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.”

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