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.)

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.

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 experts...to 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.

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.

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.