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. + }
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