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.

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