HomeMy WebLinkAbout 08/05/2013 Special Economic Development & Intergovernmental Relations Committee minutes MINUTES
ECONOMIC DEVELOPMENT (SUSTAINABILITY/AGRICULTURE / FOOD
/ ENERGY) & INTERGOVERNMENTAL RELATIONS COMMITTEE
August 5, 2013
A meeting of the Economic Development (Sustainability / Agriculture / Food /
Energy) & Intergovernmental Relations Committee of the Council of the County
of Kaua`i, State of Hawai`i, was called to order by Councilmember Gary L. Hooser,
Chair, at the Council Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kaua`i,
on Wednesday, August 5, 2013, at 8:36 a.m., after which the following members
answered the call of the roll:
Honorable Nadine K. Nakamura
Honorable Ross Kagawa
Honorable Mel Rapozo
Honorable JoAnn A. Yukimura (present at 8:38 a.m. to 5:30 p.m.)
Honorable Gary L. Hooser
Honorable Tim Bynum, Ex-Officio Member
Honorable Jay Furfaro, Ex-Officio Member
There being no objections, the Committee recessed at 8:58 a.m.
The Committee was called back to order at 10:52 a.m., and proceeded on its
agenda item as follows:
Bill No. 2491 A BILL FOR AN ORDINANCE TO AMEND THE KAUAI
COUNTY CODE 1987, AS AMENDED, BY ADDING A
NEW ARTICLE 22 TO CHAPTER 22, RELATING TO
PESTICIDES AND GENETICALLY MODIFIED
ORGANISMS
[This item was deferred to September 9, 2013 at
9:00 a.m..]
Chair Hooser: I am sure other members are on their
way and will be here shortly. We are going to take some public comment first and
that comment is according to our Rules, we are allowed a certain number of
comments from people in the beginning and then the rest of the public comment we
will hold to the end of the meeting later today. We will take that in a second, then I
am going to recess this Committee and the Committee of the Whole will be called
into session and we will go into Executive Session. I am hopeful that it will be less
than an hour myself, but the room will have to be cleared at that point and then we
will come back in, and we will proceed with our meeting. The meeting will consist
of primarily questions and answers from members of this Committee and the
Council on various resource people that are here today, some of you are here and
some of them are coming later. These would be questions regarding the law,
questions regarding science and medical, and other questions that are relevant to
Bill No. 2491. We will spend approximately two (2) hours or less on the legal and
then we will spend another similar period on the medical science, then the plan is to
recess for lunch, and then come back with more questions of various resource people
who are here, and after that point we will take additional public testimony. It is
custom here to do three (3) minutes testimony, but it is possible for the Committee
or the Council to suspend its rules and reduce that time depending on how many
people want to testify and how late the day is going to be. I will discuss this more
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later, but our goal today would be to get out at 4:30 p.m. or so. If we are able to do
that, it depends a lot on how many people are here to testify, how many questions
the Councilmembers have, and what the will of the majority of the Committee
desires. So, that is a brief overview am I am going to talk more about that in a little
bit, but for now, I would like to suspend the rules and bring up the first speaker for
three (3) minutes.
There being no objections, the rules were suspended to take public testimony.
Chair Hooser: Introduce yourself, please and you have
three (3) minutes.
BRENT NORRIS: Aloha kakou Council, my name is Brent
Norris and I am here today representing...
Mr. Furfaro: Excuse me Brent, before you start.
Mr. Hooser, I want to remind everybody in our Rules and this Rule is 13(e), those
that speak during this eighteen (18) minute time will not be called back in the later
session and I did not hear that explanation.
Chair Hooser: I understand. Thank you very much, Chair.
So, people who speak early cannot speak later. If this meeting goes and is
continued, there is a chance we will not adjourn. We could recess and continue this
meeting for a few days from now, a week from now. If we do that anyone who
speaks today, that would be credited for the whole meeting. Thank you, please
proceed.
Mr. Furfaro: Thank you, Mr. Hooser.
Mr. Norris: Thank you. Thank you all for allowing me
the opportunity to speak. I have come over from Hawai`i Island where we have a
similar Bill in legislation right now and the opportunity to learn about your process
and what has been going on here has been extremely valuable. I really appreciate
that. We do not have the same problems, but we are equally passionate and we
hope that we can help. My personal connection to the `aina compelled me to create
a non-profit back in 2009 and I partnered with our County to create the Hawai`i
Island Green Economy Report and part of what I had to do through that report was
really to help understand what sustainability was and why it was important for a
green economy. As we were looking to diversify agriculture as Governor
Abercrombie has in his Food Security Plan, part of a seven (7) step action plan, we
had to look at what that meant and what it meant to participate at that
sustainability level. I personally moved into the forest to learn how to become
self-sufficient and it was through the actions of what I caused myself to do, to learn
how to care for myself with the basics. I bring that to you and what is widely
known as the most common definition of sustainability, and that is from the
Bruntland Commission, a result of World Trade Organization, Brent and Woods
meeting in the early 1950s. Basically, to be sustainable means to meet the needs of
the present without compromising the ability of future generations to meet their
needs and that is really important. They typically look at three (3) aspects of that,
environment, they look at social aspects, and then they look at economic aspects.
This term sustainable agriculture/sustainable farming has been sort of bandied
about very loosely in my opinion. Being sustainable, being self-sufficient requires a
very limited set of external inputs. So, this is ideal if you envision a global model of
sustainability for your island. For example, you would want a very limited number
of external inputs for your agricultural systems. I am going to veer a little off topic
just a bit to sort of dig into the sustainability definition a little more. In the case of
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the environment it is imperative that you maintain your water supply. So, right
now it has become acceptable to import ninety percent (90%) of the food, but I would
implore you to consider what it means to input ninety percent (90%) of your water.
Chair Hooser: Excuse me, that is your three minutes (3), so
you will have to summarize.
Mr. Norris: Great. In summary, I would just like to say
that the companies that we are dealing with right now are not sustainability based
companies. They are using the term sustainable to try and convince you that it is
something that you need, but really what you need is to be self-sufficient to be
sustainable. Thank you very much.
Chair Hooser: Thank you very much. Any questions? If
not, thank you very much for your testimony.
Mr. Norris: Mahalo.
Chair Hooser: Yes.
Mr. Furfaro: Just a reminder during the eighteen (18)
minutes there is no interaction with the Council. It is totally yours, Mr. Hooser.
Chair Hooser: In return for early testimony, there is no
Q&A. This is an accommodation for the people who cannot be here later. I want to
encourage all speakers to try your best to address the Bill and the more specific you
can be on how we might improve the Bill or others would be appreciated. Go ahead,
please.
DESIREE HOOVER: First of all, again I would like to thank
everybody and again thank you for starting this Bill No. 2491. One of the subjects
that is to be talked today is the impact of companies affected by Bill No. 2491. I do
want to point out that first of all that this research, the Environmental Impact
Statement (EIS) should have been done first before these companies were ever even
brought over here on a controversial issue like we have. There may be
consequences just because it should have been done first and after research,
especially the safety and the health risks for the people and the environment, these
pesticides and agriculture farms may not be a good fit for this small island and that
could be one of the consequences. If that is the case, I wanted to let you know that
there is an ongoing project lining up looking at other potential agriculture
companies and maybe even other companies and industries to help replace that and
to keep the island going. We know that the land itself might be ruined and again
you have to think what can replace that? So, these are just potential, trying to get
solutions because there are other solutions. I want to remind you that jobs should
not be such a big factor because there are other less controversial solutions. I
myself do want to testify that my partner does have asthma and has to be on a daily
inhaler here. As soon as she leaves and even goes to O`ahu and will spend the week
there, they have the vog, they have the humidity, and she does not have to be on
respiratory and her asthma goes away, goes to the mainland and it goes away. As
soon as she is here within the first day or two, she has to be on the inhaler and
steroids that are not good for you. We live in the North Shore, so I want to let you
know I think it is affecting the North Shore, whatever is around here is affecting
the North Shore. I would like part of the research to have the North Shore included
and when they do the volunteers to make sure that other people from other parts of
the island are included as well. Again, I just want to thank you. I strongly urge
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you to do Bill No. 2491 so we have a right to know and get some good solutions for
our island. Thank you.
Chair Hooser: For the record, could you state your name,
please.
Ms. Hoover: Oh, I am so sorry. Desiree Hoover.
STEVE KAI: Good morning. My name is Steve Kai and I
oppose Bill No. 2491. I would like for you folks to look at us that work for the seed
companies as people, think of us as your neighbors who helps out with Aloha Ike
fundraisers, think of us as parents who helps out with Gotcha Night at Kekaha
School or help judge Senior Projects at Waimea High School, think of us as your
son, your father, your mother, your grandfather, and I think you will see us as
people who would not deliberately or carelessly poison our friends and families. Bill
No. 2491 would have you believe that we work for large corporations and we would
place profit over the safety and health of our families and neighbors, but there is
nothing further from the truth. We work for corporations, but we are people with
deep commitments to our communities and our families. As several had said in
previous testimony, this Bill has divided and caused mistrust amongst ourselves,
amongst our friends and neighbors. But I do believe that everybody in this room,
we share some very common goals and we just need to sit together to recognize
them and to begin to work towards them. I believe that you, the Council, holds the
key to accomplishing this. So, let us develop an alternate Bill that will allow us to
move towards moving all agriculture forward. Let us work on a Bill that allows
organic farmers to work alongside the seed farmers and helps them resolve their
issues rather than divide them. Let us work on a Bill that addresses the issue of
food security. I believe we have these opportunities and if we actually sit down, we
will find that we all do share the same dreams and aspirations. You have the
opportunity to facilitate this unity instead of the divisiveness. So, I am asking that
we actually step forward and start working on a Bill that will truly help Kaua`i
work as a united community and focuses on moving all of our people forward.
Thank you.
Chair Hooser: Thank you very much for your testimony.
SUSAN TAI KANEKO: Aloha Council Chair, Council Vice Chair,
Committee Chair Hooser, and Councilmembers. Mahalo for the opportunity to
address you. My name is Susan Tai Kaneko for the record and I am here officially
as a concerned citizen. For the record, I oppose Bill No. 2491. Plenty of other
experts will be here to address the technical problems with the Bill, but I would like
to address another serious problem stemming from Bill No. 2491. I am a new
employee for only two (2) days at Syngenta on Kaua`i, but as many of you on the
Council know that through the projects that I had the honor of working with the
County on, I have spent nearly eight (8) years dedicated to our community as a
former Small Business Development Center Director and a former Director of the
Kaua`i Economic Development Plan. Prior to that, I spent over twelve (12) years in
university sector in entrepreneurship in small business. Except for two (2) days, my
career and heart has been dedicated to education, community building, and
bringing people together to get things done. Our small island lacks the economy of
scale that enable larger communities to thrive more easily. We have to work much
harder and do much more with much less and that is why partnerships and
collaboration are crucial for us. My concern is that Bill No. 2491 and its approach is
devastating and fracturing our island, it is unraveling the fabric of our community.
Bill No. 2491 in its technical weaknesses, has created fear and fear creates
suspicion and suspicion is pitting neighbor against neighbor, one side of the island
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against another, and strangers against strangers. Bill No. 2491 is fueling a fire
that we cannot afford to run amok. People are insulting and verbally attacking one
another, even threatening bodily harm and death to each other. People are using
Bill No. 2491 as an excuse to no longer, unconditionally Aloha each other. Seeing
our community falling apart, now is the time we ha'a ha'a ourselves and we must
humbly say let us put aside our differences and work together. We cannot afford to
keep digging in our heels and staying this the stalemate. There are many people
here ready and willing to work together towards truth with mutual purpose and for
real solutions. Bill No. 2491 is problematic and we have a lot of work ahead of us.
Let us be open minded in our pursuit for knowledge, creative in our problem
solving, and above all collaborative in our efforts. Let us not be prisoners to our
past, but pioneers for our future. I am confident in you as our County Council to
guide us through this process and bring this community back as one. Mahalo.
Chair Hooser: Thank you very much, next speaker.
SARAH STYAN: Good morning and thank you for this
opportunity to testify this morning. My name is Sarah Styan and I strongly oppose
Bill No. 2491. I am very proud that I grew up on a farm in western Massachusetts
and I had the privilege of being educated at three (3) agricultural universities,
Cornell University, (inaudible) Agricultural University, and the University of
Hawai`i at Manoa. I am also very proud I have been an employee of Dupont Pioneer
for the last eleven (11) years and that Dupont Pioneer has been selling seed to
farmers since 1926. I am very proud that my daughter was born at Kaua`i Veterans
Memorial Hospital (KVMH) in 2003 and that I was actually working in the fields
during my pregnancy with no concerns for my safety or the safety of my child. As a
parent here on Kaua`i, there is no way that I would be able to work in a company
that was in any way endangering not only our children, but any part of the
community here on Kaua`i. I am very proud that I am a part of the seed industry
here on Kaua`i and Hawaii and of all my colleagues, not just whom I work with
every day, but through the State of Hawai`i, people who are working every day to
make a difference for farmers all around the world. I echo the comments of
previous testifiers, that this Bill, Bill No. 2491 is truly dividing our island. You as
Councilmembers, I urge you to lead an enlightened discussion and get information
on the table, real information, and have a true dialogue where we can engage and
come to solutions. We have so much positive in all of our island and we need to
bring that together. We need to harness all of the great technical expertise that we
have to truly come to a solution for this island where all our kids can move forward
and see the value of science and technology as well as keeping our environment
safe. I am very proud to work for a company whose core values are safety,
environmental stewardship, respect for people, and highest ethical behavior. I can
truly say that I feel all of my colleagues, not just in Dupont Pioneer, but all the
companies feel very strongly about all of these core values. Thank you for this
opportunity to testify.
Chair Hooser: Thank you very much. Is there another
speaker?
LANCE ATKINS: Aloha Councilmembers, my name is Lance
Atkins. In the last hearing, Councilwoman Yukimura did ask several people for any
facts that they had regarding the findings of the Bill, so I wish to address a few of
the findings in the first portion of the Bill. I will address them by the number in
which they are designated in the Bill. Finding No. 2 addresses unregulated growth.
Unregulated growth is an inaccurate term, we are heavily regulated as an industry.
I will touch more on that in a little bit. Finding No. 6 mentions devastating
economic impacts from pollen drift. I have a difficult time in thinking of a single
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way in which this statement could be true, on the contrary we have contributed
much to the economy of Kauai. However, all fields regulated or unregulated have
had extreme isolation distances that we work with. Corn only pollinates corn and
the idea that pollen drift could somehow devastate the economy on Kaua`i seems
impossible to me. Finding No. 9, pesticide laden dust and drift is suggested to be
inevitable in Finding No. 9. I do not believe this to be true. It is not inevitable.
This ignores all modern technology and safety measures which are already in place.
I will touch on that in a second as well. Finding No. 12, along with many other
areas of the Bill, Finding No. 12 takes the assumption that pesticide applications
are inevitably dangerous. This is a simply not true. Before pesticide ever reaches
approval it undergoes an extensive process to evaluate health effects, both to
humans, animals, and the environment. Labels then prescribe exact methods of use
to ensure safety of the product. Thereof, any use of the product as prescribed by
label can and should be considered safe use. Pesticides are like medicine that we
take for ourselves, when taken in a safe manner can and should be considered safe.
These pesticides are however medicine for the plants. Finding No. 13 addresses the
Right to Know. The use of the term Right to Know is a brilliant political move to
convince reasonable people that this Bill is necessary. After all, as Americans we
love rights and at first glance it makes sense that we have a right to know. I want
to make clear that I speak on behalf of myself and not behalf of Syngenta in this
case. However, I do wish to say that we do not necessarily have a right know all
proprietary business practices that a company uses. I personally love teri fried
chicken from the Imu Hut, however, I do not have the right to know what their
recipe is that they use on their teri fried chicken. Lucky for us though, they are
actually food safety and sanitation laws in place that help me feel safe eating their
products. Inspectors check their kitchens to make sure that their cooking and
cleaning practices are up to code, ensuring the safety of all customers. That is what
we have going on at our farms. I am no expert in the restaurant business, but I
would think that we are every bit as regulated as restaurants. Every chemical we
use comes with a legal document attached to it which has been approved and
reviewed by the Environmental Protection Agency (EPA). A State inspector
regularly inspects licensed applicators, records, and fields to ensure proper use,
application, and documentation of chemicals. All Genetically Modified Organisms
(GMO) fields are planted in permitted areas...
Chair Hooser: That is your three (3) minutes, if you could
close.
Mr. Atkins: I would like to assure you that we are safe.
We are heavily regulated. I also have several documents here that state some of the
clean water, clean air, and low cancer rate that we have on Kaua`i and in Hawai`i
which I would like to submit to the Council. I could submit it at a later time
though. Thank you.
Chair Hooser: Thank you very much. I believe that
concludes our early testimony. The Committee is going to recess and turn it over to
the Committee of the Whole.
There being no objections, the Committee recessed at 8:58 a.m.
There being no objections, the Committee reconvened at 10:52 a.m., and
proceeded as follows:
Chair Hooser: I appreciate the patience of everybody here.
All members are present and Mr. Rapozo, I am sure is on his way. I am going to go
over again, a little bit of the format and then we are going to go ahead and start.
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Each of us is going to make opening remarks, five (5) minutes. I will start, followed
by Mr. Kagawa and each member who wants to offer remarks, can. Then we will go
into the question and answer period. Each member will be given ten (10) minutes
uninterrupted with no follow-up from anyone. The member will ask ten (10)
minutes of questions to whomever they want on the law, we will talk about law first
and we will go person to person. Then there will be a second round if anybody
wants additional questions and you can hold you follow-up until it is your time.
After we finish the legal, we will go to science and medical and other questions. So,
that will be the format and we will decide. Our goal again, is to finish the meeting I
believe it was at 4:30 p.m. if possible depending on how much public testimony and
how many questions are asked. So, that is the format. I will go ahead and offer
some very, very brief remarks. My five (5) minutes can start. Is somebody timing
us here? It goes without saying the importance of this issue to our community. We
have never had a public hearing with as many people as we had the other night.
We never had as much testimony as we had. Clearly without question, this is a
critical, important meeting subject to everybody and it is unfortunate that it has
come to a job versus health issue and I do not see it like that. I can tell everybody
here that is concerned about their job, this Bill is drafted with Councilmember
Bynum's help over many, many months and it was drafted specifically not to impact
the industry that would create any kind of significant disruption whatsoever and
that remains my goal today and I think it remains the goal of every Councilmember.
At the end of the day, we pass something that increases protections for health and
the environment and has minimal disruptions on the industry, that was my goal
what I started, that is my goal today, and I think that goal is shared by everyone.
We can talk about specifics of the Bill, which we will, at length. But that is the
goal, that is the outcome. We could not do otherwise. We would not have the votes
to do otherwise and we could not legally do otherwise. We have to work within our
legal parameters, but there are issues. Those on both sides have exaggerated and
misled people. There are valid health, medical, and scientific issues. We have
doctors, we have almost every pediatrician in the County of Kaua`i saying they
support this Bill, I am concerned. We have Obstetricians, Pediatricians, and others,
Oncologist, from KVMH and from Wilcox Memorial Hospital saying I am concerned.
I do not have a study, I do not have the research but I talked to other doctors and
there are more health problems on the West Side than others. There are serious
concerns from medical professionals. We have reports from the American Cancer
Institute and we have reports from the American Academy of Pediatricians so we
cannot avoid that there are issues. There are serious health issues and we need to
address those. We have Dr. Bal, the District Health Officer for the County of Kaua`i
testifying on his own behalf supporting this Bill. We have Dr. Lorrin Pang, the
District Health Officer of Maui on his own behalf supporting this Bill. The medical
community is clear. There are issues, this Bill is a good Bill, and it needs to be
supported. Please, this is not about taking jobs away or closing people down. This
is a reasonable request for disclosure. I have asked the industry over and over
again, tell me what you are spraying, what is your doing and they are not telling
me. It is about you buffer zones next to schools. It is about reasonable protections.
An outside disparate person would look at this Bill and say this is reasonable, this
is more than reasonable. I ask that you bear with us and that you help the Council,
help us by industry pointing out specifically what things are of negative impact.
That is the only way we can fix it and those of you in the community know that our
hearts are in the right position. We would not do anything that is going to put you
out of business or jeopardize your job. Not to say that the buffer zones are not
necessary around schools, hospitals, and key areas or that disclosure is not
necessary or that we need to do our research whether it is an EIS or something else.
Those are prudent measures that on behalf of the Council, of the government we
owe it. We have the obligation to protect those interests. Please, give us some faith
that we want to do the right thing, support us in this effort, and we are going to
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proceed with as many other meetings before we make decisions in my opinion. But
thank you all for coming. I will let Councilmember Kagawa speak next. Thank you
very much.
Mr. Kagawa: Thank you, Chair Hooser. I want to first
thank the public for expressing your views on this item. To come into a new
venture like this for me on the County Council and to have such a huge issue is a
wonderful welcome and I feel very loved by all. This is a State and Federal
government responsibility to oversee the agriculture industry. The Department of
Health, like he said. Why can the State Department of Health not talk to the State
Department of Agriculture? Instead they have to come to the Kaua`i County
Council with their concerns? I mean, it makes sense that if you have a health
concern, a serious health concern, and you rent the State Department of Health
would you not talk to the State Department of Agriculture and tell them "Hey, I
have these concerns? Can you help us? Can you help us to determine if it is fact or
if it is accusations?" Governor Abercrombie stated in the paper, we interviewed
him, the Garden Island, and in the paper he said while he has his own personal
feelings about GMOs, he is waiting for more facts and evidence before he says what
he truly feels. As the Chief Executive Officer he oversees the whole State and he
has not made that conclusion. He oversees the State Department of Health, the
Department of Agriculture, convince him. You folks have facts or evidence,
convince him. Mazie Hirono, our Senator, she came down in February I believe.
Mr. Bynum and Mr. Rapozo were both present at the Hawaii Government
Employees Association (HGEA) Office and she asked us for what are our concerns
and I brought up the question. I think I shook up the whole office there. I said
GMO issue is a hot topic here. What is your stance? You need to take a side on this
thing and at that office she said I am still waiting for more facts and evidence. Yes,
I mean, all of the people that represent Kaua`i that oversee those areas, agriculture,
health and safety, pesticide use, they are our Kaua`i representatives and they are
waiting for more facts and evidence. We say here that we have a lot of facts, we
have a lot of evidence, well, if there is so glaring we need to convince our State and
Federal representatives. We hear that they are all corrupt? I am sorry, I do not
agree that they are all corrupt. I think if it comes to protecting people's health, they
will do the right thing and safety, but I think it is a very complicated issue. We are
trying to get educated on it in a few months. I think it takes years to become an
expert in that area. Like I said, for those who do not know, I have grown up all of
my life on the West Side of Kaua`i, born and raised here, forty-seven (47) years. I
lived two (2) houses away from a sugarcane field until it turned into the Cliffside
Subdivision in Hanapepe Heights. My dad died of cancer at the age of fifty (50) but
he was a heavy smoker. Did he die because of the pesticides from the sugarcane or
did he die because he smoked a lot of cigarettes? I cannot factually say he died of
either. My mom still lives there and the seed company is just a little bit to the west
of that. Do I care about people of Kaua`i? Sure. My own family and friends come
from the West Side. Why do you think during the election, a lot of people said how
did you win, this newcomer? It is because I have a lot of friends and family from the
West Side that I finished No. 1 in Kekaha through Hanapepe, home of the seed
company by a resounding margin. On the East Side I did not do too well, but people
do not know me too well. But it is a thing that I do care about, the impact. I hear
testimony on both sides. I have friends on both sides of the issue that have
testified. But it is just that do I want the County to oversee something that is
already regulated and do I think the County can step into that area and do a better
job than the Feds and the State? I think we have a hard enough time taking care of
our responsibilities and with that I will summarize by thanking members for
standing strong. I think we will do the right thing in the end and protect this
County. Thank you.
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Chair Hooser: Thank you, Councilmember Kagawa.
Councilmember Rapozo.
Mr. Rapozo: Thank you, Mr. Chair. I really did not have
any prepared statement, but after hearing from Mr. Hooser and Mr. Kagawa, we
will do the right thing at the end for some of you and for some of you maybe not so.
I do not remember a more divisive issue on this island, Super-ferry and GMO taro, I
think those were all pretty significant. But as far as the emotions running with this
issue, I have never seen anything like it. I am assuming that the other
Councilmembers get the same two hundred (200), three hundred (300), or four
hundred (400) E-mails a day and the phone calls. Some of them not very pleasant
and some of them do not know who I am, accusing me of selling out and that is not
needed here. I think Mr. Kagawa said it best, to expect this Council to understand
this issue in a month or two (2) or three (3) is really not reasonable because we have
the task of sorting out all the testimony, we have the task of sorting out through all
of the emotions and getting to the facts and the studies. I think Mr. Kagawa brings
up a good points about his father who passed away. I have asthma as a young child.
My son and my daughter both had asthma. We live nowhere near the fields, but my
asthma was attributed to, believe it or not, flowering plants and mock orange. That
is what mine was, that is scientific. The doctors figured it out through a series of
shots. There was no indication that my asthma, my son's asthma, and my
daughter's asthma came from anything outside of that. But what we hear today,
and that is what I think part of what we have to sift through is when we have a lot
of experts because everybody is an expert in their field whether it is a doctor, a
lawyer, a farmer, they are all experts in their field. But when I hear the doctors
come up and the nurses come up and they say there is this outrageous number of
cases on the West Side and we do not know what the causes are. I mean we do not
know. I am interested in finding out what those causes are. Is it the smoking? Is it
the flowering plants? Is it alcohol? Is it an allergy to something else or is it in fact,
the pesticide use? We have to go through all the testimonies and believe it or not,
we actually, I am assuming everybody here reads them. But at the end of the day,
we have got to come up with a Bill, we have got to come up with a resolution that
does what we need to get done, number 1 because that is what should be driving
this ship and not emotions. It should be what is the end result? JoAnn will always
say what is the end in mind? What is that? We want to make it safe and we want
to do it in a way that it is going to happen, it is going to work because the law itself
we have laws on the books, you all know. I am not go into the other issues that this
island faces, that we have laws but it does not get enforced. It does not serve any
purpose except to say that we have a law, but the end result has not been achieved.
How do we get to the end result is what I am interested? We have red shirts, blue
shirts and if you follow Facebook like I do, there are some nasty things back and
forth and we do not need to do that. We are not going to get to the resolution that
way. I guess my point is that if we continue on this path, at the end of the day we
are going to have the reds and the blues upset with each other regardless of what
happens, versus a process which I think this body could facilitate, to get everybody
on the table so that the issues can be addressed and I am saying this right now,
seed companies you folks have to step it up as well and somehow get the community
to feel safe. It has to be done. This issue has become a GMO issue which it is not a
GMO issue. It is a pesticide issue, but it is being used as the vehicle to carry the
GMO issue and that is where I think we have to separate the two and deal with
what is really happening on the West Side. That is what we have to deal with.
Believe me, we are getting inundated with testimony from the mainland, I got one
from — we all did, it is from all over the world. Let us just say that we are getting E-
mails from all over the world about banning GMOs. It is not a banning GMO Bill.
It is a pesticide Bill. I think we are losing the direction and the focus of what I
think the original intent of the authors to deal with the safety of the West Side
EDR COMMITTEE 10 AUGUST 5, 2013
people. I only hope as we go through today and today, let us set the tone today to
all strive to get to the end result of making this a safer place. The emotional
testimony, believe me, is very compelling. But I want to make sure that collectively
we get to the point we need to be. Thank you.
Chair Hooser: Thank you, Councilmember Rapozo.
Councilmember Nakamura, did you have remarks?
Ms. Nakamura: I would just like to echo everything that Mel
said and I do not have any remarks at this time.
Chair Hooser: Councilmember Yukimura.
Ms. Yukimura: Thank you. I support and agree with the
intention of Bill No. 2491, which as I see it is to inform and protect the public and
the natural environment. I do not think there is a single person on Kaua`i who does
not share that goal. However, we know that good intentions are just a start and
without effective action in this case, without effective provisions in the law that
stand up in court, we will get nowhere. The law needs to be designed and written in
such a way that it achieves its purpose and does not cause significant, unintended
consequences that harm individuals or organizations unjustly. Councilmember
Hooser says that this Bill was not meant to shut down the seed companies. If you
take out the seed companies, Kaua`i Coffee which is not a seed company, has said
that the setbacks as proposed will cut their acreage in half from three thousand
(3,000) acres to one thousand five hundred (1,500) acres, that could shut down a
company. So, we have to really look at what the impacts of this Bill are. I am still
going through two thousand (2,000) plus E-mails and written and oral testimonies
that have been submitted including attachments and links. I want to thank each
person who has offered your thoughts and information. I have learned a lot from
you and I am proud of all of you who have spoken up and taken personal
responsibility for your community and for your life. There is just a lot more to learn
because this is a very complex Bill with multiple facets each of which requires good
understanding to be able to create an effective law. I am still in a learning mode
and I think this Committee Meeting is designed for that since we have both experts
and other public testimony. I expect a form of the Bill to pass, I said that at first
reading. But I think there is still a lot of work to do. I just have one request to
everyone and that is to please exercise real aloha here because there is a huge
amount of intimidation going on. Over the weekend I spoke to a lot of small
farmers in this community, some of whom are not even dealing with GMO. But
they have taken a position on this Bill as is their right to and they have gotten
inexcusable Facebook and yelp and other kinds of false information. I want to cite
my friend Johnny Cardenas who has taken a position against Bill No. 2491 and
there is all kinds of falsehoods about how he is using sprays on his tropicals which
is not even food and it is not true either. He is not using it and yet another small
farmer who is well respected in this community will not even come and speak. I
said you have to come and speak and that person said I cannot because they will
target me and my farm and that is not what a democracy is about. That is not what
this community is about. It is happening on both sides, but please. My friend
Laura Thompson teaches the Aloha Peace Project in the school. It is an
anti-bullying curriculum and there is a component in it about the caring majority.
So, it you see a bullying happening, what do bystanders do? They do not just turn
away. There is a caring majority here that stands up and says this is not how we do
things in your community. I am calling on all of you, not only to watch your own
behavior, but to speak out and remind others because I think if we can do away
with this kind of behavior and come together and listen to each other, we can find a
EDR COMMITTEE 11 AUGUST 5, 2013
solution that will work for everyone, is my belief. But it is going to take really hard
work. Thank you.
Chair Hooser: Thank you, Councilmember. You have heard
from the Committee members, two (2) non-Committee members, Councilmember
Bynum and Council Chair Furfaro will be participating in the discussion today too,
but officially they are not members of Committee. But usually the way we work
around here is everyone is involved. Councilmember Bynum.
Mr. Bynum: Thank you. This is the first time we actually
started to get talking about the specifics of this. Under the Sunshine Law so far
what we have been doing is receiving information. I want to start by saying there is
this international debate about the safety of GMO foods. That is not what this Bill
is about and any discussion about that issue is corollary and really not appropriate
because this Bill does not have any findings about the GMO safety of food. What I
want to say is — well, let me get through this quick and go through fast mode.
About ten (10) years ago, I met two (2) remarkable women our community. I think
they are both in the room today, one of them is Jeri DePietro from GMO Free
Hawaii and the other is Cindy Goldstein from Pioneer. I respect both of these
women a lot. I have learned a lot from both women and they have a lot in common
even though they are on different sides of this issue. What they have in common is
that they both came to me eight (8) or ten (10) years ago and said, "Tim, please get
yourself educated about these issues." They both said that there is a lot of
misinformation on the other side, so please get educated because this is a really
important thing for the County of Kaua`i. I have spent the last ten (10) years doing
that and I want to tell people on Kaua`i from the bottom of my heart, there have
been major changes on this island in the last ten (10) years. Many of you may not
be aware that are a cause for serious concern. These issues we are going to come to
a head whether there was this Bill or not. What are those changes? Most of this
goes down to one key issue for me, we are a farm community. We always have
supported farming. We have tax laws that incentivize farming. We have a proud
history of farming. All of the farming that was happening on Kaua`i, and I believe
all of our laws, assumed agricultural production of a commodity, commerce
happening. Commerce is the selling of products. All of the agriculture that we are
familiar with, the agriculture that we support is agricultural production
agriculture. We are used to it. In our Right to Farm Bill in State of Hawai`i says
hey, you move next door to a farm, there is going to be some nuisances that you
have to tolerate. We are going to have a special dissension for farming because it is
so important to our commerce, our community, and our agriculture. I want to tell
you that what the seed companies are doing on Kaua`i is not agricultural production
practices. It is agricultural research practices which are entirely different. Now, I
have been moved by all of the testimony. I was moved by the workers in the field
that say they put safety first, that they have a very meticulous employer who
focuses on safety and I do not doubt that for one second because the people running
the agricultural research practices on Kaua`i are scientists and they are very
meticulous. They keep very meticulous records and I am certain that they put
safety first even more so than production agricultural practices. But it is research
agricultural practices that are happening here. Well, what does that mean? First
of all, it means that they are not producing a product. There is no product that gets
sold from these companies, therefore the government gets no revenue. When Kaua`i
Coffee sells coffee, they are involved in agricultural production practices which
means when they sell their product, it generates General Excise (GE) revenue for
the State. It involves commerce and our community. I am going to have to go really
quick because that is not what the seed companies are doing here, right? If you are
in production agriculture and those who have lived here for many years know that
there is pesticide spraying in the process of production, that pesticide spraying I
EDR COMMITTEE 12 AUGUST 5, 2013
have talked to a bunch of farmers including seed companies for typical corn
production would be eight (8) to ten (10) exposures to pesticide over a ten (10)
month growing cycle. What if I told you that the agricultural research practices on
Kaua`i has spraying happening at twice that frequency? What if I said it was three
(3) times that frequency and not ten (10) times a year, but thirty (30) times a year?
That is totally different than spraying eight (8) or ten (10) times and being exposed
with six (6) weeks in between sprayings. What if I told you on Kaua`i they are
spraying two hundred forty (240) days out of the year? There is no agricultural
research practice in the world that does that. This is totally different. The other
thing people on Kaua`i need to know is that for all of our support for diversified
agriculture and bringing agriculture products, we are kicking agriculture producers,
Kama`aina agriculture producers off the land in favor of the seed companies who are
not producing anything for us to eat and they are not even paying appropriate taxes
so our taxpayers are subsidizing. I have run out of time. I have ten (10) more
issues I would love to discuss. This is the most important Bill that has ever been
before Kaua`i and please engage in the process.
Chair Hooser: Thank you, Councilmember Bynum. Council
Chair Furfaro.
Mr. Furfaro: Thank you, Committee Chair Hooser and
thank you for being here today and for our open public hearing. I want to first say
to my colleagues here on the table, you should all know that we are pretty united in
purpose here to have this discussion, that is the first thing that shows about our
stewardship of our island. To have this discussion in a very meaningful dialogue to
hear all of the points of view. As well I think my colleagues are quite capable of
skillfully negotiating with both internal customers like other government agencies
and people who advise us on what the political subdivision of Kaua`i stands for and
what authority we have. First of all, I want to thank them all for participating in a
very meaningful discussion. This topic is very stress laden for our entire community
and I hope we take it in the spirit that the conversation will lead to a good outcome
wherever it goes. But I also ask that you recognize the courage we have to have this
discussion, but you also practice ho omanawanui, have the patience to let us here
all of the point of views. It is extremely important. I drive home and my family's
kuleana is down in Kalihiwai and I see a sign with my name on it and it tells me
how I should vote. Well, I see myself as an exceptional steward of the place and I do
it for my children and I do it for my mo opuna, so let us all do it really skillfully. Let
us have an open dialogue and know there are restrictions with the political
subdivision of Kauai can do. But let us hear all points of view. Let us do it king ole,
without flaw. Let us not hear about issues out in the community where
communities turning against one another. That is not Kaua`i. That is not Kaua`i.
We do things different and better here. My koko olua, my sidekicks, my nieces, my
nephews, they are all sharing with me their opinions. But I do want to let you know
that Mr. Hooser is going to lead us through this. Whatever comes about, let us do it
respectfully. Mahalo, thank you.
Chair Hooser: Would the Clerk please read the Bill as
stated on the agenda?
Bill No. 2491 A BILL FOR AN ORDINANCE TO AMEND THE KAUAI
COUNTY CODE 1987, AS AMENDED, BY ADDING A NEW
ARTICLE 22 TO CHAPTER 22, RELATING TO PESTICIDES
AND GENETICALLY MODIFIED ORGANISMS
Chair Hooser: Thank you. I think the process is to suspend
the rules and bring speakers up. The first speakers are going to be speaking about
EDR COMMITTEE 13 AUGUST 5, 2013
legal issues and I think there are three (3) individuals here, Mr. Achitoff from
Earthjustice, you want to move forward? It will be a question and answer, it will
not be a presentation. Mr. Alston, if you would like to come up. Then members will
direct their questions to whoever they want to direct them to. Mr. Hoshibata, is he
here? If you could come up. Some of you may not get questions and some may. But
it will depend on the members. We are going to go one member at a time, there will
be two (2) rounds of ten (10) minutes apiece, and there will be a timer. Mr. Kagawa
will start the process. Anyone you would like. If you could just briefly introduce
yourself and who you are.
There being no objections, the rules were suspened.
PAUL ACHITOFF: Aloha, I am Paul Achitoff.
Chair Hooser: If you could speak up too. We get comments
from people watching it online that they cannot hear what we are saying.
Ms. Yukimura: Also from behind the room.
Mr. Achitoff: I am Paul Achitoff and I am an Attorney
with Earthjustice.
PAUL ALSTON: Good morning, I am Paul Alston from the
law firm Alston Hunt Floyd & Ing. I represent Syngenta.
JOHN HOSHIBATA: Good morning, my name is John Hoshibata
and I represent Pioneer from the law firm of Bronster Hoshibata.
Chair Hooser: Thank you gentlemen, for coming. You all
flew over today just for this, I am guessing. So, thank you very much. Mr. Kagawa,
did you have questions?
Mr. Kagawa: I will pass for now.
Chair Hooser: The ten (10) minutes is not something that
we can hold in arrears. You get your second ten (10) minutes, but we are going to
do one pass.
Mr. Kagawa: Okay, I will go ahead.
Chair Hooser: I appreciate it just because so many
members have questions and we are trying to get through, so we have some rules
today. Go ahead.
Mr. Kagawa: This question is for Mr. Alston and
Mr. Hoshibata I guess first. If this Bill passes as-is, is it a possibility that you are
going to file a lawsuit because of preemptive right to farm, etcetera?
Mr. Alston: I think you should take that as a given, yes.
Mr. Kagawa: Is there any case law on the mainland that
you know of where you have been unsuccessful?
Mr. Alston: I think both Mr. Hoshibata and I agree as do
most lawyers across the mainland for the companies that there is case law which
EDR COMMITTEE 14 AUGUST 5, 2013
demonstrates that the County simply cannot pursue the type of regulation that is
contemplated in Bill No. 2491 as it is presently written.
Mr. Hoshibata: I would add that there are lawsuits and
there are results going both ways depending on the facts and circumstances. But I
also agree with Mr. Alston that you do have this framework of regulations which
has been referred to already on the Federal and on the State level which do preempt
certain County actions. In this case, in what this County is attempting to do with
pesticides. I do not mean that in any bad way or negative way, but the way it is
setup is that there are Federal statutes, Federal agencies, Federal people, State
agencies, State people who are doing this work that this Bill seeks to accomplish.
Mr. Kagawa: I guess Mr. Achitoff, if you have any
comment whether we have any case law based on any other County municipality
that has a Bill similar to this that I guess challenges the preempt law?
Mr. Achitoff: Councilmember Kagawa, I would first want to say
that when we talk about this Bill and the provisions of this Bill and whether or not
any aspects of it may be preempted, we have to be very specific. We cannot just say
this Bill is preempted or this Bill is not preempted, that is meaningful. This Bill
contains a lot of different provisions that have a lot of different effects and I think
you have to look at them individually. Then as to whether any particular aspect of
it is or is not preempted, that is a very specific analysis. For example, if you want to
say are there aspects of this Bill that are preempted by Federal law, aside from
asking well which provision are we talking about, I would say which Federal law
are you talking about if you say this is preempted by Federal law? Well, the major
Federal pesticide law is Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) and the Supreme Court decided thirty (30) years ago in a challenge called
Wisconsin Public Intervenor vs. Mortier, — I am sorry, that was about twenty (20)
years ago, that the Counties do have the right to enact Ordinance that restrict
pesticide use. It was a, I think, an analogous situation where a County said if you
want to be able to spray pesticides you need to come to us for a permit, we have the
right to regulate, and so forth.
Mr. Kagawa: Which County was that?
Mr. Achitoff: This was a County in Wisconsin. The person
went and asked for the County for a permit to aerially spray his property, the
County said no and he challenged it. It went all the way up to the United States
Supreme Court in which he said this is preempted by FIFRA, the County cannot do
this. The Supreme Court said, "No, you are wrong." They said that FIFRA is not a
statute that generally other than for labeling requirements and packaging
requirements. FIFRA does not have a comprehensive statutory scheme that
preempts local Ordinances and in fact it simply does not purport to do that. I would
add that at that time former Attorney General Warren Price on behalf of the
WAHAD Administration submitted an amicus brief to the Supreme Court forcefully
arguing that in fact FIFRA does not preempt and he was right.
Chair Hooser: Was that five (5)?
Mr. Achitoff: Well, that is the United States Supreme
Court so that takes care of the whole issue for the whole Country.
Mr. Kagawa: Are you familiar with House Bill 673, it just
passed this past session at the Hawai`i State Legislature, Act 105 regarding
pesticide use and posting online?
EDR COMMITTEE 15 AUGUST 5, 2013
Mr. Achitoff: Yes.
Mr. Kagawa: Does that take care of some of what our Bill
is asking for?
Mr. Achitoff: When you say "take care of it," does it
address the same concerns? Does it preempt?
Mr. Kagawa: Yes. I mean, why would the County do the
same thing that the State is already doing when they manage pesticide use?
Mr. Achitoff: Well, I think the question as I hear it is, to
the extent that the State is in fact requiring exactly the same thing, then I do not
know the need for having two (2) Bills that do exactly the same thing. To the extent
that the County wants to do something that the State law does not require, the
question is does the State law preempt the County from doing that and I would say
no.
Mr. Kagawa: No, I am not on preemptive on that. I am
just saying does that Bill satisfy the reporting right to know what is being used? It
says, "the Department shall publish on its website all reports received by the
Department regarding Restricted-Use Pesticides (RUP) in the State."
Mr. Achitoff: Well the question is, as I read the County
Bill there is a little more information than that that is being requested.
Mr. Kagawa: So, there is a difference.
Mr. Achitoff: There is a difference, yes.
Mr. Kagawa: The other...
Mr. Achitoff: The County, as I understand it, also would
like certain information to be made public that may not be public under the State
law.
Mr. Kagawa: Well, I know what you are saying is that we
can do it, you have a good feeling from your experience with Earthjustice. But the
County of Kaua`i, we do not have a pot of gold to be the first one to really challenge
the laws and go through a long Court battle and put our taxpayers on the hook. I
think what I really want is that if we have strong arguments why do not we just
present them to the State Department of Agriculture, to the State Department of
Health, to the EPA, to our congressional delegation, or to our Governor? We
already have a Bill in place here that allows the State Department of Agriculture to
post online the right to know what Restricted-Use Pesticides are being used, all
reports it says, all reports received by the Department.
Mr. Achitoff: It does not say what reports are required,
does it?
Mr. Kagawa: I guess, all reports may not be the same
reports that are intended by the authors of this Bill, but there is a start there that
just passed this session. I know it is kind of difficult right now. It has only been a
month since July 1st when it became a law. I know it is hard to say in a month how
successful that has been.
EDR COMMITTEE 16 AUGUST 5, 2013
Mr. Achitoff: Well, I would also point out that the
State legislation allows the companies to decide for themselves what are trade
secrets and the public is never going to see that unless the industry has a long
history of calling everything that they do not want the public to know a trade secret.
Mr. Kagawa: I understand. That is what I was really
looking for is that answer, actually, that could be a reason. I am good for now.
Thank you.
Chair Hooser: Thank you, Councilmember Kagawa.
Councilmember Rapozo.
Mr. Rapozo: Thank you. This is pretty awkward
situation. It is like having the trial before the trial is kind of how I feel. Having
both sides of Attorneys here and our County Attorney not and yet our Attorney is
our County Attorney and not any of you. So, this is pretty bizarre and I do not
think it is ever been done, but I appreciate this and I appreciate your folks'
willingness to be here and testify. I just really do want to follow-up on
Mr. Kagawa's question about the proprietary or what you call trade secret
information. The State's statute state that the company can determine what is
proprietary. How would the County, and this question is for all of you, how would
the County be able to mandate that they turn over trade secrets? We can start with
you.
Mr. Achitoff: I will cite another case. This one actually
was about thirty (30) years ago in which Monsanto sued and this also went up to
the U.S. Supreme Court. The EPA at that time was requiring certain information
that included what Monsanto considered to be trade secrets and EPA passed
regulations saying if you want to register your pesticides under FIFRA, you must
provide the following information and we may in fact, we likely will disclose this
information to the public. Monsanto said you cannot do that, that is going to be a
taking of our intellectual property because these are trade secrets. The Supreme
Court said in that case, "Monsanto, you are wrong." To the extent that the EPA has
told you in advance here is what you are going to be required to do and this is the
price you pay for doing business. You can decide whether or not you want to do
business and if you do not want to, well you can sell your products overseas where
the laws may be different. But if you want to register your pesticide in the United
States, you know in advance that this is what is going to happen to the information
that is being asked of you. There are no secrets here in the sense that you are not
going to be surprised that the public is going to find out. If you do not want to do it,
do not do it, but the EPA can require you to do it as a condition.
Mr. Rapozo: What was the Court's ruling?
Mr. Achitoff: The Court's ruling was that the EPA could in
fact, make this requirement and it did not constitute a taking of Monsanto's
property.
Mr. Rapozo: And that would, in your opinion, be sufficient
for this County to require because I do not know.
Mr. Achitoff: Well, I think you would have to look more
specifically at the Ordinance and what its effect would be and the type of
information that we are talking about and so forth. I think as a general principle,
the County can require information like that, trade secrets, as a condition of doing
business in Kaua`i. However, you do want to look at whether the information that
EDR COMMITTEE 17 AUGUST 5, 2013
is being requested, the trade secrets in particular, how closely related is that to
public health? Is it something that bears a close relationship or can you protect
public health adequately without requiring disclosure of certain trade secrets? I
think that is an important principle.
Mr. Rapozo: I understand it is very difficult to get legal
opinions, if you will, in a ten (10) minute period. I am just trying to better
understand some of the arguments. I will ask another question and then if you
could cover both topics in your response. The issue here, I know a lot of the issue is
about FIFRA and I think it is pretty clear that FIFRA does not preempt. For me
anyway, that it not the question.
Ms. Yukimura: Mel, explain FIFRA.
Chair Hooser: Councilmember Rapozo has the floor.
Mr. Rapozo: The Federal Pesticide Act. I do not know
what it is, FIFRA is how I know it and I apologize. What is FIFRA somebody?
Mr. Achitoff: Federal Insecticide, Fungicide, and
Rodenticide Act
Mr. Rapozo: Oh, JoAnn, you always do that to me.
Anyway, for me, I am clear that FIFRA does not preempt this County. I am clear on
that. I think we all are and I am hoping that we all are, but it is not the FIFRA
that I am talking about, I am talking about the State. The State preemption is my
bigger concern. Again, this is an awkward situation because we have just come out
Executive Session which we are not allowed to discuss, but I am curious to hear
from — and we can start with you Mr. Alston, on the FIFRA issue. I know that we
have probably five (5) left or less maybe on the State level preemption.
Mr. Kagawa: That is five (5).
Mr. Rapozo: Right on target. I still have five (5) more?
Chair Hooser: Yes.
Mr. Rapozo: If you want to just touch on the State
preemption and then maybe start your response.
Mr. Alston: Let me talk about Act 105 because that was
a hotly debated issue before the Legislature of this last session. If the Legislature
had done nothing, then you would look at a situation where there is no a situation
State policy regarding disclosure and reporting of pesticide use. But the State has
now said, "This is the regime that we are going to adopt for the State. We are going
to give some protection to trade secret information, we are going to require that
other information be reported and by made publicly available. For the County now
to say we do not like that State policy, we want to do something more, is to fly in the
face of the work that the legislature has done to set the Statewide scheme for this
area. I think that the fatal flaw in Mr. Achitoffs argument is that the State has
weighed in here, has said what is to be disclosed and how, and what can be kept
private and how. It has set up a scheme where the Department is supposed to
prepare forms which are still to my knowledge, not been completed. The best thing
that you could do is stand back and see what is done with the State's scheme, see
whether the reporting that follows under the State system is adequate for your
needs and for the needs of the community and either re-visit the issue after we have
EDR COMMITTEE 18 AUGUST 5, 2013
some experience under our belts with that system or go back to the Legislature
through your Legislators and say this is not working for us, you should do more,
and urge them to do it. But this is not a situation where the law permits sort of a
free-for-all with everybody decides that they want more or something different than
what the State has chosen.
Mr. Hoshibata: I would agree with that. In this case the
State has spoken. The State is all of us, it is not just O`ahu or Kaua`i or Moloka`i.
The State includes Kaua`i. The State has chosen to do and enact what it believes is
best for everyone and for any entity whether it be here in Kaua`i or whether it be in
Lanai, to say, no, we are going to try something different. We are going to totally
disregard what the State has done after all of their work and all of their research is
not allowed, it is preempted and it is precluded. I think with respect to a practical
way of looking at this, I do think that what Paul has said is right. Is that if in going
forward there are problems that occur, that you see, that anybody else sees, that
needs attention and needs remedial action then that is the way to go. That is the
way to go, not create a third layer of regulations and possible bureaucracy that I
think is going to muddy the waters.
Mr. Achitoff: Well, what my colleagues just said has very
little to do with preemption of law. It has to do with what the Council might be
well-advised to do. But as to whether the Council is entitled to do something other
than that, that is a matter ever of what the law requires in terms of preemption.
The State has certainly not said this is how we want uniformly and exclusively
throughout the State of Hawai`i notification of pesticide use to occur. If they said
that clearly and said we do not want any of the Counties to get involved in this, I
would agree with what they said. They did not say that. They said here is what
you are required to do under State law, that is all they said. I want to make one
thing clear here about preemption under State law. After that case, that Wisconsin
case about FIFRA that I mentioned that happened decades ago, the chemical lobby
went all around the Country and lobbied to get express pesticide preemption laws
integrated and pesticide preemption laws into State law. They have succeeded in
about forty-one (41) States. Hawai`i is not one of those States. If you go to one of
these forty-one (41) States, you will see language in their State law that says very
specifically, no city, town, or County, may adopt any Ordinance that restricts or in
any way regulates pesticide use in these ways including notification and all of these
other things, basically what is happening here is Hawai`i does not have that
language. But the industry is trying to say that that preemption exists anyway
even though that the legislature has never done that.
Mr. Hooser: Thank you very much.
Mr. Rapozo: I apologize. I am done.
Mr. Hooser: If you want to wrap up.
Mr. Rapozo: That was my ten (10) minutes.
Chair Hooser: Thank you very much. Councilmember
Nakamura.
Ms. Nakamura: Thank you. I have asked for the Attorney
General's opinion on this issue and I am looking forward to getting that in writing
so that we can proceed on this section. If there are concerns then this section on
page 6 of the Bill, Section 22-22.4, mandatory disclosure of pesticides and
EDR COMMITTEE 19 AUGUST 5, 2013
Genetically Modified Organisms. Depending on what our County Attorney and the
Attorney General says would impact this particular section, is that correct?
Mr. Alston: Yes.
Ms. Nakamura: Is that your understanding?
Mr. Alston: What the Attorney General says should
obviously be given weight, yes.
Mr. Hoshibata: I agree.
Ms. Nakamura: So, I have a question relating to...
Mr. Alston: If I may Councilmember.
Ms. Nakamura: Yes.
Mr. Alston: I believe what the Attorney General has to
say on other issues as well that are presented by this Bill should be given
consideration because the State preemptive impact is not limited to this one issue.
Ms. Nakamura: Yes. I have a question about after the fact
EIS on private lands and some of them, I think are on public land as well. But do
you have any thoughts about that provision of the Bill regarding EIS?
Mr. Hoshibata: One thought that I have is that if this law
does passed and it does require an EIS, number 1 the EIS is going to take a very
long time and it is going to cost a lot of money. After the EIS is finished, there is
going to have to be a permitting process that is put in place and it is going to have
to have rule-making, Administration, or a list of rules to follow. By the time all of
that gets done the seed companies are going to be irreparable harmed because they
are not going to be able to do what they do which is getting into the moratorium
aspects of the Bill. That moratorium is going to kill the seed companies and that is
clear as day. The EIS and the processes that I just spoke about is probably going to
kill the seed companies as well.
Mr. Alston: By that, no one should think that you are
going to destroy Syngenta or Monsanto or the company, but you will destroy Kaua`i
as a viable place to do business with that sort of limitation on the operation.
Ms. Nakamura: Paul?
Mr. Achitoff: Well, I really cannot get into rhetoric about
what will and will not happen to the seed companies. I have not seen any economic
analyses as far as I can tell, it is just lawyer talk right now. If we are talking about
whether the County can in fact enact a moratorium, to me, the legal analysis is if
they do that, would that affect an unconstitutional taking of some kind? Again, I
would like to reference the U.S. Supreme Court in the Tahoe Sierra Preservation
Council versus Tahoe Regional Planning Agency case. This was about ten (10)
years ago. The Supreme Court held that a moratorium on all development for
thirty-two (32) months during the process of devising a Comprehensive Land-Use
Plan did not necessarily constitute a taking. It really depends on the balancing
between what is the actual impact of this moratorium? It is a fact specific balancing
inquiry. What exactly is the impact, what is the need for it, and so forth? Bill No.
2491 grandfathers in existing production and this particular Ordinance has health
EDR COMMITTEE 20 AUGUST 5, 2013
and safety purpose. The purpose of the moratorium is to allow more comprehensive
planning. All of those factors weigh against the likelihood this would be found to be
a taking.
Ms. Nakamura: Do you think there is an appropriate trigger
on the EIS?
Mr. Achitoff: On that question, to be honest, I do not have
a view one way or the other. I have not personally looked into the question of how
an EIS may be required under a County Ordinance. I just do not know.
Mr. Alston: I would agree with that. It is not clear that
the County can incorporate the requirements of the State law when the State law
does not provide for any obligation to create or prepare an EIS.
Mr. Achitoff: If County were to require an EIS-like study,
that would be an easier case and I would say I could not imagine any reason why
they could not. But if you characterize it specifically as an EIS under State law,
then I would say that I just do not know.
Chair Hooser: Councilmember Yukimura.
Ms. Yukimura: Yes, thank you. There are at least seven (7)
particular provisions in the Bill that are regulatory in nature. So, as I see it, it is
disclosure of pesticide spraying pre and post, buffers, dust, open air experiments,
moratorium EIS, and permitting. For each one of those I just want an answer from
each of you as to whether they would be likely overturned in court. Mr. Hoshibata,
can we start with you?
Mr. Hoshibata: I am sorry, I was trying to write pretty
quickly. You mentioned disclosure, the buffer zones...
Ms. Yukimura: Disclosure of pesticide spraying pre and post,
buffers, dust, open air experimentation, moratorium, EIS — they are tied together,
moratorium and EIS, and then permitting.
Mr. Hoshibata: With respect to disclosure, I think that
disclosing information that relates to trade secrets, that relate to...
Ms. Yukimura: But this is just pesticide spraying.
Mr. Hoshibata: Okay.
Ms. Yukimura: Is that a trade secret?
Mr. Hoshibata: Well, on pesticides, yes. As long as you are
using pesticides, you are using chemicals and combinations of chemicals that differ
from one company to another.
Ms. Yukimura: Yes, but they are registered pesticides. They
are not trade secrets I do not think. What we are looking at is when are they
sprayed, what types of pesticides are being sprayed, and how much?
Mr. Hoshibata: Some of the provisions that talk about
seventy-two (72) hours in advance, seventy-two (72) hours after. The problem is
that a lot of spraying that is done by the seed companies — I will not say a lot
EDR COMMITTEE 21 AUGUST 5, 2013
because I cannot say that accurately. I am not that well-versed in the details, but a
certain amount of spraying is spraying in spots, not total overall spraying of all
fields and for one area to have to post a sign seventy-two (72) hours in advance
assuming that that area is going to be overridden with pests in the first place, I
think that is something that is totally outside of the scope of reasonableness.
Ms. Yukimura: Okay.
Mr. Hoshibata: If you are going to have to disclose that
certain things are going to happen or certain things are not going to happen, I think
it is inherent within the industry that a lot of that is unknown. Now, to the extent
that it is scheduled and everything is known about what is going to happen and
when it is going to happen, there may be some way of disclosing. But to a large
extent I do not see it just because a lot of it is just not possible.
Ms. Yukimura: I am wanting to hear your legal opinion
about this. If this is in it the rubric of pesticides that is preempted by Act 105 or
whatever, all I want to hear is it is likely to be overturned.
Mr. Hoshibata: It is likely...
Ms. Yukimura: I mean that is...I do not need to know. I can
talk to the seed companies about the operational complications.
Mr. Hoshibata: Yes.
Ms. Yukimura: But from a legal standpoint, that is what I
am wanting on each of these issues.
Mr. Hoshibata: I understand. It is likely to be overturned.
Ms. Yukimura: In your opinion?
Mr. Hoshibata: It is too broad, too vague, yes.
Ms. Yukimura: Buffers?
Mr. Hoshibata: Buffers are definitely going to be overturned,
because it is an illegal taking under the Constitution.
Ms. Yukimura: Thank you for the explanation. Dust?
Mr. Hoshibata: Dust is number 1, it is vague and ambiguous.
What is dust? How much dust are we talking about? I think it is definitely
overturned because it is vague, it is ambiguous, and there is no real way of
quantifying it. Furthermore, I believe that the Hawai`i Farm Act says that dust is
not a nuisance and therefore is going to be protected.
Ms. Yukimura: Open air experimentation?
Mr. Hoshibata: I read the Bill and it is very vague and
ambiguous and not in detail about what they mean by open air experimentation.
Ms. Yukimura: I agree.
EDR COMMITTEE 22 AUGUST 5, 2013
Mr. Hoshibata: I think it is vague and ambiguous and will be
overturned because of that.
Ms. Yukimura: And moratorium, EIS, if you want to put
them together?
Mr. Hoshibata: Yes, as a practical matter I think you put
them together because again, it will be overturned because it is an illegal taking
under the Constitution, under both the U.S. and the Hawai`i Constitutions. It is a
taking of property without adequate compensation.
Ms. Yukimura: And permitting?
Mr. Hoshibata: And permitting, I would say that is part of
the same process when you are talking about EIS, rule-making, and permitting
process. That is going to take time. I also think that it is going to be vague and
ambiguous and it will run the companies out of business. I believe that would be
unconstitutional and it will be disallowed.
Ms. Yukimura: Mr. Alston, thank you.
Mr. Alston: With respect to disclosure spraying, I think
it will not withstand legal scrutiny in large part because requiring disclosure
seventy-two (72) hours in advance is just simply impractical in light of the changing
weather conditions and changing circumstances regarding the use of the pesticides.
When you say to impose that requirement, is an unreasonable burden and an
unreasonable limitation on what the companies can do. I also believe there are
Federal disclosure requirements regarding usage and that those will preempt any
local Ordinance. Buffers, I agree with Mr. Hoshibata. I think that they are already
in the Federal regulatory schemes buffer zones and they take preemptive effect.
The County does not have authority to add more. The dust issues, again, I agree
with Mr. Hoshibata. The Right to Farm Act says what can be regulated as a
nuisance in effect, this Ordinance declares dust to be a nuisance and I do not think
it can be regulated. Open air experimentation, preempted by Federal law. EIS/
moratorium, preempted as a taking and that is true under both the Federal
Constitution and the more protective provisions of the State Constitution which
forbid not only taking without compensation, but damaging property without
compensation and the permitting is preempted by both State and Federal law.
Ms. Yukimura: Thank you. Paul.
Mr. Achitoff: Thank you. Well, I think that the sort of
wholesale dismissal of these provisions without analysis is really just meaningful.
Takings law is very fact specific, particularly when you are getting into the realm of
regulatory takings where you are not depriving someone of all economic use of their
property. Where you are restricting their use of property in various ways to protect
public health, there is a burden that the property owner is going to have to
overcome to establish a taking. I think in these cases it is going to be a very stiff
burden that I think the companies are going to have a hard time meeting.
Ms. Yukimura: So, you think a moratorium/EIS permitting,
and open air experimentation will likely be sustained?
Mr. Achitoff: Well, let us take them one at a time. I am
sorry. If we are talking about disclosure...
EDR COMMITTEE 23 AUGUST 5, 2013
Ms. Yukimura: Of pesticide spraying.
Mr. Achitoff: I mentioned the Ruckles-Haus v. Monsanto
case which deals specifically with this issue and I think you have to start there
where the Supreme Court said that requiring disclosure even for public
dissemination is not necessarily a taking.
Ms. Yukimura: So, it has a chance in court?
Mr. Achitoff: I think it has a very good chance in Court.
Ms. Yukimura: Okay.
Mr. Achitoff: Buffer zones, as to whether those are takings
has everything to do with the extent of the burden, the extent of the impact, and the
purpose. If in effect you are taking away all economic use of their property, that is a
real concern. On the other hand, if you are not, if you are leaving them with an
ability to use their property to some meaning of extent, it is much less of a problem.
In terms of Federal preemption, I would challenge Council to name any Federal
statute that preempts any of these things.
Ms. Yukimura: Explicit or by...
Mr. Achitoff: Either implied or expressed. I do not believe
so. I have been litigating genetically engineering cases for ten (10) years, I have yet
to see anything approaching expressed or implied preemption of things involving
genetic engineering.
Ms. Yukimura: What about dust?
Mr. Achitoff: I am sorry, what about it exactly?
Ms. Yukimura: Do you think we can regulate it at this
County level?
Mr. Achitoff: You have an Ordinance that specifically
empowers you to do so.
Ms. Yukimura: And the right to Farm Act does not change
it?
Mr. Achitoff: The Right to Farm Act, let us be very clear
about the Right to Farm Act. The Right to Farm Act was expressly intended to
preclude nuisance lawsuits, not nuisance legislation, Ordinances, or everything else.
In fact, it is very clear in the Senate Report that underlay the passage of the Right
to Farm Act that says, "The purpose of this Bill is to protect agricultural operations
from lawsuits charging that the operation is a nuisance." The Committee Report
goes on and on talking about how it is designed specifically to deal with lawsuits. It
has nothing to deal with this Ordinance.
Chair Hooser: Thank you very much.
Ms. Yukimura: Thank you.
EDR COMMITTEE 24 AUGUST 5, 2013
Chair Hooser: Thank you, Councilmember. Councilmember
Nakamura the buzzer went off and you actually had five (5) more minutes, so you
are welcome to continue for the five (5) minutes.
Ms. Nakamura: That is okay.
Chair Hooser: Councilmember Bynum.
Mr. Bynum: Thank you. Thank you all for being here. I
appreciate it very much. I am going to start with the Right to Farm Bill, you just
said it. I will ask the Attorneys, have you seen the Committee Reports that said
that the purpose of this Bill was for nuisance lawsuits and the Committee Report
where the Committee specifically was asked as one provision to truncate the
County's authority and said, "your Committee believes that the Counties either
through zoning laws or other Ordinance should be permitted to make laws
regarding agricultural uses." That is in the legislative history.
Mr. Alston: Right.
Mr. Bynum: Are you aware of that?
Mr. Alston: Yes.
Mr. Bynum: And why is that not germane?
Mr. Alston: It is germane, but not dispositive and the
reality is that the County has authority broadly to regulate dust and other
construction or agricultural related activities that impact neighbors. What it does
not have is the authority to step in and say we are going to have one kind of dust
regulation for neighborhood farmers or people not doing GMO or other crops that
we do not like and we are going to have a special regulation for you because we do
not like what you are doing with these crops or with these pesticides. That, I think,
runs afoul of the principles that underlay the Right to Farm Act and more broadly,
other provisions of State law that are found in the Constitution as well as statutes
that say to the Counties and the people, farming is an important industry to our
State and it has got to be protected and promoted.
Mr. Bynum: Mr. Hoshibata, you have any response?
Mr. Hoshibata: I could not add to what Paul just said.
Mr. Bynum: Do you agree that the Right to Farm Act
anticipates production agricultural activities?
Mr. Alston: Yes.
Mr. Bynum: That the purpose was there for production?
Mr. Alston: It does not distinguish what you call
agricultural production and other types of farming.
Mr. Bynum: Well, I do not even know it if it is farming, it
is research. I have had a lot of farmers write me and say it is not farming. Farming
is when you produce a product to sell to someone. In Hawai`i Revised Statutes
(HRS) and my own research of this and all of these issues are specific to this Bill,
but they are also about what we have talked with here ten (10) years or more, what
EDR COMMITTEE 25 AUGUST 5, 2013
are the County's authorities? In Hawai`i, my impression, what I have heard from
other legal scholars is that we have unique powers in Hawai`i as Counties compared
to other States. We have a unique Constitutional mandate at conservation and we
have specific responsibility to protect the health and safety of our citizens, correct?
That is all in our Constitution and HRS?
Mr. Alston: Every government has some responsibility to
protect the health.
Mr. Bynum: So, HRS 46-17, and I want to read this
because this have been very meaningful to me throughout my time as a law maker.
"Any provisions of law contrary and notwithstanding, the Council of any County
may adopt and provide for enforcement of Ordinances regulating and prohibiting
noise, smoke, dust, vibrations, and odors that constitution a public nuisance. No
such Ordinance shall be held invalid on the ground that it covers any subject or
matter embraced with any statute or rule of the State, provided that any conflict
between the statute, rule or Ordinance, the law affording the most production shall
apply." Protection, I am sorry. I read this and said — and I read the Constitution
and I took the oath. It says you take the oath to protect the health and safety. The
Constitution says you are to focus on aina and conservation. The HRS says, you
have authority and if your laws are more protective than the State's, County you
trump. Now, that is unique to very few States like you said. I am sorry, I forgot
your name. Many States have specific provisions that say Counties you cannot do
this. Ours actually says you can and if yours are more protective now that is my
read of this, what have I got wrong?
Mr. Alston: Two (2) things. One is you have to look at
the existence of the Federal regulatory scheme which has been applied to the
activities of the seed companies and the fact that the Federal government has
reviewed and approved every pesticide that they are using and very crop that they
are planting. To suggest that the County under the rubric of statute has the
authority to override what the Federal government has said is proper is just wrong.
Mr. Bynum: Mr. Alston, I did not ask you about FIFRA
and I only have a limited time. So, if I would move on.
Mr. Alston: Sure.
Mr. Bynum: I would like Mr. Achitoff to answer that
because to me HRS 46-17 is right on the money, right on the mark.
Mr. Achitoff: I would agree with that and I would go a
little further in saying that HRS 46-17 also carves out specific exception for dust or
I should say cane burning. Essentially, it says Counties, you cannot do that. Now,
if the legislature intended to have other exemptions, they would put them in there.
But there is one exemption for cane burning, that shows that the State is
preempting the Counties on that subject. But everything else is fair game.
Mr. Bynum: Just one more thing about FIFRA. Are any
of you aware of the dialogue that is happening in the Senate right now in the last
week about FIFRA and the provisions that are being brought forward in the
proposal because this is being discussed Nationally right now?
Mr. Achitoff: I am not familiar with that.
EDR COMMITTEE 26 AUGUST 5, 2013
Mr. Bynum: Well, my read of it and somebody correct me,
is that Republicans are trying to put provisions in that preempt the States and
Democrats are saying no, we are not going to put those provisions in because we
think the laws should set a floor and not a ceiling if the States want to do more to
protect their citizens. Why are the Republicans trying to put provisions in to
preempt, if it already preempts?
Mr. Achitoff: Well, the Supreme Court took care of that
very clearly in that Wisconsin case, that is why if you want to preempt under
FIFRA, you are going to have to amend that law.
Mr. Bynum: And that is why I my opinion, this legal
question is going to come down to the State issues. The Federal issues are clear as
a bell, I think that we are not preempted federally.
Mr. Hoshibata: Excuse me, Mr. Bynum. You asked a
question earlier about HRS 46-17 and I would just like to make a comment on that.
Mr. Bynum: Please.
Mr. Hoshibata: HRS 46-17 states that the State, in the
middle of the first paragraph, "the State shall conserve and protection agricultural
lands, promote diversified agriculture, increase agricultural self-sufficiency, and
assure the availability of agriculturally suitable fields or lands." It cites to the
Constitution. I believe that is at least an argument that should be considered by
the Council, is that the State is given that responsibility.
Mr. Bynum: But it also contains this thing that says,
"Council of any County may adopt any Ordinance," right? It is pretty
straightforward, that says if your Ordinance is protecting the people more, you are
good to go. It sets a floor, not a ceiling. Just like the Federal law sets a floor, not a
ceiling, that is my read of this.
Mr. Hoshibata: I see that, but when there is that kind of a
balancing or weighing or even an argument between State and County, that is when
you run into problems.
Mr. Bynum: My last question is about Act 105. That was
Dee Morikawa's Bill. It was the third or fourth year. I testified in favor of that Bill
and unlike us, who have rules that says you cannot change the intent of the Bill, the
State legislature does not play by those rules. Unlike us that says if you are going
to make a change, the public needs seven (7) days' notice, the legislature does not
play by those rules. So, Act 106, my last testimony that it was amended so poorly,
that it changed the whole intention and took away the author's intention and so it is
just so ironic. Dee must be — now that is being cited because there was this Bill that
would have required some of the thing from the State, that is why we are here
because the State has refused to do these things and to have that Bill, that got just
totally changed. I really encourage you to look at the legislative history of that Bill
and at the testimony because to have that now cited as saying oh, the State has a
regulatory scheme is just incredible. Yes?
Mr. Achitoff: Well, I just want to comment. The
assumption if the State has a law on the subject and it is here is what you cannot do
or we are telling that you cannot do or that you must do, that this somehow
preempted the County is just wrong. It is just wrong as a matter of legal analysis.
In order to preempt, you have to find either express, implied preemption, or a
EDR COMMITTEE 27 AUGUST 5, 2013
conflict and if we are talking here about implied preemption, you have to look for a
comprehensive State regulatory scheme that shows an implied intent to be
exclusive and uniform throughout the State. So, it has to be comprehensive and you
have to look for some indication that the State actually intended to be exclusive.
You cannot just say because the State did this, the County cannot.
Chair Hooser: I want to let you all finish your thoughts. So,
I will not be interrupting. But we are going too long. I believe that is the end of the
time period. So, Council Chair Furfaro. I am sure some of these topics will come up
again in a second. Chair Furfaro.
Mr. Furfaro: Mr. Hooser I only have one (1) question and I
will yield my time because I am not on the Committee. All three (3) of you
gentlemen referenced Ordinances on the books that exists as it deals with
controlling dust and grubbing and so forth. Were you referencing our Grubbing and
Grading Ordinance as it relates to the application for soil conservation district?
Mr. Alston: Only generally. But I cannot say that I can
speak with any expertise or specificity about that Ordinance. But generally, the
Counties do have authority as Section 46-17 reflects, to control those sorts of things
because they exist in every community.
Mr. Furfaro: It is just that you said existing Ordinances so
I wanted to get clear in my mind? Could I get a confirmation of your thinking?
Mr. Achitoff: I am actually not familiar with that
Ordinance.
Mr. Furfaro: How about you, sir?
Mr. Hoshibata: I am familiar with the Ordinance slightly
and it is on grubbing specifically and grubbing and grading. But I do believe that
HRS 46-17 takes care of that, answers that question.
Mr. Furfaro: Mr. Hooser, I yield my time back to you.
Chair Hooser: Thank you very much. I have a few
questions. I would like Mr. Achitoff, resume what you were saying when I cut you
off in terms of the circumstances under which preemption applies. We were talking
about 149A, I believe. For those of you in the audience, 149A is a State pesticide
law. In your opinion, does that preempt provisions of Bill and if you could talk
about what are the elements of preemption?
Mr. Achitoff: The reason why I say that the State pesticide
law simply does not preempt this Bill is that the State pesticide law simply does not
have either expressed — it clearly has no express preemption provisions unlike over
forty (40) other States which do. So, we have to deal now with implied preemption.
For there to be implied preemption, you need to be able to find — and the burden is
on the party claiming preemption. So, that party is going to have to show that the
State pesticide law displays an intent by being a comprehensive regulatory scheme
that is intended to be both uniform throughout the State and exclusive of County
regulations. That intent is not found in the statute or in the legislative history of
our pesticide statute. There is no such language. The statute itself is no so
comprehensive as to implicitly occupy the field. There are other State statutes that
are more comprehensive. You may look at our State statute and say it seems pretty
comprehensive to me, but if you actually look at other States, they have dealt with a
EDR COMMITTEE 28 AUGUST 5, 2013
lot of issues that are not dealt with our State pesticide law that the County
Ordinance, this Bill, is intended to fill some of those holes. So, there is just simply
no strong argument that the State preempts because they have a law of the same
subject matter by no means suggests preemption.
Chair Hooser: Thank you. I know that you have worked in
this field extensively. Are there other Counties that have GMO or pesticide
regulations?
Mr. Achitoff: In terms of pesticide, I would just site a
couple of very recent County or municipal-level Ordinance. About two (2) weeks
ago, the City of Tacoma Park in Maryland, the City Council passed the Safe Grow
Act of 2013 which generally restricts use of cosmetic lawn pesticides on both public
and private property throughout their City. The year before, Washington, D.C.
enacted the Pesticide Education and Control Amendment Act of 2012 which offers
protections from restricted-use pesticide on public properties near waterways,
schools, day care centers, city owned property, etcetera. So, the County will not be
alone in doing that sort of thing. With respect to GMO-related Ordinances and
bans, there are about a dozen Counties and municipalities around the Country that
already have moratoria on GMO production which basically says that you cannot do
that at all. To my knowledge, none of those have been overturned in Court. So, at
the State of the law right now or the status quo is that Counties do have the right to
simply say we are a GMO-free zone. This Bill does not even go that far.
Chair Hooser: And there has been some discussion on the
EIS portion. If the EIS is separated from the moratorium, so it is two (2) different
issues and simply viewed as a thorough and robust investigation of the impacts,
does the County of Kaua`i have the legal authority to do an independent
investigation of the impacts that these activities might be having on this island?
Mr. Achitoff: All I would say is I cannot imagine why it
would not. I would thing that in fact, it would have a duty to do that, to inform
itself to be able to craft its Ordinances properly.
Chair Hooser: I believe — correct me if I am wrong. Ten
(10) years ago you were involved in a lawsuit, or nine (9) years ago regarding the
companies here on Kauai. One of the reasons for this Ordinance is that we do not
know what is grown and I believe, were there bio-pharmaceutical crops being grown
in our County in the past that you know about?
Mr. Achitoff: Yes. I can go so far as to say they were being
grown in the County because that was public record. I cannot go any further saying
where within any of the Counties they were being grown because that was the
subject of a protective order in that litigation. While I was given access to that
information, nobody outside of the litigation including people such as yourselves,
even the Governor, would not be allowed to know.
Chair Hooser: Thank you. Was that my five (5) minutes?
Okay. We have a few more minutes. Back to the recent State law that was just
passed regarding pesticide disclosure. It is my understanding that disclosure is
based on Department of Agriculture's record of pesticide purchases, but does not
include the use of the pesticide, the geographical location of the pesticide, the public
notification of the pesticides, or other information that is being requested in this
Bill. Again, do you think that provision would foreclose the opportunity for the
County of Kaua`i to pass this measure as it stands?
EDR COMMITTEE 29 AUGUST 5, 2013
Mr. Achitoff: If the question is one of preemption, I see
nothing in the State law that either expressly or impliedly preempts local
regulation and I think it is well accepted that Counties can go further than the
State and make more restrictive laws unless in fact there is expressed or implied
preemption. The other question would be whether this Ordinance would require for
public disclosure, material that the companies may consider to be their trade
secrets and that is a question that, I think whether or not that would constitute a
taking would have to do with a weighing of the nature of the trade secrets being
requested, their importance to the public health, the impact on the companies, and
things like that.
Chair Hooser: The Monsanto Protection Act, could you talk
briefly about that? It is commonly referred to as Monsanto and any relevance that
that might bring to the discussion?
Mr. Achitoff: The so-called Monsanto Protection Act was a
codification of a tactic that the industry came up with in response to some litigation
that I was involved in, in which the Court decided that the Federal government had
unlawfully put on the market some genetically engineered crops and the
government responded by issuing special permits to allow the industry to continue
to grow the crops while the government complied with the laws that they had
broken in the first place. The industry put that into Federal law through a rider
some months ago. The first thing I would say is that the whole application of the
so-called Monsanto Protection Act expires at the end of the Federal fiscal year in
two (2) months and I would personally very much doubt it would be re-enacted. So,
in two (2) months it will be moot. The other thing is moot or not, I see absolutely no
relevance of that to any issue raised by this Ordinance. It essentially says that if a
crop is de-regulated by the Federal government, meaning that Federal oversight is
withdrawn and the Court says that was done unlawfully, permits will be issued to
allow the growing to continue while the government does its required work. I just
do not see how it relates.
Chair Hooser: Thank you. We are going to go ahead and go
to the second round. Do not feel obligated to ask questions if the issue has been
covered. But we are going to go a second round and all follow-ups could be in your
second round. Councilmember Kagawa.
Mr. Kagawa: Thank you, Chair. Well, we are talking
about preemption a lot and nobody has stated a specific case yet. But there is
Richardson vs. City and County Honolulu, 1994 and it reads, "Under Hawai`i law, a
municipal Ordinance may be preempted pursuant to HRS 46-15.13 if one, it covers
the same subject matter embraced with the comprehensive State statutory scheme,
disclosing an expressed or implied intent to be exclusive and uniform throughout
the State, or two it conflicts with State law." It is not saying that preemption is
guaranteed. It is saying that I guess there is a case for crying foul for preemption I
guess, should we pass this Bill, is that fair?
Mr. Achitoff: Yes, that is an accurate reading what the
case says and the case actually just basically interprets this Hawai`i Statute 46-1.5
Subsection 13, that is what it says. The question is first, is there express
preemption? I think the answer to that clearly is not. There is not because
forty-one (41) other States have express preemption clauses in them, Hawaii is not
one of them. So, then the question is, is there implied preemption? Well, there has
to be, for implied preemption, a comprehensive statutory scheme that shows an
intent to be uniform and exclusive throughout the State. I do not see in either in
the legislative history or in the words of the statute any such implied intent to be
EDR COMMITTEE 30 AUGUST 5, 2013
the sole regulation of pesticides anywhere in State. You cannot just assume it, but
you have to find some basis for that.
Mr. Kagawa: Thank you.
Mr. Alston: The problem with that is, as Councilmember
Bynum described the Bill started out being very different and through the political
process it ended up with the State prescribing a system of disclosure that some
people do not like, but that does not mean it was not intended to be the State's
policy with respect to disclosure of pesticide use. I submit that in fact that
legislative process where it starts out being stronger and broader and more
intrusive on the companies than what you end up with reflects exactly the kind of
process that does reflect that there is intended to be a preemptive State scheme for
disclosure.
Mr. Kagawa: John, do you have anything?
Mr. Hoshibata: I would totally agree with Paul here. It is an
evolution and it gets tighter and tighter and when you have the question of whether
there is an express or implied intent, the fact that you do have an exclusive and
uniform scheme that does get tighter and tighter as this evolves, to me, it shows an
implied intent. To me, it shows an implied intent otherwise it would not have gone
that far.
Mr. Kagawa: Alright. Second question regarding
HRS 46-17, can you describe what a public nuisance is and also maybe if just one of
you can answer on that one and what is the difference between a public nuisance
and private nuisance? You want to go first?
Mr. Hoshibata: I am sorry, I am looking for (inaudible). I did
have that. Give me a second.
Mr. Kagawa: If Paul is ready, then you can go ahead.
Mr. Alston: I am sorry.
Mr. Kagawa: What is your definition of...
Mr. Achitoff: Just to be clear, which law are we talking
about?
Mr. Kagawa: HRS 46-17.
Mr. Hoshibata: Under HRS 46-17, the Council or the County
may end up and provide for enforcement of Ordinances regulating or prohibiting
noise, smoke, dust, vibrations, or odors which constitute a public nuisance. The
statute cannot countermand the Constitution directive — well, this is my argument.
The statute cannot countermand the Constitution directive that instead of the
Counties. The State is there to protect these, to conserve and protect agricultural
lands, etcetera. When you talk about dust as a nuisance, I mean, that is what it is.
Dust is a nuisance. I do not know if I answered your question. You wanted to know
what the Ordinance was or how it is applied?
Mr. Kagawa: I just wanted to differentiate, I guess,
between a public nuisance and a private nuisance. Is there a difference?
EDR COMMITTEE 31 AUGUST 5, 2013
Mr. Alston: The breadth of the impact.
Mr. Achitoff: Right. If your neighbor is doing something
that bothers you and nobody else, it is a private nuisance. It is something that
bothers the whole neighborhood, it can be a public nuisance.
Mr. Kagawa: Thank you. That is pretty simple. Last
question.
Mr. Alston: That is why we are here for, to simplify it.
Mr. Kagawa: You folks have different opinions on almost
every question and not even close. You are way on this side and they are way on
that side. But I just wanted to solve the problem of Right to Know and say a person
in Waimea simply wants to know what is being sprayed and when so they can close
their windows at night and instead, on that night turn the air conditioning on or the
fan on and not be worried that their kids or themselves are breathing in chemicals.
Do we have to go with this kind of Bill that will be challenged in Court and nothing
will be done for a while? Is there not a better way that you can agree? I know you
agreed and one thing and I should have wrote it down because I liked that, when
you agree because that is where we need to be headed is when we can work together
and solve a problem, like Mr. Warren back there. Just people who want to know so
that they can protect their families, when and how. Is there a better way that you
folks can suggest rather than trying to pass this Bill and trying to enter an area of
legal problems that we foresee? You can go first this time. Do you want to go first?
Mr. Alston: Oh, I do not care. Can I suggest that
question can best be directed to the representatives of the company who are in the
field because obviously, in lieu of legislation you could have neighbor-to-neighbor
community discussions that would address those issues?
Mr. Kagawa: That is a suggestion.
Mr. Alston: They are in the best position to talk about
what is possible from just a purely operational stand pointed.
Mr. Kagawa: That is a suggesting, that neighborly talks.
Go ahead.
Mr. Achitoff: Well, I would respond to that by saying that
I am all in favor of neighbor-to-neighbor conversations to at least provide basic
information about what is feasible and so forth. But I also think that the
bargaining power as between Syngenta and its neighbors is so lopsided that I think
the government needs to step in to make sure that the playing field is more level.
As far as whether there is a different way to get notice...
Mr. Kagawa: I guess just a better suggestion?
Mr. Achitoff: Well, all I can say is that if the industry is
going to challenge anything that the Council does, and it may, than anything that
you do is going to end up in Court and if that is the concern then you are never
going to do anything that disturbs the status quo. If there was a portion of the
Ordinance that industry did not object to, say a notice provision that the industry
was fine with, then you could of course do an Ordinance on that subject alone and
just say okay we are going split this off and everybody is okay with it so let us do
EDR COMMITTEE 32 AUGUST 5, 2013
that. I certainly would not just leave it up to the companies and say well we will
tell you what we are willing to do and trust us that we will do it.
Mr. Kagawa: I am done. Thank you
Chair Hooser: Councilmember Rapozo.
Mr. Rapozo: Thank you, Mr. Chair. I think that is kind of
what my message when we started was, was there has to be a vehicle that we can
get together and figure out where we agree and then where we do not agree is
where we have the dialogue and debate. But right now we are in one big mess and
no one wants to agree or disagree because of the division that has been created and
I think that is my concern. So, no one is even willing to, I think, listen at this point.
But I am more interested in this preemption issue and I do not want to beat a dead
horse, but where does it end as far as the County's authority? Can we raise the
minimum age for drinking? Can the County raise the minimum age for cigarettes
because of the public health/public safety doctrine? I think that is where I am at. I
am listening to all that you are saying and you all make sense, do not get me wrong,
you folks all make sense. I am like, wow, does that mean we could just simply
create a Bill tomorrow and say that we want Kaua`i, the minimum age to drink to
be twenty-five (25) because we have too many accidents in the eighteen (18) or
nineteen (19) or twenty-one (21) to twenty-five (25)? At what point, and I
understand implied and expressed, but...
Mr. Achitoff: I think you have to actually look at the State
or Federal law that you are dealing with. If it is drinking age for example, you have
to ask specifically, what does the Federal law say about drinking age? What does
the State law say? Is there an expressed or implied intent to preempt? There may
be, there may not be. You cannot make a generalization.
Mr. Rapozo: I guess the point the implied is obviously,
two (2) different people, like you folks can differ on what is implied or not. We, the
Councilmembers here, have to make a determination whether it is implied or not.
Express is obvious.
Mr. Achitoff: Yes, it is. But terms of implied, if we are
talking about the State pesticide law generally, I would have to say considering that
the pesticide lobby has managed to get forty-one (41) States to insert express
preemption language in those States' pesticide laws, but has not done so in Hawai`i,
has not succeeded yet in doing so in Hawai`i gives you some clue as to the fact that
they needed that express preemption language because implied preemption was not
cutting it. In other words, if there already had been implied preemption in all of
those State pesticide laws, the industry would not have done what it did and those
State legislatures would not have done what they did. So, Hawai`i is one of a small
number of States that does not have local preemption of pesticide regulation.
Mr. Rapozo: Does the fact that forty-one (41) States have
it and we do not have any relevance in the Court case if should we go to Court?
Mr. Alston: Not at all.
Mr. Rapozo: I know what they are doing. I am more
curious about here in Hawai`i and what we can and cannot do and whether or not
Oregon, Colorado, Wisconsin whoever did these express preemptive Bills, I am not
sure that would hold any weight in Hawaii.
EDR COMMITTEE 33 AUGUST 5, 2013
Mr. Alston: It does not because the home rule powers the
County. Counties in Hawai`i are unique to Hawai`i. Every jurisdiction is different
and every State draws the line between what States can do and Counties can do
differently. So, what happened in forty-one (41) other States tells you nothing
about what the law is here and what is preempted and what is not preempted.
Mr. Rapozo: I mean every law has its own set of facts and
circumstances which is so different because we have so different and that is, I think
my concern and that is why it is interesting to have Attorneys from both sides here.
Mr. Hoshibata: It is not only every law, but it is all the facts
and circumstances that caused that law to be either debated or ejected or in
forty-one (41) States, accepted. So, you have to look at totality of the facts and
circumstances and we do not know anything about — at least I do not and if you give
me a couple of months maybe we can figure out exactly what happened in those
forty-one (41) States and whether or not there is any similarity at all to Hawai`i
Revised Statute 46-15.
Mr. Alston: But related to this, I think Councilwoman
Nakamura was on exactly the right course and go find out what the Attorney
General says because you will at least have the view from above, if you will, and
from someone who does not have a dog in this fight over this Ordinance.
Mr. Rapozo: It is interesting because we have the
Attorney General, the then Attorney General Warren Price, made a strong plea and
then we have a former Attorney General obviously who is now representing one the
companies. But it is bizarre. It is just bizarre and we are here, not lawyers, and we
have to rely on the information that we get. But it is interesting how this issue will
be debated one way or the other and with arguments that I just wish we could get
through this without going to Court because I think somebody said it earlier. I do
not want this County to be the vehicle to establish case law because we cannot
afford it number 1, there has got to be a better way and I am hoping that we can get
to that end — just here, simple questions. You agreed on one and it was public and
private nuisance, that is it.
Mr. Alston: We also agreed that it is Monday.
Mr. Rapozo: Yes.
Mr. Achitoff: Is it?
Mr. Rapozo: I do not think so.
Mr. Achitoff: As far as the State preemption goes, I know
that the burden is on the industry to show where and how that the State pesticide
law preempts Bill No. 2491. You cannot just say it is preempted because we have a
pesticide law, that does not cut it. You have to show where is this and we know
that there is no express preemption. So, show us how this constitutes a
comprehensive regulatory scheme that is intended to occupy the field and be the
exclusive pesticide regulation.
Mr. Rapozo: I understand that.
Mr. Achitoff: If you cannot point it out, then it is just
rhetoric.
EDR COMMITTEE 34 AUGUST 5, 2013
Mr. Rapozo: I understand that, but every time they file a
motion, every time they show up in Court, every time they do something in Court,
we have to be there. Yes, the burden is on them, but it is not just them. It is us.
Mr. Achitoff: I understand. But all I am saying for the
context of this hearing is they are here right now. If they cannot point out to you
where in the law they found this, then I would say at this point it is just arguments.
They are being paid to come here and do the best they can, that is fine.
Mr. Rapozo: I would hope that you would give us enough
respect that we know that.
Mr. Achitoff: Right.
Mr. Rapozo: That we see that, that this is not the Court of
law. This is more of an informational thing and sometimes I feel with some of the
testimonies like hey, dummy, do you not see it? We do, believe it or not. We do.
But we have to sort through everything, what you say, what they say. It is not just
what you say is right and what they say is wrong and vice versa. But that is the
impression I get from a lot of the testimony that we received and that is the
frustration because we have to make the decision that is going to take this action
through a specific direction, a course that may cost this County a lot of money and I
am saying there has got to be a better way. Much like the companies have
proprietary secrets or trade secrets, these Attorneys, as well as yourself, I am sure
strategizing for the future. I mean, both of you, both sides, three (3) of you are
strategizing for the future. You are obviously not going to put out your case here at
the County Council Meeting today. I am aware of that, but I am trying to get
through the facts of — I guess, what do you call it the County Attorney's? The
opinions of fact versus strategic, we want the facts. What does the law state? What
has the law proven so far? I really am not interested in speculation. I understand
that. I think I know that. I have been around long enough to know that every case
has two (2) arguments and every case one wins, one loses. Sometimes the right one
wins, sometimes the right one loses, that is just the way the system is setup. But
my job is to get through all of that and try to determine what is real and what is
speculation and at that point, make an informed decision. Will that be done today?
Mr. Hoshibata: No.
Mr. Rapozo: Of course not. Do I have a lot to learn and
research? Absolutely. I have been reading. I think JoAnn mentioned the
thousands of testimonies and appreciate all the testimony and the videos and the
clips and very compelling stuff out there on both sides. I just want you folks to
understand that we are here just trying to find facts to make the right decisions.
That is all I have got. Thank you
Chair Hooser: Councilmember Nakamura.
Ms. Nakamura: Just a procedural question, will we be taking
a lunch break?
Chair Hooser: The plan is to take a lunch break. The
tentative was at 1:00 p.m.. There might be one or two other testifiers on the science
and medical that might need to leave. But let us finish this and at least finish these
gentlemen hopefully, before we go to lunch?
EDR COMMITTEE 35 AUGUST 5, 2013
Ms. Nakamura: I have a follow-up question for Mr. Achitoff.
You mentioned the Tacoma Park, Maryland case and you mentioned another one. I
just did not catch that and I wanted to see if I could get that?
Mr. Achitoff: That would be Washington, D.C. It is
something called the Pesticide Education and Control Amendment Act of 2012.
Ms. Nakamura: Maybe if I could ask our staff to follow-up on
that.
Mr. Achitoff: I have written testimony with all of this stuff
in it which I can hand out and it actually has the link to that.
Ms. Nakamura: Thank you, that would be appreciated. A
question for all of you. Is the State preempted from enacting legislation or
promulgating Administrative Rules that regulate pesticide use in the same manner
as this Bill?
Mr. Alston: Is the State forbidden?
Ms. Nakamura: Yes, can the State pass laws or promulgate
rules, their own administrative rules, to accomplish what we are trying to
accomplish?
Mr. Alston: The State has authority to act as along as it
is consistent with Federal law and it is not just FIFRA. It is also the Plant
Protection Act, it is also the Food and Drug Act. There are also other Federal laws
that bear on this and weaving the path between all of these Federal schemes, is not
an easy task. It is something that is going to require a significant effort.
Ms. Nakamura: Would anyone else like to comment?
Mr. Achitoff: I agree.
Mr. Rapozo: That is three (3).
Mr. Achitoff: I am keeping count too.
Mr. Hoshibata: And let us make it unanimous.
Ms. Nakamura: Also, can the Department of Agriculture
promulgate rules under FIRS 149(A)33 to implement buffer zones and disclosures?
Mr. Achitoff: It is the same answer.
Mr. Alston: Yes.
Ms. Nakamura: Same answer?
Mr. Achitoff: Yes.
Mr. Alston: There are buffer zones prescribed under
Federal law. The question is could the State enact larger buffer zones? Probably
not if the Federal government says these are the appropriate zones, then that is
what controls.
EDR COMMITTEE 36 AUGUST 5, 2013
Ms. Nakamura: If the Federal government is silent, then
does that State has authority?
Mr. Alston: If Federal law is completely silent, then that
opens the door to State regulation, yes.
Mr. Hoshibata: To imply, right.
Mr. Achitoff: I would go further than that and say that the
Federal government does not have to be completely silent in order for the State to
be able to enact more restrictive laws. In order for the State not to be able to do
more restrictive or greater buffer zones, the Federal law would have to expressly or
impliedly preempt in this area. So, someone would have to point out to me where
the Federal government says these and only these buffer zones will control and I
have not seen that.
Mr. Hoshibata: Well, I think that is a problem that we
talked about just one minute ago where we have a confluence of different Federal
schemes, Federal acts, Federal statutes and in particular, I think it is part of
FIFRA that says that you are guided by what is on the product label. So, if the
product label says that you can spray two hundred fifty feet (250') away from a
residence or so, then that becomes the standard that you are governed by. It is all
intermeshed.
Ms. Nakamura: Thank you.
Chair Hooser: Councilmember Yukimura.
Ms. Yukimura: Mr. Achitoff, the Tacoma Park, Maryland
case was upheld?
Mr. Achitoff: It is not a case, it was just an Ordinance that
the...
Ms. Yukimura: It is an Ordinance? Was it tested...
Mr. Achitoff: It was an Ordinance that was passed. It has
only passed a week or two ago.
Ms. Yukimura: So, it has not been tested in Court?
Mr. Achitoff: Not to my knowledge, no, not in the last two
(2) weeks.
Ms. Yukimura: Then you mentioned the moratorium case
twenty (20) years ago?
Mr. Achitoff: Yes.
Ms. Yukimura: There have been no changes in Federal laws
in the last twenty (20) years that would affect the moratorium decision?
Mr. Achitoff: No.
Ms. Yukimura: So, no case law or Federal law?
EDR COMMITTEE 37 AUGUST 5, 2013
Mr. Achitoff: Not to my knowledge, no.
Ms. Yukimura: Gentlemen, Mr. Altston?
Mr. Alston: To the case that it deals with the preemptive
scope of FIFRA or the lack of preemptive effect of FIFRA, I would agree that that is
still the seminole case.
Mr. Hoshibata: With that limitation also, there has nothing
that has overturned that case.
Ms. Yukimura: While FIFRA does not preempt or stop
States from doing their regulations, the Federal law does give strong authority to
the State which then can be said to preempt local government? Is that where the
real obstacle to local government law comes?
Mr. Achitoff: Yes, that is fair. The State does have the
ability to decide the extent to which the Counties can regulate in this area, yes. So,
if the State expressly or impliedly was preempting the County, it could do that. I
just do not believe it has, but it could be.
Ms. Yukimura: Any disagreement?
Mr. Alston: Well, it is also where the County wants to do
conflicts with a scheme that State has set up. You do not need to have broad
preemptive intent if there is a conflict between the County law and State law?
Ms. Yukimura: Even though the County's law is stricter and
more protective?
Mr. Alston: Yes.
Ms. Yukimura: Okay. So, it goes back to, as Council Vice
Chair said, the State really is the one that has the most unquestioned power to do
the regulations as to pesticides?
Mr. Alston? To do did the regulation of pesticides?
Ms. Yukimura: Buffer, disclosure, etcetera?
Mr. Alston: Unless the Federal government has set
National policy with respect to those things.
Ms. Yukimura: Unless the State regulations conflicted with
Federal?
Mr. Alston: Or the local Ordinances conflict with
Federal. The State cannot do something that conflicts with the Federal scheme.
The Counties cannot either.
Ms. Yukimura: Right.
Mr. Hoshibata: I think we are still talking about that
Federal/State/County sort of level.
EDR COMMITTEE 38 AUGUST 5, 2013
Ms. Yukimura: Yes, and the way that the Federal legislation
is set up which is the higher authority as along as it does not conflict with the
Constitution and other laws, I guess, is it gives a lot of power to the State to
regulate pesticides, right?
Mr. Hoshibata: Yes.
Ms. Yukimura: Right. So, as along as the State does not
conflict with Federal law, then the State has quite broad authority to deal with
pesticides?
Mr. Hoshibata: Yes.
Ms. Yukimura: But the Counties are not in the same
situation. They do not have broad powers to deal with pesticides because under
Federal law the State has been designated there.
Mr. Achitoff: I would not say that. I would say that the
Counties have the same authority that the States have with regard to whether or
not that is going to be preempted by Federal law. The real question, I think, is that
the County is just deemed to be a subdivision of the State for that. So, the question
is whether the State has preempted County authority to the extent that it has not,
the County has the same ability to regulate pesticides as the State.
Ms. Yukimura: The Right to Farm Act does not really have
any play here with respect to pesticides, but it does when it comes to nuisances like
dust?
Mr. Hoshibata: Yes.
Mr. Achitoff: In my opinion it has nothing to deal with any
of it unless we are dealing in the realm of lawsuits.
Ms. Yukimura: Okay. I would like to ask each of you how
you think the Public Trust Doctrine, especially with recent Hawai`i Supreme Court
cases, applies to this issue?
Mr. Alston: The Public Trust Doctrine is simply one
aspect of the County's authority and responsibility to regulate for the health and
welfare of the people of the island. It, like everything else, is subject to being
preempted by State control and by Federal control. The recent decision in the
Kaua`i Springs Case and the earlier decision in the Hokuli`a case, all reflect that the
Counties do have some independent responsibility, but those decisions tell you
nothing about the scope of the authority to act to protect the people and the
environment. To decide whether the County has that authority you have to look at
what the State has done to limit County action and what the Federal government
might have done to limit both State and County actions? It is no different than any
other legal analyses. It does not help, it does not hurt, it is just part of the legal
framework in which all of these issues have to be decided.
Ms. Yukimura: But the Court is still developing this doctrine
and so is it possible that this doctrine could throw a different twist to the whole
preemption issue?
Mr. Alston: No.
EDR COMMITTEE 39 AUGUST 5, 2013
Mr. Hoshibata: No. I defer to Paul on his analysis of the
Public Trust Doctrine, but I agree it would have no impact on the preemption issues
we have been discussing.
Ms. Yukimura: Or the Right to Farm?
Mr. Hoshibata: Or the Right to Farm Act.
Ms. Yukimura: Thank you. Paul.
Mr. Achitoff: I think the only thing I would add to Paul's
statement about that is that the Public Trust Doctrine by its nature, is something
that is on a somewhat different category than statutory law in the sense that the
bottom line concerns that the Public Trust Doctrine is designed to safeguard cannot
be eliminated simply by passing a statute that is in conflict with the public trust
duty. That is why the Public Trust Doctrine came about, was it is a common law
doctrine that says the State cannot give away through legislation the public's right
to certain basic protections of natural resources and so forth because that is what
was happening. The State was saying okay, we are going to give private business
the right to do this and the Supreme Court at that time was about one hundred
(100) years ago, said, wait a minute, you cannot alienate the public's right to
navigable waters, for example. It is just not yours to give. So, the doctrine can
affect the extent to which the State and Counties or even the Federal government
can impair the public's right to certain things.
Ms. Yukimura: But do you think it would affect the
preemption doctrine?
Mr. Achitoff: I do not think it directly relates to the
preemption doctrine itself.
Ms. Yukimura: Alright, thank you.
Chair Hooser: As we head toward lunch, Councilmember
Bynum followed by Council Chair.
Mr. Bynum: I just want to review some of the things that
we learned today and see if it is right. If it is redundant, I apologize. But I was
stuck on a couple of these things. I hear agreement that there is no express
preemption in State law. All three (3) of you agree on that, right?
Mr. Alston: On what issue?
Mr. Hoshibata: This issue?
Mr. Bynum: Expressed preemption and State law of
regulating pesticides.
Mr. Alston: That is right.
Mr. Hoshibata: I would agree.
Mr. Bynum: And we know that the Attorneys from the
seed companies have said if we pass this law, they will sue us. You were pretty
clear about that. Mr. Achitoff is saying that all seven (7) elements of this Bill are
legally defensible, right? Is that a fair summarization?
EDR COMMITTEE 40 AUGUST 5, 2013
Mr. Achitoff: Yes.
Mr. Bynum: And the Attorneys are saying all seven (7)
things that would outline are not legally defensible? We would lose on all seven (7)
counts, correct?
Mr. Alston: Correct.
Mr. Hoshibata: Correct.
Mr. Bynum: This is not uncommon people. When you put
Attorneys in the room together that represent two (2) different sides and it comes
down to us. So, here is what I am stuck on. To expressly not, the Senate is debating
whether they should at the Federal level preempt and the Democrats are saying no,
it is a floor. This is the protective floor set by the...if you want to be more
protective, good for you and that is what our State law says. It says you will protect
the health and safety of your citizens. It is your responsibility. So, I have been
doing this long enough I have to look at case law and I asked this question earlier. I
have to look at legislative intent. I cannot find anything where the legislature ever
said we intend to preempt the County. But I can find...
Ms. Nakamura: Point of order.
Mr. Hooser: Yes, what is your point?
Ms. Nakamura: If the Councilmember could ask the question
in this format that you have set up.
Mr. Bynum: I object to being interrupted for the first time
in this day during my time. If I want to...
Chair Hooser: Councilmember...
Mr. Bynum: Councilmember Rapozo went five (5) or six
(6) minutes expressing his opinion in order to set up a question and that is what I
am doing.
Chair Hooser: Let me speak. I could speak, please. I have
given discretion to every single member here to use the ten (10) minutes as they
pleased. Some have clocked longer, other members have had decided to go on. We
are at the very end of the thing. Councilmember Bynum, in my opinion, can
proceed and I encourage to ask questions. But I have let every member proceed
with their ten (10) minutes as they see fit and I do not want to change that right
now. If that is okay, please continue Councilmember Bynum.
Mr. Bynum: I will ask the question again because I did
not hear an answer that was acceptable or if I understood and if it is me, I take
responsibility for that. But when I look at legislative intent and I can read these
notes. It says your Committee believes that the Counties, either through zoning
laws or other Ordinances should be performed to make laws regulating agricultural
uses. That is what I can find in the legislative intent. I cannot find anything else.
My last point, are you aware this year that the seed companies promoted a Bill to
change the law for the first time since statehood, to take the provision that gives us
the responsibility to protect health and welfare out of the State law? Are you folks
aware of that? Are you aware of testimony from the seed companies where they
said we need this law because neighbor island Councils in Maui, the Big Island, and
EDR COMMITTEE 41 AUGUST 5, 2013
Kaua`i are proposing these regulations so we need to change this law. But it failed.
It failed. The legislature did not agree that it should take away the responsibility.
Are you folks aware of those laws? My question, why are they working so hard to
change this fundamental law if it is already preempted? Why?
Mr. Hoshibata: I have to say I am not aware of that Bill that
you just mentioned or the action on that.
Mr. Bynum: Okay. I am done. Thank you.
Chair Hooser: Thank you Councilmember Bynum. Council
Chair Furfaro.
Mr. Furfaro: Yes, Committee Chair, I just want to remind
you whatever the dialogue and the decision was yours. But in the future, you must
ask the member to quote the rule number that they want to have challenged, okay?
Short question for you here. Whatever we do as a political subdivision at the
County of Kaua`i level, we are very limited on general laws that we can apply
especially to Department of Hawaiian Homes Lands (DHHL). Can I hear a
comment from you on that jurisdictional issue? The DHHL has a number of
agricultural lands that with the exception of a few general rules, our subdivision
cannot impose?
Mr. Alston: I understand that to be true. I cannot tell
you what the dividing line is between what you cannot and can do with respect to
DHHL lands. But it is certainly true that they are not of the same character as
other public and private lands on the island when it comes to your power to
regulate. If I could just briefly be indulged with one sentence in response to
Councilmember Bynum's question. I think the answer is efforts are made in the
legislature all the time to bring clarity to difficult legal issues. You have heard
conflicting legal views about what is right and what is possible here and I think
everyone would agree that it would be most efficient if the Legislature would be
absolutely clear about what is preempted and what is not preempted. But where
you have legal doctrines that say the Courts are going to be guided by the
implications of things, that leaves a lot of room for lawyers to argue and for people
in black mu`u mu'us to make decisions that perhaps in a better system would be
better dealt with by the legislators in explicit terms.
Mr. Hoshibata: If I may add, I think your attempts are
admirable in terms of getting people together and getting the best people that you
can. Although I wish there had been more notice to allow more people to get here
with perhaps a broader scope and more precise information. But this is the way to
solve the problem is to get the information and to call in the science and the
technologists, I think is the right way to move and to allow you to form your basis
for which direction you think you can move in.
Mr. Furfaro: I will yield my time since I only have one
question and they seem to be more focused on responding to Mr. Bynum. I will send
a question over. Department of Hawaiian Homes has a significant amount of
agricultural lands here. I think it is important for us to know what we can and
cannot impose on.
Mr. Alston: I think we would be happy to respond with
supplemental information. I know the issue, I just cannot tell you today where the
dividing line is.
EDR COMMITTEE 42 AUGUST 5, 2013
Mr. Furfaro: Fine, we will send it over in writing.
Mr. Alston: Alright, I would be happy to help with that.
Chair Hooser: Thank you, Chair.
Mr. Furfaro: Thank you, Chairman.
Chair Hooser: We are going to go to lunch in just a second.
I had a question or two and I agree. I think several people had mention that
mentioned that we need to bring everybody together and analyze the data and talk
about the science and pesticides. I guess my question is for you two (2) gentlemen,
you are employed by Pioneer and Syngenta and if at the end of this day the majority
of this Council, which in effect would represent a majority of the community, passed
an Ordinance requiring disclosure and saying that toxic pesticides cannot be
sprayed next to schools and the County intends to do a full investigation and report
a robust investigation and EIS or some other form and that was passed in a law
after the community process and the majority voted there, could we expect that you
would sue us for the right to not tell us what chemicals are being sprayed and for
the right to spray chemicals next to schools and oppose our right to investigate via
EIS or otherwise?
Mr. Alston: Syngenta is proud of its record and proud of
its work on Kauai.
Chair Hooser: I am not asking about pride. I am asking
about a legal question.
Mr. Alston: Let me finish.
Chair Hooser: Would you sue the County of Kauai to
enforce the rights that you perceive that you have after this Council, a majority
voted, representing the community interests for disclosure, for reasonable buffer
zone, and for the right to do an investigation to determine those impacts?
Mr. Alston: I think you have to ask the fundamental
question, which is whether the Bill you adopt is consistent with the overriding
Federal and State law? If it is, your Bill will stand. If it is not, it will fall. It is a
fundamental principle of our way of life that people go to court to resolve tough
questions like that. You cannot tell me exactly what Bill you are going pass, I
cannot tell you exactly how the companies will respond. But when a Bill is passed
and if it is, the company will make a considered decision about whether it is in its
best interest to get a definitive decision that you have acted in accordance with the
law or not?
Chair Hooser: You have chosen not to sue the County of
Hawai`i for an Ordinance banning GMO coffee or taro and chosen not to sue the
County of Maui for passing an Ordinance banning GMO taro, is that correct?
Mr. Alston: There is no litigation on those things, but the
companies do not grow those crops.
Chair Hooser: Right. But there has been no litigation. The
companies have chosen not to?
EDR COMMITTEE 43 AUGUST 5, 2013
Mr. Alston: Well, it is not a matter of choice. Someone
can go to court only if they have what lawyers call "standing" and that means that
they have a real stake in the issue. If you do not grow taro, you cannot complain
about GMO taro. If you do not grow coffee, you cannot explain about GMO coffee
restrictions.
Chair Hooser: Thank you very much. Finally, we are going
to be headed out to lunch so I will just ask Mr. Achitoff in closing. You have looked
at the Bill. I believe several people have asked already, in terms of the various
components of the measure, do you believe we would prevail as the Bill stands? I
know there is lots of work to be done and whatnot. But generally speaking, do you
think that the County of Kaua`i would prevail on at least most of the issues?
Mr. Achitoff: I will certainly...
Chair Hooser: I mean, given that we had adequate legal
representation and robust defense or whatever?
Mr. Achitoff: I love to answer questions yes or no when I
can. I will just say that with respect to most of the issues I will say that I think the
opposing arguments are weak to frivolous. With respect to some of them, I think
that reasonable people can differ and I think the County should be careful about
exactly how it crafts those provisions. If it is careful, I believe that there are ways
to really minimize litigation risks to the point where I would say yeah, I think that
they will all prevail.
Chair Hooser: Okay. Thank you very much.
There being no objections, the meeting was called back to order, and
proceeded as follows:
Chair Hooser: Anyone who plans to not return after lunch,
please see staff at bottom of the stairs to take your name off the list and return your
wristband. I apologize for those who have been waiting. We were hoping to get
another segment in before lunch and we were not able to do so. We will come back
at 2:10 p.m..
There being no objections, the Committee recessed at 1:07 p.m.
There being no objections, the Committee reconvened at 2:12 p.m., and
proceeded as follows:
Chair Hooser: We are going to move to the next phase of
the hearing of today's agenda and just a heads up, depending on how the day
proceeds we may only go to 4:30 p.m. or 5:00 p.m., I have to ask the members what
their preference is. We could either go until everybody that is here has spoken
which I do not know how long that is going to be or our option — I will tell you what
our options are. One option is to go until the end or we can recess this and
reconvene at a time-specific and then continue on. Those are our options and
because we had late nights before and because Councilmember Yukimura wants to
go and because we might want other resource people to come, my inclination is to
suggest that we recess at 5:00 p.m., reconvene a week from tomorrow and then
continue the same program for just that one more meeting and then the public could
take all the public testimony at the end so that we only have one late meeting and
then that is it in terms of the rigorous discussions. Then after that, suggest that we
defer for two (2) weeks, three (3) weeks and let everybody do their homework, let
EDR COMMITTEE 44 AUGUST 5, 2013
everybody look at all of the issues, everybody review their whatever amendments
that they want to do, and then schedule a meeting for that date. But we have this
day and maybe next Tuesday as this kind of thing. So, think about it and then we
can talk about it later or would you like to talk about it now. Councilmember
Rapozo.
Mr. Rapozo: I just want to make sure that we have a
chance to accommodate everybody that came today. I think that is my concern. I
understand Councilmember Yukimura needs to leave for something and I had
something planned today as well that I canceled to accommodate this meeting. I
just want to make sure that everyone who made the journey here because it is not
as easy for some people to be here, and I know a lot of people testified at the public
hearing. I obviously do not remember who testified and who did not, but if the ones
that did testify at the public hearing would allow the people that did not testify at
the public hearing and wanted to speak today, that is the way I would ask. I would
goes along as we have to accommodate those people because I understand that a lot
of these people work, some of them work and some of them have family obligations
and I want to make sure that we can accommodate as many of those people that
have not testified today.
Chair Hooser: Okay. So, what I am hearing that your
preference is to go as along as it takes to get everybody to speak.
Mr. Rapozo: Within reason. I mean 1:30 in the morning
is kind of stretch.
Chair Hooser: If we do not go all the way, then we would
have to recess. So, it is either one or the other. But I understand. Councilmember
Nakamura.
Ms. Nakamura: My preference would be to end at 5:00 p.m.
as you are recommending and my preference is also to get a hold of the County
Attorney's opinion that is going to be releasable to the public as well as State
Attorney General's opinion and as far as my participation, I believe that that will be
driving my decision-making. I do not know the value of further — and I think the
discussion will lead from what those opinions tell me.
Chair Hooser: Okay. I understand that. It is my
understanding that if we stop at 5:00 p.m., we have to reconvene to a time certain
within a week. So, it is also my understanding that the County Attorney's final
opinion may not be ready by that point.
Ms. Nakamura: My understanding is that it will take two (2)
months for the County to finalize their opinion that they might be comfortable
releasing.
Chair Hooser: So, if we end at 5:00 p.m., we will have to
reconvene in a week to finish this Committee. If there are people here at 5:00 p.m.
who have not spoken, we cannot adjourn the Committee until they have spoken or if
we do adjourn the Committee, we will have to reconvene within the week to finish
the process, so those are our options. Councilmember Kagawa.
Mr. Kagawa: Thank you, Chair. As a member of this
Committee, I would recommend that we deliberate as much as possible today within
a reasonable time. 5:00 p.m. sounds great, but maybe extended maybe to 9:00 p.m.
or so, I could live with that. However, like Councilmember Nakamura, I agree that
EDR COMMITTEE 45 AUGUST 5, 2013
the County Attorney's opinion as to whether this Bill should be passed or not and
legal ramifications that our County Attorney foresees is all important. Why should
we do all of the due diligence and then find out that it may not be something that is
good for the County and instead we could have been working on some other means
of getting to the place that we all want to get to as far as the right to know, etcetera.
I would recommend that perhaps we consider a motion to defer until the County
Attorney's opinion is available. I hope that maybe they could expedite those two (2)
months because I think two (2) months of waiting is quite long. But whatever it is,
it is. I am not an Attorney. It is not my job to do the opinion. Thank you.
Chair Hooser: We have people here, like you mentioned,
that I think we should give them an opportunity to speak and deliver testimony
myself. The question that is before us is what time do you want to end today? If
any motions want to be made toward the end of the meeting you have the
prerogative to do so. I get that you want to stay as long as it takes.
Mr. Rapozo: Well, I have a question though.
Chair Hosoer: Sure.
Mr. Rapozo: Do we even have any idea of how many
people are signed up to testify, first time? We do not. How many people in the
audience that did not testify at the public hearing?
Chair Hooser: It might be okay. We can try. So, let us
move on looking at 5:00 p.m. and if we can make that or shortly thereafter, it would
be great. It would foreclose the option of having to do the recess. Thank you. We
are going to follow a similar format that we followed this morning. I think you all
have a list of resource people that are here, that list should be on your desk in front
of you somewhere. Just a couple of things, the State Department of Agriculture has
three (3) individuals here who have to leave around 3:00 p.m.. Dr. Evslin is also on
a fairly tight schedule. Dr. Carl Berg who has some information on Atrazine
findings and recent testings that he has done also has to leave. So, those are some
of the people that I know might not be able to be here until 5:00 p.m.. So, there are
representatives from the Pesticide Action Network (PAN), industry representatives,
and scientists that are here so you have a list in front of you. Councilmember
Kagawa, why do you not start and call anyone up to ask questions about science
and medical.
Mr. Kagawa: Thank you, Chair.
Chair Hooser: Go ahead.
Mr. Kagawa: That is very gracious of you. I would like to
call up the State Department of Agriculture.
Chair Hooser: And we can do a round with them or you
have ten (10) minutes, you can call other people after that I guess. Does that sound
okay following that format that we did before? So, you have ten (10) minutes to
speak with whomever you want.
Mr. Kagawa: I want to thank you for that suggestion. I
think it is a great suggestion with the time constraints. Hi Thomas, can all three
(3) of you please turn on the microphones and introduce yourselves, please.
EDR COMMITTEE 46 AUGUST 5, 2013
THOMAS MATSUDA: Good afternoon, my name is Thomas
Matsuda. I am the Pesticide Program Manager, State of Hawai`i Department of
Agriculture.
CHRISTINA ZIMMERMAN: Hi, I am Christina Zimmerman. I work for
the Pesticides Branch in Registration.
GLENN SAHARA: I am Glenn Sahara. I oversee the
enforcement staff for outer islands.
Mr. Matsuda: Ann could not make it today. She is out on
vacation leave. So, Glenn is here. He is her Supervisor.
Mr. Kagawa: Since we have ten minutes (10) with me.
Chair Hooser: No, 3:00 p.m.. Oh, I am sorry.
Mr. Kagawa: Ten (10) minutes with me. Could you just
summarize briefly Kaua`i's duties right now as it pertains to pesticide restriction
use? How often does our inspector go out and work with them? Briefly what he
does, etcetera just so we have an understanding as to what we currently do in
regards to our chemicals, our experimental seed companies?
Mr. Sahara: Well, I know the inspectors Ann Kam and I
know that she has conducted inspections with all of the seed companies. I believe
somebody asked for a report as far as the number of inspections that were
conducted in 2011 and 2012. So, it was I think the copy that you received there
were twenty-one (21) inspections conducted. But in reality, that was a redacted
copy and the number she conducted in those two (2) years was fifty-three (53). So,
there were fifty-three (53) inspections conducted with various seed corn companies
during that period. Now, Tom could probably explain better about redactions. But
when the inspection is not complete, they are not able to post it on this list. So, that
is why you are missing over fifty percent (50%) of the inspections on that list that
you received. Besides the normal inspections with the seed corn companies she also
meets with the Pest Control Operators. She meets with the road crews, people who
use pesticides, neighbors that are fighting which happens quite a bit unfortunately.
Also golf courses, they are users of pesticide as well. But we prioritize complaints so
that is one of the reasons she does have quite a few inspections with seed corn
companies because many of the complaints involve these groups.
Mr. Kagawa: Anything more that you want to share?
Ms. Zimmerman: I do in regards to experimental pesticides. I
work in the Registration Section which issues Experimental Use Permits (EUP).
These permits are for the experimental use of registered pesticides, not a permit to
concoct experimental products. So, that is a little bit of misinformation there so I
just wanted to make sure that was clear and in addition to that, these experimental
permits that are issued, there is no active one right now. These are stringently
reviewed as far as their protocol. We make sure that the company has a certified
applicator and that it is required that these experimental use permits are inspected.
An inspector goes out to observe an application reviews the application under this
EUP.
Mr. Kagawa: Thomas, do you have anything else that you
want to share?
EDR COMMITTEE 47 AUGUST 5, 2013
Mr. Matsuda: Just specific for the island of Kaua`i, the first
thing on the testimony that Wednesday night, the question of the eighteen (18) tons
came up. I was asked to bring the supporting documents so I did bring that. I can
make that available to you, if you want to look at that. Again, our numbers,
basically we came out with an average of active ingredients. A ton per year is 9.89
instead of the eighteen (18). Basically, we look at the active ingredient of liquid
concentrate of one (1) gallon. You may think it weighs eight (8) pounds, but the
actually active in there may be only four (4) pounds. So, the calculation could have
been off. But our staff ran the numbers and we wanted to present that to you.
Again, if you are talking about different type of products, there are twenty-eight
(28) different types of products. If you are looking for active ingredients, the
numbers just come down to eighteen (18). So, pesticides are kind of complex and we
are here to hopefully give some clarity to your questions.
Mr. Kagawa: Thomas, if you can, can you please explain
what you think is the difference between Mr. Hooser's number, eighteen (18) tons,
and the 9.89 that you have? Does that mean that 9.89 is almost ten (10) tons.
Where is the other eight (8) tons? Is that in inventory?
Mr. Matsuda: No.
Mr. Kagawa: Why do we have this difference?
Mr. Matsuda: Ours are sales records not use records, I
want to make that clear. We receive sales records. The calculation again, there is
dry weight and then there is liquid. The dry weight is pretty much just total
weight. The liquid weight is more complex. Again, if you have one (1) gallon of
liquid, and if you say one (1) gallon weighs eight (8) pounds, that is true in a sense.
But the active ingredient, the active that does the killing, the pesticide may only be
four (4) pounds in there. Again, if you look down here we have the active ingredient
and the weight of the active. It might be 2.6 or 2.4. So, that is what we use to
calculate. I think that is why it is a lot lower.
Mr. Kagawa: I think I do not want to cut you off. But if I
am looking at all pesticides, this 9.89, all herbicides 6.6 and insecticides is 3.29. So,
if you add all of those up, then we are pretty close to the eighteen (18). So, I do not
know of that is what happened.
Ms. Zimmerman: No.
Mr. Matsuda: No. It will just come out to the 9.89.
Mr. Kagawa: Oh, it adds up. I am sorry.
Mr. Matsuda: What we did was we broke down the
herbicide use and the insecticide use so you can see which is more. We did that so
you could see that they use maybe more herbicides, more insecticides, and a lot of
times people say well, I want to see your pesticide use and your herbicide use.
Again, pesticides is the main heading and herbicides, bactericides, virucides, they
all fall under this heating. So, we have to make that pretty clear. This list is only
restricted-use pesticides, there are general use pesticides which are not in here.
Act 150 covers the reporting of Restricted-Use Pesticides (RUP) sales, not RUP use,
but RUP sales records. Again, RUP, restricted-use pesticides.
EDR COMMITTEE 48 AUGUST 5, 2013
Mr. Kagawa: Would it be difficult for your Department to
also in the future, if the Council should pass something, to know how much is used
not only how much is purchased?
Mr. Matsuda: Per Statute we only collect sales records. If
it was the legislature saying that you have to collect use records, then we would
have to go through the whole process, rule making, and all of that. Right now we
are only required to collect sales records.
Mr. Kagawa: I see. I am done for now. Wait, one last
question. Basically, just describe the job of our inspection, when we go out. Just a
rough detail. We go out, we maybe follow a Pesticide Operator on a spray? We
observe the wind conditions? What do we do in general?
Mr. Matsuda: We have multiple types of inspections. But if
you are talking about roadside, they are going to vary depending on the type of
inspection. We have a neutral scheme number one. But we are working at a seed
corn company and again, if it is not a complaint but just a routine inspection, we
have a list of the Certified Applicators and within a five (5) year period each
applicator is to be inspected. We look for the use records. By law they have to keep
the use records for two (2) years at the site. Our Inspector goes out and what we do
is we look for something that was used in the past thirty (30) days and that is called
a Tier 1 Inspection, used in the last thirty (30) days. Then we ask what did you use
it on? Where are our records and from the label we look at dilution rate, site, the
proper protective equipment, posting requirements, and training. I do not know if
you are aware of Worker Protection Standard (WPS), any pesticide used in the
agriculture industry that has this label, again, I always say the label is the law.
You have to comply with that label. If it says you have to wear a certain protective
equipment, the Tyvek suits that people refer to as hazmat suits, they have to wear
that and it is for a reason. It is to protect the applicator or the person that is mixing
the pesticide. They can only again, according to the label, apply so much pesticide
per year, per acre and they log this in. The records are available for two (2) years.
Mr. Kagawa: Tom, sorry to stop you now. But my time is
up and I want to be following our rules. Thank you, Mr. Hooser.
Chair Hooser: Thank you, Mr. Kagawa. Just a reminder,
there are two (2) ten (10) minute segments for all the resource people also.
Councilmember Rapozo.
Mr. Rapozo: Was that his ten (10) or five (5)?
Mr. Kagawa: My ten (10).
Mr. Rapozo: Okay. I think I will touch on a lot of what he
is asking, but what is the staffing again for Kaua`i, one?
Mr. Sahara: One person, yes. For quite a while we had
one (1) person. That person changed jobs, so we did not have anybody here for a
while, for several years. During that period I actually came from Hilo to Kaua`i
once a month to do inspections for a period of four (4) or five (5) of years.
Mr. Rapozo: I do not mean to cut anybody off, but I want
to get all of my questions in ten (10) minutes so I am going to try because I think a
lot of problems that we are facing is because of what I am talking about, staffing
and inspections. It is simply not being done and that is what causes the concern, I
EDR COMMITTEE 49 AUGUST 5, 2013
think, in the community. I will not say it is not being done, but it is not being done
I think to the level of satisfaction of the people that live in that area. Just from
what I am hearing right now, I think you said inspection not complete does not get
logged or it is redacted. What does that mean?
Mr. Matsuda: Cases that are not closed.
Mr. Rapozo: Explain what that is.
Mr. Matsuda: If there is a finding, then we issue a warning
notice until a warning notice is issued or the case determined there was no
violation, then the case is closed. If there is a civil penalty, we work with the
applicator and kind of negotiate the terms of the penalty and until that is settled,
and it has to go back to our Attorney General's Office to approve the settlement, the
case is still open and we cannot release information on open cases.
Mr. Rapozo: So, the public would not know if there is a
violation of any of these labels?
Mr. Matsuda: Ongoing, open investigations
Mr. Rapozo: Wow.
Mr. Matsuda: The document we gave Councilmember
Hooser, it did have those inspections on there. But the company, the applicator's
name, those were redacted with X's. There is a code there, if you look and there was
a cover letter that said C-AG or C-AR, or WPS Tier 1. If you look at the code and at
the X's, you could understand these are agriculture inspections still open.
Mr. Rapozo: I understand that, but I guess my concern is
if there was a violation, if there was drift, if there was some kind of application that
violated the label, how in the world would the community know enough to go get
checked? I mean, is there any provision in the State law that would require — you
know, like identity theft? I cannot die from identity theft. But if somebody
breaches my information, they are required by law to let everybody know. That is
not provided for by our State law right now?
Mr. Matsuda: No. On a complaint...
Mr. Rapozo: I am not talking about complaint, I am
talking about inspections. I am talking about an inspection that you folks do, if you
come across this violation and it affects pesticides, it affects something that
obviously rose to the level of violation, that the community would not be notified?
Mr. Matsuda: Not until we go through all of the
documentation...
Mr. Rapozo: Not until you resolve the issue and negotiate
a penalty?
Mr. Matsuda: No, no. We have to look at all of the facts
coming in from the investigators.
Mr. Rapozo: I understand. You said the State Law
requires you to get sales information. That is what the law says, only sales?
EDR COMMITTEE 50 AUGUST 5, 2013
Mr. Matsuda: Sales records of restricted-use pesticides.
Mr. Rapozo: Correct. Does the Law prohibit or prevent
you from obtaining usage information? I understand you already collect that in
your inspections.
Mr. Matsuda: Yes, that is only for a snapshot in time. So,
only if we did five (5) inspections, that is the only information we would have. If
you are trying to get a sense of what is used on an annual basis, you would not have
the data.
Mr. Rapozo: Does the State law prohibit your Department
from getting that information?
Mr. Matsuda: It is not on our books. If you say prohibit, it
does not prohibit, it is just not our books.
Mr. Rapozo: So, your Department could through
Administrative Rules or...
Mr. Matsuda: If those Administrative Rules come into play,
then we would collect.
Mr. Rapozo: Okay, and that is done at your Department
level?
Mr. Matsuda: And at the State Legislature.
Mr. Rapozo: Not through the Legislature?
Mr. Matsuda: At the Legislature, they would have to.
Mr. Rapozo: For the Administrative Rule?
Mr. Matsuda: Yes.
Mr. Rapozo: Okay, and I apologize for going quick. Does
your inspections involve any type of sampling of the air and soil or is it specific?
Mr. Matsuda: Soil samples, drift samples.
Mr. Rapozo: You do all of that?
Mr. Matsuda: Yes.
Mr. Rapozo: In your inspections?
Mr. Matsuda: Not all. It depends on the type of inspection.
If it is a drift complaint...
Mr. Rapozo: I am not talking about complaints. I am
talking about your regular inspections.
Mr. Matsuda: No.
EDR COMMITTEE 51 AUGUST 5, 2013
Mr. Rapozo: Okay. Do we ever do relative random
inspections?
Mr. Matsuda: Yes.
Mr. Rapozo: Where you pop up without telling anybody
that you are here?
Mr. Matsuda: Yes.
Mr. Rapozo: Do those inspections do soil inspections, drift
inspections, and all of that?
Mr. Matsuda: No, not necessarily.
Mr. Sahara: But they can. The EPA actually prefers...
Mr. Rapozo: I am not interested in what the EPA said.
Mr. Sahara: No, wait, wait.
Mr. Rapozo: I am interested in what is being done on
Kaua`i. I am not really interested in what the paper, books, or Federal law. I am
interested in knowing what is being done today on Kaua`i? Is that ten (10)?
Mr. Kagawa: Five (5).
Mr. Rapozo: That is what I am interested in because the
people that are here, they know what the Federal law says. I want to know what
have we done or what are we doing at the State level to address the concerns of the
public. I am going to keep it to questions because I have comments for later. Now,
you talked about the inspections and what I heard from you was that you inspect
everything as it relates to the applicator, making sure he has protective equipment
and making sure that they are following the label and making sure that applicators
are safe. What I have not heard, is how are we assuring that the community is safe
in your inspections. I hate to sound like I am attacking the State, but I am because
the community has come to us now to do something because the State is not doing it
and they are not getting the satisfaction or the comfort that everything is being
looked at. I understand you only have one (1) person and believe me, I think I could
get the support from the Council to go to the State to do something about that. But
even if we had seven (7), even if we had ten (10) inspectors, if your protocol is to
only to check the applicator to make sure he is safe, we do not need seven (7).
Mr. Matsuda: Part of that inspection is Worker Protection
Standard as the applicator, now we look at the label. Did he make that application
in a proper manner? Was the site on the label, dilution rates according to the label?
The only thing about the drift is when someone complains and we look at record
keeping. Did he log in all of the different Restricted Entry Interval (REI) periods,
the posting of an application? Those are critical.
Mr. Rapozo: And these are all based on — let us say you
get a complaint and I would be curious to know what the percentage of the
complaints that actually get investigated?
Mr. Sahara: All. We have to go out to every complaint.
EDR COMMITTEE 52 AUGUST 5, 2013
Mr. Rapozo: Yes, I know. But like you were coming from
Hilo. So, if someone calls today and says my eyes are burning, what is the protocol?
What happens then?
Mr. Matsuda: Call 911 and seek medical attention.
Mr. Rapozo: I am not talking about that.
Mr. Matsuda: No, no this is what we do.
Mr. Rapozo: I understand that.
Mr. Matsuda: And then we schedule to come out and do a...
Mr. Rapozo: I understand that. But then it goes to the
doctor's testimony where they are coming in, right? Patients are coming in with
red, watery eyes. They are burning and they are itchy or whatever. But they have
no idea what is going on in the environment around them to even try to suggest
what is causing it. So, this is my question, what is the protocol of your Office if a
call is made, granted you call 911. You call 911 and you go, whatever. What does
the State do as a follow-up to that complaint?
Mr. Sahara: The first thing that we always do is arrange
to meet with complainant. We always get a statement first. We meet with the
complainant and always meet with the complainant first. The determination is
made there because every case is different. So, we would have to see the situation.
If there is a farm nearby, we immediately would try and find out who is making the
application, determine what is being applied, and if there is suspected drift, you
could take a swab from their window or so forth to determine if there was drift onto
their property. We have taken samples of people's clothing to see if they claim that
they were contaminated.
Mr. Rapozo: And has that been done on Kaua`i in the
past?
Mr. Sahara: Yes.
Mr. Rapozo: Have we found drift?
Mr. Sahara: Yes.
Mr. Rapozo: What happens at that point?
Mr. Sahara: Then the report goes to Honolulu where the
Case Preparation Officer, the Program Manager, and the Attorney General, they all
meet to determine what has to be done. If there is a warning notice, a civil penalty,
or perhaps nothing. As the facts gather, we gather all of this information and then
it goes to Honolulu and they make a determination what has to be done.
Mr. Rapozo: Typically, what happens?
Mr. Matsuda: Typically, severity of the violation?
Mr. Rapozo: Yes. Let us say that you swab the person's
window and it comes back, bingo, drift with some chemical. What happens at that
point? You all meet with the Attorney General and then what happens?
EDR COMMITTEE 53 AUGUST 5, 2013
Mr. Matsuda: Then it is either a warning notice goes out...
Mr. Rapozo: What does the warning notice say? Warning,
you have drift.
Mr. Matsuda: Yes. The applicator, you have violated the
label.
Mr. Rapozo: Okay, and then warning I would assume.
Mr. Matsuda: Then the case would be closed and then...
Mr. Rapozo: Is the public notified at that point?
Mr. Matsuda: The complainant is notified when that case
comes to Honolulu. They can call our Case Developer to ask for information. Once
the case is closed, they can get all the records. But it is a long process.
Mr. Rapozo: Only the complainant?
Mr. Matsuda: Complainant and the general public after.
Mr. Rapozo: If the general public has knowledge about it?
Mr. Matsuda: Knows about it, yes.
Mr. Rapozo: Now, if I live a mile away from the
complainant and I do not know the complainant. Sorry for me?
Mr. Matsuda: Yes, unless someone asks for all of the
warning notices, violations, and public records.
Mr. Rapozo: I think I have the picture and I think I know
where I need to go.
Mr. Sahara: The sample results...
Chair Hooser: Thank you. We are done with that for now.
Thank you, Councilmember Rapozo. Again, there are lots of people here, a good line
of questioning and I appreciate it. Councilmember Nakamura.
Ms. Nakamura: Thank you for being here. I have a question
of how often — you said fifty-three (53) inspections of the seed corn companies over
the past two (2) years?
Mr. Matsuda: That is total inspections.
Mr. Sahara: Yes, that is.
Mr. Matsuda: Agriculture inspections.
Ms. Nakamura: Agriculture inspections. Is that five (5)
times? If we have five (5) companies is that five (5) times a year? How many times
a year does a seed corn company get inspected is my question?
Mr. Sahara: Well, what happens is you take a look at the
number of licensed applicators that a place have. So, most of the seed corn
EDR COMMITTEE 54 AUGUST 5, 2013
companies actually have quite a few RUP licensees. Everybody should be inspected
once in the five (5) years during the time that the license is valid. So, that is
actually why the seed corn companies get inspected more than the average farmer.
It is because they have all of these different licensees. The twenty-one (21)
inspections that you received were for the seed corn companies, correct?
Chair Hooser: I will ask questions when it is my turn. But
I have a record...
Mr. Sahara: It is fifty-three (53)...
Chair Hooser: I have a log book of two (2) years and I show
much of it is redacted. So, the ones that are not redacted shows seed companies get
inspected about three (3) times a year.
Ms. Nakamura: Three (3) times a year?
Chair Hooser: That is what my data shows.
Mr. Sahara: Well, no that is not correct.
Mr. Matsuda: Of closed cases
Chair Hooser: That is on unredacted cases. I would be
happy to show you the report. It is your report.
Ms. Nakamura: I think I will just pose this as a question to
be sent over. About how many times a year does seed corn companies get inspected
by the Department of Agriculture?
Mr. Sahara: The unredacted copy had fifty-three (53)
inspections for a two (2) year period. His redacted copy has twenty-one (21)
inspections over a two (2) year period, the seed corn companies.
Ms. Nakamura: So, I just want to know per company, what
does that translate into? You do not have to answer that now. We will send it over
as a question.
Mr. Sahara: I could check it out for you.
Ms. Nakamura: Yes, you do not have to answer it now. The
other question is if the pesticide label requires a buffer zone, who does that
calculation?
Mr. Sahara: The labels, most of do not have buffer zones
restrictions. The only buffer zone restrictions are currently for people using soil
fumigants that was just developed in the last year. That is a new restriction. It if
for soil fumigant use. So, here we checked and the soil fumigant use is on the sweet
potato people on the Big Island.
Ms. Nakamura: Other than the soil fumigants, most of the
pesticides do not have buffer zone requirements?
Mr. Sahara: It does not state it on the label directions for
the pesticides used. I am not aware of it.
EDR COMMITTEE 55 AUGUST 5, 2013
Ms. Zimmerman: Some labels will have buffer zones around
water bodies like natural streams, ponds, lakes.
Mr. Sahara: But not a specific distance is listed.
Ms. Zimmerman: It varies depending on the chemical.
Ms. Nakamura: You are saying fifty (50) feet?
Ms. Zimmerman: Yes, fifty (50) feet seems to be the norm that
I have seen, but it varies depending on the chemical.
Ms. Nakamura: Is there notification requirements?
Mr. Sahara: For?
Ms. Nakamura: For various pesticide uses.
Mr. Sahara: Prior to use, no, there is not.
Mr. Matsuda: The only use would be on the farm where
before you make an application, twenty-four (24) hours, you have to post that you
are going to make an application. But again, it would be to the people working on
the farm, the agriculture workers, and the handlers.
Mr. Sahara: To let the public know.
Mr. Matsuda: After the spray application, there is a time
period, three (3) days. They put the sign, "Do Not Walk In" and the three (3) days
after the application, you have to take the sign off and there is another page called
the REI, Restricted Entry Interval. Depending on the toxicity of the pesticide you
may not enter the treated area maybe up to seventy-two (72) hours.
Ms. Nakamura: Who ensures that that is being followed?
Mr. Matsuda: The applicators of the Restricted Use
Pesticides would be applicator and farm management. Again, when they make an
application they have to post the sign. So, any worker comes to this board, central
notification cite, they look on this date what field is being treated. When they go to
that field, they should expect to see a sign at any of the entry points saying "Keep
Out."
Ms. Nakamura: When your inspectors got out, do they look
for those things?
Mr. Matsuda: Yes.
Ms. Nakamura: The complaints — I wanted to get a sense. Do
we have a number of complaints that you have received with respect to the seed
corn companies over the past several years?
Mr. Sahara: Yes, we can get you that information. I do
not have that with me right now.
Ms. Nakamura: Do you have any sense of the nature of what
those complaints are?
EDR COMMITTEE 56 AUGUST 5, 2013
Mr. Matsuda: Those would be odor complaints.
Ms. Nakamura: Odor?
Mr. Matsuda: Odor.
Ms. Nakamura: Is that kind of the general theme when you
get the complaints? Is it unusual in one part of the island as opposed to other parts
of this island, the number of complaints that you are receiving?
Mr. Sahara: It is mainly from that section, from the West
Side that the complaints are received.
Ms. Nakamura: The complaints are mainly from the West
Side?
Mr. Sahara: Right.
Ms. Nakamura: The complaints are mainly odor related?
Mr. Sahara: For that area, right, correct.
Mr. Sahara: And it is not just the seed companies, just be
aware that there are other companies too.
Ms. Nakamura: Could you explain that some more?
Mr. Sahara: Well no, because some of those cases are not
closed. They are ongoing and there are cases where there were have been
complaints, samples were taken, and it is ongoing because certain residues were
found.
Ms. Nakamura: How many ongoing follow-ups of complaints
do you have currently?
Mr. Matsuda: Well, we could we have to get you that
information because those cases are open and our Case Developer — actually...
Ms. Nakamura: When a case is open, typically how long do
they stay open?
Mr. Matsuda: If it is a complaint, those are given high
priority. Other cases may go three (3) years because we are so back logged. Just eh
last couple of year the Uniform Information Practices Act (UIPA) requests that have
come in requires so much time redacting information, it goes to the Attorney
General's Office, the other side, they get a chance to say this is confidential business
information. They have to run it through their Attorney's Office and we just have
the one (1) Case Developer to work on all of these UIPA requests...
Ms. Nakamura: You have one (1) Case Developer?
Mr. Matsuda: ...plus she handles all of the case files from
the six (6) different inspectors.
Ms. Nakamura: So, it that one (1) person for the whole island
to review these cases?
EDR COMMITTEE 57 AUGUST 5, 2013
Mr. Matsuda: One person for the whole State.
Ms. Nakamura: For the whole State?
Mr. Matsuda: Yes.
Mr. Sahara: That is where the big back log is.
Ms. Nakamura: For the whole State to review inspection
reports from six (6) inspectors? Wow, that is tough. So, that is why the typical
turnaround is about three (3) years?
Mr. Matsuda: Some, not all, depending.
Ms. Nakamura: Not all?
Mr. Matsuda: We try to take care of the no-violations, just
review the records. Again, you have to review the records. We look at the
photographs, the labels, and everything. Again, if it is civil penalty that has to go to
the Attorney General's Office. It goes back and forth, the settlement goes back and
forth and that takes a while.
Ms. Nakamura: The warning, the civil penalty, or doing
nothing are our options?
Mr. Matsuda: Yes, no violation.
Ms. Nakamura: No violations. Could we ask what the
dispositions of cases have been in the last five (5) years from the Attorney General's
Office?
Mr. Matsuda: When you say disposition, meaning
numbers?
Ms. Nakamura: When the inspection has been done and it
has been forwarded to the Attorney General with some recommendation, I assume
from your Department, then can we get records on what has happened in those
cases?
Mr. Matsuda: If they are closed.
Ms. Nakamura: If they are closed?
Mr. Matsuda: And then a lot of that information again, is
subject to that 92F, you will have redacted information. If it is Confidential
Business Information (CBI) and Councilmember Hooser knows.
Ms. Nakamura: What has been the typical disposition of
these cases? Is there an x percentage that gets a warning and x percentage gets a
civil fine?
Mr. Matsuda: On the cases that have been closed, we can
go back and look at the numbers and get that to you. On the top of my head, I will
not venture a guess for you right now.
Ms. Nakamura: Do they typically get appealed?
EDR COMMITTEE 58 AUGUST 5, 2013
Mr. Matsuda: Yes, that is why there is that settlement
part, too. You can appeal, definitely.
Ms. Nakamura: You were mentioned Tier 1 and I think your
time got cut off.
Mr. Matsuda: And a Tier 2 for the Worker Protection
Standard. Use of a pesticide within the thirty (30) day window is considered a
Tier 1 inspection and then if we went in and the applicator made his last
application forty-five (45) days, that is considered Tier 2 inspection.
Chair Hooser: Thank you. They are going to be heading to
the airport. I would like to get every member a chance. They are going to be
leaving and I know everyone is supposed to get ten (10) minutes, but I would like to
move it as quickly as they can so they can get to the airport and everybody can have
an opportunity. Councilmember Yukimura.
Ms. Yukimura: Thank you. You said fifty-three (53)
inspections within two (2) years with the seed corn companies.
Mr. Sahara: Right.
Mr. Yukimura: How many were complaint based?
Mr. Sahara: I could count them.
Ms. Yukimura: No. Can you send that in later?
Mr. Sahara: Right, I have the list here.
Ms. Yukimura: Ms. Zimmerman, you work with
experimental pesticides and you said that all of the experimental pesticides are
actually registered pesticides?
Ms. Zimmerman: Yes.
Ms. Yukimura: They are not new pesticides?
Ms. Zimmerman: No.
Ms. Yukimura: You said something about the inspectors
inspect all applications?
Ms. Zimmerman: No, when we issue an Experimental Use
Permit we send the information to the inspector on that island or in that County
and the user, under the permit, is required to notify the inspector when their first
application under that permit is going to be. The inspector will arrange to observe
the first application under that permit.
Ms. Yukimura: Are these registered pesticides often are
applied for experimental pesticides because they are well known pesticides but they
are used on a different crop or something like that, is that the nature of
experimental?
Ms. Zimmerman: Yes.
EDR COMMITTEE 59 AUGUST 5, 2013
Ms. Yukimura: What other situations?
Ms. Zimmerman: Primarily it is used on other crop at a
different rate perhaps or maybe pre-harvest interval is different.
Ms. Yukimura: Now would you know whether — I do not
know if this is the category of experimental pesticides, but there is a lot of concern
about pharmaceuticals being injected into GMO crops. Can I get some assurance
that none of this is happening in Hawai`i.
Ms. Zimmerman: Well, the Experimental Use Permits we issue
are for just pesticide use. We do not regulate that.
Ms. Yukimura: Who regulates?
Mr. Sahara: I would say United States Department of
Agriculture (USDA).
Ms. Zimmerman: USDA.
Ms. Yukimura: So, USDA is the regulator?
Ms. Zimmerman: And EPA will also issue Federal
Experimental Use Permits.
Ms. Yukimura: They are called Federal Experimental
Permits.
Ms. Zimmerman: Yes.
Ms. Yukimura: Thank you, that is a great clarification.
Have any of you read Bill No. 2491?
Ms. Zimmerman: Yes.
Ms. Yukimura: You have? Do you have opinions which you
may want to submit to us later unless you can do it really quickly, on the
workability of the provisions?
Ms. Zimmerman: Well, I had one (1) concern in regards to the
open air testing the experimental pesticides.
Ms. Yukimura: Yes, I think Mr. Matsuda was alluding to it
at the public hearing. Maybe you could clarify that.
Ms. Zimmerman: Yes, because of the language it will also limit
the use of minimum risk, 25B pesticides which are used often on organic farming.
The citric acid, cedar oil, there are not federally registered so they will be impacted
by this language. Another impact would be Section 18, Emergency Exemptions.
These are exemptions that we issue in occasion there is an outbreaks or an invasive
pest that needs control. They are not technically Federal registrations so they are
an exemption from registration. So, because of the language, County of Kaua`i
would not be able to have use under that tool.
Ms. Yukimura: That is open-air testing, that is the provision
or it is also about experimental?
EDR COMMITTEE 60 AUGUST 5, 2013
Ms. Zimmerman: It says in that Section "unlawful to test or
use any experimental pesticide" and the definition of experimental pesticide was
anything that is not registered by EPA or the use was not registered by EPA.
Ms. Yukimura: I see. We even received a request for an
exemption by the Committee on invasive species because they are using
experimental pesticides to take care of invasive species.
Ms. Zimmerman: Little fire ants.
Mr. Matsuda: It is a registered...
Mr. Furfaro: Fire ants.
Ms. Zimmerman: Yes. It is little fire ants on the North Shore.
They are using it under an Experimental Use Permit to help control.
Ms. Yukimura: In the nature of incoming pests, sometimes it
is really important to act quickly and just get to knock it out otherwise once they
are spread you are at a point of no return.
Ms. Zimmerman: Yes, so that was a big concern.
Ms. Yukimura: Thank you. On the issue of the amount of
pesticides used on this island, we have been looking at sales records. Do you know
that there are other ways that pesticides come in besides sales?
Ms. Zimmerman: No.
Ms. Yukimura: Well, then, can we be assured that the sales
records pretty accurately reflect the amount of pesticides used?
Mr. Matsuda: Of Restricted-Use Pesticides. Yes, not
general use. We have no record of general use pesticides.
Ms. Yukimura: But this Bill only talks about Restricted-Use
Pesticides.
Mr. Matsuda: And again, sales.
Ms. Yukimura: The sales records are fairly accurate
representative of the amount?
Mr. Matsuda: Being sold.
Ms. Yukimura: But are the sales records accurate of the
pesticides used?
Mr. Matsuda: It cannot because a lot of them will store.
Some products come in once time a year so they have to buy that otherwise miss the
boat and then that sits in the container.
Ms. Yukimura: So, it is not representative of the annual use
or the amount of used within a specific time?
Mr. Matsuda: No.
EDR COMMITTEE 61 AUGUST 5, 2013
Ms. Yukimura: But is there any other source of
Restricted-Use Pesticides other than sales?
Ms. Zimmerman: No. For any pesticide being brought into
State it has to be logged in through this sales system that the dealers will report to
us.
Ms. Yukimura: Okay.
Ms. Zimmerman: That is a Federal requirement.
Ms. Yukimura: Because in our minds, chemical companies,
they might have a huge supply. They do not have to sell it to themselves, they just
bring it in, and we would having inaccurate records.
Ms. Zimmerman: No, they would have to purchase it.
Mr. Matsuda: The dealer is also a RUP dealer by the State.
Ms. Yukimura: Now, on this information that you have given
us, am I reading it righting? So, one is tons and you have shown golf course use of
herbicides, insecticides, and pesticides but that is in pounds, not tons?
Mr. Matsuda: Right.
Ms. Yukimura: So, it is a much smaller quality?
Mr. Matsuda: Well, on the bottom we calculated that on the
first sheet, we broke it down.
Ms. Yukimura: Right. I think that is it right now. Thank
you.
Chair Hooser: Thank you, Councilmember Bynum.
Mr. Bynum: I have a couple of quick questions and I am
going to ask Mr. Smith. Is Kyle Smith still here? Somebody find him for me.
Ms. Yukimura: He is right there.
Mr. Bynum: Just looking at...
Chair Hooser: Before they start, I was going to tell the
Department of Agriculture is finished, Mr. Smith will come up and if you could hang
around for a little bit because there is two (2) other Councilmembers that I am sure
will want to ask questions. Thank you. Go ahead, I did not mean to cut into his
time.
Mr. Bynum: I will try to be quick here. On the chart you
have given us, you have given us — and I appreciate these are active ingredients.
But your average for three (3) years is 9.89 tons, correct?
Mr. Matsuda: Right.
Mr. Matsuda: 9.89?
EDR COMMITTEE 62 AUGUST 5, 2013
Mr. Bynum: The average use over three (3) years is 9.89
per year.
Mr. Matsuda: Yes.
Mr. Bynum: With 11.3 last year.
Mr. Matsuda: Right.
Mr. Bynum: And three (3) year total of 29.67 tons.
Mr. Matsuda: Correct.
Mr. Bynum: I think these are numbers that we can take
to the bank. The Bill originally said 3.5, then we did the formula, and we did not
know what you know about active ingredients. So, thank you for this very much. It
looks like Lorsban is a very highly used application as is Atrazine and so I want to
focus on Lorsban for a minute because I started reading labels a few months ago
when everybody kept saying the label is the law. The Lorsban label was really
interesting to me because the EPA changed the rules in 2005, right? My reading of
that label says it is inappropriate to apply this in any section that will have any
exposure to children, have I got that right?
Mr. Sahara: I would have to see the label.
Mr. Bynum: According to the label it is inappropriate to
apply this in any fashion that children will be exposed and that change happened in
2005. Are you familiar with what I am talking about?
Ms. Zimmerman: New registration, yes.
Mr. Bynum: Because this chemical is banned in most of
the worlds and this is one (1) of the three (3) chemicals that was found in the air at
Waimea Canyon School. To me, that says the label has been violated and to me
that would be a very serious cause of concern when this particular chemical has
been sorted out as a source of problems for prenatal and children and it is in the air
at Waimea Canyon School. Should the State Pesticide Branch not be concerned
about that?
Mr. Matsuda: Yes, should be. I think also the Department
of Health should be looking at this.
Mr. Bynum: Okay, I just wanted to ask that question.
Mr. Sahara: Actually there have...
Mr. Bynum: You mentioned a buffer zone for aquatic, fifty
(50) feet on some of the labels, is there any requirement for the body of water that is
required? It is a river, an irrigation ditch, how do you determine where that applies
and where it does not?
Ms. Zimmerman: The labels will say things like streams,
rivers, lakes, natural ponds, that is the type of language it uses.
Mr. Bynum: So, it will have some descriptive language?
EDR COMMITTEE 63 AUGUST 5, 2013
Ms. Zimmerman: It will have all of it. Yes.
Mr. Bynum: So, that would not include irrigation ditches
for instance?
Ms. Zimmerman: No, not normally.
Mr. Bynum: Or dry gulches? It would be active bodies of
water, correct?
Ms. Zimmerman: Yes.
Mr. Bynum: That was all the questions. I was hoping to
talk to Kyle Smith who is on our list.
Chair Hooser: He is there.
Mr. Bynum: Oh, I am sorry. Mr. Smith, could you just
introduce yourself and then in the discussion that we had recently, just go over from
your perspective, the community's relationship with Pioneer over the last few years
as related to dust nuisance, grading and grubbing, and those kind of things?
KYLE SMITH: Sure, I would be happy to. Again, thank you
for allowing me to speak. As you said, my name is Kyle Smith. I am the Attorney
for Waimea residents or residents in the town of Waimea. It is approximately, I
would say five hundred (500) to six hundred (600) people if you counted the actual
people in the homes, maybe one hundred fifty (150) people on caption of the lawsuit.
One of the big issues, there are two (2) really. There is dust, but also pesticides and
one of the purposes of the litigation was to figure out what was actually being used
in the community. So, as far as I am aware the only real concrete evidence out
there as far as how these pesticides are actually being used on Kaua`i is the
information that has come out of lawsuit other than the restricted use sales records
kept by the State. I am happy to walk through that with you to the extent you want
me to. Your specific question was the actual history of the relationship between the
two.
Mr. Bynum: Very briefly.
Mr. Smith: Very briefly, we got involved three (3) years
ago. It followed really from dust impacts, people smelling chemicals in the
community and being upset. We spent a year trying to work things out with
Pioneer before we brought the litigation. In large part it was for violations of Kaua`i
County Ordinance No. 808, the Grubbing and Grading Ordinance with there being
actually violations with the Dupont Pioneer fields back in 2010 and failure to follow
their conservation plan. That was sort of the original issue that was announced by
the County and shortly after that is when we brought the litigation itself. Since
that time, we have been working to figure out what kinds of pesticides were used,
the frequency of the usage, etcetera?
Mr. Bynum: Let me do questions and answers to move
this along.
Mr. Smith: Sure.
Mr. Bynum: When you are doing grading and grubbing,
an alternative for farms is what is it called? A conservation plan?
EDR COMMITTEE 64 AUGUST 5, 2013
Mr. Smith: That is right.
Mr. Bynum: Can you explain that process and how it has
gone on Kaua`i in relationship to the seed companies.
Mr. Smith: Sure. Essentially, grading and grubbing is
turning over the land. So, when you remove vegetation, you are supposed to have a
grading permit. So, if you are in the construction process you have to go get this
permit. If you are an agriculture operation, you can get an agricultural exemption.
In order to get that exemption you have to have a Conservation Plan that is
approved by the West Kaua`i Soil and Water Conservation District for the part of
Kaua`i that your operation is on. There is an actual Conservation Plan in place that
is supposed to lay out the best management practices for how do you conserve the
land, how do you avoid erosion, and there are specific things called out in that plan.
So, once that plan is in place, and in this case the operations started in 1998 when
the lease started, there was no Conservation Plan approved and in place until 2002.
Then later on, additional acreage was added to the Waimea Research Center,
another one thousand (1,000) acres, and there was a much later plat that was was
put into place after the County of Kaua`i issued its violations.
Mr. Bynum: Tell me more about why the County of
Kaua`i issued violations?
Mr. Smith: Well, the County of Kaua`i might be the best
people to ask about that. But specifically, there was runoff at the Pakala surf break
that surfers were complaining about. They went to the County and I believe there
were repeated complaints and the County Engineer finally investigated and found
that DOW Agroscience, I believe, and also Dupont Pioneer were essentially working
or grubbing land, plowing land, etcetera, farming without these conservation plans
in place and then notices of violation were issued at that point in time shortly
thereafter.
Mr. Bynum: Switching gears really quick, part of your
lawsuit has been an attempt to get actual application data.
Mr. Smith: That is right.
Mr. Bynum: Not what was sold, but what was applied,
what time of day, and how much quantity? You have recently received some of that.
Could you tell us briefly what it took to get that information?
Mr. Smith: It took several years of litigation is what it
took. We requested that originally. Some was provided, but it was all deemed
confidential. We challenged that and eventually that confidentiality was lifted by
the company and we have since been trying to work through it. I can put it in
condensed format. There are lots of ways to look at it. You could look at it by class
as far as the different types of pesticides that are being used. You can look at it in
terms of frequency. Sixty-five percent (65%) of the days of the year on average, so
about two hundred forty (240) days, they are applying pesticides. You can look at
the combinations that are applied. You could look at it by on the application days,
the average is between eight (8) and maybe sixteen (16) applications per day of
pesticides on these research fields. Most importantly though and I think what is
most relevant for this discussion is the total usage. Recently, the industry statistics
I saw put out at the public comment was that Kaua`i was using about one (1) pound
per acre, per season and that the mainland uses about two (2) pounds per acre and I
EDR COMMITTEE 65 AUGUST 5, 2013
have these charts to show you. Again, I believe it is a seed company graph. The
reality is if you double that because we have multiple seasons, we have three (3)
seasons. Typically, two (2) seasons are planted, you are looking at closer to two (2)
pounds per acre, that puts us in the upper-level of the mainland usage. Those are
industry numbers, but if you look at Dupont Pioneer pesticide spray records that we
have actually found in the lawsuit and you look at Restricted-Use Pesticides, they
have come down sharply since the lawsuit. I do not want to take that away. So,
once we sued the usage is far less today than it was. But in 2010...
Mr. Bynum: Quickly.
Mr. Smith: Yes, 2010, 2009 you are looking at close to
twelve (12) pounds per acre and the average usage, and this is Restricted-Use
Pesticides, over that same time period would be eight (8) pounds per acre. Now, at
two (2) pounds per acre which is again the number put out by the industry I believe,
you are in the highest average in the United States, in the mainland, across those
years. At eight (8) pounds per acre, ten (10) pounds per acre, eleven (11) pounds per
acre per year, you are many, many times that.
Mr. Bynum: Thank you for supplying the data.
Mr. Smith: Of course.
Mr. Bynum: It is very voluminous, it is very detailed, and
data analysis is not a strength of this County. I just want to tell you. But we need
to do this analysis. From your initial analysis...
Chair Hooser: That is it.
Mr. Bynum: That is it?
Chair Hooser: Yes.
Mr. Bynum: One sentence. Two hundred forty (240)
applications on average per year?
Mr. Smith: Two hundred forty (240) days, multiple
applications on those days.
Mr. Bynum: Two hundred forty (240) days out of year,
pesticides are being applied to the same fields?
Mr. Smith: At Waimea Research Center, on average.
Mr. Bynum: Is there...
Chair Hooser: Thank you. You will have another ten (10)
minutes.
Mr. Bynum: Are there rules about frequency, Thomas?
Mr. Matsuda: Yes on the label. Even the field...
Chair Hooser: We are finished with this.
Mr. Bynum: I have run out of time.
EDR COMMITTEE 66 AUGUST 5, 2013
Chair Hooser: We are finished with this ten (10) minutes.
We will have another ten (10) minutes in a second, if you could hold on for a second.
We will see if council Chair Furfaro has questions.
Mr. Furfaro: Thank you. First of all, Mr. Smith, thank
you very much. We have gotten the material that I met with you and Mr. Jarvis on
and I will make sure to share that with all the members. So, I just wanted to say
thank you.
Mr. Smith: Of course, you are welcome.
Mr. Furfaro: For the others here, I want to reference the
Atrazine issue. Are the three (3) of you from the State aware of the passing of
House Resolution 100, Draft 2? If not, I am going to give it to you today so can you
can take it with it you. I have identified the seven (7) unit synopsis from myself
which this Resolution from the State says that they are going to pursue and is being
requested from the Director of Agriculture as well as the Director of Health to file a
report to identify any new proposed legislation as well as identify partnership
activities and I assume with the other political subdivisions, by October 31, 2013,
that is eighty-eight (88) days from now. As the Chairman of the Council, I have
gotten no information from either of those State Departments. Are you familiar
with it?
Mr. Matsuda: I am not familiar. We have not even gotten a
call from the Department of Health and I believe that they are the lead agency on
that Bill.
Mr. Furfaro: Yes. The Bill itself talks about the fact that
the Department of Agriculture flat out in the Resolution says they do not provide
enough staffing to the State to actually do this testing. I am thinking if you want us
to be partners, that is a key item that you could approach us on based on the fact
that we may be able to identify some type of stipend for the State to assist them.
But they currently do not test because of the lack of inspectors, that is very, very
concerning for me. The guidelines here are actually set by the EPA and there
should be some kind of compliance issue especially dealing with bodies of water
which were explained to us earlier and the Director of Health was going to draft
some ideas of how we could partner on this by October 31, 2013. I would like you to
do whatever you can in your powers to get us current. This is disturbing that we
have not had any dialogue since the last legislative session and House
Resolution 100, Draft 2, has passed. So, based on that it is hard for me to believe
that you are doing the optimal level of enforcement when the Resolution clearly
says that you have never been staffed appropriately. I would like to hear back from
you, if you could answer me. I will give you this document and I have others.
Where are we going with this? What are the desired outcomes? What is the vision
for the State in getting us in compliance with what clearly the FEDs, through the
EPA, allocates as a requirement? We would be glad to kokua, but nobody is sharing
anything with us.
Mr. Matsuda: Is the Atrazine being registered right now?
Ms. Zimmerman: It is under review right now, yes.
Mr. Sahara: But actually, one another thing. This year...
Mr. Furfaro: I am sorry. I am sixty-four (64) years old,
you need to speak up.
EDR COMMITTEE 67 AUGUST 5, 2013
Mr. Sahara: One of the things since all the Trizines were
becoming very important subject, I had all inspection staff on outer islands check on
the amounts that were purchased and review how much is in storage and see how
much was applied to make sure that these numbers match up. So, we did a specific
review of Trizine, besides Atrazine, there are other products involved. There are
(inaudible) and some others.
Mr. Furfaro: But I want to be clear with you, this grading
and grubbing Bill was staffed in 2002.
Mr. Sahara: Right, this was just passed.
Mr. Furfaro: I was on the Council with two (2) of my other
colleagues. I want to hear from you, what in the way of best practices based on this
resolution by the State, you need from us so that we can work together in
partnership on resolving this issue? I hope you understand where I am coming
from. Resolutions, they do not have the power of law, but certainly, they should a
vision of what our commitment is to get there and to read something as clear in the
State Resolution that says staffing guides are the issues why you do not enforce.
Well, let us get ourselves to a point that we can enforce and how can we help? I am
sorry Mr. Hooser that was a statement versus a question. But I am going to give
you my document to take back with you. Thank you, Committee Chair.
Chair Hooser: Thank you, Chair Furfaro. Clearly, a little
leeway on the questions. We would like to focus on the issue, but statements like
you just made were perfectly appropriate. I will ask my questions now and I will
try to be brief. Earlier, Councilmember Rapozo asked about where drift was found
in a certain and you said, "Yes, it was found."
Mr. Sahara: Yes.
Chair Hooser: Then the question was, is the public notified
because I would imagine if it is found on one (1) house then it would be found on
other houses, and the public is not notified when you find drift, yes or no?
Mr. Matsuda: No.
Mr. Sahara: Well, the public is not notified.
Chair Hooser: Does the public notify...
Mr. Sahara: The person...
Chair Hooser: My question is about the public. Again, I do
not mean to cut you off, but we have to move forward. My concern is about the
public not about the applicator. So, the public is not notified if drift is found and
you hear a lot that the label is the law, the label is the law. The law says no drift
and drift is found. The second one is this difference if numbers between eighteen
(18) tons and nine (9) tons. I am a little taken aback when I use the information
given by your Office to me that says Lorsban or whatever, all of these chemicals. It
is in gallons, I totaled it up, I compute the tons, and then your Office says it is only
the inert ingredients.
Mr. Matsuda: No, it the active ingredients.
EDR COMMITTEE 68 AUGUST 5, 2013
Chair Hooser: I mean the active ingredients. When I say
eighteen (18) tons of pesticides, I mean eighteen (18) tons of Lorsban and all of
these other chemicals and that is an accurate statement, I believe, because that is
what gave me. To subtract out the inert ingredients and then only count the rest
when your numbers give me the full amount, I think is disingenuous quite frankly.
Mr. Matsuda: Well, the active ingredient is the pesticide
that does the killing.
Chair Hooser: But...
Mr. Matsuda: So, that is what we are stating.
Chair Hooser: But pesticides are bought and sold by names
and I counted up the number of gallons and pound by those pesticides by names.
So, I take it a little personal when you question my numbers when I used your
numbers to calculate the gallons, that is that part. The inspection log — I got an
inspection log from your Department. It shows two (2) years of all of the
inspections. It took me a long time to get this log. I had to wait and wait and wait.
A two (2) year total, one hundred seventy-five (175) total inspections in two (2)
years. One hundred seventy-five (175) total inspections in two (2) years. You had
mentioned fifty percent (50%), I counted just under fifty percent (50%) that are
redacted. Redacted so that we do not know and those are violations or enforcement
actions that we do not know what those enforcement actions are. They could be
little or they could be big. I have asked the Department to at least give me the
enforcement actions. Do not give me the companies, just give me the action so we
know what is going on and I have gotten no answer. You take two (2) years of
inspections, it comes to me —each of these main companies that we are talking about
is being inspected 3.625 time a year if you subtract out the redactions, three and a
half (31/2), less than four (4) times a year because that is all the information that I
have. So, I have the information here. I will be sharing it with my colleagues on
Council and just to clarify, there is no record of general use pesticides, is that
correct?
Mr. Matsuda: Correct, only in inspection.
Chair Hooser: If we are using eighteen (18) tons of
Restricted-Use Pesticides, could you estimate at all, pick a number of how much
pesticides are being used, more or less? You do not know huh?
Mr. Matsuda: No.
Chair Hooser: So, the State of Hawai`i does not know how
much general use pesticides are being used in the State of Hawai`i?
Mr. Matsuda: If you are looking for a ratio RUP to general
use, it is hard to say. It depends on the company.
Chair Hooser: In round numbers?
Mr. Matsuda: I can say that the...
Chair Hooser: Sixty (60) / forty (40), is that what you said?
Mr. Matsuda: The homeowners also use general use
pesticides like the agriculture in general.
EDR COMMITTEE 69 AUGUST 5, 2013
Chair Hooser: The point is the State of Hawai`i do not know
how much general use pesticide is being used, is that correct?
Mr. Matsuda: That is correct.
Chair Hooser: Thank you very much. I hated to rush, but I
had to. You mentioned the experimental use pesticides in the language.
Ms. Zimmerman: Yes.
Chair Hooser: Would you be willing to work with us to
amend the language to cover those kinds of incidents?
Ms. Zimmerman: Yes.
Mr. Bynum: Thank you.
Chair Hooser: I really appreciate that because we are
trying to get a good Bill. Thank you very much. I am going call up somebody else
now. I believe Dr. Carl Berg if you could and Paul Towers from the Pesticide Action
Network. Kyle, you can stay if you want. There might be some questions. Again,
we only have ten (10) minutes so I am kind of ripping through this. Dr. Berg, you
can tell me a little bit about yourself. But you have recently, it is my
understanding, done some testing around our island and you have worked with the
Department of Health testing various waterways for chemical residue or pesticide
residue. Could you tell the Committee what you have found?
DR. CARL BERG: Yes, my name is Dr. Carl Berg. I am a
marine biologist. I have done water quality studies since about 1966 and on Kaua`i,
since 1991. Most of my work has been done with the Department of Health in
looking at bacteria loads, nutrients, and things like that. But because of community
concerns, I started looking at pesticides and specifically there is a strip test, a little
dip-stick test by a company called Abacus that allows you to go and monitor for
Atrazine and one of its derivatives at the EPA level of three (3) parts per billion. I
went out and tested twenty-six (26), I believe, different streams and ditches around
the island here and found positive results in a number of those. I am just looking
for my notes here, positive results were found in a ditch by McArthur Beach Park at
Kekaha in the ditch there, Waimea River, Hanama`ulu Stream, Nawiliwili Stream,
and Waipolili Stream which is at Mahaulepu. So, all of those gave me a positive
result which then lets me focus further on where we should be starting to take
water samples. But I am very cautious about this because when you take a sample,
I am taking just a tiny drop of water from a river and it is very difficult to say that
entire river is polluted and it is dependent upon when it was last sprayed, when did
it rain, all of those other things. If I get a positive result, I know that there was
Atrazine there in that piece of water at the time that I took it. It may not be there
all of the time. If I get a negative result it means there was nothing there at time I
took it, but it could be tomorrow, it could be right after it was sprayed or something
like that.
Chair Hooser: Before we ran out of time, could you mention
the Department of Health?
Dr. Berg: Thank you. So, that is what I personally
have done with Surfrider Foundation and beginning to test that. However, since
1991 I worked for the Department of Health and then I have been an Informal
Advisor to the Department of Health and I have contracts to do water quality
EDR COMMITTEE 70 AUGUST 5, 2013
studies from the Department of Health. As such, I am shown some of the data that
they get and they ask my advice. The Department of Health, last September took
part in a nationwide survey looking for all sorts of pesticides in personal care
products and they choose — I was not party of where they tested. But they did test
for approximately eighty-nine (89) different chemicals throughout the State and
they did find Atrazine in the waters here in Nawiliwili and Hanamd'ulu. They
found Carbaryl, an insecticide, in Nawiliwili. They found another group of wetting
agents and I do not know how to pronounce this properly, noninophenols in
Nawiliwili, Hanalei, Wailua, and other places. Then they found nicolene which is a
general product that is used in lots of different pesticides and insecticides.
Chair Hooser: I am going to interject for a second just to be
clear. Those are not supposed to be there, is that correct? They are not legacy
chemicals that have been left over for years and years?
Dr. Berg: No, those chemicals should not be there in
the natural environment. Whether or not they are legacy, I cannot determine, but
they should not be there. What this means is that we already have contaminated
our waters. Our waters are already contaminated with these pesticides. I cannot,
in this case, identify exactly what the source is or when it was put in there, but it
does give us caution that we should not be adding anymore to already polluted
waters. There is data out there that these pesticides, everything from glyphosate to
Atrazine and everything, destroys the fishes in the streams, the brine shrimp, and
the little things like that. So, there is deleterious effects on the environment
through the whole food chain by finding pesticides in the waters, in our streams,
and our ditches on this island.
Chair Hooser: Thank you very much. This is you new
information that I thought was important to get out. I apologize to Paul Towers
from the Pesticide Action Network that I have not been able to ask you questions,
but perhaps other members will be here. You flew all the way from the mainland to
be here. That is the end of my ten (10) minutes.
Ms. Yukimura: Could we put that in writing?
Chair Hooser: So, we will go with Councilmember Kagawa
and it has been requested, Dr. Berg, if you could provide in writing what you just
told us also.
Dr. Berg: I would like to add that I did send in
testimony personally that you all should have that does mention the fact that these
pesticides had been found and that I had done some other testing.
Mr. Kagawa: Dr. Berg, you recommend we, as a County,
that we pass this Bill?
Dr. Berg: I highly recommend that you pass this Bill in
part. I cannot know what to test for if you do not tell me what you are using.
Mr. Kagawa; Well, so you do work with the State
Department of Health though?
Dr. Berg: I have contracts working with the State
Department of Health and I do it also on a volunteer basis.
EDR COMMITTEE 71 AUGUST 5, 2013
Mr. Kagawa: So, have you alarmed the State Department
of Health that you feel there is a big problem with our waters, that perhaps they
might contacts the State Department of Agriculture to maybe try and monitor some
of the agriculture business or do you think we should just create a whole new
County Department that would better know what the State Department of Health
and the State Department of Agriculture would know?
Dr. Berg: I think it is obvious that the State
Department of Health and State Department of Agriculture are not funded to do the
type of inspections that is required.
Mr. Kagawa: I have another question. Kyle, the Pakala
incident with the surfers —because I have surfed Pakalas from the early 1970s and
the water there was always brown.
Mr. Smith: Yes.
Mr. Kagawa: Did this complaint come because they
noticed the water being browner?
Mr. Smith: I did not make the complaint so I cannot
answer.
Dr. Berg: Could I interject here?
Mr. Kagawa: Go ahead.
Dr. Berg: The reason I interject here is I am one of the
parties who made the complaint because the surfer communities were getting no
action out of the County and so they asked Surfrider if we would file a complaint
and talk to the County. The people there saw the open fields without any ground
cover and we then had the heavy rains in November. It all washed down and not
only was the water muddy, but the roads were covered and fishermen were
restricted from going in that area. At that point, I hired an underwater
photographer diver to go out and look and found out that the whole ground was
covered with mud. The lobsters were walking around covered, there were no holes.
They were covered with mud. This information then was given to the County and
we asked the County Attorney to please look into this and at that point we found
that the agriculture companies did not have a Grubbing and Grading Permit and
they did not file an exemption for one through the agriculture exemption filing of
conservation plan. So, they were obviously not following best management
practices by opening up this bare land and they were in violation.
Mr. Kagawa: Kyle, when they did the tests, what did they
find?
Mr. Smith: Which test? The Waimea Air Quality Test?
Mr. Kagawa: No, the Pakala surfers. Did they do a test
and found contamination in that water there?
Mr. Smith: No, I do not believe so. I am not sure.
Mr. Kagawa: They just found that they should have
applied for the Grubbing/Grading Permit.
EDR COMMITTEE 72 AUGUST 5, 2013
Mr. Smith: They documented a huge amount of mud
washed off— more than the sugar plantations ever did washed off in that event and
that they found that they had no Conservation Plan and no permit.
Mr. Kagawa: The second thing, in regards to where we are
at? I do not know how much you want to disclose on this issue, but where are we
regarding the Waimea lawsuit against Pioneer? What stage? How long do we
expect a resolution to this?
Mr. Smith: It is a good question. We are in Federal
Court on O`ahu. There are some things, a lot of things that I cannot disclose
frankly. But as far as timing-wise, this piece of the litigation, I think maybe by next
year, next summer. There is a trial date and we will see if those dates hold.
Mr. Kagawa: For me, I think that result of that lawsuit
will give us a lot of direction as to where government needs to be doing more.
Mr. Smith: I have got to be honest with you, lawsuits
look at different things than what government looks for.
Mr. Kagawa: I understand.
Mr. Smith: So, protecting that community on all these
different important issues, litigation cannot do everything for everybody.
Mr. Kagawa: I understand, Kyle. But my thing is that I
grew up on the West Side and we have had sugar cane. The seed company was
operating there before we had the sugar cane.
Mr. Smith: That is right.
Mr. Kagawa: There was not much buffer zones in the past.
Mr. Smith: You are right.
Mr. Kagawa: And rules against spraying during windy
days. I mean, there were none back in the old days.
Mr. Smith: I agree with you.
Mr. Kagawa: Like I said, it does not mean that we do not
need new regulations, but I think the lawsuit will give us some direction from a — a
legal ruling always gives you directions. If you get sued for something, you are not
going to continue to do the same thing, right? You are going to make sure your
company can avoid those rulings against you, right?
Mr. Smith: I agree with you. But also, if this was sugar
cane, you would not have multi-generation families, people who have lived their
whole lives through sugar cane, would not be in this lawsuit if what was going on
was just sugar cane continued. This is different and everyone here that knows our
clients, I think knows that what is going on the West Side is different.
Mr. Kagawa: Thank you, Kyle. Carl, we always hear
Atrazine the most important. Do we know if the sugar cane companies used
Atrazine in past?
EDR COMMITTEE 73 AUGUST 5, 2013
Dr. Berg: I do not know the answer to that. I think
that they did, but I am not an expert on that.
Mr. Furfaro: They did.
Ms. Yukimura: They did.
Mr. Kagawa: It would be difficult to say how much is
attributed to the sugar cane and how much is attributed to the corn seeds, right?
Dr. Berg: As far as I know with the testing available, it
would be hard to say.
Mr. Smith: Actually the life span of Atrazine is quite
short. So, in fact it only stays in the water system a relatively short period of time
depending on what the make-up of the groundwater is or the surface water. It is a
relatively short time. So, actually you are likely not seeing...
Mr. Kagawa: Short meaning how long?
Mr. Smith: It depends on many different factors, right?
So, with the make-up of how it percolates down and where it sits. But it is a matter
of months rather than usually a matter of years. It is likely not legacy from sugar
cane.
Mr. Kagawa: And the test for positive is how much parts
per billion?
Dr. Berg: The test I used was three (3) parts per
billion.
Mr. Kagawa: Can you quickly describe that test? You take
a drop and you put in on a...
Dr. Berg: On a little dipstick and it changes colors and
you compare the two (2) bands and whether those colors are equal or one is darker
than the other.
Mr. Kagawa: Thank you, folks.
Mr. Smith: Thank you.
Chair Hooser: Councilmember Rapozo.
Mr. Rapozo: Thank you, Mr. Chair. I have a question as
far as Atrazine, it does not last long in the water, but what about in the ground?
Mr. Smith: In the groundwater?
Mr. Rapozo: In the soil?
Mr. Smith: It depends. Again, many of these pesticides
there are many factors at play, but the most critical concern is around water. Soil is
of much less concern than water.
EDR COMMITTEE 74 AUGUST 5, 2013
Mr. Rapozo: No, no. But if it is in the soil and runoff
causes it to go into the water, that is what I am talking about.
Mr. Smith: I see.
Mr. Rapozo: I am not talking about the dirt.
Mr. Smith: Yes. What its fate transport is?
Mr. Rapozo: I am trying to figure out what the life of this
thing is in the ground.
Mr. Smith: Yes. Again, it is many factors at play so it is
hard to say specifically. But it tends to be relatively short-lived compared to many
of the other legacy pesticides you see like arsenic that is left over in many old sugar
mills, for example.
Mr. Rapozo: So, you do not know how long?
Mr. Smith: It is a matter of more likely months than
years.
Mr. Rapozo: In the ground?
Mr. Smith: In the ground and the water.
Mr. Rapozo: I am not talking about the water, ground. If
the plantation had sprayed Atrazine before they closed, is there likely to be
Atrazine in that ground today?
Mr. Smith: Likely not, no.
Mr. Rapozo: Dr. Berg, on your testing of the streams, did
you test any other streams? Did you test Hanalei Stream? Did you test Kealia?
Did you test any of the other streams?
Dr. Berg: I did. I do not have...
Mr. Rapozo: It is either yes or no.
Dr. Berg: The answer is yes. I tested twenty-six (26)
and only the ones that I mentioned came up positive.
Mr. Rapozo: Those are the only ones that came up
positive?
Dr. Berg: Yes.
Mr. Rapozo: I actually did witness that with my friend in
the back, now I forget your name. Ned brought that test you talked about to my
office with a sample of water. So, I got to witness the positive reading right before
my eyes in my office within ten (10) minutes and I believe that came from the
Second Ditch in Kekaha, the stream there. That is all I have. Thank you.
Chair Hooser: Councilmember Nakamura.
EDR COMMITTEE 75 AUGUST 5, 2013
Ms. Nakamura: Thank you all three (3) of you for being here.
Dr. Berg, thank you for your ongoing work with stream collection data which I know
you have been doing it for a long time on Kaua`i. So, thank you. I wanted to more
about we do have a list of Restricted-Use Pesticides that are being used by the seed
companies primarily on the West Side of the island. It seems that this one test you
did for Atrazine really needs to be — it should be applied to all of these Restricted-
Use Pesticides or the ones that are most prevalent.
Dr. Berg: Yes, the problem is the cost and there are
two (2) cost factors. One is how accurate, how many parts per billion or tenths, the
second is how many are you looking at? I should add I am not only concerned about
restricted use. One of the things that may be most detrimental is something called
glyphosate, which I believe is a general use. Its surfactant has been found to be
dangerous in stream waters. There are lots of different chemicals. In general, I
would say it costs about two hundred ($200) per water sample per test. So, I hear
today there were eighteen (18) different restricted use chemicals, eighteen (18)
times...
Ms. Nakamura: Twenty-five (25) is on this list.
Dr. Berg: ...two (2), one hundred...
Mr. Furfaro: Excuse me one moment, they are trying to
get your attention.
Chair Hooser: We might have to take a break. We are
going to take a five (5) minute break. I apologize for the interruption, but we need
to take a break.
There being no objections, the Committee recessed at 3:38 p.m.
There being no objections, the Committee reconvened at 3:50 p.m., and
proceeded as follows:
Chair Hooser: Just a little on the process, we are going to
proceed the same way that we are doing and the members are aware that there are
other resource people in the audience. We are primarily focused on the science and
medical. Dr. McHughen, is that right? Why do you not go ahead and bring a chair
up. I think you are from the mainland and you can sit down next to Kyle here. I
understand that you are a Plant Pathologist working on behalf of one of the seed
organizations so I want to make sure — you are not. But you are here anyway so we
want to give you the opportunity if any members have questions of you. There is
also Don Heacock, State Aquatic Biologist in the audience. We have Hector
Valenzuela. The University has done a lot of work in this field. So, if any members
want to call other resources up to ask some questions, please do so. We intend to
finish this round of questions, it is my understanding if the members want to do
differently we can, and then we are going to take maybe an hour of public testimony
and then we will probably be going into recess until August 13, 2013 because it is
going to go too long and we want to have some really quality discussions with
industry representative, the Farm Bureau, and others that are here and we will not
be able to do that because of time constraints. Members of the public, I apologize.
We will try to get through an hours worth of testimony and then we are going to
move on. So, who is the last speaker? Councilmember Nakamura. Before you were
so rudely interrupted by that.
EDR COMMITTEE 76 AUGUST 5, 2013
Ms. Nakamura: I guess I will ask the question to
Dr. McHughen. Thank you for being here from University of California — Riverside.
I wanted to ask you about the protocols of regulating GMOs. What is the process
that is involved?
DR. ALAN MCHUGHEN: I am sorry for which?
Ms. Nakamura: The process for regulating GMOs?
Dr. McHughen: For safety in the United States (U.S.)?
Ms. Nakamura: Yes, and what agency oversees that?
Dr. McHughen: Well, there are three (3) agencies. It is
overseen most immediately by the White House through the Office of Science and
Technology Policy who developed a framework back in 1986 and that has been the
structure that our regulatory agencies have used since then. The primary agencies
are USDA, Food and Drug Administration (FDA), and EPA. You have heard
something about the laws this morning, FIFRA in particular, that is used by EPA.
But actually that is one of the minor ones and when you get into discussions — I am
not a lawyer by the way. But I have worked with lawyers and I have worked with
the regulatory system so I know something about how the regulations are put
together. But when you talk to your legal advisors, you want to find out how your
Bill jives through the Plant Protection Act particularly because that is the major
one that USDA uses and all of these crops that you are dealing with have gone
through rigorous oversight particularly by USDA. All of those agencies are
involved. U.S. EPA is the least important actually because there are some GMOs in
commerce that did not have to go to EPA for regulatory oversight, but they have all
gone through USDA and FDA, all of the food GMOs in the U.S. commerce. I have
been working on this issue since 1984 and recently I published a book with a Senior
Officer from EPA, Chris Wozniak, called The Regulation of Agricultural
Biotechnology In the United States and Canada so your Committee might be
interested in looking at that. It is quite a thick book. This is a very controversial
issue as you know, there is a lot of information, good information, misinformation
and confusion. We put this book together to address the people largely who think
that or who have stated there is no regulation of these products, number one, or
secondly, while there is regulation but it is lax and the agencies just rubber stamp
applications that come in from industries. So, that is certainly not the case and if
you are interested in how these things are established to be as safe as other
products of conventional breeding, then you might want to get this book and take a
look at it.
Ms. Nakamura: What are your major — I do not know if all of
us are going to get a chance to get the book and read it. But what are your major
conclusions?
Dr. McHughen: Relative to the rest of the world the U.S. has
a very robust and functional regulatory system. The USDA is primarily responsible
for field release for environmental impacts looking for plant pests especially. FDA is
primarily responsible for the safety of the food and feed that comes from genetically
modified products and EPA, as you already have discussed, is primarily concerned
with pesticide uses and the track record is impeccable. In the period since when the
U.S. first started testing and commercializing genetically modified plants, and that
was back in 1988, there has not been a single incident of harm to any environment
from a GMO nor has there been any documented verified instance of harm to a
human or an animal from the consumption of genetically engineered foods. This is
EDR COMMITTEE 77 AUGUST 5, 2013
not my opinion, this comes from the National American Academy of Sciences. It
comes from the American Association for the Advancement of Science, the largest
scientific society in the world. It comes from the World Health Organization and
many other scientific societies around the world who have investigated the safety of
GMOs.
Mr. Bynum: Point of order?
Chair Hooser: What is the point?
Mr. Bynum: This Bill is not about the safety of GMO field
and I would like to use our time focused on things that are related it.
Chair Hooser: Thank you. Councilmember Bynum's point
was that this Bill is not about GMO foods or the safety and his request is to focus on
the Bill. I am giving a fair amount of latitude to each member and so your point is
taken and I acknowledge that. We do want to focus on the Bill, but Councilmember
Nakamura, if you could provide.
Ms. Nakamura: Well, I think we are setting up a permitting
process for GMOs the way I read this Bill. So, I think it is germane to the
discussion and you may disagree, but I do have another question. Just in terms of
based on your background, what do you see as the strength and weaknesses of this
Bill?
Dr. McHughen: Well, I am in favor of people having a better
understanding of where their food comes from in the first place. I am certainly in
favor of people having safe food supplies and I am in favor of the judicious
application of genetically engineering when it gives us product, for example, crops
that can be grown with fewer pesticides or with less water on smaller acreages so
that we are not using whatever land we have left and turning them into farmlands.
So, those are positive things. If we can encourage people to become more educated
on where food comes from, I think that is positive. Negative aspects on this, well
you have heard some of the legal arguments this morning. From the scientific
standpoint, one thing that I will focus on this afternoon is the moratorium and EIS
procedure. I must say first of all thank you for having me here. This is my first
visit to this beautiful island and I appreciate the opportunity to speak to you. But I
must be very envious of your tax revenues because these things are extremely
expensive. I know we in California, we do not have the budget to do this. When
USDA conducts an EIS, it takes them upwards of a year to complete, major
resources, and it costs a lot of money. I do not know the exact figure, but I would
estimate around one million dollars ($1,000,000) per application and even more
limiting perhaps is the human resources because these things are highly technical,
the people who are qualified to conduct an EIS do not grow on trees and even if the
USDA, they have difficulty finding enough people to do the work. So, as I say, I am
envious that you will clearly have enough money to hire Ph.D. scientists who are
experts in this technology. More scientifically, and that is an economic issue. But if
you can deal with it, that is fine, that is great, good for you. Scientifically, you have
a moratorium and EIS, but how are you going to write the EIS without doing the
field trials because an EIS is based on the data. It is not an opinion piece. It is not
a planning piece. It is based on the data compiled from field trials. So, you have set
up a "Catch-22" where currently the companies, but it could be the USDA, it could
be a university trying to investigate and conduct research here. It is impossible for
you as the County to conduct the EIS without actually conducting field trials. But
you cannot conduct field trial because there is a moratorium until you conduct the
EIS.
EDR COMMITTEE 78 AUGUST 5, 2013
Ms. Nakamura: Thank you. Dr. Berg going back to the
testing that you have done, I just want to get your feedback on the resources of the
Department of Health to really identify the streams that are needed and to test for
those Restricted-Use Pesticides and General Use Pesticides that you think might
impact the environment. Can you discuss your concerns about the resources to do
this?
Dr. Berg: The Department of Health has been cutback
in their Water Quality Monitoring Program already quite heavily and for that
reason, there is only one (1) water quality monitor on this island. There is no air
quality monitor on this island and they have contracted me to help them do it
because of limited resources. To start in on a pesticide program and if they did so, it
would have to be Statewide and they could not just come to Kaua`i, that would be a
major initiative that would have to go through the legislature.
Ms. Nakamura: Do you think, for example, with invasive
species. The County gave moneys — we will follow-up later.
Chair Hooser: Thank you, Councilmember Nakamura,
Councilmember Yukimura.
Ms. Yukimura: Good afternoon gentlemen. I feel really
deprived to have to spend ten (10) minutes on all of you because I could spend ten
(10) minutes on each of you. But I want to just real fast, if I can get a quick answer
from Dr. Berg, would you be willing to work with a group of people who are
interested in developing impact studies on water pollution and would you be
available to help?
Dr. Berg: Yes.
Ms. Yukimura: If you were to develop a study, I would like
you to cost it out and develop a scope, if you would to present.
Dr. Berg: Yes.
Ms. Yukimura: Thank you. Now, my question for
Dr. McHughen, you are an expert in biotechnology?
Dr. McHughen: I am a spec list in biotechnology and
molecular genetics. My background training is in moPcular genetics, so DNA. My
work more recently in the last ten (10) years in biosafety. So, I specialize in the
safety in GMOs.
Ms. Yukimura: You are a Professor at?
Dr. McHughen: University of California — Riverside.
Ms. Yukimura: Do you get funding from the biotech
companies for your work?
Dr. McHughen: I get funding from the taxpayers of
California. I do not accept research funding from private industry. I do get occasion
consulting contracts which the University allows me a certain number of hours a
year. But, no, I do not conduct my research with private funds.
EDR COMMITTEE 79 AUGUST 5, 2013
Ms. Yukimura: I am really interested in this technology and
at the public hearing, there was some allusions to insulin being related to
biotechnology, can you explain that?
Dr. McHughen: The process of genetic engineering allows
scientists to take genes from any organisms and then put it into any other
organism, any other species. The first commercial product of genetic engineering
happens to be insulin. It is actually the gene that was copied from the human gene
for insulin. All mammals produce insulin. We all have a gene that codes for, it is s
recipe to make the protein called insulin. Historically, we have gotten insulin from
farm animals, pigs and cows, and that was okay. But since the 1980s almost all
insulin used by diabetics is genetically engineered with bacteria into which the
human gene has been inserted. The bacteria has the human gene now, it happily
read that human gene for insulin and it turns out, it makes the protein insulin and
the insulin is then extracted and sold to diabetics.
Ms. Yukimura: It is much more acceptable to the human
body in that form than from pigs and other animals?
Dr. McHughen: Well, yes because it is identical to human
insulin.
Ms. Yukimura: Right.
Dr. McHughen: We do not have to adjust to pig insulin, for
example.
Ms. Yukimura: I recently heard — no, it have been a while,
maybe a year ago, about Stanford University genetically engineering a bacteria that
would help prevent cervical cancer or something like that?
Dr. McHughen: There are a lot of vaccines. In fact, probably
one of the busiest fields in medicine now is the development of pharmaceuticals and
medical treatments using genetic engineering. It is not just insulin. Insulin was
the first one, but dornase alpha, if you have cystic fibrosis. I have a sister-in-law
who is setting a record for being one of the oldest people on the planet with cystic
fibrosis because of this genetically engineered drug that came available just when
she was about to be expected to die. Fortunately, she is still alive. Many people are
still alive because of genetic engineering.
Ms. Yukimura; So, the technology is like a tool and like any
other tool, like nuclear research or whatever, it can be used for good purposes or for
harmful purposes, I would imagine.
Dr. McHughen: That is exactly what I argue in my various
books and columns, that genetic engineering is a tool. It can make insulin. It can
make crops that use less pesticide or grow with less water, but it could also be used
to introduce, inadvertently, allergens into a common food that does not ordinarily
have those. So, again, work particularly with the National Academy of Sciences has
been investigating the potential risks with genetic engineering in agriculture going
back to 1986. In the studies, they come out every second year or so looking at
different aspects, every single one of those studies to-date has said that the risks
associated with genetic engineering are no greater than the risks associated with
conventional breeding. In fact, the products may be safer.
EDR COMMITTEE 80 AUGUST 5, 2013
Ms. Yukimura: So, how do we have this process that tries to
prevent or protect against inadvertent or sometimes intentional bad use of
technology, especially with use of crops and plants?
Dr. McHughen: Right. Again, the regulatory agencies,
USDA, FDA and EPA all rely very heavily on scientific studies particularly those
from the National Academies. One of the reports that I was involved with early on
recommended that something we do need to be careful of is the inadvertent
introduction of allergens or intoxicant into a food that does not ordinarily have
those. FDA puts emphasis on looking for potential allergens or intoxicants in new
genetically modified foods. Similarly, for releases to the environment, USDA is
primarily concerned with weediness. So, the Academy has made recommendations,
look at outcrossing incidents and compare that with the traditional type of crops
and see if it is elevated. Dormancy issues, how long did the seed stay viable in the
soil? Are those values different from the traditional version of crop? It gives
scientific guidance and foundation to the regulatory agencies to ask those questions
and ascertain that the product is at least as safe. Nobody says that these things are
absolutely safe, that is impossible in science. But we want them to be at least as
safe as the crops that we are growing currently that are not genetically modified.
Ms. Yukimura: There is a lot of concern about cross
pollination into super weeds or other things and I learned recently that GMO
sunflowers on the mainland are not allowed to be experimented because there are
wild sunflowers on the mainland and therefore the potential of cross pollinating.
Dr. McHughen: That is correct.
Ms. Yukimura: What protections are there against that kind
of environmental contamination, if you will?
Dr. McHughen: It does happen. Cross pollination happens.
But it does not happen as the result of genetic engineering. It happens as a result
of the basic nature of the species you are working with. If you work with for
example, canola. Canola has a lot of pollen, it cross pollinates naturally. So, it does
not matter whether it is a genetically engineered canola or a conventional canola, it
will cross pollinate with other related species that happen to be growing around.
Now, we have noticed that this has actually happened with genetically engineered
canola. There are herbicides resistant canolas that have outcrossed with non-
genetically engineered canolas and related species. But we also noticed that it
happens with herbicide tolerant canola that are not genetically engineered. They
also outcross. The question we have as regulators, as scientists, is to say it is more
likely to occur with genetic engineering or is the likelihood the same as in
conventional practice and it turns out that the likelihood is the same as with
conventional practice. Farmers deal with these things. We have dealt with these
things ever since the dawn of pesticides really. Outcrossing happens, transfer of
herbicide tolerance genes. Not all herbicide tolerance genes are genetically
engineered, right? All plants have herbicide tolerance naturally in them and what
we found over the years is that genetically engineered plants behave the same as
type of species that it was derived from.
Ms. Yukimura: I do not know how many years this
regulatory process has been in effect.
Dr. McHughen: Eighty-eight (88).
Ms. Yukimura: Eighty-eight (88) years?
EDR COMMITTEE 81 AUGUST 5, 2013
Dr. McHughen: I am sorry, 1988 was when it started.
Ms. Yukimura: Since 1988, thank you. So, that is what,
twenty-five (25)?
Dr. McHughen: A quarter of a century.
Ms. Yukimura: How many problems like disasters have
occurred that is defaults or problems in the regulatory failures, I guess, is what I
am trying to say?
Dr. McHughen: There are no disasters that have occurred.
There are certainly some inefficiencies and the regulatory system is constantly
undergoing review to minimize the inefficiencies. But there was again, another
National Academy report that came out in 2010 called The Impact Of Genetic
Engineering On Agricultural Sustainability In The United States, so looking
specifically at how biotechnology affects sustainability and the conclusions of that
report were that genetically engineering actually enhances sustainability when it is
used properly, that is there is a reduction in the amount of pesticide use and there
is an increase in yield. These are general things, they do not happen on every farm
or in every location. But on average, there is an increase in yield, a reduction in
pesticide use, reduction in the amount of fuel burnt by the farmers driving around
their farms and so on. The downside is that these crops still have the same
problems that we had in the past, that if you have for example, a herbicide tolerant
crop, eventually the weeds will overcome the herbicide. Similarly with insect
tolerance so we have to manage those things properly.
Ms. Yukimura: I see. I am out of my time, but thank you
very much. You are very succinct for a scientist.
Dr. McHughen: Thank you.
Chair Hooser: I assume everyone is available for at least
telephone conversations with Councilmembers if they should in the future.
Councilmember Bynum.
Mr. Bynum: I am going to go back to Kyle on what I did
not get to, Kyle. So, thank you very much. This is your handout, right, that was
distributed at lunch time?
Mr. Smith: It is.
Mr. Bynum: I just want to go over this really briefly and I
am hoping Dr. Valenzuela is here. You and I have talked a dew times over the last
couple of days actually at Kaua`i.link because I was still staggered by some of this
numbers and I still am. I just want to confirm I got this right, the average use of
pesticides for production agriculture, eight (8) to ten (10) times, maybe less, maybe
more, but no more than twelve (12) during a growing cycle. I have had ten (10)
farmers tell me that so I do not think that there is any disqualifications about that.
But your data says one (1) field, the average field in Pioneer is being sprayed not
ten (10) times a year, but two hundred forty (240) times per year, is that correct? I
wanted to ask Thomas from pesticides, are there regulations about the frequency of
spraying? Are there regulations about the combination of chemicals? But I just
want to make sure that the data is correct, two hundred forty (240) days. Now, the
quantity, the industry said about a pound a year per growing cycle, right? If there
are (2) two cycles then about two (2) pounds. So, if we took that the highest
EDR COMMITTEE 82 AUGUST 5, 2013
producing States in the Country are like Kentucky and North Carolina that grow
tobacco and they use about two (2) pounds per acre per year, correct? So, if we take
what the industry tells us, we are applying as much pesticide as the most pesticide
applications of any State, of the top four (4) States, correct?
Mr. Smith: Let me try to clarify it just so that we are
clear.
Mr. Bynum: Please.
Mr. Smith: First the clarification is that if you take that
industry spreadsheet or the chart and you actually did two (2) seasons, our average
year would be among the top four (4) years for all of these mainland examples from
2003-2010. More importantly, our average year would be highest average of any of
the States that are in that chart anywhere. Now to answer your specific question
on the field, the Waimea Research Centerfield, it is a complex of fields and so they
are applying different subplots on those fields through the year. So, when you say
two hundred forty (240) days of the year, they may be spraying here, here, and here
on this part of the field today, and then tomorrow they are spraying there, there,
and there, a couple of other locations. But as far as if you actually add up and you
look at the research center, it is two hundred forty (240) days on average. Now,
there are some years where it has been higher than that substantially. There are
some years where it has been lower than that. So, that is the average over a
number of year.
Mr. Bynum: As I listen to this whole debate, I just here
everybody say, "We are regulated. We do these thing. We apply according to the
label" and that assumes production agriculture with five (5) to twelve (12)
applications a year. So, if I live next to a production agriculture field, weeks go by
where there are no pesticides being sprayed, correct? I mean, every farmer tells me
that, six (6), eight (8), ten (10) weeks, nothing, no exposure.
Mr. Smith: That is correct.
Mr. Bynum: But on Kaua`i, two hundred forty (240) days
on average there is pesticides being sprayed. That frequency blows my mind and I
am going to run out of time and I want to get Mr. Valenzuela up here. But then
when you got the actual data, this is what I am reading here, you showed this chart
with eight (8) pounds per year, not two (2) pounds. But the actual data that you
received, eight (8) pounds on average, correct?
Mr. Smith: That is right, for restricted use and the
general use pesticides would be very similar.
Mr. Bynum; As just a guy who lives on Kaua`i, production
fields getting sprayed eight (8) to ten (10) times, the highest State is at two (2)
pounds. On Kauai getting sprayed two hundred forty (240) times on average,
average eight (8) pounds or four (4) times as great as the highest application rate in
the Country.
Mr. Smith: That is right.
Mr. Bynum: Listen Kaua`i, are you not shocked by this? I
am. I am shocked. That is it.
EDR COMMITTEE 83 AUGUST 5, 2013
Chair Hooser: Please, if everybody could just be quiet. If
everyone could just please not respond and let the conversation continue.
Dr. Valenzuela, if one of you could maybe move the seat behind and let Mr.
Valenzuela come.
Mr. Bynum: While he is coming up, everyone on Kaua`i,
please read two (2) things: read Mr. Valenzuela's study from the University of
Hawai`i and read the American Academy of Pediatrics paper that Dr. Evslin has
presented here. Please, everyone on Kaua`i read those two (2) things.
Mr. Valenzuela, could you give us an overview of your work related to this and your
paper? We do not have much time and I just want to do questions and answers. I
just want to say share with us, please.
HECTOR VALENZUELA: Thank you for allowing me to talk. I have
been concerned about the crop biotechnology industry since they got established in
Hawai`i and the effects internationally. There is the claim the concerns are not
science based, that is just emotions and so on. I have prepared a few reports based
on the scientific literature to make a case that some of the concerns from the
community or from skeptic scientists are indeed document in the literature. So, I do
not know what reports you are talking about, but one of the reports I prepared was
on the use of pesticides by chemical industries in the State. I documented that it is
well established that these chemicals do not stay put, but they actually move
around. They move out with the dust, they move in the wind, and when scientists
conducting surveys primarily in other parts of the world, they indeed find these
pesticides to be found all over. As a follow-up, it is been already twenty (20) years
since we released GMOs and we are starting to get information about adverse
health effects for some of these pesticide applications. A report was published a
month or two ago from a referee publication on the epidemiological studies
conducted in Latin America from pesticides that are used by crop biotechnology
companies. So, epidemiological studies consist of researchers going into
communities to evaluate farmers, processes of applicators, their families, people in
the cities and towns, compared to similar populations, ethnic background,
socioeconomic background, and so on of groups that are not exposed to these
pesticides. There is statistically significant results that are starting to come up in
terms of a lot of health effects from exposure to pesticides. We are talking about
genetic damage, DNA damage, mutations, and so on. Also to skeletal operations,
birth defects, and still-borns. For example, there is a study from Columbia and they
call it an epidemic of children that are born with only one (1) eye and I forgot the
medical condition. So, these are based on a series of studies conducted over the past
ten (10) to fifteen (15) years in Latin America that are showing that evidence.
Separately, researchers in that region have also conducted similar surveys with
wildlife, with aquatic populations, and they have started to observe similar kinds of
symptoms from aquatic habitats, amphibian and reptiles like alligators, showing
those types of symptoms. Separately, we are starting to see more and more
laboratory studies conducted in Europe, Russia and so on and that research are
based on animal studies is also starting to come up with some of the same kind of
symptoms that are of certainty based on epidemiological and animal studies. So, it
is becoming more of a triangulation effect in terms of observations and separately,
surveys are coming up and literature reviews were just published this year
documenting the link of pesticide application, pesticide exposure by applicators,
higher residues of pesticides in the families of these applicators, and higher levels of
tumor cancers in the children of pesticide applicators, reviews in terms of increased
pesticide use and impact on wildlife, reviews in terms of increased pesticide use and
decreased biodiversity in aquatic habitats. So, more and more evidence is coming
from the scientific literature that is starting to document that everything has not
been "honky dory" and the statement that nobody has yet been harmed from biocrop
EDR COMMITTEE 84 AUGUST 5, 2013
technology may not be backed by the evidence. These points to the fact that
genetically modified crops and the use of pesticides is part of the same problem.
You cannot separate one or other because if you are growing GMO crops, you are by
default using pesticides. So, when you make a health assessment of the industry
you have to assess both the GMOs which themselves are pesticides and these are
pesticides. One of the modes that has not been discussed today is that these
pesticides often act in combination and sometimes when they act in combination,
they are a lot stronger than when you expose them individually. I believe Dr. Pang
would call this potentiation. So, this is basically what I have in my report and it is
available for people to download.
Mr. Bynum: Dr. Valenzuela, on the last issue that you
just pointed...
Chair Hooser: That was ten (10) minutes.
Mr. Bynum: Oh, that was ten (10)?
Chair Hooser: Yes.
Mr. Bynum: Wish I had more time.
Chair Hooser: Thank you. You can stay there, there will be
a few more questions. I am not sure from who, but Chair Furfaro, did you have
questions?
Mr. Furfaro: No, I will let others use the time.
Chair Hooser: Thank you. So, it is my turn. I would like to
ask Paul Towers from the Pesticide Action Network to come up. Maybe Kyle, you
could let him sit in your seat and Don Heacock, thank you for waiting. If you could
maybe — if you do not mind him taking your seat, that you be great. We will let
everybody get settled. Carl, I would like you to stay there, Carl. If Don could take
you sear sir. Yes, thank you. I am sorry, I cannot remember your name or I cannot
see that far. I am going to go ahead...wait just a second.
Ms. Yukimura: I just want to procedurally say I would like
to ask some questions of Dr. Valenzuela and Mr. Towers and so in our next
Committee Meeting I would like an arrangement that allows us to do that.
Chair Hooser: That would be fine. So, you can start my
time. Paul, Mr. Towers, you from the Pesticide Action Network and you flew over
here to give testimony so I would like to start with you. Other communities in the
United States have passed pesticide regulations, buffer zones, and disclosures. If
you could talk a little bit about the variety of legislation that has been passed and
in place by towns, cities, and localities.
PAUL TOWERS: I sent some of these examples around to the
Councilmembers.
Chair Hooser: Speak loudly, please.
Mr. Towers: I will try and speak louder. So, I sent some
of these examples around for Councilmembers...
Mr. Furfaro: Start by introducing yourself for the record.
EDR COMMITTEE 85 AUGUST 5, 2013
Mr. Towers: My name is Paul Towers. I am with the
Pesticide Action Network. We were founded thirty (30) years ago in Malaysia, but
part of an International network of scientists and communities that work to
advance safe solutions to hazardous pesticide use. I passed around this spreadsheet
that outlines many of the communities across the Country that have worked to
create buffer zones for example. I know that that has come up in the discussions
here with the Council. There are many communities both at the City level and
County level that have actually already created these types of buffer zones. Some of
the examples I showed are from my home State of Arizona, for example where the
State itself has imposed buffer zones of a quarter mile around schools, for example.
It is about one thousand three hundred twenty (1,320) feet. Many other
communities in various Counties of California have implemented their own buffer
zones. In some cases it is a quarter mile, sometimes it is five hundred (500) feet. I
sent you some of those example so that you can take a look. I think the important
thing to understand is that when the Federal government has failed to create these
buffer zones, many communities have stepped up in their stead recognizing that
pesticides are behaving in very drift-prone ways. They are landing in places that
they are not supposed to go. So, the testing that we have done, independent testing,
and I have shared some of the examples of testing that we have done across the
Country. We found these pesticides many times a few hundred feet from where
they were applied and many times in peoples' front lawns, their gardens, their
sandboxes, and where children live, learn, and play. So, I think that the important
thing to understand is that pesticides are in fact drifting. The same ones applied
this island, whether it is Lorsban, Chloropyrifos and many others on the list. We
are finding them in other communities across the Country and other communities
have stepped up, seeing that option and that responsibility to do it. Just recently
actually, a couple of weeks ago, we filed a lawsuit yet again against the
Environmental Protection Agency for its failure to create buffer zones like you are
discussing right now, mandated Nationally. So, we filed that lawsuit because of a
law that was passed in 1996, the Food Quality Protection Act, that was meant to
better protect children specifically, from pesticides wherever they might interact
with them. That law was meant to go into effect by 2006. The Agency has done
nothing since then to actually create these buffer zones or any other protections.
So, here we are many years later, another six (6), seven (7) years later and so we
have actually tried to compel the Federal Agency, the U.S. EPA to create these
buffer zones. I think that it is very clear that the Federal government is really
unable or unwilling to do anything about it and that has left responsibility to State
and local governments to step up.
Chair Hooser: Thank you. I am sure you heard Dr. Berg's
testimony in terms of the Atrazine and the number of chemicals that I am not going
to pronounce right now and both you and Don Heacock, a Biologist, you have more
experience with these chemicals that I do. So, maybe if you first and then
Mr. Heacock can talk about the impacts. What is your impression once you hear
that these chemicals are being found in our local waters?
Mr. Towers: I am not only concerned about what is found
in the water, but also the University of Hawai`i study that was mention, I think
earlier. Every time that the study looked to sample pesticides in the air it found
pesticides including again, that same chemical, chloropyrifos that I had mentioned
before. In the report that I passed around which compiles the independent
research, very similar to what the American Academy of Pediatrics did. We just did
it two (2) months before they did. But it actually compiles that meta-analysis and
looks very clearly at very small amounts, these pesticides specifically, chloropyrifos,
can have profound impacts on childrens' health and intelligence.
EDR COMMITTEE 86 AUGUST 5, 2013
Ms. Yukimura: Is this yours?
Mr. Towers: That and actually the bigger report bounded
report. So, it actually showed longitudinal studies in the Monterey Bay area that...
Mr. Furfaro: Excuse me. Mr. Hooser, just a point of
clarification, which items is he referring to?
Mr. Towers: It is that one.
Chair Hooser: You are talking about this one?
Mr. Towers: Sorry, I do not have a copy in front of me.
Mr. Furfaro: Thank you.
Mr. Towers: So, just to sum up that that compilation of
independent research, not our own, but the research out there demonstrates that
there are profound impacts on very small amounts of chloropyrifos and similarly
from Atrazine. I think the important not there is that actually it runs counter to
the current logic in a lot of science, that is that larger doses, larger exposures you
will have even more profound impacts. Atrazine behaves in very interesting and
unusual ways. Actually at low-dose exposures you could have even more profound
impacts than at those higher doses. So, it is important to take a look at that way. I
think it is just important if you take a look at that research.
Chair Hooser: Thank you very much. We only have a few
minutes. Mr. Heacock, you have been waiting all day, I appreciate that. But if you
could speak briefly about the aquatic impacts possibly.
DON HEACOCK: When I started reviewing about two (2)
months ago a lot of the published reviews literature on both the chronic and lethal
effects of these pesticides on aquatic organisms, I was actually pretty shocked since
thirty (30) years ago when I took fish toxicology at Humboldt State. Many of these
are now known, like Atrazine, to cause long-term effects on the hormonal system or
endocrine systems, where they keep fish from spawning, there are unable to — their
behavior changes. Many things like 24D, EPA lists them as highly toxic to both
humans and animals, especially aquatic animals. Things like herbicides in general,
since they are applied to the soil, if we get small rains or even moderate rain,
anything that caws runoff, you can have potentially topsoil that has pesticide
absorbed onto the soil particles wash into — from large areas of land perhaps
hundreds of acres, into one small drainage ditch or similar and discharge into one
point along our coastline. We, similar to I think a question that was asked of
Dr. Carl Berg, the State of Hawai`i has not developed a really good sampling
protocol. When we had the urchins die off of Kaumakani last year we had Dr. Teri
Work who is a top pathologist look at them. But now we have adjusted that protocol
because he could not find a disease organism that he will now take tissue sample
and send them to the Federal toxicology lab to look for tissue analysis.
Chair Hooser: I had a specific question.
Mr. Heacock: Sure, please.
Chair Hooser: Have you seen the evidence of sea life, just
talking about sea urchins or any degradation of our near shore waters that you
might attribute to pesticides?
EDR COMMITTEE 87 AUGUST 5, 2013
Mr. Heacock: Well, I will answer that in two (2) parts. I
personally have not seen any recently, although there are many communities on the
West Side up to Hanapepe that are talking about whole groups of animals
disappearing from their reef, especially urchins. Urchins as some of you may know
are very susceptible because they absorb chemicals through the test, their shell.
The other thing is back in 1990 or 1991 we completed a watershed assessment in
Nawiliwili Stream and we applied what is called the NAWQ, the National Aquatic
Water Quality. They tested for one hundred eighty-seven (187) pesticides, the
FEDs did. The only thing that they found was dialdrin, an old tramaticide that was
used to build houses. It has been banned for twenty-five (25) years, but it is in the
fish tissues of Nawiliwili Stream. It cost fifty thousand dollars ($50,000) to do that
test. We do not know that that chemical is in Nawiliwili Bay, for example because
we have not been able to look.
Chair Hooser: Thank you very much for that. I am
probably about out of time. But until the buzzer, I want to ask Dr. Valenzuela. In
terms of looking at impacts of the industry, industry practices, growing GMO, it is
not really whether the food is good or bad to eat. But what impacts the industry
might have on our island and community? There is pollen drift and pesticide use.
Do you have any comments before the buzzer goes off as to what impacts that the
County might be concerned with directly? Is pollen drift an issue to organic
farmers? The bell just went off.
Dr. Valenzuela: (Inaudible) The fact is that we are dealing
with toxins. The GMO products themselves have toxins and we are dealing with
the combination of pesticides that have been applied and the pollen or the plant
drift. In terms of side effects, it is just unintended consequences
Chair Hooser: Thank you very much. I think that was the
end of the round, if you would. So, the plan was to go to public testimony until
5:00 p.m. or we can go an hour and then recess until Tuesday, the August 13, 2013,
and resume. That was the discussion that I had with a few people. So,
Councilmember Yukimura.
Ms. Yukimura: I have a question I feel is really important to
ask in the public of Mr. Towers because he is not going to be here again. May I?
Chair Hooser: Yes. You were the member that had to leave
early and that is why I was trying to accelerate the discussion. But, yes, you are
more than welcome.
Mr. Towers: I am also happy to speak by phone or
whenever available.
Ms. Yukimura: I know but this...
Chair Hooser: Go ahead.
Ms. Yukimura: I think it is important for everyone to hear.
Chair Hooser: Go ahead.
Ms. Yukimura How easy is it to determine drift and what
kind of cost is it to test for an incident?
EDR COMMITTEE 88 AUGUST 5, 2013
Mr. Towers: Well, it depends on the way and what you
want to sample for with drift, what sort is the proximity and location, whether you
are looking just to test for a positive or negative or look for an actual amount of
exposure? So, those are different types of active or passive sampling. So, depending
those types of factors and actually both those types were employed with the
University of Hawai`i (UH) study commissioned here by the County, but focused
more on the passive sampling so whether or not pesticides were found in the air or
not? So, because of those different factors it can be more or less expensive. If you
want multiple drift sites and are actively looking for exposure, it is pretty expensive
because you are looking to run regular samples all the time. Then a drift incident is
different because you are look after the fact for evidence of drift. What you are
usually looking for is drift onto a plant or something else that you could run a test
for. What you are not testing is what might have been the exposure through the air
to a person or a child or whatever it might be. So, you are intending to look for
non-target drift onto a plant of some sort, that is the thing that you could actually
analyze. A person is actually much more difficult in that case.
Ms. Yukimura: Thank you.
Chair Hooser: Would any members like to ask Mr. Towers a
question following Councilmember Yukimura's lead?
Mr. Rapozo: I just had one.
Chair Hooser: Go ahead.
Mr. Rapozo: It is about the Atrazine, the three (3) parts
per billion?
Mr. Towers: Yes.
Mr. Rapozo: What does that mean?
Mr. Towers: What does the number mean?
Mr. Rapozo: Yes, is that significant? Is it insignificant?
Mr. Towers: Yes. Well, so the numbers, the MCL that the
U.S. EPA, that is the threshold that they have set for what they determined to take
action on. They are currently reevaluating Atrazine as we speak. They may come
up with some different numbers in the relative new future, although knowing EPA
that could be years from now. That is currently what is in the process. What the
research says is different than what EPA's threshold is. So, epidemiological studies
they have .3 parts per billion which is some of the levels we have seen around the
islands that is linked to hormone disruption in women, for example. At .1 part per
billion w be have seen increased risk of other hormonal changes and then more
recently, the Scientific Advisory Panel convened by the EPA which is the
independent scientists, they bring to review their science said that exposure to
Atrazine even at very, very low levels is increasing the risk of cancer. So, that is
being sorted through as we speak. But what the independent research says and
what the EPA threshold is, and is being evaluated at, do not actually line up. So, I
think that that is why there are some concerns.
Mr. Rapozo; That test was three (3) part per billion or
point three (0.3) and you are saying point three (0.3)?
EDR COMMITTEE 89 AUGUST 5, 2013
Mr. Towers: Yes, can be of concern.
Mr. Rapozo: So, three (3) parts were billion is?
Mr. Towers: More, yes. So, three (3) parts per billion is
the EPA threshold and point three (0.3) is what some studies say. There are
multiple studies that have looked at it, but many of them are saying much lower
levels than what the EPA currently set are linked to many of these adverse health
effects.
Mr. Valenzuela: Point one (0.1) changed sex of frogs from
males to females, point one (0.1) parts per billion.
Mr. Towers: Yes, he is correct.
Mr. Rapozo: Yes, I know. But I do not know anybody that
changed that sex last over the last thirty (30) to forty (40) years.
Mr. Hooser: I should thank you actually.
Mr. Rapozo: That was indirect contact and that is I think,
the concern that I have with the discussion because that is what we hear from the
public and people run with that. Like, if you get enough Atrazine you will change
sex. I just want to keep the discussion factual and we know it may have changed
the sex of a frog at some heavy dosage or whatever it was, but I know a lot of people
who worked in the plantation fields for many, many years and none of them
changed sex. I want to make sure that we keep the discussion in a tone that is just
really fair and equitable for both sides.
Mr. Towers: I would agree with that, Councilmember. I
would say that the research report that I handed you listed some of the summaries
of information and at the back of it lists all the relevant studies. If you wanted to
dig into that, it has a summary and link to every study that might be relevant.
Mr. Rapozo: I appreciate that.
Mr. Towers: Certainly.
Mr. Rapozo: Thank you.
Chair Hooser: Thank you, Councilmember Nakamura and
then followed by Councilmember Kagawa.
Ms. Nakamura: For Dr. Berg and then Mr. Towers, so when
you did the sampling of some of the streams and you found the Atrazine, what was
the level of the Atrazine that was found?
Dr. Berg: The sampling that I did used a test strip at
plus or minus at three (3) parts per billion.
Ms. Nakamura: I see.
Dr. Berg: The testing that the Department of Health
did gave results from point one (0.1) to point four (0.4) parts per billion. So, ten (10)
times less, much more sensitive.
EDR COMMITTEE 90 AUGUST 5, 2013
Ms. Nakamura: So, yours was three (3) parts per billion,
which is the EPA maximum?
Dr. Berg: Yes, which is the EPA, yes.
Ms. Nakamura: The question on buffer zones on pesticides, I
wanted to ask for different municipalities who have required buffer zones, is it
usually part of a zoning procedure or is it part of a nuisance concern?
Mr. Towers: It depends on the City and County.
California has a slightly different rubric it operates within and so Counties there
are left to a slightly different process about how they pursue it and there is a lot
more authority concentrated with the County Agricultural Commissioner. That
person is a staff member to both the State but is elected or hired by the supervisors
in each County in California. As has been talked about throughout the day, each
County and municipality is very different across the County. What is there though
is it is left to that County Agriculture Commissioner to work with the public to
develop the permit conditions that they think are relevant to their local community
and so they work to set those through a series of public hearings and that is what
has happened throughout many California Counties.
Ms. Nakamura: Do you see those buffer zones as being a set
limit depending on whatever pesticide is used? Can it be pesticide-specific?
Mr. Towers: It can be pesticide-specific. There have been
those case and there are broader ones as well. So, it is depending on the County
and what the local conditions that make sense. There has been a lot of talk about
fumigants here today about those being many of the buffer zones, that is true.
There are also many other drift prone phenoxy herbicides or chloropyrifos for
example, things like that also have buffer zones.
Ms. Nakamura: Thank you very much. I really appreciate
your feedback.
Chair Hooser: Councilmember Kagawa.
Mr. Kagawa: I will try to be brief. Paul you spoke about
Arizona being a place where they successfully implemented buffer zones. What
kind of crops were in that area that they proposed those big buffer zones?
Mr. Towers: Arizona grows a variety of crops. I do not
know all of the make-up of them offhand, but it is been a variety of cotton and citrus
historically and there is some corn like there is on the island. I do not think it
makes up a huge percentage of it.
Mr. Kagawa: I guess my relevance of what I am trying to
draw is maybe Arizona — because I have been there a few times. It is very dry, it is
like a desert in a lot of areas. But maybe the land I think is sandy soil and maybe it
is not as desirable so maybe the companies felt that it was not worth fighting for
their more desirable lands elsewhere. Is that possible?
Mr. Towers: It is possible, anything is possible.
Mr. Kagawa: Everybody talks about how Kaua`i is such in
the big farming industry. It is so desirable. We have that beautiful red dirt and we
have a lot of waterways.
EDR COMMITTEE 91 AUGUST 5, 2013
Mr. Towers: Certainly. Anything is possible. I would say
that there are buffer zones throughout many California Counties that grows more
specialized crops than flair in the Country of saleable America. So, I think there is
much in California as well and that has been demonstrated that buffer zones are
there and they are large and they work.
Mr. Kagawa: I want to thank you for all of your answers.
Hector, just a quick question for you. In Latin America, the study that you did, do
they have a lot of regulations there, like EPA or Department of Health, that type of
regulations for big agriculture companies?
Mr. Valenzuela: Yes, they do have regulations. These are
commercial plantations where they grow GMO crops like soybeans and so on.
Mr. Kagawa: Are the laws stricter or less strict than the
United States?
Mr. Valenzuela: I think they are more lenient than the
United States, but it shows that crop production recommendations that they are
following, based on the University and so on is leading to exposure of world
populations and these are symptoms that they are starting to observe. I do not
know that the levels are similar to the ones that you would see in California or
Iowa. But those are just some of the symptoms that they have observed and they do
have some chemicals that we do not use in the United States.
Mr. Kagawa: Thank you.
Chair Hooser: Yes, Councilmember Yukimura.
Ms. Yukimura: Mr. Towers you said that...
Mr. Towers: Yes.
Ms. Yukimura: I am sorry.
Mr. Towers: Go ahead.
Ms. Yukimura: You said that the buffer work, how do you
know they work?
Mr. Towers: Yes, that is a good question. Sorry, I meant
to say that there has been no demonstration that they have led to any sort of
agricultural harm. There has not been any sort of independent study that said this
is the buffer zone here that does or does not work. There has been some
independent separate analyses, but there has been no analysis specifically of the
buffer zones at any of these Counties that I am aware of. So, when I said work at
the end, I meant to say there has been no demonstration of any harm to any of the
industries nearby.
Ms. Yukimura: But has there been demonstrations of harms
where there are no buffers?
Mr. Towers: Where there are no buffers? Well, there are
studies that have shown where there are pesticides being found at certain distances
from agricultural operations. So, I guess by that extension if there was a buffer in
place, then yes, those studies have been demonstrated.
EDR COMMITTEE 92 AUGUST 5, 2013
Ms. Yukimura: Thank you.
Mr. Towers: Certainly. I would be happy to supply more
information there.
Ms. Yukimura: Thank you.
Chair Hooser: Before I ask a question, anybody else?
Thank you again, for being here Paul. A follow-up, since you have been involved in
and aware of other Counties doing buffer zones and pesticide regulation, do they
experience something similar in terms of the large agribusiness threatening
lawsuits and do those lawsuits come to fruition in recent history?
Mr. Towers: Yes. Historically, as Counties have
considered many of these steps, there are threats of litigation and costs to the
County or City or whatever it might be and as a result that has been a constant
discussion at many a meeting like this. I think despite those many Counties that
have moved forward with buffer zones or better disclosure or posted notification or
whether it is other sorts of steps that they might take to better inform the public
about what is being used, when, where, what time and what methods, and in those
cases, yes, there are these constant threats of litigation. In none of those cases have
we seen that actually play out, where a County has been actually sued for creating
a buffer zone, where a County has worked to create better notification. In none of
those cases has that actually played out. So, just to set you a little bit more at ease,
we have not seen that play out in other parts of the Country.
Chair Hooser: Thank you very much. Councilmember
Yukimura, do you want to follow-up to that?
Ms. Yukimura: Yes.
Chair Hooser: Go ahead.
Ms. Yukimura: Do you have any situations where there have
been moratoriums?
Mr. Towers: Well, they are mostly on GMOs, there have
been moratoriums. So, there are several Counties. For example in California, that
have moratoriums on GMO crops. So, as a separate part of the overall discussion.
On moratoriums or bans on pesticides, I cannot think of any Counties offhand that
have sheer bans on pesticide use or moratoriums. I cannot think of those offhand.
Ms. Yukimura: Thank you.
Chair Hooser: Councilmember Bynum, and then we will
kind of wrap up and go to the public testimony.
Mr. Bynum: Yes, this is really quick. I heard that Oregon
recently did an emergency ban of pesticides related to bee death? Are you aware of
that?
Mr. Towers: Yes, to bee kills. It is dinotefuran and some
of the other neonicontinoid pesticides that have been recently implicated in bee
deaths. These are systemic pesticides taken up through the vascular system of the
plant. They are expressed through the leaves of pollen and so bees interact with
them as they take this up. It makes them more susceptible to other issues and
EDR COMMITTEE 93 AUGUST 5, 2013
actually can kill them outright. So, yes, Oregon has taken steps as a State to sort of
say these are the way that things can or cannot be sold at local stores and we are
going to work with applicators to make sure that they cannot be used right now
because that was the core of that. But yes, those are steps that States have taken.
Mr. Bynum: So, States can move quickly? They
considered this an emergency, correct?
Mr. Towers: They did. In fact, I think it was just a few
weeks' time between when the incident occurred in the Target parking lot and when
over sixty thousand (60,000) bees were killed, and when they actually removed that
product for some period of time or suspended it.
Mr. Bynum: They were preempted by FIFRA or sued by
agricultural people?
Mr. Towers: No, they were not preempted or sued or
anything like that. That is one example in Oregon.
Mr. Bynum: Thank you.
Mr. Towers: Certainly.
Chair Hooser: My final question for Dr. Berg is a question
that I think needs to be asked. The Department of Health and your tests, the
Hanama'ulu and Nawiliwili specifically, were there obvious sources these
chemicals? Were there crops upstream right away?
Dr. Berg: The answer, yes. We looked at what was
upstream from these. In the case of Nawiliwili Stream you have the housing
district and then Kukui Grove Shopping Center you have the corn being grown
there. If you look in your mind's eye it all slopes down to Nawiliwili Stream where
they are doing the highway construction. In the case of Hanama'ulu, the major
crops at this time are right on Kapule Highway across from the airport and again,
that slopes right down to the bridge where Hanama'ulu Stream is. My sample in
that case was under the old cane haul bridge which is just down the field from those
crops. Again, from my testing, I cannot say where it came from. But I can say that
there were large-scale GMO crops, corn crops, in both of those areas just above the
area.
Chair Hooser: Thank you. Chair?
Mr. Furfaro: Thank you for the question. Dr. Berg,
having many family members who have worked sugar, I want you to know that
Atrazine has been used for decades in sugar and in pineapple. I think it would
probably be very important for us, as you just made an analysis about corn, it may
be very appropriate for us to make an analysis about sugar and its closing and
pineapple on a calendar frequency. Despite the gentleman from Arizona and all of
his tall talents and so forth, there might be other criteria because we are volcanic
and we do have water that percolates for decades through our coral systems. But
you seem to be unclear about Atrazine being used here and it was used in sugar and
it was used in pineapple for decades. I think I am going to, for my own, starting in
1894 with the closing of Princeville sugar right through to Kilauea sugar and the
rest, it might be nice for us to map out some data and I would love to share with you
when we have it. But your observation on corn, also...
EDR COMMITTEE 94 AUGUST 5, 2013
Dr. Berg: As I said, Chair, I do not know all about
pesticides and how long they survive in the environment especially our environment
here on Kaua`i. I do not.
Mr. Furfaro: Nor do I.
Dr. Berg: All I know is that I find it in the water, but
the source is unknown at this time.
Mr. Furfaro: All I am saying it would be nice to chart out
that data.
Dr. Berg: Let us do it.
Mr. Furfaro: Mr. Hooser, thank you very much. Before I
give up the floor, may I compliment you on today's session before we go to public
hearing? Thank you very much.
Chair Hooser: Thank you, Chair. I have a good teacher. So,
thank you very much for that. I appreciate all of the members' cooperation and
assistance in moving this forward. Thank you gentlemen. We are going to go into
the public testimony phase. Is there anyone here who has not signed up and
wanted to testify? That is one (1). The rest of you have signed up? We are going to
do our best to listen to as many, if not all of you, as possible depending on how we
go. If you could call the first speaker, please. If you all could please try to focus on
the Bill and try, if you could to make suggestions on how to improve it and try to
avoid repeating what somebody else said. I would really appreciate it. We did
spend twelve (12) hours on Wednesday and we are happy to listen more tonight. I
thank you very much. If you could introduce yourself for the record. If we can all
kind of be quiet as we exist the room so that we can proceed. Thank you.
JILL SUGA: Good afternoon. My name is Jill Suga and I
was born and raised on Kaua`i. I am opposed to Bill No. 2491. During my last
testimony, I spoke about how this Bill resulted in Kaua`i divided. The division has
been based, for me, on emotion, fear and instilled upon the community and for
what? Political gain? My main question to the County is what is next? Why is this
Bill written for entities that already exist in the State and Federal government and
at whose cost? What will the County be sacrificing to support this Bill? If we
cannot trust the State and Federal government, can the County do any better?
Again, at whose costs? Like, I said in my last testimony this is not the local way.
The local way would be to ask the questions, get hands on with the companies, and
get the facts of what we really do. You would see the people. Yes, we are large
corporations, but that does not make us any less community members or residents
for this matter. Besides the work that we do to end world hunger or use our
declining resources more efficiently, we actually do a lot more. We provided
opportunities for high school and college students providing internships, judge
numerous science fairs, volunteered at Career Days, Math and Science Nights,
donated food including fresh produce grown by employees, and even organized a
West Side Blood Bank. People who know me understand how much I love this
island. I would do anything to protect it and my family and friends who reside here.
Sorry. After graduating from college my career goal was to do better for the land. I
have done studies on reefs, to i restorations, forest restorations, and plant
conservation working on rare Hawaiian plants. I am not going to lie, I was hesitant
to work for a large corporation, but I did it the local way. I asked, I learned, and
now I can educate. Community members I ask, County members I ask that you do
things the local way. Ask questions, learn, and do what is right for the island and
EDR COMMITTEE 95 AUGUST 5, 2013
the people. Please do not make this a political decision. If this Bill passes, it leaves
me the fear of asking the County what next? Thank you.
Chair Hooser: Thank you. Next speaker please.
MARK RUIZ: Aloha. My name is Mark Ruiz. I was born
in Waimea and raised in Kalaheo. I am working at Syngenta for the past fifteen
(15) months now. I have never worked for a company like Syngenta where safety is
so highly regarded for the employees and the public. This is best job I have ever
had and I have learned so much about farming. Sometimes I tell myself, I wish I
had found this job a long time ago. If this Bill is passed, nine hundred (900) or more
employees will not have jobs and will not be able to provide for their families. Will
there be nine hundred (900) jobs available for us? Our `ohanas will hurt with us as
we struggle to find new jobs to support them. GMO, Genetically Modified
Organism, has been around for centuries. For example, I am Puerto
Rican/Portuguese and to me I have been genetically modified or when our ancestors
in 1903 had taken the branch from tangerine tree and tied it to the grapefruit tree
and it produced the tangelo fruit with is GMO. GMO has been around and will
continue to be around. For the pesticides that they spray in the fields, it is highly
regulated following proper dosages based on acres. But I bet three (3) out of five (5)
people at home, when mixing a pesticide to kill weeds will always mix a little bit
more to make it stronger and kill weeds faster. This could be you or your neighbor,
but in residential areas we are not regulated. So, it is probable more dangerous
living at home then the corn fields near the West Side. I think Bill No. 2491 is bad
business for Kaua`i. GMO to me means "Guaranteed More Ono." It will field the
starving world to come. I strongly oppose Bill No. 2491. Thank you.
Chair Hooser: Thank you very much for your testimony.
Next speaker, please.
WALLY PALM: Hi. My name is Wally Palm. I am from the
mainland. I work for Syngenta. But really, I am representing the employees here
of the seed companies on the island of Kaua`i and I thank you for the privilege of
addressing. Three (3) major things that I would like to talk about: regulation,
sustainability, and choice. So, agriculture is one of the most regulated industries
that there is out there. We have heard about a lot of regulations in agriculture and
how effective they really are in terms of maintaining a very safe growing
environment. Both GMO and pesticides go through a great deal of regulatory trials
and in some respects more than pharmaceuticals. We do not need any more
regulation on this particular industry. Sustainability is the next thing. We have
heard various definitions of sustainability. Today we heard a definition earlier this
morning, self-sustainability, and it is a wonderful concept. But I would respectfully
ask the Council and the people of Kaua`i to adopt a more global view of
sustainability. What the seed companies are doing on this island, on this very
beautiful island, is vital in the link for the sustainability of the globe. We are
helping to feed the entire globe through plant improvement. Plant improvement
better hybrids and varieties and yes, GMOs to protect the inherent yield potential
that plant breeders are putting into the hybrids and varieties. Not everyone and in
fact relatively few people in this world have the luxury to have the land, skill, and
climate to be self-sustaining. The plant research that my colleagues in these seed
companies are doing is vital to feeding a global population. Do not make a rash
decision that will damage that potential. Finally, choice. I think we all view choice
as kind of a human right. A right that we as citizens of this island, of this State, of
this Country, really have. Unfortunately, this Bill is designed to allow one group of
people of very vocal individuals to restrict the choices of many very hard working
Kauaiians. Companies have chosen to do business here. They have chosen to do
EDR COMMITTEE 96 AUGUST 5, 2013
business here because historically, it is been a very friendly place to do business,
beautiful weather, a climate conducive to agricultural production, and a talented
and very hard-working workforce. Hundreds of those talented people have chosen
jobs and careers working in seed companies to contribute to that global food
sustainability that I talked about before. If this Bill passes, those choices will be
limited. People who have chosen to make their careers in agriculture and the seed
business are likely to have those choices taken away from them because the future
of the seed business in Kaua`i will be in jeopardy despite what some people say.
They are going to have some other choices to make. How will they pay their bills?
How will they send their kids to school and how are they going to feed their
families? Thank you.
Chair Hooser: That was your three (3) minutes, but there is
a question from the Councilmember. Councilmember Bynum.
Mr. Bynum: Just one (1). Did Syngenta tell their
employees that if this Bill passed that they would lose their jobs?
Mr. Ruiz: No.
Mr. Bynum: Then why have we leader that so much? Did
you not just say that?
Mr. Ruiz: We will have to modify our operations if this
Bill passes like it is.
Mr. Bynum: I am sorry?
Mr. Ruiz: We will probably have to modify our
operations on the island if this Bill passes.
Mr. Bynum: If this Bill passes did you tell your employees
that they would lose their jobs?
Mr. Ruiz: We will try to provide employment for as
many employees as we possibly can.
Mr. Bynum: Do you think scaring people with fear of
their jobs is the way to proceed to dialogue on this issue and come to common
ground?
Chair Hooser: Okay, Councilmember. Why do not you
answer the question and then we will move on.
Mr. Ruiz: I am just trying to present the facts as I see
them and the likely outcomes if this Bill is passed.
Mr. Bynum: Thank you.
Chair Hooser: Next speaker.
DAN CONNERS: Aloha Council. My name is Dan Conners. I
am a licensed applicator in the State of Hawai`i. I have worked in the seed industry
for numerous years. I was also a licensed applicator in the State of California. I
came here today to give my testimony in opposite to this Bill. I feel it is poorly
written and it has divided our community. I think that after today's testimonies the
EDR COMMITTEE 97 AUGUST 5, 2013
Council would agree that it is time for some level heads to prevail and everybody
get together and find some solutions to these problems. One of the things that I
would like to address that I find it pretty hard to believe that two hundred forty
(240) sprays were applicated on one (1) field of corn. I think we all need to get
together, do some sharing and some technical work, and come together with a
solution to this problem. Thank you.
Chair Hooser: Thank you very much for your testimony.
Next speaker, please.
ALFRED B. BALAURO: Good afternoon Council. My name is Alfred
Balauro and I hear things like there are high rates of asthma and yet there is
nothing in my family. I know that there is a lot of natural things that cause
asthma. Like on this island we do have a lot of Albesia Trees. How come no studies
are done on that? Also, I hear things like it is not really agricultural production or
anything like that or there is no available land. All the land has been taken by the
seed companies. There is a lot of land but they have to come up with a good
business plan. There is a lot of land up there. The seed companies take a very
small portion of it and when you craft this Bill, you say oh, it is about pesticide
issues. But every time you folks are trying to block GMO research, that is all this
Bill boils down to. If you are really serious about the pesticide issues and all of
that, you would take out of GMO section and work on the pesticide issues. I think
we can work on that. Thank you.
Chair Hooser: Thank you very much. Next speaker please.
ROBIN ROBINSON: Good evening, Councilmembers. Thank you.
For the record my name is Robin Robinson and for the record I oppose Bill No. 2491.
For the record, I have an unblemished record of staunch heterosexuality and the
reason I say that is because for the past twenty-seven (27) years, I have been an
agronomist for the sugar as well as the corn company which has brought me in
direct contact with pesticides or crop protection products. These products that we
have been hearing over and over again, the label is the law and that is the truth.
The label is the law and on the labels you will find that there is a maximum amount
that can be applied to any crop in a year. I find it very hard to believe that these
numbers that have been thrown out that we are over applying is incorrect because
violating these laws carries some very stiff penalties, very stiff, even jail time from
what I understand. I have had a Restricted-Use Pesticide Applicator's license for
twenty-seven (27) years as well. It expires every five (5) years and every five (5)
years I take the test again, just to prove that I know what I am doing. All of our
programs are not strictly spray programs, that are integrated pest management
programs. In other words, after we plant a field we do scouting. We check the
fields over and over again for the amount of insects that are there, the type of
insects because if there are beneficials, we do not spray. We do not want to kill the
beneficials. I have actually had fields where I put the pre-emergent down and never
returned again with the spray machine until harvest. We never put and fungicides,
no insecticides. But then again, there are fields that we have had to spray again
because our seed is valuable. We have very small amounts and we need to return
them to the breeders. What we are learning is to manage our fields in such a way
that we can minimize the virus and the vectors, like leaf hopper will spread the
virus, leaf sucking type insect. So, the situation there is that we try to keep all of
this under control by diligent methods. The scouting program is something that we
use very carefully, very diligently, and we do not want to spray as much as possible.
Thank you very much. That is all that I have.
EDR COMMITTEE 98 AUGUST 5, 2013
Chair Hooser: Thank you for your testimony. Next
speaker, please.
COLLIN DANA: My name is Collin Dana, native of Lawa`i.
We heard a lot about how this issue Bill is dividing our island and I would take
issue with that. The Bill is not dividing our island, our island has been divided
around this issue for quite some time. There has been a growing movement of
concerned citizens looking for action. This Bill is the first sign of any action on this
item. Now, the life of the land is perpetuated in righteousness. A lot of these blue
shirts have the phrase "Ua Mau ke Ea o ka `Aina i ka Pono" on the back of them. I
take offense to that because literally, these companies in their course of business
are in the industry of killing the life of the land and not perpetuating it. In a
teaspoon of good soil you will find billions of different little creatures that you
cannot see without a microscope, but those are literally the life of the land. Anyone
who has been through school is familiar with the concept of a food web. Well, these
are the very basic of a food web which sustains all life on earth. If your policy in
growing food is to kill indiscriminately this food web, of course you will have pest
problems. The natural balance of predator and prey is not in place. So, you are
stuck in this endless cycle of applying pesticides which kill the pests maybe and
everything else and it is not sustainable. It is chasing after — I do not know. It
blows me away because it is a natural lifecycle that is in place in any part of this
world before agriculture hits it, is self-sustainable. What we need to do is embrace
these natural cycles and learn more about them instead of using our science to
usurp and impose our own view of what should be going on. This has got to be the
most inefficient way to grow food. The only reason it works is because we
continually pump chemicals into it. This is not a sane approach to sustainability. I
propose that Kaua`i could play a major role in the feeding of the world. How we do
that is not by exporting whatever we happen to grow. How we do that is by
exporting the knowledge of how to grow sustainably. We could become a mecca of
sustainability, a place where sustainability is not just spoken, it is lived. There is
no reason that Kaua`i cannot grow its timber, its food, and its medicine on-site with
no external inputs.
Chair Hooser: Thank you very much. Next speaker, please.
I would ask the people, the testifiers, to think about what you are saying and I
would encourage you not to question the motives of either side, blue shirts or the
red shirts. I think we should be over that by now, quite frankly. I believe that good
people, regardless of what kind of shirts you are wearing, good people can look at
the same issue and come to different conclusions. So, let us try to respect each
other's different conclusions, not question that we are bad people on either side, and
that we are all trying to do what is best for the community. I would just really
appreciate it. I hope you believe that is where I am coming from and the rest of the
Council. Thank you.
ELI PABLO: Thank you, maybe that is why I am wearing
my white shirt today. I am neutral. Good afternoon, Councilmembers. I would like
to thank you for giving me the opportunity to speak and to hear my testimony
regarding Bill No. 2491. My name is Eli Pablo and for the record I am against Bill
No. 2491. I am an employee of BEI on Kauai and our company sells fertilizers and
agriculture and industrial chemicals. We serve both large, small, conventional,
organic farmers, nurseries, landscapers, hotels, City and County, State, Federal,
golf courses and homeowners. It used to be that sugar companies were our largest
customer. When they exited the industry, coffee and seed corn companies basically
replaced the business that we lost. They are now our largest customer,
representing about sixty-nine percent (69%) of our total sales. These companies
follow strict protocol and I know because I used to work for the seed corn company
EDR COMMITTEE 99 AUGUST 5, 2013
for eight (8) months and I was in charge of weed control at that company. They
have certified applicators on site adhering to product label instructions. They do
know that the label is the law. Believe me, they do know. The product label is
governed by both Federal and State agencies, we all know that. Any violations will
result in some kind of citation or maybe a hefty fine. These companies cannot risk
their reputation by not adhering to the law. I do not question the right to know, but
I do question the buffer zone. With this buffer, it will leave very little acreage left to
farm for these companies. Less acreage to me means less production which leads to
lower revenues. This will probably and I am not sure that will force these
companies to shut down their operations or relocate elsewhere. This could be a local
or a corporate decision, I do not know. But we simply cannot let this happen.
Kaua`i people will be without jobs if this does happen and Kauai will be without
jobs creating a high percentage of the unemployed. This will not do good for the
County as well as its Officials. This will cause financial stress on families which are
some of the reasons for families to break up, abuse, and lead probably to poor
health.
Chair Hooser: That is your three (3) minutes, your closing
sentence and then I want to say Councilmember Kagawa has a question for you.
Mr. Pablo: Seed corn companies are great neighbors to
our communities. I urge you to defeat Bill No. 2491.
Chair Hooser: Thank you.
Mr. Kagawa: Thank you, Chair. I am going to call him
Coach because he was my Pop Warner Football coach and he was an excellent
coach. Coach, I know you were a Manager with Ola Kele, I believe.
Mr. Pablo: Not the Manager, just the Field
Superintendent. I would love to be the Manager.
Mr. Kagawa: Field Superintendent is for me a Manager.
But when the sugar industry, how many employees approximately were
immediately out of jobs? I mean just a rough figure? Was it six hundred (600), one
thousand (1,000), two thousand (2,000)?
Mr. Pablo: Well, let us put this way, they had about two
hundred (200) plus employees and I think might now they are only employees about
thirty (30) so the rest were without jobs. They were picked up by seed corn
companies, some of them moved off-island to find work.
Mr. Kagawa: Thank you.
Chair Hooser: Thank you very much for your testimony.
Mr. Pablo: Thank you.
Chair Hooser: Next testifier, please.
BYRON WONG: Good afternoon, my name is Bryon Wong,
born and raised on the West Side. I worked for Syngenta for twenty-two (22) year
and I was a licensed applicator for half (Y2) of those years. As far as pollen drift, I
have a hard time throwing pollen from four (4) lines away. As far as the spraying,
we go into the fields after we applied pesticides and we would do work in the fields.
EDR COMMITTEE 100 AUGUST 5, 2013
That is twenty-two (22) years of working inside the corn field. I am strongly
opposed to Bill No. 2491. Thank you for your time. Mahalo.
Chair Hooser: Thank you, next speaker. We appreciate you
getting to the main point and covering the main things. Thank you very much.
RICH HOEPPNER: Aloha, Councilmembers. My name is Rich
Hoeppner. After listening to many, many hours of testimony last Wednesday, the
situation with GMO spraying is far, far worse than I ever imagined. You all
listened to the Doctors talking about the spraying. You listened to the people that
have been affected by the spraying. I hope you have read the medical reports that
you were told about. I hope you have read the labels on the chemicals that are used
and by their own admission on the label they tell what problems they can cause. I
have heard testimony on both sides. There is a lot of things that we do not know,
but if Bill No. 2491 is passed as written, it will inhibit any further action on
stopping the problem with GMOs, which is the spraying for at least two (2) years.
It will inhibit any further action. The chemical companies will continue spraying
toxic chemicals until the EIS is done causing more pollution of our land, water, air
and ocean, and inflicting many more cancers, birth defects and suffering on our
people. The Council has an obligation to stop it. How, in good conscious, can you
not amend this Bill to stop the spraying while the EIS is completed? I have no
problem with GMo products. Let them grow their GMO products. We can choose
what we eat, but the citizens on West Side do not have a choice when it comes to
spray drift and the effect of those chemicals. Please amend this Bill to stop the
spraying of toxic chemicals while the EIS is being completed. The world is watching
what happens here. Will you stand up for the people or stand up for the chemical
companies? It is your choice. Thank you very much.
Chair Hooser: Thank you. Thank you for your testimony.
Next speaker please. Ken Taylor, they are calling you, yes.
KEN TAYLOR: Chair, members of Council, my name is Ken
Taylor. First a little background on myself, I was certified as a Pest Control
Advisor in 1971 in two (2) areas, one affecting landscape and agricultural products
and weed control. Also I had a Certified Pesticide Application license and
maintained those two (2) licenses for over twenty-five (25) years. I am here today in
support of Bill No. 2491 and I want to thank Gary and Tim for bringing this
forward. We have heard a lot and I just have a few questions to ask of you folks to
think about. First of all we were told that GMOs would be reducing the use of
pesticides and that was early on. I asked why has the use of pesticides in the
United States gone up over three hundred percent (300%) since the 1990's? The
only major change in agriculture during that period is GMOs. We do not know what
the cumulative effects of these heavy applications are. We do not know the
chemical effects of the different cocktails that are being made using a number of
insecticides together and/or the stacking of a number of insecticides in the GMO
plant itself. We know that the Federal government tests each of the products before
they come to market, but one thing we also know is that they do not look at
combining a number of pesticides and what are the effects? How much does things
change when you do that? I do not know. You do not know. The Federal
government does not know. I would be very surprised if the chemical companies out
on the West Side have any idea of what is happening with these kinds of things. So,
as you move forward in your deliberations, I think it is important to ask what are
the cumulative effects of these different activities that are going on? In closing, I
would just like to say that we do not have a lot of time left to learn the vital lesson
that everything is connected. We can either use our God given intelligence or sit
EDR COMMITTEE 101 AUGUST 5, 2013
back and wait for the natural systems that we depend on to collapse from our short
cited abuse. Please pass Bill No. 2491. Thank you.
Chair Hooser: Thank you.
ANNE PUNOHU: Aloha, my name is Anne Punohu. I was a
registered applicator in 1989 to 1991 through Dupont. I still have any certificate
somewhere lying around. I dealt with a chemical scarier than anything that you
folks are dealing with today which is chlorine gas. Everybody in Kilauea is lucky
that they are still alive since I was applying it there. I digress though. This issue is
trying to be divisive, but it is not. It is a very simple issue about °ohana. There is
no separation between any of us in favor of the Bill as myself and those who are
against the Bill. There is no separation in personality, conviction, or love for Kaua`i
or who is Kaua`i and who is not Kauaian. It is silly. Who is going to lose their jobs?
That is ridiculous. This Bill is not about losing jobs, this Bill is about the right to
know, the right to protect the general public which is your mandate as public
Officials, the tight for us to ask you to do so which is our right as citizens, and the
right to regulate an industry which has now existed for twenty (20) years on Kaua`i
and in my opinion, has used many of us as petri dishes. I would really like to see
some regulation happen. If you are a good company, you are not afraid of these
things. If you are us, we are not afraid to ask it. I think the collaboration is there
and cooperation can happen. I see no reason to preempt anyone from anything, case
law is there, Federal on down. The other issues that have been brought up and
which that I would like to bring up and it has been brought up by you, I think
Nadine. There is no separation between the GMO end and the spraying application
end. The chemicals and the genetic modification go together. They work hand in
hand. You cannot really separate them. However, we can see the effects more
clearly when you did spraying as I did. When we had to control around the
plantation I actually have to leave the area because of my severe asthma. I am now
experiencing severe asthma again after twenty (20) years. This is my second round
in two (2) months and nobody knows why I am having the incidents. So, in total,
this industry has not proven to the scientific community that it is not detrimental to
the health, safety, and welfare the people it is being done around. This is not an
area where there is no population and the people are feeling the effects, not only
here but across the world. Regulation is happening in many Countries, in many
States, and many Counties. This is not an unusual request that is being asked of
Monsanto and Pioneer. This is now starting to turn the tables in many different
directions. When you have something like this in twenty (20) years, things starts to
come out and results start to happen. You start to have research that occurs,
especially when you are talking about novel proteins which are new life forms,
which are now being also introduced with the chemical as far as the chemical
spraying. When you have Atrazine, I am a woman...
Chair Hooser: That is your three (3) minutes. If you can
cut to your final sentence, please.
Ms. Punohu: I am going really fast. When I was a woman
I was pregnant on the plantation and I am fortunate enough to have not to be
around this chemical mix. I would be concerned for the women working in this
environment at this time. Mahalo, thank you all
Chair Hooser: Thank you very much. Next speaker.
BRAIN WATSON: Hello Council, I am Brian Watson. I am a
third generation farmer who is lucky enough to go to college and graduate school to
study molecular biology and become a Scientist at Syngenta. Today though, I am
EDR COMMITTEE 102 AUGUST 5, 2013
here as a citizen of Waimea, representing myself. I oppose Bill No. 2491 as written.
I will try to be brief. I have no story. I am not going to attack the other side, that
divide is already deep enough. It sounds like some form of this Bill will ultimately
move forward and I want to urge you to get to the table with the seed industry to
seek solutions, use information to seek these solution. I actually put together a
small sample of information for your reference last night. It contains things —
actually the EPA blue book on registering pesticides, some examples of pesticide
labels that are used in commercial farming, pollen drift, water quality, health
studies, and some miscellaneous studies regarding pesticides and health. I would
like to pass this out to JoAnn actually because she had so much interest in the
pollen drift and how it pertains to the GMO enclosure as part of the Bill. I do not
want my neighbors to fear what we do. I really want them to feel safe. I hope as
politicians that you can bridge the divide created in your community by this Bill by
seeking solutions together. Thank you.
Chair Hooser: Thank you very much for your testimony. If
you would be willing to meet, I would love to meet with you at a later time.
Mr. Watson: Absolutely.
Chair Hooser: Thank you. Mr. Tower, I think
Councilmember Yukimura would like your card. Next speaker, please
MELISSA WATERS: Hello, my name is Melissa Waters and I
oppose Bill No. 2491. I have lived and worked on the West Side of Kaua`i for the
past two (2) years. Before moving to the island I lived in Illinois for twenty-nine
(29) years. I grew up in a farming environment. I think the grounds for this Bill
are unfounded. First, there is no scientifically proven data that says GMOs are
dangerous or cause any harmful health effects. I have eaten genetically modified
food for most of my life. I just had a health evaluation and I have been found very
healthy. Second, there are no reasons for genetically modified (GM) crops to be
close grown in a closed environment. Corn pollenates corn, soybeans are a self-
pollinating crop. They are not going to pass the traits on to other plant or animals
like a disease. There are precautions already taken to ensure that non-GM crops of
the same type are not being pollinated by GM crops. Third, the five hundred (500)
foot buffer zone is unnecessary. My home in Illinois was surrounded by corn and
bean fields. I used to play in corn fields. I use the open areas between the rows as
my playhouse. Almost every home in rural areas and outskirts on towns in the
Mid-West are surrounded by fields. The towns themselves are surrounded by fields.
The seventy-six thousand (76,000) farmers in Illinois alone lived in the middle of
their middle of their fields. Do you think they would stay there if they thought that
it was unsafe for their families? Do you believe that these seventy-six thousand
(76,000) farmers are wrong and they do not know what they are planting or feeding
their families? I know that these people are doing the right thing. I know these
products are safe and I know that GMOs are not harmful. Lastly, there are already
State and Federal laws and agencies that the corn companies have to abide by and
report to. The information that these agencies collect are public record. People
have access to all of it. I do not think that the corn companies should be required to
send out this is what happened this week to the whole island newsletter. If
someone wants the information, they have access to it. The companies already have
safety rules and guidelines in place to protect their workers and communities near
the fields. This information is also available. Passing this Bill would not only
negatively affect the people working on the West Side, the County's budget, and the
corn companies, it will also slow down the technology that is helping to feed the
world. The bottom line is GMOs are safe, pesticides are already well-regulated and
the data about spraying is available to the public. Again, I oppose Bill No. 2491.
EDR COMMITTEE 103 AUGUST 5, 2013
Chair Hooser: Thank you very much, next speaker, please
MASCHA GUGGANIG: Good evening Councilmembers. Can you
hear me okay?
Chair Hooser: No.
Ms. Gugganig No, I need to come closer?
Chair Hooser: You need to speak louder, please.
Ms. Gugganig Thank you so much for allowing me to testify
today. My name is Mascha Gugganig. I am from Austria and I also speak as a
Ph.D. candidate in anthology today. I am in support of Bill No. 2491. There are
three (3) points I would like to point out today. First, there is a need to reflect on
the conversations we have had so far that are within long established western
paradigm that science is hard facts and most objective knowledge production. As
many anthropologists and scholars have pointed out in her book Designs of Nature,
Harvard science and technology professor Sheila Jasanoff states that in the United
States there is an obsession with pure science regarded as completely value and
politics free and that biotechnology transformed from a research enterprise into had
a global industry. This she concludes, reflects the Nation's urge to always be the
first in technological progress. Such an understanding the science is superior
independent source of truth is extremely problematic as it ignores other
perspectives that consider science as an intrinsic part of life and not a separate
entity in the realm of academia. The recent example of patented and genetically
engineered kalo at UH gives testimony to the scientists in difference to kanaka
maoli's connection to this plant as family relative. Yes it is also a story of success in
provoking dialogue about this technology, pesticide use and patenting life. The soft
facts, if one may say so, appear quite hard as people live democracy by educating
themselves about issues that are relevant to their lives. Professor Jasanoff refers to
the peoples' own expertise. When they show "competence and resources to test or
contest the State's experts claims and to produce alternative forms of knowledge
when their interests calls for active cognitive representation." Second, in 1997 the
Republic of Austria, where I am from, had a referendum that stated a ban on
imports, selling, and production of genetically engineered food, release of genetically
engineered organisms, and the ban on patenting of life. Why is this relevant to this
Bill? For one simple reason, different to the United States, the people of Austria
were asked an ethical question before anything created with this new technology
would have been released on the market. Third, feeding the world is a myth. As
more studies, for instance the study of Organic and Agricultural Food Security in
Africa by the United Nations have shown and they show that organic agriculture
can feed world. We are currently producing three (3) times as could nourish the one
billion (1,000,000,000) of starving people in the world. In other words, this is not an
issue about food shortage, but malfunctioning global food distribution. If you do not
believe this, I highly recommend to watch of the documentary Taste The Waste. It
is online. I would like you to reflect the industry's paradox in supporting
agriculture while developing seeds thousands of miles away from feeding the
starving people in Africa which again, makes people dependent on imports.
Chair Hooser: That is your three (3) minutes, your final
sentence.
Ms. Gugganig: My final sentence is that the people of Kaua`i
deserve to be asked a long overdue ethical question and the simple public disclosure
EDR COMMITTEE 104 AUGUST 5, 2013
of how this sacred land is treated. The `diva which people consider as their `ohana,
their kua, and that which feeds us. Mahalo.
Chair Hooser: Thank you very much. It always seems to be
long sentences at the end, but I appreciate the thought that goes into it. Next
speaker please
ERIKA SCHNEIDER: Aloha.
Chair Hooser: Aloha.
Ms. Schneider; I have prepared some packets of information
for all of you folks. I am here in support of Bill No. 2491. I would like to discussion
the moratorium on open field GMO testing and give you folks some precedent and a
little bit of information about Kaua`i's West Side and north west side, twenty-six
thousand (26,000) acres of designated and new proposed critical habitat under the
Endangered Species Act. On April 29, 2013, the U.S. Fish and Wildlife Division
announced it was placing a moratorium on all GMO crops in wildlife refuge lands in
ten (10) States, the entire southeast region of the United States. The same
moratorium was already in place in twelve (12) northeast States and U.S. Fish and
Wildlife is currently in litigation to ban GMO crops on Midwestern lands as well.
This moratorium on all GMO crops including unregulated ones, is now in
twenty-two (22) States. It is in effect until environmental assessments can be
completed on the potential harm GMO crops pose to sensitive ecological
environments in both human and wild habitats. There is particular concern about
the impact GMO crops and pesticides pose to migratory birds and wetlands because
they require substantially more applications of multiple pesticides. One of the
primary issues with GMO crops in critical habitat is the heavy uses of glyphosate
degrading the soil ecosystem and polluting the wetlands. The National
Environmental Protection Agencies impact assessment analysis will focus on
BT Corn and BT soybean varieties. Once those are completed those will be the only
two (2) GMO crops that will be allowed on these Federal lands. Because the EPA
will analyze several types and varieties of GMOs the document will be a
programmatic environmental assessment. Once they complete that, this will decide
if they move on to more detailed and specific Environmental Impact Studies.
Detailed information about this process of doing the Environmental Impact Studies
can be found at the CEQ website. Even prior to the moratorium, Regional
Managers had an extensive application that they had to fill out to justify the use of
GMO crops. I have attached a copy of that questionnaire with this report because I
think it brings up important questions as to how much we should be regulating
GMO crops on Kaua`i? For instance, we have forty-eight (48) protected species
under the Environmental Protection Act and new lands that are designated critical
habitat along the coast of the Waimea all the way up to Polihale are going to place
GMO fields adjacent to critical habitat for these endangered species. I have also
included a map of Kaua`i outlining the U.S. Fish and Wildlife Service designated
proposed new critical habitat and old critical habitat.
Chair Hooser: That was your three (3) minutes. If you
could close with your final sentence.
Ms. Schneider: Considering the step that U.S. Fish and
Wildlife has taken to ban genetically modified crops temporarily until
environmental assessments can be done, this is a very moderate and reasonable
thing to do on Kaua`i where we have more endangered species than any of those
other States. Mahalo.
EDR COMMITTEE 105 AUGUST 5, 2013
Chair Hooser: Thank you very much. Next speaker, please.
BRANDI TITUS: Aloha.
Chair Hooser: Aloha.
Ms. Titus: My name is Brandi Titus. I work in
commercial agriculture. I am the Nursery Manager at Kaupea Farm in Kilauea.
We farm organically, but I am not here to defend or promote organic farming. I am
here to discuss the issue of genetically modified pollen being tested in the open air
on this island. At the hearing last Wednesday I had a conversation with a
gentleman who said he worked for Pioneer. I expressed my concern that pollen
producing Genetically Modified Organisms not approved for human consumption
are being tested in the open air here in this island. He asked me if I was growing
corn and I said that I am trying to. He told me that corn pollen only travels four
hundred (400) feet. I felt that was a very convenient number considering the five
hundred (500) foot buffer zone this Bill is asking for. So, I decided to do research.
From the Department of Agronomy website at Purdue University, I found that they
recommend a six hundred sixty (660) foot buffer zone around the edges of non-GMO
corn fields to prevent cross pollenating with genetically modified corn. So, is it four
hundred (400) feet or six hundred sixty (6600 feet? On the same website of the
Department of Agronomy at Purdue University, I found the following description of
corn pollen. The yellow or white dust-like pollen that falls from a tassel represents
millions of individual nearly microscopic spherical yellowish or whitish translucence
pollen grains. Estimates of the total number of pollen grains produced per tassel
range from two (2) to twenty-five million (25,000,000). Each pollen grain contains
the male genetic material necessary for fertilizing the ovary of one potential kernel.
The outer membrane is very thin. Once dispersed into the atmosphere pollen grains
can remain viable for only a few minutes before they desiccate. Yet, with only a
fifteen (15) miles per hour wind, pollen grains with travel as far as half a mile
within those couple of minutes. So, is it four hundred (400) feet, is it six hundred
sixty (660) feet, half a mile, or a mile? We are talking about corn pollen,
experimental genetically modified corn pollen, being tested open air on this island.
That is unacceptable to me. I do not think it could be contained. It is not fair to us.
It is unacceptable. Please pass this Bill.
Chair Hooser: Thank you very much for your testimony.
Members, I want to ask your indulgence if I could. Dr. Evslin was here twice as one
of the resource people and had to leave. He has come back and he is here now
today. Would it be okay if we asked him a question or two and then return to the
public speakers? Dr. Evslin, could you come forward please? I apologize immensely
because you asked me what time to be here and I told you 12:00 p.m., and then you
came and then you had to leave and then you came back. I know how — anyway,
thank you for coming. I have questions. Thank you. I know you testified in your
three (3) minutes at the hearing on Wednesday and you had a long list of
pedestrians on the island who shared your concerns. I think it was based on the
American Academy of Pediatrics report. If you would take a moment and explain
your concerns, I would appreciate it.
DR. LEE EVSLIN: Thank you. Thank you for allowing me to come
late.
Chair Hooser: If you could speak loudly please also.
Dr. Evslin: The American Academy of Pediatrics is a
body that most of the board certified pediatricians in America belong to. They put
EDR COMMITTEE 106 AUGUST 5, 2013
out policy statements on everything that touches the lives of the children we take
care of, anything from immunizations to seatbelts, to any issue that is a pediatric
issue. They convene expert panels basically on each of these subjects to give us
their opinions. Of interest to me is November of 2012, they came out with first
policy statement that I had seen on pesticides. It was twenty-nine (29) pages
approximately, extremely difficult to wade through because it was mainly studies
and basically what they were saying is that the evidence is increasingly emerging
about chronic health implications from both accusative and chronic exposure. A
growing body of epidemiologic evidence demonstrates associations between parental
use of pesticides, particularly insecticides and then on and on to leukemia and so
on. What they are trying to tell us is that there is a growing body of evidence that
we really were not aware of before and that the research is pointing more and more.
They went disease line and disease line, tumors, neural behavior, endocrinology,
endocronogolic problems, that in all of these realms the evidence is growing that
pesticides is playing a role and the risk factors which is in my mind, I am speaking
to the blue shirts and the red shirts, the risk factors are exposure to children from
home use. So, they are telling us Pediatricians talk about using pesticides in the
house, outside yard use and using Round-Up and so forth on the grass and in the
particular high-risk category is the children of the people that spray pesticides and
that data is growing at a consistent rate essentially that occupational exposure,
maternal and paternal, appear to be in largest risk category. I think that is a very
important point. We have both sides of this issue, people who are involved in
spraying this and the risk is to their children. I do not think these reports do not
necessarily tell us how the risk is there. It is from their clothing, is it on their body?
They are just bringing together the evidence essentially, that the children of people
who spray pesticides are at greatest risk than those who do not spray pesticides,
both if their mothers or fathers are sprayers. So, I thought that was of interest and
then just one other piece of this. They are talking about what the Pediatricians
should do about this. This is all fairly new for us. We have mandates about what
we speak about when we see people for well-baby visits and I have never actually
seen a mandate about pesticides before and they have now placed it into our lap
basically, that we should be talking about spraying in the house. They say although
there are no Federal mandates for notification of pesticide use in communities,
many States, locales or schools have implemented requirements for posting warning
signs or developing registries to alert individuals of planned pesticide applications,
see Table 3. These are designed to allow the public to make decisions to avoid
exposures during application or soon after from residues. Other local polices that
have been developed include restricting spay zones that create buffers from schools
or other areas or restrict specific types of pesticide products in schools. They are not
talking about just the heavy pesticide use around school, they are actually talking
about Round-Up and other products in the school grounds. They are asking us to
use what they call Integrated Pest Management Systems in the schools. This is a
big step in the way Pediatricians have looked at this. I mean, an analogy is that I
am now anti-juice because juice makes people fat. I gave my kids — they grew up on
POG. We did not know these things and these pieces of evidence come to us one by
one and it is our responsibility to listen to the, use our instincts, and make a
difference. So, they are, just seven (7) months ago, saying Pediatricians of the world
and when I say Pediatricians of the world, although this is the American Academy
of Pediatrics, the policy that is set in America is the policy that goes out to the
world. So, this body carries a lot of weight and they are basically saying to the
Pediatricians of the world, pay attention to this. These are dangerous substance,
dangerous enough that they are even dangerous in your houses. Particularly be
concerned about agricultural uses and one of the pieces of this is an increasing
concern that the agricultural uses is even going it have more statistics that are
worrisome to us.
EDR COMMITTEE 107 AUGUST 5, 2013
Chair Hooser: If I could ask a question. First of all, thank
you for coming back and sharing that. We have heard a lot of very compelling
testimony from mothers and fathers who talk about we work in the fields every day,
I am pregnant I was in the fields, I have children and they are all okay, and when I
was little I used to run behind the DDT smoking joe and look at me, I am okay. You
are saying though, what are you saying? How do you relate that to the information
that the American Academy of Pediatrics is now saying?
Dr. Evslin: They have gone disease by disease here and
you have to take fairly large populations to show the difference of. They are taking
the studies that they have and they are showing that there are increase in
leukemia, increase in brain tumors, and increase in behavioral difficulties in
children that have been exposed either prenatally or post-natally. Behavioral
issues are hard to quantify. We have behavior issues in a lot of kids who are
sprayed and not sprayed. So, you have to put data together to actually know is it
more in the children with parents that were sprayers or spraying near your house.
It takes aggregates of data and one thing I would beg the Council to make sure
happens is that we start collecting Kaua`i data. We should know cancer by zip code.
We should know deformities, cleft palates and so on. They go to a certain clinic on
O`ahu. That data is all there and it would be relatively easy for us to put that
together zip code by zip code and we should have the data essentially. There is no
reason in a small place like this, that we cannot.
Chair Hooser: Thank you. Other questions?
Councilmember Nakamura followed by Councilmember Kagawa.
Ms. Nakamura: Thank you very much for this practical
guidance that is timely for this discussion. I wanted to follow-up on your ideas
about getting more data, good data, and zip code-related data I think is really good.
Are you familiar with the geothermal public health assessment done on the Big
Island?
Dr. Evslin: Not in any depth. I have seen the title.
Ms. Nakamura: So, what the Mayor did there was convened a
group of scientists and people very familiar with the issue on both sides of the very
controversial geothermal issue, where they also have many health concerns about
the hydrogen sulfide emissions, water quality impacts, and near-shore water
impacts. They convened a Committee to look at the data that was most important
to collect and then a methodology for how it should be collected and certain
hypotheses about what they thought the concerns were so that a third-party neutral
researcher could come in and then collect the data and present this information that
would be guidance to decision-makers. I am looking into this and thinking there
are some similarities for Kaua`i and I was wondering if this is something that you
think we might want to embark on?
Dr. Evslin: Absolutely, most of all of that data looking
back is there and then we ought to set up looking forward. For instance, we do not
really have asthma statistic.
Chair Hooser: I cannot here you.
Dr. Evslin: We do not necessarily have asthma
statistics. Asthma is one of the disease processes that they talk about is increasing
with pesticide usage. We have cleft palate statistics, we have cardiac defects, and
we have cancer statistics. We do not have the milder stuff. One, we should carve
EDR COMMITTEE 108 AUGUST 5, 2013
these out and find that date. It is there and then going forward I actually think we
should look at other things. We should look at behavioral diagnoses because these
are the categories that we are worried about and asthma diagnoses. For instance,
in all the years that I practiced in Lihu`e, I always thought Waimea had much less
asthma then Hanalei. I always figure that Hanalei is wet, Waimea is dry and it
makes sense. Now I am hearing that there is a lot of asthma in Waimea and I do
not know how to interpret that because you have to put the data together. It would
be interesting if that changed, that it may or may not have been. We are not going
to know unless we actually take a look at it.
Ms. Nakamura: If we were to put or form such a Committee
on Kaua`i, would you be interested or willing to serve on it?
Dr. Evslin: Yes, for sure.
Ms. Nakamura: That would be great, thank you.
Dr. Evslin: One other point about that is what the
American Academy of Pediatrics is saying is we do not know enough. We are
starting to see this data that is scaring us, we do not know what is really being
sprayed because the public does not have the right in most places to know what is
being sprayed. They are concerned because on the label is actually the active
ingredients. They do not even list the inactive ingredients. They are saying that it
is very possible that the inactive ingredients are playing a role in this. For
example, Round Up, if someone gets sprayed inadvertently with Round Up, they
very frequently develop respiratory distress and again, Round Up is thought to be
safe. They are thinking it actually may be more of the inactive ingredients in the
Round Up that solvents or petroleum based things that are actually causing the
problem. So, they are claiming that we do not have enough data to know exactly
even what we are talking about. They are suggesting that pediatricians to join
grass roots organizations too. You have to understand that the American Academy
of Pediatrics is a very conservative organization. They are not about radicalization
of anything. But they are saying that this an important issue with pediatricians,
listen to us and I think the pediatricians on Kaua`i are basically.
Chair Hooser: Thank you. Councilmember Kagawa.
Mr. Kagawa: Thank you. Doctor, have you brought up any
of these concerns with the State Department of Health?
Dr. Evslin: No.
Mr. Kagawa: Well, I think they have more professionals
than we do of course to evaluate that kind of information and they are partly
responsible for overseeing the pesticide use and complaints. I had one person that
reflected after the public hearing that we had and he was the only person that
criticized everybody. He criticized the anti-GMO people, he criticized the seed
companies, criticized us as household users of Draino and everything else, and he
also criticized the medical industry for testifying. He said that your industry has
major companies conducting chemical research at this very second and that your
industry supports these chemical companies, and the chemical industry is getting
sued more than probably the agricultural business. So, is that all fair? His
question is how can you folks question these chemical companies when your
industry is probably worse?
EDR COMMITTEE 109 AUGUST 5, 2013
Dr. Evslin: I buy that. I think it is our responsibility to
look at all of them and I do see a shift happening in the practitioners of the world
and people of the world saying who are saying this has gone too far. We are
pushing drugs way more than we need to push drugs. There are one hundred
thousand (100,000) deaths a year from drugs, medications prescribed medications
done in error, one hundred thousand (100,000). Do you know how many plane loads
of people that is? Our industry is looking at it hard. So, I do not think the answer
is do not look at it, the answer is really look it.
Mr. Kagawa: Thank you. Doctor, it is not to criticize you
because you come up very humble and honest bringing up those concerns. But we
had a lot of people that testified and on the basis. One of the glaring things that
you brought up in your testimony was that when you first did a study on asthma,
you said that the kids in Hanalei had had a higher rate of asthma.
Dr. Evslin: Yes, this was my perception as a
Pediatrician.
Mr. Kagawa: Oh, just a perception?
Dr. Evslin: Yes. It just seemed to me that we saw a lot
more asthma north of Kapa`a. I used to tell people to go live in Waimea because it
was drier and they would have less asthma was my feeling. So, I heard all of these
Pediatricians talking about of the asthma down there and I was thinking that it
would be interesting to know what these instance are. This is all anecdote. It does
not have much value to it.
Mr. Kagawa: Myself, too, I think if we could because most
kids with bad asthma need to get treated with steroids or whatever they use to help
them breathe. If we can get into that direction, I think we can come to see some
trends or not, but without that kind of anecdotal data then it is hard to justify.
Dr. Evslin: In medical history, anecdotes make you
know what to study. So, people get together and say, I noticed — like when they
discovered penicillin. They just has this mold on the plate and they saw that it was
killing bacteria, that is an anecdote and then they study. So, I do think that
anecdotes have value because they direct you to where to study. But that is all
their value. You do not make scientific decisions out of anecdotes basically.
Mr. Kagawa: Thank you, Doctor.
Chair Hooser: Thank you for taking the time and you are in
support the measure?
Dr. Evslin: Yes, I am.
Chair Hooser: Thank you very much, Dr. Evslin. It is
6:00 p.m. and we are going to continue with our public testimony and so the next
registered speaker. We are doing public testimony now. This is not a question and
answer period, sir. The audience is not invited to interject into the Council
proceedings. It is just the rules. It is not more than that. Thank you. Would the
next registered speaker please be called?
HOPE KALLAI: Aloha, Council. Thank you for staying late
again. I have submitted this testimony online so hopefully you have gotten it and I
will just hit a couple of points. I think Chairperson Furfaro spoke about House
EDR COMMITTEE 110 AUGUST 5, 2013
Resolution (H.R.) 100 and it was presented this year by Representative Cynthia
Thielen who said it is crucial that the State may every effort to protect our
residents, our aina, our oceans from the potential adverse effects from chronic
Atrazine exposure." Historically in Hawai`i waiting to investigate pesticide or
chemical exposure has resulted in needless tragedy and clean ups. We need more
information and we need it now. The name of the Resolution was requesting the
Director of Health to develop partnerships to address the data gap on air, surface
water, and near shore effects on Atrazine. I understand that the State Department
of Agriculture does not test for Atrazine because there is a shortage of inspectors.
Companies using Atrazine in Hawai`i are policing themselves in regard to EPA
compliance. If we are not testing consistently, then how can we know that these
companies are following EPA prescribed protocols? The fact that Atrazine is
banned in Europe due to ground water contamination risks should be a red flag for
all of us, said Representative Thielen. The Atrazine Task Force is expected to be
presented to the legislature by October 31, 2013, trick-or-treat. I think I also heard
that the EPA is reviewing the registration that was touched already before. But
Atrazine has been detected in the drinking water in Kaua`i in traces since the mid
1980's. The City of Greenville, Illinois brought a class-action suit against Syngenta
for Atrazine toxicity of public drinking waters along with one thousand nine
hundred (1,900) other municipalities. County of Kaua`i Department of Water
entered into the suit and received six thousand six hundred ninety-two dollars and
ninety-six cents ($6,692.96) for Atrazine in the County's drinking water supply as
part of the one hundred five million dollars ($105,000,000) class action settlement.
A trace settlement for trace amounts of Atrazine toxicity to a trace amount of folks
compared to the mainland folks. Trace, but existent and a red flag concern. The
Department of Water Board was barred from suing or joining any other suit
regarding the presence of Atrazine in drinking water supply or substance for the
next ten (10) years. Department of Water Board Secretary, Randal Nishimura,
expressed concerns about the potential problems in the future by settling now. You
folks have my full testimony and the main thing is that there are gaps. We do not
know everything and this is becoming more evident. The EPA has received twenty
(20) new medical reports on medical complications because of this chemical. The
the first time it showed up was 1984 and the first time it was used I think here was
right after statehood.
Chair Hooser: That is your three (3) minutes, your final
sentence.
Ms. Kallai: If there is a thirty (30) year transit time from
the surface to the groundwater table, when are we going to test for the past decade
of all of these tons of use? We do not know where it is going to show up.
Chair Hooser: Thank you very much for your testimony.
Next speaker, please.
TIM KALLAI: Aloha Council. Tim Kallai, for the record.
My testimony here today is going to be a personal one. I know the last time I came
I was acting as a board member reading a statement on behalf of the Kilauea
Neighborhood Association (KNA). But today, my concerns I guess are just dealing
with looking at industries in particular and how their operations unfold. Now, I do
know that maybe at the heart of their intention, they are trying to come off as being
philanthropic, feeding the world this and that. I find it kind of disturbing that we
are doing this for the world and yet here on Kaua`i we are importing most of our
food. That leads me to question, why do we not want to deal with our own folks
here at home first in dealing with these things? Above and beyond that too, history
has shown with the due lapse of time that sometimes it is ten (10) years, fifteen
EDR COMMITTEE 111 AUGUST 5, 2013
(15), or a couple of decades that the true facts behind some of the practices of what
we use or what they use and these terms do not have a tendency of showing up and
at that point, what do we do? How do you question things like this? The difficulty
that I have personally dealing with any of this issue and I am constantly grappling
with because my heart goes out to all of the folks on West Side. The last thing that
I want to do is displace anybody from earning an honest wage and providing for
their `ohana, that is the last thing that I would want to do. But yet on my other
side, what I am struggling with constantly is trying to interpret how do I come to
the concession that I am poisoning aina for the sake of providing for my family? I
say once again, if we are looking at history with these industries, what will happen
in ten (10), fifteen (15) years? How will this affect our children, our grandchildren,
their grandchildren? This is what worries me because unfortunately, we are just
living in the present, the now trying to struggle to get by, make a living like you
said for our families. But how are we going to provide for future generations if our
aina is dead and we cannot do anything? If you oceans are depleted and the fishing
is gone? Something which is at the heart of everybody in this culture to deal with,
that is our freezer box. If it is pau and it is gone, how do we bring that back? These
things worry me. I do applaud you once again for taking a look at all of this and
deciphering all of this information which has been insurmountable on both sides. I
can only thank you for taking the time and looking at this issue, regardless of how
the outcome. I think that you have literally given us an opportunity to raise our
awareness and consciousness. Mahalo nui.
Chair Hooser: Thank you very much. Next speaker, please.
We are pushing the caption break a little bit, so we want to be timely if we could.
ELAINE DUNBAR: Good evening, Elaine Dunbar. I would just
like to say that the scope and quality of the questioning of the experts today was
very impressive. I really liked what I heard from Council. Councilmembers Hooser
and Bynum on July 31, 2013 the introduction of the Bill, you requested a lot of
responses from Pioneer I guess it was and because you stated that there were
several months that you were trying to get information and it was not forthcoming.
I was not able to hear that today. If you were able to receive anything that you
stated that you wanted to be at the next hearing? Did they provide that
information?
Chair Hooser: We are not going to engage in a dialogue. I
will summarize that at the very end. I will address...
Ms. Dunbar: Alright, that is all I wanted to ask because I
could not hear downstairs today.
Chair Hooser: I will address your question at the end.
Ms. Dunbar: Alright, thank you.
Chair Hooser: Thank you. Next speaker, please
RUBY STAGGERS: Hi. My name is Ruby Staggers. Can you
hear me?
Chair Hooser: As loud as you can, please.
Ms. Staggers: My name is Ruby Staygers and I am
speaking for myself and my family. I do not have anything prepared because I
thought I will just speak from the heart. I could have just come here with a ton of
EDR COMMITTEE 112 AUGUST 5, 2013
statistics, but I was there on Wednesday and I heard the testimonies. I heard both
sides and I can understand the side from the farmers because I come from a family
of farmers. I grew up on Lanai where they used pesticides, heavy amounts of it,
and a high percentage of the people that I know have dying of cancer. It would be
one thing if these people, these biochemical corporations, existed in a vacuum. But
you know what, we share the same air. We have to breathe this stuff. We have to
give water to our kids. I mean, God be responsible. Be responsible and think if
there is some truth to what these doctors, nurses, and scientists are saying,
question that, do your own research and dig it up. Dig up your own research, find
out for yourself, cross reference what you know and question. These corporations
that give you a paycheck...
Chair Hooser: Move the microphone a little bit away.
Ms. Staggers: These corporations that give you a paycheck,
I understand the need to feed your family, but be a responsible citizen. I have
heard people go oh, look at me, I am strong. I have been exposed to these chemicals
for years. But my God, look at all the other evidence that suggests otherwise. Look
at people dying of cancer and just go wait, this Bill is reasonable. We are just
asking for these corporations to provide disclosure. It is disclosure we are talking
about. We are not trying to take away peoples' jobs. We have to live here, too. I
want to boycott America because it just pisses me off to have to live here and I kind
of want to because I feel like if this Bill does not pass I am going to have to protect
my kids and luckily they have dual citizenship so we can go to the United Kingdom.
I wish I could just gather everybody that I knew because we are powerful as one
and just boycott everybody that carries GMO products and pesticides, the ones that
you find in your back yards. I wish I could do that, but I cannot do this alone.
Thank you for doing this because it is a responsible thing. I do have a problem with
the buffer zone, I think they should be much larger. The bee are dying. The bees
are dying and once they die human population will die.
Chair Hooser: Thank you. That is your three (3) minutes, if
you could sum up. I really appreciate you being here, thank you. Next speaker
please. Next speaker please. I mean, if no one stands up, let us go to the next
speaker. Keep reading. It is the last speaker. Oh, I am sorry. Titus is first and
then Arthur. Come forward please. I do not mean to rush people, but we were
calling your names. So, speak.
TITUS BONTEA: My name is Titus Bontea. I would like to
take the opportunity to thank you, the Council, for your endless patience. It has
been a long. In my previous testimony I touched on a mathematical concept of
(inaudible) which simply states that when you deal with a modified complex system
the entities are unpredictable. I will not cover the same ground again, except to
emphasize this unpredictability makes the cost-benefit analysis impossible. You
cannot say it is good or bad because you cannot predict. However, what I would like
to speak about is the five hundred (500) foot buffer zones. The number really
belongs to Mr. Roger's neighborhood, the land of make believe because — and I am
speaking to you as a former Navy Officer who has trained in nuclear defense and
fall out. The mechanics are the same, the poisons are different, but the mechanics
are the same. The only thing that matters are the three (3) elements: the direction
of the wind, the strength of the wind, and the contamination amounts. No Navy
Officer or Commander would put his troops in danger by saying that they are
outside the five hundred (500) foot zone, but my soldiers are dying. This is,
probably ministry of Defense that has templates or used to use templates. It was a
transparency that you put over the map, orient it for the wind direction and it tells
you where you should or should not be and the same should apply. It is pretty
EDR COMMITTEE 113 AUGUST 5, 2013
simple to do. Anyway, in conclusion, ultimately this is really a philosophical
question. It looks to me that you are willing to give our right hand in order to
become ambidextrous. Mother Nature does not adapt to us. We have to adapt to
Mother Nature and our evolution took a long time, long time. I do not think you
will be able to adapt in one (1) generation. For myself, close to seventy (70), maybe
I should not personally care. But the next generation is not going to adapt in a
short time. So, that is about all I have. Thank you.
Chair Hooser: Thank you very much. Next speaker.
ARTHUR BRUN: Good evening, Council. For the record
Arthur Brun not representing anybody but myself and my community. I am
strongly opposed to Bill No. 2491. There is just too much stuff in it with the buffer
zone and all these other stuff, five hundred (500) foot buffer. I live right in Waimea.
I make Hawaiian salt on my back porch. I use that Hawaiian salt to make meat,
companies are spraying chemicals around there and I am not sick. I am still earing
that Hawaiian salt like everybody else, nothing wrong with me. My wife was
pregnant with three (3) of our kids while working at the corn company in the fields.
The three (3) kids came out real healthy and nothing is wrong with them. I worked
there for almost nine (9) years. The right to know, yes, I give you that. But just
this five hundred (500) foot buffer, GMOs, we need GMOs. We need to feed the
world. As far as jobs, I can lose my job, I can move to O`ahu and do my other
business and survive. It is not about a job. It is about what we are doing is right
for the people and for the community. We follow all of the laws that we need to
follow, everything is done by the label, by the people. We live here, born and raised
here. There is a lot of land on the East Side, do organic. I have nothing against
organic, I have nothing against organic. I just choose to eat GMOs. That is what I
feed my family. I have five (50 kids and we are healthy, one (1) son has diabetes
from when he was eight (8) years old. We needed GMOs to make his insulin and
that is what I touched on the last time. We should spend our money and our time
doing things that we can control that has facts behind it. Secondhand smoke causes
cancer, do a Bill. No smoking. Get rid of smoking on Kaua`i. I am all for that, that
has facts behind it. A lot of these facts is based on emotions, not facts. Organic
people died, organic lettuce from human feces. Berries at Costco, cat feces, there
was the spinach and I think there was one more, all organic. You did not hear of
anybody — facts now, I am talking facts, not I know this guy died of cancer because —
I am talking about facts, proven facts. Nobody died from GMOs. Nobody. Zero (0).
People have died from organics and that is facts, that is not my belief or whatever.
It is facts that are out there. Please, control something that we can like the
smoking, things that we can control that is proven to kill people.
Chair Hooser: Thank you very much. Your closing
sentence, if you would like.
Mr. Brun: That is.
Chair Hooser: Thank you very much.
Mr. Brun: Thank you.
Chair Hooser: Any other registered speakers?
ANGELA HUGHES: Good evening, distinguished
Councilmembers. Thank you for your time this confessed he was an undercover
corporate guy. He does not tell anybody on Kauai, but he gave me his opinion
where Kaua`i was chosen for the current operations going on with the companies
EDR COMMITTEE 114 AUGUST 5, 2013
here. He said in the third world there are similar places with rich soil and yea
round growing conditions where they could have workers for approximately a third
of the labor costs. Why would they choose to take on three (3) times the cost for
labor? Well, we have a lack of regulations here that is actually more auspicious for
these practices. For example, some of the things that they are doing, they would
not be allowed to do in Mexico. Also we give them large tax breaks. I thought that
was interesting. We are talking a lot about Kaua`i jobs. Well, we have
approximately two percent (2%) of the jobs are tied up in these interests and I do
not see that as something that is unsurmountable for us in the event that
something did happen to those jobs. I think with all the huge community support of
helping with the health and safety, we could do something for them by absorbing
them or creating other interests. I wanted to speak about the questions we, are
asking these companies. I feel like we are looking at thing backward at times. It is
not about the impact to current business that should be our number one focus. The
number one focus should be the health and safety. So, we do not look at what is the
basic to business and then form regulations based on that. We look at what is the
health and safety implications and then using the precautionary principle, look at
what we need to do for regulation and if we can do anything to help with business
by all means, after that has been addressed. So, as far as long-term job security,
what about the legacy that these companies leave behind them? If we look at places
that they worked before where the soil is actually infertile, dead, poisoned, and not
able to grow things any longer? What happens how many years down the road?
How are we going to have jobs for these agriculture workers if the soil has been
ruined? Are they just going to ship shop, move up shop somewhere else on this
island on another island? What do we do when we are left, when they decide to go
or if they just move somewhere else and do the same thing to the soil and water? I
think it is really important to look at big-picture, decades down the road and see
what is happening to the soil and what is happening to the water because the soil
and the water are a big part of what keeps us going. It regards to money and us
feeding ourselves and being connected to the environment. I want to give with the
last couple of seconds, I am not sure how long I have. But I want to use that to give
you a big mahalo and I have been really, really impressed with how the community
is stepping up and the infinite patience that I see with the Councilmembers here,
for all of you that are present.
Chair Hooser: Thank you very much. Next speaker.
CHRISTINE MATTOS: Hello. My name is Christine Mattos and I
was born and raised in Kaua`i, Kekaha Gardens. I live there all my life and I
oppose this Bill. I started working at Syngenta when I was a sophomore attending
Waimea High School. It started out as a part-time after school job. But it did not
take me long to realize how much I really enjoyed the work that I did and the people
who I worked with. Coming from a big family, we have eight (8) kids, we knew that
if we wanted to go to college, we had to pay for it ourselves. So, thankfully with the
help of Syngenta I was able to come back every summer and winter vacation and I
was able to pay for my college tuition and put myself through school. When I
graduated from UH Manoa with a degree in Elementary Education, I was not quite
ready to be a teacher and I was offered a position with Syngenta as a Research
Assistant (RA). I was skeptical to take the leap from working out in the fields to
being a Research Assistant. But again, it did not take me long to remember how
much I believed in the work that I did and the people that I worked with. As a RA I
work with regulated traits and according to this Bill, I would have to grow my
projects in greenhouses. We have neither the means nor the money to build these
greenhouses to support my projects. In addition to that the five hundred (500) foot
buffer proposed by the Bill would wipe out a vast majority of the land that we farm.
Syngenta would not be able to operate, hundreds would be out of a job, agriculture
EDR COMMITTEE 115 AUGUST 5, 2013
on the West Side of Kauai and be destroyed. Hearing these testimonies and seeing
it on the newspaper and social media, it is frustrating that so much misinformation
is circulating. The products that we use go through rigorous testing, years of
testing, before they are proven safe. We are regulated on multiple levels including
the State and Federal. You say you want some facts, here are some facts.
According to United Health Foundation, Hawai`i was declared the second healthiest
State in the Nation in 2012. It was ranked third in 2011 and fifth in 2010 and 2009.
The Center for Disease Control (CDC) in their 2012 study shows Hawai`i with the
fifth lowest cancer rate in the Country. Furthermore, the National Cancer Institute
states that the County of Kaua`i has lowest incidence of cancer in the State of
Hawai`i. In closing what we do is safe and regulated. We protect the safety and
health of ourselves, our employees, our community, and our island. My name is
Tina Mattos and I oppose this Bill. Thank you.
Chair Hooser: Thank you very much for your testimony.
Are there any other registered speakers? Has everyone had the opportunity to
speak? Would you come forward? Introduce yourself and we are kind of running
really close to the clock here. I do not mean to rush you. But he is going to have to
change the tape shortly.
DUSTIN BARCA: Aloha, `Ghana o Kaua`i. I swear every time
we have these meetings I learn something new that is somewhat disturbing to me.
But did I learn right today that we spray four (4) times more pesticides than
anywhere in our Nation?
Mr. Bynum: More than that.
Mr. Barca: I mean for an island this small where our
natural resources is kind of everything that we have, it is a serious, serious, serious
fact. That is terrorism on our island, I must say. Chemicals and pesticides are
nothing more than unhealthy to nature and this Bill is not about GMO really other
than the fact that we might learn what they are doing in secrecy. This Bill has to
do with health, five hundred (500) buffer zones is nothing. We have trade winds
every day. California, the buffer zone a quarter of a mile. If you ever go to
California, I go there quite often, and there is no wind in California, really. So, to
argue that that part of the Bill alone is crazy. Do you know what I mean? It is like
taking advantage of Hawaiian Homelands and the uneducation of the people, the
way I see it. This is not sustainability. Sustainability to me is feeding the people
where you live. Nothing here is created for food basis. Nothing feeds our people
that these people are doing. The future of this island is about feeding our people
and keeping our natural resources sustainable, that is sustainability, keeping our
natural resources sustainable for the next generation and the next generation. You
hear a lot of fear mongering, fear mongering and these guys fear mongering. Their
commercials are fear mongering, they call our house with fear mongering. Do you
these people to lose their jobs? They do not talk about poison. They do not talk
about keeping buffer zones away from communities and schools and the health.
They talk about jobs. Jobs come and go all around the world. The solutions, that is
the things that matter. I just think that this Bill is commonsense. I am one
hundred fifty percent (150%) for this Bill. I think the buffer zone should be more for
the people who live in those communities. Look at places like California with no
winds, look at the buffer zones, and look at the facts behind other places. I feel like
it is taking advantage of the uneducation of the island or something and this Bill is
nothing more than protecting the future of the island, the people, the land, and the
water. That is all we have. Thank you folks very much. Mahalo nui.
EDR COMMITTEE 116 AUGUST 5, 2013
The following registered speaker was called but not present when called to
testify:
1. Ipo Mokiao
Chair Hooser: Thank you very much. I believe that is the
final speaker. I believe everybody has had the opportunity to speak.
There being no further testimony, the meeting was called back to order, and
provided as follows:
Chair Hooser: I am going to suggest that we defer the
Committee until two (2) weeks from today, that is another Monday. There was a lot
of people here, representatives from the companies particularly, Farm Bureau,
Kaua`i Coffee, that were going to answer questions and we can do that on the
August 19, 2013 and then take further testimony. That would be my suggestion.
Yes Councilmember?
Mr. Kagawa: I have a suggestion that we defer until the
County Attorney's opinion and legal review is ready to be disclosed to the public. I
am just thinking why are we going to continue to just keep going in this direction if
the opinion may come out that tells our members that the County Attorney does not
feel like this Bill would be okay as is? There are other avenues to try and get the
buffer zones and get the right to know done by working together with the people
that currently have jurisdiction over it. I have spent time with some of our Kaua`i
legislators and I believe they have heard the public. They have heard the concerns
and I think they are willing to step up to the table along with some of our members.
I know Councilmember Nakamura had this idea of having a roundtable of experts,
for and against, to have these discussions as to how we can work together and come
up with something that at least for now we can live with and be satisfied with. Like
I said, a Bill as-is, I would really like to have that legal opinion and review disclosed
to the public. I think it is the right thing to do for us in order to move forward. I
have no idea from the County Attorney, who is right here, as is to what would be
the sufficient date. But perhaps we could get that date. That is my suggestion.
Chair Hooser: I would like to respond, if I could? I agree
ultimately we need a sound Attorney opinion. However, I think there is useful
information to be had as we move forward because the Bill is a work in progress. It
has several parts and maybe some parts are stronger and weaker than other parts.
I think we owe it to community to continue asking questions and to continue to
exploring and to continue to look for solutions. Since we are not sure when the
County Attorney, I would view waiting until that point as not supportive of passage
of the Bill ultimately and we are free to amend the Bill as we see the Attorney's
opinion and more testimony. I would like to see us continue asking questions,
continue learning, continue exploring the issue, and ultimately offer amendments to
the Bill that will make it legally sound and offer protections to the community
without negatively impacting the economy. I think that if that is our goal, I would
we suggest that we defer for two (2) weeks and then talk to the seed companies and
the others while the County Attorney continues working on this measure. That
would be my suggestion, other members?
Mr. Rapozo: We had a briefing in Executive Session and
we heard from Attorneys from both sides of the issue which was again, please pretty
interesting because out Attorneys are not them. At the end of the day, my reliance
will be not only on the County Attorney, but the Attorney General. I think the
Attorney General plays a key role as it relates to the preemption issue. I think we
EDR COMMITTEE 117 AUGUST 5, 2013
got assurance from the County Attorney that it would take about sixty (60) days to
get the opinion. I know somebody testified that the Bill was not the divider of the
community, but I disagree. I think it is, if not for this Bill, it would not be us
against them. If not for the Bill, what it has evolved to, it would not be the red
shirts versus the blue shirts. What I would like to see, I like the one gentleman
although he did testify on one side, and he wore a white shirt. But that is what I
would like to see, the white shirts coming together. I think Councilmember
Nakamura — or pink or whatever color. Councilmember Nakamura brought up the
geothermal public health assessment which was done on the Bid Island. This was
done because their Mayor felt that the County needed more information. I think
what we got out of today's hearing there is a lot that we do not know. I think that is
pretty clear. Even Dr. Evslin said there is a lot we do not know. But this study or
this assessment was done to determine what could be the effects of geothermal on
the Big Island. I am very interested in pursuing this angle and what was the most
disturbing thing today I think for probably most of us, if not all of us, was the State.
I do not blame the three (3) individuals that were here because it is not their
decision to not give them the resources that they need. I mean that is the Governor,
the legislature, all of our elected officials at the State level who profess that health
and safety are priorities, that is living proof today it is not true. That was the most
disturbing thing today and I am jotting down notes as we go along and on my iPad
trying to research some things. But this County time and time again has stepped
up to the plate to subsidize the State in issues that we felt were important whether
it is social programs and so forth. What will it take to get more inspectors here?
What would it take to properly enforce the regulations that exist? I heard
Mr. Furfaro say he is willing to help and I think that is something that we have to
do. This County is going to have to step up and put some money like we did for the
Air Quality Study and all of these other things to get more feet on the ground here
so that we can do proper inspections. Then the other phase of this is that we have
to get to our legislators and let them know the reporting of what is being sold is
really useless, it is what you used. But those are issue that we have to deal with
the State. This County, I think, can be the vehicle for that change. I have some
serious legal concern and I know a lot of you do not want to hear that. I will
accused of punting or whatever it is, but the reality is that we have to deal with the
aftermath of that actin that we take on this table. I have heard enough, believe me.
Our research are not only limited to what we talk about at this table, I actually do a
lot of work when we are not here whether it is talking to Attorneys or doing
research on my own. But there is some real legal issues that many of you may not
want to acknowledge. But there are. It is very easy when an Attorney comes up,
Earthjustice will come up and say says oh, no, that is no and then the seed company
Attorney says yes, yes because they are attorneys. So what, that just means that
they went to a lot of school and they have good memory. The reality is when you
look at cases and they can rattle off call all the cases they want, but when you read
the case and the have not it, not all it of it. But I plan to, we do not know. It is
different. It is apples and organs. We could be talking about apples and oranges.
So, there is a lot of work that we have to do. The question is when do we want to do
it? I think the legal issue has to be clarified. It has to be cleared up and I think it
needs to be done soon. I would ask the County Attorney's Office if they could
expedite to thirty (30) days. I know he said in sixty (60) days and thirty (30) days,
can we allocate the resources necessary to expedite this to thirty (30) days? I would
defer a deferral, Mr. Kagawa. I would definitely support a deferral for thirty (30)
days. I would have a hard time deferring this for sixty (60) days and I know it is a
lot of pressure and if cannot be done, it cannot be done. If they have to come back
and say that they are not ready, at least we have the opportunity to have the
discussion on the floor in a month. I think two (2) weeks is too soon. I could
definitely support a deferral for a month. Again, put the pressure on the County
Attorney's Office to get something done and in addition now, to the Attorney
EDR COMMITTEE 118 AUGUST 5, 2013
General. I can tell you all of you when I asked for an opinion from the Attorney
General on the Transient Vacation Rental (TVR) issue, it took a long time. I do not
know if we can put pressure on them and that is where you folks all come in. Call
your Governor's Office and E-mail the Governor's Office like you do to us and let
them know, that it is a serious issue. In a month, I would hope that the community
can come together at some point and start healing and trying to work to some kind
of resolution, not resolution in the issue, but resolution as far as helping us get a
Bill that will work and not end up in court. Again, I do not want to see Kaua`i be
the vehicle for the lawsuit to determine case law at our taxpayers' expense. I do not
think that is the right way to go. Thank you, Mr. Chair.
Ms. Nakamura: Thank you. I guess if it is between two (2)
weeks and two (2) months, I think I would go ahead with the one (1) month deferral.
There are certain things that I still want to explore more. The pesticide
management of seed corn companies, best management practices with respect to
grading and grubbing. I would like to get the Department of Public Works feedback
on Bill implementation and cost. I would also like to kind of take a look at — to
study what happens post GMO to our soils and our waters. But I think what
frames future discussion is what we hear back from the County Attorneys and the
State Attorney General. I value that future discussion and I can support a one (1)
month deferral.
Chair Hooser: I would like to speak and then I will ask
Councilmember Bynum after the Committee has a little bit more discussion, if we
could? This decision is our decision to make. It is not the County Attorney's
decision. It is not the Attorney General's decision. It is the Council's decision. I
understand that we have to weigh the risks of cost in court but I also do not
appreciate being bullied by big companies who bring in the big lawyers who say we
are going to sue you if you do not do what we tell you to do. We make the decision.
There are a number of Attorney General decisions overturned by the courts, a
number of County Attorney's decisions that have been overturned by the court.
There comes a time when we need to step forward and represent the people in our
community. So, that is where I am coming from. A sixty (60) day deferral I would
see as a mechanism to kill the Bill, waiting for the County Attorney's opinion. If we
continue to work on the Bill, we can work on the Bill and craft it in a manner that
complies with the law that will sustain and be defensible in court and protect our
community, protect the environment, and preserve the jobs. I am clear on that, if
we work on it. In we want it to happen, it can happen if we work on it. I appreciate
Councilmember's Rapozo suggestion for a month. I was hoping for two (2) weeks
and do real work. But if we do it in a month, I would ask that the Councilmembers
be prepared to vote in a month, offer amendments if you would like or vote it up or
down in a month and not kill this Bill via deferral. If you do not like the Bill, we
vote it up or down, amend it as you wish, and we move on. That would be my
suggestion. I would support the thirty (30) days if we all agree on that. I would like
to offer Councilmember Bynum, as a non-Committee member, as chance to talk and
then if somebody wants to make a motion, they can make a motion. Go ahead.
Mr. Bynum: Well, this is the day we started working on
the Bill and I saw a lot of work that I want to do. The State folks talked about
language that would prevent KISC citric as-needed. That is the kind of things that
comes up when you write a complex Bill like this. You learn, you write, you make
revisions, that is one thing to work on. I am in dialogue with Kaua`i Coffee about
how this impacts their operations and how we can work together. The difference of
the response from the seed companies and Kaua`i Coffee could not be more different.
Seed companies, you do not have a right to do this. It is trade secrets, we are going
to sue you. We do not want to talk. Kaua`i Coffee says we are community member,
EDR COMMITTEE 119 AUGUST 5, 2013
let us work this out. This will impact our operations, but we are about producing a
product for Kaua`i and let us work together in the community to find this out. You
want to know what pesticides we use? We use this one and this one. This is how
often we spray. That is the kind of response I am getting from Kaua`i Coffee. We
say these maps with the boundaries showing that and they testified that it would
take away ninety percent (90%) of their land. There are internal roads there that
are included, drainage ditches, and we need to work on that language. We need to
work on this Bill to make it work for all us. Now, anybody that has followed County
politicks for a long time knows this is in Committee right now and I am not a voting
member. A Committee cannot kill a Bill. They can only make recommendations to
the full Council. But what they can do is delay, defer, and drag it on. This certainly
has engaged our community. I do not think it has divided our community. I think
these issues were happening and this Bill certainly brought it to fruition, an
important discussion that we need to have. But if this Committee chooses to defer
this more than our normal two (2) weeks, it is a decision to not to continue to work
on this Bill, right? This Committee could defer it indefinitely and just sideline it.
That has happened to County legislation plenty of times. I like this Council. These
are smart men and women. Let us work on this Bill. Let us meet in two (2) weeks
and do the work we were hired to do. Otherwise, we are not working for it. Last
thing I want to say really quickly, this County Attorney opinion. I have been the
biggest advocate for ten (10) years, everybody knows that, to release County
Attorney opinions, but not everyone. This particular opinion is like what you would
expect, the County Attorney saying here is what you can do and cannot do under
the law and speculating about what our legal challenges might be, what the
arguments are? That is typically what these are. You do not disclose that. I will
not vote to disclose this Bill. I do not believe that the County Attorney will
recommend disclosing it. That should not even be a discussion here. In the long
run, the Attorney General may or may not offer us an opinion. They do not have to
respond to us. They may, that would be helpful. But in the long run, they are all
opinions. The responsibility lies with us. As Mr. Hooser has said, there are lots of
examples in Hawai`i law where the Attorney General was overturned by the
Supreme Court. Mr. Alston said it, a dispute this big, if they choose, we have the
courts to resolve it, not opinions from Attorney General or Mauna Kea Trask, as
much as I admire him. They are just opinions. In the long run it comes to us.
Please continue to work on this Bill in Committee.
Chair Hooser: Is there a motion?
Mr. Kagawa moved to defer Bill No. 2491 to September 4, 2013 pending
County Attorney's opinion, seconded by Mr. Rapozo.
Chair Hooser: That is a good question. Could we
assume the motion is for thirty (30) days and asking the County Attorney to have
an opinion, if possible in thirty (30) days? But regardless, it is a thirty (30) day
deferral and we meet regardless of whether the opinion is ready for not? Can we
assume that?
Mr. Rapozo: What is thirty (30) days?
JADE K. FOUNTAIN-TANIGAWA, Deputy County Clerk:
September 4, 2013 which is a Wednesday, a regular Committee day.
Mr. Kagawa: I would say thirty (30) days is fine and
I hope to have the review ready. If it is not ready, we will discuss anyway and not
EDR COMMITTEE 120 AUGUST 5, 2013
waste the day. I would be willing to vote on that day, I would be willing to vote on
that day if you want to vote.
Chair Hooser: Is there a second.
Mr. Rapozo: There was a second. I am just trying
to clarify, is it going to be specific to September 4, 2013? Would the Chair want this
on a Wednesday?
Chair Hooser: What does the Committee want? The Chair
is not getting what he wants. What do you folks want to do? We could do it on a
Monday and it would be better.
Mr. Rapozo: I just think we should have a special day.
Chair Hooser: Can we do it on the Monday preceding the
day.
Mr. Rapozo: It is Labor Day.
Ms. Fountain-Tanigawa: We could do it September 9, 2013 on a
Monday.
Chair Hooser: Tuesday?
Ms. Fountain-Tanigawa: Well, the week after would be
September 9, 2013 on a Monday.
Mr. Rapozo: Perfect, that is my anniversary.
Chair Hooser: Is that thirty (30) days?
Ms. Fountain-Tanigawa: That would be a little longer than thirty (30)
days.
Chair Hooser: How much longer?
Mr. Rapozo: Five (5) days.
Ms. Fountain-Tanigawa: Two (2) working days longer.
Chair Hooser: I mean I do not care. Whatever you folks
want to do.
Ms. Nakamura: September 9, 2013.
Chair Hooser: Do you want to clarify the motion?
EDR COMMITTEE 121 AUGUST 5, 2013
Upon motion duly made by Mr. Kagawa, seconded by Mr. Rapozo, and
unanimously carried, Bill No. 2491 was deferred to September 9, 2013 at
9:00 a.m.
There being no further business, the meeting was adjourned at 6:48 p.m.
Respectfully submitted,
YN- Cfr)—(9-'
Allison S. Arakaki
Council Services Assistant I
APP VED at the C mmittee Meeting held on October 2, 2013:
A' HOOSER
C • ", EDR COMMITTEE