SB3040 SD1

SECTION 1. The legislature finds that there are significant risks to public health and the environment when pesticide use instructions are not followed properly, including: injury to non-target sensitive plants and species; drift harms to nearby farms and gardens; health injuries to farmworkers and nearby residents; and short- and long-term contamination of the State's soils, air, and waters. Despite these known risks, pesticide misuse continues to occur within the State.

The legislature notes that there have been numerous recent instances of improper use of pesticides in the State. For example, in 2016 and 2017, a west Kauai agribusiness operation failed to adhere to pesticide use instruction by improperly using the neurotoxin pesticide chlorpyrifos, thereby exposing farm workers to the dangerous pesticide and potentially injuring their health. Although investigation by the United States Environmental Protection Agency initially proposed a pesticide fine of $4,900,000, the fine was significantly reduced to slightly over $500,000. In 2018, a commercial pesticide applicator was fined $168,535 for misusing different restricted-use pesticides on Kauai. Also, in November 2019, an agribusiness operation pled guilty and paid $10,000,000 as part of a plea agreement with the United States Environmental Protection Agency for illegal use of the banned pesticide Penncap-M on Maui and Molokai.

The legislature also finds that "Pesticide Use by Large Agribusinesses on Kauai", a 2016 report published by the independent joint fact-finding study group convened for purposes of this report, found that more timely and better reported pesticide inspections and compliance investigations are needed. The study further found that the use of drift-prone pesticides should be more strictly monitored and proven violators should be fined.

The legislature further finds that enforcement of the Hawaii pesticides law, as well as timely and routine pesticide inspections and compliance investigations, are crucial to protecting public health and ensuring public confidence in the State's oversight of pesticide use.

Accordingly, the purpose of this Act is to protect the State's residents and environment and ensure more stringent enforcement of the Hawaii pesticides law by:

(1) Requiring the department of agriculture to provide annual reporting on pesticide inspection and compliance investigations; and

(2) Increasing monetary fines for pesticide violations.

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

"§149A- Annual report. (a) The department shall submit an annual report to the legislature detailing each pesticide inspection and compliance investigation conducted during the prior fiscal year, organized by county. This report shall include the:

(1) Number of pesticide use complaints received during the prior fiscal year, including a brief description of the nature and location of each complaint;

(2) Number of compliance investigations conducted during the prior fiscal year, including the:

(A) Duration, in calendar days, from receipt of complaint to completion of investigation;

(B) Department's conclusion; and

(3) Number of pesticide inspections conducted during the prior fiscal year, including a brief description of the nature and location of each inspection;

(4) Outcomes of pesticide inspections conducted during the prior fiscal year, including any enforcement actions taken by the department; and

(5) Number and types of pesticide violations found in the prior fiscal year, including the:

(A) Location of each pesticide use violation; and

(B) Active ingredient or product name for any pesticide involved in each pesticide violation.

(b) The report shall be submitted to the legislature and posted to the department's website no later than June 30 of each year."

SECTION 3. Section 149A-41, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:

"(a) Warning notice. Any person who violates this chapter or any rule issued under this chapter [~~may~~], upon the first violation, may 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~~] $10,000 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~~] $5,000 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~~] the 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,~~] $35,000, 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~~], upon conviction, shall be fined not more than [~~$1,000,~~] $5,000, 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."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

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

SECTION 7. This Act shall take effect on June 18, 2050.

THE SENATE	S.B. NO.	3040
THIRTIETH LEGISLATURE, 2020		S.D. 1
STATE OF HAWAII