THE SENATE

S.B. NO.

3095

TWENTY-NINTH LEGISLATURE, 2018

 

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 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." 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.

In 2013, the department of agriculture began the Kauai agricultural good neighbor program to collect and publish information regarding outdoor usage of restricted use pesticides by large-scale, commercial agricultural operations in the county of Kauai. The program has since been expanded statewide. However, the information collected is completely voluntary, is unverified, and is only published on the department's website months after the reported pesticide applications. As a result, 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 agricultural use of such pesticides across the State 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 have yet to be properly or independently evaluated.

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 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. 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 further finds that the study entitled, "Pesticide Use by Large Agribusinesses on Kaua'i," published by the independent Joint Fact Finding Study Group and issued in May 2016, confirms that the State lacks sufficient data on pesticide use and human and environmental exposure. Specifically, the Joint Fact Finding Study Group recommended the implementation of "green screens," or vegetation within buffer zones, as further mitigation measures to address drift concerns of pesticide-laden dust particles.

 

The legislature recognizes that since 1996, WeVoteHawaii, formerly Kids Voting Hawaii, has simulated the Hawaii biennial adult voting process for school-aged children in kindergarten through twelfth grade in public, parochial, independent, charter, and home schools on all six islands. In 2016, over eighty per cent of the 62,133 respondents voted in support of pesticide buffer zones around schools.

The purpose of this Act is to protect the State's children and childcare facilities from the unintended impacts of large-scale agricultural pesticide use by:

(1) Making the reporting guidelines of the Kauai agricultural good neighbor program mandatory for large-scale, outdoor commercial agricultural operations across the State;

(2) Establishing disclosure and public notification requirements for outdoor applications of pesticides in, as well as in proximity to, schools, healthcare facilities, childcare and eldercare facilities, and other sensitive areas; and

 

(3) Establishing a pilot program for vegetative buffer zones, as recommended by the Joint Fact Finding Study Group, around selected schools within the State.

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

"Part    . Pesticide mandatory disclosure and vegetative buffer zones pILOT pROGRAM

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 a 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 EPA or the State.

"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.

"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 a public school, department school, or charter school, as those terms are defined in section 302A-101, early learning institution, or private school 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 school, hospital, adult residential care home, assisted living facility, child care facility, early childhood education and 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.

149A-B Mandatory disclosure and notification of outdoor pesticide use on affected grounds. Effective one year following the effective date of this Act, 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 ten pounds or ten gallons of restricted use pesticides during the prior calendar year and is selected as a pilot school under this section 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; and

(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 this Act, any commercial agricultural entity that annually purchases or uses in excess of ten pounds or ten 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; and

(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 EPA 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 EPA.

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

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

(2) The names 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 Pilot program for vegetative buffer zones around schools; selection. Effective one year following the effective date of this Act, the department shall adopt rules pursuant to chapter 91 to designate one individual school on each of the islands of Oahu, Kauai, Maui, Hawaii, and Molokai as pilot centers for vegetative buffer zones. The selected schools shall be located within       feet of a commercial agricultural production area that is operated by a commercial agricultural entity that purchases or uses in excess of a total of ten pounds or ten gallons of restricted use pesticides annually.

149A-G Acceptable vegetation for vegetative buffer zones. (a) Within one year following the effective date of this Act, the department, in consultation with the University of Hawaii college of tropical agriculture and human resources, shall adopt rules pursuant to chapter 91 to establish a list of acceptable plants to be cultivated in vegetative buffer zones established under the pilot program.

(b) Plants that may be included in the list of acceptable plants may have the following qualities:

(1) Are known to be native to the State of Hawaii;

(2) Are known to have remediation or filtering properties to improve air, water, or soil quality;

(3) Are known to have beneficial properties for improving air, water, or soil quality; or

(4) Are shrubs or trees of such density that their growth and cultivation will likely create a windbreak effect.

149A-H Restrictions on pesticide use around school grounds selected for pilot program. (a) Effective one year following the designation of the five schools described in section 149A-F, any commercial agricultural entity that purchases or uses in excess of a total of ten pounds or ten gallons of restricted use pesticides annually shall restrict the outdoor application of all pesticides, including restricted use, general use, and experimental use pesticides, so that no pesticide may be used within       feet of any school grounds of any school designated under section 149A-F.

(b) The restriction 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-I Vegetative buffer zones around school grounds selected for pilot program. (a) Effective one year following the designation of the five schools described in section 149A-F, any commercial agricultural entity that purchases or uses in excess of a total of ten pounds or ten gallons of restricted use pesticides annually shall maintain a continuous buffer zone that is cultivated with acceptable perennially-rooted vegetation, derived from the list of plants designated by the department pursuant to section 149A-G, including those that would create a windbreak effect, in the buffer zone around school grounds where no pesticide application is allowed, as described in section 149A-H(a). The continuous buffer zone shall be maintained for a period of not less than       years commencing after the designation of the five schools described in section 149A-F and ending on      .

(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.

(c) The department shall annually report to the legislature no later than twenty days prior to the convening of each regular session on the efficacy of the vegetative buffer zones and whether the pilot program should be discontinued, extended for a fixed period of time, or made permanent.

149A-J Identification of application site and provision of site plan. (a) Any commercial agricultural entity that is subject to this part 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 this part, 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 locations of school grounds within       feet of the application area; and

(3) Depicts the buffer zones around school grounds where no pesticide application is allowed.

149A-K Exemptions. (a) Notwithstanding sections 149A-H and 149A-I, any commercial agricultural entity may obtain from the department a single use exemption from the prohibition on outdoor applications of pesticides in buffer zones around school grounds, as provided in subsection (b).

(b) 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.

149A-L 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-M 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-N Authority of local government. Nothing in this part shall be construed to preempt or prohibit the authority of a unit of local government in the State to regulate pesticide disclosure, notification, and use, including the establishment of buffer zones against pesticides, in a manner that is equivalent to, or more stringent than, the provisions contained in this part.

149A-O 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 on July 31, 2018.

 

INTRODUCED BY:

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Report Title:

Agriculture; Reporting of Pesticide Use; Large-scale Agricultural Operations; Pilot Program; Vegetative Buffer Zone

 

Description:

Establishes disclosure and public notification requirements for outdoor application of pesticides in various sensitive areas or by large-scale, outdoor commercial agricultural operations. Establishes a pilot program that creates a vegetative buffer zone around five selected schools near a commercial agricultural production area. Effective July 31, 2018.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.