with this definition where six or fewer children under the age of eighteen are cared for in a private dwelling unit without overnight accommodations at any location other than the children's normal place of residence and licensed by the State.

"Genetically engineered" means produced from an organism or crops in which the genetic material has been genetically engineered through the application of:

(1) In vitro nucleic acid techniques, including but not limited to recombinant deoxyribonucleic acid or ribonucleic acid techniques that use vector systems and techniques involving the direct introduction into the crops of hereditary materials prepared outside the crops such as micro-injection, macro-injection, chemoporation, electroporation, micro-encapsulation, and liposome fusion techniques; direct injection of nucleic acid into cells or organelles; encapsulation; gene deletion; and doubling; or

(2) Methods of fusing cells beyond the taxonomic family that overcome natural physiological reproductive or recombinant barriers, and that are not techniques used in traditional breeding and selection such as conjugation, transduction, and hybridization.

"Genetically engineered crops" means a crop whose genetic material has been genetically engineered.

"Ground cover" means small plants such as salal, ivy, ferns, mosses, grasses, or other types of vegetation that normally cover the ground and includes trees and shrubs less than six inches in diameter.

"Medical facility" means a hospital operated by a public entity, a hospital licensed under chapter 321, the office of a medical group practice, a licensed physician's office, or any other type of facility where medical records relating to the care or treatment of a patient are kept.

"Nurse practitioner" means a person licensed as an advanced practice registered nurse under chapter 457.

"Nursing home" means any nursing facility licensed by the department of health.

"Orchard" means the establishment, care, and harvesting of over twenty-five fruit-bearing trees or plants, including but not limited to banana, coffee, guava, papaya, or persimmon, for the purpose of selling the fruit to others.

"Park" means any park, park roadway, playground, beach right-of-way, or other recreational areas under the control, management, and operation the State.

"Perennial waterway" means a natural waterway that has continuous flow in parts of its waterway bed year round during years of normal rainfall.

"Physician" means an individual authorized to practice medicine or osteopathy under chapter 453.

"Public roadway" means a roadway on which the public is allowed to generally travel in a vehicle without obtaining special permission or providing advance notice.

"Registered beekeeper" means a person registered with the Hawaii apiary program through the department.

"Residential care home" means any facility providing twenty-four hour living accommodations, for a fee, to adults unrelated to the family, who require at least minimal assistance in the activities of daily living, personal care services, protection, and health care services, but who do not need the professional health services provided in an intermediate, skilled nursing, or acute care facility.

"Restricted-entry interval" means the time after the end of a pesticide application during which entry into the treated area is restricted, as contained within the Worker Protection Standard for Agricultural Pesticides regulation established by the Environmental Protection Agency, and specified on all agricultural plant pesticide product labels.

"School" means an institution with an organized curriculum offering instruction.

"Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.

"Significant effect" means the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State.

"Worker protection standard" means the Worker Protection Standard for Agricultural Pesticides regulation established by the Environmental Protection Agency, which is aimed at reducing the risk of pesticide poisonings and injuries among agricultural workers and pesticide handlers, and contains requirements for pesticide safety training, notification of pesticide applications, use of personal protective equipment, restricted-entry intervals after pesticide application, decontamination supplies, and emergency medical assistance.

149A-B Mandatory disclosure of pesticide use. (a) Any commercial agricultural entity that purchased or used in excess of five pounds or fifteen gallons of any single restricted use pesticide during the prior calendar year shall disclose the use of all pesticides of any kind during the following calendar year.

(b) Each applicable commercial entity shall post warning signs in the area in which pesticides are to be applied no sooner than twenty-four hours before the scheduled application of any pesticide. The warning signs posted during and after the application of any pesticide shall:

(1) Conform to the official label of the pesticide;

(2) Conform to the worker protection standard; and

(3) Remain posted until the expiration of the applicable restricted-entry interval.

The size of and symbols and wording on all signs shall conform to the worker protection standard. A posting notification area shall be provided daily for workers and shall conform to the worker protection standard.

(c) Each applicable commercial agricultural entity shall give pesticide pre-application notification, which shall be referred to as good neighbor courtesy notices, to any registered beekeeper, property owner, lessee, or other persons within one thousand five hundred feet of the property line of the commercial agricultural entity where any pesticide is anticipated to be applied. A good neighbor courtesy notice shall also be provided to any revocable permit holder authorized to enter the property of the commercial agricultural entity. Each commercial agricultural entity shall send regular mass good neighbor courtesy notices at least once during every seven-day week period summarizing the anticipated application of any pesticide for the upcoming seven-day week. Good neighbor courtesy notices shall contain the following information regarding all anticipated pesticide applications:

(1) Pesticide to be used;

(2) Active ingredient of pesticide to be used; and

(3) Date, time, and field number of anticipated usage.

A mass good neighbor courtesy notice list shall be established and maintained by each commercial agricultural entity and shall include access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions. Any interested person shall submit contact information to the relevant commercial agricultural entity. Interested persons may submit up to three local telephone numbers and two electronic mail addresses. All mass good neighbor courtesy notices shall be sent via telephone, text message, or electronic mail, with the method or methods of transmittal to be determined by each commercial agricultural entity. Each commercial agricultural entity shall provide an alternative method of transmittal for any recipient who does not have access to the technology necessary for the method or methods of transmittal selected by the commercial agricultural entity. Requests to be included on or removed from the mass good neighbor courtesy notice list must be processed within three business days. Whenever a pesticide application that was unforeseen and therefore not contained in the weekly good neighbor courtesy notice is deemed by the commercial agricultural entity to be necessary to alleviate a pest threat, an additional good neighbor courtesy notice shall be generated to all recipients of the mass notification list within twenty-four hours after the application.

(d) Each applicable commercial agricultural entity shall submit regular public disclosure reports to the department on forms prepared by the department once every seven-day week period compiling the actual application of all pesticides during the prior week. All public disclosure reports shall be posted online, be made available for viewing and download by any interested persons, and include access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions for all applicable commercial agricultural entities. Disclosure reports shall contain the following information regarding all actual pesticide applications:

(1) Date;

(2) Time;

(3) Field number;

(4) Total acreage;

(5) Trade name of pesticide used;

(6) Environmental Protection Agency registration number;

(7) Active ingredient of pesticide used;

(8) Gallons or pounds of pesticide used; and

(9) Temperature, wind direction, and wind speed at time of pesticide application.

(e) Each applicable commercial agricultural entity shall establish an emergency response hotline to be made available to any licensed physician or nurse practitioner practicing in association with a clinic, medical facility, or emergency center. Within six hours of a request from any such licensed physician or nurse practitioner who provides a documented medical need, the commercial agricultural entity shall provide the following information regarding all actual pesticide applications related to the alleged incident:

(1) Date;

(2) Time;

(3) Field number;

(4) Total acreage;

(5) Trade name of pesticide used;

(6) Environmental Protection Agency registration number;

(7) Active ingredient of pesticide used;

(8) Gallons or pounds of pesticide used; and

(9) Temperature, wind direction, and wind speed at time of pesticide application.

149A-C Mandatory disclosure of genetically engineered crops. (a) Any commercial agricultural entity that intentionally or knowingly possesses any genetically engineered crop shall disclose the production of the genetically engineered crop.

(b) All applicable commercial agricultural entities shall provide annual public reports to the department that shall be posted online and be made available for viewing and download by any interested persons. Reports shall be submitted to the department no later than sixty days following the end of each calendar year.

(c) Annual public reports shall include a general description of each genetically engineered crop, a general description of the geographic location, including at minimum the tax map key and ahupuaa where each genetically engineered crop is being grown or developed, and dates that each genetically engineered crop was initially introduced to the particular area of land.

149A-D Pesticide buffer zones. (a) Any commercial agricultural entity that purchased or used in excess of five pounds or fifteen gallons of any single restricted use pesticide during the prior calendar year shall not grow crops, except ground cover to which no pesticide is applied, and shall not apply any pesticides in the following areas:

(1) Within one thousand five hundred feet of any adult family boarding home, adult family group living home, day care center, family care home, family child care home, medical facility, nursing home, residential care home, or school;

(2) Within two hundred fifty feet of any park; provided that, regarding a mature orchard, the crops of which grow in a hedge-like manner creating a windbreak effect, if pesticide application occurs between crop rows from a source that does not exceed two feet from the ground for the purpose of eliminating weeds in the ground, the commercial agricultural entity shall not grow crops within seventy-five feet of any park;

(3) Within five hundred feet of any dwelling; provided that:

(A) If the commercial agricultural entity has an approved soil and water conservation plan that explicitly demonstrates no pesticide drift on the dwelling, then the commercial agricultural entity shall not grow crops within one hundred feet of any dwelling;

(B) If the dwelling is owned by the landowner and occupied by the landowner or a family member of the landowner, and there are no other dwellings occupied by third-parties within five hundred feet of the landowner's dwelling, then there shall be no pesticide buffer zone restricting crop production in proximity to the landowner's dwelling; and

(C) Regarding a mature orchard, the crops of which grow in a hedge-like manner creating a windbreak effect, if pesticide application occurs between crop rows from a source that does not exceed two feet from the ground for the purpose of eliminating weeds in the ground, the commercial agricultural entity shall not grow crops within one hundred feet of any dwelling;

(4) Within one hundred feet of any public roadway; provided that pesticides may be used within one hundred feet of any public roadway if the commercial agricultural entity posts notification signage on land that is adjacent to the public roadway no sooner than twenty-four hours before the scheduled application. Roadway signs shall be located at the start and end of the field along the public roadway where application will occur, shall be of a size that is legible from vehicles traveling at the posted speed limit, and shall comply with all department of transportation requirements; and

(5) Within one hundred feet of any shoreline or perennial waterway that flows into the ocean. This paragraph shall not apply to any irrigation ditch or drainage canal that does not directly flow to the ocean.

(b) Subsection (a) shall not apply to any specific instance where any county, state, or federal government agency has authorized pesticide use for public health or safety purposes.

(c) If this section, or any part thereof, is determined to conflict with any pesticide labeling information, the more restrictive and environmentally protective provisions shall apply.

149A-E Prohibition of open air testing of experimental pesticides. All testing of experimental pesticides shall be conducted in a facility, laboratory, contained greenhouse, fermenter, or other contained structure where the experimental pesticide is contained within a structure designed to prevent the escape of the substance into the open environment; provided that this section is not specifically prohibited by permit or other mechanism governed by federal or state authority.

149A-F Moratorium on experimental use and commercial production of genetically engineered crops. (a) There shall be a moratorium on all experimental use and commercial production of genetically engineered crops until the department:

(1) Completes an environmental impact statement on the health, environmental, and other effects of the production, propagation, and development of genetically engineered crops within the State; and

(2) Develops and implements a permitting process sufficient to protect the residents and environment from any significant effects identified in the environmental impact statement.

(b) No new permits, amendments to permits, or exemptions to permit requirements shall be issued by any state agency during the moratorium period for any activity that allows for new or expanded use or cultivation of any genetically engineered crop.

149A-G Environmental impact statement; administration. (a) The department shall complete an environmental impact statement to determine and evaluate significant effects of the production, propagation, and development of genetically engineered crops within the State and the use of all pesticides, restricted, general use, and experimental, associated with the production, propagation, or development of genetically engineered crops in the State.

(b) The governor shall be the accepting authority for and shall authorize the final acceptance acknowledging the completeness of the environmental impact statement.

(c) In addition to the requirements of chapter 343, each environmental impact statement shall include provisions for the testing of soil, dust, water, air, and human resident volunteers as may be appropriate, measuring the presence of any pesticide or other related chemicals to further identify any potential health and environmental concerns and to establish a baseline for future testing and studies.

149A-H Permitting; genetically engineered crops. (a) The department shall develop and implement a permitting process that shall apply to all commercial agricultural entities that intentionally or knowingly possess genetically engineered crops.

(b) Permit conditions shall include:

(1) Provisions that facilitate the elimination or mitigation of significant effects identified in the environmental impact statement under section 149A-G;

(2) Provisions that effectively prevent cross pollination of non-genetically modified crops by wind, dust, insects, or other means;

(3) Provisions for periodic independent testing of soil, dust, water, air, and human resident volunteers as may be required to further identify health and environmental impacts as a result of the permitted activity. Such testing results shall be public information; provided that personal identification information of resident volunteers shall be redacted;

(4) Provisions that limit pesticide-laden dust, dust containing genetically engineered crop residue, or both from drifting into areas where residents reside or congregate; and

(5) Disclosure provisions required under section 149A-B.

(c) The department shall adopt rules in accordance with chapter 91 to implement this section.

149A-I Prohibition of open air testing of experimental genetically engineered crops. (a) All testing of experimental genetically engineered crops shall be conducted in a facility, laboratory, contained greenhouse, fermenter, or other contained structure where the experimental pesticide is contained within a structure designed to prevent the escape of the substance into the open environment; provided that this section is not specifically prohibited by permit or other mechanism governed by federal or state authority.

(b) At the conclusion of the moratorium period under section 149A-F, open air testing shall be governed by the permit process specified in section 149A-H and rules adopted by the department.

149A-J Funding sources. In addition to other funding sources, the department may pay for the environmental impact statement process under section 149A-G, the permitting process under section 149A-H, and other administration costs under this part from fees that are directly related to those operations engaged in the production, propagation, or development of genetically engineered crops through new permit applications fees, fees and taxes associated with pesticide sales, or any mechanism deemed appropriate by the department.

149A-K Penalties. (a) Any person who violates any provision of this part shall be assessed a civil fine of no less $10,000 and not to exceed $25,000 per day, per violation.

(b) In addition to the penalty described in subsection (a), any person who violates any provision of this part shall be guilty of a misdemeanor. The continuance of any violation after conviction shall be deemed a new criminal offense for each day that the violation or violations continue.

149A-L Rulemaking. The department shall adopt rules pursuant to chapter 91 necessary to effectuate the purposes of 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.

 

INTRODUCED BY:

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Report Title:

Pesticides; Genetically Engineered Crops; Mandatory Disclosure; Buffer Zones; Prohibition of Open Air Testing; Moratorium on Experimental Genetically Engineered Crops; Environmental Impact Statement; Penalties

 

Description:

Requires certain commercial agricultural entities to disclose use of pesticides. Requires certain commercial agricultural entities to disclose production of genetically engineered crops. Establishes pesticide buffer zones. Prohibits open air testing of experimental pesticides and experimental genetically engineered crops. Places a moratorium on all experimental use and commercial production of genetically engineered crops until the DOA completes an environmental impact statement and implements a permitting process. Establishes requirements for the environmental impact statement and genetically engineered crops permitting process. Imposes penalties for violations. Requires DOA to adopt rules.

 

 

 

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