Friday, October 18, 2013

Bill 2491 in its Final Incarnation

Bill 2491 — the pesticide/GMO disclosure measure — went through additional amendments prior to the Kauai County Council's 6-1 vote for approval in the wee hours of Oct. 16. 

Further clarified is who is using what:

In 2012, restricted use pesticides were used on Kaua‘i by agricultural operations (7,727 pounds and 5,892 gallons, or 13%), county government operations (28,350 pounds and zero (0) gallons of Chlorine Liquefied Gas for water and wastewater treatment, or 49%), and
non-government operations for structural pest control termite treatment (25,828 pounds and 20 gallons, or 38%).

Regarding the “right to know:”

In the interest of protecting the health of the people and fragile natural environment of the County of Kaua‘i, the people of the County of Kaua‘i have the right to know what pesticides are being used on a significant scale, and what [as opposed to the earlier “whether or not”] genetically modified organisms are being grown within the jurisdiction of the County of Kaua‘i. The people of the County of Kaua‘i have the right to know the likely potential impacts on their human health, and the health of their environment.

A new provision was added:

It is the intent of the County to collaborate with the State of Hawai‘i Department of Agriculture to support the implementation and enforcement of this Article.

And new definitions were added for nurse practitioners and physicians, as well as for:

Crop” means a plant or product thereof that can be grown and harvested for subsistence, profit, or research.

Ground cover” means small plants such as salal, ivy, ferns, mosses, grasses, or other types of vegetation that normally cover the ground and includes trees and shrubs less than six (6) inches in diameter.

Significant effect” means the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State’s environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State.

In regard to disclosure requirements, the final bill states, “all commercial agricultural entities that purchased or used in excess of five (5) pounds or fifteen (15) gallons of any single restricted use pesticide during the prior calendar year to disclose the use of all pesticides of any kind during the following calendar year.” The first draft required disclosure the same year. Revocable permit holders also must now be given pre-application notification.

A new provision was added for “Pesticide Post-Application Urgent/Emergency Care Disclosure:”

Each commercial agricultural entity shall establish an emergency response hotline to be made available to any licensed physician or nurse practitioner practicing in association with a clinic, medical facility, or emergency center. Within six (6) hours of a request from any such licensed physician or nurse practitioner who provides a documented medical need, the commercial agricultural entity must provide the following information regarding all actual pesticide applications related to the alleged incident: date; time; field number; total acreage; trade name of pesticide used; EPA registration number; active ingredient of pesticide used; gallons or pounds of pesticide used; and temperature, wind direction, and wind speed at time of pesticide application.

Annual disclosure reports will be required for all genetically modified organisms that are grown, with the first due on the date this ordinance shall take effect. The crops will be identified generally, (e.g., “GMO Corn” or “GMO Soy”) and not by specific traits, or whether they are experimental.

The park buffer zone was expanded to 250 feet from the 100 feet in draft one, with the following exceptions for Kauai Coffee:

Regarding a mature orchard, the crops of which grow in a hedge-like manner creating a windbreak effect, if pesticide application occurs between crop rows from a source no higher than two (2) feet from the ground, for the purpose of eliminating weeds in the ground, then no crops may be grown within 75 feet of any park.

As for buffer zones around houses, no crops may be grown within 500 feet of any dwelling, unless:

The dwelling is owned by the landowner, and occupied by the landowner or a family member of the landowner, and there are no other dwellings occupied by third-parties within 500 feet of the landowner dwelling, then there shall be no pesticide buffer zone restricting growing of crops in proximity to the landowner dwelling; or

Regarding a mature orchard, the crops of which grow in a hedge-like manner creating a windbreak effect, if pesticide application occurs between crop rows from a source no higher than two (2) feet from the ground, for the purpose of eliminating weeds in the ground, then no crops may be grown within 75 feet of any dwelling.

The roadway buffer was changed significantly from “No pesticide of any kind may be used within 100 feet of any public roadway, except that this restriction shall not apply to any existing orchard” to:

No crops may be grown within 100 feet of any public roadway, except that pesticides may be used within 100 feet of any public roadway if the commercial agricultural entity posts notification signage on land that is adjacent to the public roadway no sooner than twenty-four (24) hours before the scheduled application. Roadway signs shall be located at the start and
end of the field along the public roadway where application will occur, shall be of a size that is legible from vehicles traveling at the posted speed limit, and shall comply with all State of Hawai‘i Department of Transportation requirements.

Protection for waterways was also softened from “no pesticide of any kind may be used” to “no crops may be grown” within 100 feet of any shoreline or perennial waterway that flows into the ocean. The provision does not apply to any irrigation ditch or drainage canal that does not directly flow to the ocean.

One addition was made to the provision mandating an Environmental and Public Health Impacts Study:

The EPHIS may make recommendations that include, but are not limited to, possible actions the County may take in order to address any significant effects, public health impacts, or both.

If signed by the mayor, the bill will take effect nine months after its approval, rather than the six months in draft one.

(Comments accepted at Kauai Eclectic.)

Friday, October 11, 2013

Nakamura New County Managing Director

Nadine Nakamura, vice chair of the Kauai County Council, will be resigning her seat to become the new county managing director, effective Nov. 1.

Nadine was first elected to the Council in 2010 and emerged as the top vote-getter in the 2012 race. She holds a master's degree in urban and regional planning from the University of Hawaii and has more than 20 years' experience as a planner and facilitator, skills that will serve her well in managing the county and its relationship with the Council.

She takes the place of Gary Heu, who several months ago announced his resignation, effective Oct. 31.

Nadine's departure will leave a significant void on the Council, where she was known for pragmatic, thoughtful decisions and careful attention to detail.

Her colleagues will choose her successor. According to the County Charter:

In the event a vacancy occurs in the council, the remaining members of the council shall appoint a successor with the required qualifications to fill the vacancy for the unexpired term. If the council is unable to fill a vacancy within (30) days after its occurrence, the mayor shall make the appointment to such vacancy.

The question now is who the Council will choose as her replacement. Former Councilman Kipukai Kualii finished eighth in the 2012 race.

Comments accepted at Kauai Eclectic.

Tuesday, October 8, 2013

Mayor to Council on Bill 2491: Try Wait

Kauai Mayor Bernard Carvalho today urged the County Council to defer action on Bill 2491 for at least two months, citing concerns about the county's ability to implement and enforce the controversial pesticide disclosure and buffer zone ordinance.

The extra time also would allow the county to continue meeting with the state, which currently has authority over health and safety issues related to pesticides. But due to insufficient funding, state monitoring, inspection and enforcement actions have lagged.

Carvalho said he met yesterday with Russell Kokubun, director of the state Department of Agriculture, and key members of the governor's cabinet. “They are committed to working with our county on a menu of opportunities,” the mayor said, and “when we come up with things we really need, the support will be there.”

The Council recessed its hearing until 9 a.m., Tuesday, Oct. 15 without taking action today.

Managing Director Gary Heu told the Council the county would need to hire consultants and inspectors and conduct additional staff training in order to implement the law, which takes effect within six months of passage. Rules must also be drafted and vetted by the public and Small Business Board of Review, a process that could take nine months to a year.

We don't have the manpower to take on new complex management tasks,” Heu said, estimating it would require a minimum of two fulltime employees, several consultants and possibly additional staff in the prosecutor's office to implement and enforce the bill. The anticipated cost would be about $1.479 million the first year.

Councilman Gary Hooser, a co-sponsor of the bill, noted that a two-month deferral would move the issue into the start of the legislative session and an election year — a timing scenario he'd hoped to avoid when introducing the bill earlier this year.

Hooser dismissed concerns about the difficulties of implementing and enforcing the bill, saying, “I'm trying to think about what's so complex.” He also noted that “it's not uncommon for laws to be adopted without rule-making in place.”

Councilman Tim Bynum, the other co-sponsor, also downplayed enforcement issues, noting that the chemical/seed companies “would have to doctor their own records to violate these laws. These are business people. They aren't going to do that.”

However, the Abuse Chronicles investigation revealed that Kauai real estate companies did doctor their reservation records to help property owners obtain vacation rental (TVR) permits. Additionally, rules required under the 2009 TVR ordinance were never even drafted, much less adopted.

Heu said he thought rules for 2491 need to be in place quickly because “I think there would be strong calls for action the minute it is approved.” The county also anticipates fielding significant complaints once the bill is passed, he said, "and possibly some complaints that don't deserve our serious attention."  He urged the Council to add guidelines for the public in making complaints and penalties for frivolous complaints. He also asked for an amendment to allow the DOA to participate in inspection and enforcement.

The Council also needs to clarify its legislative intent, Heu said. “Is it the vision of this body that [enforcement] is complaint-based, or proactive on the part of the Administration? What would trigger inspection is very unclear.”

Councilwoman Nadine Nakamura said that given the timing of the county budget and lengthy Civil Service hiring processes, “under a best case scenario, you can begin enforcement in April 2015.” She followed up by saying, “There might be some snickering in the crowd, but I'm just speaking realistically.”

The bill includes buffer zones and disclosure primarily because citizens are concerned about “pesticide laden dust and the spray drift,” said Councilman Ross Kagawa. “Whose gonna do that segment? Will Department of Health do that, or county personnel, to determine if homes are being affected? It's the state's responsibility. They have the medical determine health effects. Are we working with the state DOH as well?”

We have to pull everybody who's responsible to the table and hold everybody accountable, without pointing fingers,” Carvalho said, noting he's been trying to balance the concerns of people who are “emotionally challenged and afraid, and on the other side, working with the business part of it.”

I think what's lacking is a sense of urgency,” Hooser said. “This is urgent. We have physicians who are delivering babies who believe there are more birth defects than in other parts of the community.”

Added Bynum: “Many would say the time for dialog is past. We need some action first and then we can have some dialogue.”

I'm telling you, relationships are important in this,” Carvalho said. “I truly believe we have an opportunity to talk this thing through.”

After Maui state health officer Dr. Lorrin Pang spoke, though not in his official capacity, Nakamura asked why the state hadn't declared a critical health situation if people are being sickened by pesticides.

"We can't act without seeing harm,” Pang replied.

So why should the county?” Nakamura countered.

Because you guys can act precautiously,” Pang said.

Several pro-2491 speakers, including Andrea Brower, pooh-poohed the mayor's estimates on time and cost, saying there's no reason why the bill couldn't be quickly implemented and the corporations should have to pay. Another woman said she didn't think there would be any complaints, so it wouldn't be necessary to have staff to respond. The Babes Against Biotech chick, who flew in from Oahu, angrily threatened to mobilize voters against anyone who voted for a deferral.

Carl Berg, a marine biologist, urged the Council to impose 500-foot spraying buffers from the shoreline, saying that is the nursery area for fish and other marine species. A 250-foot buffer is needed from streams and inland waterways, he said.

Other speakers, some of whom camped overnight to ensure a seat in Council chambers, claimed the bill had not caused any divisiveness on the island.

But Kauai Farm Bureau President Jerry Ornellas disagreed, saying he gets calls every week from small farmers who are being harassed for spraying. Others are concerned about how the bill will impact their operations and the future of ag on Kauai.

It's divided our community deeply,” he said, noting the Kauai Farm Bureau was never consulted before 2491 was introduced. “I don't know who was.”

Ornellas said a better bill could have been crafted, and much of the rancor avoided, “if we'd approached this issue in the spirit of cooperation instead of confrontation. You don't have to start a civil war to get your point across.”

Comments accepted at Kauai Eclectic.

Monday, October 7, 2013

Council to Reconsider TVR Investigation

On Feb. 5, 2013, a Canadian visitor fell or jumped to his death from a riverside deck/dock that had been added, apparently without any building permits, to Kauai Paradise House, a Wainiha transient vacation rental.

Thus began my 20-part Abuse Chronicles series, which scrutinized just 25 of the hundreds of TVR certificates issued by the Kauai County planning department since 2009. Investigations revealed serious irregularities in each and every one, including unpermitted remodeling and the building department's use of questionable formulas to exempt owners from federal flood laws. As a result, many unsuspecting visitors now occupy ground floor bedrooms in the tsunami zone.

Research also disclosed numerous oceanfront TVRs are using cesspools, including some that sleep as many as 10 to 14 guests. This raises serious concerns about ongoing contamination of marine waters with e-coli bacteria, pharmaceuticals and other human waste. Others are vegetating the public beach, and in one case, the county failed to record a beach easement.

Most significantly, however, not one of the Abuse Chronicles property owners submitted all the documents required to prove they were eligible for a TVR certificate. That's right. Not even one met the legal requirements for a valuable TVR certificate, which is issued for the life of the property, with yearly renewals. Yet they were all approved by either the planning department or commission, despite the missing documents.

What's more, all but five were renewed again this year. Following a series of public records requests and delays, Planning Director Mike Dahilig finally released a document that showed his department had renewed 20 of the 25 TVR certificates investigated in the Abuse Chronicles. Those that were not renewed include Kauai Paradise House, Blue Lagoon, Love Shack, Hale Poo and Hale Hoku. It appears they were denied simply because their renewal applications were late. All but one is appealing.

In the meantime, under threat of a County Council investigation, Dahilig has been attempting to organize the TVR files. In the process, he discovered that some 84% are lacking the full documentation to prove eligibility.

Yet according to an opinion from the County Attorney, all of these improperly issued certificates must be allowed to stand because they were approved by former Planning Director Ian Costa and his former deputy, Imai Aiu. That opinion has not been made public. County Attorney Al Castillo confirmed he shared the opinion with Council Chair Jay Furfaro, who reportedly has not shared it with all of his colleagues.

Furthermore, a number of the Abuse Chronicles certificates were renewed before Dahilig got the opinion, and at a time when he publicly claimed his staff was trying to develop a process for renewal and investigating the charges laid out in the series.

On Wednesday, the Council is set to again consider Councilman Mel Rapozo's resolution calling for a special Council investigation into the TVR travesty. In the five months since it was introduced, it has become clear the problems outlined in the Abuse Chronicles are even deeper and more widespread than originally thought.

The Council itself has acknowledged that the planning department willfully failed to properly implement and enforce the TVR ordinances, resulting in not only hundreds of improperly issued certificates, but hundreds of totally illegal TVRs operating openly and with impunity.

And though the Council has repeatedly offered him money to hire extra help, Dahilig still has failed to create a TVR data base that can be reliably used even by his own department. As a result, the public has been entirely shut out of the process. In his most recent email, Dahilig indicated he will be taking a hardball approach to public records requests:

In the future, OIP requests should not reflect questions of how much, how many, and which ones. 

As I have mentioned, my ultimate goal is to have our working database updated for online information and use. As you know, Mike [Laureta] and Marissa [Valenciano] are hard at work with a number of TVR tasks and are spread between many priorities, including information requests which must be responded to within a short timeframe. Once my staff can slog through the database along with the other pressing issues, hopefully it will act as a self-service source for the information you seek and we can avoid charging you.

In the meantime, another worm — the so-called “dead files” — is crawling out of the can. It seems that planning told some folks who applied for TVRs back in 2009-10 to submit additional documentation. And though they did, the department never acted upon their applications. Now some of these injured parties, who weren't given certificates for which they proved themselves eligible, are preparing to sue the county for damages.

Some Council members have expressed concern that an investigation could be construed as a “witch hunt,” while others said they want to move forward, rather than dwelling in the past.

However, the issue before the Council goes much deeper than whether to approve the investigation to dig into the TVR debacle.

The core question now facing the Council is this: If county workers and the Administration can unilaterally decide they do not want to implement and enforce a law, and suffer absolutely no consequences — as evidenced by Mayor Bernard Carvalho's re-election bid — then what is the purpose of the Council and its law-making powers?

Comments accepted at Kauai Eclectic.

Friday, October 4, 2013

Bill 2491 Morphs

PASS THE BILL demanded the bold letters on the red tee-shirts. “Pass the bill!” exhorted the people wearing them. And last Friday, when a Kauai County Council committee did pass Bill 2491 draft 1 — the pesticide/GMO measure — supporters celebrated jubilantly.

But now, as the dust settles and the initial euphoria evaporates, the grousing and anger have returned. Activists are waking up to the realization that although the bill was passed, it is far from intact.

Councilwomen JoAnn Yukimura and Nadine Nakamura took control of the bill from its sponsors, Councilmen Tim Bynum and Gary Hooser, and shifted just about everything during the amendment process, from the preamble to the provisions. When the full Council takes up the matter again at 8:30 a.m. Tuesday, Oct. 8, it will be looking at a bill that is very different than the one that was introduced.

Gone from the findings are declarations that the biotech industry has engaged in “rapid, long-term, and unregulated growth,” that the situation on Kauai is “unlike those facing any other county in the State of Hawai‘i” and that “residents have no choice” but to live, work and commute near the fields.

Removed as well was the assertion that Kauai, “more than any other county in the State of Hawai‘i,” has become a site of increased commercial ag, along with all references to field testing and experimental organisms.

The claim that genetically modified plants will “inevitably” disperse into the environment has been revised to “potentially,” and references to “[b]iological contamination” and “devastating economic impacts” were removed.

The original bill’s reference to the  “3.5 tons” [7,000 pounds] of restricted use pesticides applied by five ag entities — a figure that somehow got inflated in popular citations to 18 tons — has been changed to “approximately 5,477.2 pounds, and 5,884.5 gallons.”

The new bill also adds this finding :

In 2012, restricted use pesticides were used on Kaua’i by agricultural operations (7,727 pounds, or 13%), county government operations (28,350 pounds of Chlorine Liquefied Gas, or 49%), and nongovernment operations for structural pest control (25,828 pounds, or 38%).

The new bill also removes the claim that certain pesticides have been banned by other states, as well as the assertion that “[p]esticide-laden dust and drift from both restricted use pesticides and general use pesticides is inevitable and results in long-term exposure to toxic chemicals harmful” to people and the environment.  Instead, it says that drift and dust “sometimes travels” and are “potential sources of pollution endangering human health and the natural environment.”

Original language asserting that  GMO cultivation and biotech ag practices haven’t been “properly or independently evaluated” was changed to “should be further evaluated,” with no reference to GMOs.

The “right to know” provision was changed slightly, from disclosing “what” GMOs are being grown to “whether or not” GMOs are being cultivated.

The definition of agriculture was changed from one that potentially excluded biotech:

“Agriculture” means the cultivation of crops, including crops for bioenergy, flowers, vegetables, foliage, fruits, forage, and timber; game and fish propagation; and the raising of livestock, including poultry, bees, fish, or other animal or aquatic life that are propagated for economic or personal use.

To one that includes biotech:

“Agriculture” means the breeding, planting, nourishing, caring for, gathering and processing of any animal or plant organism for the purpose of nourishing people or any other plant or animal organism; or for the purpose of providing the raw material for non-food products. For the purposes of this Article, “agriculture” shall include the growing of flowers and other ornamental crops and the commercial breeding and caring for animals as pets.”

Definitions were added for adult care homes, day care centers, dwellings, family care homes, family child care homes, medical facilities, nursing homes, orchards, parks, perennial waterways and schools — sites affected by buffer zones — but definitions for “experimental pesticides” and “significant effect” was deleted from the new bill.

The new bill also added a definition for the Office of Economic Development — headed by George Costa, an outspoken opponent of the bill — because that county agency will be charged with implementing the measure. The original bill called for Public Works to administer it.

The new bill retains the original disclosure provision that requires “any commercial agricultural entities that annually purchase or use in excess of five (5) pounds or fifteen (15) gallons of restricted use pesticides” in a year to disclose the use of all pesticides. However, the requirement to reveal use of “experimental pesticides” was removed.

The original bill also called for public signs to be posted a minimum of 72 hours prior to, during and after application of pesticides. The new bill calls for 24-hour advance posting, but leaves post application notice up to the pesticide label. Further, all signs shall conform to EPA worker protection standards. Workers will get daily notification.

The new bill strengthens notification requirements to adjacent residents:

Pesticide Pre-application notification must be provided to any requesting registered beekeeper, property owner, lessee, or person otherwise occupying any property within 1,500 feet from the property line of the commercial agricultural entity where any pesticide is anticipated to be applied. A mass notification list shall be established and maintained by each commercial agricultural entity, and shall include access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions. Any interested registered beekeeper, property owner, lessee, or person otherwise occupying any property within 1,500 feet from the property line of the operation of any commercial agricultural entity, shall submit contact information to the relevant commercial agricultural entity. These interested persons may submit up to three (3) local telephone numbers, and two (2) email addresses. All mass notification messages shall be sent via telephone, text message, or e-mail, with the method or methods of transmittal to be determined by each commercial agricultural entity. Each commercial agricultural entity shall provide an alternative method of transmittal for any recipient who does not have access to the technology necessary for the method or methods of transmittal selected by the commercial agricultural entity. Requests to be included on, or removed from, the mass notification list must be processed within three (3) business days. These “good neighbor courtesy notices” shall contain the following information regarding all anticipated pesticide applications: pesticide to be used, active ingredient of pesticide to be used, date, time, and field number.

Each commercial agricultural entity shall send regular mass notification messages at least once during every seven (7) day week period summarizing the anticipated application of any pesticide for the upcoming seven (7) day week.

Whenever a pesticide application that was unforeseen and therefore not contained in the weekly “good neighbor courtesy notice” is deemed by the commercial agricultural entity to be necessary to alleviate a pest threat, an additional “good neighbor courtesy notice” shall be generated to all recipients of the mass notification list within twenty-four (24) hours after the application.

Each commercial agricultural entity shall submit regular public disclosure reports once during every seven (7) day week period compiling the actual application of all pesticides during the prior week. These weekly public disclosure reports shall contain the following information regarding all actual pesticide applications: date; time; field number; total acreage; pesticide used; active ingredient of pesticide used; gallons or pounds of pesticide used; and temperature, wind direction, and wind speed at time of pesticide application.

Each commercial agricultural entity shall submit all public disclosure reports to the County of Kaua’i Office of Economic Development (OED), and shall include online access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions for all applicable commercial agricultural entities. All public disclosure reports shall be posted online, and available for viewing and download by any interested persons. OED shall develop a standardized reporting form.

The original bill’s requirement for annual public reports on the possession of GMOs by tax map key or ahupuaa, and the date of the introduction, remains in the new bill.

Regarding buffer zones, the new bill prohibits use of any pesticides within 500 feet of a school, medical facility, adult family boarding home, adult family group living home, day care center, family care home, family child care home, nursing home, or residential care home or dwelling — a broader definition than the original. It also adds a prohibition against spraying within 100 feet of any park. 

Whereas the original called for a 500 foot buffer between pesticide applications and waterways and shorelines, the new bill narrows it to 100 feet. It also narrows the original 500 feet from a roadway to 100 feet, while providing an exception for Kauai Coffee’s trees, though roadside signs must be posted advising of the spraying.

Again, these buffers address all pesticides, but apply only to the five companies that use the most RUPs, not the county or state.

The new bill completely removes the prohibition against open air testing of experimental pesticides, as well as a moratorium on the experimental use and production of GMOs pending an EIS. It also deletes the requirement for the county to conduct an EIS and adopt a permitting process for “all commercial agricultural entities that intentionally or knowingly possess” GMOs.

Instead, the new bill calls for an:

Environmental and Public Health Impact Study (EPHIS) through a two-part community-based process to address key environmental and public health questions related to large-scale commercial agricultural entities using pesticides and growing genetically modified crops. The first part shall utilize a Joint Fact Finding Group (JFFG) convened and facilitated by a professional consultant to determine the scope and design of the EPHIS within twelve (12) months of the Notice to Proceed. In the second part of the process, the EPHIS shall be conducted by a professional consultant with oversight by the JFFG and shall be completed within eighteen (18) months of the relevant Notice to Proceed.

The new bill retains both the civil fine penalty of $10,000-$25,000 per day, and misdemeanor criminal penalties.  The new bill would take effect six months after passage, as opposed to immediately in the original bill.

In addition to the revised bill, the Council next Tuesday will be considering a resolution to create the study and fact-finding group. 

Council Chair Jay Furfaro, who thus far has avoided any public comment on the bill and directed the Council to pursue the amendments in a committee of which he is not a member, has asked the administration for a presentation on the “operational impacts” the bill would have on the county.

Yukimura and Nakamura are also asking the Council to consider releasing county attorney opinions on Bill 2491 and whether counties can legally restrict the use of atrazine.

The meeting starts at 8:30 a.m. and has a posted finish time of 1 p.m. — a cutoff that appears to limit public testimony, which has consumed many hours each time the bill comes before the Council.

Comments accepted on Kauai Eclectic.

Saturday, February 2, 2013

Hawaii GMO Primer

Published HONOLULU Magazine 2005

Who Grows There?

Hawai‘i is a hotbed for crops of genetically-modified organisms—GMOs. But is anyone keeping an eye on these experiments?

Throughout the Islands, abandoned pineapple and sugarcane fields are again being cultivated, but not with the kind of crops found on Old MacDonald's farm. Instead, local agricultural lands are supporting the state's foray into biotechnology, serving as outdoor laboratories and production facilities for an industry that wants plants to do more than provide familiar foods and fibers.

State officials have been actively recruiting biotech businesses and investment since former Gov. Ben Cayetano endorsed the industry as a clean, high-tech way to save agriculture and diversify the economy. Plant scientists were among the first to cross the welcome mat, lured by Hawai'i's mild climate and the prospect of a year-round growing season. These Island qualities could shorten the lengthy research process required to develop the genetically engineered plants that some see as the solution to disease and world hunger.

Their creations-backed by private and public investments that topped $220 billion nationwide by the year 2003-have been hailed as 21st-century wonder crops, with the potential to boost harvests, produce cheap drugs and make farming less toxic. Known as transgenics, or genetically modified organisms (GMOs), these designer plants are the progeny and patented property of American universities, the federal government and such multinational corporations as Mon santo, ProdiGene, Novartis, Dow AgroSciences and Dupont/Pioneer Hi-Bred.

In this rarefied atmosphere of big players, big money, big promises and big dreams, the Aloha State has a big role. Dusty old plantation towns such as Kaua'i's Kekaha, O'ahu's Kunia and Moloka'i's Kaunakakai supply the farm labor and fertile, fallow fields that biotech researchers need to test their lab-invented plants in the real world of sun and soil. In the past 17 years, Hawai'i has hosted more than 4,500 open-field tests for experimental GMO plants, more than any place in the world. About 140 are currently under way throughout the state.

"These field trials are being conducted without adequate oversight or even knowledge of where it's being done," says Nancy Redfeather, a Kona coffee grower and member of HIGEAN, the Hawai'i Island Genetic Engineering Action Network. "I think it's really time for the people of Hawai'i to know what's going on."

Although an exact number is not available to the public, some of Hawai'i's outdoor trials have grown biopharmaceuticals-plants genetically engineered to produce medical supplies, drugs, vaccines and industrial chemicals. According to court documents, these tests involved experimental AIDS and hepatitis B vaccines, growth hormones, enzyme production from human genes, and aprotinin, a blood-clotting cow protein that is also an insect toxin. Island fields serve another industry purpose, too: growing seed for Mainland farmers from transgenic crops engineered to produce their own insecticides or resist herbicides.

For years, transgenic agriculture went largely unnoticed by most Islanders, save for those who tended the crops or noted its contribution to the state's $50 million seed corn industry, which expanded five-fold over the past decade and is now split about equally between GMOs and conventional hybrids. At most, they may have heard of Hawai'i's own contribution to the world of biotech: a papaya genetically engineered to resist the ringspot virus.

That era of obscurity appears to be ending-and perhaps not a moment too soon, in the view of Cha Smith, executive director of KAHEA, a coalition of environmental and Hawaiian cultural groups. "I'm horrified by this industry and the lack of critical thought about it. They're affecting life forms with no idea of the long-term impact. It's technology run amok, and I think it threatens the very core of Hawai'i."

Local residents are starting to question Hawai'i's role in transgenic agriculture, echoing concerns raised by scientists, politicians, food manufacturers, grocers, public health officials, trade organizations, organic farmers, conservationists and just plain folks all around the globe. What is being grown, and where? Will transgenics harm people, animals, the environment? Do the potential benefits outweigh the possible risks? Are existing regulations adequate, or properly enforced? Can GMOs be prevented from going places where they're not supposed to be?

Photos: Getty Images
"These are huge concerns," Smith says. "I think they [state regulators] owe it to the people of Hawai'i and future generations to require a few more evaluations and reviews of this industry. If they're going to be here, let's at least have some accountability and monitoring."

GMO crops and their cultivation are largely regulated by the federal government, with virtually no accountability at the local level. As a result, it's not easy to know exactly what is going on here in Hawai'i. Even the process of trying to determine who has accurate information raises thorny new questions about credibility, responsibility, the reality of objective science and the true allegiance of government agencies charged with serving both industry and the people.

Muddying the waters still more are such powerful emotions as fear, mistrust, anger and greed; a full spectrum of political, economic and social ideologies; and highly charged ethical, moral and spiritual considerations. They combine to make GMOs one of the most challenging issues of our time, alongside stem cell research and cloning technology. And Hawai'i is smack in the middle of the fray, unable thus far to craft political solutions or even talk civilly about the subject.


Hawai'i's predicament-large-scale GMO experiments with little public discussion or oversight-caught the attention of the Pew Initiative on Food and Biotechnology, which advocates a carefully structured process designed to help communities peacefully resolve complex public-policy disputes.

"Pew saw Hawai'i as one of the states that was ripe for this kind of discussion," so it contributed seed money to get the ball rolling, says Bill Kaneko, director of the Hawai'i Institute for Public Affairs, a Honolulu-based nonprofit that strives to mediate this sort of contentious squabble as a neutral party. "The goal is for the project to provide a safe forum where the issue of GMOs can be discussed. That's what we'll be working on over the next 12 to 18 months."

Kaneko does not expect that all the disputes will be resolved in that time, given the complex, emotional nature of the debate and the "very painstaking process" required to even determine who should participate as stakeholders in the discussions. "But if the group can identify one or two key priority issues and focus on those, that's a win," he says. "Even if there is no consensus, the fact that the project can bring all these people to the table is an early victory."

Redfeather agrees, noting that the Pew process offered the first glimmer of hope that differing views would be heard and considered. "There was this agreement among all parties that activists have a voice, and we didn't have one before this."
Paul Achitoff, lead attorney in the Honolulu office of Earthjustice, is seeking his answers through the courts. Acting on behalf of a consortium of local and national environmental groups, he has sued the state and federal governments to secure legal discussions on issues of GMO secrecy, regulation and safety.

The government restricts access to public records related to GMOs, namely, the permit applications for transgenic field tests. Achitoff's lawsuits, filed in November 2003, are the first to challenge this policy, and to question whether the U.S. Department of Agriculture is adequately regulating the industry.

As the lead agency in a three- pronged system of federal jurisdiction over the biotech industry, the USDA regulates genetically engineered crops and administers the permit system for field tests. The Food and Drug Administration manages genetically modified organisms used in food and medicines, and the Environmental Protection Agency oversees "novel organisms"-entirely new life forms created by biotech researchers-as well as plants that contain pesticides, including some of the seed corn crops raised in the Islands.

Achitoff says his suit against the state is intended to force the Hawai'i Department of Agriculture to comply with the open records act and release specific details about the nature and location of experimental field trials. The state agency so far hasn't done so, insisting that it is merely enforcing directives imposed by the USDA, which has supported the industry stance that confidentiality is warranted to protect crops from vandals and trade secrets from competitors.

Some information is available through a Virginia Tech Web site (, which posts applications for field-trial permits and their status. It usually, but not always, discloses the reason for the test, the crop involved and whether it is a considered a biopharmaceutical. But while it names the state, it does not disclose the specific location and details about biopharmaceutical tests are rarely included. Achitoff says his clients believe people have a right to know where transgenics are being grown, especially biopharmaceuticals, since none have been approved for use by humans or animals. "The shroud of secrecy surrounding biopharming is unacceptable," Achitoff says.

That case has been stayed indefinitely pending federal court action on Achitoff's second lawsuit, which aims to make the USDA take a closer look at those risks by conducting an environmental impact statement (EIS) on its overall regulatory program for transgenic crops, as well as for each proposed field trial. Applicants for permits also would need to consult with the U.S. Fish and Wildlife Service to determine if their proposals would affect the state's 300 endangered plants and animals, which comprise more than a third of all protected species in the nation.

The USDA has not granted any new permits for biopharm testing since the lawsuit was filed, Achitoff says, and government attorneys have argued that all Hawai'i field trials using biopharmaceutical crops have been completed, so the case is moot.

Industry supporters say the lawsuit could inhibit biotech's future growth in Hawai'i if the state is perceived as anti-GMO. They maintain the existing three-tiered system provides sufficient governmental oversight, and there are no documented risks, anyway. "We need to collaborate and work together to avoid giving the impression that we are in any way opposed to biotech," says Lisa Gibson, spokeswoman for the Hawai'i Life Sciences Council, an industry advocacy group.

"Because if we don't, we'll lose out, and these businesses pay living wages and do things to help and heal people."
That approach doesn't wash with Achitoff. "The industry is basically regulating itself and their attitude has consistently been there aren't any environmental risks. But clearly, risks do exist, and they're not always the obvious ones. There have been any number of instances that have shown the controls are not adequate to contain these crops in open fields." He noted that studies have shown GMO crops on the Mainland have interbred with wild plants and other commercial crops, and that monarch butterfly larvae are harmed by a pesticide used in one type of GMO corn.

Critics also contend the regulatory process is tainted because of what appears to be a cozy relationship between federal agencies and the industries they oversee. As evidence, they point to the USDA's practice of funding and conducting extensive biotech research, including the so-called "terminator technology" that prevents the second-year propagation of transgenic seed, ensuring that farmers must buy new seeds each season from private companies. Others have criticized what they characterize as the agency's rubber-stamp approach to field-trial permit applications. According to a report published by the U.S. Public Interest Research Group, the agency has rejected only 3.5 percent of the nearly 40,000 permit applications submitted, and those were due to incomplete applications and paperwork errors.

Achitoff says the Earthjustice litigation stems, in part, from a growing grassroots movement that is demanding more industry accountability and government oversight in the area of transgenic agriculture. If the court rules that an EIS is required for field trials, industry would be forced to reveal its rationale for present testing practices and explore alternatives, he says, and the public, now largely excluded from the permitting process, would have a say in how transgenic experiments are carried out in their communities.

The U.S. Food and Drug Administration has ruled that transgenic crops and foods containing GMOs are essentially the same as their conventional counterparts, and thus pose no danger to people or ecosystems. FDA administrators contend that fears about long-term health risks and inadvertent environmental contamination from the accidental release of GMOs are groundless and based in hysteria, not science. Scientists working with companies that produce transgenics, such as Pioneer Hi-Bred's Cindy Goldstein, also maintain that their research projects and commercial products are completely safe-aside from problems that occasionally arise when people unknowingly eat food modified with genes from plants or animals to which they are allergic-because nothing has turned up to indicate otherwise.

"There haven't been any reports of anyone getting ill or negative environmental impacts from GMOs]," says Goldstein, a plant physiologist and molecular biologist who handles biotech education and community outreach for plant breeder Pioneer Hi-Bred at its Waialua headquarters. "We're in our 10th year of planting biotech crops and we haven't seen any of these negative affects documented by studies."

William Walsh, a Kona-based biologist with the state Division of Aquatic Resources, suspects that's because "no one is looking," in part because most scientists are highly specialized and don't have the educational background needed to consider the big picture. "It's hard to find people with the breadth of knowledge to say with certainty what's really happening. I'm not an expert on this by any means, and there's really no one in the state who is."

Rapid advances in the biotech industry further complicate the safety issue, he says, because "there's often a considerable lag time before something is recognized as a problem. A lot of these developments are racing way ahead of government's ability to keep track of them."


This may be the most troubling aspect of GMOs in the Islands. The state has no specific regulations relating to GMOs, Achitoff says, and "to my knowledge there is no meaningful federal oversight once the [field-trial] permit is granted. In theory, the [state] Department of Agriculture does some monitoring, but for all practical purposes, there is none. They don't have the expertise, resources or incentive to monitor it."

The Hawai'i DOA employs just one inspector, Carol Okada, to monitor all the active field trials in the state, which currently number about 140. Attempts were made to reach Okada for this article, and she reportedly did respond in writing to questions about the nature of her monitoring efforts and the adequacy of current staffing. But because of the Earthjustice lawsuit, her replies were submitted to the state attorney general's office. More than 10 weeks later, as this article was going to press, the agency still had not completed its review.

The EPA, meanwhile, operates on a complaint basis, which did result in fines being levied against two companies for permit violations on Kaua'i and Moloka'i associated with growing crops that contained pesticides. Still, biotech opponents question how well the EPA keeps track of the field trials, given that it maintains no staff or offices on Neighbor Islands, where most of the research occurs.

Dr. Lorrin Pang, a consultant to the World Health Organization, is concerned not only about monitoring, but what he considers a dearth of scientific information needed to conduct meaningful oversight. Pang also heads the Maui Branch of the state health department, although he is careful to specify that he is speaking not on behalf of the agency, but as a private citizen, when he discusses transgenics. He maintains that GMOs, especially the experimental ones grown in Hawai'i, have not been adequately studied to determine their effects on people and the environment and that makes open-air testing a risky business, particularly for biopharmaceuticals that contain vaccines and human genes.

"We don't know anything about them, because they're so novel," Pang says. "So we don't know how to control them, how they'll act in the environment or spread, the physiological effects, how to shut it down if something goes wrong."

The industry often uses food crops in biopharming experiments, which heightens the potential for adverse effects, says Pang, a position shared by the National Academy of Sciences and food manufacturers. Corn, the most common biopharm crop, produces pollen that is difficult to contain, which increases the likelihood of cross pollination with non-transgenic corn. "There's a big concern about pollen blowing in the wind, where everybody takes it in," he says, noting that it becomes impossible to determine individual exposure levels from such sources and engineered plants "have a lot of unintended variations."

Pang explains that each introduced gene is accompanied by a gene marker, which produces a protein and a promoter. "So you have four new things and they all are viable in the environment. There's inherent variation that has to be evaluated on a case-by-case basis."

Such evaluations are not being done, he says, even on transgenic crops approved for human consumption. "It would be nice to test them beforehand, but at least set up a post-marketing assessment," he says, citing a New England Journal of Medicine study that showed 50 percent of all new drugs show harm only in the post-marketing phase. "And these are drugs that have been tested for years before they're approved."

Allergic reactions are a primary concern, he says, because people eating unlabeled GMO products won't know exactly what they are ingesting. When it comes to biopharms, the potential for harm is even greater, according to documents filed in the Earthjustice lawsuits. David R. Schubert, an expert in molecular genetics and cell biology who heads the Salk Institute's Cellular Neurobiology Laboratory in San Diego, states in his declaration that "consumption or inhalation of the plant-produced pharmaceutical could trigger a number of dangerous immune system reactions. These include oral tolerance, allergic reactions and autoimmune disorders."

Pang, who is particularly worried about possible health impacts on workers in the GMO-crop fields, says he has expressed his concerns to state health department officials, but has seen no sign that the agency plans to expand its role in regulating or monitoring biotech activities. An agency spokeswoman confirmed his assessment, saying that federal agencies had jurisdiction over transgenic crops. "The Department of Health role in GMOs is small at best," she says. "Actually, there isn't much."

The local health department hasn't always been so quiet. In 1990, when field testing was in its infancy, Bob Grossman, former special assistant to the DOH director, was instrumental in creating an ad hoc committee to review and monitor biotech research. He also lobbied lawmakers to approve a bill that would have mandated an environmental assessment for every proposed field test. But the bill died, and when Grossman left the agency in 1994, the ad hoc committee died, too.

Since then, state agencies have generally deferred to the federal government in matters of monitoring and oversight. The Hawai'i Department of Agriculture does work with the USDA, through field-trial site inspector Okada's position, to ensure companies comply with the conditions in their field test permits. Otherwise, it gets involved only when biotech researchers and firms want to work with restricted species-plants and animals that pose some risk to human health, agriculture or the environment. The state Board of Agriculture (BOA), which includes representatives from the Department of Land and Natural Resources (DLNR) and the state health department, among others, makes the final call on those permits.

Some of the challenges facing state agencies involved in reviewing biotech proposals came to light in late May, when the BOA was considering a proposal from Mera Pharmaceuticals Inc. The firm wanted to import eight strands of algae that would be genetically engineered with synthetic human genes at its San Diego laboratory and then shipped to an outdoor production facility at the Big Island's Natural Energy Laboratory of Hawai'i. The project came before the board only because Mera wanted to use Chlamydomonas, a restricted species that is hardy and prolific, producing new generations every five hours. More than 70 people submitted testimony warning of the possibility of escape for an algal species that can survive in salt, fresh and brackish water, and even be absorbed into clouds, returning to earth with rainfall. Although two technical advisory committees had recommended approval, board members say they did not have enough expertise or information to make a decision. They voted to deny the company's request for procedural reasons, but left the door open for future consideration.

Mera returned on June 28, and this time its permit application was approved by a 6-2 vote of the board following four hours of public testimony, most of it in opposition. Board member Ted Liu, director of the state's Department of Economic Devel-opment, Business and Tourism, said he had carefully weighed all the interests at stake and determined that the project is important to the future of biotech in Hawai'i. "This was a very difficult issue, no question," Liu says. Other supporters, such as Cynanotech president Gerald Cysewski, whose company grows algae for the health-food industry at the same Big Island facility as Mera, said the proposal could boost the state's $27.7 million aquaculture industry.

The permit allows the company to import and grow seven strands of genetically engineered algae for one year for trial pharmaceutical production, and Mera officials said they would begin within 90 days. On July 8, however, a coalition of environmental groups, known as Na Maka O Hawai'i Nei, derailed those plans by filing a petition seeking a contested case hearing on the board's action.

If the board decides against such a hearing, petitioners said they will take the matter to the Hawai'i Supreme Court. Although the contested case process has been used extensively with land-development projects in Hawai'i, it has rarely been invoked with Department of Agriculture actions and has never before been sought to resolve disputes over biotech proposals. "It will break a lot of new ground," says Henry Curtis, director of Life of the Land, one of the groups that joined the petition.

Peter Young, who serves on the panel as director of the state DLNR, said in an interview following the May hearing that the decision shows how much thought and care is taken when reviewing proposals to bring new organisms into the state. "We don't operate in a vacuum," he says. "We consider information presented from a wide range of sources. I think the BOA makes good decisions." Young was not present at the second hearing.

Redfeather says the case highlights Hawai'i's extremely precarious position in the world of biotech and the tremendous influence exerted by economic interests. The industry is becoming increasingly technical and aggressive, she says, and government agencies do not have the scientific expertise, political will or funding to properly evaluate and monitor its proposals and experiments. She believes that public opposition, mounted hastily after a local newspaper broke the story, was all that prevented the project from moving forward in May.

State biologist Walsh concurs, noting that without the media coverage, the algae proposal "would have been under the radar, with no real scrutiny. That's not the best way to make these kinds of decisions. They've got to be done aboveboard and in a much more transparent process than there has been."


The Mera project seems to indicate that Hawai'i is headed in a new direction in its relationship with GMOs-one that includes more media attention, more questions and more aggressive tactics as both critics and supporters seek to advance their cases. But both sides are also open to broadening the debate.

Industry advocate Gibson said that a "transparent process based on the scientific method and research" is needed when discussing and evaluating proposals and issues that involves transgenics. "We need to create a forum for that to happen, because otherwise we lose out," she says. "Lots of smart people are excited about this, because the same science that is used in GMOs is what will be used to come up with a cure for cancer, for diabetes."

Gibson does not, however, advocate anything that would slow Hawai'i's growth in biotech or the life sciences. "This is our chance to grab our spot in the global economy," she says, noting that such an approach doesn't mean ignoring the possible risks or concerns and pursuing biotech at all costs. "Nobody wants to grow this industry so it hurts Hawai'i. We can come together and determine good science from bad science and chart our own future."

Redfeather and others believe that transgenic agriculture is too new and unproven to be given a place at the table. If they had their way, Hawai'i would never host another field trial or raise any transgenic crops. They want the state to slow down and adopt the precautionary principle, which advocates caution in the face of uncertainty. "When government doesn't step forward, I guess the public has to," she says.

But even if GMO opponents prevailed in their drive to stop transgenics cold, the biotech movement has already made significant inroads into the nation's pantries. Only a handful of transgenic crops have been approved for use and even fewer have enjoyed commercial success-predominantly soybean, corn and canola engineered to produce an insecticide or to withstand direct applications of Monsanto's herbicide, Roundup, as well as a growth hormone that stimulates milk production in cows. However, GMOs are now found in an estimated 60 percent to 70 percent of all products sold on supermarket shelves.

Still, there's plenty to be discussed, and the Islands are poised to take the lead in the emerging global debate over the future of transgenics.

Kaneko says Hawai'i's cutting-edge legal cases and Pew project are being closely watched by the National Conference of State Legislatures, among others, because lawmakers recognize that the political arena is not the best place to hash out highly technical matters further complicated by conflicting ideologies. "They're very interested in this issue, because other states with agriculture are going through it, too," he says. "In a very small way, if we're able to muddle through a process that brings people together, Hawai'i could become a model for the other 49 states."

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