SB0326

SENATE BILL 326

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Brenda McKenna

AN ACT

RELATING TO THE ENVIRONMENT; LIMITING THE USE OF PESTICIDES ON PUBLIC GROUNDS AND SCHOOL GROUNDS; PROVIDING DUTIES AND PROCEDURES FOR PESTICIDE USE BY THE STATE, LOCAL GOVERNMENTS AND PUBLIC SCHOOLS; ENACTING THE PUBLIC SCHOOLS PESTICIDE MANAGEMENT ACT; ENACTING A SECTION OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] SHORT TITLE.--Sections 1 through 6 of this act may be cited as the "Public Schools Pesticide Management Act"."

SECTION 2. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] DEFINITIONS.--As used in the Public Schools Pesticide Management Act:

A. "administrative spaces" means administrative or other school district buildings and grounds that are not part of a public school;

B. "coordinator" means the person designated in the school district as the ecological pest management coordinator and also the local superintendent's designee for implementation of the plan for administrative spaces;

C. "ecological pest management" means the use of comprehensive methods, including site or pest inspections, pest population monitoring, exclusion practices, elimination of habitat and pest-conducive conditions, to manage pests in such a way as to minimize the use of pesticides and associated risks to human health and the environment;

D. "emergency pesticide" means a pesticide that is not a permitted indoor pesticide or a permitted outdoor pesticide and is more toxic than those pesticides;

E. "permitted indoor pesticide" means:

(1) an antimicrobial pesticide;

(2) a pesticide classified by the United States environmental protection agency as a minimum risk pesticide;

(3) a pesticide including no active ingredients other than those found in the national organic program's national list of allowed substances;

(4) insecticidal bait containing no synthetic ingredients and that is placed in a tamper-resistant bait station or in an area inaccessible to students and the general public; and

(5) a ready-to-use dust, powder or gel formulation of insecticide containing no synthetic ingredients and applied in an area inaccessible to students and the general public;

F. "permitted outdoor pesticide" means:

(1) a pesticide classified by the United States environmental protection agency as a minimum risk pesticide; and

(2) a pesticide containing no active ingredients other than those found in the national organic program's national list of allowed substances;

G. "pest" means an insect, rodent, nematode, fungus, weed or other form of terrestrial or aquatic animal or plant life or a virus, bacteria or other microorganism that has a deleterious affect on humans, animals or plants;

H. "pesticide" means a substance or mixture of substances intended to prevent, destroy, repel or mitigate a pest, including herbicides, insecticides, fungicides, plant growth regulators, defoliants and desiccants, but excluding cleaning products that do not contain pesticidal agents;

I. "plan" means the plan established through a school district's ecological pest management program for each public school and for administrative spaces;

J. "public health official" means a person employed by a public health agency of the state or a local government;

K. "public school health emergency" means an unpredictable outbreak or infestation of a pest that has been determined by a public health agency to be a disease vector or known health threat that has not been controlled by nontoxic practices and methods or by permitted pesticides;

L. "public school health emergency declaration" means an order of a public health official that there is a public school health emergency that requires the use of unpermitted indoor or outdoor pesticides to stop the threat to human health;

M. "school district" includes charter schools; and

N. "school grounds" means the outside area of a public school, including lawns, playgrounds and sports fields."

SECTION 3. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] ECOLOGICAL PEST MANAGEMENT COORDINATOR--DUTIES.--Each school district shall designate an "ecological pest management coordinator" who is responsible for carrying out the school district's ecological pest management program and the plans developed in accordance with that program. The coordinator shall:

A. serve as the local superintendent's or head administrator's designee to implement the administrative spaces plan;

B. oversee the implementation of each public school's plan;

C. assist the environmental protection division of the department of environment in monitoring the school district's ecological pest management program and plans implemented pursuant to the program and provide information to the division as requested;

D. act as a contact for inquiries about the ecological pest management program or plans implemented pursuant to the program;

E. maintain and make available upon request to school personnel, parents and other interested persons material safety data sheets, labels and fact sheets or other official information related to the permitted indoor and outdoor pesticides that may be used in the school district;

F. keep informed on federal and state chemical health and safety information and contact information and maintain contact with federal and state pest management system experts;

G. maintain the scheduling of all pest management for public schools;

H. obtain periodic updates and training from state pest management experts;

I. oversee approval of emergency pesticide applications in coordination with the environmental protection division and the public health official responsible for a public school health emergency declaration; and

J. coordinate the maintenance of all pesticide use data for each pesticide used, including permitted and emergency pesticides, at each public school, ensuring maintenance and public accessibility of such records for at least three years after the date on which the pesticide is first applied."

SECTION 4. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] ECOLOGICAL PEST MANAGEMENT PROGRAM--DEPARTMENT, SCHOOL DISTRICT AND PUBLIC SCHOOL DUTIES.--

A. The department, in consultation with the environmental protection division of the department of environment, the New Mexico department of agriculture and other state agencies and pesticide experts, shall provide sample ecological pest management programs that may be modified by school districts to prepare plans for individual public schools and administrative spaces. Copies of the ecological pest management program and the attendant plans shall be provided to the department of environment, which shall monitor the implementation of the ecological pest management program.

B. The ecological pest management program and attendant plans shall rely on preventive and treatment methods that include:

(1) use of cultural practices, sanitation, mechanical management, structural repairs, habitat manipulation, biological controls and other nonchemical methods to prevent and manage pests to threshold levels;

(2) use of permitted indoor pesticides and permitted outdoor pesticides only after nontoxic practices have been exhausted; and

(3) requirements for regular evaluations of the effectiveness of current pest prevention and management approaches and consideration of additional preventive measures to minimize any chemical use.

C. At the beginning of each school year, each public school and the coordinator shall include a notice of the public school's or coordinator's plan on the public school's or school district's website or through other forms of notification provided for in the Public Schools Pesticide Management Act.

D. The school district shall annually review its ecological pest management program to evaluate how well its pest prevention and management objectives are being met and to identify areas where improvement is needed. The report of the review shall be provided to the local school board and made available to the public upon request. Summary information and notice of the annual report's availability shall be provided along with the notice of the school district's ecological pest management program. The report shall contain the following information for each public school and administrative space:

(1) quantities of each pesticide by type applied during the year;

(2) target pests for each pesticide used;

(3) cost of the school district's ecological pest management program for the year in review;

(4) number of emergency pesticide applications made during the year;

(5) nonchemical pest prevention and control measures used; and

(6) the public school and administrative spaces plans for the coming year.

E. Each school district shall provide an opportunity, at least once each year, at a regularly scheduled board meeting, for the coordinator to report on public school and administrative spaces plans and public comments received regarding the plans.

F. Each public school, and the coordinator for administrative spaces, shall maintain on-site for a period of not less than three years public records of permitted and emergency pesticides used each year."

SECTION 5. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] PESTICIDE USE--EMERGENCY PESTICIDE APPLICATION--LIMITATIONS--NOTICE.--

A. Except as provided in the case of a public school health emergency declaration, the only pesticides that are allowed for use in or on public school or administrative spaces are permitted indoor or permitted outdoor pesticides. Nontoxic practices shall be used as the preferred method of pest management, and permitted pesticides shall be used on an ad hoc basis only after nontoxic practices have proven to be ineffective for the particular pest at a given site.

B. If a school district suspects that it has a public school health emergency, it shall contact the department of environment and the appropriate public health official. After consultation, if the public health official determines that a public school health emergency exists, the public health official shall issue a public school health emergency declaration for the use of emergency pesticides. The declaration shall:

(1) specify the public health threat;

(2) find that permitted indoor or outdoor pesticides do not provide adequate public health protection;

(3) list the emergency indoor or outdoor pesticides to be used to control the public health threat; and

(4) specify the duration of the declaration.

C. Only public applicators or commercial applicators licensed by the New Mexico department of agriculture are allowed to apply emergency pesticides.

D. The emergency pesticide application shall not occur in an area occupied or used at the time of application or within the twenty-four-hour period after the application.

E. The public school, or the coordinator for administrative spaces, affected by a public school emergency health declaration shall provide notice of the public school emergency health declaration and the application of emergency pesticides to parents, school personnel, surrounding neighborhoods and the general public by written notice sent home with students and notification through the public school's or school administration's email lists of parents and school personnel and on its website, its social media account, if applicable, and the general media in the community. The public school or coordinator shall post a notice on the building or grounds to be treated with emergency pesticides before the emergency application occurs. Notifications shall be provided at least forty-eight hours in advance of the emergency pesticide application, if practicable, or as soon as possible if a shorter time frame for emergency application is required. Website, social media and local media notifications shall continue for at least twenty-four hours after the emergency pesticide application. Notices shall include the:

(1) location of the emergency pesticide application;

(2) date or dates of application;

(3) target pest;

(4) name of the active ingredient of the pesticide being applied;

(5) brand name of the product and copy of the product label; and

(6) name and contact information of the coordinator and a statement that the coordinator is available to parents and school personnel for information and comment.

F. The coordinator shall work with the public schools and the school district to modify applicable plans and the ecological pest management program to minimize future applications of emergency pesticides."

SECTION 6. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EXEMPT PESTICIDE MATERIALS AND ACTIVITIES.--The following pesticidal materials and activities are exempt from the provisions of the Public Schools Pest Management Act:

A. commercial agriculture;

B. pet supplies, such as shampoos and tick and flea treatments, when used in the manner specified by the manufacturer;

C. disinfectants, germicides, bactericides, miticides and virucides when used in the manner specified by the manufacturer;

D. swimming pool supplies when used in the manner specified by the manufacturer;

E. general use paints, stains and sealants when used in the manner specified by the manufacturer;

F. rodent control supplies when used in bait boxes that prevent secondary poisoning; and

G. management of noxious weeds pursuant to the Noxious Weed Control Act, the Noxious Weed Act of 1963 or the Noxious Weed Management Act."

SECTION 7. A new section of Chapter 74 NMSA 1978 is enacted to read:

"[NEW MATERIAL] PUBLIC GROUNDS--LIMITING PESTICIDE USAGE.--

A. As used in this section:

(1) "division" means the environmental protection division of the department of environment;

(2) "emergency pesticide" means a pesticide that is not a permitted outdoor pesticide and that is more toxic than a permitted outdoor pesticide;

(3) "local government" does not include school districts or charter schools;

(4) "permitted outdoor pesticide" means:

(a) a pesticide classified by the United States environmental protection agency as a minimum risk pesticide; and

(b) a pesticide containing no active ingredients other than those found in the national organic program's national list of allowed and prohibited substances;

(5) "pest" means an insect, rodent, nematode, fungus, weed or other form of terrestrial or aquatic animal or plant life or a virus, bacteria or other microorganism that has a deleterious affect on humans, animals or plants;

(6) "pesticide" means a substance or mixture of substances intended to prevent, destroy, repel or mitigate a pest, including herbicides, insecticides, fungicides, plant growth regulators, defoliants and desiccants, but excluding cleaning products that do not contain pesticidal agents;

(7) "public grounds" means real property owned, managed or leased by the state or a local government that is used for outdoor recreation or exercise, street medians, public rights of way and other outdoor real property used by the public;

(8) "public grounds emergency" means an unpredictable outbreak or infestation of a pest that has been determined by a public health officer to be a disease vector or known public health threat that has not been controllable by nontoxic practices or by permitted pesticides;

(9) "public grounds emergency declaration" means an order issued by a public health officer of the department of health for the state or the public health officer designated by the governing body of a local government to declare public grounds emergencies, which declaration allows for the use of emergency pesticides; and

(10) "public health officer" means a person who is employed by a public health agency of the state or local government.

B. Except as otherwise provided in this section, only nontoxic practices or permitted outdoor pesticides may be used on or applied to public grounds.

C. When a state agency or local government suspects that it has a public grounds emergency, it shall consult with the division, the New Mexico department of agriculture and the public health official. After consultation, the public health official may issue a public grounds emergency declaration that:

(1) specifies the public health threat;

(2) finds that permitted outdoor pesticides do not provide adequate public health protection;

(3) lists the emergency outdoor pesticides to be used to control the public health threat; and

(4) specifies the duration of the declaration.

D. Only public applicators or commercials licensed by the New Mexico department of agriculture are allowed to perform an emergency pesticide application on public grounds.

E. Except as otherwise provided in this subsection, prior to an emergency pesticide application, the public health officer shall give the public forty-eight hours' notice through reasonable means, including the websites and social media accounts of the public health agency and the state or local government agency responsible for the public grounds; provided that if the forty-eight hours' notice is not practicable, physical notice shall be posted at the public grounds being treated as soon as possible but no later than the day of the emergency pesticide application and the public health agency shall ensure broader notification to the public through notification of media in the community from the time of initial notification to at least twenty-four hours after the emergency pesticide application. A copy of each notice of an emergency pesticide application shall be maintained by the state or local government for a period of five years. The notice shall include the:

(1) location of the emergency pesticide application;

(2) date or dates of application;

(3) nature of the public health threat and the target pest to be eradicated;

(4) name of the active ingredient of the unpermitted pesticide;

(5) brand name of the product and a copy of the product label; and

(6) name and contact information of the state or local government agency that controls the public grounds.

F. The following pesticidal materials and activities are exempt from the provisions of this section when used in the manner specified by the manufacturer of the materials:

(1) commercial agriculture;

(2) pet supplies, such as shampoos and tick and flea treatments;

(3) disinfectants, germicides, bactericides, miticides and virucides;

(4) swimming pool supplies;

(5) general use paints, stains and sealants;

(6) rat and rodent control supplies when used in the bait boxes provided by the manufacturer to prevent secondary poisoning; and

(7) management of noxious weeds pursuant to the Noxious Weed Control Act, the Noxious Weed Act of 1963 or the Noxious Weed Management Act."

SECTION 8. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2021.

- 16 -