78th OREGON LEGISLATIVE ASSEMBLY--2015 Regular Session Senate Bill 613 Sponsored by Senator DEMBROW, Representative LININGER; Senators BATES, GELSER, PROZANSKI, Representatives BARNHART, BUCKLEY, HELM, 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. Requires filing notice with State Forestry Department of proposed aerial application of pesticide or proposed use of fire as planned forest management activity on privately owned forestland. Requires pesticide applicator to file certain information with department after aerial application of pesticide to privately owned forestland. Requires record retention. Requires person conducting forest operation that includes use of fire as planned forest management activity to file certain information with department after completing use of fire. Requires record retention. Requires department to post information from filed notices and other information on department website available for viewing by public without charge. Requires department to give notification of filings to occupied structures on adjacent property and to affected persons who have requested to be informed of proposed pesticide application or of proposed use of fire as planned forest management activity. Requires State Board of Forestry and State Department of Agriculture to adopt rules prohibiting aerial application of pesticide in certain areas. Allows Oregon Health Authority to investigate cases and suspected cases of pesticide poisoning. Provides for reporting of cases and suspected cases of pesticide poisoning to authority by health care practitioners and veterinarians. Requires person who has actual or constructive control of pesticide to report emergency involving pesticide to authority if emergency presents significant risk of harm to public health and safety. Authorizes authority to take any action necessary to address emergency. Requires Pesticide Analytical and Response Center to review authority information regarding cases and suspected cases of pesticide poisoning, related authority rules and federal and state law and make recommendations for authority or legislative action. Declares emergency, effective on passage. A BILL FOR AN ACT 1 2 Relating to activities with potential adverse effects on health; and declaring an emergency. 3 Be It Enacted by the People of the State of Oregon: 4 FOREST OPERATION NOTICES 5 6 7 SECTION 1. As used in sections 2 to 5 of this 2015 Act: 8 (1) “Forestland” means: 9 (a) Land located in western Oregon that is forestland as defined in ORS 321.257; and 10 11 12 (b) Land located in eastern Oregon that is forestland as defined in ORS 321.805. (2) “Pesticide,” “pesticide applicator,” “pesticide operator” and “public applicator” have the meanings given those terms in ORS 634.006. 13 SECTION 2. (1) An operator, timber owner or landowner that proposes to conduct a 14 forest operation involving an aerial application of pesticide to privately owned forestland 15 must file notice of the proposed aerial application with the State Forestry Department. The 16 filing of notice as provided in this section is in addition to any forest operation written plan 17 that may be required under ORS 527.670. The notice must contain the following in a form 18 acceptable to the department: NOTE: Matter in boldfaced type in an amended section is new; matter [italic and bracketed] is existing law to be omitted. New sections are in boldfaced type. LC 849 SB 613 1 (a) The name and business address of the operator, timber owner or landowner; 2 (b) The pesticide product name and any registration number issued for the product by 3 the United States Environmental Protection Agency or the State Department of Agriculture; 4 (c) The name of any substance used to enhance the effectiveness of the pesticide product 5 and any registration number issued for the substance by the United States Environmental 6 Protection Agency or the State Department of Agriculture; 7 (d) The proposed date of the aerial application; 8 (e) The boundaries of the proposed aerial application area; and 9 (f) Any other information required by the State Forestry Department by rule. 10 (2) If any required information contained in a notice filed under this section changes, the 11 operator, timber owner or landowner shall file a new notice that contains new information 12 and shall specifically identify all changes from the information contained in the original no- 13 tice. 14 (3) A notice filed under this section must be received by the State Forestry Department 15 no later than seven business days prior to the proposed date of the application and no earlier 16 than three months prior to the proposed date of the application. If the described aerial ap- 17 plication of pesticide is not made within three months after the department receives the 18 notice, the notice expires and a timely new notice must be submitted before the aerial ap- 19 plication may be made. 20 21 (4) If a proposed aerial application of pesticide is canceled, the operator, timber owner or landowner may withdraw a notice filed under this section for that aerial application. 22 SECTION 3. (1) No later than two business days after the completion of an aerial appli- 23 cation of pesticide to privately owned forestland, the pesticide applicator or public applicator 24 making the application of pesticide shall file a report that includes the following in a form 25 acceptable to the State Forestry Department: 26 27 28 29 (a) The name and business address of the operator, timber owner or landowner for whom the pesticide was applied; (b) The name and business address of the pesticide operator employing the pesticide applicator; 30 (c) The pesticide product name and any registration number issued for the product by 31 the United States Environmental Protection Agency or the State Department of Agriculture; 32 (d) The active ingredients in the pesticide product; 33 (e) Any substance in the pesticide product that modifies or enhances the characteristics 34 of the active ingredients; 35 (f) Any registration number issued for a substance described in paragraph (e) of this 36 subsection by the United States Environmental Protection Agency or the State Department 37 of Agriculture; 38 (g) The total quantity and concentration of pesticide used; 39 (h) The application rate in gallons of spray per acre; 40 (i) The date and time of the application; 41 (j) The application conditions, including but not limited to altitude and air speed during 42 43 44 45 the application; (k) The weather conditions at the time of the application, including but not limited to temperature, wind speed and direction; (L) The boundaries of the pesticide application area; and [2] SB 613 1 (m) Any other information required by the State Forestry Department by rule. 2 (2) If the pesticide applicator or public applicator discovers that any required information 3 contained in a report filed under this section is incorrect, the pesticide applicator or public 4 applicator shall file a new report with corrected information and shall specifically identify 5 all changes from the information contained in the original report. 6 7 8 9 10 11 (3) A pesticide operator that files a report with the State Forestry Department under this section shall: (a) Provide a copy of the information to the operator, timber owner or landowner for whom the pesticide application was made; and (b) Retain a record of the information for not less than seven years after the report filing date. 12 SECTION 4. (1) An operator, timber owner or landowner that proposes to use fire as a 13 planned forest management activity on privately owned forestland must file notice of the 14 proposed use of fire with the State Forestry Department. The filing of notice as provided in 15 this section is in addition to any forest operation written plan requirement or other notice 16 or permit requirement. 17 department: The notice must contain the following in a form acceptable to the 18 (a) The name and business address of the operator, timber owner or landowner; 19 (b) The proposed dates for commencing and ending the use of fire; 20 (c) The boundaries of the proposed fire area; and 21 (d) Any other information required by the department by rule. 22 (2) If any required information contained in a notice filed under this section changes, the 23 operator, timber owner or landowner shall file a new notice that contains new information 24 and shall specifically identify all changes from the information contained in the original no- 25 tice. 26 (3) A notice filed under this section must be received by the department no later than 27 seven business days prior to the proposed date for commencing the use of fire and no earlier 28 than three months prior to the proposed date for commencing the use of fire. 29 scribed use of fire does not commence within three months after the department receives 30 the notice, the notice expires and a timely new notice must be submitted before the use of 31 fire may commence. If the de- 32 (4) If a proposed use of fire as a planned forest management activity is canceled, the 33 operator, timber owner or landowner may withdraw a notice filed under this section for that 34 use of fire. 35 SECTION 5. (1) No later than two business days after completing a forest operation that 36 includes the use of fire as a planned forest management activity, the operator, timber owner 37 or land owner responsible for conducting the forest operation shall file a report that includes 38 the following information in a form acceptable to the State Forestry Department: 39 (a) The name and business address of the operator, timber owner or landowner; 40 (b) The number of acres on which fire was used; 41 (c) The boundaries of the forestland area on which fire was used; 42 (d) The dates on which the use of fire commenced and ended; 43 44 45 (e) The weather conditions at the times the use of fire commenced and ended, including but not limited to temperature, wind speed and direction; and (f) Any other information required by the department by rule. [3] SB 613 1 (2) If the operator, timber owner or landowner discovers that any required information 2 contained in a report filed under this section is incorrect, the operator, timber owner or land 3 owner shall file a new report with corrected information and shall specifically identify all 4 changes from the information contained in the original report. 5 SECTION 6. (1) The State Forestry Department shall establish and maintain a website 6 for filing notices and reports required under sections 2 to 5 of this 2015 Act. The department 7 shall make the notice and report information available on the website for viewing by the 8 public without charge. The department shall post notices and reports filed under sections 2 9 to 5 of this 2015 Act on the website no later than one business day after receiving the notice 10 11 12 13 14 or report. (2) The department shall keep the information contained in a notice filed under section 2 of this 2015 Act posted on the website until the earlier of: (a) The date that the department posts a new notice for the proposed aerial application containing a change in information; 15 (b) The date that the department receives notice from an operator, timber owner or 16 landowner that the notice filed under section 2 of this 2015 Act is being withdrawn due to 17 cancellation of the proposed aerial application; 18 19 20 21 22 23 24 25 (c) The date three months after receipt when the notice expires under section 2 (3) of this 2015 Act; or (d) The date that the department posts the information contained in a report filed under section 3 of this 2015 Act describing the completed aerial application of pesticide. (3) The department shall keep the information contained in a notice filed under section 4 of this 2015 Act posted on the website until the earlier of: (a) The date that the department posts a new notice for the proposed use of fire containing a change in information; 26 (b) The date that the department receives notice from an operator, timber owner or 27 landowner that the notice filed under section 4 of this 2015 Act is being withdrawn due to 28 cancellation of the proposed use of fire; 29 30 31 32 (c) The date three months after receipt when the notice expires under section 4 (3) of this 2015 Act; or (d) The date that the department posts the information contained in a report filed under section 5 of this 2015 Act describing the completed use of fire. 33 (4) The department shall keep a report filed under section 3 or 5 of this 2015 Act: 34 (a) Posted on the website for a period established by State Board of Forestry rule, but 35 36 37 not less than days; and (b) On file with the department and available for public inspection for not less than years after the filing date of the report. 38 (5) The department shall adopt rules establishing a system for giving notification of a 39 filing under sections 2 to 5 of this 2015 Act to any residence, business, facility or other oc- 40 cupied structure located on property adjacent to an area identified in the filed notice or re- 41 port and to any person that has requested to be informed when a notice or report is filed 42 under sections 2 to 5 of this 2015 Act. The system shall include, but need not be limited to, 43 a means for notifying the affected persons when information filed under sections 2 to 5 of 44 this 2015 Act is changed. The department shall initiate efforts to notify an affected person 45 no later than 24 hours after receiving a notice or report filed under sections 2 to 5 of this [4] SB 613 1 2015 Act. The department shall design the system to achieve, to the extent practicable, 2 completion of the notification process for a notice filed under section 2 or 4 of this 2015 Act 3 no later than 48 hours prior to the proposed date identified in the notice. 4 5 SECTION 7. (1) Filing requirements under sections 2 and 3 of this 2015 Act apply to aerial applications of pesticide made on or after January 1, 2017. 6 (2) Filing requirements under sections 4 and 5 of this 2015 Act apply to the use of fire 7 as a planned forest management activity commenced during a forest operation that begins 8 on or after January 1, 2017. 9 10 (3) The State Forestry Department shall make the website described in section 6 of this 2015 Act available for public viewing no later than January 1, 2017. 11 (4) The department shall complete the adoption of initial rules establishing a system for 12 giving notification as provided under section 6 (5) of this 2015 Act in time to implement the 13 system on January 1, 2017. 14 PESTICIDE APPLICATION PROHIBITIONS 15 16 17 SECTION 8. (1) As used in this section: 18 (a) “Forestland” means: 19 (A) Land located in western Oregon that is forestland as defined in ORS 321.257; and 20 (B) Land located in eastern Oregon that is forestland as defined in ORS 321.805. 21 (b) “Pesticide” has the meaning given that term in ORS 634.006. 22 (c) “School” means a public or private facility offering instruction in one or more grades 23 24 25 from kindergarten to grade 12. (2) The State Board of Forestry shall adopt rules in accordance with ORS Chapter 183 to prohibit the conducting of aerial application of pesticides on forestland in proximity to: 26 (a) A residence; 27 (b) A school; 28 (c) A waterway used as a municipal or community water source or supply; or 29 (d) A waterway that supports native fish populations. 30 (3) ORS 527.714 does not apply to the adoption of rules under this section. 31 32 33 34 35 36 (4) The prohibitions established in rules adopted under this section are in addition to, and not in lieu of, any other prohibitions on pesticide application established by law. (5) The board shall base rules adopted under subsection (2) of this section on the best available science as determined by the board. SECTION 9. The State Board of Forestry shall complete the adoption of initial rules under section 8 of this 2015 Act in time for the rules to become effective on January 1, 2017. 37 SECTION 10. Section 11 of this 2015 Act is added to and made a part of ORS chapter 634. 38 SECTION 11. (1) As used in this section: 39 (a) “Forestland” means: 40 (A) Land located in western Oregon that is forestland as defined in ORS 321.257; and 41 (B) Land located in eastern Oregon that is forestland as defined in ORS 321.805. 42 (b) “School” means a public or private facility offering instruction in one or more grades 43 from kindergarten through grade 12. 44 (2) The State Department of Agriculture shall adopt rules in accordance with ORS 45 chapter 183 to prohibit the conducting of aerial application of pesticides in proximity to a [5] SB 613 1 residence or school. (3) The department may not make the rules described in subsection (2) of this section 2 3 applicable to the aerial application of pesticides on forestland. (4) The prohibitions established in rules adopted under this section are in addition to, and 4 5 not in lieu of, any other prohibitions on pesticide application established by law. (5) The department shall base rules adopted under subsection (2) of this section on the 6 7 best available science as determined by the department. 8 SECTION 12. The State Department of Agriculture shall complete the adoption of initial 9 rules under section 11 of this 2015 Act in time for the rules to become effective on January 10 1, 2017. 11 PESTICIDE POISONING RESPONSE 12 13 SECTION 13. As used in sections 14 to 22 of this 2015 Act, “pesticide” has the meaning 14 15 given that term in ORS 634.006. SECTION 14. (1) The Oregon Health Authority may investigate any case or suspected 16 17 case of: (a) Human pesticide poisoning; or 18 (b) Animal pesticide poisoning that presents a risk of harm to the public health and 19 20 safety. 21 (2) In making investigations under this section, the authority may: 22 (a) Take samples of human or animal tissue for diagnostic purposes, provided that sam- 23 ples of a living person must be taken only with the consent of: (A) The person or, if the person is a minor, the parent or legal guardian of the person; 24 25 26 27 28 29 30 or (B) If the person or parent or legal guardian of the person is unable to consent, any other person legally authorized to give consent for the person. (b) Collect and keep information necessary to investigate the nature of, or to determine the cause of, a case of pesticide poisoning. (3)(a) The authority shall establish by rule a schedule of response times for initiating an 31 investigation under this section. 32 different pesticides or for different circumstances under which a pesticide poisoning occurs. The schedule may establish different response times for 33 (b) Response times adopted under paragraph (a) of this subsection: 34 (A) Must be based on the degree of harm that the case or suspected case of pesticide 35 poisoning presents to the public health and safety; and 36 (B) May not exceed 48 hours. 37 (4) The authority shall notify the State Department of Agriculture and any other appro- 38 priate state agency of the results of an investigation conducted under this section. The no- 39 tification may include recommendations for further state action by the department or 40 another state agency. 41 SECTION 15. (1)(a) A person who has actual or constructive control of a pesticide shall 42 report any fire, spill or contamination involving the pesticide, or any other emergency in- 43 volving the pesticide, to the Oregon Health Authority if the fire, spill, contamination or other 44 emergency presents a risk of significant harm to the public health and safety. The reporting 45 requirement under this subsection is in addition to any reporting requirement under ORS [6] SB 613 1 2 3 4 5 chapter 465, 466 or 476 that may apply to the fire, spill or contamination. (b) The authority shall adopt rules prescribing the manner of reporting an emergency under this subsection. (2)(a) Upon receiving a report under subsection (1) of this section, the authority may take any action necessary to: 6 (A) Mitigate a danger associated with the emergency; 7 (B) Dispose of the pesticide; 8 (C) Prevent further contamination; or 9 (D) Restore the property to a nonhazardous condition. 10 (b) Action by the authority under this section may include, but need not be limited to, 11 issuing an order that requires the person who has actual or constructive control of the 12 pesticide, the owner of the property on which the emergency occurred or a local government, 13 as defined in ORS 174.116, to respond to the emergency. If necessary, the authority may issue 14 an order to assume control of the property on which the emergency occurred. 15 (c) In issuing an order to assume control of property under this subsection, the authority 16 shall consider any economic hardship that may be caused by assuming control of the prop- 17 erty. 18 related activities on the property. If possible, the order shall allow the owner of the property to continue any farm- 19 (d) If the authority assumes control of property under paragraph (b) of this subsection, 20 the property is under the jurisdiction of the authority until the authority issues an order 21 releasing the property. The authority shall issue an order under this paragraph immediately 22 upon making a finding that the emergency no longer presents a risk of significant harm to 23 the public health and safety. 24 (3) The authority shall take into account industry’s role in responding to the types of 25 emergencies described in subsection (1) of this section and utilize industry services in per- 26 forming authority duties under this section. 27 28 (4) The State Department of Agriculture shall assist the authority in performing authority duties under this section. 29 (5) If a person holds or is required to hold a license or certificate issued under ORS 30 chapter 634 and the person fails to report an emergency as required by subsection (1) of this 31 section or follow an order issued under subsection (2) of this section, the department may 32 suspend, revoke or refuse to reissue or renew the license or certificate. 33 34 SECTION 16. (1) As used in this section and section 17 of this 2015 Act, “health care practitioner” means: 35 (a) A physician licensed under ORS chapter 677; 36 (b) A physician assistant licensed under ORS chapter 677; 37 (c) A chiropractic physician licensed under ORS chapter 684; 38 (d) A naturopathic physician licensed under ORS chapter 685; 39 (e) A registered nurse licensed under ORS 678.010 to 678.410; or 40 (f) A person that the Oregon Health Authority determines to be qualified to diagnose and 41 treat human pesticide poisoning while acting within the scope of a license or certificate is- 42 sued by this state. 43 (2) The authority shall develop a process by which: 44 (a) A health care practitioner may report to the authority a case or suspected case of 45 human pesticide poisoning as described in section 14 of this 2015 Act; and [7] SB 613 1 2 3 4 (b) A veterinarian licensed under ORS chapter 686 may report to the authority a case or suspected case of animal pesticide poisoning as described in section 14 of this 2015 Act. (3) The authority shall prescribe the manner of reporting a case or suspected case of pesticide poisoning under this section by rule. 5 (4)(a) Subject to paragraph (b) of this subsection, the authority shall establish by rule a 6 time schedule for reporting a case or suspected case of pesticide poisoning under this sec- 7 tion. 8 different circumstances under which a pesticide poisoning occurs. 9 10 11 The schedule may establish different reporting times for different pesticides or for (b) Reporting times adopted under paragraph (a) of this subsection: (A) Must be based on the degree of harm that the case or suspected case of pesticide poisoning presents to the public health and safety; and 12 (B) May not exceed seven days. 13 (5) Health care practitioners and veterinarians may not provide any personally identifi- 14 able information to the authority under this section if the information is not relevant to the 15 case or suspected case of pesticide poisoning. 16 (6) A health care practitioner or veterinarian may request a pesticide applicator, as de- 17 fined in ORS 634.006, to provide the health care practitioner or veterinarian with any infor- 18 mation related to the application of a pesticide for purposes of making a diagnosis under this 19 section. 20 (7) The authority shall inform any health care practitioner or veterinarian who makes a 21 report as described in subsection (2) of this section of the results of any investigation con- 22 ducted pursuant to the report. 23 24 (8) A person does not have a cause of action against a health care practitioner or veterinarian under this section for: 25 (a) Failing to make a report as described in subsection (2) of this section; or 26 (b) Submitting a report as described in this section. 27 (9) If a pesticide applicator refuses to provide a health care practitioner or veterinarian 28 with information requested under subsection (6) of this section, the State Department of 29 Agriculture may suspend, revoke or refuse to reissue or renew the pesticide applicator’s li- 30 cense. 31 SECTION 17. (1) The Oregon Health Authority shall develop a program for educating 32 health care practitioners and veterinarians licensed under ORS chapter 686 on the symp- 33 toms, diagnosis, treatment and reporting of cases and suspected cases of pesticide poisoning. 34 The authority shall solicit input from the Oregon Medical Board, the State Board of 35 Chiropractic Examiners, the Oregon Board of Naturopathic Medicine, the Oregon State 36 Board of Nursing and the Oregon State Veterinary Medical Examining Board when develop- 37 ing the program. 38 (2) The authority may: 39 (a) Adopt a fee for participating in the program; and 40 (b) Allow individuals other than health care practitioners and veterinarians to participate 41 in the program. 42 SECTION 18. Upon request, the Oregon Health Authority may provide technical assist- 43 ance and consultation regarding the health effects of pesticides to health care practitioners, 44 veterinarians, local governments as defined in ORS 174.116, the State Department of Agri- 45 culture and other state agencies. The technical assistance may include, but is not limited to, [8] SB 613 1 providing information related to the effective testing of pesticides or samples of human or 2 animal tissue taken for diagnostic purposes. 3 SECTION 19. The Oregon Health Authority shall provide all information obtained by the 4 authority related to cases or suspected cases of pesticide poisoning, or emergencies involving 5 pesticides, to the Pesticide Analytical and Response Center created under ORS 634.550. 6 SECTION 20. The Oregon Health and Science University may, by agreement or otherwise, 7 assist the Oregon Health Authority in fulfilling authority duties under sections 13 to 22 of 8 this 2015 Act. 9 SECTION 21. The Oregon Health Authority shall adopt rules necessary to implement 10 sections 13 to 22 of this 2015 Act including, but not limited to, rules necessary for the ef- 11 fective testing of pesticides or samples of human or animal tissue taken for diagnostic pur- 12 poses. 13 SECTION 22. (1) The Oregon Health Authority may impose a civil penalty for each vio- 14 lation of sections 13 to 22 of this 2015 Act, rules adopted pursuant to sections 13 to 22 of this 15 2015 Act or an order issued pursuant to section 15 of this 2015 Act. A civil penalty imposed 16 under this section may not exceed $5,000. 17 (2) Amounts collected under this section shall be deposited in the Oregon Health Au- 18 thority Fund established under ORS 413.101. Notwithstanding ORS 413.101, the authority 19 may use moneys deposited in the fund under this section only for carrying out the duties, 20 functions and powers of the authority under sections 13 to 22 of this 2015 Act. 21 SECTION 23. Section 24 of this 2015 Act is added to and made a part of ORS chapter 634. 22 SECTION 24. In addition to the duties described in ORS 634.550, the governing board of 23 the Pesticide Analytical and Response Center shall: 24 (1) Consider information received from the Oregon Health Authority under section 19 of 25 this 2015 Act when making recommendations under ORS 634.550 (5)(e) or reports under ORS 26 634.550 (5)(f); 27 28 29 30 31 32 33 34 (2) Review and make recommendations on rules adopted by the authority under sections 13 to 22 of this 2015 Act; (3) Review and make recommendations on investigatory procedures used by the authority under sections 13 to 22 of this 2015 Act; (4) Make recommendations related to intergovernmental cooperation by the authority and the State Department of Agriculture involving pesticides; (5) Review cases or suspected cases of pesticide poisoning, or emergencies involving pesticides, that are unusually complex; 35 (6) Identify inadequacies in federal law or regulations or state law or rules with respect 36 to protecting the public health and safety from pesticide poisoning or emergencies involving 37 pesticides; and 38 (7) Include in reports submitted to the Legislative Assembly under ORS 634.550 (5)(h) 39 findings made by the governing board of the center under subsection (6) of this section and 40 recommendations for legislation related to those findings. 41 SECTION 25. (1) Sections 13 to 24 of this 2015 Act become operative on January 1, 2016. 42 (2) The Oregon Health Authority may take any action before the operative date specified 43 in subsection (1) of this section that is necessary to enable the authority to exercise, on and 44 after the operative date specified in subsection (1) of this section, all the duties, functions 45 and powers conferred on the authority by sections 13 to 22 of this 2015 Act. [9] SB 613 CAPTIONS 1 2 3 SECTION 26. The unit captions used in this 2015 Act are provided only for the conven- 4 ience of the reader and do not become part of the statutory law of this state or express any 5 legislative intent in the enactment of this 2015 Act. 6 EMERGENCY CLAUSE 7 8 9 SECTION 27. This 2015 Act being necessary for the immediate preservation of the public 10 peace, health and safety, an emergency is declared to exist, and this 2015 Act takes effect 11 on its passage. 12 [10]