SB3068.DOC

SECTION 1. The legislature finds that the extensive use of pesticides in Hawaii threatens the stability and growth of Hawaii's agricultural economy, the health of its citizens, and the overall environment. The people of Hawaii have the right to know what pesticides are being used on a significant scale within Hawaii. For multiple economic, environmental, health, and cultural reasons, residents of Hawaii find that information regarding the use of pesticides should be disclosed to the public.

The legislature further finds that agriculture is a vital component of Hawaii's economy. Nonetheless, Hawaii has become a location of increasing commercial agricultural operations that use extremely high volumes of pesticides on their fields. Residents of Hawaii have no choice but to live, work, and commute in close proximity to areas where pesticides are being sprayed. Residents of Hawaii are growing increasingly concerned about the direct and long-term impacts of the large-scale use of pesticides on the land, on the natural environment, and on their health.

Many pesticides used in Hawaii are known to be toxic to humans, animals, bees, and other insects. Many of these pesticides are known to contaminate groundwater or persist in the environment. Some of the pesticides used in Hawaii are banned in other states across the nation and in many countries. Pesticide-laden dust and drift from restricted use pesticides and general use pesticides are inevitable and result in long-term exposure to toxic chemicals that are harmful to Hawaii's residents, wildlife, and endangered species, and are sources of pollution to the natural environment of Hawaii. Currently, information pertaining to the intensive use of pesticides within Hawaii is not readily disclosed, and the public is unable to evaluate the full extent of negative impacts accruing to the residents and environment.

The purpose of this Act is to:

(1) Inform the residents of Hawaii of pesticides used within their community;

(2) Protect Hawaii from pesticide use; and

(3) Preserve the right of Hawaii residents to avoid pesticide exposure because of health or other concerns.

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

"§149A- Mandatory disclosure of pesticides. Any commercial agricultural entity that purchases or uses more than five pounds or fifteen gallons of restricted use pesticides annually, or any amount of experimental pesticides, shall abide by the following disclosure requirements regarding the uses of all pesticides:

(1) Publicly post signs in the area in which pesticides are to be applied at least seventy-two hours prior to application of any pesticide. The signs shall remain posted for at least 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. The signs shall include the following information:

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

(B) The total quantities to be applied; and

(2) Within twenty-four hours of receiving a written request, provide the information disclosed in subsection (a) to any requesting property owner, lessee, or person otherwise occupying any property within five miles of the property where the pesticide was applied, or is anticipated to be applied; and

(3) Provide annual public reports of all pesticides used during each calendar year to the department to be posted online on the department's website. Direct notification to the department 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 ingredients;

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

SECTION 3. Chapter 149A, Hawaii Revised Statutes, is amended by adding a new section to part III to be appropriately designated and to read as follows:

"§149A- Pesticide buffer zones; commercial agricultural entities. Beginning July 1, 2015, no commercial agricultural entity that purchases or uses more than five pounds or fifteen gallons of restricted use pesticides annually, or any amount of experimental pesticides, shall use pesticides of any kind within five hundred feet of any school, child care institution, nursing facility, hospital, psychiatric hospital, residential property, public roadway, perennial water, wetland adjacent to perennial water, tributaries of perennial water, watershed, or shoreline."

SECTION 4. Section 149A-2, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Commercial agricultural entity" means any individual, partnership, association, corporation, limited liability company, or organized group of persons, whether incorporated or not, that is engaged in the business of producing any crop, timber, fruit trees, farm livestock, poultry, fish, bees, or apiary products for commercial sale."

SECTION 5. Section 149A-41, Hawaii Revised Statutes, is amended to read as follows:

"§149A-41 Violations, warning notice, and penalties. (a) Warning notice. Any person who violates this chapter or any rule issued under this chapter may upon the first violation be issued a written warning notice citing the specific violation and necessary corrective action.

(b) Administrative penalties.

(1) In general, any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who violates any provision of this chapter may be assessed an administrative penalty by the board of not more than $5,000 for each offense;

(2) Any private applicator or other person not included in paragraph (1) who violates any provision of this chapter relating to the use of pesticides while on property owned or rented by that person or the person's employer, subsequent to receiving a written warning from the department or following a citation for a prior violation, may be assessed an administrative penalty by the board of not more than $1,000 for each offense. Any private applicator or other person not included in paragraph (1) who violates any provision of this chapter relating to licensing, transport, sale, distribution, or application of a pesticide for commercial purposes may be assessed an administrative penalty as provided in paragraph (1);

(3) No administrative penalty shall be assessed unless the person charged shall have been given notice and an opportunity for a hearing on the specific charge in the county of the residence of the person charged. The administrative penalty and any proposed action contained in the notice of finding of violation shall become a final order unless, within twenty days of receipt of the notice, the person or persons charged make a written request for a hearing. In determining the amount of penalty, the board shall consider the appropriateness of the penalty to the size of the business of the person charged, the effect on the person's ability to continue business, and the gravity of the violation; and

(4) In case of inability to collect the administrative penalty or failure of any person to pay all or such portion of the administrative penalty as the board may determine, the board shall refer the matter to the attorney general, who shall recover the amount by action in the appropriate court. For any judicial proceeding to recover the administrative penalty imposed, the attorney general need only show that notice was given, a hearing was held or the time granted for requesting a hearing has expired without such a request, the administrative penalty was imposed, and that the penalty remains unpaid.

(1) In general, any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who knowingly violates any provision of this chapter shall be guilty of a misdemeanor and shall on conviction be fined not more than $25,000, or imprisoned for not more than one year, or both.

(2) Any private applicator or other person not included in paragraph (1) who knowingly violates any provision of this chapter shall be guilty of a misdemeanor and shall on conviction be fined not more than $1,000, or imprisoned for not more than one year, or both.

(3) Any person, who, with intent to defraud, uses or reveals information relative to formulas of products acquired under the authority of section 3, Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, shall be fined not more than $10,000, or imprisoned for not more than three years, or both.

(d) Private right of action. Any injured individual who acts in the public interest may, after giving notice of the alleged violation to the department and the alleged violators and waiting sixty days, bring an action to enjoin any violation of this chapter in any court of competent jurisdiction. The court may award to the prevailing party reasonable costs and attorneys' fees.

[~~(d)~~] (e) Liabilities. When construing and enforcing the provisions of this chapter, the act, omission, or failure of any officer, agent, or other person acting for or employed by any person shall in every case be also deemed to be the act, omission, or failure of such person as well as that of the person employed."

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect on July 1, 2014.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	3068
TWENTY-SEVENTH LEGISLATURE, 2014
STATE OF HAWAII