SB2649.DOC

SECTION 1. The purpose of this Act is to require disclosure of pesticide use and to provide for pesticide buffer zones.

SECTION 2. Chapter 321, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§321- Mandatory disclosure of pesticides; pesticide buffer zones; penalties; citizen suits. (a) Beginning January 1, 2015, it shall be mandatory for all commercial agricultural entities that purchase or use in excess of a total of five pounds or fifteen gallons of restricted use pesticides in any single county in the current year or in the previous year, or any amount of any experimental use pesticides, or both, for application on production agricultural areas or non-production agricultural areas, or both, to abide by the following disclosure requirements regarding the uses of all pesticides, whether restricted use, general use, or experimental use pesticides, during the same calendar year:

(1) The commercial agricultural entities shall publicly post signs in the area in which pesticides are to be applied, for:

(A) A minimum of seventy-two hours prior to application of any pesticide; and

(B) Either a minimum of seventy-two hours or the duration of the restricted-entry interval listed on the pesticide's label, whichever is longer, after the application of the pesticide;

(2) The public posting shall include the following information:

(A) The pesticide's federal and state registration or permit number, commercial product name, and active ingredient;

(B) The total quantities of application; and

(3) Within twenty-four hours of receiving a written request, the information disclosed pursuant to this subsection shall be provided to any requesting property owner, lessee, or person otherwise occupying any property within 1,500 feet of the property where the pesticide was applied, or anticipated to be applied; and

(4) Annual public reports of all pesticides used during each calendar year shall be provided to the department of health and department of agriculture and shall be posted online on each respective agencies' website. Direct notification to the department of health and department of agriculture documenting such disclosure shall occur no later than sixty days following the end of each calendar year. The report shall include, for each pesticide used during the calendar year:

(A) The pesticide's federal and state registration or permit numbers, commercial product name, and active ingredient;

(B) The total quantities used for the reporting calendar year; and

(b) Starting on January 1, 2016, it shall be mandatory for all commercial agricultural entities that purchase or use in excess of a total of five pounds or fifteen gallons of restricted use pesticides in any single county in the current year or in the previous year, or any amount of any experimental use pesticides, or both, on production agricultural areas or non-production agricultural areas, or both, to restrict the application of all pesticides, whether restricted use, general use, or experimental use, in the following areas:

(1) No pesticide of any kind, whether restricted use, general use, or experimental use, shall be used within 1,000 feet of any school, child care institution, nursing facility, hospital, psychiatric hospital, residential property, or park, or within 500 feet of any state or county roads; and

(2) No pesticide of any kind, whether restricted use, general use, or experimental use, may be used within 500 feet of any perennial water, wetland adjacent to perennial water, tributaries of perennial water, watershed, or shoreline; provided that this paragraph shall not apply to any irrigation ditch or drainage canal that does not flow directly to the ocean.

(c) If this section, or any part thereof, is determined to conflict with any information contained in the labels of such pesticides, whether restricted use, general use, or experimental use, the more restrictive and environmentally protective provisions shall apply.

(d) Beginning January 1, 2015, the department of health shall bring an action in a court of competent jurisdiction to enjoin any person or entity from violating this section.

(e) Beginning January 1, 2015, the department of health shall assess a civil monetary penalty against any person or entity violating this section in the amount of:

(1) $10,000 for a first violation;

(2) $15,000 for a second violation; or

(3) $25,000 for a third or subsequent violation.

In assessing penalties, each day of violation shall be considered a separate violation.

(f) Beginning January 1, 2015, any injured citizen of the State who acts in the public interest, after giving notice of the alleged violation to the department of health and the alleged violator and subsequently waiting at least sixty days, may bring an action to enjoin violation of this section in any court of competent jurisdiction.

(g) In a citizen suit action pursuant to subsection (f), the court shall award to a prevailing plaintiff reasonable costs and attorneys' fees incurred in investigating and prosecuting an action to enforce this section. Such an award may not include monetary damages, but only fee and cost recovery.

(h) In order to effectuate all provisions of this section, the department of health shall adopt rules pursuant to chapter 91 that it deems necessary or proper, but the department shall not create any new exemption not listed in this section.

(i) Nothing in this section shall be construed to prohibit or preempt the authority of a unit of local government to regulate standards for disclosure of pesticide use or buffer zones restricting, limiting, or prohibiting pesticide use in a manner that is equivalent to or more stringent than the provisions contained in this section.

(j) For the purposes of this section:

"Active ingredient" means:

(1) In the case of a pesticide other than a plant regulator, defoliant, desiccant, or nitrogen stabilizer, an ingredient that will prevent, destroy, repel, or mitigate any pest;

(2) In the case of a plant regulator, an ingredient that, through physiological action, will accelerate or retard the rate of growth or rate of maturation, or otherwise alter the behavior of ornamental or crop plants or the product thereof;

(3) In the case of a defoliant, an ingredient that will cause the leaves or foliage to drop from a plant;

(4) In the case of a desiccant, an ingredient that will artificially accelerate the drying of plant tissue; and

(5) In the case of a nitrogen stabilizer, an ingredient that will prevent or hinder the process of nitrification, denitrification, ammonia volatilization, or urease production through action affecting soil bacteria.

"Agricultural production" means production of any of the following for commercial sale:

(1) Any crop, timber, or fruit trees;

(2) Any farm livestock, poultry, and fish; and

(3) Bees and apiary products.

"Child care institution" means a private child care institution or a public child care institution that accommodates no more than twenty-five children and is licensed by the State or has been approved by the department of human services as meeting the standards established for such licensing. The term includes detention facilities, forestry camps, training schools, or any other facility operated primarily for the detention of children who are determined to be delinquent.

"Commercial agricultural entity" means any individual, partnership, association, corporation, limited liability company, or any organized group of persons, whether incorporated or not, that is engaged in agricultural production.

"Defoliant" means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission.

"Desiccant" means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue.

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

"General use pesticide" means a pesticide other than one designated as a restricted use pesticide or an experimental use pesticide.

"Nitrogen stabilizer" means any substance or mixture of substances intended for preventing or hindering the process of nitrification, denitrification, ammonia volatilization, or urease production through action upon soil bacteria, excluding:

(1) Dicyandiamide;

(2) Ammonium thiosulfate; or

(3) Any substance or mixture of substances that was not registered pursuant to section 3 of the Federal Insecticide, Fungicide, and Rodenticide Act prior to January 1, 1992, and that was in commercial agronomic use prior to January 1, 1992, with respect to which after January 1, 1992, the distributor or seller of the substance or mixture has made no specific claim of prevention or hindering of the process of nitrification, denitrification, ammonia volatilization urease production regardless of the actual use or purpose for, or future use or purpose for, the substance of mixture.

"Non-production agricultural area" means areas including but not limited to woodland, wasteland, watersheds, landscaped areas, and pastured lands that are held and operated in conjunction with real properties utilized for the production of agricultural products.

"Nursing facility" means as an institution or a distinct part of an institution that is primarily engaged in providing skilled nursing care and related services for residents who require medical or nursing care, rehabilitation services for the rehabilitation of injured, disabled, or sick persons, or on a regular basis, health-related care and services to individuals who because of their mental or physical condition require care and services above the level of room and board that can be made available to them only through institutional facilities. The term "nursing facility" includes an institution that is primarily engaged in the care and treatment of mental diseases.

"Perennial water" means a natural body of water or waterway that has continuous ebb and flow in parts of its bed year round during years of normal rainfall, including lakes, rivers, streams, and ponds.

"Pest" means:

(1) Any insect, rodent, nematode, fungus, weed; or

(2) Any other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other micro-organism, except viruses, bacteria, or other micro-organisms on or in living humans or other living animals, that has been declared a pest under the Federal Insecticide, Fungicide, and Rodenticide Act.

"Pesticide" means:

(1) Any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest;

(2) Any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; or

(3) Any nitrogen stabilizer that has been declared a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act.

"Plant regulator" means any substance or mixture of substances intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of plants or the produce thereof, but shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments. The term "plant regulator" shall not include any nutrient mixtures or soil amendments commonly known as vitamin-hormone horticultural products that are intended for improvement, maintenance, survival, health, and propagation of plants, are not intended for pest destruction, and are nontoxic and nonpoisonous in the undiluted packaged concentration.

"Production agricultural area" means real properties involved in the production of an agricultural product.

"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 United States Environmental Protection Agency, and specified on all agricultural plant pesticide product labels.

"Watershed" means an area of land where all of the water that is under it or drains off of it goes into the same place."

SECTION 3. If any provision of this Act, or the application thereof to any person, commercial agricultural entity, 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 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2649
TWENTY-SEVENTH LEGISLATURE, 2014
STATE OF HAWAII