74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an

amended section is new. Matter within  { -  braces and minus

signs - } is existing law to be omitted. New sections are within

 { +  braces and plus signs + } . 

LC 3506 

                         Senate Bill 20 

Sponsored by Senator WALKER, Representative HOLVEY  

                             SUMMARY

The following summary is not prepared by the sponsors of the

measure and is not a part of the body thereof subject to

consideration by the Legislative Assembly. It is an editor's

brief statement of the essential features of the measure as

introduced.

  Restricts spraying of pesticides near school property and roads

servicing school property. Requires filing of written plan with

State Department of Agriculture or State Forester before applying

pesticide. Creates civil penalties for violation, not to exceed

$2,500. Allows department and State Forester to assess fees for

filing written plans. Continuously appropriates percentage of fee

moneys to Department of Environmental Quality for monitoring air

and water quality in pesticide spray areas.

  Applies to pesticide applications on or after 
January 1, 2008
.

  Declares emergency, effective on passage.

                        A BILL FOR AN ACT

Relating to pesticide application; creating new provisions;

  amending ORS 527.670 and 561.144; appropriating money; and

  declaring an emergency.

  Whereas in 1992 the National Parent Teacher Association and the

National Education Association called for reduced exposures to

pesticides in schools; and

  Whereas childhood cancer is continuing to increase at an

alarming rate of one percent per year; and

  Whereas the overall incidence of childhood cancer increased 10

percent between 1974 and 1991, making cancer the leading cause of

childhood death from disease; and

  Whereas approximately 325,000 Oregonians have asthma, 64,000 of

them children; and

  Whereas asthma is the nation's leading cause of absenteeism

among school children with chronic illnesses; and

  Whereas the incidence of asthma is on the rise; and

  Whereas children are more susceptible than adults to hazardous

impacts from pesticides; and

  Whereas numerous scientific studies have linked both cancer and

asthma to pesticide exposure; and

  Whereas children deserve to be in a safe and healthy

environment while they are at school or on their way to or from

school; and

  Whereas school officials deserve to be notified in advance of

any pesticide use near a school; and

  Whereas parents and guardians desire and deserve to have

information about pesticide use near their children's schools;

now, therefore,

Be It Enacted by the People of the State of 

Oregon

:

  SECTION 1.  { + Sections 2 to 4 of this 2007 Act are added to

and made a part of ORS chapter 634. + }

  SECTION 2.  { + As used in sections 2 to 4 of this 2007 Act:

  (1) 'Academic year' means the period from September 1 through

June 15.

  (2) 'School' means a public educational institution offering

instruction at any levels from prekindergarten through grade 12

or the equivalent, or any part of that instruction.

  (3) 'School property' means school buildings and appurtenant

structures, parking lots, lawns, playgrounds, sports fields and

other school-related facilities and areas. + }

  SECTION 3.  { + (1) A pesticide applicator, pesticide trainee,

public applicator or public trainee may not:

  (a) Apply a pesticide by aerial spraying or other power-driven

pesticide application equipment within one mile of school

property during the academic year.

  (b) Apply a pesticide by aerial spraying or other power-driven

pesticide application equipment within one mile of a road that

services a school property, during the academic year between 7

and 
9 a.m.
 or between 
2:30
 and 
4 p.m.

  (c) Apply a pesticide by hand or backpack pesticide application

equipment within one-half mile of school property during the

academic year.

  (d) Apply a pesticide by hand or backpack pesticide application

equipment within one-half mile of a road that services a school

property, during the academic year between 7 and 
9 a.m.
  or

between 
2:30
 and 
4 p.m.

  (2) A pesticide applicator, pesticide trainee, public

applicator or public trainee may not apply pesticides within five

miles of a school property unless:

  (a) If the application site is forestland, the operator, timber

owner or landowner has filed a written plan for the application

under ORS 527.670; or

  (b) If the application site is not forestland, the landowner or

other possessor of the property has filed a written plan for the

application under section 4 of this 2007 Act.

  (3) The Director of Agriculture may grant exemptions from

subsections (1) and (2) of this section to allow spraying for

vector control purposes in a quarantine area declared under ORS

561.510 to 561.590.

  (4) The Attorney General, a person or a school district may

bring an action to enforce this section. The Attorney General, a

district attorney or a city attorney may bring an action for

injunctive relief to prevent a violation of this section. + }

  SECTION 4.  { + (1) The State Department of Agriculture shall

adopt rules to regulate the commercial application of pesticides

within five miles of a school property.

  (2) The five-mile distance described in subsection (1) of this

section refers to the distance from the school property only,

regardless of any adjacent protected areas.

  (3) Before allowing a pesticide applicator, pesticide trainee,

public applicator or public trainee to commence pesticide

application, a landowner or other lawful possessor of property

shall notify the Director of Agriculture. The notification shall

be on forms provided by the director and shall include:

  (a) The name of the person for whom the pesticide is to be

applied.

  (b) The approximate location of the land or property on which

the pesticide is to be applied.

  (c) The date and approximate time of application of the

pesticide.

  (d) The supplier of the pesticide.

  (e) The trade name and the strength of the pesticide.

  (f) The amount or concentration of the pesticide, stated as

pounds or gallons of active ingredient per acre or as approximate

concentration per 100 gallons.

  (g) The specific property, crop or crops to which the pesticide

is to be applied.

  (h) The summary information of equipment, device or apparatus

to be used and, if the pesticide is to be applied by aircraft,

the Federal Aviation Administration number of the aircraft.

  (i) The name of the pesticide operator or, if the pesticide

application will be by a public applicator or public trainee, the

employer of the public applicator or public trainee.

  (j) A detailed written plan for ensuring that the pesticide

will not drift into areas where the planned pesticide application

is prohibited by section 3 of this 2007 Act.

  (k) A map with identifiable landmarks that shows the boundary

between the pesticide application area and the areas where the

planned pesticide application is prohibited by section 3 of this

2007 Act.

  (4) The landowner or possessor filing the written plan shall

notify the director of any subsequent change in the submitted

information.

  (5) Within three working days of receipt of a written plan

filed under this section, the director shall send a copy of the

notice and the written plan to each school district having a

school property within five miles of the proposed pesticide

application. The director may also send a copy of the written

plan to anyone residing within those school districts who has

requested to be notified of pesticide application plans.

  (6) Persons may submit written comments pertaining to the

operation to the director within 14 calendar days after the date

the written plan was filed with the director.

  (7) The director may review the written plan and any comments

received and may make recommendations for the purpose of ensuring

that pesticides will not be applied in violation of section 3 of

this 2007 Act or the rules adopted by the department under

subsection (1) of this section. The director shall make any

comments and recommendations not earlier than 14 calendar days

and not later than 21 calendar days after the written plan is

submitted. The pesticide application may be made at any time

after the director makes comments and recommendations or, the

director makes no comments or recommendations, 21 days after the

written plan is submitted. The department or the director may not

adopt rules requiring approval by the department or the director

as a prerequisite to a pesticide application described in this

section.

  (8)(a) The director may establish a fee for sending copies of

written plans to persons requesting notice, not to exceed the

actual and reasonable costs.

  (b) The director may assess a fee for the filing of a written

plan under this section. Notwithstanding ORS 561.144, 10 percent

of any fee imposed by the director under this paragraph shall be

deposited into the General Fund and credited to an account of the

Department of Environmental Quality. Amounts credited to an

account of the Department of Environmental Quality under this

section are continuously appropriated to the Department of

Environmental Quality for the purpose of monitoring air and water

quality in pesticide spray areas.

  (9) A person who fails to submit the information described in

this section, or who violates a State Department of Agriculture

rule adopted under subsection (1) of this section, is subject to

a civil penalty in an amount established by the director by rule,

not to exceed $2,500. + }

  SECTION 5.  { + Section 6 of this 2007 Act is added to and made

a part of ORS 527.610 to 527.770. + }

  SECTION 6.  { + (1) In addition to any content required in ORS

527.670, if a written plan is for the application of pesticides

with five miles of school property as defined in section 2 of

this 2007 Act, the application shall contain the following:

  (a) The name of the person for whom the pesticide is to be

applied.

  (b) The approximate location of the land or property on which

the pesticide is to be applied.

  (c) The date and approximate time of application of the

pesticide.

  (d) The supplier of the pesticide.

  (e) The trade name and the strength of the pesticide.

  (f) The amount or concentration of the pesticide, stated as

pounds or gallons of active ingredient per acre or as approximate

concentration per 100 gallons.

  (g) The specific property, crop or crops to which the pesticide

is to be applied.

  (h) The summary information of equipment, device or apparatus

to be used and, if the pesticide is to be applied by aircraft,

the Federal Aviation Administration number of the aircraft.

  (i) The name of the pesticide operator or, if the pesticide

application will be by a public applicator or public trainee, the

employer of the public applicator or public trainee.

  (j) A detailed plan for ensuring that the pesticide will not

drift into areas where the planned pesticide application is

prohibited by section 3 of this 2007 Act.

  (k) A map with identifiable landmarks that shows the boundary

between the pesticide application area and the areas where the

planned pesticide application is prohibited by section 3 of this

2007 Act.

  (2) Notwithstanding ORS 527.685, a person who fails to submit

the information described in this section is subject to a civil

penalty in an amount established by the State Forester by rule,

not to exceed $2,500.

  (3) The State Forester may grant exemptions from ORS 527.670

(3)(c) and this section to allow spraying as part of an

integrated pest management process under ORS 527.310 to

527.370. + }

  SECTION 7. ORS 527.670 is amended to read:

  527.670. (1) The State Board of Forestry shall designate the

types of operations for which notice shall be required under this

section.

  (2) The board shall determine by rule what types of operations

require a written plan.

  (3) The board's determination under subsection (2) of this

section shall require a written plan for operations:

  (a) Within one hundred feet of a stream determined by the State

Forester to be used by fish or for domestic use, unless the

board, by rule, provides that a written plan is not required

because the proposed operation will be conducted according to a

general vegetation retention prescription described in

administrative rule;   { - or - }

  (b) Within three hundred feet of a resource site inventoried

pursuant to ORS 527.710 (3)(a)  { - . - }  { + ; or

  (c) Within five miles of school property as defined in section

2 of this 2007 Act. + }

  (4) The distances set forth in subsection (3)  { - (a) and

(b) - }  of this section are solely for the purpose of defining

an area within which a hearing may be requested under ORS 527.700

and not the area to be protected by the board's rules adopted

pursuant to ORS 527.710 (3)(c).

  (5) For the purpose of determining the distances set forth in

subsection (3)  { - (a) and (b) - }  of this section 'site' means

the specific resource site and not any additional buffer area.

  (6) An operator, timber owner or landowner, before commencing

an operation, shall notify the State Forester. The notification

shall be on forms provided by the State Forester and shall

include the name and address of the operator, timber owner and

landowner, the legal description of the operating area, and any

other information considered by the State Forester to be

necessary for the administration of the rules promulgated by the

board pursuant to ORS 527.710. Promptly upon receipt of such

notice, the State Forester shall send a copy of the notice to

whichever of the operator, timber owner or landowner did not

submit the notification. The State Forester shall send a copy of

notices involving chemical applications to persons within 10

miles of the chemical application who hold downstream surface

water rights pursuant to ORS chapter 537, if such a person has

requested that notification in writing. The board shall adopt

rules specifying the information to be contained in the notice.

All information filed with the State Forester pertaining to

chemical applications shall be public record.

  (7) An operator, timber owner or landowner, whichever filed the

original notification, shall notify the State Forester of any

subsequent change in the information contained in the

notification.

  (8) Within three working days of receipt of a notice or a

written plan filed under subsection (6) or (7) of this section,

the State Forester shall send a copy of the notice or written

plan to any person who requested of the State Forester in writing

that the person be sent copies of notice and written plan and who

has paid any applicable fee established by the State Forester for

such service. The State Forester may establish a fee for sending

copies of notices and written plans under this subsection not to

exceed the actual and reasonable costs. In addition, the State

Forester shall send a copy of the notification to the Department

of Revenue and the county assessor for the county in which the

operation is located, at times and in a manner determined through

written cooperative agreement by the parties involved.

  (9) Persons may submit written comments pertaining to the

operation to the State Forester within 14 calendar days of the

date the notice or written plan was filed with the State Forester

under subsection (2), (6) or (7) of this section. Notwithstanding

the provisions of this subsection, the State Forester may waive

any waiting period for operations not requiring a written plan

under subsection (3) of this section, except those operations

involving aerial application of chemicals.

  (10) If an operator, timber owner or landowner is required to

submit a written plan of operations to the State Forester under

subsection (3) of this section:

  (a) The State Forester shall review a written plan and may

provide comments to the person who submitted the written plan;

  (b) The State Forester may not provide any comments concerning

the written plan earlier than 14 calendar days following the date

that the written plan was filed with the State Forester nor later

than 21 calendar days following the date that the written plan

was filed; and

  (c) Provided that notice has been provided as required by

subsection (6) of this section, the operation may commence on the

date that the State Forester provides comments or, if no comments

are provided within the time period established in paragraph (b)

of this subsection, at any time after 21 calendar days following

the date that the written plan was filed.

  (11)(a) Comments provided by the State Forester, or by the

board under ORS 527.700 (6), to the person who submitted the

written plan are for the sole purpose of providing advice to the

operator, timber owner or landowner regarding whether the

operation described in the written plan is likely to comply with

ORS 527.610 to 527.770 and rules adopted thereunder. Comments

provided by the State Forester or the board do not constitute an

approval of the written plan or operation.

  (b) If the State Forester or the board does not comment on a

written plan, the failure to comment does not mean that an

operation carried out in conformance with the written plan

complies with ORS 527.610 to 527.770 or rules adopted thereunder

nor does the failure to comment constitute a rejection of the

written plan or operation.

  (c) In the event that the State Forester or board determines

that an enforcement action may be appropriate concerning the

compliance of a particular operation with ORS 527.610 to 527.770

or rules adopted thereunder, the State Forester or board shall

consider, but are not bound by, comments that the State Forester

provided under this section or comments that the board provided

under ORS 527.700.

  (12) When the operation is required to have a written plan

under subsection (3) of this section and comments have been

timely filed under subsection (9) of this section pertaining to

the operation requiring a written plan, the State Forester shall:

  (a) Send a copy of the State Forester's review and comments, if

any, to persons who submitted timely written comments under

subsection (9) of this section pertaining to the operation; and

  (b) Send to the operator, timber owner and landowner a copy of

all timely comments submitted under subsection (9) of this

section.

   { +  (13) The State Forester may assess a fee for the filing

of a written plan under subsection (3)(c) of this section.

Notwithstanding ORS 526.060, 10 percent of any fee imposed by the

State Forester under this subsection shall be deposited into the

General Fund and credited to an account of the Department of

Environmental Quality. Amounts credited to an account of the

department under this subsection are continuously appropriated to

the department for the purpose of monitoring air and water

quality in pesticide spray areas. + }

  SECTION 8. ORS 561.144 is amended to read:

  561.144. (1) The State Treasurer shall establish a Department

of Agriculture Service Fund which shall be a trust fund separate

and distinct from the General Fund. The State Department of

Agriculture shall deposit all license and service fees paid to it

under the provisions of the statutes identified in subsection (3)

of this section in the Department of Agriculture Service Fund.

The State Treasurer is the custodian of this trust fund which

shall be deposited by the treasurer in such depositories as are

authorized to receive deposits of the General Fund, and which may

be invested by the treasurer in the same manner as authorized by

ORS 293.701 to 293.820.

  (2) Interest received on deposits credited to the Department of

Agriculture Service Fund shall accrue to and become a part of the

Department of Agriculture Service Fund.

  (3) The license and service fees subject to this section are

those described in ORS 561.400, 570.710, 571.057, 571.063,

571.145, 583.004, 583.046, 583.445, 583.510, 583.610, 585.050,

586.270, 586.580, 586.650, 596.030, 596.311, 599.235, 599.269,

599.406, 599.610, 601.040, 602.090, 603.025, 603.075, 616.706,

618.115, 618.136, 619.031, 621.072, 621.166, 621.266, 621.297,

621.335, 621.730, 622.080, 625.180, 628.240, 632.211, 632.425,

632.600, 632.720, 632.730, 632.741, 632.940, 632.945, 633.015,

633.029, 633.318, 633.362, 633.461, 633.471, 633.680, 633.700,

633.720, 634.016, 634.116, 634.122, 634.126, 634.132, 634.136,

634.212 and 635.030 { +  and section 4 of this 2007 Act + }.

  SECTION 9.  { + Sections 2, 3, 4 and 6 of this 2007 Act and the

amendments to ORS 527.670 and 561.144 by sections 7 and 8 of this

2007 Act apply to pesticide applications made on or after January

1, 2008. + }

  SECTION 10.  { + This 2007 Act being necessary for the

immediate preservation of the public peace, health and safety, an

emergency is declared to exist, and this 2007 Act takes effect on

its passage. + }