House Bill No. 489

Introduced By _______________________________________________________________________________

A Bill for an Act entitled: "An Act specifying the provisions for a unit of local government to regulate the notification of pesticide application; amending section 80-8-120, MCA; and providing an immediate effective date and an applicability date."

WHEREAS, statewide uniformity in regulations, specifically pesticide notification posting and notification regulations a unit of local government may choose to enact, is in the best interest of Montana citizens; and

WHEREAS, excessive regulation inhibits Montana's economic health and the freedom of its citizens; and

WHEREAS, a local government is entitled to local control and may wish to enact an ordinance or resolution on pesticide application notification; and

WHEREAS, pesticides are a vital and necessary tool to protect Montanans from the threat of disease and economic harm caused by mosquitoes, weeds, and other pests; and

WHEREAS, this bill is in the best interest of the citizens of Montana.

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 80-8-120, MCA, is amended to read:

"80-8-120.   Local pesticide regulation. (1) (a) A unit of local government may adopt an ordinance to regulate pesticide application that may include notification, provided that the ordinance is fully consistent with the authorities provided for in Title 80, chapter 8, and rules adopted under Title 80, chapter 8. The department shall develop a policy for the review and approval of local pesticide ordinances. A unit of local government shall submit a proposed ordinance to the department for verification that the proposed ordinance is consistent with the authorities provided for in Title 80, chapter 8. The ordinance may not be adopted until it has been approved by the department. require a commercial applicator, as defined in 80-8-102(6), to provide notification when applying a pesticide, subject to the following provisions:

(i) The applicator shall post a sign or signs at the time of the pesticide application or provide notification as provided for in subsection (1)(a)(v). The applicator, property owner, or property manager may not remove a sign until the pesticide is dry or the reentry interval on the pesticide label has expired, whichever is later.

(ii) A sign must be:

(A) at least 4 inches in height and 5 inches in width; and

(B) made of weather-resistant material if used for outdoor application.

(iii) A sign must contain:

(A) the words "pesticide application"; and

(B) the telephone number of the applicator, property owner, or property manager who can supply further information about the pesticide.

(iv) A sign must be posted:

(A) at each public access to the treated property with the front of the sign facing the access;

(B) if a driveway, sidewalk, or other vehicle or pedestrian thoroughfare intersects the boundary of the treated area, at a point clearly visible from an intersection;

(C) for a golf course, at a conspicuous place in the clubhouse or pro shop or at the first and tenth tees.

(v) Notification:

(A) for a right-of-way or irrigation ditch application must be provided in a local newspaper or on local radio or television stating that the property will be treated and providing the telephone number of an individual who can supply further information on the pesticide applications. Notification under this subsection (1)(a)(v)(A) must be made annually in the spring or immediately before the pesticide application;

(B) for an interior application must be a sign posted in a conspicuous place, must state "pesticides are applied periodically", and must provide the name of the property owner or property manager who can be contacted for information about the pesticide application.

(vi) Posting or notification is not required for the following:

(A) a spot treatment of an area that is less than 100 square feet;

(B) an applicator subject to the environmental protection agency's worker protection standards as published in 40 CFR, part 156, subpart K, and 40 CFR, part 170;

(C) an application on land that produces agricultural commodities for which gross sales in excess of $1,000 were realized or can be expected to be realized during any calendar year;

(D) an application of a pesticide that is a minimum risk pesticide as published by the environmental protection agency in 40 CFR 152.25(g)(1) or a sanitizer, a disinfectant, or a microbial registered with the environmental protection agency;

(E) an application of a pesticide for mosquito control by a legally established mosquito control district;

(F) an emergency for which the governing body determines it is in the citizens' best interest not to require notification.

(b) A unit of local government that adopts a notification ordinance pursuant to 80-8-120 must:

(i) notify the department that it is adopting the ordinance on pesticide notification as provided in this section and provide the department a final copy for the department's register provided for in subsection (4); and

(ii) fund the costs, including but not limited to:

(A) educating its citizens of the ordinance's requirements;

(B) compensating personnel to enforce the ordinance; and

(C) prosecution of a violation of the ordinance.

(2)  A unit of local government may petition the department in writing to adopt rules to address specific local conditions, as provided in 80-8-105(3)(a). The petition must document:

(a)  the need for a rule, including the reason that existing rules do not address the particular pesticide application;

(b)  the need for specific local rules; and

(c)  that a situation exists that threatens or is likely to threaten public health or environmental quality in the jurisdiction of the unit of local government.

(3)  Local rules may be administered, enforced, and financed by a unit of local government:

(a)  through a cooperative agreement with the department as provided under this section; or

(b)  after the department adopts rules authorizing a unit of local government to administer, enforce, and finance an ordinance.

(4)  Within 30 days of receiving the petition, the department shall respond to the unit of local government, stating:

(a)  whether the petition conforms to the purpose of Title 80, chapter 15, and to the provisions of this section; and

(b)  the procedures and time period for the promulgation of rules by the department, provided that the petition conforms to the purpose of Title 80, chapter 15, and to the provisions of this section.

(5)(2)  The department may enter into a cooperative agreement with a unit of local government for the administration and enforcement of local rules adopted under 80-8-105(3)(a).

(6)(3)  Except as provided in subsection subsections (1) and (2), a unit of local government ordinance may not regulate or prohibit the registration, labeling, distribution, use, or sale of pesticides or enact notification provisions more stringent than those provided for in subsections (1) and (2). It is not the intent of this subsection to prevent local responsibilities for zoning, fire codes, or disposal of pesticides pursuant to Title 75, chapter 10, part 4.

(7)(4)  The department shall maintain and, upon request, distribute a register of ordinances adopted by local governing bodies pursuant to subsection (1)."

NEW SECTION. Section 2. Penalty. A person who violates a notification ordinance adopted pursuant to [section 1(1)]:

(1) shall be subject to a written warning for the first violation;

(2) is guilty of a misdemeanor and upon conviction shall be fined not less than $25 or more than $50 for the second violation; and

(3) is guilty of a misdemeanor and upon conviction shall be fined not less than $50 or more than $500 for a third or subsequent conviction.

NEW SECTION. Section 3.  Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

NEW SECTION. Section 4.  Applicability. An ordinance adopted by a local government under 80-8-120 before [the effective date of this act] must comply with [this act] by January 1, 1998.

NEW SECTION. Section 5.  Effective date. [This act] is effective on passage and approval.