Bill S.555

SENATE DOCKET, NO. 1201 FILED ON: 2/12/2021

SENATE . . . . . . . . . . . . . . No. 555

By Mr. Hinds, a petition (accompanied by bill, Senate, No. 555) of Adam G. Hinds and Susan L. Moran for legislation to provide for protections from chemical protections from pesticide chemical trespass in the Commonwealth. Environment, Natural Resources and Agriculture.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act providing for protections from chemical protections from pesticide chemical trespass in the Commonwealth.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 2 of chapter 132B of the General Laws is hereby amended by adding the following definitions:

“Agricultural Application”, pesticide use or application incidental to, or for the purposes of, agriculture or farming, as defined under M.G.L. Ch. 128, section 1A, provided that gross sales of agricultural products totaled not less than 500 dollars in the previous year, or for agricultural activities without gross sales in the previous year, that gross sales of agricultural products are reasonably expected to total not less than 500 dollars in the current year.

“Buffer zones”, areas in which the use or application of pesticides is prohibited, including by aerial application, ground application, or other method.

“Pesticide chemical trespass”, the application or use of a pesticide within a buffer zone, other than a pesticide classified by the United States Environmental Protection Agency as an exempt material under 40 CFR § 152.25.

“Pesticide drift”, the movement of pesticide dust or droplets through the air at the time of application or after to any site other than the area intended.

“Protected Area”,

(a) Any residential, commercial, or municipal building, hospital or other medical facility, nursing home or assisted living facility, school, child care facility, or other building where people gather or live and the area within a 100-foot radius surrounding these structures, provided that such Protected Area shall not exceed the property line;

(b) Any developed recreation area open to public accommodation, including any developed public or commercial campground, developed picnic area, developed park and recreation facility, playground, school bus stop, or other area developed for organized recreation;

(c) Any other area near which pesticide exposure should be reduced to protect health or the environment, including environmental justice populations, as determined by the Department in consultation with the Department of Public Health and the Massachusetts Executive Office of Energy and Environmental Affairs; or

(d) Any other area near which pesticide exposure should be reduced to protect health or the environment, including environmental justice populations, as determined by the legislative body of any city or town pursuant to section 18 of this chapter.

“surface waters”, All waters other than groundwaters within the jurisdiction of the Commonwealth, including, without limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries, wetlands, coastal waters and vernal pools, except that “surface waters” shall not include irrigation ditches or constructed farm ponds into which and from which no stream or river flows.

SECTION 2. Section 5 of chapter 132B of the General Laws is hereby amended by adding the following clause:

The department shall review and update the list of Protected Areas annually in consultation with the Department of Public Health and the Massachusetts Executive Office of Energy and Environmental Affairs provided that none of the Protected Areas enumerated in Section 2 shall be removed.

SECTION 3. Chapter 132B of the General Laws is hereby amended by inserting after section 6K the following section:

Section 6L. The agricultural application of any pesticide, other than a pesticide classified by the United States Environmental Protection Agency as an exempt material under 40 CFR § 152.25, by aerial application, ground application, or any other method of pesticide application is prohibited in buffer zones, which include the following:

Buffer zone of 1 mile radius from Protected Areas;

Buffer zone of 250 foot radius from surface waters; and

Additional buffer zones to be established by the Department in regulations as needed to protect health and the environment.

If the designation of any buffer zone or protected area is determined to conflict with any pesticide labeling information or any other use restriction established under this chapter or through regulations promulgated thereunder, the more restrictive and health-protective provisions shall apply.

Whenever agricultural application of pesticides occurs in an area adjacent to a protected area buffer zone, the applicator shall give notice of such application by posting signs. Signs shall be posted at least every 200 feet along the perimeter of the treated area and at every principal entrance to the treated area facing the buffer zone. Signs shall face toward the buffer zone and be placed in a manner so as not to be obstructed by vegetation, structures, or other potential obstacles. Signs shall be posted 24 hours prior to application and shall remain posted until 72 hours after application or the expiration of the restricted entry interval stated on the pesticide’s label, whichever occurs later.

The department shall publish regulations governing the content and format of the signs, but at a minimum the signs shall contain the phone number of the department’s pesticide complaint hotline, established under section 17 of this chapter, and an explanation that complaints regarding violations of the commonwealth’s pesticide laws may be filed through the hotline.

SECTION 4. Section 14 of chapter 132B of the General Laws is hereby amended by inserting in the second paragraph “section 6L,” after “section 6A to 6I, inclusive,”

SECTION 5. Section 14 of chapter 132B of the General Laws is hereby amended by adding the following clause:

In addition to any punishment by fines or penalties pursuant to this section, any person who commits a first violation of any provision of this chapter relating to pesticide chemical trespass, any regulation promulgated thereunder relating to pesticide chemical trespass, or any municipal bylaw or ordinance enacted pursuant to section 18 of this chapter shall be punished by immediate suspension and revocation of his or her applicator’s licenses, certifications, and permits issued under section 10. Such person shall be eligible for reinstatement of the revoked license, certification, or permit upon reapplication and passage of any written examinations and performance testing required by the department’s regulations for issuance of such license, certification, or permit.

In addition to any punishment by fines or penalties pursuant to this section, any person who commits a second or subsequent violation of any provision of this chapter relating to pesticide chemical trespass, any regulation promulgated thereunder relating to pesticide chemical trespass, or any municipal bylaw or ordinance enacted pursuant to section 18 of this chapter shall be punished by immediate suspension and revocation of his or her applicator’s licenses, certifications, and permits issued under section 10. Such person shall be prohibited from reapplying for a certification, license, or permit within two years of such suspension and revocation.

SECTION 6. Chapter 132B of the General Laws is hereby amended by adding after section 16 the following sections:

Section 17. The department shall establish a process for members of the public to submit complaints concerning pesticide drift, pesticide chemical trespass, or other violations of the provisions of this chapter or any regulation promulgated thereunder. At a minimum, the department shall allow complaints to be submitted over the phone and through a form provided on the department’s website.

The department shall establish a process for conducting an investigation of any complaint received in order to determine whether a violation occurred. The department shall maintain a publicly accessible online docket of complaints received, the outcome of its investigation, and any penalties assessed or enforcement actions taken.

If during any calendar year the department determines that on three or more occasions pesticide drift has occurred in connection with the use or application of any registered pesticide, notwithstanding the applicator or applicators’ compliance with the provisions of this chapter and regulations promulgated thereunder, the commissioner shall direct the pesticide board subcommittee to conduct a review of that pesticide’s registration. The purpose of this review shall be to determine whether the pesticide’s registration must be suspended or modified because, when used as registered and in compliance with the department’s regulations for application, the pesticide may drift or otherwise cause unreasonable adverse effects on the environment. Nothing in this section shall prohibit the department or the pesticide board subcommittee from conducting such review without first determining that pesticide drift has occurred on three or more occasions during any calendar year.

Section 18. The legislative body of any city or town, in consultation with the municipality’s board of health and, if applicable, the municipality’s conservation commission, may designate additional protected areas or increase the distance of buffer zones by bylaw or ordinance deemed necessary to protect health or the environment, provided that no buffer zone shall exceed a three mile radius from a protected area.

Name:	District/Address:
Adam G. Hinds	Berkshire, Hampshire, Franklin and Hampden
Susan L. Moran	Plymouth and Barnstable	3/18/2021