SECTION 1. The purpose of this Act is: to protect sensitive public resources of the State of Hawaii from increased outdoor use of pesticides resulting from large-scale, outdoor commercial agricultural operations, to protect sensitive populations in the State of Hawaii from the risks from exposure to increased outdoor use of pesticides and from pesticide drift and vapor from nearby commercial agricultural fields, to protect children from exposure to pesticides from outdoor applications on school grounds, and to preserve the right of Hawaii residents to reject pesticide exposure because of health, moral, or other concerns. This Act shall be liberally construed to fulfill these purposes.

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 drift protections

§149A-A Definitions. As used in this part, unless the context clearly requires otherwise:

"Adult residential care home" means any facility 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.

"Assisted living facility" means 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.

"Commercial agricultural production" means the commercial production, 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 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.

"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.

"Expanded adult residential care home" means any facility licensed by the State of Hawaii 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.

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

"Extended care adult residential care home" means an adult residential care home providing 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) Type I home shall consist of five or less unrelated persons with no more than two extended care adult residential care home residents; and

(2) 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.

"Family child care home" means a private residence, including a home, apartment, unit, or townhouse, licensed by the State of Hawaii, 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.

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

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

"Health" means 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.

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

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

"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.

"Primary care clinic" means a clinic licensed by the State of Hawaii 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.

"School" means an academic and noncollege type regular or special education institution of learning established and maintained by the department of education or licensed and supervised by that department.

"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 the entity; and

(2) Any other outdoor area used by students or staff 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:

(1) Any school, hospital licensed pursuant to section 321‑14.5, 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 worship; and

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

"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.

"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.

§149A-B Mandatory disclosure and notification of outdoor pesticide use on school grounds. Beginning July 1, 2016, it shall be mandatory for 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 to disclose the use of all pesticides, including restricted use, general use, or experimental use, in compliance with the following disclosure and notification requirements:

(1) It shall be mandatory for any school, child care facility, early childhood education and care facility, family child care home, group child care center, and group child care home subject to this section to provide public posting of warning signs to any outdoor application of pesticides, including restricted use, general use, or experimental use, on school grounds. 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 until expiration of the applicable restricted-entry interval established by the Environmental Protection Agency 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 Environmental Protection Agency. The department shall adopt rules pursuant to chapter 91 and this section to require posting of pesticide warning signs containing but not limited to the following information:

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

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

(C) The potential hazards to humans 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 pesticide; and

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

(2) It shall be mandatory for any school, child care facility, early childhood education and care facility, family child care home, group child care center, and group child care home subject to this section to provide 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, or group child care home a minimum of twenty-four hours prior to the outdoor application of any pesticide, including restricted use, general use, or experimental use, on school grounds. The department shall adopt rules pursuant to chapter 91 and this section to require pre-application written notifications to include but not be limited to the following information:

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

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

(C) The potential hazards to humans 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 pesticide.

(3) No later than sixty days following the end of each calendar year, it shall be mandatory for any school, child care facility, early childhood education and care facility, family child care home, group child care center, and group child care home subject to this section to provide annual public reports of all pesticides, including restricted use, general use, or experimental use, used in outdoor applications during the prior calendar year to the department. The department shall adopt rules pursuant to chapter 91 and this section to require public annual reports containing but not limited to the following information:

(A) A listing of all 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.

(b) Any school, child care facility, early childhood education and care facility, family child care home, group child care center, and group child care home subject to this section shall not conduct any outdoor application of pesticides when the wind speed is more than miles per hour. If a more restrictive standard is set forth in the information contained on the label of the pesticide, or by other regulations, including county or local regulations, the more restrictive standard shall apply.

§149A-C Mandatory disclosure and notification of commercial agricultural pesticide use. (a) Beginning July 1, 2016, it shall be mandatory for any commercial agricultural entity that annually uses or purchases in excess of pounds or gallons of restricted use pesticides during a prior calendar year to disclose the use of all pesticides, including restricted use, general use, or experimental use, in compliance with the following disclosure and notification requirements:

(1) It shall be mandatory for any commercial agricultural entity subject to this section to 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, including restricted use, general use, or experimental use. The warning signs shall remain posted during the outdoor application of any pesticide and until expiration of the applicable restricted-entry interval established by the Environmental Protection Agency 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 Environmental Protection Agency. The department shall adopt rules pursuant to chapter 91 and this section to require posting of pesticide warning signs to 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 ingredient or ingredients of the pesticide to be applied;

(C) The potential hazards to humans 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 pesticide; and

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

(2) It shall be mandatory for any commercial agricultural entity subject to this section to provide pre‑application 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 a minimum of twenty-four hours prior to the outdoor application of any pesticide, including restricted use, general use, or experimental use. The department shall adopt rules pursuant to chapter 91 and this section to require pre-application written notifications to 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 ingredient or ingredients of the pesticide to be applied;

(C) The potential hazards to humans 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 pesticide; and

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

(3) No later than sixty days following the end of each calendar year, it shall be mandatory for any commercial agricultural entity subject to this section to provide annual public reports of all pesticides, including restricted use, general use, or experimental use, used in outdoor applications during the prior calendar year to the department. The public annual reports shall be posted online on the department's website. The department shall adopt rules pursuant to chapter 91 and this section to require public annual reports to contain but not be limited to the following information:

(A) A listing of all 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 and ahupuaa where the pesticides were used.

(b) Any commercial agricultural entity subject to this section shall not conduct any outdoor application of pesticides when the wind speed is more than miles per hour. If a more restrictive standard is set forth in information contained on the label of the pesticide, or by other regulations, including county or local regulations, the more restrictive standard shall apply.

§149A-D Pesticide buffer zones for sensitive areas. (a) Beginning July 1, 2016, it shall be mandatory for any commercial agricultural entity that uses or purchases in excess of pounds or gallons of restricted use pesticides annually on commercial agricultural production areas or non-agricultural production areas, or both, to restrict the outdoor application of all pesticides, including restricted use, general use, or experimental use, within feet of any sensitive area.

(b) If a more restrictive standard is set forth in the information contained on the label of the pesticide, or by other regulations, including county or local regulations, the more restrictive standard shall apply.

(c) Any commercial agricultural entity that is subject to section 149A-C, 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, such as Global Positioning System;

(2) Effective site markings visible to the pesticide applicator; or

(3) Other methods approved by the department.

(d) Any commercial agricultural entity that is subject to section 149A-C, prior to any application of pesticides, shall provide the certified pesticide applicator, commercial 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 type and location of sensitive areas within feet of the application areas; and

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

§149A-E Exemptions. Notwithstanding the provisions of this chapter, any school, child care facility, early childhood education and care facility, family child care home, group child care center, and group child care home subject to section 149A‑B, or commercial agricultural entity subject to section 149A-C, 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) That there is no viable alternative to the use of the proposed pesticide.

§149A-F Penalties and civil suits. (a) The department may bring an action in any court of competent jurisdiction to enjoin any person or entity from violating this part.

(b) Any person or entity who knowingly violates this part shall be liable to the department for a civil penalty in the amount of:

(1) $ for a first violation;

(2) $ for a second violation; or

(3) $ for a third or subsequent violation.

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

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

(d) In a civil suit, the court may award to a prevailing plaintiff reasonable costs and attorneys' 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."

SECTION 3. The department shall adopt rules, pursuant to chapter 91, Hawaii Revised Statutes, necessary for the purposes of this Act.

SECTION 4. Nothing in this Act shall be construed to prohibit or preempt the authority of an unit of local government in the State of Hawaii, including counties and any other political subdivisions created under article VIII, section 1, of the Hawaii State Constitution, to regulate pesticide disclosure, notification, and use in a manner that is equivalent to or more restrictive than the provisions contained in this Act.

SECTION 5. 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 6. 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 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	793
TWENTY-EIGHTH LEGISLATURE, 2015
STATE OF HAWAII