HOUSE OF REPRESENTATIVES

H.B. NO.

790

TWENTY-NINTH LEGISLATURE, 2017

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 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.  Similar programs do not exist for the other counties or political subdivisions in the State.  Moreover, 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.  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 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 study entitled, "Pesticide Use by Large Agribusinesses on Kauai," published by the independent Joint Fact Finding (JFF) Study Group and issued in May 2016, confirms that the State lacks sufficient data on pesticide use and human and environmental exposure.  The JFF Study Group recommended the good neighbor program be made mandatory, and that its implementation be expanded statewide.

     In sum, 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 implementing the recommendation of the JFF Study Group's report that the good neighbor program be revised and expanded.  Specifically, this Act implements the JFF Study Group's recommendation by:

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

     (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 environmentally 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    .  PESTICIDE MANDATORY DISCLOSURE

     §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 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.

     "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, and charter school, as those terms are defined in section 302A-101, early education 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:

     (1)  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; and

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

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

     "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 2017, 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 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 Act   , Session Laws of Hawaii 2017, 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  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-G  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, including counties and any other political subdivisions of 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-H  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 January 28, 2081.


 


 

Report Title:

Reporting of Pesticide Use; Large-scale Agricultural Operations

 

Description:

Establishes disclosure and public notification requirements for outdoor application of restricted use pesticides in various sensitive areas or by large-scale, outdoor commercial agricultural operations.  (HB790 HD1)

 

 

 

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