SENATE, No. 495

SECTION 1. Chapter twenty-one A, as appearing in the 1990 Official Edition of the Massachusetts General Laws, is hereby amended by inserting after paragraph twenty-nine of section two thereof the following new paragraph:-(30) consistent with the statutory responsibilities, implement the mosquito management program established pursuant to Chapter 252.

SECTION 2. Chapter two hundred and fifty-two entitled IMPROVEMENT OF LOWLAND AND SWAMPS is hereby repealed and replaced with the following:

CHAPTER 252.  An Act: Providing for the Public Health by Managing Mosquitoes in the Commonwealth.

Section 1. The term "board" means the mosquito management board created in section four.

The term "council" means the governing body of the mosquito management districts created in section seven.

The term "disease vector" means any species of mosquito which contributes to the amplification or transmission of any disease including Eastern Equine Encephalitis (EEE) or West Nile Virus (WNV) among human or non-human populations by injection of salivary gland fluid during biting.

The term "district" means the mosquito management district created in section seven.

The term "IPM" (Integrated Pest Management) means the selection, integration, and implementation of pest control based on predicted economic, ecological, and epidemiological consequences. IPM seeks maximum use of naturally occurring pest control including weather, disease agents, predators and parasitoids. In addition, IPM utilizes various biological, physical

or chemical controls and habitat modification techniques. Artificial controls are imposed only as required to keep a pest from surpassing tolerable population levels predetermined from accurate assessments of the ecological, public health, and economic costs of the control measures.

The term "IPM mosquito management plan" means the long term plans developed by the mosquito management board and councils under sections five and eight.

The term "nuisance" means mosquitoes which may cause irritation or discomfort to humans, but do not pose and are not expected in the immediately predictable future to pose a significant risk to public health in Massachusetts.

The term "pesticide" means a substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, and any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; provided that the term "pesticide" shall not include any article that is a "new animal drug" within the meaning of section 201(w) of the federal food, drug and cosmetic act (21 U.S.C. Section 321 (w)), or that has been determined by the secretary of the United States department of health, education and welfare to be a new animal drug by a regulation establishing conditions of use for the article, or that it is an animal feed within the meaning of section 201(x) of such act (21 U.S.C. Section 321(x)).

The term "source reduction" means a method of managing mosquitoes that relies on reducing or eliminating the ability of larval habitats to support the development of larvae.

Section 2. When it is necessary for the purpose of protecting public health or for other purposes to control or abate mosquitoes, or when it is necessary to control greenhead flies, measures shall be taken as specified in this chapter.

Section 3. There is hereby established within the executive office of environmental affairs a mosquito management office which shall be administered by the secretary. The secretary shall appoint all necessary employees within the mosquito management office, except as may be otherwise provided by law.

The secretary shall direct the mosquito management office, consistent with state law, and policies and directives of the board, to adopt, and from time to time amend rules, regulations, procedures, standards, guidelines, and policies which shall constitute the Massachusetts mosquito management program.

Section 4. There shall be in the mosquito management office a mosquito management board. The function of the board shall be to regulate and oversee all disease vector mosquito and related nuisance organism management activities in the commonwealth; to prepare a state IPM mosquito and greenhead fly management plan; to review and certify IPM mosquito management plans submitted by councils; to create policies and procedures for mosquito management to control vector-borne diseases; to advise the governor when a public health emergency arises due to disease-bearing mosquitoes imminently threatening to public health; to authorize and carry out investigations and keep records; to carry out disease-bearing mosquito management programs when a large area of the state is affected; to develop policies and procedures to insure that all mosquito management activities comply with the intent of chapter 131, sections 40 and 40A; chapter 130, section 105; chapter 91, sections 1 through 63; and chapter 40, section 5, as applicable; provided, however, the usual and customary activities associated with the IPM mosquito and greenhead fly management plan, as certified, shall not require filings or hearings under chapter 131, section 40, but rather simple notice to the conservation commission of any community of proposed actions in any regulated wetland; and to carry out all other powers and functions granted to the board by this chapter.

The board shall be comprised of eleven members: the secretary of the executive office of administration and finance or a designee; the secretary of the executive office of environmental affairs, or a designee; the commissioner of the department of public health, or a designee; the commissioner of the department of environmental protection or a designee; the commissioner of the department of conservation and recreation or a designee; the commissioner of the department of agricultural resources or a designee; the commissioner of the department of fish and game or a designee; one person representing an  established statewide environmental protection organization; one person either an organic farmer, a beekeeper, or a fish farmer; an entomologist; and an engineer with expertise and experience in hydrology and soil conservation; the latter four members to be designated by the governor of the commonwealth and serving conterminously with the governor. The board shall receive no additional compensation for service on the board, but shall be entitled to their reasonable traveling and other expenses incurred in the performance of their duties. The board may draw staff support from the departments represented with the consent of the respective commissioners.

The board shall meet at the call of any two members or at the call of the member representing the secretary of environmental affairs who shall serve as the board chair, and the board may elect a secretary and other officers as they find necessary, but not less than bimonthly.

The board may purchase, lease, or rent equipment and supplies to be distributed to the regional mosquito control councils to assist in the performance of their duties and to facilitate the integrated pest management of mosquitoes or greenhead flies. Such supplies may be made available to councils by petition to the board, but shall remain the property of the board.

Section 5. The board shall prepare a state IPM mosquito and greenhead fly management plan.  Any action taken under this chapter, other than emergency actions under the conditions of this section, section 9, and section 15, shall be included in the IPM mosquito management plan. Before adoption of the IPM mosquito management plan, a public hearing shall be held by the board in each of the existing mosquito control districts. In addition to the details of management activities the IPM plan shall include:

A. A determination by the Natural Heritage and Endangered Species Program in the department of fish and game that  action will result in no alteration, as defined under 131A, to any priority habitat or take of rare, threatened, endangered, or species of special concern state or federally listed species;

B. Reasonable measures by the board to assure that the action proposed will result in no  runoff of any pesticide to any Ocean Sanctuary under chapter 132A, sections 13 through 16 and 18, or specific actions to be taken to minimize detrimental impacts; and

C. Reasonable- measures by the board to assure that the proposed action will result in no detrimental effect on soils, sediments, surface waters or groundwater, or specific actions to be taken to minimize detrimental impacts.

The board shall complete this state IPM mosquito management plan within six months of the enactment of this act.

The board may prescribe or prohibit by regulation: the use of materials, rates of application, methods and timing to be used in the application of any material or agent for the management of mosquitoes where necessary to protect public health or to prevent injury to plants or animals and other environmental resources including pollinating insects, birds, and aquatic life. The board shall provide guidelines for reviewing construction, development, and drainage plans with the goal of avoiding the creation of mosquito-borne disease vector and nuisance mosquito habitats. In issuing guidelines or regulations, the board shall consider pertinent research findings, recommendations and laws or regulations of other agencies of the commonwealth, other states, and of the federal government, pertinent to the best interests of public health and the environment.

Before issuing regulations the board shall hold at least three public hearings in different regions of the commonwealth. The board shall see that proper notice is given to the public, local boards of public health, and local conservation commissions, of the time and place of the hearings.

Mosquito management programs shall be accompanied by a public education campaign emphasizing appropriate actions that individual citizens can take to reduce their personal risk by avoiding contact with mosquitoes.

Within six months of the enactment of this act the board shall complete an updated emergency arbovirus response plan to be exercised by the commissioner of the department of public health under section fifteen, in case of public health emergency or the prediction of an impending emergency based on field evidence. The emergency response plan shall specify IPM measures which are to be utilized and conditions for their use, public notice to be given, procedures for coordination among agencies of state and municipal governments and the districts, and investigations and environmental and human monitoring to be made and records to be kept. They shall be reviewed and revised whenever useful or necessary, but no less frequently than every two years.

Following any declaration of an arbovirus public health emergency and within six months after termination of the emergency the board shall complete for the public record a report of actions taken during the emergency, including, at a minimum:

A. The target organism(s), their estimated population size(s), records of EEE or other mosquito-borne disease prevalence and infection rate, rainfall and temperature data, and an analysis of the geographic patterns indicated by these data, both prior to and following management activities;

B. Agents, chemicals, or source reduction activities used in the treatment, and times, rates and means of application;

C. Records of incidence of EEE or other mosquito-borne disease and the effectiveness of the treatment in preventing the disease, the total number of confirmed human cases of EEE or other mosquito-borne disease, the total number of horses and other animals confirmed as having been affected by EEE or other mosquito-borne disease, the number of deaths in humans and other animals, the kinds of illness and disabilities, noting term and nature of sickness, recuperation, and rehabilitation in humans;

D. Effects of the treatments on soils and water, and on flora and fauna of the areas treated and other areas affected;

E. Maps of the land area treated with indications on the maps of localities treated and flight paths if aerial adulticide treatment is utilized.

F. The board will complete comparable IPM and emergency response plans for any mosquito-borne disease it addresses.

The report shall make recommendations for changes in regulations or procedures for future interventions.

The board, through the secretary of environmental affairs, shall make an annual report which, among other things, shall document and compile figures on the formulations and quantity of pesticides used for any IPM mosquito management program, and which shall describe the intended IPM strategy.

Section 6. In carrying out the provisions of this chapter, the board may employ necessary engineers, scientists, assistants, or other agents, who may enter on premises which the board desires to survey or examine. The board may provide technical assistance to any council in the development and implementation of a mosquito management program utilizing IPM.

The board shall carry out field investigations and other determinations of the need, method, and procedures for managing mosquitoes as deemed advisable, including all significant potential health and environmental impacts of the proposed management measures. Board members and their agents are hereby authorized to enter or examine at any reasonable time those premises which the board considers necessary to carry out its responsibilities.

Section 7. A council shall be established for each district and shall be called the ___________ mosquito management council. The council is declared to be the corporate authority of the district and shall exercise all the powers and control all of the affairs and property of the district. Any mosquito management council shall be comprised of at least five members, all of whom must either live or work in the district. The members of the council are to be appointed by the mosquito management board and shall comprise: one person a representative of an environmental protection or conservation organization or a municipal conservation commission; one person, a member of a municipal board of health or a health care provider; one person a representative of the executive office of a municipality; and two citizens at large preferably with some background in engineering and/or law, and/or chemistry, and/or biology, or any other experience or education which would have relevance to mosquito control and management.

The mosquito management board shall monitor the operations of the councils and shall require adherence to this act and to the council's certified IPM mosquito management plan.

Each district council shall appoint a superintendent who shall be a person of skill and experience or knowledge in the field of mosquito management and who shall be committed to the use of IPM for the purpose of managing mosquitoes and controlling EEE and other mosquito-borne diseases. Existing superintendents, provided they meet these conditions, as well as existing staff and employees, may continue in their present capacity, subject to adherence to the regular conditions of workplace and employment. The district superintendent, with the approval of the council, shall be empowered to hire sufficient staff and employees and purchase materials to fulfill the requirements of the council's certified IPM mosquito management plan. Employees and staff of the council shall not be subject to the provisions of chapter 30, section 9A or chapter 31.

By fulfilling the provisions of this section and obtaining certification of the board to that effect, the current mosquito control projects known by their identifying names as the Berkshire county mosquito control project, the Bristol county mosquito control project, the Cape Cod mosquito control project, the central Massachusetts mosquito control project, the east Middlesex mosquito control project, the Essex county mosquito control project, the Norfolk county mosquito control project, the Plymouth county mosquito control project, and the Suffolk county mosquito control project may remain in existence along with their funding mechanisms as provided for by their enabling acts, voluntary trusts, or other legal instruments. Commissioners of these projects and their employees may continue in their capacity under their existing terms of appointment, as members of the newly formed council, and may be reappointed as members of the council, provided they meet the criteria for membership established by this section.

Any municipality, two or more municipalities, or any county or two or more counties in Massachusetts, may, by obtaining certification of the board, become a mosquito management district. The district shall be titled the _________________ mosquito management district. Notice of the formation of a district must be filed with the secretary of state and the board with a description of the proposed boundaries of the district.

The superintendent shall keep regular records of all proceedings and financial affairs which shall be open to inspection by the board or by the council at all times; and by the public at reasonable hours. The council shall have ultimate responsibility for the efficient financial and sound environmental management of the district and shall be required, at the discretion of the board, to audit its finances and submit said audit to the board for its review and oversight.

The federal government, the commonwealth or its municipalities, or their administrative agencies, not members of a mosquito management district, may request mosquito or greenhead fly management services from the district, which the council may provide at a fee. That fee will, at a minimum, pay the full cost of the mosquito or greenhead fly management services. The recipient of the services shall pay the full fee. Any funds received for this purpose in excess of those required to provide the requested services shall be returned to the purchaser.

The cost of district services may be shared by the board if the board deems, and in proportion as the board determines, that the service is in the larger interest of the commonwealth.

All amounts for which a municipality may be liable in connection with the above may be contributed by persons or bodies politic benefited by the services in proportion to their respective benefits or otherwise.

Mosquito management districts may also conduct greenhead fly programs within their districts. Any mosquito or greenhead fly management activity shall comply with the IPM management plan pursuant to section eight.

Section 8. Within ninety days from the formulation of the board's IPM plan, or from the establishment of a district, the council shall develop and submit to the board an IPM mosquito management plan. The district's IPM plan shall be constituted either by adopting the board's IPM mosquito management plan, or the board's plan with modifications. The board shall be allowed thirty days to approve, disapprove or modify the district's plan. If the board disapproves or requires amendment of the plan submitted by the council, the council shall have thirty days to

make those amendments and resubmit the plan to the board for certification. The plan is adopted for the district upon certification by the board. Thereafter the plan shall be reviewed, amended if necessary, and submitted for recertification at minimum every three years, or more frequently if the council chooses.

With the prior written certification of the board of the district's IPM mosquito management plan, as provided for in this section, the council shall have the power to take all necessary or proper steps for the management of mosquitoes within the district subject to the provisions of sections two and seven above; to purchase supplies and materials and to employ labor, assistants, scientists, or consultants as may be necessary or proper in furtherance of the objectives of the same and generally to do all things, subject to the provisions of section two above, necessary or incident to powers hereby granted and to carry out the objectives specified herein.

Any action taken under this chapter shall be included in the IPM mosquito management plan. Before adoption of an IPM mosquito management plan, a public hearing shall be held by the council. A hearing required by a federal, state, or municipal agency on the program will suffice for purposes of this section. In addition to the details of management activities the IPM plan shall include:

A. Review under the Massachusetts Endangered Species Act chapter 131A by the Natural Heritage and Endangered Species Program in the department of fisheries and wildlife;

B. Reasonable measures by the council to assure that the action proposed will result in no detrimental runoff of any pesticide to any ocean sanctuary under chapter 132A, sections 13 through 16 and 18, or specific actions to be taken to minimize detrimental impacts; and

C. Reasonable measures by the council to assure that the proposed action will result in no detrimental effect on soils, sediments, surface waters or groundwater, or specific actions to be taken to minimize unavoidable impacts.

Section 9. The board and any council shall keep complete records of its activities and their effects on public health and the environment. The board shall promulgate regulations for record- keeping necessary for financial accountability, normal procedural records, records of actions, records of field data or treatment results, and public health records necessary for effective, efficient operations of mosquito management; and provided, further, that any such regulation and the activities which they occasion, shall be paid by the commonwealth of Massachusetts, to the extent that such regulations impose new obligations on existing mosquito districts as of the effective date of passage of this act. This record- keeping shall include at a minimum:

A. Identification, record-keeping, and amount of source reduction, or if a chemical or biological pesticide, chemical or agent is used, the times, rates, and means of application;

B. Scientific or other evidence obtained or used to implement any IPM mosquito management program, or any evidence contrary to the findings and programs of the board or council.

C. Health and environmental benefit/risk assessments for any IPM mosquito management programs of the board;

D. Population data on mosquitoes collected before and after carrying out any management program;

E. A catalogue with locations indicated on maps of the United States Geological Survey or other maps, whichever is more detailed and accurate, of sensitive areas including but not limited to wetlands; homes; schools; hospitals; rare, endangered or special concern species habitat; open water such as lakes and streams, estuaries and water supplies;

F. Procedures for IPM techniques used in any program of mosquito management;

G. Procedures for coordination of responsibility among the pesticide bureau, state and local health boards, the state executive office of environmental affairs and department of environmental protection, municipal conservation commissions, the board and council, and other appropriate agencies and organization;

H. Records resulting from and reporting the results of investigations of non-target environmental, wildlife, and health effects of any IPM mosquito management program;

I. Records keyed to maps specifying locations of areas treated by large-scale aerial application, the date and time of the treatment, identification and amount of any chemical or agent or source reduction activity.

The board shall include summaries of this information in an annual report.

Application of any pesticide or mosquito management agent shall be made only by licensed applicators as warranted by chapter 132B and regulations promulgated by the department of food and agriculture.

Aerial application of adulticide pesticides shall be carried out only in conformity with the state emergency response plan and after a written and published certificate of determination by the board that mosquito populations pose an imminent hazard to public health, stating in the certificate the period of time, not to exceed thirty days in any year, during which aerial application is authorized, the area(s) to be treated, and the specific pesticide or other mosquito management agent to be used. Any aerial adulticide application of pesticides over an area encompassing the whole or portions of more than one mosquito control district shall require an emergency declaration under section 15.

Section 10. Any person aggrieved by a determination by the board or any council may request an adjudicatory hearing before the board under the provisions of chapter 30A. The determination shall contain a notice of right to request a hearing and may specify a time limit, not to exceed twenty-one days, within which persons may request a hearing before the board under the provisions of chapter 30A. If no such request is timely made, the determination shall be deemed assented. If a timely request is received, the board shall within a reasonable time hold a hearing and comply with the provisions of chapter 30A. In hearing so held the board shall designate a hearing officer to preside over the hearing, to assemble an official record thereof, and to render a tentative decision as provided in paragraph (7) of section 11 of chapter 30A. The board shall make the final decision on the basis of the official record and tentative decision so rendered.

If in making a determination which may be the subject of an adjudicatory hearing the board finds that an imminent hazard or an unreasonable adverse effect on the environment could result pending the conclusion of adjudicatory hearing, the board may order that the determination shall become provisionally effective and enforceable immediately upon issuance, and shall remain so notwithstanding and until the conclusion of any adjudicatory hearing procedures timely requested. In the event that the department has thus made a determination provisionally effective, it may later, at its discretion, shorten the duration of or waive the order.

As part of a final decision in an adjudicatory proceeding held under the provisions of this section, the board may specify a reasonable time period within which the matter may be barred from further proceedings before the board. In the event that the board has specified a time period, the board may later, at its discretion, shorten or waive such period.

A person aggrieved by a final adjudicatory determination of the board may obtain judicial review thereof pursuant to the provisions of chapter 30A.

Section 11. Whenever any municipality shall commence any activity set forth in sections six and seven without first having obtained the written consent of the state board, or violates any rule or regulation of the board, the board shall have the power by written notice to order the violator to cease and desist immediately. If the violator does not conform to the board's order, the board may bring prosecution by complaint and warrant, and prosecution shall be made in the district court of the state. The board, without being required to enter into any recognizance or to give surety for cost, may institute proceedings in the name of the state. It shall be the duty of the attorney general to conduct the prosecution of the proceedings brought by the board. The board may obtain relief in equity or by prerogative writ whenever that shall be necessary for the proper performance of those duties.

Section 12. Any municipality or subdivision thereof, lying adjacent and contiguous to a district, and not a part of another district, may, if willing, be annexed by appropriate action to that district upon the proper action by the council.

Section 13. Any district organized under the provisions of this act, may be dissolved and discontinued by appropriate action of either the state board or the council, or as provided in their governing enabling act, voluntary trust, or other legal instrument. Notice of dissolution shall be filed with the secretary of state and the state board.

Section 14. Any municipality or subdivision thereof which lies within a district may be disconnected in accordance with their separate governing enabling act, voluntary trust, or other legal instrument, by the decision of its town meeting, city council, selectmen, or other governing body, from the district upon petition by the municipality or subdivision and action by the council.

Section 15. Emergency powers shall be exercised only after a public health emergency is declared by the governor of the commonwealth on the recommendation of the commissioner of the department of public health, or on the recommendation of the board, accompanied by a document detailing the evidence or the basis for the professional judgment that a public health emergency exists, the target organism, the expected management agents or chemicals and procedures to be used, and the land areas to be so treated. Nothing in this act shall prevent the commissioner of the department of public health in an extreme emergency to the public health from exercising powers provided in sections two through nine inclusive. The state of public health emergency shall be terminated by a declaration by the governor of the commonwealth.

Section 16. All meetings of the board or councils shall comply with the provisions of the open meeting laws under the administrative procedure act, chapter 30A, section 11A and one-half. All regular board or council meetings shall be open to the public and all resolutions, actions and records of its proceedings shall be open to public view.

Section 17. Any increase in cost for the control and management of mosquitoes and greenhead flies resulting from the promulgation of this act shall be directly appropriated by the commonwealth of Massachusetts.

Section 18. The board shall provide a report to the house and senate committees on ways and means and the joint subcommittee on natural resources and agriculture by April first detailing all encumbrances, expenditures and projected expenditures of funds and providing projections for needs and associated costs for the next fiscal year.

Section 19. This act shall take effect upon passage.