SECTION 1. The legislature finds that the State of Hawaii has become a location of an increasing number of large-scale, outdoor commercial agricultural operations that use extremely high volumes of pesticides on their fields. The rapid, long-term, and unregulated growth of commercial agricultural entities and their extensive use of pesticides on their properties in Hawaii threatens the stability and growth of Hawaii agricultural economy, the health of its citizens, and the overall environment. The legislature further finds:

(1) Many pesticides used in large-scale, outdoor commercial agriculture in Hawaii are classified as "restricted use pesticides" by the United States Environmental Protection Agency (EPA). Restricted use pesticides are pesticides that the EPA has determined are likely to cause "unreasonable adverse effects on the environment" if they are used "without additional regulatory restrictions." Many restricted use pesticides used in large-scale, commercial agriculture in the State are known to be toxic to humans, animals, bees, and other insects. Many of these restricted use pesticides are known to contaminate groundwater or persist in the environment. Some of the restricted use pesticides used in the State are subject to limited local use or total bans in other states and in other countries;

(2) Pesticides may volatilize, or change from a solid or liquid state into a vapor state, into the lower atmosphere, a process that continues for days, weeks, or months after the application. The vapor can then become airborne and carried through the wind on dust particles. Pesticide-laden dust and drift from both restricted use pesticides and general use pesticides are often inevitable and results in long-term exposure to toxic chemicals harmful to Hawaii's residents, wildlife, and endangered species, and are sources of pollution to the natural environment of the State;

(3) Those exposed to various pesticides often suffer from immediate symptoms such as headaches, respiratory distress, vomiting, dizziness, eye pain, and chest pain, while long term exposure to toxic pesticides increases the risks of serious diseases such as cancer, autism, and Parkinson's disease;

(4) Children are particularly vulnerable because toxic exposure to pesticides during fetal, neonatal, and infant life can disrupt critical developmental processes. Early life pesticide exposure has been linked to long-term health effects including cancer, serious diseases, decreased cognitive function, and behavior problems;

(5) Children can be exposed to pesticides applied on school grounds, pesticides that drift onto school grounds from neighboring agricultural lands, or from pesticide residues;

(6) Information pertaining to the intensive use of pesticides in large-scale commercial agriculture within the State is not readily available to the public. Thus, the public is unable to evaluate the full extent of negative impacts accruing to the residents and environment of Hawaii;

(7) The existing federal oversight of pesticide exposure is predominantly focused on acute exposure, and is inadequate to protect risks posed by regular low-level exposure;

(8) The State does not have an adequate regulatory structure in place to monitor the human health impacts of pesticide drift near sensitive populations. The direct, indirect, and cumulative impacts on public health regarding the long-term intensive commercial agriculture and associated use of pesticides have not been properly or independently evaluated;

(9) The children, elderly, and other sensitive residents of the State have no choice but to live, work, and commute daily in close proximity to areas where restricted use pesticides are being sprayed. The children, elderly, and other sensitive residents of the State are growing increasingly concerned about the direct and long-term impacts that the large-scale use of restricted use pesticides has on the land, on the natural environment, and on their health; and

(10) The people of Hawaii have the right to decide that the risks associated with the use of toxic pesticides in commercial agriculture are unacceptable, and to take action to reduce and prevent the potential negative impacts of such use. For multiple economic, environmental, health, and cultural reasons, the legislature finds that information regarding the use of restricted use pesticides in areas where they pose a threat to human, environmental, and ecological health should not be limited.

The purpose of this Act is to address human health and environmental harms from outdoor uses of pesticide applications.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

outdoor use of pesticide applications

§ -1 Purpose. The purpose of this chapter is to:

(1) Protect sensitive public resources of the State from increased outdoor use of pesticides resulting from large-scale, outdoor commercial agricultural operations;

(2) Protect sensitive populations in the State from the risks of exposure to increased outdoor use of pesticides and from pesticide drift and vapor from nearby commercial agricultural fields;

(3) Protect children from exposure to pesticides from outdoor applications on school grounds; and

(4) Preserve the right of Hawaii residents to reject pesticide exposure because of health, moral, or other concerns.

§ -2 Construction. The provisions of this chapter shall be construed liberally so as to effectuate the purpose of this chapter.

§ -3 Definitions. As used in this chapter, the following terms shall have the following meanings unless the context indicates another or different meaning or intent:

"Active ingredient" means:

(1) In the case of a pesticide other than a plant regulator, defoliant, or desiccant, 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 maturation or otherwise alter the behavior of ornamental or crop plants or the produce thereof;

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

(4) In the case of a desiccant, an ingredient that will artificially accelerate the drying of plant tissues.

"Adult residential care home" means any facility licensed by the State 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.

"Ahupua�a" means a traditional land division that usually extends from the uplands to the sea.

"Assisted living facility" means any facility licensed by the State to offer a combination of housing, health care services, and personalized supportive services designed to respond to individual needs, to promote choice, responsibility, independence, privacy, dignity, and individuality.

"Certified pesticide applicator" means any individual who is certified under section 149A-33(1) as authorized to use or supervise the use of any pesticide that is classified for restricted use.

"Child care facility" means a place maintained by any individual, organization, or agency licensed by the State for the purpose of providing care for children with or without charging a fee at any time. "Child care facility" includes a family child care home, group child care home, and group child care center.

"Commercial agricultural production" means:

(1) The commercial production of any seed, crop, plant, timber, livestock, poultry, fish, bees, or apiary products; or

(2) The 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.

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

"Commercial pesticide applicator" means any certified pesticide applicator, whether or not the applicator is a private pesticide applicator with respect to some uses, who uses or supervises the use of any pesticide that is classified for restricted use for any purpose or on any property other than as provided by section 149A-2.

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

"Department" means the department of agriculture.

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

"Early childhood education and care facility" means any property licensed by the State of Hawaii for the care and instruction of children from birth to age five.

"Environment" includes water, air, land, and all plants, humans, and other animals living therein, and the interrelationships that exist among these.

"EPA" means the United States Environmental Protection Agency.

"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" means an adult residential care home licensed by the State of Hawaii to provide twenty-four-hour living accommodation for a fee, for adults unrelated to the licensee. The primary caregiver shall be qualified to provide care to nursing facility level individuals who have been admitted to a medicaid waiver program, or persons who pay for care from private funds and have been certified for this type of facility. There shall be two categories of extended care adult residential care homes, which shall be licensed in accordance with rules adopted by the department of health:

(1) A type I home shall consist of five or fewer unrelated persons with no more than two extended care adult residential care home residents; and

(2) A type II home shall consist of six or more unrelated persons and one or more persons may be extended care adult residential care home residents.

"Expanded adult residential care home" means any facility licensed by the State to provide 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, and who may need the professional health services provided in an intermediate or skilled nursing facility.

"Family child care home" means a private residence, including a home, apartment, unit, or townhouse, licensed by the State, at which care may be provided for three to no more than six children who are unrelated to the caregiver by blood, marriage, or adoption, at any given time.

"FIFRA" means the Federal Insecticide, Fungicide and Rodenticide Act, as amended.

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

"Group child care center" means a facility licensed by the State, other than a private home, at which care is provided for child care.

"Group child care home" means a facility licensed by the State, which may be an extended or modified private home, at which care is provided for seven to twelve children.

"Health" includes physical and mental health.

"Hospice home" means any facility operated by a licensed hospice service agency providing twenty-four-hour living accommodations to no more than five unrelated persons who are admitted for hospice service.

"Hospital" includes all hospitals licensed by the State pursuant section 321-14.5.

"Non-agricultural production area" means any area held and operated by a commercial agricultural entity in conjunction with real properties and areas used for commercial agricultural production.

"Outdoor application" means an application of a pesticide made outside of a building or enclosed structure. "Outdoor application" excludes indoor applications of pesticides and structural or termite application of pesticides, whether such applications are applied in or outside a building or enclosed structure.

"Pest" means any insect, rodent, nematode, fungus, weed, or any other form of terrestrial or aquatic plant or animal life or virus, bacterium, or any other microorganism, except viruses, bacterium, or any other microorganisms on or in living humans or other living animals, which the administrator of the EPA determines to be a pest pursuant to the FIFRA.

"Pest control operator" means a commercial pesticide applicator, who is required to possess a valid license for pest control under chapter 460J.

"Pesticide" means:

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

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

"Place of religious worship" means any church, synagogue, mosque, temple, religious cemetery, or other religious real property of any religious denomination where individuals or a group of people gather to perform acts of devotion, veneration, or religious study.

"Plant regulator" means any substance or mixture of substances intended, through physiological action, for accelerating or retarding the rate of growth or maturation or for otherwise altering the behavior of plants or the produce thereof, but does not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments.

"Private pesticide applicator" means a certified pesticide applicator who uses or supervises the use of any pesticide that is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by the applicator or the applicator's employer if applied without compensation other than trading of personal services between producers of agricultural commodities on the property of another person.

"Primary care clinic" means a clinic licensed by the State for outpatient services providing all preventive and routine health care services, management of chronic diseases, consultation with specialists when necessary, and coordination of care across health care settings or multiple providers or both. Primary care clinic providers include:

(1) General or family practice physicians;

(2) General internal medicine physicians;

(3) Pediatricians;

(4) Obstetricians and gynecologists;

(5) Physician assistants; and

(6) Advanced practice registered nurses.

"Restricted use pesticide" means:

(1) A pesticide or pesticide use classified by the administrator of the EPA for use by certified applicators or competent persons under their direct supervision and so designated on its label; or

(2) A pesticide or pesticide use classified by the board of agriculture for use by certified applicators or competent persons under their direct supervision.

"Sensitive areas" includes:

(1) Any school, hospital, adult residential care home, assisted living facility, child 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, primary care clinic, and place of religious worship; and

(2) Any shoreline, watershed, and bodies of perennial waters.

"School" means an academic and noncollege type school. "School" includes any early education, public schools, department schools, and charter schools, as those terms are defined under section 302A-101, and private schools licensed by the State.

"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 any such entity; 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.

"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.

"Surface water" means:

(1) Contained surface water or water upon the surface of the earth in bounds created naturally or artificially including, but not limited to, streams, other watercourses, lakes, reservoirs, and coastal waters subject to state jurisdiction; and

(2) Diffused surface water or water occurring upon the surface of the ground other than in contained water bodies.

"Surface water" includes water from natural springs when the water exits from the spring onto the earth's surface.

"Watershed" means:

(1) An area from which the domestic water supply of any city, town, or community is or may be obtained; or

(2) An area 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 under section 183-31.

§ -4 Mandatory disclosure and notification of outdoor pesticide use on school grounds. Commencing July 1, 2016, 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 pounds or gallons of restricted use pesticides during a prior calendar year shall disclose the use of any pesticides in compliance with the following disclosure and notification requirements:

(1) Provide public posting of warning signs to any outdoor application of pesticides on school grounds. The warning signs shall be posted a minimum of twenty-four hours prior to the outdoor application of any pesticide. The warning signs shall remain posted during the outdoor application of any pesticide, and shall remain posted until expiration of the applicable restricted-entry interval established by the EPA for the particular pesticide. The posting of warning signs during and after the outdoor application of any pesticide shall conform to the worker protection standard established by the EPA. The pesticide warning signs shall contain, but not be limited to, the following information:

(A) The trade name of the pesticide to be applied;

(B) The name of the active ingredients of the pesticide to be applied;

(C) The potential hazards to human and domestic animals as listed in the precautionary statements of the pesticide's label;

(D) Emergency telephone numbers to call in case of poisoning from the pesticides; and

(E) Any other related information that the department deems helpful and appropriate for consumers.

(2) Provide, a minimum of twenty-four hours prior to the outdoor application of any pesticide on school grounds, pre-application written notification to 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, and group child care home. The written pesticide pre-application notifications shall contain, but not limited to, the following information:

(A) The trade name of the pesticide to be applied;

(B) The name of the active ingredients of the pesticide to be applied;

(C) The potential hazards to human and domestic animals as listed in the precautionary statements of the pesticide�s label; and

(D) Emergency telephone numbers to call in case of poisoning from the pesticides.

(3) Provide, no later than sixty days following the end of each calendar year, annual public reports of any pesticides used in outdoor applications during each calendar year to the department. The public annual report shall be posted on the department's website. The public annual reports shall contain, but not be limited to, the following information:

(A) A listing of any pesticides used in outdoor applications by federal and state registrations or permit numbers, commercial product names, and active ingredients;

(B) The total quantities used for each pesticide; and

(C) A general description of the geographic location including at minimum the tax map key where the pesticides were used.

§ -5 Mandatory disclosure and notification of commercial agricultural pesticide use. Commencing July 1, 2016, any commercial agricultural entity that annually purchases or uses in excess of pounds or gallons of restricted use pesticides during a prior calendar year shall disclose the use of any pesticides in compliance with the following disclosure and notification requirements:

(1) Provide public posting of warning signs, in the area in which pesticides are to be applied, a minimum of twenty-four hours prior to the outdoor application of any pesticide. The warning signs shall remain posted during the outdoor application of any pesticide and shall remain posted until expiration of the applicable restricted-entry interval established by the EPA for the particular pesticide. The posting of warning signs during and after the outdoor application of any pesticide shall conform to the worker protection standard established by the EPA. The pesticide warning signs shall contain, but not be limited to, the following information:

(A) The trade name of the pesticide to be applied;

(B) The name of the active ingredients of the pesticide to be applied;

(C) The potential hazards to human and domestic animals as listed in the precautionary statements of the pesticide's label;

(D) Emergency telephone numbers to call in case of poisoning from the pesticides; and

(E) Any other related information the department deems helpful and appropriate for consumers.

(2) Provide written pre-application notification of any pesticides a minimum of twenty-four hours prior to the application of any pesticide, to any school, hospital, adult residential care home, assisted living facility, child care facility, family child care home, group child care center, group child care home, hospice home, extended care adult residential care home, primary care clinic, place of religious worship, and any property owner, lessee, or person otherwise occupying any residential property within square feet of the property line of the commercial agricultural entity where any pesticide is anticipated to be applied outdoors. The written pesticide pre-application notifications shall contain, but not be limited to, the following information:

(A) The trade name of the pesticide to be applied;

(B) The name of the active ingredients of the pesticide to be applied;

(C) The potential hazards to human and domestic animals as listed in the precautionary statements of the pesticide's label;

(D) Emergency telephone numbers to call in case of poisoning from the pesticides; and

(E) Any other related information the department deems helpful and appropriate for consumers.

(3) Provide, no later than sixty days following the end of each calendar year, annual public reports of all pesticides used in outdoor applications during each calendar year to the department. The public annual reports shall be posted on the department's website. The public annual reports shall contain, but not be limited to, the following information:

(A) A listing of all pesticides used in outdoor applications by federal and state registration or permit numbers, commercial product name and active ingredient;

(B) The total quantities used of each pesticide; and

(C) A general description of the geographic location including at minimum the tax map key and ahupua�a where the pesticides were used.

§ -6 Pesticide buffer zones for sensitive areas. (a) Commencing July 1, 2016, any commercial agricultural entity that purchases or uses in excess of a total of pounds

or gallons of restricted use pesticides annually, on commercial agricultural production areas or non-agricultural production areas, or both, shall restrict the outdoor application of all pesticides in the following areas:

(1) No pesticide of any kind may be used within feet of any school, child care facility, early childhood education and care facility, family child care home, group child care center, group child care home, hospital, adult residential care home, assisted living facility, hospice home, extended care adult residential care home, primary care clinic, or place of religious worship; and

(2) No pesticide of any kind may be used within feet of any surface water, watershed, or shoreline.

(b) The restrictions set forth in subsection (a) are intended to be minimum standards. If this section, or any part thereof, is determined to conflict with any information contained in the labels of the pesticides or other regulations, including county or local regulation, the more restrictive standard on pesticide application shall apply.

§ -7 Implementation and establishment of pesticide buffer zones for sensitive areas. (a) Any commercial agricultural entity that is subject to section -6 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, including a global positioning 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 section -6 shall, prior to any application of pesticides, provide the certified pesticide applicator, commercial pesticide applicator, private 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 type and location of sensitive areas within feet of the application area; and

(3) Depicts the pesticide buffer zones for sensitive areas where no pesticide application is allowed.

§ -8 Weather conditions. (a) Any school, child care facility, early childhood education and care facility, family child care home, group child care center, or group child care home subject to section -4 shall not conduct any outdoor application of pesticides when the wind speed is more

than per hour.

(b) Any commercial agricultural entity subject to

sections -5 and -6 shall not conduct any outdoor application of pesticides when the wind speed is more than per hour.

(c) The restrictions set forth in subsections (a) and (b) are intended to be minimum standards. If this section, or any part thereof, is determined to conflict with any information contained in the labels of the pesticides or other regulations, including county or local regulations, the more restrictive standard on pesticide application shall apply.

§ -9 Exemptions. (a) Notwithstanding sections -7 and -8, any commercial agricultural entity may obtain from the department a single use exemption from the prohibition on outdoor applications of pesticides in pesticide buffer zones around sensitive areas. The department shall issue a single use exemption 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.

(b) Notwithstanding any provision to the contrary in this section, any school, child care facility, early childhood education and care facility, family child care home, group child care center, group child care home, or commercial agricultural entity may obtain from the department a single use exemption from the prohibition on outdoor applications of pesticides under certain weather conditions. The department shall issue a single use exemption 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.

§ -10 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 chapter.

(b) The department may assess a civil monetary penalty against any person or entity violating this chapter in the amount of:

(1) $ for a first violation;

(2) $ for a second violation; and

(3) $ for a third or subsequent violation.

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

(c) Any injured citizen of the State who acts in the public interest may, after giving notice of the alleged violation to the department and the alleged violator and subsequently waiting at least sixty days, bring an action to enjoin violation of this chapter in any court of competent jurisdiction.

(d) In a citizen suit action, the court may award to a prevailing plaintiff reasonable costs and attorneys' fees incurred in investigating and prosecuting an action to enforce this chapter. The award may not include monetary damages, but only fee and cost recovery.

§ -11 Rulemaking. The department shall adopt rules pursuant to chapter 91 to implement this chapter.

§ -12 Authority of local government. Nothing in this chapter shall be construed to prohibit or preempt the authority of an unit of local government in the State, including counties and any other political subdivisions within the State created under article VIII, section 1, of the state constitution, to regulate pesticide disclosure, notification, and use in a manner that is equivalent to, or more stringent than the provisions contained in this chapter.

§ -13 Severability. If any provision of this chapter 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 an ordinance that can be given effect without the invalid provision or application, and to this end the provisions of an ordinance are severable."
SECTION 3. This Act shall take effect on July 1, 2015.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	693
TWENTY-EIGHTH LEGISLATURE, 2015
STATE OF HAWAII