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HomeMy WebLinkAbout 10/08/2013 (cont'd 10/15/2013) Special Council Minutes SPECIAL COUNCIL MEETING OCTOBER 8, 2013 The Special Council Meeting of the Council of the County of Kaua`i was called to order by the Council Chair Jay Furfaro at the Council Chambers, 4396 Rice Street, Room 201, Lihu'e, Kaua'i, on Tuesday, October 8, 2013 at 8:42 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum (present at 9:12 a.m.) Honorable Gary L. Hooser Honorable Ross Kagawa Honorable Nadine K. Nakamura Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Jay Furfaro Chair Furfaro: This meeting today is time specific from 8:30 a.m. to 1:00 p.m. due to the fact that we have prior business on the afternoon schedule. I want to start by acknowledging that Mr. Bynum called in and he may be late this morning. May I get an approval of the agenda, please? APPROVAL OF AGENDA. Mr. Rapozo moved for approval of the agenda as circulated, seconded by Ms. Nakamura, and carried by a vote of 6:0:1 (Mr. Bynum was not present). Chair Furfaro: I want to share some general housekeeping items with you this morning. This is a special meeting of the full Council. We are reviewing action approved at Committee level, which has been forwarded to the full Council. Again, this is a special meeting for today. My Office has cleared it with the Office of Information Practices (OIP) that if we find ourselves at 1:00 p.m. today, we can recess this meeting date specific, which will be Monday, October 14, 2013. That was acceptable for them and we do have that opinion from OIP. The reason that it was schedule to end at 1:00 p.m. is because we have business dealing with the Office of the County Auditor already scheduled for this afternoon. We will start with Public Comment which is pursuant to Council Rule 13(e). Members of the public will have up to eighteen (18) minutes or three (3) minutes each on first-come, first-serve basis to give three (3) minutes of testimony at the direction of the Chair. They can speak on any item on the agenda. I will be accepting a video presentation today that will last exactly three (3) minutes, but I want to remind those of you who have signed up for Public Comment, there will be no question and answer from the body when you make your presentation, according to our rules. I am going to ask the Deputy County Clerk to read those names, as I do not have the list in front of me. PUBLIC COMMENT. Pursuant to Council Rule 13(e), members of the public shall be allowed a total of eighteen (18) minutes on a first come, first served basis to speak on any agenda item. Each speaker shall be limited to three (3) minutes at the discretion of the Chair to discuss the agenda item and shall not be allowed additional time to speak SPECIAL COUNCIL MEETING 2 OCTOBER 8, 2013 during the meeting. This rule is designed to accommodate those who cannot be present throughout the meeting to speak when the agenda items are heard. After the conclusion of the eighteen (18) minutes, other members of the public shall be allowed to speak pursuant to Council Rule 12(e). JADE K. FOUNTAIN-TANIGAWA, Deputy County Clerk: Council Chair, the first speaker will be Tom Perry followed by Lorna Poe. Chair Furfaro: Tom, can you start by introducing yourself? My Staff will be keeping time. There being no objections, the rules were suspended. TOM PERRY: My name is Tom Perry. I am the current Director of the Hawai`i State Teachers' Association (HSTA) and I have been in that role for eighteen (18) years. Today, I will be speaking as an individual. First of all, I want to thank you all for your due diligence in regards to Bill No. 2491. I am here to try to tell you how we got here and why teachers are speaking about this. In the school year 2007-2008, teachers started to call me from Waimea Canyon Intermediate School saying that they were getting sick and they could not understand why. They had to start closing their windows to teach class, otherwise they would become sick along with their kids. At first, I was very skeptical. I could not really understand how something like that could be going on for the island of Kaua`i, so I started visiting the school. When I visited the school, there is a field that you can see on the second floor from the west side of Waimea Canyon Intermediate School that looks out towards the west. There is a large field there. The teachers started to actually videotape the spraying that was going on. Many times, we had to try to talk with the administration and Syngenta, who was spraying in the field. Well, nothing really happened and we were not able to stop any of the spraying until the day of January 25, 2008. On that day, the Kona winds were blowing very hard and teachers called me and said, "We are really sick here. We have kids sick here. Everyone is getting sick. We need you to come here to try and stop this." I drove out there and that morning when we got there, there were ambulances in the courtyard by the health room where the students were getting sick in large numbers, along with the teachers. From here, they did send the kids home. They did send the kids to the hospital. This was the first time anywhere on Kaua`i where we had anything of this nature, this magnitude happen. We had to do something further. Teachers, parents, and students organized. We had to make signs, went out, and held signs in front of the main highway. We also had to do something else. We could not find another way to stop the spraying except we had to file, for the first time in the history of HSTA, a temporary restraining order (TRO). From that temporary restraining order, we went to Judge Kathleen Watanabe and with the lawyers and our attorneys, we were able to stop the spraying. What I am saying to you now is teachers have been healthy since that time, but we need your help now so that can you put the types of protections in for the island of Kaua`i because this is now expanded to such a great deal for this island. Please help us. Please help fight and protect the island of Kaua`i. Chair Furfaro: Tom, I need one clarification. You are speaking on behalf of yourself or HSTA? Mr. Perry: Myself. HSTA has already submitted testimony in favor of this Bill. SPECIAL COUNCIL MEETING 3 OCTOBER 8, 2013 Chair Furfaro: Thank you very much, Tom. Next speaker, please. LORNA CUMMINGS-POE: Aloha and good morning. My name is Lorna Cummings-Poe. I am a mother, grandmother, and homeowner in Hanapepe Heights. The garden in (inaudible) that has helped to sustain my family sits up against the seed company's test field and inadequate buffer zones lay between us. I have watched seed company employees between 4:00 a.m. and 5:00 a.m. in dark mornings with the wind blowing while they are spraying. They are dressed with protection; we are not. I often wonder why they do this while my family and neighbors sleep. The health of many in our communities is being seriously compromised by pesticide spraying on thousands of acres here on our tiny island. United States (US) has the highest rate of cancer deaths on the planet. While one (1) in two (2) males die of prostate cancer and one (1) in eight (8) females die from breast cancer— one (1) of ten of these cases are genetic, but nine (9) out of ten (10) are environmentally triggered. Many laugh and say that these statistics do not affect our island people. I say "why should we wait to see?" All this is allowed to maximize food production and profitability for food industries. I call it "empty food," food lacking nutrition and their profitability; I call it "greed." Biotech companies enjoy huge profits. They provide work for our family and friends. The employees deserve more; more pay for the health risks they confront themselves with daily. We cannot continue to ignore the fact that these pesticides have affected our dead reefs, salt beds, and sea life that sustain our people. The protection, safety, and health of the people you are elected to serve are being compromised. Bill No. 2491 has been watered down to favor biotech companies and not the health and welfare of Kaua`i's people. If biotech companies are unwilling to divulge necessary information, there should be an immediate moratorium. What are we waiting for? A previous comment made by a Councilmember and the red shirts, in all honesty, "I do not know much of you. I grew up with most of the blue shirts." Most of you are so-called "red shirts" from the west side respect the close relationships we share with those who work for seed companies. They are our friends and family, too. We are your friends and family. We watched you grow up and play ball. There are hundreds of westsiders who are supporters of Bill No. 2491. We choose to keep the peace. You are a remarkable and compassionate group of leaders. I have supported many of you in different campaigns for political office. I have walked house to house for you. I pray that my manc o will remain in your hearts and minds, and the health of the people and our aina remain foremost in your vote on Bill No. 2491. Mahalo me Iesu pa. Chair Furfaro: Thank you, Lorna. Next speaker, please. JOAN KUTZER: Hi, my name is Joan Kutzer. I am a Registered Nurse here on Kaua`i. I have been here since 1984. I have worked everywhere from Ha`ena to Kekaha in my time here from childbirth to end of life care. I am on the Executive Board of Hawai`i Nurses Association which has endorsed Bill No. 2491. I have cared for children with respiratory distress following pesticide drift exposure. As a health care provider, it is essential that I know what pesticides are being used so that we can quickly and accurately treat our patients. Please amend the Bill to allow health care providers to sign up to receive the good neighbor courtesy notices. As a health care provider, I am morally obligated to promote health. The American Academy of Pediatrics (APA) and the American College of Obstetricians and Gynecologists have both made statements this year to counsel their patients and to push for stricter environmental control of pesticide applications and environmental hazards. Speaking with my colleagues on the west SPECIAL COUNCIL MEETING 4 OCTOBER 8, 2013 side at some meetings that we have had, they talked about the very high incidents of birth defects that they are seeing in their community; much higher than is the national rate. It is a very small community, so every baby born with a congenital defect is a tragedy. Where I work now, even though the numbers are not supported by the statistics, we see clusters of young people with reproductive organ cancers and colon cancers. We need more epidemiological research into these findings. We know in our hearts that it is there. I just want to thank you for listening and please support the Bill. Chair Furfaro: Thank you very much for your testimony, Joan. Our next speaker is Carl Berg. CARL BERG: Aloha Councilmembers. Good morning. My name is Carl Berg. I am testifying today on behalf of myself as a Marine Biologist/Ecologist. I have read through the proposed amendments for Bill No. 2491 and I have serious concerns about the adequacy of them to protect the humans, marine life on the beaches, streams, estuaries, the ecosystems themselves, and all the services they provide. I feel that a five hundred (500) foot buffer zone must be in place along the shorelines. This is to protect the people on the beach, but also the rare and endangered species like the turtles and the monk seals that are on the beaches that are being sprayed. There are also the shorebirds and other animals that are listed there that would be affected by spray along the shorelines. These shorelines are the nursery grounds for our fisheries. It has been shown repeatedly that pesticides are endocrine disruptors that can mess up the reproduction of the animals. If these fishes, et cetera, do not reproduce properly, then we are not going to have near shore fisheries. I feel a two hundred fifty foot (250) buffer zone is more appropriate for perennial inland waterways and that would be the streams, rivers, lakes, and ponds. All of these types of waters are defined in Hawai`i Administrative Rules (HAR) 1154 and I will ask that you look at those because you should not be just arbitrarily coming up with new definitions of the kinds of waterways. The term that you have in the amendment is that the "waters that flows to the ocean" must be removed. The State makes no distinction between whether it goes to the ocean or not, and the fact that you put up a dirt berm or a gate does not keep that water from going into the ocean; it percolates. All of our drinking water on this island is percolating through the land, down to the base. All the pollutants that are put into the ditches and streams percolate down, even though it does not flow. Just like our Legislators are only actually in the Capitol Building a few months of the year, the rest of the time they are on recess; these streams are streams all the time, whether or not the water is flowing. To allow them to be sprayed year round, even though they just flow a short period of time, is not the right way of looking at it. We have to recognize that anything that goes into the land will percolate down into our water, and that will go right out onto our beaches. Again, that will not only affect public health, but all of the baby fishes and things like that that are in those places. Chair Furfaro: Carl, that is your three (3) minutes. Mr. Berg: Okay. Thank you very much. Aloha. Chair Furfaro: Thank you, Carl. May I have the next speaker? ELIF BEALL: Good morning, Councilmembers. Thank you for the opportunity to testify. My name is Elif Beall and I am a local attorney practicing here on Kaua`i. I am one (1) of nine (9) attorneys who signed a joint SPECIAL COUNCIL MEETING 5 OCTOBER 8, 2013 statement in support of passing a strong and robust Bill No. 2491. These attorneys include retired Hawai`i Supreme Court Justice Steven Levinson; Kapua Sproat, Law Professor at the Richardson School of Law; George Kimbrell, Senior Attorney at the Center for Food Safety; Peter Schey, President and Attorney for the Center of Human Rights and Constitutional Law; Alan Murakami, an Attorney at the Native Hawaiian Legal Corporation, who signed in his personal capacity; Paul Atchitoff, Managing Attorney of Earthjustice; and two (2) other local attorneys, Teresa Tico, who is the former Kaua`i Bar Association President for Kaua`i; and Harold Bronstein. Each of these attorneys was provided with the testimony of both legal proponents and opponents of Bill No. 2491. Each attorney reviewed and approved the joint statement before signing on. I will submit the full statement in writing, but I just want to highlight a few points here. "There has been much debate about whether Bill No. 2491 is legally sound, regardless of how necessary it might be." We believe that Bill No. 2491 is sound and the mere threat of a lawsuit by industry interests should not prevent the Council from taking action that they believe is important to their community. Attorneys experienced in these issues have given the Council volumes of detailed legal analyses supporting the Bill's legality, discussed these issues with the Council, and made their analysis publicly available for critique, yet Bill No. 2491 opponents have not supported their campaign of intimidation with any legal explanation. No thoughtful, experienced attorney will offer blanket assurances about how any lawsuit will be decided and the Bill presents some cutting-edge legal issues, but the State expressly granted the County the authority to protect the health, life, and property of its people from just these kinds of threats. No law expressly prohibits the County from taking this action and no court case has clearly blocked the County from passing and implementing this Bill. Moreover, ordinances with similar provisions have been passed elsewhere and have not been successfully challenged. We feel it would be unfortunate if the Council were to allow any well financed opponent to determine public policy merely by threatening to sue. If a vote is being based on the belief that the Bill will be struck down, we see no meaningful basis for that concern." Thank you. Chair Furfaro: Thank you very much for your testimony. Our last speaker is Christi Demuth. Do you have a video presentation? Okay. Please introduce yourself and I believe your piece is exactly three (3) minutes long. Am I correct? CHRISTI DEMUTH: Yes. Chair Furfaro: Thank you. Ms. Demuth: Good morning, Council. My name is Christi Demuth and I have a video from some west side `ohanas that they would like you to see. Chair Furfaro: Thank you very much. (The presentation from Christi Demuth is playing.) Ms. Demuth: I have a copy for each of you. Chair Furfaro: Thank you very much. At this point for the Clerk, it is our intent to go to the Consent Calendar. For the audience, subsequently it is my intention to go into Executive Session. SPECIAL COUNCIL MEETING 6 OCTOBER 8, 2013 There being no objections, the meeting was called back to order, and proceeded as follows: CONSENT CALENDAR: C 2013-328 Communication (10/02/2013) from Council Vice Chair Nakamura and Councilmember Yukimura, transmitting for Council consideration, a proposed Resolution to implement an Environmental and Public Health Impacts Study (EPHIS), via formation of a Pesticide and Genetic Engineering Joint Fact Finding Group (JFFG): Mr. Rapozo moved to receive C 2013-328 for the record, seconded by Ms. Nakamura, and carried by a vote of 6:0:1 (Mr. Bynum was not present). COMMUNICATIONS: C 2013-329 Communication (10/02/2013) from Council Chair Furfaro, requesting the presence of the Managing Director, County Attorney, Director of Economic Development, and the County Engineer, to provide the Council with a presentation relating to the operational impacts that the passage of Bill No. 2491, Draft 1, would have on the County: Ms. Nakamura moved to receive C 2013-329 for the record, seconded by Ms. Yukimura. Chair Furfaro: Thank you. I will suspend the rules and ask the Mayor and his Staff to come up. There being no objections, the rules were suspended. BERNARD P. CARVALHO, JR., Mayor: Good morning, Chair Furfaro and members of County Council. Chair, mahalo to you for accepting my request to come before you this morning to talk specifically about our thoughts and some of the areas that we wanted to share with you on Bill No. 2491, as amended. As we all know, there has been many, many hours of discussion, research, and listening to different points of view in trying to figure out which is the best way to do the right thing for the people of Kaua`i and Ni`ihau. The public participation has just been truly amazing overall, so we want to thank you folks for opening up the discussion. We are hopeful that everyone involved and the result of this measure really takes into account the best interest, like I said, of everyone. Exactly a week ago today, we received the actual Bill so we could actually review the Bill. My Administrative team, who is here today with me, have been at it to assure that the Bill itself as printed is something that we needed to look at and really strongly look at all the different parts of it. I did fly over to Honolulu yesterday to meet with Russell Kokubun from the Department of Agriculture and some of the Governor's key Staff members and Cabinet members. We had a lengthy discussion yesterday along with the Legislative team. I have been out and about as well, trying to listen, hear, understand, and at the same time, focus on today's discussion specifically to the Bill. In my discussions with Mr. Kokubun and the Governor's Cabinet members, I feel very confident. I have their full commitment of working together to come to a document or an understanding of what everybody's role is and how this whole issue can move forward, again, in the best interest of all. I feel confident of that in my discussions. Again, my discussions with the Cabinet members— which you are going to hear that right now as we step-by-step through each part of the Bill, and seeing some of the areas that are concerns and some of the areas that I feel we have total opportunity to really have an open dialogue with all of the key players or the key people, so we can come up with an understanding SPECIAL COUNCIL MEETING 7 OCTOBER 8, 2013 overall. Thank you, Chair, for the opportunity. I am going turn it over now to my Managing Director Gary Heu and Mauna Kea Trask from the County Attorney's Office, as we go through this particular discussion at this time. GARY K. HEU, Managing Director: Good morning, Council Chair Furfaro and Councilmembers. For the record, Gary Heu, Managing Director. Thank you for the opportunity of allowing us to be in this discussion with you this morning. I also want to thank each and every one of you for all the hard work that you guys have put into the discussion on this Bill so far. I want to start off by saying that the presentation we are going to make can be summarized by the second bullet, which is "things to consider" because we totally understand that it is the Council's responsibility to draft and put forward legislation. We definitely respect that. We also think it is our responsibility to at least weigh in on various issues and work with you to consider certain things that we see taking place as this Bill develops and moves forward. Our comments today are based on a snapshot of the amended Bill which has changed since it was originally introduced. It is our understanding of that amended Bill as it exists today. Perhaps, additional clarity will be provided as the discussion of this Bill continues today. I would ask that you please not misinterpret anything that we say today as being obstructionist in nature. We want to work with this body and others to find meaningful and an appropriate way to address the issues that have been raised in this current public discussion. What we would like to cover today, number one, the legal impacts; things to consider; resources that we believe we require to implement the Bill as we know it today, the amended Bill; some additional concerns; and then we will wrap up with suggestions, if we may put some of those forward for the Council's consideration. To lead off the presentation and get into the first bullet regarding the legal impacts and an overview of those impacts, I am going to turn it over to Deputy County Attorney Mauna Kea Trask. MAUNA KEA TRASK, Deputy County Attorney: Aloha Chair and honorable Councilmembers. Thank you for this opportunity. Per your request, Chair, I prepared a presentation regarding the legal impacts overview. My presentation will provide an overview of what legal operational steps need to be taken in order to implement Bill No. 2491, as amended. This is going to be similar to the discussion that we had on the floor the other day at Council. This is the operative section of the Bill as they stand now. Mr. Hooser: Can you speak a little louder, please? (Mr. Bynum was noted as present at 9:12 a.m.) Mr. Trask: Sure. They pertain to disclosure, pesticide buffer zones, the Environmental and Public Health Impacts Study (EPHIS), and rulemaking. Again, the purpose of this Bill is to establish provisions to inform the public and protect the public from any direct, indirect, or cumulative negative impacts on the health and the natural environment of the people and place of the County of Kaua`i by governing the use of pesticides and genetically modified organisms (GMO), and the penalties associated with any violation of this article or laws, rules, and requirements that may be authorized by this article. This is the purpose as stated of this law. It is no more complex, neither is it more simple than that. The operative terms being to inform; protect; direct/indirect, cumulative negative impacts; health; natural environment of the people and place of the County of Kaua`i; governing the use of pesticides and genetically modified organisms; penalties associated there with; and violation of this article or the laws, rules, or SPECIAL COUNCIL MEETING 8 OCTOBER 8, 2013 any requirement that may be authorized by this article. That last point pertains to rulemaking so it is not only this ordinance itself, but any actions and rules, even on the Administration side via Office of Economic Development (OED), which they would promulgate there, too. Thank you. Alaka i means to "lead, leadership." The Administration would be led by those operational actions taken and be guided when having to adequately fulfill the operative terms contained in Section 22-22.2, "The Purpose." Again, to generally inform, protect, and govern. The direction is set, but the path to fulfill that would have to be prepared and implemented. Hooka means to "fulfill." Our obligations under Bill No. 2491, the Council and the Administration as well as the Departments, would have to fulfill tenants of the Bill via rulemaking, enforcement, and the enaction of the EPHIS. Those are the avenues that we can take to fulfill the Bill. Here is a little bit on the rule making process. Again, this is just the dry law. This is what would be required. First would be drafting. The drafting of the Bill— whether it is in-house or outside professional services... in this respect, given the nature of the circumstances and the area, the most likely would be the outside professional services, a highly technical area of law, and probably best behooved by getting someone who is an expert in this. After drafting of the Bill, we most likely have to deal with the Small Business Board Review under Hawai`i Revised Statutes (HRS) 201(m) and then also proceed via the Hawai`i Administrative Procedures Act (HAPA) under HRS Chapter 91, specifically Section 91-3. Both of these legal procedural steps, Small Business Board Review and the rulemaking under HAPA, will necessitate public participation. Small Business Board Review will have to specifically include input from potentially affected small businesses. Briefly, small businesses are defined under Chapter 201(m) as "companies employing less than one hundred (100) full-time or part-time employees." Obviously, it is understood that the commercial agricultural entities that this Bill seeks to regulate are not small businesses. However, there has been testimony on the floor, if you recall, that there are small businesses involved in this industry. I think one gentleman from... he was a pesticide vendor. I think "BEI" or "BMI"— I forget. This does have a potential impact on small businesses, even though the primary corporations probably are not considered small businesses. Nonetheless, we would have to go through that process. Both a Small Business Board of Review's public hearing at Department of Business, Economic Development, and Tourism (DBEDT) and the rulemaking under HAPA provide avenues for administrative and court challenges... just a matter of fact. Thank you. Again, the enforcement elements. We discussed this briefly the other day at public hearing. Enforcement would pertain to disclosure portions, as well as pesticide buffer zones. The law itself basically states at this point that any violation of this article subjects a person civil penalties, as well as criminal penalties. It is not just buffer zones and the right to know. If an applicable Commercial Ag entity does not disclose, they are violating the article. If pesticide buffer zones are not implemented, they are violating the article. The elements there for disclosure; pesticide— the Commercial Ag entity may purchase and use an access of five (5) pounds or fifteen (15) gallons of restricted use pesticides, and they disclose uses of all pesticides per Section 22-22.4. As far as disclosure relating to GMO, the elements would be Commercial Ag entities; intentionally or knowingly possess— it is a state of mind requirement; and disclose per Section 22-22.4(b). These are just the basic elements as contained in the ordinance itself. Under HRS 701-114, it lays out additional criminal elements. In a criminal context, it would have to be proven; SPECIAL COUNCIL MEETING 9 OCTOBER 8, 2013 example: jurisdiction, venue, identification. The alleged violation occurs within the application statute of limitations, which the misdemeanor is two (2) years, et cetera. Those are not included today. The elements for the pesticide buffer zones are Commercial Ag entities, purchase/use in excess of five (5) pounds/fifteen (15) gallons restricted use pesticides. Again, they would need to restrict the use of all pesticides as specifically stated in Section 22-22.5. The reason why I included this slide is because this is based on my experience as a litigating attorney. This is what the attorneys would have to prove in order to enforce this law. Ultimately, enforcement would be via court action. Enforcement is basically civil and criminal context. Although they are different avenues with different legal issues, both will necessitate the use of expert witnesses because of the subject matter. When cases are filed against alleged violators, whether in civil or criminal contexts, prosecutions will provide an avenue for validity challenges. What I mean by this is that cases across the Country illustrate that even in a criminal misdemeanor context, the validity of such laws may be challenged. What this means is that normally, a prosecutor— this is just to give you an idea based on my experience; you have criminal laws and you deal within the criminal code. In Hawai`i, there are no common law crimes. Everything is a crime as defined or laid out in the "seven hundreds" portion in the HRS. Usually, you do not see constitutional challenges very much. You do not see validity challenges of law because it is all via code. However in this case, there are cases that show that the validity of the law can be challenged. I just wanted to put this in to illustrate to you that initially, it would be a more complex criminal case to prosecute because our prosecutors would have to prove their criminal elements, as well as possibly deal with potential constitutional challenges and whatever challenges there might be. You have heard descriptions of them briefly on the floor from advocates on both sides. Moving on the EPHIS or study. The study will necessitate both community involvement and technical expertise per the general description of the EPHIS. Consultants need to be familiar with State and Federal laws on the use of pesticides and GMOs, and they must adequately address the purpose of the Bill and fulfill the County obligations while maintaining consistency with superior regulatory authority. The reason why I put this in is because there is a lot of product out there currently regarding this area. I, myself, have downloaded the REDs, which is the "Reregistration Eligibility Designations" of all eleven (11) registered use pesticides in Hawai`i: Alachlor, Atrazine, Bromacil, Chlorine Gas, Chloropicrin, Cyanazine, Hexazinone, Metolachlor, Paraquat, Picloram, and Simazine, as well as Chloropyrophos, per the request of Councilmember Bynum. For a total of approximately two thousand five hundred eight (2,508) pages of very technical type of evaluations and documentations, these look at everything from environmental toxicity and dietary affects. They really run the gambit. This is per Federal law. The County would be entering into a preexisting regulatory structure. The consultants and the public would need to know all this stuff. That is the end of my presentation. Thank you. Chair Furfaro: Mr. Heu, you have the floor again. Mr. Heu: Thank you, Chair. Now we are going to get into the operation side of the Bill, the potential impacts, and things that we would ask the Council to consider as you continue to work and deliberate on this Bill. Once again, I would like to say that this is based on a snapshot of the amended Bill as we understand it today. We might be wrong and we would welcome further SPECIAL COUNCIL MEETING 10 OCTOBER 8, 2013 clarification. Number one is we believe that the timetable may be unrealistic. There are inconsistencies in the Bill in its current form in terms of having different implementation dates identified. There is a January 1, 2014 date that is identified in Section 22-22-5(a), and then there is a six (6) month implementation date set out in Section 4. We believe that both of those intervals are not realistic based on all the work that would need to be done by the Administration once this Bill is passed. As Mauna Kea pointed out, there is the drafting of rules which would require significant research— the Small Business Regulatory Review Board. These things are not unique to this Bill. There are many ordinances that are passed which require that State and local government go through these processes. Again, it is nothing unusual; we are just saying to please provide us with adequate time to implement effectively. As you folks probably know, the rulemaking may be a lengthy and contentious process. Just some examples— not necessarily of contentious processes, but of lengthy processes, the "value added products ordinance" which allowed for value added products that are at our markets, took approximately nine (9) months to draft those particular Administrative Rules. The "grading and grubbing ordinance" and the Administrative Rules that accompanied those took us about ten (10) months to promulgate those rules. The park rules to better manage our parks— those Administrative Rules; we are at twelve (12) months and counting right now. Due to certain challenges to certain components of those rules, it is hard to determine how long that process will be hung up, so we just put that on the table so that there is an understanding of the process, and particularly with the Bill, that is as complex and involved as this particular Bill, we would ask for your consideration to provide adequate time for that process to take place. Continuing on to the next slide is the lack of resources for implementation during the given timeframe. Again, we only raise these concerns so that we all go into this with our "eyes wide open" in terms of what it might take to actually implement. Regarding our manpower— and it is not being critical of the current manpower that we have within the County, but the existing workforce does not necessarily have the capacity to take on additional complex issues or initiatives while we continue to just deal the day to day responsibilities that we have now. Over the past years, because of our fiscal situation, we have asked all of our employees to do more with less. They are trying their hardest, but as we continue to layer on additional responsibilities at a certain point, I think it adds into the mix of certain inefficiency factors. Training our existing workforce does not necessarily possess the knowledge based or experience to develop the necessary enforcement mechanisms. That does not say they cannot; that just says that we need to help that workforce become more proficient at that. As the Bill currently exists, there is no funding for manpower and the hiring of consultants or training provided, so we would ask you to at least consider that as we continue to discuss this Bill. Enforcement— I do not know if I want to use the word "problematic," but I would say it is challenging at its best and I think that goes not just for this particular Bill or ordinance, but for many that have already been put in place. I think we have had some of those discussions on this very Council floor. One thing we would say as legislators and lawmakers, sometimes there are ordinances and laws put in place which take a very "broad brush approach," and then a lot of the detail is left to the administrative rule making process. Because of the complex and contentious nature of this particular Bill, we would ask for the Council's consideration of being very specific as you guys continue to develop this Bill in terms of legislative intent. It would be very helpful for anyone who needed to SPECIAL COUNCIL MEETING 11 OCTOBER 8, 2013 implement the provisions of this Bill to clearly understand what the intent of the legislative body was when you pass this Bill. Relative to enforcement is it the vision of this body that it is complaint based or is it something that the body would like to see proactive efforts be put out by the Administration? Based on that, that could determine the level of resources that we would need to provide for that enforcement to take place. What would trigger an inspection? We are really unclear at this point in time. Again, we are hoping for additional clarity as we move through this process. The question is where do we draw the line? We would ask for the Council's help in drawing that line and making those determinations. I think it would make enforcement and implementation that much more effective when we get to that point. We anticipate that just because of the discussion that is currently going on in our community, we would anticipate that we will be fielding numerous complaints and possibly some complaints that may not deserve our serious attention. We would need to discern how to handle that. Currently in the Bill, there is no ability to discourage frivolous complaints, and certainly, that is a concern of ours. Again, what is the legislative intent? What do you folks envision and your articulating that would definitely be of help to us. Regarding the buffer zones and the enforcement of those buffer zones, we feel that currently the delineation of those proposed buffer zones are not clearly defined. We need to be able to easily identify boundaries upon visual inspection, and currently, we are not sure how that is to be done. Again, we would ask for your consideration. Timely access to properties needs to be ensured. I believe in State law relative to the Department of Agriculture's responsibilities. I think that is provided for. I do not see that necessarily provided for in the Bill and we would at least ask for your consideration of at least discussing that issue and possibly putting that in the Bill, so that it is very clear in terms of our authority to get onto property that we would need to provide inspections for. Again, the discussion of the lack of knowledge, experience, and necessary skill set within our County workforce— whether it is the Office of Economic Development or as previously discussed, Public Works; we are not certain why there was a shift from Public Works to the Office of Economic Development. In either case, we would need to provide the tools and the training for the personnel in either of those Departments in order to carry out enforcement under this Bill. Here is an example— identifying of pesticides and the conducting of civil and/or criminal investigations. The magnitude of the potential penalties makes it necessary for investigations to be complete, prompt, and efficient. That is not just specific to this Bill; that goes for all types of enforcement that we are involved in. Again, we want to put that out for Council consideration. The potential need of dedicated staff who would really need to be, in many cases as we envision this, able to respond immediately to those complaints in order to a more effective investigation. Adjudication is also something that we need to really consider further. The cases could be complicated and time consuming, which again, is not unique to this specific Bill, but it is something that needs to be considered due to the complexity of the issues that we are dealing with. We feel that an abundance of scientific evidence and testimony may be necessary to successfully prosecute and/or levy fines, which you folks have provided for in the Bill. Proper investigation is the key to success. Again, that is something that is common to all the types of enforcement we are tasked with carrying out. We believe that there should be consideration for an appeals process established in this Bill. We have such an appeals process in the Grading and Grubbing Ordinance, and we think that should be considered in this Bill as well. I am not going to go through this flow chart because number one, not everybody can read what it says and number two (2), it is just an example. There SPECIAL COUNCIL MEETING 12 OCTOBER 8, 2013 are so many instances that we would need to draw flow charts for but we just wanted to illustrate. You folks can go through this on your own later. There is nothing scientific or professional about this. It is just as we started to step through what enforcement might truly look like and all the hoops that we would need to jump through, we came up with this as one potential scenario. Again, we offer that to you for your reading pleasure when you are able. I guess this next one is what you can call "the ask." What would we need to implement this Bill? I have touched on some of the things for your consideration but when we look at rule making, we would propose to hire a consultant to assist us in drafting the rules. There are Administrative Rules that we have had in-house expertise for, such as the value added products ordinance or bill. We did draft that in-house, but again, because of the complex nature of this particular Bill and the subject matter, we really would feel more confident, as we develop these rules, get some professional help. We feel that there needs to be a working knowledge of Federal, State, and local regulations related to GMO, pesticides, and agriculture in general. There needs to be working knowledge of the process involved in investigating a complaint and successfully adjudicating these complaints. Relative to disclosure, as far as manpower, we think we would need a minimum of one (1) specialist and two (2) full-time equivalent positions within OED or Public Works or wherever the Council decides to place this responsibility. As I reviewed the disclosure section of the Bill it exists today, there are any number of things that could trigger a possible violation; therefore, requiring follow-up and additional work on the part of the Department. Other resources and infrastructure that might be required within Information Technology (IT)— this is still a question mark for us. We have been in discussion with our IT folks and have not gotten a clear understanding of the potential costs there, but wanted to at least put that on the table for your consideration. Resources needed to address buffer zones. Again, manpower to respond to complaints, conduct inspections and investigations, and refer for adjudication. Again, within OED as it is currently identified in the Bill, we would propose one (1) full-time equivalent for investigation. That could change based upon the final form of the Bill. It could be less; it could be more. It really all depends on where the Bill is headed. Relative to the County Attorney's Office, we believe that we would need a hearings officer, much as we hire hearings officers for things like Transient Vacation Rental (TVR) enforcement issues. I will get into more specifics a little further on in the presentation relative to what they might be in terms of costs to the County. In addition, there is your basic training and administrative costs for investigation, legal personnel, and investigative tools. We have just thrown some things together and come up with the estimated costs for that. Regarding resources for the proposed study, we see this in two (2) different components. First, there is the joint fact finding group that would need to be convened. We would need a consultant to lead that effort and OED manpower to manage the contract. Some of that might be able to be absorbed within the current personnel and expertise, but certainly a consultant to lead that discussion. When we get to the study, we would probably procure a consultant to lead that effort, and then again, have OED manpower to manage the contract. On the next slide, a quick and dirty type of matrix showing the Bill component which would drive the cost items. In the third column over from the left, you have "estimated costs" that we have plugged in there, fringe benefit as it might apply to an actual County employee that we have identified to do the job, the total SPECIAL COUNCIL MEETING 13 OCTOBER 8, 2013 costs, and the agency which would be requiring those resources. We have identified whether or not those resources would be a reoccurring type of cost or a onetime cost. We have shown the approximate date that we would need those resources based on the current form of the Bill. That is all subject to change based on where the Bill goes. One thing that I wanted to point out relative to the hearings officer is that is an estimated cost at fifty thousand dollars ($50,000). That is on a per case basis because... and we are using as a basis for that, what we are currently paying for hearings officer expense with our TVRs, so we are using that as a basis to determine what those costs might be. Again, it could be more; it could be less, but where we wanted to at least plug something in there for your consideration. Those would be on a case by case basis and a reoccurring cost. We will try to wrap this up soon, but for the Administration's concerns, I think everybody would agree that this is a highly technical subject matter with many layers of regulation already in place at the Federal, State, and County levels. That requires an extraordinary level of detail in the ordinance and supporting rules to minimize impacts of any potential litigation. It is our belief that we should not rush this ordinance and implementation process. We should take the time that we all need, both at the Council and at the Administration, to make sure that we are doing it effectively. Bills of this complexity generally take one (1) year or more to vet. For your consideration, I put on the floor the time that was spent on the Affordable Housing Ordinance, Farm Worker Housing Ordinance, TVR legislation, and Shoreline Setback. I think that some of you have been involved in many of those ordinances and clearly understand the complexities of putting together a good bill. Investigations must be air tight in order to effectively enforce and adjudicate. Again, this is not specific to this piece of legislation. This goes for all the various types of enforcement actions that we take. Again, we need to have qualified investigative personnel, appropriate training, appropriate investigative tools, and to make sure that we have the right internal processes in place. They must be well thought out and strictly followed. There are no legal questions and potential challenges. Mistakes we may make along the way could be potentially very costly to this Council. I know all of you appreciate that as much as we do. We believe that we will be challenged and we just need to be prepared to defend. Now we are at our final slide and it is the smallest portion of our presentation, but we think that it is important to put this before the Council. We feel that we need to fully consider the legal issues. The Mayor has asked for an opinion from the County Attorney regarding this particular Bill. We do not feel that the passage of this Bill should be rushed. We feel that there should be time for outreach for the Department of Agriculture to see how they can support and assume enforcement of the amended Bill's intent and consider amendments that may be necessary for the Department of Agriculture to participate as a full partner, as we believe they should. If the Bill is passed, we ask for your consideration including guidelines for making complaints; include penalties for frivolous complaints; provide realistic timeframes for implementation; and provide necessary resources for implementation to the various Departments who will be involved in implementing this Bill whether it is OED or Public Works, the County Attorney's Office, Finance, IT, and/or the Office of the Prosecuting Attorney. Before I turn the floor back over to the Mayor for his closing remarks, we have had this discussion on the floor at other times as we have deliberated other bills. We would ask that the Council allow yourselves sufficient time to draft a law that can be easily and effectively implemented. We talk about that all of the time when we talk about SPECIAL COUNCIL MEETING 14 OCTOBER 8, 2013 Real Property Tax ordinances and the implementation of those laws. We just ask that you take that into consideration. Again, I spoke about the "broad brush approach" to drafting legislation which is a lot more specific relative to legislative intent, and we would strongly encourage the Council to spend time looking at the specifics because I think the end product will be better for everyone involved. Again, providing efficient time and resources to effectively implement. I want to thank you for the time, Chair and Councilmembers. Now, I will turn it over to the Mayor. Chair Furfaro: Gary, there is going to be question and answer for you before I turn the floor over to the Mayor. Mr. Heu: Absolutely. Chair Furfaro: I will leave it up to you folks though. Mr. Heu: I think the Mayor will go ahead and close. Mr. Carvalho: I will wrap up and we will open up for questions and answers. Chair Furfaro: Okay. Mr. Carvalho: Thank you, Chair Furfaro and Councilmembers. We really took the time to look at this, as you can see. We talked about the legal impacts overview, tried to look at the things to consider, give you a menu of options and opportunity to continue this very extensive dialogue all with the intent of coming up with something that can better serve all of the people of Kaua`i and Ni`ihau, resources needed, Administration's concerns, and of course, suggestions. We tried to offer you a menu of discussion pieces that we have gone through within this past week. At the same time, reaching out, going to Honolulu and meeting with the Department of Agriculture, sitting with Mr. Kokubun, sitting with the members of the Governor's cabinet, talking to our legislative team from Kaua`i, and looking, asking, and seeing what is the best way to make this work for all of us. I know it is a very sensitive and complex issue, and we all have our own issues we have to look at collectively. I think with the information we have provided for you gives us a framework and understanding of how much this particular issue is... there is more work to be done. With that, I am asking for your consideration for a deferral to give us time to look at this. We have done some of our homework within this short period of time, but I truly believe that with the commitment and understanding from the people who should be at the table talking, we can come up with something in the timeframe that can give us a better understanding of where we should be and how we should manage this for the betterment of the people of Kaua`i and Ni`ihau. With that, thank you for your consideration and time. Thank you to all the people sitting here and listening. I truly believe we have an opportunity to talk this thing through. Mahalo. Chair Furfaro: Members, are there any questions for Mr. Heu on his presentation? Mr. Heu: Chair, just to make note, we do have other members of that Administration here and available if there are very specific questions that anyone wants to address to a specific Department Head. We folded a little bit of the Prosecutor's Office information into our presentation, but we also SPECIAL COUNCIL MEETING 15 OCTOBER 8, 2013 have someone representing the Office of the Prosecuting Attorney here in case you would like to hear a little more from them. Chair Furfaro: Since we are going to have our time with Mauna Kea, he can vacate that seat and if we have specific questions for other Department Heads, they can come up. Mr. Heu: Sure. Chair Furfaro: First of all, thank you for the presentation, Mayor and Mr. Heu. One of the components here that I did not see is how can we do some outreach with the existing resources we have? For example, I did not see any consideration... we have a Hazmat team and fire stations which seven (7) of them are located where they are considered as first responders for the complaints— how could their role be enhanced? I know the Mayor is aware that we have done a lot of individual outreach. I have met with Kokubun twice, flown to Hawai`i island to talk to the beekeepers, correspondence to the Governor, and correspondence to the Feds. I think a lot of research has gone on over the last sixty-five (65) days that we have been working on this. I just wanted to point that out. For now, I will identify members for specific questions. If you do not mind, I will start at that end of the table. Mr. Hooser: Thank you. I have a few questions. I do not know where to start. Mayor, if I could ask you; the Bill actually has not... we have been talking about disclosure, buffer zones, and a study since the beginning. I am trying to think about what is so complex? The study is the study, disclosure is pretty straightforward, and we have buffer zones. To me, it is somebody with a tape measure, some surveyor tool, or whatever to measure distance. The Department of Health and the Department of Ag have been here, and we have been reaching out so I am not sure what a "deferral" means. You want to delay passage of Bill No. 2491? Is that what you are asking? Mr. Carvalho: I am asking for a deferral, as stated before you, and listed all the reasons why. This the first time I have seen the final product of the Bill. Yes, there were buffer zones and pesticides involved throughout this total conversation, but when you look at the details and being responsible... who is responsible? I want to make sure, so talking it through and listing all the information before you— that is why I wanted to assure you that we did our homework and looked at many of the different areas laid out for you. It is not as easy as taking a tape measure and going out there, from what I have gathered. I want to make sure that if this happens, we have the right people, resources, understanding, follow-up, and everything because it is not as simple as people may think. I want to make sure that we have the right resources or directing it to the right place so we can really develop strong relationships and managing this overall. Mr. Hooser: I agree with you. I believe we need to have the right people and the right resources in place. We need to pass a law that is going to be enforced, so I am on board with you there. Mr. Carvalho: Okay. Mr. Hooser: I guess where we differ is on the degree of complexity of the issue. What does "deferral" mean? Does it mean one (1) week? Ten (10) days? What kind of deferral are you asking for? SPECIAL COUNCIL MEETING 16 OCTOBER 8, 2013 Mr. Carvalho: From our discussions, I am looking at two (2) months or so. We are going to have to sit down and talk this thing through from what I have gathered so far. Within this one (1) week, I know we have been talking but to look at the existing Bill in its form and seeing where we need to really manage this and look at it. I would say that is about the timeframe we have been talking about on this side. Mr. Hooser: So that would push it into early parts of approaching the Legislative Session by the State also, I think, through the special session that is scheduled for the end of this month and into an election year also. Mr. Carvalho: We did talk about that. I do not want to say one (1) week or two (2) weeks. I want enough time so our team in our discussions, we feel a two (2) month period can get us to a place where we have something more manageable. Mr. Hooser: Okay. Thank you, Mayor. Mr. Heu, on your list of projected expenses that you had on the board, I saw two (2) full-time employees and a hearings officer; that would be the reoccurring personnel costs. Is that correct? Mr. Heu: Yes, although I do know that in some informal discussions that we had with the Prosecutor's Office, there were some concerns that there might be additional requirements. Mr. Hooser: On your projection that you had for us, I believe it was two (2) full-time and a hearings officer. Mr. Heu: Yes. Mr. Hooser: Okay. We need a hearings officer... there are five (5) entities so far that are impacted that we know of. We need a hearing officer for that? Mr. Heu: Well, it is not so much the number of entities that we are dealing with; it is the number of complaints that is going to drive that and the type of complaints. Mr. Hooser: Okay. You mentioned one hundred twenty-five thousand dollars ($125,000) is needed as of December 1, 2013. That is what you say in your report. Mr. Heu: Right. Mr. Hooser: Of course, you are aware that the Tax Office and the Department of Finance has issued a letter saying that the companies, because of the non-payment of property taxes on State leased land now owe the County one hundred thirty-one thousand dollars ($131,000). You are aware that money is available. It is not budgeted for. In theory, that money is sufficient to pay these costs. You are aware that money that is not budgeted, I guess, is the question? SPECIAL COUNCIL MEETING 17 OCTOBER 8, 2013 Mr. Heu: Yes. We were not trying to determine where the funds would come from; we are just saying that these are the costs. However we all choose to deal with that is how it gets done. Mr. Hooser: I think you did allude to not knowing where the funds are going to come from. Mr. Heu: I do not believe I said that. Mr. Hooser: Anyway, I want to make it clear that there are funds available that are not budgeted now directly from the entities being regulated that may be available if the Administration chooses to use for that initial cost. Mr. Heu: Sure. Chair, if I could just address something that Councilmember Hooser previously asked. When you asked about being uncertain as to the complexities that we are seeing with the current Bill; number one, I would say that in the section of the Bill that covers "disclosure," I think you guys did a really good job of being incredibly specific in terms of what you are looking for, and I think that is helpful as we look towards implementation. However, in some of the other areas, it is a little more wide open and subject to a lot of interpretation. Mr. Hooser: There are only two (2) other areas; one is the study and the other are the buffer zones. If you say that disclosure is pretty straightforward, I want to hear you say yes. Mr. Heu: I think it is pretty detailed. Mr. Hooser: I think most of us would acknowledge that the buffer zones need some more work. Mr. Heu: Right. Mr. Hooser: I think we are prepared to make that work. The only other area is the study and this County has done plenty of studies in task forces and workshops in the past. I guess that is what frustrates me because I do not see the need for big science when all we are really talking about is clarifying the buffer zones. We are only talking about five (5) companies that need to have enforcement and we have got two (2) full-time people that you are proposing that I think would be more insufficient. Mr. Heu: Yes. I guess when I am talking about complexities, I am saying that we are dealing with a subject matter that we are not currently familiar with. As an example, if there is a complaint that comes in relative to spraying within a buffer zone; how do we determine what was sprayed? I think there just needs to be a lot of training. I think there needs to be a lot of thought in terms of how we are going to approach that sort of thing. When I talk about complexities, I guess I am bundling in the technicalities of it all. Mr. Hooser: I think that is one reason, too. As the Bill is written now, it says "all pesticides," so we would not have to determine which pesticide because it is all pesticides. Like most legislation and most bills, I think we would count on the companies who offered to voluntarily do this to comply with the SPECIAL COUNCIL MEETING 18 OCTOBER 8, 2013 law. The start date of the law is six (6) months from approval. I think that would give some time for the Administration to gather itself together. It is not uncommon for laws to be implemented without the rule making complete. I think in most situations that is the case. If during that time period it was discovered a need to amend the law, that would even give the Council time to amend it further between now and six (6) months from now, if that was the case. Will that work? Mr. Heu: I guess we just see it a little differently because we can see the type of interest that has been generated in the community relative to this particular Bill. I think there would be strong calls for action the minute the Bill was approved. All we are saying today is to let us have an understanding of that because that is going to come our way, and let us be prepared for that. Mr. Hooser: Thank you very much. Thank you, Chair. Chair Furfaro: I am going to go to Councilwoman Yukimura, and then I will go to Mr. Bynum. Ms. Yukimura: Thank you, Chair. Thank you, Mayor, Gary, Mauna Kea, and Steve. I do appreciate that you are here today to engage in the conversation about this Bill. When I introduced both the Shoreline Setback Bill and the TVR Bill, the Administration was not part of the discussion even though we invited them to be part of it. It was extremely difficult to write a law without having the people who would be enforcing it present and talking about what their needs would be, what their viewpoints were, and the things that we had to consider in drafting the laws so I appreciate that you are here today. In proposing the amendments that Council Vice Chair and I proposed, we were really trying to make the Bill simple to enforce. I will tell you that if you were to add the moratorium, permitting, and ban of open-air back in, you would not believe the kind of enforcement issues that would become apparent, so this is a simpler enforcement issue right now as we look at it. I agree that we should really make it a good Bill that is easy to enforce and start there. In the week between the passage of the amended draft and today, I have been looking carefully at the provisions because I am not comfortable with all of them that are there. Right now, the one hundred (100) feet from residences... or five hundred (500) feet from residences... until you can do a soil conservation plan, I am really worried about that although we have been trying to research the Natural Resources Conservation Service which advises companies on soil conservation plans, and their doors have been shut due to the Federal furlough. In fact, even their website has been shutdown. That is how difficult it has been to think through these pieces. I have been out in the fields trying to look at distances. Actually, where you measure from; if there is a property boundary and a field boundary, where you measure from is going to be an issue. Do you measure from the farthest point to the farthest point? That is where I know rules and regulations come in. People think that a water truck is a pesticide, so if there is a water truck in the area and people are not real familiar, they will call and say, "I have seen somebody applying pesticides in a buffer zone." It might be a water truck or it is fertilizers which are sprayed also. There situations where there will be false reports, either intentionally or unintentionally, that will have to be processed. I think there are issues that we have to look at. SPECIAL COUNCIL MEETING 19 OCTOBER 8, 2013 On you are issue about the rules and regulations and hiring a consultant— I do not think you need a consultant. I think given all the research that Mauna Kea Trask has done, he has pretty much become an expert in the area of both pesticides and processes because he has been a key researcher. I want to commend him for the amount of work he has done on this, and he has become kind of our in-house expert on it, but it does mean his time will be allocated to that if he is the one who writes the rules so there are issues of staffing that I acknowledge if we keep it simple. One of the things that we were looking at, right now the Bill is written that there shall be no pesticide use within the buffer zones whether it is one hundred (100) feet or five hundred (500) feet. Vice Chair, can I mention what we have been thinking about? We have been thinking that maybe we should amend it to say "no commercial crops" within one hundred (100) feet or five hundred (500) feet because that would make it real clear; you can just almost eyeball it. Now, they have this fancy little instrument that can actually measure site by some kind of visual take instead of that little wheel that you roll to measure distances. An inspector could just learn how to use that and just visually see where there are crops or no crops. Now in discussions about this, the companies would have to figure out a cover crop because nobody wants bare land. They would need a cover crop that does not need pesticide spraying. In order to manage that space within, but it would be visually more enforceable; easily enforceable. There is a question of if you say "no pesticide use within the buffer zone" and somebody says there has been drift in the buffer zone, is that use of pesticides? There are these issues. For the solution we are looking at, is that something that would be easier for you to enforce? Mr. Heu: Yes. Councilmember, I feel like I would be speaking out of school on that particular issue. I am not sure if there have been discussions regarding your proposal with the companies that would be affected and their ability to do that and be able to actually manage that in terms of what you are proposing with the cover crop. Ms. Yukimura: I have initiated some conversations with them to see what their issues would be if we would change the amendment to ban "commercial crops" instead of ban "pesticide use," with the assumption that if you do not have crops there, you do not have to use pesticides. Mr. Heu: Relative to the more technical aspects of how we determine that that is a valid buffer zone distance— again, we probably have some technical people who could provide better input than the Mayor or I on that. Ms. Yukimura: Okay. My other question is about the Department of Agriculture because, Mayor, you are saying that you want to work with them? Mr. Carvalho: Yes. Ms. Yukimura: Prior to passage of the amendments that Vice Chair and I worked on, we spoke to the Department of Ag, asking them if they would enforce any buffer or disclosure requirements that the Council passed in an ordinance because they are more qualified in terms of trained personnel; although the number of personnel is an issue. They are more trained. They have set procedures, so we thought that this kind of intergovernmental cooperation might be a good solution. As I mentioned at our last meeting, they said they did not want to because of the lack of personnel, but they also left an opening to us inviting us to submit a draft memorandum of understanding (MOU) to propose that they could SPECIAL COUNCIL MEETING 20 OCTOBER 8, 2013 review. We have been so busy that we have not actually worked on an MOU... actually, I think our Staff has, but we have not had a chance to review it. Is that the kind of cooperation you are looking at? Mr. Carvalho: Like you just said, you folks have been meeting and I wanted to share with you that I just met with them yesterday to follow through and get the commitment that what is before me, based upon the information we have received on Tuesday. There is a commitment. To talk about the specific areas, I am going to say that I have a commitment from the Department of Agriculture with the support of the cabinet members to work on this particular issue. Ms. Yukimura: Okay. There is a request, both from the legislative body and from the Mayor now, before the Department of Ag asking them "will you help us?" Mr. Carvalho: Right. Ms. Yukimura: Are you thinking that in two (2) months between the Administration and the body that has to pass the law, that there might be a way to get some agreements about enforcement? Mr. Carvalho: I am hoping. I can say six (6) months or a year, but I am not going do that. I thought maybe in our discussions, when we sit together and sort through all of this, I think we can come up with something that we can at least get to a place we can talk about with the discussions that I have had. You folks have had that as well. Ms. Yukimura: Well, the discussions will have to get pretty specific. Mr. Carvalho: Yes. Ms. Yukimura: This body or some representative needs to be involved in that if we are going to be talking about the exact provisions that have to be either amended or continued. Thank you. Chair Furfaro: Mr. Bynum, you have the floor. Mr. Bynum: Good morning. Mr. Carvalho: Good morning. Mr. Bynum: Thank you very much for being here. Gary, you used an expression a minute ago— "speaking out of school." Did I hear that correctly? Mr. Heu: Yes. Mr. Bynum: I just want to say that was helpful for me because what I see in the last few weeks is a lot of "speaking out of school" from both sides of this issue. I very much appreciate you being here and this presentation. I think it is thoughtful and understandable and you are expressing logical concerns. I see it as helpful and as kind of being a "worst case scenario." SPECIAL COUNCIL MEETING 21 OCTOBER 8, 2013 That is what you should present to us like "if we have to respond to complaints" and "if we have to enforce criminally." Those are worst case scenarios, right? I really want to use the time I have to help us work closer to our common goal of effectively doing this. First of all, I really appreciate this flurry of activity like talking to the Department of Ag and the Governor because that is what I have been trying to do for six and a half (6.5) years. Are you aware that the leadership of the Department of Ag has been hostile toward these provisions in public record? Bills that the Mayor has testified against, the Department of Ag has testified for. Are you aware of that history? Mr. Heu: Not specifically, no. Mr. Bynum: I will move on from that. Have you spoken to the seed companies in this flurry of activity about these implementation concerns? Mr. Heu: I have not personally talked to the seed companies. Mr. Bynum: If I asked "what are the two (2) most common practices of the seed companies here" and "how are they using our land?" Are you aware of how they use their fields and subplots, for instance? Do you guys know about that practice? Mr. Heu: There are probably people within the Mayor's team that know of that practice. Mr. Bynum: Okay. My understanding from the companies themselves is that they primarily do two (2) things here on Kaua`i; research on different iterations of genetic seed, and they do that by taking a big plot and diving it into many subplots, and each one is an experiment. They also have larger plots where they grow parent seed. Those are the two (2), but what we know from this data is that these subplots... they keep very detailed records of every filed they spray, which subplot, what day, and how much. I believe they are meticulous on those records. I do not think enforcement is that complicated. If you have a five hundred (500) foot buffer— we do not know how this is going to turn out, but let us say it is five hundred (500) feet from residents. I just heard a proposal where we are going to say that you do not grow any crops. I have never proposed that. We say to Kaua`i Coffee to "kill all your coffee trees that are thirty (30) years old if they are within five hundred (500) feet of the ocean." No, we are going to say "do not use pesticides within five hundred (500) feet of the ocean." There are alternatives. People can do manual labor and take the things out. Yes, it costs a little more. Let us look at those things. In terms of enforcement, the disclosure is already here. If we are assuming that the provisions that passed out of Committee pass, they are going to be telling us on an ongoing basis, in advanced even, and in post-disclosure of what they are spraying and where. They would have to actually have to falsify their records and commit fraud to create a situation where they violated this law. They would have to doctor their own records. These are business people. They are not going to do that. I believe, and I would like you to look at those, that their practices are so different and you have to look at what they are doing. If they gave us those records and disclosure, determining whether they sprayed in the buffer zone or not will be simple, right? It will be very simple unless they go out there at night, falsify their records, and do it, and then that would be worst case scenario where they purposefully went out to try to falsify. They would not only be lying to SPECIAL COUNCIL MEETING 22 OCTOBER 8, 2013 the County of Kaua`i, but lying to the Environmental Protection Agency (EPA) and the United States Department of Agriculture (USDA). They are not going to do that. I have known most of these people for eight (8) or ten (10) years. I would really ask you to look at that. Is it really as complex as it appears if you look at their practices? The disclosure will help us do the enforcement pretty simply in my mind. Please look at that. Mr. Heu: Can I respond? I think that is a really good point. As I was going through that section of the proposed Bill, again, as I mentioned to Councilmember Hooser, it is pretty specific. I think it is all good as long as people comply, but that is what enforcement is all about. If we use your example and apply it to any given law that is on the books, it would all be good if everybody followed every step of every law but we know as a practical matter that sometimes that just does not happen, and then we are on the hook for the enforcement Mr. Bynum: I want to follow that line. The County has dozens of laws with similar civil and criminal penalties that we rarely, if ever, enforce. People comply with most laws. There is a law that says "do not drink too much and drive." I comply with that but we have enforcement for people who do not. Mr. Heu: Exactly. Mr. Bynum: We do that enforcement because we know people routinely break that law. We have a whole bunch of zoning codes that we did not enforce for years until recently, right? We have those laws out there because most contractors are going to follow the law and we have inspectors to do enforcement. In this instance, we will have data and records to do enforcement. We will know if they have done so. It will actually be quite simple, unless we assume that these major corporations are going to be flagrant law violators and falsify their records. I would ask the seed companies to tell me if what I am saying is not accurate, that they are not already keeping records that will allow us to simply determine whether they have sprayed in whatever buffer limits. I agree with JoAnn that if the moratorium was in there, we would have more complex issues. I wish it was and I wish we were dealing with them, but that is not what we are dealing with today. I want us to work these things through. I also have a process issue, which is if we are going to keep working on this Bill, it should happen in Committee. That has been our process. I was fine with working out... I have amendments that I proposed in Committee because I was not a member that never got considered. Some of those ideas got incorporated in other amendments and I appreciate that because that is collaboration. Do you acknowledge that we have dozens and dozens of laws on the books that we do not routinely enforce because there is not a big compliance problem with them, generally speaking? They are there in case somebody does something outrageous. Is that correct? Mr. Heu: Again, I think that is why we brought up the one consideration which is what is the legislative intent in terms of how we approach enforcement? Is it on a complaint basis only? Is the expectation that we are going to go out there proactively to deal with this? Mr. Bynum: That is the next thing I want to go into. This Bill, in no way, intends to relieve the Department of Ag or Department of Health of their responsibilities. If somebody feels that they have been exposed to drift, there SPECIAL COUNCIL MEETING 23 OCTOBER 8, 2013 already is someone to respond. This Bill is not about the County of Kaua`i responding to things that Ag... it is about putting buffers and protections. There is a difference. This assumption that I see around the table that we are going to have to enforce complaints on a routine basis... most of those things that people complain about are already the responsibility of the Department of Ag and the Department of Health. Is that correct? Mr. Heu: I believe so. Again... Mr. Bynum: Whether they fulfill those responsibilities or not is a different discussion. Mr. Heu: Right. I think it would be naive for us to think that we implement this and that whatever agency is responsible for oversight and enforcement is not going to be fielding a lot of calls. Mr. Bynum: I am saying if somebody feels that they have been exposed to drift— that is not in the Bill and that is not in our enforcement expectations. Our enforcement expectation is if we pass a Bill that says "do not spray this area," you will not. If somebody sprayed some other area and there is an allegation of drift, that is the Department of Health or the Department of Ag's responsibility. There are great people out there. I had a very long conversation with Thomas Matsuda who testified here... mid-level manager and that guy is doing best he can to do his job. He is a good employee, but just does not have enough resources to do it. It is at the leadership level where elements of the Department of Ag have been hostile to the County of Kaua`i over the last six (6) years. We have funded a study that they messed up. Chair Furfaro: Excuse me, Mr. Bynum. I need to have it posed as questions. Mr. Bynum: I was listening to JoAnn have similar dialogue and... Chair Furfaro: She ended hers with questions. Mr. Bynum: I will continue to pose questions. Chair Furfaro: Thank you. Mr. Bynum: Will you look at whether the disclosure that is required in this draft of the Bill and talk to the seed companies about the records that they keep? That will go a long way to alleviating your concerns about the enforcement of that portion. If we were here talking about open-air testing and other elements that have currently been removed from the Bill, we would have to have a more rich dialogue about enforcement but for what is left of the Bill. I do not see these costs. Were you consulted with the move from Public Works... that JoAnn and Nadine proposed moving it to the Office of Economic Development? Mr. Heu: I personally was not consulted. We became aware of that when the amendments came over. Mr. Bynum: I think it was in Public Works because they have lots of personnel experience with doing environmental assessments and SPECIAL COUNCIL MEETING 24 OCTOBER 8, 2013 coordinating contracts with consultants around environmental type studies. Is that correct? Mr. Heu: Public Works? Mr. Bynum: Yes, Public Works. Mr. Heu: We could possibly ask Larry Dill who might have a little more insight than I do. Mr. Bynum: I said publicly that I thought there was strong leadership in both Departments and I had faith in both Departments to administer this. Pragmatically, I think Public Works has more experience. I would assume that regardless of which Department is Keith Suga, our Capital Improvement Projects (CIP) Coordinator, would be part of the team that would help do this? Mr. Heu: I am not sure what the nexus would be there. Mr. Bynum: It is a CIP project. If we do a study... what is the difference between building a road and doing landfill studies? They are administrative studies. Mr. Carvalho: We will decide... Chair Furfaro: Excuse me, Mr. Bynum. I will give you the floor after 10:30 a.m. because we have to take a break here. Mr. Bynum: Thank you. Chair Furfaro: You still do not want the floor? Mr. Rapozo: I guess he waived his time. Chair Furfaro: Okay. We are going to take a break now for ten (10) minutes. There being no objections, the meeting recessed at 10:27 a.m. The meeting reconvened at 10:44 a.m., and proceeded as follows: Chair Furfaro: I am going to call this meeting back to order. I am going to make a housekeeping announcement here. Over the next ten (10) minutes, if you do not return to your seat during the break, my Staff will allocate your seat to the waiting list down below. That is in the next ten (10) minutes. On that note, we are going to start the meeting again. I will recognize the Vice Chair. Mr. Bynum: I thought I was going to have the floor. Chair Furfaro: We are going to go around again, Mr. Bynum. Ms. Nakamura: Thank you very much for being here and for your presentation this morning. I wanted to ask a question about the funding that SPECIAL COUNCIL MEETING 25 OCTOBER 8, 2013 is needed as of December 1, 2013. How do you come up with one hundred twenty-five thousand dollars ($125,000)? What line items are you assuming? Mr. Heu: In other words, I think what you would do is if you take a look in the "needed" column to the far right, and you see when the need would come in, and then you sum up the figures in the associated column. Ms. Nakamura: Okay, so that would be for the consultant for the joint fact finding study, the EPHIS, and then for the consultant to do the rulemaking. Mr. Heu: Yes, that is true based on what is currently identified in the Bill. Ms. Nakamura: Thank you for clarifying. This table is very useful and I just wanted to say that in your text, you also talked about the need for equipment and for training, but I do not see the numbers in this table. Mr. Heu: I think there are investigative tools... four (4) down; fifty thousand dollars ($50,000) and the training is down at the bottom for fifty thousand dollars ($50,000). Ms. Nakamura: Okay— fifty thousand dollars ($50,000) for training and fifty thousand dollars ($50,000) for investigative tools. Mr. Heu: Yes. Again, that is our best guess at this point in time. Ms. Nakamura: Right. I heard some Councilmembers sort of discounting the need for enforcement of the buffer zones. Is your feeling that that one staff would focus on enforcement or is your desire to have the State do that portion of enforcement? Mr. Heu: If we are answering very honestly, we feel that there are things that are identified in the Bill, including what you just mentioned, that really should come under the purview of the State. We believe that they have the authority to do that via their rulemaking process. I think that is part of what the Mayor was alluding to when he says that we would respectfully ask this body to consider a deferral to provide time to enter into a truly meaningful discussion with the appropriate State entities, including the Governor, the Department of Agriculture, and the Department of Health. Ms. Nakamura: If the Governor is saying that he would like to work with the Legislature to restore positions in the Department of Ag and Department of Health that were cut over the years because of the recession and if we are able to restore those positions, then is the idea that the County would not have to hire additional enforcement personnel? Mr. Heu: Yes. I think that if you look at the provisions of the Bill as it exists now and you ask, "Can this be accomplished either via rulemaking at the Department of Agriculture, Department of Health, or via legislation at the State Legislature?" We would love to see that happen. I think everybody sitting around the table would love to see that happen. There is a question as to whether that would really happen. SPECIAL COUNCIL MEETING 26 OCTOBER 8, 2013 Ms. Nakamura: The only rub here is that we are not going to know until the end of the Legislative Session if those positions will be created through funding within those two (2) Departments. That kind of coincides with our own budget making process. When does the Legislature conclude? May 1st. That will give us the feedback as to what we need to include in our budget, so if they include three (3) enforcement positions, which I think have been talked about that might service Kaua`i, then would that be the thing that we do not have to put it in our budget come March 15th? Mr. Heu: That would be ideal. Mr. Carvalho: That would be the overall idea. Ms. Nakamura: Then our budget making is not really complete until the end of May. At that point, let us say the end of May we know what the State is going to do or we supplement by putting that position in your budget, and then it takes about five (5) to six (6) months to hire someone. Mr. Carvalho: Correct. Ms. Nakamura: Then to go through training because whether it is State or the County, we have the same fiscal year and the funds are not going to be available until July of next year if funding is made available. What I am thinking of is that it will take from July to the end of January to actually hire the inspectors. Then to train the inspectors would be another two (2) to three (3) months. Really, my thinking is that we can begin enforcement, best case scenario, April 2015 to actually have the funds secured. There might be some snickering in the crowd, but I want to let you know that when I put funding in for our first Transportation Planner for the County of Kaua`i, it took over a year to hire. It was a difficult process. The first time we hired a position, similar to this case— it would be the first time we are hiring an enforcement position and we wanted to hire the best person because once they are in the civil service system, it is very difficult to get them out, so you want to go through a very good process. I just wanted to say that because I heard some snickering in the crowd. Realistically, I am thinking that to really begin enforcement, we are looking at the beginning of the April 2015. During that whole time of the hiring process, you can amend the State or County rules and regulations, and go through the Small Business Regulatory Review Process. I think that is all the questions I have for now. Mr. Carvalho: I appreciate the timeline that you laid out because it kind of gives us a reality of what the timeline would take, so that is a good thing. The second thing based upon what you just said; I can see our role in this particular scenario with the State taking on the lead and we providing a link on the Office of Economic Development's website that will take people to the information that they would need— just a small example, but I think it is a big thing. That is the kinds of discussions of where we can fit in to assist and to assure that the people, should they choose to, have the information that they need. That is just one small example I wanted to share. Ms. Nakamura: Thank you. Chair Furfaro: Mr. Rapozo, you have the floor. SPECIAL COUNCIL MEETING 27 OCTOBER 8, 2013 Mr. Rapozo: Thank you, Mr. Chair. Thank you, Mayor and Gary, and your team for being here today. I really appreciate the presentation. I think this is the first time we have actually had the opportunity to look at a true analysis of what this entails. I heard the snickering, as well, with the timeline that Councilmember Nakamura put out. Unfortunately, that is the reality. This is not something where we can just snap our fingers, pass the Bill... and I mentioned this several meetings ago. I also mentioned several meetings ago... I am feeling very satisfied now because I heard it from several Councilmembers that we should approach the cooperation with the State. I got snickering when I said that as well. In your discussions with the Department of Agriculture, Mr. Kokubun- unfortunately, I did not get a chance to speak to him because he was traveling when we went to see the Governor, but was there any discussion regarding 149(a) and the opportunity or willingness to enter into an agreement under 149(a) that would give the County the authority to enforce the State's pesticide law? Was there any discussion with Kokubun about his willingness to work with the Counties in that sense? Mr. Carvalho: Councilmember Rapozo, it was just more that they are committed to working with our County on the menu of opportunities. Mr. Rapozo: So it is more generic? Mr. Carvalho: Yes, and then gearing it towards the commitment of assuring that once we get to a place where we can really come out with things that we really need, that the support was there. Mr. Rapozo: Okay. I appreciate that. I will ask if it is possible as we go forward, that we would try to concentrate... I know we did ask our Staff to try to prepare a draft MOU in compliance with the State law that we could get the State and the County on board together soon, and that takes a signature between you; the Mayor, and possibly the Department of Ag Chief. I do not believe that would require any approvals by us here on the Council. I think that is purely an administrative action that could happen within hours if the State decided that is what they wanted to do. I think if we started off with that agreement, this memorandum of understanding, and when all of these other moving parts are moving, we can start the dialogue with the State at least to have the County start to work on enforcing Chapter 149(a). I am assuming that it is your intent to work with the State to— and I think I heard it a couple of times today; change the Administrative Rules. Is that something that you would be maybe offering some suggestions? Mr. Carvalho: I want to say that it is our intent that we work together to get that done, yes. Mr. Rapozo: I understand that and I really appreciate that because I have a lot of input what I think should be in the rules, but at the end of the day, Mayor, it is really going to be your Administration's call but I appreciate the offer to work with us, and the community as well. I just want to clarify what I am hearing to make sure I understand your request because I can tell you that I am not inclined... I was not inclined to support a deferral today because I do not think the community should be put up to more time that... we want to get this community healed up. Mr. Carvalho: Right. SPECIAL COUNCIL MEETING 28 OCTOBER 8, 2013 Mr. Rapozo: Looking at your presentation today, I am just trying to find what the best solution is. I think you offered a very viable solution and I will serious consider this deferral because of the timeframe... basically, the roadmap that you have outlined today. I just want to get your general feeling based on— I know you said that the Department of Ag was committed. Do you think that they are committed to the level that they would allow the County to work with them in some agreement fashion? Mr. Carvalho: As I sit here before you all, I am going to say "yes." This is such a critical and very sensitive issue for our island, so as leaders, we need to really sort through this and think about what we are doing, and what the best result is. If we hold everybody with their hats on, accountable, to each and everyone's responsibility and mean it, then I think we are going to have an opportunity to really do good things. Mr. Rapozo: I agree. I guess I would think that the State would be fools if they would not accept the County's offer to help in some way to reach a desirable goal. I am hearing that it was pretty much a broad discussion and not real specific into what we can and cannot do, but that is fine. I guess I am hearing from you that that is the plan to sit down with them and... Mr. Carvalho: Yes. If anything, I went through some of the top issues, but not specific, so the commitment is there. Mr. Rapozo: Thank you, Mr. Chair. Chair Furfaro: Mr. Kagawa, you have the floor. Mr. Kagawa: Thank you, Chair. Thank you for your presentation, Mayor and Gary. I think Bill No. 2491 is the buffers and disclosures in that Bill... the main reason why those are in there is because of the pesticide- laden dust and the spray drift. I think that is the key, but who is going to do those segments? Is the State Department of Health still going to be required to oversee that component or is the County planning to have personnel try and determine what is in the dust and if homes are being affected by spray drift? To me, I think it is the State's responsibility. They have the medical experts, epidemiologists, and so to determine health effects. Tom Perry talked about the Waimea Canyon incident; that was clearly the State Department of Health who should have stepped in and shut the school down or something. It is to that magnitude that he talked about. Why is he here at the County telling us to oversee that component? It is the State Department of Health and State Department of Ag. Again, they are here. I guess they have lost faith in the State Department of Health, but are we working with the State Department of Health as well? I see the State Department of Ag mentioned in suggestions to work with them, but I think the State Department of Health is really the key component to determine the pesticide-laden dust and the spray-drift. Mr. Carvalho: We talked briefly, but as of recently, it was more the Department of Ag. What I am saying is that we have to pull everybody who is responsible to the table and get to a discussion piece. Once we do that, I believe that in holding everybody accountable but not pointing fingers because this is our part in this, too, so everybody is working hand in hand. It sounds kind of sounds like "yeah right," but it is not "yeah right." This is a situation that has totally gone back and forth. Anyway, yes, we have to figure out who should be at SPECIAL COUNCIL MEETING 29 OCTOBER 8, 2013 the table from all parts, hold everybody responsible, including us, and see how we can sort through this. Mr. Kagawa: Regarding the State Department of Ag, we had them here on a couple of occasions, and I think a large part of their inspection process is checking that they are licensed applicators for the restricted use. So, just checking their license and they do not really watch what they spray or what they do. They do not check wind conditions while they are spraying, but I think some of what the local residents want is some assurance that when there are strong winds, they will not spray on those days. It is just like us at home. We use Roundup periodically and if it is windy, we will not use it because for one thing, it will not work as well because most of it will miss the leaves. The second part is that we want to be courteous of our neighbors. I think that is some of what we want. We want the Department of Ag to do more than... right now, they feel like they are doing their job and doing what is required of them per label from EPA and whatnot, but I think some of what is in this Bill and what the local residents want is some assurance that they are, in fact, following the label, not spraying on windy days, not spraying closer than they should be next to running waters, or what have you. I think we had a feeling that the Department of Ag felt like they were doing enough or even more than enough, but actually, there is a sentiment of people of Kaua`i that they should be doing way more. I do not know if you had those types of feedback from Mr. Kokubun that there is some disconnect with what we want here and what they are feeling at the State. Mr. Carvalho: Yes. It is like showing up to a basketball court to play football. The rules and everything— you are coming into a basketball arena to play football; that is not going to happen. But the rules— we have to get on the same page. And like you said about holding everybody accountable versus just willing and able to support what we need do with the bigger picture of all the people who are either emotionally just kind of challenged on this issue and are afraid, and at the same time, trying to work on the other side of it with the business part of it, yes. Mr. Kagawa: The last part for me is that I think the biggest question that needs to be answered is "how much of these health complaints or accusations are really fact or fiction?" I think what we need is we need the Department of Health to determine if the medical evidence correlates to the seed companies use of pesticides. That is another one where we need to tie that in because anybody can say that they got something from that, but I think we need to get that link of proof before we say, "We do not want you here." We have to have the evidence. I think that is what we have to work to and that is another area where the Department of Health needs to step up. I think they need to even step up more than the Department of Ag. Thank you. Chair Furfaro: Mr. Hooser. Mr. Hooser: Thank you, Sir. I think what is lacking is... what I feel anyway is that I think many people feel there is a sense of urgency. Have you met with the physicians at Kauai Veterans Memorial Hospital (KVMH) who submitted testimony saying that they believe that there is higher level of birth defects in newborns in their hospital than there is other places? Have you met and talked with them or read their testimony? Mr. Carvalho: No, but I have talked just in general. SPECIAL COUNCIL MEETING 30 OCTOBER 8, 2013 Mr. Hooser: Okay. You have not spoken to Dr. Evslin? Mr. Carvalho: No. That is why we want to bring them into the mix of discussion, too, when we are talking about getting all people to the table. Mr. Hooser: This is urgent. We have physicians who are delivering babies who believe there are birth defects more in their community than other communities. In my opinion, it is urgent. We do not have eighteen (18) months or two (2) years to wait for if maybe or maybe not the Legislature is going to do something. We do not even know what they are spraying. I appreciate the need for dialogue; I sincerely do. But many would say the time for dialogue is past. We need some action, and then we can have dialogue, too. We are talking about two (2) efforts; doing the Department of Health's job and the Department of Ag's job. I agree that we should push on the Governor, get them to the table, and try to get them to recognize that we need funding, et cetera. As was said earlier, just because the Governor, the cabinet level, and all good people go to the table, it does not mean it is going to happen. We need to Senate and House to pass it, and Governor to approve it, and then it is years... we have two (2) positions now that are funded that are not filled. We have inspections that have not been done in years. We have that problem with getting on the job. I agree, we should support that and push, help, and do whatever we can to get them to do their job. In the meantime, I think we have a responsibility also. This Bill calls for disclosure. We can have disclosure in a month if we all said "yes." We would have disclosure of what is being sprayed in our community... if the Council says "yes" and the Mayor says "yes"— we can have disclosure immediately. We do not have to wait eighteen (18) months. We do not have to hire anybody. We would have disclosure. We would have the right to know. The State is not contemplating what I know of... there is no law that says they have to disclose, so we are doing that. The same goes for the buffer zone. It is true that we can charge these companies for the regulatory burden to regulate them. Is that not true? I have a copy of the law here if you would like to look at it. Section 46-1.5, number eight (8) says, "Each County should have the power to fix the fees and charges for all official services not otherwise provided." We charge permanent fees for houses and everything else. We can charge these companies to provide the inspections. They can have a Cadillac, Oldsmobile, and whatever they want— whatever we want, they can pay for it. They are some of the largest companies in the world. We can charge them for it. Is that not true? Mr. Heu: If we legislate that. Mr. Hooser: Yes. We have the legal authority to do that. Is that yes? Mr. Carvalho: If we legislate that. Mr. Hooser: Right, but the County has the authority to do it. This is in today's Civil Beat. There is only one employee assigned to review pesticide inspection reports. She says she has not gotten around to reviewing most reports in several years. The Department of Health has no program to test pesticide contamination soil, air, and water. The soil position on Kaua`i to monitor dust has not been filled in a year. The same Environmental Health Specialist, Department of Ag has reviewed only a handful of reports in past few years; seven (7) of seventy-two (72) investigations for 2011 and 2012. We need to push on that element, but in the meantime, I think what we are asking for with Bill No. 2491 SPECIAL COUNCIL MEETING 31 OCTOBER 8, 2013 and what the people are asking for is the right to know. We can make our own decisions if we know to a certain extent; the right to know and some modest buffer zones to protect schools while we figure this thing out. It would be great if the State would sit down, do a study, do an Environmental Impact Statement (EIS), and do all of the stuff for us. In the meantime, we have a process to do a study to determine the impacts. I do not believe that it is all emotion and all just fear. I think there is some reality here, but we do not know until we do the work, and we cannot count on the State. Mayor, do you support the disclosure provisions in the Bill? Mr. Carvalho: We said that before. Mr. Hooser: You support the provisions in the Bill for the right to know? Mr. Carvalho: In order to get things done, you need to build strong relationships. That is where I am at for me. I think at this point, I want to target what you said about being urgent; we are all urgent. This is an urgent matter for me, but at the same time, I do not want to go down the field ten (10) yards and have to go twenty (20) yards backwards because we missed one of the hash marks. I want to be sure that when we do this... because this is not just tomorrow, this is a major issue for this island. I want to make sure that we as a team, collectively— yes, we are going to take a little bit more time, but I am telling you that the relationships are important with the guys in the State, House, and us. I feel confident that if we take our time... I am not saying one (1) year or whatever, but we are trying to manage this. If you are going to ask me if I support... I think some of the discussions that I have had with some of the seed corn companies is that they are willing to look at buffer zones and disclosure. I said that numerous times, but there are bigger issues that we have to be sure that we come together on. I am hoping that we can get to that point with a deferral, so we can really manage this in a way that for myself, if you are talking to me as Mayor, I need to know. I need to understand. We need to make the decision together, but I need to understand for myself, too. I have been out there asking both sides. In one week's time, I have this Bill, which is okay, so we are trying to sort through that and give you the information of what our thoughts are laid out on the Bill itself, and then look at bigger picture of how to make this fit. That is it. Mr. Hooser: Thank you, Mayor. Thank you, Chair. Chair Furfaro: JoAnn, if you would like to go ahead, you have the floor. Ms. Yukimura: Thank you. I agree with Councilmember Hooser that I think disclosure could be done in a month. That was part of our effort to make the Bill easily enforceable. What we sort of figured out in our heads talking to Brandon and with the Director of Finance and Deputy's help, we talked to them about what the logistics would be. I think that part can be done. I think buffers are a lot more complex. Even while the Governor says he agrees with buffers, the work that we are doing now to try to figure out exactly what those buffers will be is what he is going to have to do, so whoever enforces it, I think that the work that we are doing is going to be useful. Mayor, I heard that you wanted a two (2) month deferral, which is what we are looking at right now, to see if we could actually hammer out some issues with the Department of Ag. As Vice Chair has detailed, there are ways to synchronize the finances and so forth. If that does not SPECIAL COUNCIL MEETING 32 OCTOBER 8, 2013 pan out, I guess I am thinking we would go forward with the Bill as finely crafted as we can and to make it as easily enforceable, and then go forward as the County, still keeping open to the Department of Ag's support as it unfolds, but not waiting forever for them to step forward if they do not. Is that the Administration's perspective of how that would unfold? We will do our best to work with the Department of Ag, but if they do not step forward, we are still going to try and move ahead with this Bill. Mr. Carvalho: I want to make sure that we have this time to sort through all of the information. At the end, we will regroup again and decide what the next steps will be. I feel confident that in my conversations, we can get some good, good information on the table to be able to move this. Ms. Yukimura: I think you are right. I think Councilmember Kagawa's point about the Department of Health is really key. They have already indicated that they are willing to work with us on this EPHIS, the Environmental Public Health Impacts Study that we are proposing. They are key to this because there is a State Epidemiologist and they do have background, so on that long-term study, they will be very important, as will the Department of Ag in helping us on the pesticides issues, as will EPA and all the sources that people have stepped forward. That is what this joint fact finding group will deal with, but not in the form of Committee meeting to Committee meeting. It will be a more focused group. Mr. Carvalho: There is the whole legal issue, too, so we have the whole package to look at. Ms. Yukimura: Yes. There is the legal issue. I hope that the Administration will see that probably the best way to settle the legal issue is to keep it confined to the place where we have the most possibility of prevailing and go to court, and see if we can establish at least that jurisdiction. If we cannot, i.e., if the court says that the County is preempted, then we would know where we have to go to apply the pressure. Let us find that out. One issue that Councilmember Hooser raised about setting fees to pay for the regulation; I think that is a good objective. The thing is that you still have to pass rules for that, so there is no way to get to this process of enforcement without setting the rules up. I think that is what you are saying we have to do. I would like to see it between six (6) months to one (1) year is what I think it is going to take to set up the rules. Thank you. Mr. Bynum: Thank you again for being here, Mayor. This is the kind of dialogue that is warranted with an issue like this and I agree with you. I want to stay moving forward. I want to say that agree with Councilmember Hooser that there is a sense of urgency and disclosure, and buffer zones can easily, in my opinion, happen quickly. If it takes us more than a month to establish disclosure and buffer zones, then I do not believe we are doing our job. Information is what this is all about. All of a sudden, everybody is getting this information; that is great. Unfortunately, as I have gotten additional information during the last six (6) or eight (8) weeks, it has brought up deeper layers of issues that our County has to deal with related to this that are going to be followed-up in other ways. Buffer zones— let us assume for a minute... the Bill that is moving forward out of Committee does not have an open-air testing ban, moratorium, and those things that really would be more complicated to enforce and to clarify, but buffer zones are clear. Let us assume for a minute that we leave five hundred (500) feet from a home. We know from data that we got from a Federal Court order was that they SPECIAL COUNCIL MEETING 33 OCTOBER 8, 2013 are dividing the fields into little pieces and they are keeping very accurate data. If you had a home right here, and these fields are divided, the data that they already collect will tell you when they sprayed, what they sprayed, and how much they sprayed. If disclosure is happening, we know where those fields are and we know what the subplots are, it will easy for the industry to keep those records in the buffer zone. We can get the buffer zones going, and we should, right away. I agree with Councilmember Nakamura in her timeline when there were snickers, that to get the positions in place and all of these things done will require that much time. We all know how that works in Government. The State, all of a sudden, is expressing an interest when they did not very actively express any interest of addressing these issues for a long time. Do you recognize that we can do the buffer zones quickly? We do not need somebody out there to see it. They are going to give us the data. It is fairly straightforward. Why would we not proceed with that? The study is going to need a lot more work, but the Councilmembers have put it in the Bill in a form where it creates a process to work out the details. For buffer zones and disclosure, we can move now easily. Do you understand that? Mr. Carvalho: I am hearing you; I am just concerned that... Mr. Bynum: I already asked you to look at those issues. Are you aware of this data that we received from a Federal Court order about Pioneer's activities? Are you aware of that data? Mr. Heu: I am not personally aware. Mr. Bynum: Have you read Hector Valenzuela's paper on the health risks on Kaua`i? Mr. Heu: I personally have not, Councilmember. Mr. Bynum: Have you read the American Academy of Pediatrics paper that Dr. Evslin has presented around the community? It has been available for weeks. Mr. Heu: I have heard this testimony, but I have not read his paper. I am not.certain what the relevance is in terms of this discussion of how we move this Bill forward. Mr. Bynum: I just need to know if our leaders are aware that we recently found out that they are spraying huge quantities of pesticides almost every day. Are you aware of that? Mr. Heu: I have heard that. I have read it. Mr. Bynum: Are you aware that the companies told us for years that they did not do any practices differently than other farmers? Other farmers do not spray pesticides two hundred forty (240) days a year. Other farmers do not spray eight (8) pounds per acre. There is no justification for that. We know that now. That is the secret that was kept from us. We can say "do not spray that quantity and that frequency within five hundred (500) feet of my house, please." Now, I showed the maps. Did you see the maps that we made that shows that it is not going to impact ninety percent (90%) of their land. The vast majority of their land will still be available to them, unimpaired. Why are they not just stepping up SPECIAL COUNCIL MEETING 34 OCTOBER 8, 2013 and say that they will voluntarily comply with these five hundred (500) feet? The massive majority of their land will not be impacted. Mr. Carvalho: I believe we can work with the seed corn companies and all of our constituents to come to a place, like you, Councilmember Bynum, that we can all understand how complex this is and how we can really address it, and get to a place of disclose and buffer zones whether it is five hundred (500), two hundred (200), or one hundred fifty (150). I visited just to see for myself, so I think we are all trying our best to get educated as best we can and get to the place... Mr. Bynum: I appreciate that, Mayor. Mr. Carvalho: I hear what you are saying... Mr. Bynum: If you have not even read Hector Valenzuela's paper... Mr. Carvalho: Okay... Mr. Bynum: If you have not listened to what Dr. Evslin or Dr. Berg... Mr. Carvalho: I have been out there talking and asking, and that is point blank... Mr. Bynum: I am glad you started. Mr. Carvalho: I have not just started; I have been out there. Mr. Bynum: You told us several times for a week... Mr. Carvalho: I have been out there with our people. That is my way. Mr. Bynum: Mayor, I appreciate that. I do not want to get into an argument with you. Mr. Carvalho: I am just saying that do not tell me that I have not been out there. I have been out there asking questions and trying to educate and figure out what is happening on our community on both sides, so when we as leaders come back, and we have the information we need and the connections we have to make. That is all I am saying. Like you, you are passionate; I am passionate, too. Mr. Bynum: And we are going to work this out. Mr. Carvalho: We are going to work this out. Mr. Bynum: I know you are sincere. Mr. Carvalho: And you are sincere, too. SPECIAL COUNCIL MEETING 35 OCTOBER 8, 2013 Mr. Bynum: Last week, I wrote an op-ed page. Have you read that? Mr. Carvalho: I am sorry? You wrote a page? Mr. Bynum: Last week Sunday's paper, I wrote an op-ed page about my concerns and the secrets that were kept and what we discovered. I hope today that if I get five (5) minutes that I can read it and put it on the record. Yes, I am passionate. I have been working on this for six (6) years and what the companies told us was not true. Now that we know the truth, we can start dealing with it. We got this much truth, not because they gave it to us and not because we ordered it, but because a Federal Court ordered it because people in Waimea are suing the companies for dusting them daily. That is happening on our watch, Mayor. This is our way to respond to it. I believe buffer zones and disclosure needs to happen quickly, and can. We gave up permitting and that was a mistake in my opinion, because that is a way to collect fees to help enforce this. We can come back to that later. At some point, I think it will become apparent that that is also necessary. I am encouraged by today. I am encouraged that this dialogue is happening. I am frustrated that it has taken putting this Bill on to get people's attention because you know we would not be discussing this and we would be in status quo, which was the Department of Ag, Hawai`i Farm Bureau, and the seed companies through Hawai`i Crop Improvement Association (HCIA) attacking the County's authority to regulate building permits and public health and safety. We know we would be at the status quo, so I would like to close with this. Do you agree that this Bill has very positive things happening now that needed to happen? Mr. Carvalho: There are positive things and there are not so positive things. We have to look at the whole Bill itself. That is why we are here. We looked at it. We dissected it. I wanted to make sure that we are talking about it. We gave you all of our thoughts and ideas, down to suggestions and opportunities that can help us work this through. That is what we did. I have had a week to work on this. I know we have been all over the place, but I went over what was written. Now, we are here. I wanted to be here. We wanted to come and talk. I wanted to share some of the things that you folks have heard. Now, if we can kind of wrap that up; I am here to see if the Council wants to defer this Bill until we can get the information together. That is all I am saying. Mr. Bynum: Thank you, Mayor. We can do this. You kept saying a week... Mr. Carvalho: I am just saying that when I got the actual Bill... Mr. Bynum: You are right; this issue is complex. Mr. Carvalho: I understand that. Mr. Bynum: A lot of people have gone to school over the last sixty-five (65) days. Mr. Carvalho: Just for me, Councilmember; there were a lot of things that I did not even know about, but that is okay. We went in there. I did not even know about some of these things, so we looked at it. That is why we are SPECIAL COUNCIL MEETING 36 OCTOBER 8, 2013 here and that is why we gave you the layout on what concerned us in these particular areas. We also gave you suggestions and comments... Mr. Bynum: I think they are good ones. Mr. Carvalho: It is not just one sided. Thank you very much. Mr. Bynum: I think you are demonstrating really positive leadership by being here and engaging in this dialogue. It warms my heart big time. I think we will get there, but I am asking you please to read that APA paper and Hector Valenzuela's paper. Find out the information we got from this. Mr. Carvalho: We will read those papers to make sure we get all of the information. I am totally open to all information. Mr. Bynum: Okay. Look at what Dr. Berg has shared with us in previous testimony and look at what Gary Gill has said. As we speak, they are cutting funding for Natural Resources Conservation Service (NRCS); as we speak, they have half... and the Department of Health is finding Atrazine in our waters. Right now, today, and they have not tested the mud. They have not tested the pieces that need to be tested. Thank you very much. Chair Furfaro: Thank you. Members, is there anyone that wishes to add any more? Thank you very much. Mr. Carvalho: Thank you. Chair Furfaro: Thank you. I would like to have a ten (10) minute recess for the purpose of reviewing some particular process that reflects what standard we should have, and then we will take testimony from others. There being no objections, the meeting recessed at 11:30 a.m. The meeting reconvened at 11:48 a.m., and proceeded as follows: Chair Furfaro: We will go ahead and take the first person for public testimony on the Mayor's presentation. Ms. Fountain-Tanigawa: The first registered speaker is Nomi Carmona, followed by Lorrin Pang, MD. NOMI CARMONA: Aloha, Chair and Councilmembers. My name is Nomi Carmona representing Babes Against Biotech, an O`ahu nonprofit, statewide. I see no justification for decreasing the buffer zones around waterways. It kind of seems like that is an element we would really want to protect. As the current revolving head of the Hawai`i Crop Improvement Association (HCIA), biotech lobbying group, recently reassured the public no buffer zone will protect us due to the amount of pesticides they are using. I am sure when you ran for office that your purpose and your intent was not to decide that the keiki of Kaua`i should be exposed to toxic industrial agricultural chemicals and genetic engineering at the highest levels worldwide. This is the legacy that you will leave if you fail to pass this Bill. I blame the corporations, executives, and the public relation (PR) lobbyists for misinforming their employees who believe what they are told by the hand that SPECIAL COUNCIL MEETING 37 OCTOBER 8, 2013 feeds them genetically modified organisms, which are banned in thirty (30) of thirty-two (32) developed countries. It seems as though this industry, in an attempt to quiet the human beings that are being experimented on and exposed to these experimental pesticides against their will, has initiated almost kind of like a conspiracy theory from the other side of the table where they think that there are all of these organic farmers and well-meaning philanthropists who have some kind of ulterior motive. Our motive is very transparent. We do not want to be poisoned. Chair Furfaro: Excuse me, I want to make sure that the portion that is up for testimony at the moment is the item regarding the Mayor's presentation. Ms. Carmona: Perfect. I would love to talk about the Mayor's testimony because the complications are great, but it is also very simple. You have a decision to make of whether or not you are going to protect your citizens. Regarding the Mayor and his decision to work with the State, I want to give you an exact quote from the Governor; "You do not have to lobby me. I am here lobbying you..." this is to the GMO industry. "You do not have to lobby Russell. You do not have to lobby this Administration." That is what the Governor says. If you think that Russell Kokubun from the Department of Ag is going to be reliable for us to count on for protection, I think you are wrong. I think that is very naïve to assume that the State will do what is needed to do in this case. If we want to make it work, we have to make sure that we are all alive and well to continue. Regarding what the Mayor said... I will try to limit it to that. We will consider any elected official that is against this Bill to be demonstrating a willful endorsement of the continued poisoning of Kaua`i and I will personally move here to organize and train our two thousand five hundred (2,500) members to prepare canvassing teams and make sure anyone who opposes this Bill and votes against it, or advocates for a deferral is never in office to the best of my ability. By the way, your Mayor has taken four thousand dollars ($4,000) of money directly from GMO companies; that is three thousand dollars ($3,000) from Pioneer DuPont and one thousand dollars ($1,000) from Syngenta as recently as May 2013, just after State Session closed last year. Please pass the Bill. I love Kaua`i. I was not planning on moving here to canvass your districts, but I will if I have to on behalf of our twelve thousand (12,000) members. Mahalo. Chair Furfaro: Thank you. Are there any questions? Nex t speaker, please. Ms. Fountain-Tanigawa: The next speaker is Dr. Lorrin Pang. LORRIN PANG, MD: Let me just introduce myself. I am Dr. Pang. I am from Honolulu. I speak as a private citizen. My day job is the Department of Health District Health Officer for Maui County. I had that job since the year 2000. I have a degree and graduated with honors in Chemistry from Princeton University. I have an MD Degree from Tulane. I also have a Masters Degree. I worked twenty-four (24) years active duty at the Walter Reed Army Institute of Research. I was a consultant for the World Health Organization (WHO) in Geneva since 1985 to the year 2005. I cofounded the project which trained all of the researchers how to do clinical studies. My job was to monitor and setup trials for drugs, vaccines, and diagnostics. I came back to Hawai`i in the year 2000. I am a little bit appalled of what is going on with GMOs and the use of pesticides, but I will speak specifically to the issue that the Mayor brought up. Remember, I speak as a private citizen today. SPECIAL COUNCIL MEETING 38 OCTOBER 8, 2013 The Department of Health, Maui County, we monitor things— kind of like what you are trying to monitor for your crops. We call them "transgenic crops," what you call them GMOs. I will give you an example of how we monitor. We actually do this for sugarcane. The Department of Health demand that the sugarcane companies make logs of when they start to burn, when they finish burning, how much they burn, what the wind direction is from the start of burning, what the wind direction is at the end of burning, and then other things they want to note. There is a rule that they are not supposed to burn when certain wind conditions like Kona Winds or inversion because it might gas the community. They follow the rules and keep their logs. These logs— hundreds of times a year and several times for when they do not burn. We go over the logs and we can find them... I think we have done it twice when they did not follow the rules about burning or not, and they do keep logs, when they kept a sloppy log. Nonetheless, how good or bad they follow the rules, we also monitor, as we do now, for respiratory illnesses. Maybe the rules have to be tightened up. Maybe the logs are fraudulent. We are doing a study right now with the University of Hawai`i in Hilo, looking at side effects or illness beyond the rules. That is just a background. I guess for specifically what you are facing, the key to all of this is disclosure. It is kind of like what these two (2) gentlemen were saying, "Tell us what you are using to begin with. From then, once you tell me, eleven (11) compounds or twenty (20) compounds in combination, how often and the pulsing that you are using." Then we are supposed to scientifically design the study to look at this. You are kind of shooting blindly saying that you are doing a study without the disclosure, and then and only then are we supposed to set up the buffer zones because I cannot know how far, the wind conditions, or humidity. Am I just kind of spouting this out? I have been to the elementary school twice to the elementary school and three (3) times for community meetings. I was the first one as a private citizen to look at this. There are very tricky things. For example, we forced disclosure when the kids first got sick and they were spraying with "compounds A, B, and C." Hey, that is interesting. They are supposed to test for "A, B, and C," but they did not test for "C." They promised and they did not do it. They claimed that it was not from the company because the company was spraying "A" and "B," but we only found "A." That is because in humid and windy conditions, "B" volatilizes so you do not see "B" because it went away by the time you got there to test. You can see an outbreak investigation, a study, or a buffer zone depends a whole lot on what you disclose that you spray. Also, I have asked for disclosure on Moloka`i Elementary School because the kids get sick. I did not know that they were spraying so many pesticides, so I asked for disclosure of the mutant GMOs and I compared it to other schools. I thought I did a pretty good study. I went to Monsanto and said, "I wish you would tell me the mutations you used during that month because all the schools got sick. The community was blaming you, but all of the schools got sick... schools upwind of you, so I am about to exonerate your mutation." They were mad. They said, "First of all, we do not have to disclose and it sets a bad precedent if we do disclose, even if you attempt to exonerate our mutation because next month, you will be asking and you will be pointing out something bad." I was asking for disclosure of mutation GMO. I think you should ask for disclosure of mutation, as well as pesticides. It starts with disclosure, but okay, you guys are urgent. You set forth your best guess at buffer zones. You set forth a study. Good. Fine. I saw the old study. There were little problems with direct controls. Now to sum this up, real clearly as a Public Health Officer for thirty-five (35) years worldwide; look, if the issue is urgent enough for you to try to set buffer zones, for you to launch a study, and to force SPECIAL COUNCIL MEETING 39 OCTOBER 8, 2013 disclosure, you have got an urgent issue. I was here to argue that it is really urgent, but you guys even know that. I do not have to tell you that it is urgent. Yet, the previous speaker said he "cannot set up regulatory guys" and "I do not know how to involve the State." "I cannot set up the resources and I do not know how to fund it." It is an urgent issue. You cannot set up the stuff to monitor it— the buffer zones, when you do not do it. You moratorium the stuff until you can regulate it or resource it properly. I know "moratorium" is a bad word because you killed the "moratorium," but other than the fact that I keep using it, let us just call it "block." When you are concerned enough to set the zone to do a study to force disclosure, just like we did for water additives in Maui, when it is that suspicious, you block the product until you set up your system to monitor. Chair Furfaro: That was your six (6) minutes. Let us see if we have any questions for you. Mr. Rapozo: Thank you, Dr. Pang, for being here today. You talk about your experiences on Maui. Mr. Pang: Yes. Mr. Rapozo: You work for the State or Maui? Mr. Pang: I am the Health Officer for Maui County. Mr. Rapozo: When you talked about your investigations or your questioning, does Maui have County laws? Mr. Pang: They did pass a law specifically for GMOs. There is to be no genetically modified kalo in the lab, marketplace, or in the field. Mr. Rapozo: I believe it was a resolution and not a law, but as far as what... you are saying what we need to do, but I am just curious; does Maui have laws or were you acting under the State law? Mr. Pang: On that one, I spoke as a private citizen. Mr. Rapozo: No, for your investigations when you were asking them... Mr. Pang: The sugarcane? Mr. Rapozo: Correct. Mr. Pang: That is State. Mr. Rapozo: Right, but you were under the authority of the State? Mr. Pang: For sugarcane, absolutely. Mr. Rapozo: Right. Do you know who your counterpart here on Kaua`i is? Mr. Pang: Yes, it is Dileep Bal. SPECIAL COUNCIL MEETING 40 OCTOBER 8, 2013 Mr. Rapozo: He does those investigations here? Mr. Pang: He has the capacity to do it, but he is a "chronic disease" guy. He works with obesity and cancer. Mr. Rapozo: Okay, so who would be the Clean Air Branch? Mr. Pang: It would be through him and you should tell him, "If you cannot do it, Dileep, then call somebody who can." Mr. Rapozo: I believe he publically wanted us to pass the County law to pass this Bill so the County could go out, investigate, and enforce his law. I guess my point is this— you are with the State and you were acting in the capacity under the State, which is where I... Mr. Pang: On Maui. Mr. Rapozo: Yes. Mr. Pang: On west Kaua`i, I acted as a private citizen. Mr. Rapozo: Yes. The County of Maui did not enforce or did not create a law to circumvent the State law. Mr. Pang: For sugarcane, correct. Mr. Rapozo: Right. Mr. Pang: The County of Maui called a hearings and resolution, and resolved something they do— C9 water additive. When they had specific health problems, they were moot specifically on their own problems, and the State comes in and says, "This is a Maui problem. Can you guys not do something?" By the time we did the study, the water purveyor chose to remove the additive automatically. Mr. Rapozo: Who did the study? The County? Who does the enforcement of the water... Mr. Pang: I also did the study on the water additive. Mr. Rapozo: But you were with the State? Mr. Pang: Yes. Mr. Rapozo: Okay. Mr. Pang: That was State. Mr. Rapozo: Okay. Thank you, Mr. Chair. Chair Furfaro: Mr. Kagawa, you have the floor. SPECIAL COUNCIL MEETING 41 OCTOBER 8, 2013 Mr. Kagawa: Thank you for coming. Did you relay some of your recommendations to the Director of Health or Director Deputy of Health? Mr. Pang: Did I give my recommendations on Kaua`i... Mr. Kagawa: Yes, so you have a lot of recommendations for Kaua`i. Mr. Pang: Okay. Mr. Kagawa: Because I have a meeting with Mr. Gill on Friday. Mr. Pang: They have a copy on my report. They sent a State Toxicologist and I read her report. I wrote my report from west Kaua`i and they have a copy. They know about the discrepancy between the compounds "A," "B," and "C." They know my report about the symptoms in the children. Mr. Kagawa: I think the reason why I am saying it is because I think the Governor has said that he is willing to step things up on Kaua`i. Like I was mentioning, not only the Department of Ag, I think we need to step it up in the Department of Health. Here, you are confirming that we have a State Department of Health counterpart on Kaua`i who only focuses on chronic disease and does not really do what you do and spread out your duties into some of the health complaints that come in from residents near pesticide use. Mr. Pang: He takes complaints but he knows the cruise ship... the fume... they brought in the air sensor. In fairness to the existing Governor, the outbreak on Moloka`i... when I first started at west Kaua`i, that was the previous Governor, so I do not think you can blame the current Governor. Mr. Kagawa: I think you have a lot of good suggestions and if you give those suggestions to Mr. Gill, he will have a better understanding of some of the things that can be done at the State level to help remedy some of these concerns. Thank you. Chair Furfaro: Councilwoman Yukimura, you have the floor. Ms. Yukimura: Dr. Pang, thank you for being here. What is a mutant GMO? Mr. Pang: When they genetically modify a target, they introduce a mutation. Ms. Yukimura: Is that basically a GMO or is mutant GMO something different? Mr. Pang: No, it is the same thing. It is a GMO and I asked for the mutations that were inserted because I was trying to say that those look okay, that the outbreak in the school that everyone thought was from the mutation—is was not; it was in all of our schools. Ms. Yukimura: How do you know whether a GMO is okay or not okay? SPECIAL COUNCIL MEETING 42 OCTOBER 8, 2013 Mr. Pang: When you modify an organism by putting in a mutation... Ms. Yukimura: Are you saying that all GMO is not okay? Mr. Pang: I am saying that none of the GMOs, to my satisfaction... I have lots of publications, but none of these GMO products have met what we used to use for drugs, vaccines, and diagnostics. Ms. Yukimura: Who are "we?" Mr. Pang: The World Health Organization, when I worked for them for twenty (20) years, or the Walter Reed... and I also presented to the FDA. Ms. Yukimura: Okay. I just wanted to get clear because you talked about mutant GMOs and I did not know if that was distinct from GMOs, but you are saying that it is used interchangeably with GMOs. Mr. Pang: Yes. Ms. Yukimura: Okay. You are saying that all GMOs are bad based on your research? Mr. Pang: No, I am not saying they are bad. Ms. Yukimura: They are bad for health? Mr. Pang: No, they are not bad. They have not been proven to be safe. Ms. Yukimura: Okay. Mr. Pang: They are unknown. They are not sufficiently known. Ms. Yukimura: Has the World Health Organization not clear GMOs from their standpoint? Mr. Pang: No, actually I quote the World Health Organization in my presentation. The last quote I used... I think it was 1994 out of Bangkok that it is not known. The harmful effects are not known. The safety is not known, so therefore it is not known. Ms. Yukimura: Okay. I think we have received testimony from other sources quoting the World Health Organization. Mr. Pang: Furthermore... Ms. Yukimura: Thank you. Mr. Pang: Okay. SPECIAL COUNCIL MEETING 43 OCTOBER 8, 2013 Chair Furfaro: Vice Chair, you have the floor. Ms. Nakamura: Thank you, Dr. Pang, for being here and providing your insights. I wanted to ask you about enforcement. Ideally, the State would be doing their job and enforcing maybe more stringent requirements that we put together here for disclosure and buffer zones. Mr. Pang: Okay. Ms. Nakamura: If they are not able to or do not have the political will to either create or fund these positions, then the County may have to fill the void by hiring our own staff that would be doing very similar things to what our one enforcement person does on this island. Mr. Pang: Yes. Ms. Nakamura: I was just wondering if you see that it is possible to work together with the State; maybe in the area of Department of Health/Department of Ag? Do you think it is possible to work collaboratively in order to reach the same goals? Mr. Pang: First of all, like you said, the two (2) agencies... let us just say three (3) agencies... the Feds... they have to have the same will to do the job. If you want disclosure but the State says, "No, we do not need that." They are not going to help you. They are not going to fund something that they do not want to do. If their neutral and say, "Well, it is up to you guys." If you really want it that bad and you passed a rule, now you are asking us for resources or you might ask the company to monitor itself; that is neutral. I would say they do not "love" your rule, but they do not "hate" it. In the past, when we have approached the State many times, labeling disclosure, they are not interested. You should ask them first, "Are you truly interested in disclosure?" If the disclosure indicates the need for study and buffer zones— but okay, you already wrote it in because it is that urgent; I will give you that. "Will you support it?" Gary Gill is a kind of good guy and he might say, "Okay, let us touch and go. Let us try to see that." First, you have to align the objectives that everyone agrees. Ms. Nakamura: You think it is possible if we align our objectives, and then coordinate the staff to carry out those objectives? Mr. Pang: Yes. The only difference I would tell you is that we have plenty of delays by the State when trying to do these things from Maui and Hawai`i island, and to kind of gain a little leverage; the scientific public health medical thing you are supposed to do... it will take us five (5) years to do all of this alignment. Until then, the product is blocked. Is that not the commonsense thing here? We have got diet drugs coming in. We do not know what is causing it. We do not have consistency of product. We have to control the drugs. Until we manage to set that up, they do not come in. That is kind of the impetus like, "Let us get going because the companies themselves..." If what Tim says is true, that they log correctly and do not fraud, they would be happy. "Here it is. I will give it to you." It is leveraged. Common sense. Ms. Nakamura: What I do not understand is because the GMO companies are on most of the islands, and you see as a Public Health Officer, SPECIAL COUNCIL MEETING 44 OCTOBER 8, 2013 what the potential impacts or what the anecdotal concerns are, and the concerns of physicians on the different islands. Mr. Pang: Yes. Ms. Nakamura: Why does the State not declare that this is a critical health need? Why is it not happening at that level? Mr. Pang: I quote the State Department of Health laws— the Department of Health has the right to modify, suspend, and change any kind of law, including the FDA, the Feds, if harm is being done. Like I said, with GMOs, we cannot see harm being done. We do not know safety. We do not know harm. When it is unknown, the Department of Health cannot just make a move that we are seeing harm. Ms. Nakamura: So why would the County? Mr. Pang: Because you guys can act precautiously. You do not have to see harm to take action. Ms. Nakamura: The State cannot work precautiously? Mr. Pang: I read the State Department of Health rules and we were going to take on tobacco, and tobacco harm is being done. Harm has to be done. You guys can act in the precautionary way. You think something is cooking there, if harm was done, good luck, because it is a life form that you are going to have a heck of a time pulling out. You guys, State, and Feds can act precautiously. The Department of Health cannot. Ms. Nakamura: Thank you. Chair Furfaro: Mr. Hooser, you have the floor. Mr. Hooser: Dr. Pang, thank you very much for being here today. In 2009, after the State failed to act on the taro issue with GMO, Maui County Council passed 9:0, unanimously, an ordinance banning GMO taro, cultivation, and testing on Maui, and it was signed into law by Mayor Tavares. Were you the Health Officer at the time? Mr. Pang: Yes. I spoke as a private citizen for that testimony. Mr. Hooser: Do you recall if Maui County was sued? Mr. Pang: No, we were not sued. We were faced with the question of how we were going to enforce it. Enforcement is not that bad because you think the company guys would rat on the company? Damn right, it is whistleblowing. Whistleblower people are trying to uphold their interpretation of the EPA and the rules as best they can, even if they were wrong. When I first went to Moloka`i several years ago, I thought the workers would lynch me. I was messing with their jobs. But their wives came with the children to say, "I am worried about Junior here." There are always two (2) sides of the coin. I do not think the employees are so beholding to the companies to sellout so readily if something bad is suspected. SPECIAL COUNCIL MEETING 45 OCTOBER 8, 2013 Mr. Hooser: Thank you very much. Thank you, Chair. Chair Furfaro: Are there any more questions? If not, thank you very much. Mr. Pang: Thank you. Ms. Fountain-Tanigawa: Our next speaker is Michaela Boudreaux. MICHAELA BOUDREAUX: Thank you all for your hard work. I am Michaela Boudreaux from Kalaheo. Very shortly, just one thing that I do not understand is if the companies are willing to disclose to the Governor and do buffer zones with the Governor; why is that not being offered to the County, too? I suppose that is very simple and I believe there is urgency, as well. Thank you. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Erika Schneider. ERIKA SCHNEIDER: Aloha. Thank you for all of your hard work. It is very much appreciated. I know this has been a very long process. Last night, about eighty percent (80%) of the people that you see in the room back here behind me spent most of the night sleeping on the ground outside of this building. It is because speaking to what Mayor Carvalho was saying about this process being deferred and taking a lot longer. The reason forty (40) people are willing to sleep on the ground outside of this building is because these corporations are trying to hijack the democratic process by busing in paid workers and the only way we can make sure those moms, children, and those families on the west side that are sick have a voice is to make sure that we sleep on the ground so we can get in here and tell you what is going on. We do not have time to wait. People are sick. No mother should lose another child. No mother should have another baby born with birth defects or hold her child while he seizes. I am here. We are here in solidarity with these moms and families on the west side. Regarding what Mayor Carvalho was saying about the complexity of implementing Bill No. 2491— I agree with the statements that I heard from the Council that it is quite easy to implement the buffer zones and quite easy to implement disclosure, and that this could happen very quickly, even within a month. I would like to speak as to how easy it would be to also implement a moratorium and permitting process. I personally looked at hundreds and hundreds of environmental impact study files from 1970 to 2013. There are literally thousands of these files available online for the County of Kaua`i. Regarding the simplicity and necessity of a moratorium, every one of those environmental assessment files were projects that were not allowed to happen or continue until the environmental impact statement was completed. The moratorium was in effect on the project until the environmental assessment was completed. Many of these projects were County related. They were projects for road improvements, culverts, sidewalks, flood remediation, and Water Department expansions and upgrades. All of these required an environmental impact study, and they still do before the project moves forward. I also found thousands of community and personal environmental impact studies online that are required for Kauai residents, and they had a moratorium on their projects until an environmental impact statement was completed on things like new-home building, structures on their property, rights of access, driveway culverts, swimming pools, and other property improvements like major landscaping. SPECIAL COUNCIL MEETING 46 OCTOBER 8, 2013 Chair Furfaro: That is your first three (3) minutes. Go right ahead. Ms. Schneider: I found an environmental impact study online for Bette Midler who wanted to cut down about one dozen invasive species trees on her property. I found another one for a man in Wailua who wanted to build a small swimming pool in his backyard. I found another one for the beach access path at Secret beach to make sure that it was safe for people to walk down. You are telling me that the County of Kaua`i and every single resident here has to get an environmental impact statement to do property changes of any kind, but then it is too difficult to have a moratorium and an environmental impact study done on expansion of these companies? They are doing farming practices that include massive use of restricted use pesticides and general use pesticides that we do not even know how much of those they are using in quantities and combinations that have a significant impact on the land and the surrounding community. It makes no sense to me or anyone else while these corporations can remove hundreds of trees and get take permits to set traps and poison for birds, spray the land with total kill pesticides, and use terrible soil mitigation practices that utilize open field experimentation of GMOs, which are designed to require more pesticides. Why does everyone else on Kaua`i have to have a moratorium on new projects while these companies are allowed to do nothing and expand without any kind of study done to determine the impact on the new lands that they would be expanding to? Biotech suggesting drawing a line down the middle of our island and promising no expansion past the Wailua River is a slap in the face to every resident on this island because everyone here deserves a moratorium on expansion until an environmental impact study is complete. I stand with the moms on the west side and south side. We stand with the families on the west side and the south side; that is why we are willing to sleep on the ground to make sure that voice is heard here. Please consider reinstating some kind of moratorium and permitting process in the Bill that will bring income in to help cover the rest of the Bill. It is very simple to implement. You do it every day on hundreds of projects all across the island. It would be very simple to implement for an expansion of GMO, as well. Kaua`i is not divided. Biotech wants a community divided. Thank you very much. Chair Furfaro: Thank you. Are there any questions? Mr. Bynum: You read a lot of environmental studies? Ms. Schneider: Yes. Mr. Bynum: I would encourage people to do that. Did you notice in that that even though the studies about a road or a pool, there are certain consistent elements in language in each one? Ms. Schneider: Yes. Pretty much all of the environmental impact studies followed a very basic protocol and addressed very specific issues like the history of the land. They would address some cultural impacts. Many different aspects were addressed in the study and every one of those followed the same basic format, regardless of what was being done. Mr. Bynum: Right. One study may go into more depth about that particular subject area than another one. SPECIAL COUNCIL MEETING 47 OCTOBER 8, 2013 Ms. Schneider: Right. I understand and agree that an expanded study, even beyond an environmental impact statement, is good for Kaua`i because we have all of these health issues and things going on. Mr. Bynum: Thank you. Ms. Schneider: Anything else? Mr. Bynum: That is it. Ms. Schneider: Thank you. Chair Furfaro: Again, I want to remind everybody that this portion of the testimony is about the Mayor's presentation. Those of you who have signed up, we are taking commentary on the Mayor's presentation. Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Jennifer Ruggles. JENNIFER RUGGLES: Good afternoon. My name is Jennifer Ruggles. Regarding the previous communication and presentation, the fact it would take one (1) full-time employee to handle the posting of the report seems excessive because this would assume that it would take forty (40) hours a week to take a completed report and upload it to the website. I am sure there might be some other minor details that go into this, but the significant portion of it really should not take more than an hour a week, so that does not really make sense. Also, one (1) full-time employee for complaints; there is nothing in the Bill that really covers complaints and why would we need somebody working forty (40) hours a week on complaints, unless we assume that the County is not actually going to enforce the disclosure or the buffer zones, so there would be all of these complaints. Another thing that needs to be kept in the forefront in this discussion is the one hundred thirty-one thousand dollars ($131,000) in back taxes that they owe you. That could help pay for some of the initial costs. I feel like that is not brought up enough. The last thing is just regarding what Mr. Carvalho said about the "relationship building." There really has been no "relationship building" from the State with the thousands of people on paper who have called for what is needed in this Bill. Where was the relationship building in the Governor's announcement? He said that he included all the stakeholders and none of us were aware of that. The Council was barely aware of it. How can we rely on this? The Mayor may have a good relationship with the House and the seed companies, but there really has been no relationship building with the people who believe that their health and environment are being compromised. They just want the simple right to know. That is all I have. Thank you. Chair Furfaro: Any questions? If not, thank you very much. Ms. Fountain-Tanigawa: The next speaker is Brent Norris. BRENT NORRIS: Aloha kczkou. Thank you, Councilmembers. Last time I sat up here in front of you, I was harsh and I apologize for that. I really do appreciate all the work that you are doing, especially now that we are in full Council. I wrote on my slip that I would be speaking on behalf of Green Collar Technologies. I am not prepared to do that, so I would like to speak on my own behalf if that is okay. I think Mayor Carvalho's comments were not very well SPECIAL COUNCIL MEETING 48 OCTOBER 8, 2013 received because of the sense of urgency that we all have in the matter. I think a lot of folks are probably shocked to hear that it could take so long to fill positions, especially people that are doing this for free, right? We are doing this because we think it is important and it is valuable to do and to work with you on these issues. Generally, I think just hearing that it is going to cost one point three million dollars ($1,300,000) to do what everyone or what a lot of people that are in room right now already see happening and could report to you is just a little hard to swallow after the last four (4) Council Meetings. I developed a relationship myself with Russell Kokubun, and this was when he was a State Senator, Majority Leader. I received an award from Mr. Kokubun and letters of support from his Office for a grant I was writing. I read extensively about his background, particularly, as it related to Chairmanship on the 20/50 Sustainability Task Force, which at the time about five (5) years ago, I thought it was an important effort where it takes time to define "sustainability." It is not the same as the Brundtland Commission's definition of "sustainability," but I think if you read their definition of sustainability, it alludes to what the Governor has now for his action plan which I believe includes is step four (4) on "food security." The reason I am mentioning this in the context of relationship building and the Mayor's testimony is that there is something going on that I do not think everyone understands. The Hawai`i Department of Agriculture is headed up by Russell Kokubun. He is the person in charge. He reports to the Governor on food security issues. Yet, what we find is that he is the Chair of the Board of Agriculture and also on the Agricultural Development Corporation (ADC), which is charged with specifically creating diversified agriculture in Hawai`i. Chair Furfaro: That was your three (3) minutes, but you will have three (3) more minutes. Mr. Norris: Diversified agriculture in Hawai`i have not worked for you; it has not worked for us. We have not reduced our dependency on outside food. So an important point to make is that it is not that we have had sixty-five (65) days or even six (6) years. We have had a lot time to work on these problems. They are not getting done with food security, and instead, we are going in what appears to be the opposite direction. We are trying things that are experimental now and trying things that do not actually produce food. I think that we are heading in the wrong direction. I wanted to mention that because I thought it was important. Next up was the data. I would like to see that data be made to the public so when the data comes out for disclosure for what the companies are spraying, if you will turn that over to the public, the public will work with the data if you just provide it in the right format. We will create applications for that data, report back to you, and provide insights for free, and you can do that through citizens reporting. I wanted to remind you of the tone at which Thomas Matsuda came to this Council at the public hearing at the Veteran's Center. I would like for you to remember, if you could, when he was essentially sending you a warning about passing Bill No. 2491, and that warning was coming directly from Russell Kokubun. It was not Thomas Matsuda's testimony, although his name gets mentioned more often. When he delivered his testimony, he said that he is delivering Russell's testimony, and he was asked in that meeting if the Department of Agriculture took a position on Bill No. 2491, and he would not answer the question. The other thing that I wanted to mention was something that is real important when you are looking for an answer these days— there are a lot of experts; there are a lot of science; there are a lot of scientists that are releasing reports, and those reports are getting read pretty quickly, especially by folks in your community right now— the few thousand SPECIAL COUNCIL MEETING 49 OCTOBER 8, 2013 who are actively engaged in getting Bill No. 2491 passed. If you would consider them a little more for their knowledge, I think it is important. One of the things I notice is that there are expert testifiers who come up and I am noticing knowledge gaps in their testimony; yet, if there were a way for you to "crowd source" the information from the community in a more intelligent manner, collecting data and so forth, I think that you can get all the answers that you need and maybe uncover things that you have not learned yet. In closing, I really wanted to talk about that relationship building because what I believe is going on here is I think that the relationships that are being built are unnecessary. Chair Furfaro: That is your six (6) minutes. Mr. Norris: Thank you. Chair Furfaro: Are there any questions? We have questions for you from Mr. Bynum. Mr. Bynum: I recall Mr. Matsuda's testimony here and him clearly saying that he was representing Mr. Kokubun. What was significant about that? I did not understand why you brought up Mr. Matsuda. Mr. Norris: The tone... Mr. Bynum: You said it was like a warning. He said that the Department did not have a position on the Bill; that is my memory. Mr. Norris: That is right. The tone was that if you go forward with the Bill, you are going to get into trouble if you pass the Bill. I will be happy to bring that back to you. Mr. Bynum: I just want to say that I found Mr. Matsuda's testimony very helpful. He is one of those mid-level technical people in the State that I admire a lot and I have had subsequent conversations with him. I am kind of protective of HDA members who are just doing their job. You were not really criticizing Mr. Matsuda? Mr. Norris: No, because it was Mr. Kokubun's testimony. Mr. Bynum: Right. Thank you. Now I understand what your intention was. Chair Furfaro: To the audience, I want to remind you that I stated this in the very beginning, that after speaking with OIP— I believe we have six (6) speakers more. At 1:00 p.m., this group and this Special Council Meeting will be adjourned today. We have business with the Auditor at 1:00 p.m. We have cleared with OIP that we can go into recess, and then start again on Monday, October 14th at 9:00 a.m. On this particular session as we are now, we are addressing the piece dealing with the Mayor's commentary. Who is the next speaker? Ms. Fountain-Tanigawa: The next speaker is Jeri DiPietro. Mr. Hooser: I have a question before the next speaker starts. SPECIAL COUNCIL MEETING 50 OCTOBER 8, 2013 Chair Furfaro: Yes? Mr. Hooser: We are going to recess until Monday? Chair Furfaro: Yes. Mr. Hooser: Do we have a defined end time on that day or do we have a specific length of time to discuss the items on the agenda? Chair Furfaro: For the people that are here today, this is a recess on the existing meeting, and I believe the next piece for us to be dealing with on Monday would probably by the Executive Session material. Mr. Hooser: So we will have an end time on Monday defined or can we be clear that we will have sufficient time to discuss all items on the agenda on Monday? Chair Furfaro: I believe we will have sufficient time. Mr. Hooser: Right on. Thank you very much. Chair Furfaro: That is my understanding right now. Mr. Hooser: Thank you. Chair Furfaro: Okay. Jeri, you have the floor. JERI DIPIETRO: Aloha, Chair. Jeri DiPietro for the record. Thank you so much for having us here again today. We are asking for disclosure. We need to know what restricted use pesticides are being sprayed by the multiple ton year, after year on our island. We are asking for your help. The County has the ability to step up to this and we support you. We have been asking for this for over ten (10) years and it is not easy to get a Bill on the agenda. We thank you very much for listening and going through this process with us and getting informed during these last sixty-five (65) days. I listened carefully to the County presentation, and nowhere did I hear of any concern for people's health. Not once did they express compassion for the community's crying for help. Mothers with sick children cannot wait. They cannot continue year, after year and be disrespected this way. Four (4) chemical companies are spraying hundreds of acres; most times they are spraying at night while we are asleep. People hear the machines and smell the chemicals. They do not know what to anticipate for their future. We should act in a precautionary way. How much longer are we going to let the herbicide resistant test field go unchecked? This is not our grandparent's corn. When you drive by the corn across from Kukui Grove, it may look very green and benign, but unless you live near these chemical fields, you do not know the ramifications of the drift, dust, and of the multiple chemical spraying. Schoolchildren were sent to the hospital. Mothers were having babies with birth defects. I heard no concern for the human health expressed. I cannot believe that many of us still do not have a basic understanding of the unintended consequences of this chemical stacking. We have brought the best experts from around the world here and many of you have come to our presentations over the years that you have been on Council; some not though. Through the Freedom of Information Act and through the Waimea lawsuit, we are seeing what is being sprayed. I am a little surprised when I hear the leaders of our SPECIAL COUNCIL MEETING 51 OCTOBER 8, 2013 community say that they have not read some of these things and that they have not even heard about it. When we started bringing these issues to the State many, many years ago, the biotech companies would actually get up and walk out of the room when we would start to present information. Chair Furfaro: Jeri, that is three (3) minutes. You have another three (3) minutes. Ms. DiPietro: Okay, I will keep it short. Thank you, Chair. They would get up and leave so that they could preserve their ability to say that we see no harm. That is sticking your head in the sand and I know you guys are caring people. Disclosure is not too much to ask. The Occupational Safety and Health Administration (OSHA) laws for the fieldworkers are keeping these records anyway. We just want to know. You heard the nurses, the teachers association, and the doctors that say things come up. We need to be able to piece this together and without disclosure, this cannot be done. These companies do business in other states and they do disclose. This is not an unreasonable request, so please, let us at least get our disclosure. Let us look at buffer zones. They probably do have to be much, much bigger when you see the wind blowing but we need to know. We need to start with the disclosure. That is the true intention of Bill No. 2491. I urge you to please let us get this process started. It may be too late. When we had Dr. Hubert here talking about glyphosate, that we start to get these things in our water, and it is going to be a real fine mess. When you see the movies of the harm in Anniston, Alabama— these are the same chemical companies polluting the water supply of a small town. We cannot let these chemical companies pollute the water system of a small island. It is crucial. Thank you. Chair Furfaro: Are there any questions for Jeri? Ms. Yukimura: Thank you for your good work. I know there are questions and findings on the streams and the ocean but in terms of the drinking water, is that not pretty clear now that there are not residues in there because the Department of Water does monthly testing. Do they not? Ms. DiPietro: I do not know that. We did sit down with Gary Gill and at the end of the conversation, I asked him, "Do you guys test for glyphosate?" He said, "I am not sure." Maybe we do not now, but when we are looking at eighteen (18) tons a year of just the restricted use, everything goes down. Our ground water is limited, so I think we have to err on the side of precaution. Until we check thoroughly, we do not know for sure. Ms. Yukimura: I think it is definitely checkable in terms of our potable water, so I will put in a request. I think they do test monthly and disclose it probably on the website, but I will get that fully clarified in terms of drinking water. I think it is pretty procedural and in place in terms of those results. The others in freshwater, ocean, soil, and air are what I hope the EPHIS study will do in a systematic way. Ms. DiPietro: I do, too. I think soil samples are going to be vital because we have had the biopharmaceutical fields. Other than what our citizens have done, we have not looked correctly at mapping. We have not even gone back to look at the soil in some of those most controversial tests. SPECIAL COUNCIL MEETING 52 OCTOBER 8, 2013 Ms. Yukimura: I agree that soil testing is basic and I hope that will be covered. It is my intention that it will be covered in the EPHIS study. Ms. DiPietro: One thing quickly that we found... Chair Furfaro: Excuse me, our rules do not permit you to ask a new question based on your finding. The Councilmember needs to ask you the question, Jeri. Ms. DiPietro: Okay. Chair Furfaro: Do you have another question for Jeri? Ms. Yukimura: That is all. Thank you very much. Chair Furfaro: Thank you. Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Fern Rosenstiel. FERN ROSENSTIEL: Fern Rosenstiel for the record. I do not have a script today and I am not going to try and get it all said in three (3) minutes. Thank you from the bottom of my heart for what you guys have done for the last few months. I know it has been trying for all of you involved. I genuinely thank you. I thank you for passing it out of Committee, taking it forward, and for being responsible enough and actually look at the issue when so many people are not. I know this is directly related to the Mayor's testimony or conversation here. I would like to respond a little bit about the urgency that I feel that this issue has. I have been trying for a year to find out the information that we are sitting here still trying to find out right now. We have received multiple— well, spit in the face is probably the best way to describe it when you are faxed a fifteen (15) page paper of black redacted information. It is pretty much a spit in the face after trying to find information and saying, "We will give you a permit." I would like to remind everyone that the Federal government is who granted the permits for experimentation here. Yes, the upper level governments are managing some of this stuff and maybe they are doing a really poor job at it because they are the ones who sign the experimental permit for pesticide use here. I want to comment a little bit about why I feel that this is so urgent because we cannot wait months more just to get the right to know. I do not understand the negative impacts associated with the right to know, minimal buffer zones that arguably do not protect as much as they should, and a study. What is negative about doing that now? Why do we have to wait months more to get the right to know? That presentation by the County was a great example by the County of how long these processes take and let us get it moving beyond this. You guys have done a huge amount of work in the last few months. I just really encourage you to move forward. The reason that we are dealing with these issues— the reason that they want to drill horizontally into our mountain to access water that has not been polluted by a plantation era, which arguably already damaged the environment and the community... in huge amounts. The reason they want to drill into this mountain is because the water is contaminated. When you read the potable water reports, you will see that the 1,2,3-Trichloropropane (TCP) from the pineapple industry, for example, I recently just found out in the last month when researching information about the horizontal drilling that the TCP levels in Lihu`e are just below the Federal standards for what actually has to be treated. Please, Councilmember Yukimura confirmed this for me. I believe that those levels are below Federal standards, but California just revised SPECIAL COUNCIL MEETING 53 OCTOBER 8, 2013 their standards and dropped that to half of what it was. My understanding is that if it was to happen here in Hawai`i, which often it does follow California for some standards— if we were to drop that threshold, we would immediately have to pay over ten million dollars ($10,000,000) to treat the Lihu`e water source just for TCP to get it not below the level that it causes an impact to blithe, but below the level which the Federal government sets a standard. We do already have a generation of pollution because of bad land management and poor enforcement. Yes, we have a long ways to go but please, let us keep moving forward. Please continue to pass this Bill and not defer it any longer. I really appreciate your time. Thank you. Chair Furfaro: Councilmember Yukimura, you have the floor. Ms. Yukimura: Thank you, Fern. Excuse my ignorance, but what is TCP? Ms. Rosenstiel: It was used as a pesticide for the plantation era. I believe it was for mites and it was sprayed heavily on pineapple as a pesticide. I also believe it is residual and one of the things that is tested regularly. Ms. Yukimura: Thank you. I will further investigate that. Chair Furfaro: Thank you very much. To the Staff, I want to let you know that we have five (5) speakers left. I do want to say that I have the authority to carry this meeting to 1:15 p.m. When we come back, we will start up again at 2:15 p.m. on the other subject. Let us try and finish this testimony. Who is next speaker? Ms. Fountain-Tanigawa: The next speaker is Collin Dana. COLLIN DANA: Thank you, Council. For the record, my name is Collin Dana from Lawa`i. I was pretty negatively impressed by the Mayor and his Staffs presentation to be honest. It does not seem like there is any good faith and effort for them to actually see this thing go forward in any timely fashion. I think it needs to be said again— the urgency here is real. We are already twenty (20) years behind the ball. We are playing catch up and there is no reason why the three (3) items that survived the Committee cannot just be fast-tracked into action. "The study needs sculpting." I understand that. Let us get it started. If it is going to take more than had one (1) year to get personnel in place— the sooner, the better. We have been waiting for a long time. We cannot afford to wait longer. Now, I am speaking as a person who is dedicated to providing food for my community. I am a farmer here for the long run and I am making food. I am not growing for export. I am talking about not only the future of the entire island, but the future of my livelihood, and quite literally, my life. I live on soil that was used or "abused," if you will, by the pineapple industry and a previous chem-ag industry. All of these legacy chemicals could still be in my soil. I have to run a battery of expensive tests just to find out if it is okay to eat what I am growing. It is scary stuff. I do not want future generations to have to go through the same thing. Where is the funding to help us that already are living on contaminated soil? This is just the tip of the iceberg and if we are going to bat this around, and delay and delay, we are never going to see substantive change that this island needs to move us in the right direction. This is a clear first step. There is no reason to keep delaying. I say pass this. The stuff that was taken out, specifically related to SPECIAL COUNCIL MEETING 54 OCTOBER 8, 2013 GMOs, let us put that in a GMO Bill. A strong pesticide bill; a strong GMO bill. That would be a step in the right direction. I speak for myself, but I also speak for a whole wave of people coming up in this community that want to see Ag done in the right way and want to see real sustainability. It is not sustainable if you are entire operation is based on petrochemicals. It is just not. With all due respect, for the Mayor and his opinions, I think we are better than shying away from a task just because of the immensity. This is something that needs to be done. Thank you. Chair Furfaro: Thank you very much. Next speaker. Ms. Fountain-Tanigawa: The next speaker is William Ash. WILLIAM ASH: Good afternoon. William Ash, registered voter. I want to thank you once again, as I have in the past, for your efforts of all the time that has been devoted to this Bill and to the Mayor's points. As things come down from the Federal government, you are instructed to enforce or implement them. I think your process will be the same when you go to pass the Bill here. You are going to be in the process of having to make it happen. I think it has been pointed out clearly that it is going to take time to get it going. I think getting your foot in the door is a good thing. I think that the Mayor's caution or his reluctance to want to take matters in hand— he did a very excellent presentation for supposedly only having twenty-four (24) hours. I am sure he will catch up to your speed. I am also here representing Klayton Kubo who could not be with us because his mother is having a procedure in O`ahu. He has been fighting this for thirteen (13) years. When do we stop fighting and take action? When are pressed hard enough that we need to feel the back of our neck? People have threatened, cajoled, and have said bad things to one another... it is because they are afraid. The Mayor is afraid. He does not want to make a mistake. You guys do not want to make mistakes. But not to learn from the plantation era and not go forward with this, I think would be a terrible mistake. I think that ushering a new plantation era with these biotech corporations is not a good thing. I do not think they respect the tourism. I do not think they respect the industry that is here. I think they do not contribute much to it. I got a message from the keikis, once again, that their nose bleed and they want somebody to help them. I think you are the people who can start the process. Thank you very much. Chair Furfaro: Thank you. Are there any questions? If not, next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Andrea Brower. ANDREA BROWER: Andrea Brower for the record. I definitely had not planned on testifying and I have a hard time with this one because I grew up with Uncle Bernard. He and my dad coached soccer together for a decade. We have been to Las Vegas, O`ahu, and Maui multiple times. I have a hard time speaking against him, but I just found that presentation so outrageous that I felt like I needed to say something. Three (3) full-time staff people, two (2) consultants, extensive training— nearly one point five million dollars ($1,500,000) in less than a year for just disclosure and buffer zones, and the study was not included in one point five million dollars ($1,500,000). Was it? Okay. Well, thank you for clarifying that because it does make a difference. Really, I think there is a severe exaggeration going on here for what it is going to take to enforce disclosure and buffer zones. All this talk about needing people to manage health complaints; it is like the Administration did not even read the Bill, and there were some real obvious SPECIAL COUNCIL MEETING 55 OCTOBER 8, 2013 inconsistencies in the presentation and the answers to some of the questions that I think it is important not to ignore. The Mayor mentioned that he has been in conversation with the companies. I know several of you have, and I am not suggesting bad intentions, but it does seem that the Administration is being pushed into a state of overwhelm. I think nobody doubts that the companies are influencing some of that feeling of overwhelm. If anything, the Administration's presentation revealed that it is worth reconsidering permitting so we can collect an enforcement fee from these companies, all of who are on the World's Fortune 500 list. Implementation of permitting might be more challenging than other provisions of this Bill, but we could afford to work some of those complications out with a permitting fee. Louisa Wooten, who is an inspector for Hawai`i Organic Farms Association, had some very good suggestions about what that might look like in her article in The Garden Island the other day. My last comment is that the Mayor likes to talk a lot about getting together and working to understand and educating, and these are all nice concepts that I would typically agree with, but that is not how you deal with multinational corporations who have some of the most insidious history of any corporations in the world. We need to be firm, bold, and we cannot let them bully us into letting us into believing that we are not capable. Our hands are not tied and it is time for action. Chair Furfaro: Thank you. Are there any questions? Councilmember Yukimura, you have the floor. Ms. Yukimura: Andrea, thank you as always for speaking out. On the permitting issue, what exactly would we be permitting? Ms. Brower: I would have to, like we have been doing, really sit down and think about this. I do not have specific suggestions right now, but I do think that some permitting for large-scale agricultural operations that are using this many pesticides is necessary and worthwhile. We could link it to pesticide usage. How that would be done before and after— I am not sure of the details. Ms. Yukimura: It is that vagueness that prompted me/us to remove the permitting section, but we could work on it, but I assure you that it will take more than two (2) months to work on a really clear permitting. I am not even sure we would get there, but I invite anybody to try. Ms. Brower: So that could be separate a Bill. It could be mandated in this Bill that that process will take place at other time. There are ways, just like we tied the EPHIS to the current Bill. There are ways to work around it. Ms. Yukimura: You definitely could work on a separate Bill. It is kind of funny to mandate something in a Bill that is going to happen later. Ms. Brower: Right, I understand that is not a typical process. Ms. Yukimura: Right. Thank you. Ms. Brower: Thanks. SPECIAL COUNCIL MEETING 56 OCTOBER 8, 2013 Chair Furfaro: Are there any more questions? I want to thank you for pointing out Louisa's commentary in The Garden Island about other options, the inspection process, and contracting. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Jerry Ornellas. JERRY ORNELLAS: Aloha, Chair Furfaro and members of the Council. Thank you very much for this opportunity for me to testify in front of you today. I am somewhat surprised at where we are at this point in time. This feels so much that is unclear and undecided. I had expected this Bill to be much further along at this point. I think the amendments were a step in the right direction. I think we got rid of some of the stuff that were really problematic. I get calls every week now from farmers and this Bill has not even passed yet. I get calls saying, "I just got my spray rig ready and my neighbor is standing across the street with his camera, so I put all of my stuff away and I am not going to spray today," or "I just did some spraying and now there is a cop car in front of my house to talk to me about what I sprayed." This has impacted our community in ways that I think in many ways that none of us foresaw. It has divided our community deeply. I think if we approached this whole issue in the spirit of cooperation rather than confrontation, we would have been way ahead of the game. I do not know how to heal the community. I do not think that you have to start a civil war to get your point across. Yet, people keep making references to health issues. First, it was cancer clusters. We all heard about that. When the tumor registry study came out saying that we really do not have an issue with that on Kaua`i and all of a sudden, it shifted to birth defects. When the study on bee pollen came out, saying that we have not found pesticides in bee pollen here on Kaua`i— that study was dismissed. I do not know where we are going to go with this thing, but obviously, I think there is no clear path forward at this point. We do not know how we are going fund this thing at this point. I am somewhat surprised that we have not made more progress. Chair Furfaro: Are there any questions for Jerry? Go ahead, Mr. Kagawa. Mr. Kagawa: Jerry, like you, I have had some calls. I had one from a small farmer and I guess he was saying he does use more than five (5) pounds, and so he was asking me, "Does this Bill affect me, as well, not just the seed companies?" Have you gotten those calls, too? Mr. Ornellas: I have. My comment on that would be this, Mr. Kagawa, is that initially, a snapshot was taken of "this is the pesticide use on Kaua`i right now for this past year," or for whatever period— three (3) years in time. To give you an example, in the 80's we had a thriving papaya industry here on Kaua`i, right? We had several hundred acres of papayas planted. You are all familiar with that. At that time, the amount of restricted use pesticides used far exceeded five (5) pounds or fifteen (15) gallons per farm, right? Unless we plan to restrict this type of agriculture going forward, I am not sure that the farmers are going to be... Mr. Kagawa: I guess we have been talking about the discrepancy between how much workers the County is going to need to enforce. When we say all the small farmers that use more than five (5) pounds are included, I guess one or two (2) guys are surely not enough. SPECIAL COUNCIL MEETING 57 OCTOBER 8, 2013 Mr. Ornellas: Yes. I am glad you brought that up because for the sake of disclosure, I have to tell you that I sit on the Hawai`i Board of Agriculture representing Kaua`i, and there has been a lot of assumptions being made today about the State stepping in and enforcing County ordinances. I do not know that the State can do that. The State is tasked with enforcing State ordinances, statutes, and laws; not necessarily County laws, so I am not sure that is going to work. I am sure the State wants to work with the County and I am sure that the Department of Health and the Department of Ag wants to work with the County, but like I said earlier, I think if we had taken that approach first... the Farm Bureau was never consulted prior to the introduction of this Bill. I did meet with Gary and I had coffee with him when he told me he was going to introduce the Bill, but we never saw a draft of the Bill. We represent the largest farm grower organization on Kaua`i and we were never consulted. I do not know who was. Chair Furfaro: Before I recognize you, Councilwoman, I want to remind everybody that we have three (3) speakers left and that would be all we are doing for today. You have the floor. Ms. Yukimura: Thank you. This new information that the threshold limits set in this Bill actually apply to smaller farmers and has huge implications because depending on where they are, buffers and so forth, start to take different impacts. Is there another threshold level that you can suggest would be a good distinction between small farmers and these larger farmers? Mr. Ornellas: I think all of this is based on the premise that these products are bad. Obviously, right? No matter what or how you use them, they are detrimental to our environment and our people. That is the premise that all of this is based upon. I do not think that has been established scientifically. If we operate from that premise, then naturally yes, you will try and go for the lowest amount of usage possible. Ms. Yukimura: Well, what we are looking for is a rational line between the large agricultural entities and the smaller ones because we want to start where there is larger quantity of use. I think that is kind of a rational basis. However, if what you are saying is true that in the 80's— and I do concur by memory that there were large tracks of wonderful sunrise papayas that were being exported, as well as eaten locally— they were also non-GMO. If they were using the same amount of pesticides as these larger Ag entities are, then the thought that these Ag entities are using an extraordinary amount per acre versus conventional Ag is in question. Mr. Ornellas: I think so. I do not believe they are using extraordinary amounts. Ms. Yukimura: That is one of the things that we have been trying to determine, and I know Councilmember Bynum has been very concerned. I have also received information that because the spraying is on different parts of a larger parcel, that in fact, it is about one (1) crop per year of corn, which is normal use of pesticide compared to another acre of corn on the mainland; conventional Ag, if there is conventional Ag left on corn— I do not know. For me, the question is unanswered, and I know Councilmember Bynum has wanted some help in analyzing the records that he got from the lawsuit. If there is information coming forth that smaller Ag is meeting those thresholds, then yes, an assumption that we are making here is up for grabs now. SPECIAL COUNCIL MEETING 58 OCTOBER 8, 2013 Mr. Ornellas: Yes. JoAnn, I do want to thank you for including some real important information in your amendments to the Bill. Agriculture uses thirteen percent (13%) of restricted use pesticides. I thank you for including that. Ms. Yukimura: I think that was Councilmember Rapozo's request. Mr. Ornellas: So what happens to the other percentage? I can tell you why; it is because farmers represent only two percent (2%). Chair Furfaro: Excuse me, Jerry, our protocol is one where she posed a question and you responded to that. I need to recognize other members. Mr. Ornellas: Thank you. Chair Furfaro: Mr. Hooser, you have the floor. Mr. Hooser: Thank you for being here today. Whenever the numbers come up, I feel compelled to offer what I know about the numbers. I believe that the Councilmembers and the public have access to the same information that I have. The Department of Ag's sales records over the last three (3) years showed that only two (2) farmers in three (3) years purchased restricted use pesticides besides at all besides Kaua`i Coffee and those other four (4) entities. No other farmer except those other two (2)... they were a couple of years ago and they were minute amounts. If other farmers are using them, I am wondering where they are getting them from and whether they are legally able to use them or they have just been stored for an inordinate amount of time. The record is clear that from the legal purchase of these chemicals that real farmers are not using them on any regular basis. Mr. Ornellas: I never said... Mr. Hooser: The other thirteen percent (13%), the other two (2) categories of restricted use pesticides— the large percentage is chlorine gas that the County uses for water... we have had this discussion before... and termite use. Neither of those uses spray their chemicals out in the open over large tracts of land when the wind is blowing in their neighborhoods. That is the rationale behind targeting the extensive use of the restricted use pesticides, the way it is in the Bill right now. Mr. Ornellas: First of all, I never said that small farmers were using restricted use pesticides. Mr. Hooser: I am sorry; that is what I thought you said. Mr. Ornellas: No, I did not say they were using. I said that in the past they have. Mr. Hooser: Okay. I think that is an important clarification because I think Councilmember Yukimura was referring to maybe the threshold is the wrong threshold in response to what we all thought, which is what I thought you said. SPECIAL COUNCIL MEETING 59 OCTOBER 8, 2013 Mr. Ornellas: I think more importantly, I reserve the right to use if I have to. Mr. Hooser: I understand that, but I just wanted to be very clear on that we are talking about restricted use pesticides as a threshold element, and the records show that regular farmers are not using those to that extent. Thank you very much. Thank you, Mr. Chair. Chair Furfaro: Mr. Rapozo, you have the floor. Mr. Rapozo: Thank you, Mr. Ornellas, for being here today. Is there a standard or an acceptable amount of pesticides per acre? Mr. Ornellas: Absolutely. Mr. Rapozo: What would that be? Do you have that number? Mr. Ornellas: It is on the label; the label is the law. Mr. Rapozo: Right, but in general because I think the numbers that have been thrown out appears to be a lot of pesticides. Would it make sense in a Bill like this that you would just reference the label? Is five (5) gallons or five (5) pounds a good number in your experience? Mr. Ornellas: I think it is just arbitrarily... Mr. Rapozo: Since we started these discussions, I cannot remember if we even had a traditional farmer here. Would it be per acre or per use? It is uncomfortable to see how much you buy because that does not necessarily tell you how much is sprayed in one location. Mr. Ornellas: Yes. Mr. Rapozo: I think that is where the numbers get skewed and once it hits the internet, it goes ballistic, and the appearance is that Kaua`i has become a toxic dump. I do not know if that is true because we do not know how much is being sprayed where. What is the general rule? Is there even such a thing? Mr. Ornellas: The smallest number possible, right? Pesticides are a tool of last resort. Mr. Rapozo: Right. Mr. Ornellas: No farmer likes to use pesticides. I do not like using them. I use only one pesticide on my farm. Mr. Rapozo: Do you apply over five (5) pounds a year? Mr. Ornellas: No. SPECIAL COUNCIL MEETING 60 OCTOBER 8, 2013 Mr. Rapozo: I am not talking about restricted use pesticides, just in general. Chair Furfaro: Excuse me, gentlemen. I want to make sure that we understand that this discussion is about the presentation about management and controls with the Administration. If you could respond to Mr. Rapozo's last question, we can go from there. Mr. Ornellas: No, I would have to come up with some arbitrary figure that I am not comfortable with. Mr. Rapozo: That is my concern. When we pass a Bill, we should not be using arbitrary figures. We can talk offline. I am done. Chair Furfaro: Thank you for your understanding, Mr. Rapozo. Anymore questions for Mr. Ornellas? If not, would you read the names of the last three (3) speakers? Ms. Fountain-Tanigawa: The last three (3) speakers are Mimsy Bouret, Mark Willman, and Elaine Dunbar. Chair Furfaro: Ms. Bouret waived her opportunity to speak. Mark Willman, please come up. MARK WILLMAN: Aloha, County Council. Thank you again for the opportunity and your hard work. I really appreciate all of the hard work that you have done. I would also like to thank you for recognizing the good record keeping. I think Councilmember Bynum talked about it earlier of the responsible seed companies. I also want to thank you for dropping the GMO portions of the Bill. I want to support the efforts to use the current State and County agencies to monitor pesticide usage and to deal with the individual claims. I do not think the buffer zones need to be specified by County since the companies are as stated "responsible businesses." They are responsible to the community. They do not want to put themselves in a position for lawsuits. I think that is the underlying position as to why the seed companies perhaps— I am speaking for myself. I am from `Ele`ele. I am sorry; I should have mentioned that before. I am also a registered voter. As we heard from the President of Kaua`i Coffee, when he did disclosed in a certain incident that they were going to spray and did not, he received claims of people getting ill. I think we need to be aware of the fact that we are human beings and a suggestion is given to us that something is going to occurs, people are going to react. I think that is an important consideration to take into account in terms of the Disclosure Act. I do not want to have my taxes increased to pay for the one point three million dollars ($1,300,000) or one point five million dollars ($1,500,000) predicted. I know it is a predicted expense proposed by the County Attorney, I believe. I do not think those expenses are necessary. I think we have the agencies in place if we could all cooperate better with each other and become more effective. I think we can do exactly what the public wants, and that is to be safe. I am with everybody here that I want the public to be safe and feel safe. I think that can be accomplished with what we currently have. Finally, the companies have been here for over forty (40) years, and as related by the State Department of Health, the incidents of cancer are no different than the rest of the State of Hawai`i. I understand that some of the statistical arguments of whether those facts and figures are right or wrong. I really feel bad that there are mothers that do have children that are being born with birth defects. I am part of the west side SPECIAL COUNCIL MEETING 61 OCTOBER 8, 2013 community and I do see other factors that can play a role in that, not just pesticide usage. For example, I see many people abusing drugs and alcohol on a regular basis. I cannot discount that as one potential cause; I am not saying it is a sole cause, but I cannot say it is not part of the problem. Chair Furfaro: That is your first three (3) minutes. Mr. Willman: I would encourage you, County Councilmembers, to take the lead on these issues and restore our trust in you that you are equitable, not discriminatory against corporations, and restore the damage that this Bill has done to all of us— you included. I recognize that we all have paid the toll for this. I encourage you to follow the recommendations that you heard today from the lawyers, attorneys, and the Mayor to take your time and do it right. That will be your legacy. My real recommendation is that you just drop the entire Bill altogether, just like you did the other GMO elements of the Bill. Thank you for your time. Chair Furfaro: Are there any questions for the speaker? Thank you very much. Elaine, you will be our last speaker for today. ELAINE DUNBAR: Good afternoon, Councilmembers. Elaine Dunbar, for the record. I am not sure how I am supposed to manipulate this to address Mayor Carvalho's comments, which I did not think there were too many of. Perhaps he has not had time to review everything that the community has been doing all of these months and that may be the reason he needs a deferral. I am kind of disappointed that things were taken out of this Bill such as the language banning future open air testing of GMOs and experimental pesticides and the moratorium on expansion of these companies anywhere on Kaua`i until an EIS is completed, shows sound and precautionary judgment, and should not have been removed. The argument we have heard the most on this Bill is that it will result in job losses. How can future open air experimental testing and experimental pesticides result in job losses for jobs that are presently nonexistent? That seems like an argument that is not based on anything realistic or on actual losses. Is open air testing of experimental substances not where it all began? If Government had honored basic measures of concern regarding experimental practices or paid heed to the word "experimental," as was the standard operating procedure in the past, we would not be having this discussion. If Government had not allowed rampant departure from rules protecting health, we would not be having this discussion. My point is that biotech companies have been getting away with these practices for so long that they have come to believe they are entitled. In turn, they have tried to influence the public opinion that "this is okay, but it has not worked." The only ones that they have managed to convince are people in Government. The fact is that their practices are rogue and illicit contrary to all prescribed laws of society and custom. The fact that they are implemented really means nothing to as to them being allowed to continue. That is what will be the difference between good Government decisions and poor and unenlightened ones. I understand this hearing is about pesticides, but so far I have yet to hear the touted benefits of biotech farming for Hawai`i justifying poisoning residents. The records show that biotech gets sweet deals such as paying as little as fifty dollars ($50) an acre for a year for Ag land. They are also heavily exempted from taxes and have been delinquent for several years. I think it should also apply to irrigation ditches. Who knows who goes to the irrigation ditches— children, animals, or birds? It is all part of the cycle. SPECIAL COUNCIL MEETING 62 OCTOBER 8, 2013 Chair Furfaro: Elaine, that is your first three (3) minutes. You have another three (3) minutes. Ms. Dunbar: I will try to do less than that. These are the two (2) critical parts of the Bill; the open air experimental testing and the moratorium. They can also be added incentive for the companies to adhere to responsibilities and to prove themselves. It will force compliancy without being contingent on new positions being funded. Waiting for the year 2015 or beyond is ridiculous and effectively annihilates the whole Bill. Let us not focus on enforcement as being the backbone of the Bill. Effectuate the Bill first and effectuate the enforcement aspect simultaneously or after because you cannot even begin to address enforcement unless all of the rules are in place. I believe Councilmember Yukimura mentioned this earlier today. It was difficult to hear downstairs, but that is an important component. The enforcement will come after. The GMO companies can be made to pay for that. They are raking it in at everybody else's expense like their taxes, land uses, and health. That is all I have for today. Should I leave testimony? Chair Furfaro: You can leave testimony to us, yes. Are there any questions? If not, I am going to call our meeting back to order. There being no objections, the meeting was called back to order, and proceeded as follows: The motion to receive C 2013-329 for the record was then put, and unanimously carried. Chair Furfaro: On another note as I shared earlier this morning, we will be going into recess until Monday, October 14, 2013. Did you have something to say before I go any further? Mr. Kagawa: Yes. Could we change it to Tuesday? For me, a full week would be good, but if members still want to do it on Monday, that is fine. Chair Furfaro: Members, there is a suggestion that we go to Tuesday. Ms. Nakamura: That is fine for me, Chair. I had some meetings scheduled for Monday, but I was going to reschedule them. Tuesday is open for me. Chair Furfaro: Mr. Hooser, do you have any comments? Mr. Hooser: Likewise, I was going to reschedule my Monday, but Tuesday is a better day for me also. Chair Furfaro: Okay. Councilmember Yukimura? Ms. Yukimura: I have three (3) meetings that I would have to reschedule and I can do it, but I would like to have a lunch recess so I can attend one of my meetings at 12:00 p.m. SPECIAL COUNCIL MEETING 63 OCTOBER 8, 2013 Chair Furfaro: Okay. I will assure that you have a lunch period that starts at 12:00 p.m. Staff, would we have a problem with scheduling this posting for Tuesday for the recess? Mr. Rapozo: I do not have anything on Tuesday, but I do not want to do it on Tuesday. No, I am just kidding. Chair Furfaro: On that note, when we come back to order from this recess, I want to point out that we will have two (2) Executive Sessions, the Committee Report, Bill for Second Reading, and the Resolution. We are going to recess now to Tuesday, October 15, 2013. Ms. Fountain-Tanigawa: Yes, at 9:00 a.m. here at the Council Chambers. Chair Furfaro: Thank you. We are in recess. There being no objections, the meeting was recessed at 1:25 p.m. SPECIAL COUNCIL MEETING 64 OCTOBER 15, 2013 The Special Council Meeting reconvened on Tuesday, October 15, 2013 at 9:11 a.m., and proceeded as follows: Chair Furfaro: Aloha, good morning. I would like to give notice of a continued agenda from the October 8, 2013 Special Council Meeting, as it was recessed until Tuesday, October 15, 2013 on or about 9:00 a.m. Based on this continued agenda, we have completed all the way to item (F) that dealt with Communications. But before we go any further on a housekeeping item, I would like to do a roll call and then ask the County Attorney to come up for an interpretation. Honorable Tim Bynum (present at 9:35 a.m.) Honorable Gary L. Hooser Honorable Ross Kagawa Honorable Nadine K. Nakamura Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Jay Furfaro JADE K. FOUNTAIN-TANIGAWA, Deputy County Clerk: Six (6) present. Chair Furfaro: Six (6) here. I believe Mr. Bynum is on his way, the Staff received a call. Thank you. On that note, I would like to ask the County Attorney to come up and I would like to give the floor to the Vice Chair. Would that be you Mr. Trask? Thank you. There being no objections, the rules were suspended. MAUNA KEA TRASK, Deputy County Attorney: Aloha, Chair and members of the County Council. Chair Furfaro: Thank you very much. I am going to give the floor for a question to the Vice Chair. You have the floor, Madame. Ms. Nakamura: Thank you, Mauna Kea for being here. I just wanted to put on the record and ask the questions because it has been raised to me about whether I have a conflict of interest in participating in today's discussion. I just wanted to see if you have had a chance to take a look at the Charter and the Code of Ethics. Mr. Trask: Yes, Vice Chair, and just for clarity of the record, the conflict of interest would be based upon the recent announcement that you would be the Managing Director as of November 1, 2013? Ms. Nakamura: Yes. Mr. Trask: Yes, the County Attorney's Office has looked at the issue. In analyzing the situation we looked at the Kaua`i County Charter Article 20, Code of Ethics. We also looked at the Kaua`i County Code, specifically Kaua`i County Charter Section 20... Mr. Hooser: Chair, could we ask him to speak... SPECIAL COUNCIL MEETING 65 OCTOBER 15, 2013 Chair Furfaro: To speak up? Mauna Kea, is you microphone on? Mr. Trask: Yes. I am sorry, I will speak up louder. I am just trying to find the pertinent section right now. I think it is Section 20.02. Yes, it is Section 20.02, (A) through (F), as well as the Kaua`i County Code, the pertinent sections being Section 3-1.6, Fair Treatment and Section 3-1.7, Conflicts of Interest. In short, based upon the Sections and the law as stated, it does not appear that there is a conflict of interest in this case. There is not. Ms. Yukimura: There is no conflict? Mr. Trask: There is no conflict. Ms. Nakamura: Thank you, Mauna Kea, for that opinion. I will participate in today's discussion. Chair Furfaro: Any other questions for the County Attorney. If not, Mauna Kea, thank you as usual. Mr. Trask: Thank you. There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: On that note, we have done the roll call and I am going to ask the County Clerk to read the item that we left on please. Ms. Fountain-Tanigawa: Council Chair, this is on page two (2). COMMUNICATIONS: C 2013-330 Communication (10/02/2013) from Councilmember Yukimura, requesting Council consideration for the public release of the County Attorney opinion dated September 26, 2013, relating to "Request for Legal Opinion Relating to Whether the Council Can Establish Laws Banning the Use of Atrazine." Chair Furfaro: May I ask that we read the second communication as well? C 2013-331 Communication (10/02/2013) from Council Vice Chair Nakamura, requesting Council consideration for the public release of the "Final" County Attorney written legal review/opinion regarding Proposed Draft Bill No. 2491. Chair Furfaro: Those are the communications that I would like to receive so that we can go to the two (2) Executive Session items. Mr. Rapozo moved to receive C 2013-330 and C 2013-331 for the record, seconded by Ms. Nakamura. Chair Furfaro: I have a motion to receive and a second. Councilmember Yukimura. SPECIAL COUNCIL MEETING 66 OCTOBER 15, 2013 Ms. Yukimura: Thank you, Chair. Just a clarification that we are receiving this, we will go into session, and get the County Attorney's input about release, and then come back out? We could decide to receive it at the end, but we would come out to vote on the motions to receive. Chair Furfaro: Yes. Ms. Yukimura: Okay, I get it. Chair Furfaro: That is the correction you were going to make, I believe? Mr. Rapozo: Yes, that we have to keep the items open so that we can vote on it when we come out of Executive Session. Ms. Yukimura: Right. I understand. Mr. Rapozo: I guess the proper motion would be to defer this until after the Executive Session. Ms. Yukimura: But we could leave a motion to receive pending without acting on it. Mr. Rapozo: We could. Chair Furfaro: There will be no action. We have a motion and a second. We will come back to it when we come out of Executive Session. Everybody fine with that? On that note, I would like to call up the County Attorney again. There being no objections, the rules were suspended. Mr. Trask: Aloha again. Chair Furfaro: Mauna Kea, we would like you to read the two (2) related Executive Sessions that we just referred to in the communications. Mr. Trask: Yes, Chair. EXECUTIVE SESSIONS: ES-679 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the Office of the County Attorney, on behalf of the Council, requests an Executive Session for Council to consult with the County Attorney regarding the Council's release of the County Attorney's final written legal review/opinion regarding proposed draft Bill No. 2491 and related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. ES-680 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the Office of the County Attorney, on behalf of the Council, requests an Executive Session for Council to SPECIAL COUNCIL MEETING 67 OCTOBER 15, 2013 consult with the County Attorney regarding the Council's release of the County Attorney's written legal opinion dated September 26, 2013, regarding the "Request for Legal Opinion Relating to Whether the Council Can Establish Laws Banning the Use of Atrazine" and related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Nakamura moved to convene in Executive Session for ES-679 and ES-680, seconded by Ms. Yukimura. Chair Furfaro: I have a motion from the Vice Chair, a second from Councilmember Yukimura. Is there any discussion members? It has been my tradition as Chairman, I will do a roll call vote before we go into Executive Session. Roll call, please. The motion to convene in Executive Session for ES-679 and ES-680 was then put, and carried by the following vote: FOR EXECUTIVE SESSION: Hooser, Kagawa, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 6, AGAINST EXECUTIVE SESSION: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum TOTAL — 1, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Six (6) ayes. Chair Furfaro: 6:0. We will be going into Executive Session. I would like to clear the room and I would like to ask the members to meet in the chambers at 9:30 a.m. There being no objections, the Council recessed at 9:20 a.m. There being no objections, the Council reconvened at 11:08 a.m., and proceeded as follows: (Mr. Bynum was noted as present.) Chair Furfaro: Aloha, and we are back. I want to make certain that I touch on a few particulars as Chairman of the Council. I want to share how much I would appreciate it if everybody would adhere to the appropriate decorum while here in the chambers for us to conduct our business. We want to make sure that we support equal and fair treatment and opportunity for all who wish to speak, but I do want to see if we cannot get to a vote on the Bill today one way or the other. I also, at the discretion of myself, will limit testimony to three (3) minutes as we have had almost sixty-five (65) days of dealings, we have had a substantial amount of public hearings, and we do want to conclude our business today as we do have regular Council business tomorrow not focused on this Bill. Now, when we broke, we broke for a briefing on two (2) Executive Session items and I do want to note that Mr. Paul Alston is here. I am sorry for the mispronunciation, Paul, and I would allow you to speak on the Executive Sessions at this time. SPECIAL COUNCIL MEETING 68 OCTOBER 15, 2013 There being no objections, the rules were suspended. PAUL ALSTON: Good morning. My name is Paul Alston. I am here on behalf of Syngenta to urge you to release both of the opinions that are the subject of the two (2) resolutions. The legal questions posed by Bill No. 2491 are complicated. They are not questions that lend themselves to answers in response to questions in these proceedings, to short written testimony or to sound bites or letters to the Editor of the kind that we have seen. They are ones that require close analysis of Federal statutes, State statutes, and case law. As you know, the proponents of the Bill have supported their views with a lengthy legal opinion. My client and others have supported the opposition to the Bill with sophisticated analysis and I suggest to you that the dialogue about the Bill will be significantly advance by relapsed of the County Attorney's opinions so that all sides can be aired, analyzed, and discussed more fully. I think that there is really no good reason to hold back that opinion when the County Attorney has solicited and received input from all sides. So, that is what I would urge you with respect to Bill No. 2491 opinion. With respect to the Atrazine opinion, my client is very concerned that anyone would suggest that the County has the authority to ban Atrazine and I would suggest that to the extent that that is a serious issue up for discussion, that you release that opinion as well so that we can engage in a dialogue with you and your Attorneys about that proposition. Thank you. Chair Furfaro: Paul, we have a question for you that is from Councilmember Bynum. Mr. Bynum: Mr. Alston. Mr. Alston: Yes, sir. Mr. Bynum: I sincerely appreciate you being here and want to note that you have been here for each of our meetings and available. I appreciate that. Mr. Alston: Thank you. Mr. Bynum: Given your opinion, which I have read extensively, makes it clear that and you have said, "It is a given that you would challenge us legally," why would we want to release our Attorneys detailed opinion and analysis prior to what may be a lawsuit? Would you not advise clients not to do that? Mr. Alston: Well, if that was the advice I was going to give, we would not have given you a thirty-eight (38) page letter that laid out the reasons why we think the Bill is flawed. I think that in fact, both the quality and the end result of the debate over the Bill would be affected for the better by a full disclosure. We have given a very detailed analysis. To hear the other side would simply further the discussion. Sooner or later we will hear the County Attorney's opinions I suppose. That is all. Mr. Bynum: I just have one other question which is, if any portion of this Bill should pass today, it will become the County Attorney's responsibility to defend that position, correct? SPECIAL COUNCIL MEETING 69 OCTOBER 15, 2013 Mr. Alston: I do not know the internal workings of the County Attorney's Office and whether the Attorney under the direction of the Mayor has the ability to simply decide not to defend any parts of the Bill. The Federal government for example, operates in a way where the Department of Justice can, under the guidance of the President, choose not to defend Bills that Congress passes. I do not know how it works in the County, whether the Mayor and the County Attorney would have the same discretion and appropriate circumstances. Mr. Bynum: Thank you very much. Chair Furfaro: Any other questions? Paul, thank you very much for your testimony. Mr. Alston: You are welcome. Thank you. Chair Furfaro: Do we have anyone else in the audience signed up on the legal Executive Session portion? Ms. Fountain-Tanigawa: Yes. The next speaker is Anne Punohu. Chair Furfaro: Anne, before you start, I am giving speakers three (3) minutes. ANNE PUNOHU: I have a question and I wanted to know if I can ask, as a member of the general public before I give my testimony for three (3) minutes, to please clarify something for the rest of us sitting in the room so that we can testify properly. Is it alright if I ask a question? Can I ask a question first for clarification? Chair Furfaro: It is your three (3) minutes. You can ask a question. Ms. Punohu: My question to the Council is, if the general public asks for the release of the opinion, does that mean that it would hurt us or help us? Which helps the people more, to release the opinion or to not release the opinion because I am here on the side of the people today and that is my question to you before I give my opinion on if it should be released or not. If it does not benefit the people and we are the clients, then I would say do not release it. If it benefits us as the people then release it. I cannot really say either or unless I get clarification. May I have that? Chair Furfaro: I can give you what I feel is appropriate. Ms. Punohu: Thank you. Chair Furfaro: And that is all I can do. I went to hotel school, I did not go to law school so... Ms. Punohu: That is fine. Chair Furfaro: But I want you to know that an Executive Session was held for legal opinions which really lead to an understanding of what the County strategy would be. SPECIAL COUNCIL MEETING 70 OCTOBER 15, 2013 Ms. Punohu: I see. Chair Furfaro: Whether defending the Bill or finding ourselves defending a countersuit. So, it is very challenging to tell you "yay" or "nay," but it is about having a strategy for legal defense and therefore it is in Executive Session and unless the members, majority vote to release, it is usually kept confidential. Ms. Punohu: Thank you for that. Then my opinion on that is then, that if the idea is to actually fight the Bill...I mean I am a little bit confused about what you are really actually saying. You are telling me that if you do not release information it is generally always held as confidential and not released, and that the County can take an either or stand on the Bill? They can actually go against the Bill is what you are telling me? Is that what I am hearing? Is that correct? Chair Furfaro: Anne, I am just going to say, your assumption is your assumption accordingly. Again, whatever the outcome is, the reality is legal opinions form strategies for defense. That is all that I am going to say. Ms. Punohu: Well, then I stand by my original comment which is whatever helps the people, I am in support of, whatever hurts the people, I am not in support of. Mahalo. Chair Furfaro: Wait, we have questions for you. I think Mr. Hooser, did you have your hand up? No. Ms. Punohu: Questions for me? That is pretty unusual. Chair Furfaro: Mel. Mr. Rapozo: Thank you, Mr. Chair, and thank you, Anne for your testimony. Would you not agree that in order to have a beneficial productive discussion though, that we should have all of the available information or should we just use what we believe will help our cause, as a government now, as the County, as the legislative body? Ms. Punohu: My first gut reaction as a member of the general public is release, release, release. But now in the last five (5) minutes that I have been talking to you folks, I am not sure about that. Mr. Rapozo: No. The general question is would you not agree though, that in order to have an intelligent productive discussion on the matter whether it is the Bill or any matter, that you would have the information from everyone? I mean how else could you have a discussion? Ms. Punohu: You make a good point. Mr. Rapozo: That is just common sense for me. It just makes sense that why would you exclude information when what we are trying to do is have a discussion... SPECIAL COUNCIL MEETING 71 OCTOBER 15, 2013 Ms. Punohu: The question is, is the information going to be used a strategy against the people, to pass the people's Bill. That is my concern. Mr. Rapozo: The County Attorney's Office is tasked with providing a County Attorney's opinion based on analysis of the facts and... Ms. Punohu: We must also remember too, it is an opinion. Mr. Rapozo: Right, exactly. Ms. Punohu: It is not law. Mr. Rapozo: Exactly, as is all of the other opinions that are floating around. I mean it is opinion, but I think in general when we have a discussion, when we want to have a productive effective discussion, would it make sense... Ms. Punohu: Are you releasing information though... Chair Furfaro: Excuse me, Anne. Ms. Punohu: I am sorry. I apologize. Chair Furfaro: The Councilmember has the floor. You had your three (3) minutes to pose the question. He has an opportunity to respond to your question. Those are the rules. Mr. Rapozo: I have known you a long time Anne. That is why it surprises me when you say, "If it helps us, "yes," if not, "no," because I think your character is let us put everything on the table and then make an educated and informed decision. Ms. Punohu: That is my normal character, but today I am not my normal character. Mr. Rapozo: That is fine. Thank you, Mr. Chair. Ms. Punohu: Mahalo. Chair Furfaro: We still have questions for you Anne. Mr. Hooser, you wanted the floor? Mr. Hooser: Yes. I was just going to try my best to respond. I think Councilmember Bynum really addressed that issue and I was going to ask the question to the previous speaker whose client had threatened to sue the County. It says that why would we want to give you all of our research, information, and legal reasoning when you are going to sue us? Why would we not keep that to ourselves then we can fight about it in court? Regardless of what the opinion says, to give all of our cards to the people who are threatening to sue us would be a difficult choice for me to make. Thank you. Ms. Punohu: Thank you, Mr. Hooser, for your clarifications. I really appreciate it, as a member of the general public, thank you. SPECIAL COUNCIL MEETING 72 OCTOBER 15, 2013 Chair Furfaro: JoAnn. Ms. Yukimura: Well, I want to try to answer your question too, Anne. The confusion is that we are at the crossroads of two (2) different forums. This is a legislative forum and normally it operates on the principle of robust discussion, but if we are going to be involved in court, it is a very different forum with different rules and principles. In court, the process is an adversarial one so you do not disclose your strategies or information to the other side. If we are going to court to defend Bill No. 2491 as is a possibility, then it is in my opinion and usually Council will advise as such, that we do not reveal our hand as Councilmember Hooser has said. But I have to say that in the legislative forum where Attorneys have been very vocal about why Bill No. 2491 is legal in their mind, if the advice is different by our County Attorney it would help us to have, as Councilmember Rapozo has said, a robust discussion so the public can see all sides of it. But that is the problem, that we are on the interface of two (2) different forums. Ms. Punohu: Well, this is a problem for the general public to decide as testifiers then, when we hear all of... Chair Furfaro: Anne, she answers your questions. Ms. Punohu: Thank you for answering my question. Chair Furfaro: Thank you for coming up Anne. Ms. Punohu: Mahalo. Chair Furfaro: Is there anyone else that wishes to sign up on the legal questions? Have you signed up? Remember, the items that we are talking about now are the two (2) Executive Sessions. Do I have members that have previous appointments at 12:00 p.m.? We will take lunch at 12:00 p.m. Just introduce yourself. Go right ahead. HOKU CABEBE: Aloha, I am Hoku. I am from Wainiha. Yes. Regarding the County Attorney's opinion, I think at this point this is really the people's Bill. This is not the County's Bill, this is not the County Attorney's Bill, this is the people's Bill, and what you folks are trying to figure out and we have already been doing years of research. We trust people within our group have done this and they have come up with this stuff. We have lawyers who are backing us, who have given us opinions that we, sad to say, take way over and above your County Attorney because this is not our first stance with your County Attorney. We have already seen what they do and how they move and how they work. We do not trust them regardless of what their opinion is. I just wanted to state that fact and please just go with what the outside sources who have come in to help the people of Kaua`i pass this Bill say, because they have come in here and we have heard them testify. You are saying the County Attorney is going to be defending us, really probably not. We are probably going to bring in better Attorneys to handle these matters. Thank you very much. Chair Furfaro: Next speaker. Who is next? Your time will start when you introduce yourself. SPECIAL COUNCIL MEETING 73 OCTOBER 15, 2013 HARVEST EDMONDS: My name is Harvest Edmonds and this is about the releasing the information from the Attorney. I find it very interesting that the Attorney for Syngenta actually said that they were looking for full disclosure when that is what we were looking for in the passage of this Bill, is full disclosure. I think that if releasing this information is going to be, as Gary said, against, hard to defend later on in court, then we need to not release it. Thank you. Chair Furfaro: Thank you. Next speaker. BRENT NORRIS: Brent Norris. I am representing myself. I am sure that you are already aware that the possibility might not be that the chemical companies are going to bring a lawsuit, rather the people may bring a lawsuit against the County. I think you may be creating additional exposure for the County taxpayers if you release information now without giving it additional thought. Thank you. Chair Furfaro: Thank you. Next speaker. Is that all that has signed up? Members, I am going to call the meeting back to order. There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: I believe there was some discussion maybe about deferring this until the end. Is there any further discussion? If not, I am going to go to...yes? Mr. Rapozo: Mr. Chair, like I stated in my question to Anne, that in order for us to have a... I think JoAnn called it a robust discussion, I think it is important that the public gets to see all opinions. Up until this point, they have seen all of the opinions except the one from the County. Granted it may be portrayed as the people's Bill, but nonetheless it is still a Council's Bill that this body has to pass or not pass and really, the County Attorney's opinion although is not a requirement that the Council follows the opinion, I believe it is important and vital that the public gets to see it prior to the discussion and prior to the vote. I understand that there are some questions about exposure, but I think the arguments for this Bill, for and against, are quite simple. It is the preemption issue as well as the constitutional takings issue. I mean, I think that is the two (2) big concerns. It is no secret. This is not complicating in that sense. There are a couple of legal arguments, but I believe that the public has a right and is entitled to seeing the County's opinion because we have seen opinions from various other sources and I will tell you that some of the sources, one of the Attorneys that I have met and I am not going to mention names because I do not think that is cool. But one of the Attorneys that met with me had not even read Chapter 149(A), the governing law of pesticides in Hawai`i, had not read that but was quick to create an opinion. I think the fact of the matter is the County Attorney did, and that is why I think it is important that the public see the opinion. You can agree or disagree with the opinion, I mean so can we. But the bottom line is it is a very complex analysis of the situation that I believe the public should see. I see you waving your heads, nodding your heads back there, but like Mr. Chair always says, you can never get in trouble for having too much information. What harm is it to have the opinion out so that the general public, and not just the ones that are here in the Council Chambers and the ones that are downstairs, but there are a lot of people that are following this Bill that do not make it here that have taken a side because of what they have read in the paper. They have read opinions from Attorneys whether it is Private SPECIAL COUNCIL MEETING 74 OCTOBER 15, 2013 Sector Attorneys, Corporate Attorneys, or seed company Attorneys. They have read it and they have formed an opinion based on what they have read, but yet they have not seen the opinion of the Attorney that is going to defend the Bill. I mean, why would we not want that, really? I am going to support the release of this opinion today. Obviously, we need five (5) votes. I do not think we will get it, but I want it on the record that my focus is having all available information on this matter available to the general public and I am not going to supporting the motion to receive and if it does not pass, then I will making a motion to approve the release. Thank you. Chair Furfaro: Mr. Hooser. Mr. Hooser: Yes, I will be supporting the motion to receive. I mentioned earlier that we have been threatened with a lawsuit by two (2) of the largest agro-chemical companies in the world who have zillions of dollars and who have said they will sue the County for the right to spray poisons next to school, they will sue the County if we make them tell us what they are spraying, they will sue the County if we go so far as to do a study, everything in the Bill is bad. They have said they would sue us so why would we give them our legal strategy? It just does not make sense to me. I doubt that if Mr. Alston would give us the private communications between himself and his client. The public has the same right to see all of the testimony, Mr. Alston's testimony, Ms. Bronster's testimony, and other testimony opposing the Bill. It is public record. You can see all sides that have been made public. I believe this is a good Bill, I believe it is legally defensible, and I believe it would not be in the best interest of the people of Kaua`i to release regardless of what it says, our strategy and our information to the people who have threatened to sue us. So, I will be voting to receive and not to release the information. Chair Furfaro: Members, if there is any more discussions now that we have called back to order, I will take it now, but I want to remind you that I will be moving this item to the final item for a vote today. Mr. Bynum. Mr. Bynum: Does moving an item require a vote of the Council? Chair Furfaro: It could. Mr. Bynum: I just want to say that there is a really big difference between privacy and secrecy. I have been in this County for many years now and we are and have been a County that keeps too many secrets. I fought against those secrets for a long time. I keep saying that I am comforted by a public record because for those of you who are new to this process, you can go back and look at the things I say and whether they are true or not because they are on the public record. I fought to change the law about release of public Attorneys. I voted to release many of them. We have had lots of dialogue about the difference. This County has a history of paying out two hundred fifty thousand dollars ($250,000) to somebody who made a claim that we kept secret from the public for a very long time. When the bike path got shut down, we have to pay three hundred seventy-five thousand dollars ($375,000) to contractors and there was an attempt made to keep that secret from the public that we paid that money. Those kinds of secrecies I will fight against, but this is about privacy. We have a serious legal issue here and we have a detailed legal analysis of many pages, piece by piece. As Mr. Hooser said, Mr. Alston is not going to release all the E-mails between him and SPECIAL COUNCIL MEETING 75 OCTOBER 15, 2013 his clients about their legal strategy and that in essence, is what we are being asked to do. If we do choose to release this, I will press for release of everything related to this opinion, all of the minutes of all of the Executive Session because if you are entitled to know the whole truth and we are going to display our legal strategy in advance, which I think is extremely unwise, then I want you to see the whole truth. I will be voting to receive which means not to release the opinion, not because I am trying to keep anything secret and I have encouraged the County Attorney and my colleagues to release an Executive summary or a synopsis if they feel that strongly, but not the detailed point-by-point, case-by-case, with Supreme Court citings. If you ever read a full detailed...if you have a dispute with your neighbor and your Attorney came over and said, "You have a strong argument because you built that wall, but it is on the property line so your neighbor has a strong argument too and it is going to come down to this." So, your neighbor has a strong argument, are you going to tell your neighbor, "Oh, my Attorney says you are going to win on this one." Maybe the neighbor did not even know about that. Now, Mr. Alston is a pretty smart guy. He probably figured out everything. Mauna Kea, who is also a really smart guy, wrote. He wrote is for us and when I say us, I do not mean the Council, I mean all of you. So, I will ask all of you. You are in a legal dispute, do you want to tell your neighbor what your Attorneys told you their strengths are? That is what this question is. Thank you. Chair Furfaro: I just want to go through some housekeeping items really quick. We need to look at the items C 2013-330 and C 2013-331. It seems that the Chair has been challenged on C 2103-331 to call for a vote if we are going to defer this item to the end and C 2013-330, we had a motion to receive I believe, before we went in. But at this time, I will go ahead and... Mr. Rapozo: Mr. Chair, may I make a really quick request of Mr. Bynum. Chair Furfaro: Sure. Mr. Rapozo: Mr. Bynum referenced the Executive summary of the opinion which I am perfectly okay with. I am glad to hear that he would support that. So, if that is something that we can do while you move this and see if the County Attorney would be able to provide an Executive summary without the detail, I am okay with that as well. I am sorry. Chair Furfaro: Mr. Rapozo has the floor. Mr. Rapozo: I am just reiterating what Mr. Bynum said. He said, "I have asked my colleagues and the Attorneys to release an Executive summary without going into the detail and I am saying I am okay with that. I am agreeing with him, that I can forgo the complete sixty-six (66) page opinion, but I would be in support of the Executive summary as was stated by Mr. Bynum. That is all that I said. Chair Furfaro: I agree. You would like to respond? But I did hear what he just reiterated you just said. Mr. Bynum: That is not what I said. Chair Furfaro: That is not what you said? SPECIAL COUNCIL MEETING 76 OCTOBER 15, 2013 Mr. Bynum: May I? What you just said was an "oops." I should not have said that. We have a choice between bad and worse. Releasing the opinion is a mistake. I was looking for a bad... it would be terrible to release the County opinion in my opinion. It would be less terrible to release just the summary. I am going to be frank, I do not want a sense that I was trying to hide behind because the County Attorney made misgivings about our legal position. It is like, "Do I want to release this?" No. I proposed in this process, if you are tail-bent on releasing this, at least limit the release. But Mr. Hooser is correct. That is not on the agenda. We cannot do that today. In my opinion, it would require a new thing and I should have not said that because I created a faux pas. Chair Furfaro: Thank you for your apology and Mr. Hooser's comments are interpreted by the Chair. Mr. Hooser, you are correct on your comments. It is not on today's agenda, but that is not Mr. Hooser's decision, that is the Chairman's. Mr. Bynum: I agree. Chair Furfaro: Now, I want to move forward because we are going to adjourn at 12:00 p.m. I will give the floor to Councilmember Yukimura. Ms. Yukimura: Mr. Chair, I would like to give some comments about whether to release or not to release. To not release the County Attorney's opinion does create an unfair playing field in terms of our discussion about the Bill. I actually was aghast at some of my legal colleagues who endorsed passage of the Bill based on their legal judgments because I do not think they have really looked closely at the law and releasing the County Attorney's opinion would show where we have to look at the law. It is important for the public to understand that legal issues are not simple. Some of you have been lobbying to re-insert the moratorium and the Environmental Impact Study (EIS), but in my opinion and based on some other lawyers opinions it would make the Bill far harder to defend and to establish County jurisdiction. It would be useful to have a robust discussion on the legal opinions. However, there is also integrity of process and I just know that the integrity of the court process will be jeopardized if we release basically something within the Attorney-client privilege. So, I am not going to vote for release. Chair Furfaro: I would like to go back and do a little housekeeping right now with the Clerk. Madame Clerk, what I would like to do is first look at item C 2013-330 and I would like to look at C 2013-330 which was an opinion that dealt with the use of Atrazine and so forth. I would like to see if there is a motion to receive that item as earlier stated before we went in. I want to get that off of your agenda. Then I will go to C 2013-331. On C 2013-331, there was an implied motion to take action now versus the end of the meeting. I will have to take a vote on that first. JoAnn, do you want to make a motion for C 2013-330 which is at the receipt of Atrazine Executive Session? Ms. Yukimura: Mr. Chair, just a procedural clarification. With the issue about the release of the County Attorney's opinion on Bill No. 2491, are you deferring that to the end of this agenda then? Chair Furfaro: No, what I am taking to the end of this agenda is a vote to either vote on it now or to put it at the end. That was the challenge made of the Chair's opinion. I want to put it at the end. SPECIAL COUNCIL MEETING 77 OCTOBER 15, 2013 Ms. Yukimura: Unless we appeal the decision of the Chair, I think you can do it by your decision. I just want to make sure that is off the table and we are at the next item. Chair Furfaro: Yes. We are at C 2013-330. I want to get that. Ms. Yukimura: That is the ban of Atrazine? Chair Furfaro: That is the Atrazine and I appreciate you sharing that comment at the Chair's discretion. It is a way of living aloha. But I am showing my courtesy here since one (1) member challenged that vote. I will ask to vote to go to the end or vote on it now. We will see what we have. But let us take care of the Atrazine. Ms. Yukimura: Okay, and I believe there is a motion to receive on the floor with respect to that. Chair Furfaro: Yes, there is. Ms. Yukimura: As the person who made the proposal to release the opinion, I am either willing to have us all vote for or whoever, but we can either take action to receive it or I can withdraw it. Who made the motion though? Ms. Fountain-Tanigawa: There is a motion and a second. Councilmember Rapozo and it was seconded by Councilmember Nakamura. Ms. Yukimura: So, either if I ask to withdraw it then you can withdraw the motion or we can go ahead and vote on it if you want to. I have said that I have been looking into the possibility of banning Atrazine so I asked for this County Attorney's opinion and then when I got the opinion in October 2nd or 3rd, I thought that it would be helpful in helping the public understand the legal issue surrounds Bill No. 2491 even though it is not exactly on point. It does address the doctrine of preemption, but because it is tangentially related and we have so much business to do, I am willing to just take it off of the table for now and wait for another time. I think we best spent our time on the substance of Bill No. 2491 instead. Mr. Rapozo: Just call for the question. You need five (5) votes. I do not think you will get five (5) votes to release this. So, I will just call for the question, Mr. Chair. Ms. Yukimura: That is fine because I will be voting to receive as well. Chair Furfaro: The question has been called. Motion on the table is a motion to receive with a second. Any further discussion? If not, oh you have? Mr. Bynum: Yes. Chair Furfaro: Go ahead. SPECIAL COUNCIL MEETING 78 OCTOBER 15, 2013 Mr. Bynum: I am also going to be voting to receive but I want to say for the record that I first learned of this opinion when it appeared on the agenda to be released. I did not know there was an opinion. I never saw the opinion. It was not provided to me. Yesterday, I still did not have it. I was informed that it had been put in this binder a week ago. I have been the biggest advocate for the release of opinions in the past and we desperately need to look at this process because of the way this one was handled was inappropriate in my opinion. There is no culprit, it is just we have not established these norms and the Council needs to. But I am going to be voting in support of this. Chair Furfaro: Any further comments? Mr. Rapozo: Mr. Chair, just really quick. I just want to defend the staff because I do not want the public to think that people are hiding things from us. That opinion was provided to our binders last week at the last meeting when we get the agenda. We know where our Attorney's opinions are if we need to go look for it. I want to defend our staff, that I know Mr. Bynum said that he only found out last night from Councilmember Yukimura, but we all got the agenda last week, we all got the opinion last week, and if he failed to take a look at it then that is an issue that he is dealing with, not our staff. I just want to make it clear, that our staff provides us with the documentation, Mr. Chair, as you know on time. Thank you. Chair Furfaro: I know as well as most of the procedures, I have set up over the last four (4) years. I am going to call for the vote. Mr. Bynum: I want to respond to what Mr. Rapozo just said. Chair Furfaro: I am going to call for the vote. The motion to receive C 2013-330 for the record was then put, and was carried by the following vote: FOR RECEIPT: Bynum, Hooser, Kagawa, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST RECEIPT: None TOTAL — 0, EXCUSED & NOT VOTING:None TOTAL — 0, RECUSED & NOT VOTING:None TOTAL — 0. Ms. Fountain-Tanigawa: Seven (7) ayes to receive. Chair Furfaro: The vote is 7:0. Thank you. Now, we will go to C 2013-331 and I am going to recognize Mr. Bynum who wanted to have a discussion about moving this towards the end of the agenda or voting on it now. Mr. Bynum, you have the floor. Mr. Bynum: Chair, I am going to ask you for a moment of personal privilege to respond to what Mr. Rapozo said. Chair Furfaro: Go right ahead. Mr. Bynum: I made no criticism of our staff and I consider Mr. Rapozo's response kind of a cheap shot. We are in a very intense SPECIAL COUNCIL MEETING 79 OCTOBER 15, 2013 period in this Council, I spoke the truth. I did not know this opinion existed until it appeared on the Council agenda and now I am going to say, "Oh, it was related to Bill No. 2491 which is inappropriate." This was put in by the Staff in the binder a week ago. I did not know that. So, I was making no criticism of our Staff and I think our staff knows that. Chair Furfaro: Your apology is well accepted for the Staff. Now, Mr. Bynum, we are on C 2013-331. I will give you the floor as well. Mr. Bynum: I do not have a position on moving this until the end, but I wanted a discussion because whether we release this opinion or not, should not be dependent on the outcome of Bill No. 2491. Whether the Bill passes or not, some future Council may want to bring up similar issues. So, I am concerned that moving it until the end is to have the outcome of the Bill determine the outcome of this vote on release and I do not think that makes sense. I am posing that as a question. I do not know why we would not proceed with the agenda as originally planned. What is the purpose of moving it to the end? Chair Furfaro: Is there any member that wants the floor? Mr. Kagawa, you have the floor. Mr. Kagawa: Thank you, Chair. I believe that in any contentious Bill, and this Bill is certainly as contentious as it gets, is it the County Attorney's job to render advice or opinions to Councilmembers and to the public? I do not believe the Councilmembers are privileged to just keep that information for themselves on a contentious Bill and not share it with members of the public. It does not say what way the Judge is going to decide. It just renders an opinion and it is a very —he put in a lot of work in this. I think Mauna Kea did a good job in giving his opinion as to what the County needs to be aware of. For those reasons, I support Councilmember Rapozo's intention of releasing the opinion and we can vote whichever way we want on the Bill. Thank you. Chair Furfaro: Is there any more discussion on the position of this vote? Vice Chair, you have the floor. Ms. Nakamura: Yes, I just think it would be productive to move on with the item, the main issue at hand, which is Bill No. 2491 at second reading, and then just deal with this opinion after following that decision. I just think that is a more useful use of our time. Chair Furfaro: Any further discussion? Mr. Hooser, you have the floor. Mr. Hooser: Yes, I concur with Councilmember Bynum that if we move it or we do not move it, my position remains the same, that I believe it would be unwise at this time. This issue is not going away regardless of what happens today. This issue will stay remain, the legal issue would still remain, and the interest of the County would not be served. Again, the threats of lawsuits will still remain and so I would just say, deal with it now. But whatever the will of the majority wants to do. Chair Furfaro: Well, what the majority wants to do needs a motion first. SPECIAL COUNCIL MEETING 80 OCTOBER 15, 2013 Mr. Bynum: Mr. Chair. Chair Furfaro: Yes. Mr. Bynum: I just wanted a discussion and I am not objecting. Ms. Yukimura: We already have a motion. Ms. Fountain-Tanigawa: We have a motion to receive on the floor. Mr. Hooser: Oh, there is a motion to receive on the floor already? Ms. Yukimura: Yes. Mr. Hooser: Call the vote. Chair Furfaro: Call for the vote by roll call, please. The motion to receive C 2013-331 for the record was then put, and was carried by the following vote: FOR RECEIPT: Bynum, Hooser, Nakamura, Yukimura, Furfaro TOTAL — 5, AGAINST RECEIPT: Kagawa, Rapozo TOTAL — 2, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL— 0. Chair Furfaro: The vote is 5:2. Did I count that right? Ms. Fountain-Tanigawa: Yes. Chair Furfaro: The floor recognizes Councilmember Yukimura. Ms. Yukimura: Thank you. I just wanted to explain for the public. The motion to receive was a motion to not release the opinion. Thank you. Chair Furfaro: Thank you for visiting that. Again, that vote was 5:2. Now, for the Clerk's Office, I would like to go to the receipt of the approval of the Committee Report and after we receive the Committee Report, we will go to lunch so that when we return we will in fact find ourselves dealing with the actual Bill. But we need to receive the Economic Development (Sustainability / Agriculture / Food / Energy) & Intergovernmental Relations Committee Report. COMMITTEE REPORT: ECONOMIC DEVELOPMENT (SUSTAINABILITY / AGRICULTURE / FOOD / ENERGY) & INTERGOVERNMENTAL RELATIONS COMMITTEE: A report (No. CR-EDR 2013-06) submitted by the Economic Development (Sustainability / Agriculture / Food / Energy) & Intergovernmental Relations SPECIAL COUNCIL MEETING 81 OCTOBER 15, 2013 Committee, recommending that the following be approved as amended on second and final reading: "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," Mr. Rapozo moved for approval of the report, seconded by Mr. Hooser, and unanimously carried. Chair Furfaro: The vote is 7:0. On that note, we have members that have to be at a place at 12:00 p.m., and we will adjourn and we will adjourn... Ms. Fountain-Tanigawa: Recess. Chair Furfaro: ...until ten (10) past 1:00 p.m. Ms. Fountain-Tanigawa: Recess. Mr. Rapozo: Recess. Chair Furfaro: Sorry. We will recess until ten (10) past 1:00 p.m. for a lunch period. When we come back, we will be dealing with item (I), the Bill and the Resolution. There being no objections, the Council recessed at 11:51 p.m. There being no objections, the Council reconvened at 1:28 p.m., and proceeded as follows: Chair Furfaro: We are now going to take testimony on the Bill as it came out of Committee. Can I turn the floor over to the Deputy County Clerk? You will be allowed three (3) minutes to speak. There being no objections, Bill No. 2491, Draft 1 was taken out of the order. BILL FOR SECOND READING: Bill No. 2491, Draft 1 — 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: Mr. Hooser moved to approve Bill No. 2491 on a second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Bynum. Chair Furfaro: I do want to remind everybody of my comments earlier. I would certainly appreciate as Chairman that we adhere to the Rules of the Council and the rules of the chamber as we continue to do our business. First speaker please. Ms. Fountain-Tanigawa: The first speaker is Brent Norris. SPECIAL COUNCIL MEETING 82 OCTOBER 15, 2013 Chair Furfaro: While Brent is coming up, again, this is my last announcement for anyone who wants to speak. Staff, the list has ended, right? Mr. Rapozo: Mr. Chair if I could. I just wanted to say that the ADA speakers equates to four and a half(4.5) hours. Chair Furfaro: Okay. So, four and a half (4.5) hours. I am sorry my math was bad. We have four and a half(4.5) hours of testimony before we got to a point where the Council can begin its work. You have the floor sir. Three (3) minutes. Introduce yourself. There being no objections, the rules were suspended. Mr. Norris: Thank you, Chair Furfaro. Thank you, Councilmembers. I will make it short. I just want to implore you one more time to vote to pass the Bill, realize that there is a lot going on. I would like for you to make an ethical decision today. I am not as concerned about a scientific decision. Thank you. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: Next speaker is Journey Zephier. Chair Furfaro: Jeremy? Ms. Fountain-Tanigawa: Journey. Chair Furfaro: Journey, sorry. My apologies. Who is the next speaker after that so we can be prepared? Ms. Fountain-Tanigawa: Bonnie Bator. JOURNEY ZEPHIER: Aloha. My father is a Chief, my grandfather was a Chief. I am here to represent the heiki of Kaua`i and the seventh generation. I am going to look each of you in the eyes for thirty (30) seconds as you look in my eyes. Know that your vote today is for me, for all of the children, and the seven (7) generations to come. It is our future. I will start with Ross to my right. Chair Furfaro: This period of time is for testimony. Mr. Zephier: Mel. Nadine. Jay. Tim. JoAnn. Gary. Chair Furfaro: That was your three (3) minutes. Mr. Zephier: Today I will vote... Chair Furfaro: That was your three (3) minutes. Next speaker please. Ms. Fountain-Tanigawa: The next speaker is Bonnie Bator followed by Robert Pa. BONNIE BATOR: Hi, my name is Bonnie Bator. I have the opportunity to be here to represent myself and my ohana because I have taken the SPECIAL COUNCIL MEETING 83 OCTOBER 15, 2013 day off from work to support Bill No 2419. We wholeheartedly support Bill No. 2491 that promotes healthy babies, keiki, kapuna, marine life, and the lepo of ko`i. Bill No. 2491 will hopefully stop the eighteen (18) tons of Restricted Use Pesticides (RUP) from being dumped on our island. Eighteen tons (18) of Restricted Use Pesticides used annually not only contaminates our keiki, kupuna, but the aina and also ends up in the ocean affecting the reefs surrounding Kaua`i. The reefs of Kaua`i are dying. What about all of the fish that everyone wants to catch? The Hawai`i Health Information Corporation, June 25, 2004, Issue Number 3, www.hhic.org stated, "Kaua`i County residents have the highest asthma hospitalization rates of all Counties with hospitalization rates among children zero (0) to four (4) almost two (2) times greater on Kaua`i than Honolulu, Hawai`i, and Maui Counties. Between 1995 and 2002 asthma hospitalizations increased nearly twenty percent (20%) among the elderly. In 2002 one (1) in five (5) hospitalization asthma patients was sixty-five (65) years of age and the cost on the average was twice as much to treat per stay. Additionally, the Hawai`i Department of Health, Health and Vital Statistics stated, `Among the islands, Kaua`i has the highest asthma prevalence rates."' Autism is rapidly increasing. It is about one in every eighty (80) births. Pesticide use is linked to autism. Toxicity in our environment, especially Restricted Use Peptides, is also associated in the cause of various developmental disabilities and birth defects. The bottom line, profits of the trillion dollar chemical industries who spew eighteen (18) tons of unrestricted use pesticides annually on Kaua`i at the expense of the health and generations of the yet unborn is criminal and obscene. To wait two (2) months until the 2014 Legislative Session convenes for the legislation to be passed to circumvent Home Rule of Kaua`i County to override the health of our island, its people, and the unborn is immoral. Where is the conscious of the Kaua`i County Councilmembers? Will you bow to the trillion dollar entities, those which weld the power that trillions of dollars hold? Please, members of Kaua`i Council, please vote for passage of Bill No. 2491 which has been watered down considerably from it first reading in June. Mahalo plenty, and here is copies if anyone wants any. Chair Furfaro: Next speaker please. Ms. Fountain-Tanigawa: Next speaker is Robert Pa, followed by Dustin Barca. ROBERT PA: Aloha members of the County Council. Chair Furfaro: Do you have a new mo opuna? Mr. Pa: I do. Chair Furfaro: Good for you. Congratulations. Mr. Pa: I was sitting there at the window after she was born, and I looked out of the window and what do I see? Genetically Modified Organisms (GMO), Pioneer right outside of the window. She does not have a chance the minute she walks out of that room. Chair Furfaro: Mr. Pa, you have to introduce yourself before you go on. Mr. Pa: Chief Robert Paoli Pa from the Polynesian Kingdom of Atooi. We ask you folks sincerely to pass this Bill. Our people have the SPECIAL COUNCIL MEETING 84 OCTOBER 15, 2013 right to know, each and every day. If people took so long to notice this Bill or to learn about this Bill, it is not our kuleana. That is their kuleana for taking their time and not really opening their eyes and seeing what is going on. I look out that window today. Tears come from my eyes because my granddaughter does not have a chance the minute she walks outside of that door with the East wind blowing, she is going to get the first breath of what? Pesticides, right outside of the door of the hospital. Please, please, pass this Bill. I cannot see how we cannot even get together at this point if this Bill does not pass. We, the people, vote you people in to protect and to serve us, the people of the land not the entities that come with dollars and billion dollars because money is not worth a breath of life. A breath of life is worth ten (10) times more that dollars will ever be worth. Dollars are paper. We breathe air, we live air, I humbly ask you folks, think about this. I know you folks have a good thought about what is going on. It is not about our pockets, it is about our life, it is about our history, it is about our mo opunas, my mo`opuna's mo opunas that are not even thought of yet. That is the people that I want to breathe fresh air. Our waters, look at the bees that has been dying on our beaches. Not too many people are pointing it out. Those bees are dying from these pesticides. Once those bees are gone, that is our nourishment for us, is honey. It is our number one nourishment and we are killing it. We are allowing these people to come and kill our culture. I just humbly ask you folks, please, for you grandchildren, your children's' children that are not born yet. We all must live in the same place. Keola and Kapono Beamer's song says it perfectly. It is amazing how we all live in this same place and we all the same hearts. So, please let us join our hearts together. The blue and the red is purple. That is our island color. Those fields out there can be done with hand. They still can have their jobs. These people cannot leave until they replenish that land and that is there security. Those people with the blue shirts are replenishing that land for that company who has done that to our land. I am sorry that the people on the west side are feeling this and that is their job right now. But we are talking about the future of our children. Chair Furfaro: Thank you, Mr. Pa. Mr. Pa: And that King asked to please, have a good heart when you do this. God bless you all. Chair Furfaro: Thank you. Ms. Fountain-Tanigawa: Next speaker is Dustin Barca, followed by Erika Schneider. DUSTIN BARCA: Aloha. Dustin Barca, `Ohana 0 Kaua`i. I do not know how much more times we are going to come over here and have these discussions. I think you folks heard all of the explanations, and all of the issues. You have heard it from enough doctors, you have heard it from enough parents with kids with problems, and you have heard from enough residents. It is not just West Side, these people are in Po`ipu. My friend's in-laws live right across from the fields. They are waking up with bloody noses in the middle of the night and it is not an issue that is new. This is the same things that were happening in Waimea years ago, same thing that happened at the schools. I do not know how much we have to hear. I do not know how much more. Do you know what I mean? It is almost like a funny joke already. It is like what is going on here? We are not stupid. We are very intelligent people. We all study every single night of our lives, every day of our lives on this issue; the good and the bad and we come with the conclusion that this is not good for the future of our island. This is not good. What is going here is not SPECIAL COUNCIL MEETING 85 OCTOBER 15, 2013 pono. It is against the culture and it is against the future of our island and our people. This is the opposite of aloha aina. Aloha aina is so easy to follow. Love and respect the land and the land is going to love and respect you back. What is going on here is the opposite. They are spraying close to six (6) times more per acre than anywhere in the Country. They are only thinking about profit and money. They are not thinking about the outcome. They are not thinking about the possibilities. They are not thinking about the effects. They are thinking about profit. We were waiting for the Governor. He slapped us in the face. We were waiting for the Mayor, he slapped us in the face too and he was blaring about it for one (1) week. He was at the march in Po`ipu. He was at the march over here, he is at the meeting over there. I think you know enough. You know enough of what is going on in this island. You know what is pono in your heart. Do you know that I mean? We all know what is pono, now, let us go pono. Let us pass the Bill, not the buck. Mahalo nui. The time is now. Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Erika Schneider, followed by Hoku Cabebe. ERIKA SCHNEIDER: Aloha. I am Erika Schneider and that thirteen (13) year old boy that came up here and asked to look into each of your eyes for a few moments, that is my son. His father is a Chief, his grandfather is a Chief, and he cares about the children and the seventh generation because that is his kuleana, that is his responsibility. He will be a Chief one day and that is why he asked to look into each of your eyes, so that you could see who you are voting for. You are voting for the children of this island and for their children and their grandchildren and their great grandchildren, and your generations following you down to the seventh generation. He did not get to read his last statement which usually at the three (3) minutes everyone gets a final statement at the end, so I am going to read it for him because he had tears in his eyes when he sat down. He did not get to say this to you. His last statement was, "Today you will vote to past he Bill and protect us kids and future generations or you will vote no or defer the Bill and sell out the children of Kaua`i." Now, I have been to every single one of these meetings. I was out there with Journey last night. That little kid slept on the concrete for eighteen (18) hours in the rain so that he could come here and look into your eyes today and his reason was, "I want to be there when they vote. I want to be there when they vote." I have heard these mothers come in and ask you politely and we have been asking politely; and I have heard the mothers come in and say, "My baby was born with too many fingers. My baby was born with two (2) thumbs. My baby was missing toes. My baby had a congenital heart defect. We have heard the Obstetrics and Gynecology (OB/GYN), the doctors that deliver our babies telling us. They are seeing ten (10) times the rate of a particular rare heart birth defect over in that hospital and other birth defects and miscarriages and stillborn babies. We trust them to deliver our babies. We should trust them to know that there a problem and we need this Bill passes. We cannot wait one more day. If you are pregnant woman in your first trimester, one more day of exposure could be enough to push you past the threshold of toxicity so that your baby is born with a birth defect. We cannot defer this Bill and I am angry that the Mayor came here and asked you to defer this Bill. I think he is a nice guy personally. I really like him. I love our Mayor. I admire him. But the fact that he did not read the research, he did not read the reports, he did not know what was being sprayed, he had no clue what was going on, and said he just read that Bill and he is asking you to defer it for two (2) months while our children continue to suffer, while pregnant women may SPECIAL COUNCIL MEETING 86 OCTOBER 15, 2013 have babies with birth defects or lose their child if we wait two (2) more months. That is not acceptable to me. It is not. Thank you. Please pass the Bill today. Chair Furfaro: We have a question for you. JoAnn, you have the floor. Ms. Yukimura: Erika, I know you have been here at every meeting and I am in awe of the kind of dedication that you and others have demonstrated. If we pass the Bill today and say the Mayor votes is, but does not veto is if we delay a month or so, will that make the process faster? Ms. Schneider: If you pass the Bill today... Chair Furfaro: Excuse me, just a second. I am going to tell the audience this again. Let us me mutually respectful here, please. That is the way we should do things here on Kaua`i. Now, you have the floor to answer the Councilmember. Go right ahead. Ms. Schneider: I understand what you are asking and thank you for asking. The basic answer is, if you pass the Bill today and the Mayor vetoes it, there are thousands and thousands and thousands of angry mothers on this island right now. They have gone beyond begging and they are to the point of anger and he will not be re-elected. He will not sit as Mayor again in the County. That will be the result and we will take this Bill and we will bring it before Council as an initiative by the community. This Bill will be passed one way or another and it can be your legacy or not. Ms. Yukimura: But you know, it will take probably another six (6) to eight (8) months to a year to do an initiative and so I mean, it will probably be put on the ballot for next election. If we can get it passed in one (1) month, would that not be faster? Ms. Schneider: I think that the Mayor's failure to do the research the last two (2) months and to keep on top of the Bill and to do all of the work that you folks have done and the community has done is not your problem and it is not the community's problem. It is his problem to implement and we should pass the Bill today. Ms. Yukimura: But if you can get the Bill in place and signed or passed without signature in one (1) month, would that not be faster? Ms. Schneider: I feel that if we wait one (1) month that the State is going to supplant us with legislation to prevent the County from having the power to do that and that we will not be able to pass the Bill at all. Ms. Yukimura: They cannot do that until they convene the Legislature in January. If we can pass it in one (1) month... Ms. Schneider: They are having a special session and they could attach it at the bottom of a Bill just like they did the Monsanto Protection Act. Ms. Yukimura: A controversial subject like this? But okay, thank you. Ms. Schneider: Mahalo, JoAnn. SPECIAL COUNCIL MEETING 87 OCTOBER 15, 2013 Chair Furfaro: Next speaker. Give me two (2) names, please. Ms. Fountain-Tanigawa Next speaker is Hoku Cabebe, followed by Ray Catania. Ms. Cabebe: Mahalo for hearing me out again. Hoku from Wainiha. Thank you again, everybody for hearing me out. It just goes to show you folks how strongly, not just myself. You folks have seen it. You folks know. Do you know what I mean? We need to pass this Bill for this community. We really, really do and not in a month, today. We need it today. Have faith in us. Have faith in your Kaua`i people. We will help you folks do this. If it means that much to us, we are not going to hear yes and walk away. We are going to make sure that this is implemented. We are going to make sure our keiki are safe. We are going to make sure our aina is safe. That is what this is about. It is not about who we are going to elect, what is going on, what we have to do today, what we do not have today, who has to work, who does not have to work; none of that. This has to do with keeping our babies safe and a vote yes today will do that because we will show these companies that we are not dilly dallying. We are not falling for their charades. We are passing this Bill and we are getting it done and no matter how long it takes us, we are going to get it done. The first step to getting this done is "yes" to Bill No. 2491 for the people of Kaua`i, for the children of this world who deserve to know what these companies spray, where they spray it, when they are spraying it, and what is the effects of spraying it. The way that we are going to find out here on Kauai is by implementing this Bill. This community is going to make sure that the world knows what these companies are doing. If it is safe, thank God. We will be the first ones leasing them every agricultural land that will feed the world. Kaua`i is full of aloha. You think we do not want to do that? We want to feed the world. We just want to make sure that Kaua`i is safe while we are feeding the world. Please. Thank you very much for your time, everyone's time; Mayor's time, everyone. All of my `ohana behind me. Thank you folks so much for the effort and the time. Now, let us pass the Bill and let us show the world what Kaua`i has. Yes? Chair Furfaro: JoAnn, you have the floor. Ms. Yukimura: If the court kicks this Bill out, how are we going to achieve this? Ms. Cabebe: Fern, Dustin, Sol, Aunty. This is not a question for me. It is a question for the community. Pass the Bill and we will make it work. Pass the Bill, we will make it work. Thank you. Pass the Bill. Ms. Yukimura: Thank you. Ms. Cabebe: Your question is not going to take today to answer. Pass the Bill and we will work it out. Gary is right here, Tim is right here... Chair Furfaro: Hoku... Ms. Cabebe: We got this. Thank you. Chair Furfaro: Thank you. Who is speaking after Hoku? SPECIAL COUNCIL MEETING 88 OCTOBER 15, 2013 Ms. Fountain-Tanigawa It is Ray Catania, followed by Sol Kahn. RAY CATANIA: Aloha everybody, especially the brothers and sisters out here in the red shirts and the fighters who want to make sure that this Bill passes. I think you folks have to pass the Bill right away and the thing is that the information is out there. I have talked to plenty people, I have talked to a lot of Union workers, I have talked to a lot of average working people, and they want disclosure; they want to know what is going on. I have two (2) daughters. They are older right now, but they have asthma. I am concerned about them. I want to know what is going on in the community, pertaining to the pesticides that are being used. But here is one point that I really want to speak to. It is the statement that Mr. Hooser and Mr. Bynum and our movement has divided the community. We did not divide the community. We are bringing the community together. Any time working people unite, those organizers that bring in the workers together, bring in the ordinary folks together, we are told that we are dividing the community. In 1841, the first strike in Hawai`i's history right there in Koloa in 1841, the workers were told that they were dividing the community. The workers who were fighting for justice in Hanapepe, thirteen (13) of them got massacred called the Hanapepe massacre in the 1930's, they were told that they were dividing the community. The Niumalu Nawiliwili tenants who were fighting to stop eviction were told that they were dividing the community. Nukoli`i, the same thing. Thirty-two (32) people got arrested over there. Superferry, those of us that were involved in the fight were told that we are dividing the community. This is not about dividing the community, this is about bringing people together for positive social change that will benefit the greatest amount of people. You folks have heard it, you have heard all of the information that is going on, you folks can make a decision today; a decision to pass the Bill. Thank you. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa Sol Kahn, followed by Rugy Staggers. SOL KAHN: Aloha Council. My name is Sol Kahn and I think I have been pretty respectful to all of you at this point, every single one of you whether I agreed with what you are saying or not; the Mayor included. But this is it. How do you not know about the Bill? I have talked to you every single time, Mr. Mayor. Every time I see you I talk to you about this. How do you not know? Chair Furfaro: Excuse me, Sol. You need to address us. Mr. Kahn: I apologize. This Bill needs to be passed. There are no questions about it. We have companies that give donations after donations after donations after donations to make themselves look good, to ensure that they can have a place here. They just keep giving people money. They do not want to give people money. They are not good companies. These are corporations that kill. Their job is to kill. It is simple. They are giving all of this money and all of these donations so that they look good and then so many people are buying into it and they are bad corporations. They are not good for the land. They are not good for the kids. Like I said, I have been rally respectful, but if you folks do not pass this Bill, I am going to be pretty pissed and I am going to lose faith in a lot of you folks. It is not going to be pretty. There is a whole community out there that is getting really, really angry. I was here since 3:30 p.m., yesterday sleeping in the rain, thunderstorm, lightening. I hate this. I do not like this. We have to do this. SPECIAL COUNCIL MEETING 89 OCTOBER 15, 2013 How can you folks not just think this is common sense to pass? How can you not? Seriously. Chair Furfaro: Councilmember Yukimura. Ms. Yukimura: Are you pau, Sol? Mr. Kahn: No, I am not pau. Ms. Yukimura: Sorry. Chair Furfaro: His time is up though. Mr. Kahn: Now I am pau. Chair Furfaro: Did that go off? Ms. Fountain-Tanigawa No. Chair Furfaro: Sol, you may continue. Mr. Kahn: I just beg you folks really, from the bottom of my heart. This Bill needs to pass. It needs to pass today. A deferral is not going to work. We cannot go on doing this any longer. This needs to pass. Thank you. Chair Furfaro: Councilmember, you have the floor. Ms. Yukimura: Sol, if you really want this Bill to pass and stick why would you not wait a month if that is a possibility and it could die if we pass it today through a Mayor's veto that we cannot override? Mr. Kahn: Because there is a lot of "ifs." We are living in "ifs." We are all learning about this political process. Ms. Yukimura: I know. Mr. Kahn: And there has been so many "ifs." "Ifs" here, "ifs" there. We are tired. We have done our homework. We have done a lot here. I have seen people that do not sleep. Ms. Yukimura: I know Sol. But we are trying to get a Bill passed. Mr. Kahn: We are trying to get a Bill passed. The people are saying that it is time. Ms. Yukimura: It is time because you are all tired? You know how we... Mr. Kahn: No, the people are saying it is time. Ms. Yukimura: We took ten (10) years to save the Hanalei Bridge and ten (10) years to fight Nukoli`i. To say that you are tired, this... SPECIAL COUNCIL MEETING 90 OCTOBER 15, 2013 Mr. Kahn: We are not going to stop. Ms. Yukimura: Okay, good. Mr. Kahn: No matter how tired we are, we are not going to stop. Ms. Yukimura: I am just asking... Chair Furfaro: Sol, I want to remind you of the rules. Mr. Hooser: Chair. Chair Furfaro: Excuse me, Mr. Hooser. When I give the Councilmember the floor, she poses you a question, you get to respond to it. Mr. Kahn: I apologize. Chair Furfaro: Not enter into an ongoing dialogue. So, pose a question Councilmember. Ms. Yukimura: Yes, and I take responsibility. It was getting into a dialogue and I am partly responsible for that. Thank you. That is all that I have. Chair Furfaro: Mr. Hooser, you have the floor. Mr. Hooser: Just a point of personal privilege. We have a lot of people here that want to share their mana o with us and I do not believe that members need to grill each one about their position. I think that we should respect their position. We can ask questions to the point and then we move on the agenda. I also have a position. I also have a perspective. I could do the same thing. We could all do the same thing. I do not think it is fair to the people testifying. I do not think it is fair to the process. Thank you. Chair Furfaro: Thank you the feedback. Mr. Bynum. Mr. Bynum: I agree. I have been trying to keep from asking questions. Ms. Yukimura is promoting her agenda that she put in the newspaper today through question and answers. It is not an appropriate use of this time. We are here to hear from you. Thank you. Mr. Kahn: Thank you. Chair Furfaro: Enough said. Sol, thank you very much for your testimony. Mr. Kahn: Thank you. Please pass the Bill. Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: Ruby Staggers followed by Katie Horgan. Chair Furfaro: Katie Morgan would be next. SPECIAL COUNCIL MEETING 91 OCTOBER 15, 2013 Ms. Fountain-Tanigawa: Katie Horgan. Chair Furfaro: You have the floor. RUBY STAGGERS: Hi, my name is Ruby Staggers. I do not have anything prepared like I did not have it last time because I feel like the best just comes from the heart. I am going to ask you, everybody on this room and everybody that is listening, to take off your political hats, go back in time, and just think about what it is like to be a child and how you just trust on your parents and your caregivers to represent you in the best way possible. Well, think about all of these kids that are dying and these kids that are getting sick who cannot just raise their hands and go, can we get this done, and they have to depend on the adults. That would be us, that would be you. This is an ethical question. It is not about who is getting sued. Just think about being human. Just have five (5) seconds and go, God, just let us do something. This is about respecting human life. I can tell you that I was just on the phone with a woman who lived in this house in Waimea, it is a cancer cluster. Within several years of living in this house, four (4) of the four (4) people who lived in that house have cancer. Two (2) of them are dead. What are you folks waiting for? Are you waiting for these companies to be able to hide more things from us? I mean, while life is passing and heath is being compromised, my God. Please. Jesus Christ. Chair Furfaro: Do you need a moment to compose yourself? Ms. Staggers: No. Chair Furfaro: I can call you back. Ms. Staggers: I am asking you to just be human. Just take off your political everything, agenda, and just go, wait, let us just look at it. If you look at a child... Chair Furfaro: I am going to ask you again. Do you need a moment to compose yourself? I will have you come back. Ms. Staggers: No. Thank you. If you look at a child who is sitting in courtroom and the case is about molestation or rape, the court is going to rule in favor of the child because they want to protect. This is not different. This is no different. This is our health, okay? I am sorry. Mayor, I am so disappointed because you just—you sit here and you.... Chair Furfaro: We are on recess. There being no objections, the Council recessed at 2:02 p.m. There being no objections, the Council reconvened at 2:12 p.m., and proceeded as follows: Chair Furfaro: We are back in order. First of all, I want to share with everybody that clearly, this is a stressful and a stress-laden agenda item. It is going to take everybody's kokua and mutual respect. Earlier there was a young man that used his time to demonstrate a cultural practice of looking at us. I allowed him his three (3) minuets time, but we need to respectfully listen and I ask SPECIAL COUNCIL MEETING 92 OCTOBER 15, 2013 that there is respect from you even in this stressful situation to communicate to us your position. We have about forty (40) plus more speakers to go through? Ms. Fountain-Tanigawa: Yes. Next speaker is Katie Horgan, followed by Harvest Edmonds. KATIE HORGAN: Hello. I am a registered voter. The last time I was here I talked about my drive going to the West Side every morning to Mana and I just want to stress that the situation has not gotten any less urgent. We cannot accept a two (2) month deferral. I am hoping that we will continue to work on the amendments today and one I would like to address in particular, and that is the buffer zones for dwellings. It reads, "No pesticide of any kind may be used within five hundred (500) feet of any dwelling, except that if the commercial agricultural entity has an approved Soil and Water Conservation Plan that explicitly addresses pesticide drift on the dwelling, then no pesticide of any kind may be used within one hundred (100) feet of any dwelling." I ask that the language be changed to say that the Soil and Water Conservation Plan that explicitly demonstrates that there is not pesticide drift occurring in that zone. A simple way to show that the agricultural entity should at their own expense go out there and while they are spraying, test the water, test the air, and show us that it is not happening and if it should happen with say, one thousand (1,000) feet it is occurring and we can document that and that should be their buffer zone. So, if they want to take the risk and say, "Hey, five hundred (500) feet, we cannot do that." Well, at your own expense demonstrate this to us, show us. I could live with that as a parent who has my child in a high risk zone within that area. I just want to encourage you to keep working through the amendments. I do think that yes, we cannot wait for two (2) months. Two (2) months is not going to accomplish anything. If you folks need a week to talk things through, that makes more sense to me. I just ask that you keep working on the amendments and keep trying to make a Bill that we can pass and please, just do not defer two (2) months. Thank you. Chair Furfaro: Thank you very much. Ms. Fountain-Tanigawa: Next speaker is Harvest Edmonds, followed by Katie Johnson. HARVEST EDMONDS: Aloha. My name is Harvest Edmonds. Our island is at risk. Our children, women, and men are at risk from the pesticides being sprayed on the West Side, the South Side, and the East Side of our island. The chemical companies say, "We want to be good neighbors," yet the four (4) of them stand with their arms crossed like this across their chest, defying any request for cooperation. We need to come to this table as human beings above all else, as parents, sons, daughters, and grandparents. If we do not, then our humanity is lost. If we do not, then it becomes the battle it is now between the people whose humanity is intact and the multi-national faceless chemical corporations, not the people in the blue shirts, but the companies that they work for. That is who we are dealing with. These are the same corporations that sue farmers because their genetically engineered seed has blown into their fields. The same corporations, who buy their own admission, want to take over the world seed supply, the same corporations that have been poisoning the Earth and human beings around the planet for years leaving a path of destruction and diseases behind them. These chemical companies cannot be trusted to be good neighbors. We have to look carefully at what they have done and are doing, not what they say they will do. Our States leadership, by their own public statements currently stands behind these SPECIAL COUNCIL MEETING 93 OCTOBER 15, 2013 corporations, their practices, and their money. We, and I am talking about the thousands that have marched, rallied, signed petitions, and slept on the County Council ground two (2) different nights in desperation to protect what we love, for ours and future generations. We, the people, do not trust our State government to do what is right for Kaua`i. Why would we when all we hear is how much the chemical companies are loves and protected by the States Administration? I implore you Councilmembers and Council Chair to pass Bill No. 2491 now, tonight. Do not let another day pass where our children, women, and men are unprotected as they sit at their desks in school, as they work in the fields, and as they sleep at night in their beds. I implore you not to defer this Bill while you attempt to convince the State to do what is right for Kaua`i, for our State, and our planet. Pass this Bill tonight. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: Katie Johnson, followed by Louisa Wooton. KATIE JOHNSON: Aloha. I am Katie Johnson. I am a mental health provider and I am here today because I believe I have a professional duty and moral obligation to speak out, speaking out not only on my own behalf, but on behalf of the citizens who have shared their stories with me, so I will share them with you. Like the West Side hunter who has stopped hunting goats in Polihale because when he and his friends cut open the goats, they are full of tumors; or the woman who grew up and still lives downwind of the fields, whose mother and sister have both had cancer, now, she cannot conceive; or the Wilcox Hospital employee who told me they are seeing rare tumors that they have never ever seen before and they cannot identify. This cancer cluster is not in Waimea, it is in Hanapepe Valley. Or the grandma who retired from working in the hotels, who got a retirement job with one of the seed companies as a Human Scarecrow to help support her family. She spent a year in that job before she was diagnosed with an inoperable brain tumor. She is currently at home with her family. They expect her to die shortly. I received a text this morning in your chambers, a little girl in that family, two (2) years old. She lives in Kekaha and she was just diagnosed with Stage 2, kidney cancer. These are the unheard voices. They did not participate in the Math March. They did not send you testimonies. You would not realize that I represent them too, not just here for myself. These are the people of Kaua`i, the people that we stand with. These are the people who live the consequences of pesticide poisoning every day. You know all of the health effects. I had six (6) minutes prepared, you know it all and you have been given the studies. I gave you four (4) pages of peer reviewed studies on the neurological impacts alone. You have had hundreds of papers submitted to you on other health effects. They are consistent with our West Side professionals' findings in their practices. I have heard you dismiss this as anecdotal evidence, but when you do what I do and you see people through their darkest hours and you hear their pain, you know that their lives —these are real people. They are not statistics. They matter. It does not matter that we do not have the measureable data. We need to protect them today. We need to pass the Bill. You have had enough time and quite frankly, this is not my job. I have another whole profession and yet here I am. I have done all that reading that the Mayor did not have time to do. You have had enough time. Any attempt to defer this Bill will absolutely be seen as an opportunity to kill it. No, we do not believe that one (1) month would be okay and we frankly, are going to side with the numerous lawyers who are currently practicing, highly qualified lawyers that think that we can hold up in court. If we do not, we do not. That is their bully tactic, but one (1) month is not going to change anything and we will interpret it as SPECIAL COUNCIL MEETING 94 OCTOBER 15, 2013 a chance to have the State kill the Bill. Absolutely, do they put really important issue on the bottom of other Bills; that is how they passed the Monsanto Act. Chair Furfaro: Thank you, Katie. Ms. Johnson: Pass the Bill today. Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: Next speaker is Louisa Wooton, followed by Anne Punohu. LOUISA WOOTON: I am just here to say that I see no logical reason to defer this Bill for one (1) month, two (2) months. The Bill itself is crafted as amended by Nadine and JoAnn, and excuse me for using your given names. It says that it is not going to even take effect for six (6) months; that give the Mayor plenty of time to get up to speed on making his rules. I think one of the real strengths of Mayor is his ability to choose really, really intelligent and really, really quality people and he has chosen one right here. The minute she hits the ground in one (1) month from now, she is going to be the most knowledgeable person on the Bill within that cabinet. I mean, she wrote the punctuation. She corrected the wording. She knows how this Bill can be driven on through. It is a Bill that is going to give us protections with buffer zones. It is going to give us knowledge, disclosure— I mean the disclosure that you two (2) ladies came up with is superior. It is what everyone behind me wants. Why would we want to wait one more month and hope that the State is going to come in? The State has its job to do and they can still do their job. They should do their job. I have the Mayor's flowchart here. Some of the things that he has on his flowchart are the State's jobs. If we do get some types of pesticide problem, it is not the County that needs to inspect the spray rigs, that belongs to the State Department of Agriculture. All we need to do is set up buffer zones. We have and GIS system, we have Google Earth. All we need to do is get some flags up on the corners of all of these agricultural lots. You can see them. We will know where those buffer zones begin. We could even ask these folks, since they are not growing food, to put marker dyes in their spray rigs, then we will know if they sprayed within those buffer zones. Yes, there are certainly some wonderful, wonderful tests that we can have done that are not that expensive to know if we have residue outside those buffer zones or in the buffer zones and it will not be costly. I just do not think that the mayor is behind. I think he is starting to think and I think he is really thinking great and we are going to miss you as a lawmaker. But I mean, let us go forward. We have six (6) months to put this in effect. Let us not wait for the States. What is the State doing? It is just like someone before me, Katie just said, they are going to put this at the bottom. It is going to be hidden. We cannot rely on the State. Chapter 149(A), I cannot remember you said Mel. Whichever State law it is, it is supposed to do this for us. They have not been doing it and understand there is even a hiring freeze and they are telling us they are going to give us more inspectors, not going to be done. Let us pass the Bill. Let us not defer it. Let us get on with business. Thank you. Chair Furfaro: Thank you. Next speaker, please. Ms. Fountain-Tanigawa: Next speaker is Anne Punohu, followed by Larry Schneider. SPECIAL COUNCIL MEETING 95 OCTOBER 15, 2013 Ms. Punohu: Aloha. My name is Anne Punohu and I am here to send a very clear message to this Council today. As you can see, the psychological condition of your people that put you into the chairs that you sit in, that some of you may not enjoy very much longer unless today you do the will of the people, are here to tell you that they have now reached their limit. If the will of the people for our Bill, this is not any of yours Bill. This is the Bill of the people that has been gutted, that I do not like, but I have to take it as it is for now. That can be amended back in later. I will tell you today if you did not do the will of the people, I do not how you are going to look yourselves in the mirror tomorrow. As far as deferral, it is an absolute "no" to the people. The people will then move into something else that none of you want to see, which would be an increase in activity of civil disobedience. We will continue to march, we will continue to fight. We will occupy offices if we have to, to get our point across. Some of us may even be willing to take the ultimately sacrifice and be arrested. But I can tell you that today, if you do not catch on, and that includes my dear Mayor as well, you will not only forfeit your political careers, but you will forfeit the trust of the people, you will also have a situation on your hands that all of you want to avoid. I am here today to tell you as you can see with your own eyes, that the point is now here. We have been to many meeting, we have been to months and months of this, people have been sleeping on the ground for God's sakes, people have put their lives on hold. We do not get paid to do this. We are here for free. That should tell you something. We are the ones of the biggest voting block that is here, from Kawaihau and Kapa'a all the way to the North Shore and including the brave West Side residents, we put you in those seats and we will take you out because we have the votes to do it. If you care about having a political future, today we are all watching and we are all done. Any of you who stand in the way of the people today will not see that chair again. Aloha. Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: Next speaker is Larry Schneider, followed by Felicia Cowden. LARRY SCHNEIDER: My name is Larry Schneider. Two (2) of the Councilmembers wrote the Bill in its entirety. Two (2) of the Councilmembers amended the Bill, took out significant portions and the two (2) who wrote the Bill are supportive of the two (2) who amended the Bill and another Councilmember was supportive of it. It seems clear that there is not a significant opposition to the amended Bill. You hear people, they are scared. Then, the rhetoric that is used is elevated and exacerbated and it is done on face-value. An interesting thing happened between that seat and here, and it was called a conversation. I happened to be sitting next to the Mayor's staff and by elevating the rhetoric and the emotional intensity in hearing the people and my own personal response, it allowed me the opportunity to engage in a conversation. I share the same feelings. How could the Mayor not have read the Bill? How could the Mayor want to veto that? In a factual way, the Mayor could not have read actual Bill because it was amended but certainly he knows. But we have not heard the Mayor speak. It is very likely that he is not going to veto the Bill. We are dealing with companies with unknowns. We are dealing with significant unknowns. They are testing brand-new genetic modifications to see how they work in concert with a variety of pesticides, some safe but some at a nuclear level of pesticide reactivity to see if this genetic modification can withstand it. It is scares the people to think that they are living next door, next to the very toxic cancer producing, disease producing affects and they are entitled to the right to disclose. The reality in conversation, one of the things that happens in dialogue if you can have intelligent, intellectually honest SPECIAL COUNCIL MEETING 96 OCTOBER 15, 2013 dialogue, you can disagree but you can come to a consensus to move forward. There is a consensus that I got. We have not heard the Mayor speak. We are told he is going to veto it. He may not. Pass the Bill today in its current form, it is going to take a while to amend it, to get it into action, to figure out how to implement it, so take that opportunity to fulfill everyone's needs. But take away the fear of the innocent so that they know that you at least have an interest in working to protect them. Pass it today and modify it tomorrow. Chair Furfaro: Thank you. JoAnn, you have the floor. Ms. Yukimura: I just want to really clarify for accuracy sake. I did not say that he is going to veto it. I said he has the potential under the Charter process and that has to happen within ten (10) days. Mr. Schneider: Is that a question that I could respond to? Chair Furfaro: No, that is a clarification. I do want to say to you though, Larry, I think at the end of the testimony today I am going to ask the Mayor to come up so you might be able to hear from him then. Mr. Schneider: Sometimes unspoken things can elevate emotions. Chair Furfaro: Larry, thank you very much. Ms. Fountain-Tanigawa: Next speaker is Felicia Cowen, followed by Tommy Perreira. FELICIA COWDEN: Mahalo. My name is Felicia Cowden. Many strong words have been said today. Very many of them I agree with. The main ones being pass Bill No. 2491, do not defer it, deferring it will be interpreted, I think, accurately as a killing of it. I am in agreement that I do not have the full sense that the Mayor would veto it. I am not saying that you are saying that, but I do not want to live in fear of that. I think what goes around in all of this is a lot of fear and a lot of leverage. This is a very modest Bill that is asking for disclosure so when people in those companies are leveraged by whoever higher up that says, "you are going to lose your job, your life is going to fall apart," if we have to tell the truth about what we are doing, if they are not that bad of stuff their businesses are not going to fall apart, these people are not going to lose their jobs. It is fear that is going around all of the way. When we say, "Oh, we have to defer because we are afraid that we will not even get this Bill," I am not afraid. Pass it. I have faith in you and I have faith in the Mayor and we will do the right thing. I actually have faith that if these companies are as nontoxic as they are saying they are, well, they will figure out a way to adapt. They can figure it out and so no more fear, no more exhaustion. We are being worn out, not saying we cannot keep fighting. But it feels like part of the strategy is just to string all these moms along, it is dad too and guys too, but it is a very, very carnal fear of having your own child ruined and it can ruin any of us. But this is so core, pass it today. Do not defer it. Using your metaphors, it is like punting a ball to the other team right away. I am in agreement. The State is not going to help us. Pass the Bill today, no deferral. Thank you. Chair Furfaro: Thank you. Next speaker. SPECIAL COUNCIL MEETING 97 OCTOBER 15, 2013 Ms. Fountain-Tanigawa: Next speaker is Tommy Perreira, followed by Leeona Thompson. TOMMY PERREIRA: Aloha Councilmembers and Mayor Carvalho. I just want to let you folks know that in the 1900's there was the Organic Act which let the Unites States agricultural farmers or whatever you want to call them, come into Hawai`i and do their thing, but it also states when you are done with your leases, you will restore and put everything back in proper form. It is a law, we are talking law here. I am not bickering about no Bills or anything. I am just going to tell you folks, that is the law. What happened? There are more people coming in here. They are selling them, now they are bringing in poison, more poison. This place has been poisoned for one hundred (100) years. They keep breaking laws, you folks tell your lawyer go look at the Organic Act. Now these people come in, so we will be here and now we have another problem. I say, we have too much problems going on there. I say we do this, let the lawful landlords of this place, which is the Native Hawaiians, and give them back this place. We know how to run it that is why. We are not going to get this kind of problems with us. We are not going to let corporate people come in here and destroy our metallic mines and minerals which they cannot touch and they are touching it. You folks have to understand, metallic minds and minerals, we are not talking about Bills. I do not care about Bills. My Bill is, pack it up, get out, and do not come back. Bring back the lawful landlords of this land, which is the kanakas. That is all that I am going to tell you folks because we have so much problems all on the walls. We have enough. You folks cannot control this place. We should be the controllers, we know how. That is all that I am going to tell you folks. It is not personal. It is nothing personal, but I say we know how to run our Country. These people from America coming over here in their corporation, breaking up our families; one is blue, one is red. My cousin is over there in the blue, my other cousin is in the red. I go, okay, instant poison I call it. Instant poison. Corporations come down here, I do not care what they spray. As soon as they touch this land it is poison already because now we have corruption between each other. That is beyond spraying Atrazine of whatever. It has been here one hundred (100) years. It is in the ground already. My concern is how much more is going to come after this. It is just ridiculous. We should not be arguing, crying, yelling, and screaming. The last thing that I am going to say is the sea is no longer blue, it is red; watch out. We have five (5) to one (1). I am just going to tell you folks this, I hope I see you folks in the next election in here. Aloha. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: Next speaker is Leeona Thompson, followed by Michaela Boudreaux. LEEONA THOMPSON: Hi, I am Leeona Thompson. I am not going to waste any of your guys' time. We have all been here long enough. I have been here since 4:00 p.m. yesterday and I am very tired. I just wanted to express my sincerity to please pass this Bill. It seems like it is very common sense. There are people in place in the State who need to take care of what they need to take care of and I understand that, but they need to step it up in my opinion. We need to do what we need to do right now and take care of our people because this is who is here right now fighting for this. We feel very strongly about it, obviously. I am not going to waste any more of your time. Please consider that we are all here fighting for, again, what we feel is just common sense that it is right. We need to know what is being sprayed, how much, and if there is any affects. It is not that hard. We can do this as a community and as all of you guys as leaders, I think it is very possible. SPECIAL COUNCIL MEETING 98 OCTOBER 15, 2013 You are very educated and strong-willed. That is why we voted for you to put you in your chairs. Please, do not let us down. Make the right choice. Please pass the Bill. Chair Furfaro: Thank you. Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Michaela Boudreaux, followed by Jeri DiPietro. MICHAELA BOUDREAUX: Aloha, Council. I sincerely thank you all for your hard work. I know it has been stressful for everybody. The point that I want to make today is about this State and how that Legislature... I guess I am reiterating this, but it is mostly O`ahu people there. They do not really have us in mind when they are there, so I really feel like we need to protect us. If they come through, that is fantastic; if they do not, we have to have something in place. I have been watching this and I have seen them monkey around over there too many times. There was the taro bill and it got changed in the middle of the night before it went to vote, and it changed in a one hundred eight (180) degree angle. What people thought they were voting for was not what they were voting for and it was a real scramble. When they realized that they were not going to get what they wanted, they just pulled it. I really feel like we need to have our backs here and thank the State if they step up, but we really need to do this. Thank you. Aloha. Chair Furfaro: Thank you. Next speaker is Jeri DiPietro, followed by Walter Ritte. JERI DIPIETRO: Aloha, Jeri DiPietro. Enough already. These pesticides are linked to kidney disease, miscarriages, asthma, cancer, and Parkinsons. We all know way too many people. How can we continue to allow the chemical companies to spray undisclosed chemicals? You have heard from about one thousand (1,000) people over the last eighty (80) days. For ten (10) years, we have brought every expert to this island, from Jeffrey Smith to Vandana Shiva; every book and every movie. For each one of us here, there are hundreds more that are too shy to come. Folks in Waimea made a video so you could see their story. Not everybody wants to be in this hot seat. It is a little uncomfortable. We need disclosure and buffer zones now. Do you know how many people have shared their hardships with me and with our members of GMO-Free Kaua`i for ten (10) years? They have no one else to even talk to. They come and ask us what they should do. Who would even believe that we have these hardships here? The County has been denied access to these chemical lists. "How many pounds? Where they are sprayed?" Are you not curious? People are dying. How can you defer a Bill that you have had a chance to work with and amend? We need to pass this now. Councilmember Hooser did great work to get some disclosure and it has blown our minds. It is even more than we even thought. There is already a lawsuit with one hundred fifty (150) people along the river. There will be more lawsuits. Mothers are mourning the loss of children that did not make it into birth. This Bill was crafted with the help of the best lawyers on this subject. It is carefully worded and it goes after things that we can pass. What more do we need to prove? Just tell us what is being sprayed already. These companies are just yanking our chain. What are we waiting for? Normally, you do not allow a violent act to continue while you explore options. All we want is our right to know and some reasonable setbacks. We have seen the harm. We spent over eight (8) years going to the State begging for some crumbs of protection. There is no political will there. In a moment, we will lose our right for home rule option to ever regulate pesticides. The chemical... SPECIAL COUNCIL MEETING 99 OCTOBER 15, 2013 Chair Furfaro: Excuse me, that was your three (3) minutes. Ms. DiPietro: Thank you, Chair. Please pass this Bill. We need the disclosure. Mahalo. Chair Furfaro: Walter, you are up next. WALTER RITTE: I know all of you personally already. It has been great talking story with you guys. I would like to give a view from a far of what is going on. I know that on Moloka`i, we are suffering the same kinds of things, but I really have been uplifted by you guys. Just the way you guys operate and the way you guys took on this thing. There is a lot of hope that Government can actually work. We spent years at the Legislature and we were getting the feeling that the Government does not work. The people are getting so frustrated that they do not want to even vote anymore, so this might be something that is uplifting for people to get involved. I am sure there will be more people registering to vote because of this issue and they will be voting because of this issue. The balance of power is how this democratic process works, so I really think you guys did your job and your homework, but most importantly, the people did their job. I have never seen a community, not even on Moloka`i, which we are really proud when we get active on Moloka`i— but the way the people have responded... I think they should be given medals for what they have done. The people have done their job. You guys have done your job. Now it is time to pass the bowl over to the Mayor. That is the balance of power; that is how this thing works. We should not be afraid to pass it over to the Mayor. What he does with it is up to him. Whether he passes it or does not pass it, that is his call. Everybody has done their job. You guys are looking really good in the State and past the State. The leadership you guys have over here— everything looks good. Everybody has talked their souls out, so now it is time to vote. Whether you vote it up or vote it down, it is up to you, but it is time to vote. The Mayor lucked out because he could have got a good person on their team. If you guys pass it, nobody is worried about that part. What he is going to do is what he is going to do. We are here today to tell you that please, enough talking, traveling, and sleeping in the rain; it is time to vote. Thank you. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Christi Demuth, followed by Angela Flynn. CHRISTI DEMUTH: Aloha, County Council. My name is Christi Demuth. I am not going to take up much time. I just would like to say that I do not believe that the Mayor will veto this in the end and I actually believe that there might be enough votes on this Council today to override a veto from the Mayor today. If you work on some clarifications and you keep continuing to move forward, I believe this Bill is a good Bill and it is time to pass it. We are ready for a vote. We have been doing this for a very long time. I am exhausted. I am not getting paid to do this. I work full time and do this. Please do not keep dragging this out. That is the strategy that the companies use to break up a movement by stalling and staling so that they wear the people down. I am asking you today to move forward, work on your amendments, and come to a vote. If you vote "no," then you have all voted "no" and we know. If do not vote "no" and you vote "yes," and the Mayor vetoes, then we know but at least we know. We have all heard it. We have all heard enough. Everybody has said everything there is to say here. We know how Mel feels. He is SPECIAL COUNCIL MEETING 100 OCTOBER 15, 2013 going to vote "no," but that is okay— I am sorry; I did not mean to mention your name. If the Mayor vetoes, he vetoes, but let us just move forward and come to that conclusion tonight. Thank you. Ms. Fountain-Tanigawa: The next speaker is Angela Flynn, followed by Fern Holland. ANGELA FLYNN: Good afternoon. My name is Angela Flynn. Boy, this is such a hard thing to bring up what I want to say today but recently, I went on a tour on the Hindu Temple... new to the island, one of the sights to see. It is incredible up there. I do not know if you have been up there, but the gardens are just spectacular. I just have to say that they are using organic methods. I doubt they are certified, but just for the benefit of some people in here, they might want to look into this because you do not have to use such terrible toxic pesticides to have incredible beauty and healthy plants. I happen to be out in the hallway and our Mayor went out to say some words of comfort to Ruby, and he said something about how he wants the Bill to be the benefit of all. Well, one of the things with the Hindu faith is the sense of "karma." Karma is where we create our future by our actions today. Really, the benefit of all, including to the benefit of the biotech corporations here on the island is to stop their spraying of pesticides that are hurting people right this moment. I think back to one of my nephews... three (3) years old— he used to run into the kitchen and turn on the stove. He was not a bad kid; he just really did not know that he could potentially hurt someone. Again, with the Hindus, one of the things I learned is that there is "no bad people," but there are what they call "lesser evolved spiritually people." In my mind, anyone who can make a living where that living is actually creating chemicals that are poisoning children and countless people— I realize that there is a balance they are trying to reach where they are saying "we are increasing crops, creating better crops, so we need these pesticides." However, it can be done without that. It really can. Even the United Nations have come out recently and said that it is not working. We need to stop this mass poisoning. Maybe the Mayor is going to veto the Bill; maybe the Mayor is not. Your karma has to be what you do, not what he does. Thank you. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Fern Holland, followed by Angela Hughes. FERN ROSENSTIEL: Hi, County Council. Fern Holland is my maiden name. My name is Fern Rosenstiel now. My brother wrote my name down. I just wanted to start by thanking you again. I will try to be brief, but I just wanted to share one small thing. It has been about one (1) year since I met with Councilmember Hooser originally— it is just shy of one (1) year since I sat down in a room in Wailua with a handful of people I grew up with, and asked for help. We asked to find out what was going on so that we could start to find out if these rumors that we heard that something might be wrong or if these cancer clusters or impacts were true, so we asked for information. It has been one (1) year that we have been waiting and now we have a very basic Bill on the table, we feel. I am in support of a very strong Bill. I think this is just the beginning where we find what is going on and we find out the data that we really need to make the right decisions to make proper management decisions. We cannot do that without good information and buffer zones, which are a little to ask, and an EIS. I want to be clear that these things are pretty basic and we are just asking for the right to know after one (1) year. Please do not defer it too much longer, if any longer at all. We SPECIAL COUNCIL MEETING 101 OCTOBER 15, 2013 are asking that if there is some reason, if there is some major legal thing that we do not know about that happened in Executive Session that needs to be changed, bring it forward. Let us make whatever changes that need to happen immediately in order to pass the Bill that will get us immediate knowledge as soon as possible, not six (6) more months, not one (1) year, not into Legislative Session. Please pass the Bill. Thank you very much for your time. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Angela Hughes, followed by Mimsy Bouret. Chair Furfaro: Angela is not present at the moment. Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Mimsy Bouret, followed by Collin Dana. MIMSY BOURET: Hi, Councilmembers and Mayor. My name is Mimsy Bouret. I am not going to take any time. I wrote three (3) pages of my heart. This has been an emotional afternoon. I have been moved to tears a few times. I have been a resident and a voter here since 1978. I think you are an amazingly strong group. I think we are really lucky. As someone said, two (2) of you crafted the Bill and two (2) of you amended the Bill. Enough of you are in support of this Bill. You have heard the testimony. You do not have to hear anything more. I have not spoken yet on this but I have shown up at every meeting and at the end, I think what more could I possibly say that has not been said? You know it; you have heard it; you see it. You know what the right thing to do is. Our Mayor— I know he knows more than he says. He keeps saying that "I want to learn." He has learned a lot and he is ready to step up. Nadine is not in the room right now, but I want to say that I have great confidence that with her in his Office, this thing if passed, will move forward. It will get corrected and it will get strengthened, but it will give hope to not just the people of this island, but the people of this entire State. They are all watching what is going on here. Everybody is watching. There is a right move and now is the right time. Call me an optimist— I think you are going to do it and I am very excited. Thank you and aloha. Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: Collin Dana, followed by Brandi Titus. COLLIN DANA: I do not want to take too much of your time. We are all here to see this Bill passed and let us get on with it. Chair Furfaro: You need to introduce yourself, please. Mr. Dana: My name is Collin Dana. Deferral is not an option. That is not what we are here for. We just did not spend hours and hours sleeping and waiting out there so we could see this thing deferred. There is a freight train coming and if the Mayor wants to step in front of it then that is his funeral. Your job is to take the mandate you have been given and pass this Bill. In the Civil Rights Movement, African-Americans were told that they just needed to "wait, calm down, and cool their heels. Politics would finally, in the end, maybe work things out and everybody would be happy." I would like to share a little poem SPECIAL COUNCIL MEETING 102 OCTOBER 15, 2013 about deferral by Langston Hughes: "What happens to a dream deferred? Does it dry up like a raisin in the sun? Fester like a sore and then run? Does it stink like rotten meat or crust over like a sugary sweet? Maybe it just sags like a heavy load. Or does it explode?" Chair Furfaro: Next speaker. Ms. Fountain-Tanigawa: The next speaker is Brandi Titus, followed by Victoria Holloway. BRANDI TITUS: Aloha, Council. My name is Brandi Titus. I am going to be brief. It has been really difficult for me to sit here today and listen to all of these emotions. I am one of the mothers that everyone is talking about here. I never knew when I moved to Hanapepe eleven (11) years ago that I was moving into a community that was inundated by these fields. I had no idea. I lay awake at night thinking about that dust and thinking about how that was a very important time in my life because I carried my son when I lived there. I lay awake at night and think about that dust... I never considered if there was an experimental combination of pesticides, restricted use pesticides, or experimental genetically modified pollen; and I had every right to... we needed this thirteen (13) years ago. What are we waiting for? Pass the Bill. Enough poison. Enough. My stepdad was a pesticide sprayer on a golf course and he died of kidney cancer. We do not have to wait for the studies. This is hurting us. Pest control has everything to do with hormone interruption. I know this. I work in agriculture. I have been coming here and talking to you about the experimental pollen trying to get you to see how exposed our agricultural community is here. This is not okay. What is stopping from selling corn that has been cross-pollinated with this stuff at our markets? This is serious. This is really, really serious. Please, we needed this a long time ago. No mother should have to go through looking at her child, wondering if they are okay, and waiting to see if they are going to be able to have children. I had already been through enough as a kid, apparently growing up in a house with a pesticide sprayer. Look at how much I have learned by coming here. I never knew to identify myself as such until I came and listened to the expert testimony at the first Committee Meeting. I never knew the children of pesticide sprayers were at greatest risk in the Country. I never knew to identify myself as such. To move here— what an opportunity for a girl from Indiana to get a job in Hanapepe, in an art studio of all things. I had no idea that this was going on here and I had a right to. Please, we need movement on this. Malama keiki, aloha aina. Chair Furfaro: Next speaker. Ms. Fountain-Tanigawa: Our next speaker is Victoria Holloway, followed by Ray Songtree. VICTORIA HOLLOWAY: Aloha, Councilmembers and Council Chair. My name is Victoria Holloway. I took off work today to implore you to please pass this Bill. It is surely hard for me to speak in public. I just want to name that. I implore you to pass this Bill today and Mayor, I implore you to support the decision of our Councilmembers. I will be brief. I would like to get to the point where you get to vote "yes." Please take a moment to look up at that County Seal everybody. That struck me real deeply when I came in the room today. For me, that is what this Bill is really all about. It is about a sustainable past that sustains thousands of people on these islands, including this island of Kaua`i for thousands of years that could become our sustainable future if you take a stand today. When I look at that SPECIAL COUNCIL MEETING 103 OCTOBER 15, 2013 seal, I feel good; pono; right and that is why I live Kaua`i. If I looked at that seal, and instead of those three (3) pictures, there was a picture of a giant pesticide spraying truck, a picture of deformed babies, and another picture of some transgenetically mutated plants in a dust bowl; I would not feel good and that would not be pono, but that could be the alternative seal if we keep going without passing this Bill. You have a historic opportunity to pass the Bill today towards keeping the integrity of that seal and to keep it pono. Please do so. Please do not defer and pass the Bill. Mahalo. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: Ray Songtree, followed by Ned Whitlock. RAY SONGTREE: Good afternoon, Ray Songtree. I am very humbled by everyone's talk here that I can hardly talk. Where I was taking you the last time I spoke was that in 2009, we had a Swine Flu that was an international scandal. It involved all of our Government agencies. Where I was going with that was that we can no longer trust the system. Where does that lead us? There is a quote by George Orwell— I cannot talk... he said, "In a time of universal deceit, speaking the truth is a revolutionary act." I think we are kind of there now. I am encouraging you all to see yourselves not as in a place in a hierarchy of Government, but as spiritual elders, which we are elders now, that where is your community going to look to for the truth? We are looking to you. I think everyone, not just you, all need to ask ourselves, "Am I enabling the truth in my life or I am taking part in a big scandal?" I am going to go to another point. This threat of being sued by these companies— I would not worry about that. If they do it, it will be the greatest PR mistake they ever made because everyone is watching. Kaua`i is in the Huffington Post and New York Times. Everyone is watching. The Frontline is coming here to do a piece. If they sue for the right to poison people here, what is going to happen to them? Do not worry about that. Thank you. Chair Furfaro: Thank you, Ray. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Ned Whitlock, followed by Astrid Drolson. NED WHITLOCK: Good afternoon, Council. This is Ned Whitlock, Mo loa'a farmer. From the data I have seen as far as what has come out of the lawsuit in Waimea, the most heavily used are the synthetic pyreththroids. There are probably about five (5) different kinds that I have seen like Mustang, Baythroid, Permethrin, and a couple of others. All of these have a tendency to be endocrine disruptors, which I hope you all understand by now. The effect of hormonal system in mammals... and from the moment of conception to the full formed fetus is the most susceptible time for neurologically and sexual organ damage, and we are talking about parts per billion here. You are having a foreign particle taking the place of what a naturally produced hormone is doing. It is interrupting and it is getting in the way with consequences. For example, we are talking about Baythroid. Let us just go with that one. At one millionth of a gram, you kill half the bee population and it is even more toxic the day after. There is no way those bees are going to avoid that field. They can be spraying at night, but they are still dying. Water fleas die in parts per trillion. Fish species mortality is at parts per billion and it bioaccumulates up to eight hundred (800) times. This is serious stuff and it is happening in our communities. What woman knows that she is not pregnant before taking a test or something like that and exposing her fetus to SPECIAL COUNCIL MEETING 104 OCTOBER 15, 2013 this danger? You have got to know this stuff. We cannot put it down the road and let somebody else try to figure it out. It is here and now. It is time to vote for this Bill and protect your people. Thank you. Chair Furfaro: Thank you, Ned. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Astrid Drolson, followed by Blake Drolson. ASTRID DROLSON: Aloha, I am Astrid Drolson. I thank you all for taking this on. I think we all have the right to know and I want to ask every one of you to best work your amendments today and pass this Bill. We have the right to know. At this point, Kaua`i residents have no choice than to deal with what they are exposed to. They can look at the dust and they can just guess. Mothers have birth defects and problems... not everybody, of course, but some. I just cannot imagine this burden as a mom. It is so hard. We need to start to investigate now and show respect to those people who suffer everyday not knowing what is on their windowsills or if the baby will come out right like having a pregnancy and wondering because you did not know before. It is just horrible. We need to take this into our own hands because I do not have the trust in the State at this point. You all can make a difference for the whole world. This is a big moment for all of us. Please, pass the Bill today. We have so many talented people in this community. We will figure this out. From this whole process, I experienced a union from people, not a separation, and so many talented people have come up. I am being part of this helping... my husband has been in GMO-Free Kaua`i for six (6) years and now we have all of these talented people in place, and meeting more and more. We can do this. You guys can do this and the Mayor can do it, as well. I hope we are all going to be an example for this world. Thank you. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Blake Drolson, followed by Susan Tai Kaneko. BLAKE DROLSON: Aloha, Councilmembers. Thank you for being here. My name is Blake Drolson. I am a founding member of GMO-Free Kaua`i. I have been doing that work for eleven (11) years as a volunteer citizen activist. I remember early on many years ago, I asked Mina Morita at an open Government session... I think I asked her, "We share these same concerns. What can we do to create change?" She said very clear to me, "Create a movement." I think by the luck of the gods, we have created a movement. We have a movement. We had four thousand (4,000) people show up outside. Honestly, until this started to happen and until this Bill has come forward, I felt we have been ignored. We have been talking about the dangers of these chemicals and the dangers of these crops, and I felt we have not received any sort of acknowledgment of those dangers until this whole process has come about. I am thankful for this process because I think it has released a lot of good information. We strongly support this Bill and so when we see that the Governor meets with everybody except the stakeholders of the Bill and the proponents of the Bill, we feel ignored again. When the Mayor meets with everybody except the stakeholders of the Bill and the proponents of the Bill, we feel ignored again. This movement is not going to stop and it is not going to stop with this Bill. It is going to continue on and I think there is enough information now that people are concerned. People know that their kids are in trouble, birth defects are coming, death, cancer, and all of this stuff. We want to see our SPECIAL COUNCIL MEETING 105 OCTOBER 15, 2013 community and children safe. I think this Bill is a step in the right direction to make sure that we keep our children and our community safe. We do not need any more political games like the deferral from the Governor and asking for voluntary disclosure seemed like a political game. The deferral for two (2) months also seems like a political game. A deferral for one more month— it honestly seems like a political game. It may be the right thing to do, but all I can say that we are continue on as a movement until we get the island safe and get what we want. I feel that there is a wave coming. I would rather campaign for you in the next election than against you. I hope will you vote for the Bill without a deferral. I feel that if you vote for a deferral, the Bill gets killed, and we get preempted by the State like what just happened in Oregon a couple of days ago, that we are going to hold that vote for a deferral against you. I do not know how much power we have honestly, but we will find out. Like I say, I would rather campaign for you than against you. Please pass the Bill today without deferral. Please keep our community safe and take our concerns into hand. Thank you. Chair Furfaro: Thank you. Mr. Bynum, do you have a question? Mr. Bynum: Blake, I want to thank you for being here and I want to thank you for your patience with me for the last ten (10) years. Mr. Drolson: Thank you, Tim. Mr. Bynum: I do not think I ignored you, but I did not pay close enough attention and I apologize for that. Mr. Drolson: Maybe I was a little strong. I do not know if I felt ignored, maybe nobody knew what was happening and maybe there was an education level that had to come out of this whole process. Mr. Bynum: I do not need you to comment. I just want to say that I did not pay close enough attention. I know that now and I apologize. I admire you and Jeri for your steadfastness, patience, and your demeanor which is always calm and respectful. It is very much appreciated. I do have questions. I have heard from testifiers today that they will work with the Council on these issues and that you are not going to go away. For me, that warms my heart. I get really excited to see the community engaged on any political issue. In the not too distant future, there will be other items on the Council agenda related to all of this discussion. There will be discussions about the National Resource Conservation Service and how that system seems to me to have broken down. Will you be there for those discussions as well? Mr. Drolson: I would like to be as much as I can. Mr. Bynum: Okay. There will be discussions about the economic impact about the changes that have happened on Kaua`i and how it impacts the people here, what taxes they pay, and who pays what. Will you be here and engaged for those discussions? Mr. Drolson: I would like to. I honestly have to say that I do have a full time job and a family to support, so I cannot come out for everything. I wish I could. SPECIAL COUNCIL MEETING 106 OCTOBER 15, 2013 Mr. Bynum: This is for everyone that testified today. Please stay engaged. These are complex issues. This Bill is critical and important, but there are many issues related to sustainability, health and safety, and economic impacts of the changes that have happened on Kaua`i over the next six (6), eight (8), or ten (10) months. I want that to be positive and good for our community and I need your involvement for that outcome. Mr. Drolson: May I answer? Chair Furfaro: No, you may not because he did not pose a question to you. Mr. Bynum: I have asked the questions and you answered so pau for now. Thank you, Blake. Mr. Drolson: You are welcome. Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: Susan Tai Kaneko, followed by Kirby Kester. SUSAN TAI KANEKO: Aloha, Council Chair, Vice Chair, and Councilmembers. My name is Susan Tai Kaneko and I oppose Bill No. 2491. It has been about three and a half (3.5) months since this Bill was introduced during which our community has been torn apart. I believe division lines have been drawn and aloha is going out the window between the insults, discrimination, vandalism, and death threats. If many of the supporters of Bill No. 2491 had their way, collaboration and coexistence would not be possible, and agricultural sector would be damaged possibly beyond repair for years on Kaua`i. The merits of science and facts have been traded for sensationalism and dramatic effect. The conflict itself has now taken center stage, overshadowing the real issues at hand. I applaud the Governor, Mayor Carvalho, our State Legislators, and many of our Councilmembers for expressing their concerns with the Bill, despite an often hostile and vocal minority pressuring them do to otherwise. As you can see, that is why many of us today are back in our regular clothes. It is no longer about blue and red. It is about supporting what is right and bringing us back to normal. In previous projects that I have had the honor of working on with this Council's input, I respected the level of inquiry, the insistence for due diligence, and the expectation for collaboration and partnership that leveraged what are already limited resources for a small island community, but I also appreciated the implicit rule to operate with aloha. Regardless of GMOs, pesticides, or any other topic, we cannot become a society which endorses "might makes right" where we give credence to the loudest voice rather than the voice of reason, where citizens are allowed to threaten violence and other measures if local government does not cave in to their demands. That is not the Kaua`i way. But it is not too late. I applaud our Mayor and his Administration for requesting a deferral in order to work hard with the State Departments and with the Governor's Office and to bring together all the relevant parties to work together. The Mayor is not supporting the seed industry or Kaua`i Coffee, nor is he backpedaling to support the biotech industry; he is merely supporting what is right and what this body has always valued— proper due diligence and input from the communities and parties involved. You cannot go wrong when you favor balance in place of bullying, reason rather than rhetoric, and evidence instead of anecdote. Henry Ford once said, "Coming together is a beginning, keeping together is progress, and working together is success." The secret is to gang up on the problem, SPECIAL COUNCIL MEETING 107 OCTOBER 15, 2013 rather than on each other. I respectfully ask to you take the Mayor up on his request for a deferral that will help refocus our community back as one towards reasonable and workable solutions. Mahalo for your time. Chair Furfaro: Thank you. Mr. Hooser. Mr. Hooser: Susan, which company do you work for? Ms. Tai Kaneko: I work for Syngenta. Mr. Hooser: How long have you been with them? Ms. Tai Kaneko: About two and a half(2.5) months. Mr. Hooser: Okay. Thank you. Chair Furfaro: Next speaker. Ms. Fountain-Tanigawa: Kirby Kester, followed by Peter Wiederoder. KIRBY KESTER: Aloha. My name is Kirby Kester and I work for BASF. Thank you for the opportunity to testify today. Just coming back to a couple of basic points of Bill as originally addressing public health concerns on the west side. I guess it has been stated some way that the legal right of the Bill or the County is based on the right of the County to protection health. I truly feel bad for anyone with health issues near the communities where we farm, but the testimony that I have heard during the process of this Bill is not factually or scientifically linked to issues of our practices. Can you honestly say that without a doubt that any of the accusations brought up here are fact? Facts strong enough to cause hardship to our industry? Strong enough to stand up to scientific consensus? Facts strong enough to discriminate against our industry? I do not see how you can pass any legislation without good data. Would it not be wiser to collect data and proof before making any harsh decisions on this Bill? Also, I hear a lot of"why did we not give up all the pesticide information that we have been asked for?" I think with all due respect, Councilmember Bynum and Councilmember Hooser, kind of helped to answer that this morning in the discussion about releasing legal opinions. They both said that the seed companies have threatened to sue us, meaning the Council. So why would we just hand over information to someone who has threatened us? Interesting enough, the introducers of this Bill have been threatening us and our operations for years. Why would we just hand over information to someone who we believe would like to cause us harm? If you can understand the position of the Council this morning as to why not to share a legal opinion, then why can you not understand our resistance to disclose? Are we to be held by different standards? Can you sense any hypocrisy in this process? I do support the Mayor's idea for a deferral on this Bill. I think we need more time to figure out how we can best address the community's concerns. We all agree that needs to happen. It is a matter of how and I just urge you not to rush into quick decisions without good information. Thank you for your time. Chair Furfaro: Thank you. Mr. Bynum, you have the floor. Mr. Bynum: Hi, Kirby. You just said that the introducers of the Bill have been trying to hurt your industry for years. What have I done prior to this Bill that you think was designed to hurt your industry? SPECIAL COUNCIL MEETING 108 OCTOBER 15, 2013 Mr. Kester: I am speaking more as a whole about the crafters and... Mr. Bynum: You said "the introducers of this Bill"... we could read it back maybe. Mr. Kester: Sure. Mr. Bynum: I just want to know what you think I did prior to this Bill that was designed to hurt your industry. Mr. Kester: I take that stance off of past positions on issues against our industry or not. Mr. Bynum: Can you be specific, please? Mr. Kester: No, I cannot to you, Tim. Mr. Bynum: Thank you. Chair Furfaro: Nadine, you have the floor. Ms. Nakamura: Thank you, Kirby, for being here. I have a question relating to your work now with the Governor and the Department of Agriculture to undertake some voluntary measures. Mr. Kester: Yes. Ms. Nakamura: Are you able to describe where you are heading with that? Mr. Kester: With most of the measures like disclosure and buffer zones, I do not think there is as much concern from the industry on a voluntary measure. It is more about from the "good neighbor principle." If someone has concerns that lives or resides right next to our farms, we would like to work that out with those people. It is different when you impose legislation that would cover and span across the whole island for all the people who have different, in my opinion, reasons for the information. If you are a neighbor who is concerned, that is totally different than what goes out widely distributed. I do not think there is nearly as much concern with working with people, and especially about addressing the concerns in the community about health issues related to pesticides and dust. We would like to get to the bottom of that as well. The last thing we want is the citizens in our communities being scared of what we do. I have said that a couple of times here. Ms. Nakamura: Do you see in your discussions with the Department of Agriculture that you are moving along in alignment with the floor amendment or is it going in a different direction? Or is it just doing a portion of what is in this floor amendment? Mr. Kester: I have not talked to them yet. We meet with some of them tomorrow actually, so I do not know what exactly is on the table thus far. Some of the language that I have seen that the Governor has proposed and the SPECIAL COUNCIL MEETING 109 OCTOBER 15, 2013 Mayor has brought up I think is viewed very favorably by our industry and we look forward to that route and that dialogue. Ms. Nakamura: Is it your understanding that just looking at some correspondence back and forth that you plan to put something in place by the end of the month? Mr. Kester: In place in regards to? Ms. Nakamura: Disclosure and buffer zones. Mr. Kester: If things move well, I do not see a problem. I honestly have not been privy to the proposal thus far along, but I know conceptually that what has been presented, I think, has been viewed very favorably. I do not know if anyone else would be more knowledgeable. Ms. Nakamura: I will ask others if they do testify. Mr. Kester: Okay. Ms. Nakamura: Thank you. Chair Furfaro: JoAnn, did you have a question? Ms. Yukimura: Kirby, thank you for being here. You mentioned in your testimony that you would like to get to the bottom of some of these questions about cause and effect. Mr. Kester: Yes. Ms. Yukimura: Do you support the EPHIS or the Environmental Public Health Impacts Study that is on the agenda separately as a Resolution, but also mentioned in the amended Bill? Mr. Kester: Yes. I think that is something that we could grasp onto, if done properly in a way to answer the questions and address the public's concerns. Ms. Yukimura: Okay. The system that you are talking about where seed companies work out things with people who live in the area sounds reasonable, except that in past history, there has not always been this responsiveness, which is part of the reason why I believe this Bill has been introduced. I think I see a lot of shift in awareness on the part of the companies, so even this Bill itself does not have a full process for complaints to be dealt with in a clear method. Right now, the only real procedural complaint system is the Department of Agriculture's system. Mr. Kester: Right. Ms. Yukimura: As I followed at least one complaint, it had some very responsible operations. The inspectors have worked very responsibly on this one complaint that I looked at, and very professionally, but there were also some gaps. I want to say that the reports from citizens who have told me about pesticide drift getting into their homes have come back now and said it has stopped. SPECIAL COUNCIL MEETING 110 OCTOBER 15, 2013 Those are all good signs, but a voluntary system worries me because what if it starts again? What leverage do we have? Mr. Kester: Right. Ms. Yukimura: I am just putting this out as a question in terms of if the seed companies, whether you are working with the Governor or with ' us on the amendments, come forward with a comprehensive or a good system of complaint processing— that would be helpful. I do not know if you have any comments about that. Mr. Kester: I agree. The main thing that I am concerned about with complaints or with predisclosure is harassment— the fear of harassments of frivolous or made-up complaints and the abundance of that. That is the main thing that we fear. There have been numerous examples of them already or taking of what we say or do out of context and being twisted and turned, so that needs to be addressed. That is real as evidence and something that would have to be addressed in whatever system there was to put in place. Ms. Yukimura: Are you comfortable in sharing with us some of the examples of the harassment? You can say "yes" or "no." Mr. Kester: Sure. There was a complaint a couple of weeks ago that somebody driving down Ahukini got pesticide poisoning in the vehicle and alleged towards the company that was not even having any sprayers operating that day. Ms. Yukimura: Okay. Thank you very much. Chair Furfaro: Mr. Hooser, did you have a question? Mr. Hooser: Mr. Bynum can go first. Chair Furfaro: Okay. Mr. Bynum, you have the floor, but before you do, let me make an announcement for anybody so that there is no confusion. People who have wristbands and are not in the Chambers, if you do not come back into the building, I am going to begin assigning those seats out. You have the floor. Thank you, Mr. Bynum. Mr. Bynum: Kirby, I appreciate you being here and I do not want to be argumentative, but you are saying things that I need to understand better. Who are you meeting with tomorrow about these voluntary plans? Mr. Kester: We are meeting with some of the Department of Ag folks. Mr. Bynum: Okay. Have you met with our Legislators? Mr. Kester: No. Mr. Bynum: Have you met with our Mayor about these voluntary measures? Mr. Kester: Not in detail. SPECIAL COUNCIL MEETING 111 OCTOBER 15, 2013 Mr. Bynum: You said there was language from the Governor. Is there written language that we can see? Mr. Kester: Just what is in the paper, in the press release. Mr. Bynum: Councilmembers just say, "We heard you may have this done by next month." I wonder who is working on this voluntary stuff. Why does some Councilmembers know about it and others do not? We are all concerned about transparency. I will go by the only thing I have seen in writing, which was a press release from the Governor. The press release said "aggregate." What does the word "aggregate" mean? Mr. Kester: I believe it means "combined together." Mr. Bynum: Right. He is not calling for specific disclose, he is calling for aggregate disclosure. Correct? Mr. Kester: That could be. That is one word that I have heard used. Mr. Bynum: That word was a red flag for me. The absence of some key words from the Governor's statement was a problem for me, primarily being "home/dwelling." He said, "Let us establish buffers between schools and hospitals," but he left out where we live and the parks. I am concerned about an effort that you are involved in, involving some members of the County, but not others, to do something that might be disclosed... can you understand my concerns, Kirby? Mr. Kester: Sure, I do. Chair Furfaro: Excuse me, Mr. Bynum. Did you pose that as a question at the end? Mr. Bynum: I did. Chair Furfaro: Very good. Thank you. Mr. Kester: I think that even gives more reason to go for some more time for a deferral to work some of these details out. Mr. Bynum: I will close with this question. We met, you saw my presentations, and I have been on your property. The buffer zones, even the way I proposed them, have pretty minimal impact on your usable land. Do you agree with that? Mr. Kester: No. Mr. Bynum: We will save the rest of the discussion for later. Thank you. Chair Furfaro: Are there any more questions for the testifier? Nadine, you have the floor. SPECIAL COUNCIL MEETING 112 OCTOBER 15, 2013 Ms. Nakamura: Just to follow-up on Councilmember's Bynum. How would the buffer zones impact your lands as proposed in the current floor amendment? Mr. Kester: What is the current provision from roads? One hundred (100) feet? Ms. Nakamura: Five hundred (500) feet. Mr. Kester: Five hundred (500) feet from public roads would take out... Ms. Nakamura: No, from schools and hospitals. Mr. Kester: BASF does not have any land leased next to any communities, so we would be most heavily impacted by anything next to roads. All of that productive land would basically go and be useless. Chair Furfaro: First of all, there is a correction. The road is one hundred (100) feet in the Bill, not five hundred (500) feet. I just want to make sure we are all talking about what is in the amendment. It is one hundred (100) feet. Ms. Nakamura: Does those one hundred (100) feet from the public roads affect your land? Mr. Kester: Yes, it cuts in about one hundred (100) feet into our field, all along Polihale road and some along the highway out by the shrimp farm. Ms. Nakamura: How many acres would be unusable? Mr. Kester: Probably a couple hundred with some quick math. Ms. Yukimura: What was it, Kirby? Mr. Kester: I said probably a couple hundred, like two hundred (200). Ms. Yukimura: Two hundred (200)? Mr. Kester: Acres. Ms. Yukimura: Okay. Thank you. Chair Furfaro: Okay. Mr. Hooser has the floor. Mr. Hooser: The more we talk, the more confused I get, and the issue becomes more confusing. At Polihale and where you plant along the road, you plant with no buffer at all, right up to the State land. Is that correct? SPECIAL COUNCIL MEETING 113 OCTOBER 15, 2013 Mr. Kester: We have a fence about twenty (20) feet off the ditch and we can plant right up to the fence if we need to. Mr. Hooser: You said it would take one hundred (100) feet out, but it would not take out one hundred (100) feet; it would take out eighty (80) feet because you have twenty (20) feet? Mr. Kester: Sure. Mr. Hooser: I am just trying to get clear. If you are planting up all the way up against the pavement, I need to know that because we are trying to figure out the impacts. Mr. Kester: We have some buffer already in place. There is a road, the ditch, and then we have a twenty (20) feet voluntary like that we have done already to do a grass cover crop. Mr. Hooser: So twenty (20) feet of ditch and another twenty (20) feet of buffer, so really we are only impacting sixty (60) feet. Mr. Kester: No, it is twenty (20) feet for the ditch and then... Mr. Hooser: Right. So when you say that we are taking one hundred (100) feet away, we are not taking one hundred (100) feet away according to your math; we are taking about sixty (60) feet away. Is that fair? Mr. Kester: Yes. In our case, sure. Mr. Hooser: I am just trying to get clear. We are trying to do our job here and understand the impacts on the industry, as well as the impacts on the community obviously. I think you mentioned that you are okay with the Governor's disclosure initiative. Is that correct? Mr. Kester: Voluntary. Mr. Hooser: You are okay with voluntarily doing it, but not being made to do it? The information would be the same, do you think? Would the community get the same information whether it is voluntary or by ordinance? Mr. Kester: I am not sure. It might be very similar. That has not been presented in detail to me. Mr. Hooser: I am just saying if it is the same... anyway, my understanding of the Governor's proposal, not only is it aggregate, it only affects restricted use pesticides. Are you willing to disclose general use pesticides, which is seventy-five percent (75%) and many would say is what you use? Mr. Kester: I cannot answer that because those conversations have not been posed to us yet. Mr. Hooser: Okay. You have mentioned that you are willing to accept buffer zones that the Governor has proposed. What about the SPECIAL COUNCIL MEETING 114 OCTOBER 15, 2013 buffer zones in the Bill right now? We talked about the roads. What about five hundred (500) feet from schools? Are you okay with that? Mr. Kester: The fundamental difference between it being law or voluntary because what happens in here, if it is law, it has ramifications much wider than just Kaua`i that our companies are interested in as well. Mr. Hooser: What kind of ramifications are those? Mr. Kester: Of being adopted in other Counties and States. Mr. Hooser: So you are concerned that other Counties would also want to protect their schools? Chair Furfaro: Excuse me, Mr. Hooser. I want to make sure that the audience understands that I am very serious about the decorum in this room, especially as being the Chair. You have the floor, Mr. Hooser. You can continue. Mr. Hooser: Thank you. I will try not to be facetious, but it is what it is. We want to protect our schools and if other communities want to protect their schools, I believe that they are entitled to do that. Mr. Kester: We want the schools and the communities to be protected as well. We do not believe we are doing any harm. We do not believe that the evidence presented has clearly demonstrated that we have created harm, therefore, for this to take effect as law when there has not been harm, it is unsettling. It is not something that we can jump behind. It is like finding someone guilty before having enough evidence. Mr. Hooser: Believe me, I understand the companies' reluctance to embrace the regulation, but I believe this is a modest attempt. It is a little disconcerting when on the one hand, you say and the industry says that we are willing to accept the Governor's voluntary this and that, and then you are not willing to be forthcoming when dealing this Council. Thank you. Thank you, Chair. Chair Furfaro: I have a housekeeping item here. We have about thirteen (13) more speakers and I announced several times when there was time to sign up. I want to get through the thirteen (13) speakers and I want to keep the Mayor for the last speaker. We also need to take a caption break in about thirty (30) minutes. Are there any more questions for Kirby? Ms. Yukimura: Kirby, this may be more a question for your lawyer than yourself, but is the fear not that if jurisdiction is established, that the County has jurisdiction to pass pesticide laws, that there may be two (2) sets of laws and that sometimes if we do not have a Council as judicious as this one, I will say, that it could get really crazy in terms of the regulations. Is that not part of the fear of accepting jurisdiction or legal regulation? Mr. Kester: That probably would be a better question for them. I would assume so. Yes. Ms. Yukimura: Okay. Thank you. SPECIAL COUNCIL MEETING 115 OCTOBER 15, 2013 Mr. Bynum: I just want to keep following up on this, because it is important. I have spent hundreds and hundreds of hours looking at aerial maps of Kaua`i with measurements. At one hundred (100) feet, there is almost no impact on growing plants anywhere on the island because of what you just said. There is a boundary of roadway and property lines. Then there is some kind of transition, usually a fence line or a road. Almost nowhere does the planting start within one hundred (100) feet. Would you agree with that? Mr. Kester: Tim, it is less about the distance than it is the principle. Mr. Bynum: No, I understand that. Mr. Kester: If I sit here and agree to buffers, then that is admitting... and while we are following all the laws about current pesticide laws and regulations brought up by EPA and USDA, we are following all the laws very well. For me to just agree to that right now would be admitting that we are breaking laws or causing harm. It has not been clearly demonstrated yet. Mr. Bynum: I will just disagree. Agreeing would be just accommodating the desires of the community. You could frame it that way, too. The point I am making is that I showed you on your property... I had an amendment, five hundred (500) feet from the roadway unless you tell us twenty-four (24) hours in advance, and then no buffer. If the Bill passed that way, you would have no buffer on your land; none; zero. It would impact your operations because you could not spray two hundred forty (240) times a year within five hundred (500) feet, right? You do agree with me that if there was notification on Polihale road, which impacts your operations on both sides, right? Mr. Kester: Just one side. Mr. Bynum: On the mauka side. If there was no buffer because you notified, how would that impact your operations? Mr. Kester: I am sorry, can you reword that. Mr. Bynum: If there was no buffer and if you had to give twenty-four (24) hour notification and then you could spray with no buffer; how would that impact your operations? Mr. Kester: Again, it comes back to the principle. Mr. Bynum: Okay. I very much appreciate you saying that because I believe if you and I had to work this out, we would do it in about forty-five (45) minutes. I answer to a higher power; they are sitting outside and in the audience. You answer to a bigger power, which are your corporate interests and they are not going to let you make decisions here on Kaua`i that impact other communities. Is that correct? That is just what you testified to. Mr. Kester: We also answer to the community. Most of our employees come from that very community that you are talking about. SPECIAL COUNCIL MEETING 116 OCTOBER 15, 2013 Mr. Bynum: Right. I understand. I will close with this question. I have asked this question for years now. Are you aware of any study done by anyone that addresses the impact of research agricultural processes that some companies are employing here, spraying up to two hundred forty (240) times in one (1) year, on one field, in very high quantities? Has anybody ever studied how that research practice impact the community? Mr. Kester: I would say that the places where these studies where pesticides are tested before getting granting their label would be best people to ask because they do routine sprays of experimental pesticides on a daily basis. That would be the best place to get that. Mr. Bynum: I really close with this, Kirby. The answer I have gotten from everyone is that no one has ever studied it. The studies all assume and your labels all assume that this use is for production agriculture. Nobody even contemplated in those rules and regulations multiple sprayings on one field two hundred forty (240) times a year. If anybody who has ever studied that, please tell me. The EPA said no. Everybody said no. I believe I said that you guys follow the rules. The rules are met for production Ag, not for what you guys are doing. Mr. Kester: I just... Mr. Bynum: Okay, I am rambling on so I will shut up. Thank you, Kirby, for being here. Chair Furfaro: Kirby, thank you for being here but we have one more question from Councilwoman Yukimura. Ms. Yukimura: I just want to ask about the premise of Councilmember Bynum's statement. Do you spray two hundred forty (240) times a year or even one hundred (100) times a year on the same ground? Mr. Kester: No. Ms. Yukimura: The field is big and I have heard you might spray in different parts of the field. Do you spray... let us be conservative, one hundred (100) times a year on the same land area? Mr. Kester: No, because we only plant one (1) crop per piece of land area, per year. Whatever that crop requires for pest control will receive those applications, and then that crop usually will go into a voluntary period, then fallow, might get a cover crop, and then the next year plant it back. Ms. Yukimura: If you spray enough for one (1) crop a year and it follows the crop cycle, is that anymore than a farmer would spray in production Ag for a crop cycle? Mr. Kester: No, the difference is that they would plant the whole field solid. Ms. Yukimura: Right, but for a given area, would you be spraying more in a given area if it is for one (1) crop cycle? SPECIAL COUNCIL MEETING 117 OCTOBER 15, 2013 Mr. Kester: No, because we are in a tropical environment. There are a lot of pests here, so there is more pest pressure here than in the "corn belt region," but in other southern states, there is as much. We spray just as much as the states in the south that spray towards the higher end of the average pesticide use, but nothing overly alarming. Ms. Yukimura: Okay. Thank you very much. Chair Furfaro: Just for clarification, Kirby, what is the difference between a "crop cycle" versus a "planting cycle" on Kaua`i? Mr. Kester: Basically, no difference. They can be used interchangeably. Chair Furfaro: When I hear the term "planting cycle" and I hear the term "crop cycle," there is no difference? Mr. Kester: I hear people refer to it differently. There are basically three (3) main cycles and might squeeze in four (4). It means putting that crop on that piece of dirt once a year. Chair Furfaro: Once a year? Mr. Kester: Yes. Chair Furfaro: Okay. Mr. Bynum, you have the floor. Mr. Bynum: This a key fundamental issue right here. This is one of the key issues as far as I am concerned, and I want to make sure that the community understands this. I am going to reframe JoAnn's question. I do not know what you did, BASF. I only know what Pioneer did because the Federal Court got us that data and they were spraying on average... so you have one field and you divide into subplots, but for regulatory purposes that is one field, right? It has a number. The Department of Agriculture knows what that field is, correct? Mr. Kester: The Department of Agriculture and the USDA track each individual field— what you refer to, I believe, as a "subplot" has a unique identification. Mr. Bynum: Right. Mr. Kester: The master field identification is whatever the cane companies called it. We adopted the same field terminology for that. Each planting gets its own unique identification, and that is how we track all of our pesticide data as uniquely to that one (1) plant. Mr. Bynum: Please bear with me because this is important. Mr. Kester: Okay. Mr. Bynum: You have these subplots, so now you are doing "Experiment A" here and you are responding to the pests on that plot, right? SPECIAL COUNCIL MEETING 118 OCTOBER 15, 2013 Mr. Kester: Right. Mr. Bynum: On the same numbered field, you have another plot. Mr. Kester: Correct. Mr. Bynum: You are responding to the pests that are on that plot, correct? Mr. Kester: Possibly, yes. Mr. Bynum: At least for Pioneer, on their one numbered field, they were spraying two hundred forty (240) applications of pesticides each year on average. "Okay, but it is a smaller quantity because it is just on subplots, and it is not like they were spraying that whole field." Then you look at the quantity and you just said that you are not spraying anymore than the high-end of production Ag, and I hope that is true. If this Bill passes and we see your data, we will know. Maybe I am improperly judging you based on Pioneer. Mr. Kester: Right. Mr. Bynum: But when I met with other entities, they have not disagreed that that frequency of spraying is happening... Chair Furfaro: I need a question, Mr. Bynum. Mr. Bynum: The punch line of this is that data says it was not on the high-end of production agriculture that Pioneer was spraying; it was four (4) times the highest end of production agriculture. That argument about the quantity and the frequency... Mr. Kester: I still do not think that you understand it properly because if someone was applying four (4) times the amount on that piece of land, it would be caught by the Department of Agriculture Inspector in a heartbeat for being off label. Mr. Bynum: The Department of Agriculture has never seen this data. Mr. Kester: Yes they do. They come and inspect all of our pesticide application records. Mr. Bynum: I will follow-up later, Kirby. Mr. Kester: This is important. This is the answer. Mr. Bynum: Right. That data we received from Pioneer— I am asking the State and the Federal EPA to analyze that data. So far, I have gotten no help. You are right. There may be lots of violations contained in that data. It needs to be analyzed, but the State Departments are not willing to do it. SPECIAL COUNCIL MEETING 119 OCTOBER 15, 2013 Chair Furfaro: Mr. Bynum, I have heard your piece. I want to recognize Mr. Hooser. We also need a cameraman's break. Mr. Hooser, you have the floor. Mr. Hooser: Thank you. I do not want to belabor it, but at the same time, I think we need to be clear on these issues. You said that the Department of Agriculture inspection would show something. My inspection log for two (2) years shows that they only inspected your company twice in two (2) years, and that is the unredacted. Of the total inspections that they have done for the County of Kaua`i, almost half of them are redacted for violations, but of those that are open, it shows that they have been to your company twice in two (2) years. So that, on principle, does not provide us with a lot of confidence. Are you saying that is sufficient to answer these questions? Mr. Kester: I can tell you that we do not look forward to the Department of Agriculture visits to audit all the records. She will go through with high amounts of detail at every record and look at the whole past year history. She can also look at the subplot, calculate up what was applied of the labeled rate, and the total allowable labeled rate for that piece of land for the year. That is the first thing you look at to see if they are overusing a certain pesticide or not. Mr. Hooser: Okay. Mr. Kester: It is real easy to do with just math. Mr. Hooser: The other question that I think is important— you mentioned a lot of testimony today, and you have heard me say it before, talk about the physicians in the community. A number of them, not just one (1) or two (2) in Kaua`i Veterans Memorial Hospital (KVMH)— pediatricians, medical doctors, and nurses all over the State are concerned. You heard a lot of testimony from mothers. Parents are concerned. If I understand correctly, you would consider that anecdotal information. Is that correct? Mr. Kester: What I have heard so far, yes. Mr. Hooser: It also seems that you believe that before your company or the industry should take any precautionary issues at all, these anecdotal information needs to be verified or proven without a doubt that they are actually occurring. Is that what you are saying? Mr. Kester: We take precautionary measures with ever spray application we do. We follow every law there is. What I am saying is before laws are enacted to create more regulations on it, I think there should be factual data that has scientific consensus behind it. Mr. Hooser: Great, we agree on something. That is why this Bill is here. There are three (3) components to the Bill; one is the study that you are talking about to determine whether or not these mothers, doctors, and the people in our community have valid fears or not valid fears. That is one element of three (3) right now. The first element is disclosure. You cannot do the study unless you know what to study. We cannot spend millions of dollars doing a study if we do not know what your company and the other companies are actually putting into the environment and the community, so that is the purpose of the Bill. We would like to reconcile that information just like you would apparently do, and we cannot do SPECIAL COUNCIL MEETING 120 OCTOBER 15, 2013 that without passing this Bill and getting that information. Our responsibility is to protect the health and environment of our community, and that is what we are trying to do. Your responsibility is different. You work for a corporation and you are fiduciary relationship is to that corporation. Do you understand the difference between your role and our role? Mr. Kester: I understand the difference, but I think that to address the concerns of the community, I do not see the need for this Bill for law to be put in place to make that happen. I think it can happen another way. Mr. Hooser: Okay. Thank you very much. Thank you, Chair. Chair Furfaro: We are going to take a caption break now. I would like everyone to be back in their seats, ready to go, at 4:10 p.m. There being no objections, the meeting recessed at 3:57 p.m. The meeting reconvened at 4:21 p.m., and proceeded as follows: Chair Furfaro: Aloha. Please everyone, I continue to ask you for your personal best here when it comes to the decorum in the room. I want to thank you in advance. We have a significant amount of people to continue to take some testimony from. I also want to make an announcement that Mr. Bynum had to leave for a little while to take care of some errands, but he does plan to be back in an hour or so. Madame Clerk, can I have the next speaker, please. (Mr. Bynum is noted as not present.) Ms. Fountain-Tanigawa: The next speaker is Peter Wiederoder, followed by Stephanie Iona. PETER WIEDERODER: Chair Furfaro and Councilmembers, my name is Peter Wiederoder. I am the site leader for Dow AgroSciences. Thank you for allowing me to testify today. I am here to testify in support of the Mayor's deferral and in support of the Mayor. I think it is right to give his Administration time to look at the Bill in how he can administer this law. I have heard a lot of comments about the State and how the State is understaffed, and even the lack in the State. I think it is only fair that we should give the Mayor some time to work on the Bill and work with his Administration on the resources that he needs, so he can resource the County sufficiently to administer this Bill. I support the Mayor and his call for a deferral. Thank you. Chair Furfaro: Are there any questions for Peter? JoAnn, go right ahead. Ms. Yukimura: Peter, after your testimony, we will be looking at the amended Bill. I was wondering whether Dow can live with the Bill as amended. Mr. Wiederoder: That is a difficult question to answer straight up. Again, it is law, I am not a lawyer, and I do not represent Dow from a legal point of view, so I cannot answer whether Dow as a corporation would find the Bill acceptable. I do know that I am very willing to work with you and with the SPECIAL COUNCIL MEETING 121 OCTOBER 15, 2013 Mayor. We are very open to the voluntary actions and I have heard the concerns about the voluntary actions. I think we do need to have the Mayor and the Council involved in the voluntary actions. It needs to be a Committee. We are very interested in working with the Mayor and with the Governor. We feel that a lot of this is a State issue and with you, obviously, to see how we can implement the Bill. Ms. Yukimura: Maybe you can clarify the word "voluntary." Are you folks thinking of an actual agreement between the Governor and the companies, or the Governor and the Mayor, or the County? Sorry— the companies and the County or the companies and the State, where there would be actually a written agreement that would be enforceable by parties? Mr. Wiederoder: I have heard a lot talk about "memorandum of understandings," putting an MOU together. I think we are very open to looking at something like that and to use that as a mechanism. Ms. Yukimura: We have been talking about an MOU between the County and the State as a way to delineate enforcement responsibilities, but I hear you saying that it might be in a memorandum of agreement between you and the State, or you, the State, and the County... "you" meaning the company, that actually would be parties to an agreement that would be an enforceable agreement. Mr. Wiederoder: That is something that we would like to work with you, along with the Mayor. Ms. Yukimura: It is not just a voluntary thing that you guys say "we are willing to do this," as long as we are willing to do this? Mr. Weideroder: I think there has to be a little bit more behind than that, yes. Ms. Yukimura: Okay. Because of the issue of enforceability, Vice Chair and I have been looking at amendments which we have prepared to offer today to convert the buffer from a "no pesticide use in the buffer" to a "no crops in the buffer." Do you have any reaction at this time? We are just saying that it is so much easier to enforce by just looking and seeing that there are no commercial crops there versus whether there is pesticide drift in the buffer. Actually, the role of the buffer is to take the drift, so that it does not hit third parties or houses outside of the buffer. Do you have any input at this time about no crops in the buffer? Mr. Wiederoder: I think that is an interesting proposal. It could be something that we could live with. Again, my support is for more study for a deferral to take a look at these issues. Ms. Yukimura: Okay. Thank you. Chair Furfaro: Your company is very familiar with the January 17, 2008 Hawai`i Pesticide Laws? Mr. Wiederoder: I am not familiar with it per se myself. SPECIAL COUNCIL MEETING 122 OCTOBER 15, 2013 Chair Furfaro: How about in 2006? There was a complete Department of Agriculture set of rules framed for compliance with the pesticide law. Are you familiar with it? Mr. Wiederoder: I personally am not familiar with it, no. Chair Furfaro: I just ask that question because these are existing State documents that exist. Mr. Wiederoder: Understood. Chair Furfaro: You have answered my questions. Thank you. Mr. Hooser: Can you help us out with how the decision making is done? Do you call the shots or do you have to call New York or Chicago? Where is your headquarters? Mr. Wiederoder: Dow AgroSciences is in Indianapolis, Indiana. Mr. Hooser: You said several times things like you are open to this or you can work with that. I have not heard anything definitive and I understand it may be difficult for you to be definitive. Who can be definitive? Mr. Wiederoder: It depends on the question. Right now, you are talking about legislation and government affairs, so it would be our government affairs people in Indianapolis. Mr. Hooser: They actually make the decision whether or not to support legislation or someone behinds them makes that determination? Mr. Wiederoder: Yes, it would be our government affairs people that would decide and make recommendations to our Chief Executive Officer (CEO). Mr. Hooser: So is that the way the process works? You leave here today, go call them, and ask and tell them what happened? Are they watching us on television? Do you talk to them tomorrow? Mr. Wiederoder: They are watching us right now. Mr. Hooser: There are three (3) components to the measure that we are look at right now; one is a study. Is it safe to say that Dow AgroSciences is not opposed to the County doing a study? Is that safe to say? Mr. Wiederoder: It is your County study, so we would not have a problem with you doing a study. Mr. Hooser: Okay. That is an affirmative. We have the disclosure, and apparently you are working with the Governor on voluntary disclosure? Is that correct? SPECIAL COUNCIL MEETING 123 OCTOBER 15, 2013 Mr. Wiederoder: I am not working with the Governor. Nobody in my company, to the best of my knowledge, is working directly with the Governor. We just support the Governor's statement and we put out a statement to you saying that we would be supportive of that. We think it is a State issue and we would be willing to work with the State on disclosure. Mr. Hooser: So you are willing to disclose the chemicals that you use in our community? Mr. Wiederoder: We have already disclosed to you the amount of RUPs in 2012. That is a starting point. We can have discussions and go from there. Mr. Hooser: Are you willing to disclose the general use pesticides? Mr. Wiederoder: I cannot comment on that right now. Again, questions you have on that; we should be bringing forth in the studies. Mr. Hooser: Would that be a government affairs person in Indianapolis, Indiana that would answer that question? Mr. Wiederoder: Yes. Mr. Hooser: The buffer zones— same type of thing. You support the Governor's press release? Mr. Wiederoder: Correct. Mr. Hooser: Okay. Mr. Wiederoder: We are already doing voluntary buffer zones and we are maintaining the buffer zones around the schools that are in the middle of the land that we lease. Mr. Hooser: If I can ask, how many feet is that? Mr. Wiederoder: It varies from season to season. This year I gave the request that we maintain five hundred (500) feet around the school, and we were able to work that in with our planting schedule this year. Mr. Hooser: Okay, so a five hundred (500) foot buffer zone around the school does not cause you any grief? Mr. Wiederoder: It did not this year. In future years as the number of acres may increase, it may or may not. This year, we were able to do it gladly. Mr. Hooser: Okay. If you are already doing the buffer zones and you are already willing to disclose, why are you not supporting this legislation? Mr. Wiederoder: You already had the discussion about voluntary versus legislation. SPECIAL COUNCIL MEETING 124 OCTOBER 15, 2013 Mr. Hooser: Have you ever supported any legislation involving the increase of regulation for pesticides and genetically modified organisms? Mr. Wiederoder: That is not my role. That would be government affairs. Mr. Hooser: Have they? Mr. Wiederoder: Not to my knowledge, but I am not that knowledgeable on that. Mr. Hooser: Right. In many ways, I do not expect them to. That is our role to do that. Thank you very much. Mr. Wiederoder: You are welcome. Mr. Hooser: Thank you, Chair. Chair Furfaro: Are there any other questions? JoAnn, you have the floor. Ms. Yukimura: Peter, you mentioned that the buffers around the school there have varied with the seasons. Can you explain why and how that would happen and still make sure there is protection? Mr. Wiederoder: Well, we have farmable land that is within five hundred (500) feet of the school. When you came out and visited us, you saw that we may have a five (5) acre section of land that is farmable, but we only need to plant two (2) acres in that five (5) acre plot. What we have done this year is make sure that we use the two (2) acres of those five (5) acres that is the furthest away from the school. Even though we have farmable land within five hundred (500) feet of the school, we were able to plan where we plant our crops this season to make sure we maintained a five hundred (500) feet buffer. Ms. Yukimura: I think you also mentioned about coordinating your operations for when school is out, so you do that factor as well... working with the school? Mr. Wiederoder: Yes. The fields that we had that were the closest to schools, outside of the five hundred (500) feet buffer, but close to the school; we made sure that we actually worked off that land last week while the school was out. We kind of did that as a courtesy. Ms. Yukimura: Okay. Thank you. Chair Furfaro: Are there any more questions for Peter? Peter, thank you very much. Mr. Wiederoder: Thank you. Chair Furfaro: Next speaker, please SPECIAL COUNCIL MEETING 125 OCTOBER 15, 2013 Ms. Fountain-Tanigawa: The next speaker is Stephanie Iona, followed by Mark Kennett. STEPHANIE IONA: My name is Stephanie Iona. I am a resident of Waimea and born and raised in Hawai`i. I did not expect to speak today. I decided to because I felt that I wanted to just kind of step back and ask everyone to take a breather. This room is not big enough for the other one hundred (100) people outside and those people, I think, need a voice. What I would like to say is that all of us, including the people in this room, are "Kauaians." We all believe in Kaua`i and love Kaua`i. No matter how passionate we are about either side of the issue, this is a democratic process. What it comes down to is what is the law, what is legal, and the questions that you all have. I heard very sad things today and I will quote people "threatening," "no good," "not pono," and "against the people." Also, "threatening the fact that we the people" and "the community wants this." Yet, signs are out there saying "protect the children." My children were born by sugarcane fields on the island of Maui. I am from the island of O`ahu. I think what I learned from all of the people that are truly Hawaiian, including some of my friends that are sitting in this room, are from the island of Moloka`i. Mr. Ritte and I are actually distant relatives. I look at things that we care for the land. We want truth... scientific technology is just truth. But more than anything, all the people that is from and truly believes in what we are as people are humble, so we do not come out and say too much. When it comes to respect and lack of respect, and telling our Mayor to go in front of a running train or that it is a "slap in the face," that is a slap in the face to the respect of all of your offices. I sat in a meeting recently and I talked to people from the taro fields in Hanalei, and they said they are afraid to answer their phone because of being threatened. What is a "threat?" You are afraid the Legal Counsel might threaten you, they might threaten you, and everybody is going to threaten everybody. The bottom line is that all our Mayor is asking is to bring everybody to the table and ask the questions. You are still asking questions. You are asking it of people in this room and you people are asking questions, and everybody is asking questions. All he said is that he wants to be the Monday night quarterback and take a timeout. Is that so bad? For that, he has been told things like it is a "slap in the face" and all of this. There is no nonsense for that here in Hawai`i. As far as what we all are as people, I sit on the board of the hospital and I am very proud of our birthing center. There are fields that are past Waimea Canyon. I believe that we do the best job to bring the children into the world, which is everybody from Hanalei comes to our birthing center to have a baby. Please do not cut down our hospital. Please do not cut down our people. They believe the same things as we are all the people you represent. Mayor, thank you for the timeout. Chair Furfaro: Stephanie, that was your three (3) minutes. Ms. Iona: Thank you very much. Chair Furfaro: Stephanie, before you leave, you might have not been in the room, but I have repeatedly asked people for respect and mutual kokua in getting us through this. I am very proud of the fact that the Mayor is sitting here in our presence all day. Ms. Iona: Absolutely. Chair Furfaro: I think that is a mark whether it goes one way or the other, that is a mark of someone who is trying to lead. SPECIAL COUNCIL MEETING 126 OCTOBER 15, 2013 Ms. Iona: Yes. Chair Furfaro: Thank you very much. Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Mark Kennett, followed by Pua Nani Rogers. MARK KENNETT: Good afternoon, Council. My name is Mark Kennett. Maybe I am speaking a little out of terms and this may be addressed a little later in the EPHIS, if that is coming up or being brought up. I would like to reiterate something that you may have seen yesterday in The Garden Island which was a guest viewpoint from my father regarding the dump out on the west side, which is pertaining to this that maybe an investigation should be going on out there as I have heard many horror stories. Personally, I have not witnessed out on the west side of birth defects, but that the dump be included inside of this EPHIS for what is coming up there. JoAnn had to deal with it during Iniki, which has been a difficult thing for many, many years with all the Administrations that have been passed down to our Honorable Mayor now, which he is dealing with. We are tied up there, but what is it admitting? Is that possible cause for some of the things that are going on in the west side that we are hearing about? Again, I am not quite sure if it is all true or if it is conjecture. It is something that needs to be included. It has been there for many, many years. With stuff going into the groundwater; is that possible for some of the things that are showing up out there? Is the drift coming off that? It is not a "landfill" anymore; it is a "landhill." It needs to be included in any kind of investigation that you do. Just get it out there. We are having all kinds of things coming from the corn. Would it not be a travesty if this has nothing to do with the corn and the things that these people are saying while it is coming off of the "landhill," of the land mountains that us on the west side are having to deal with and have had to deal with for many, many years. It keeps getting bigger, bigger, and bigger. We are getting tired of it. Everybody's garbage— tourists, too. Every one of us is guilty of contributing to that mountain, but it needs to be included in the EPHIS. We are tired and we cannot live with it anymore. It is polluting the west side. Please include it in your EPHIS. Thank you very much. Ms. Fountain-Tanigawa: The next speaker is Pua Nani Rogers, followed by Angela Hughes. PUA NANI ROGERS: I have to catch my breath because I had to walk from way out there. I wish they had called me to come and sit in here when they knew my name was coming up. I was way up there sitting down. Chair Furfaro: Nani, would you like to wait and let the next speaker go, and then come back to you? Ms. Rogers: No. I have been waiting since 8:30 a.m. Please do not let me wait anymore. Chair Furfaro: Okay. Ms. Rogers: E welina kakou. Greetings everyone. My name is Pua Nani Rogers. I was raised and born, and still live in the ahupua a of Kealia, and so does my children, grandchildren, and greatgranchildren. Mahalo for this opportunity as I catch my breath. SPECIAL COUNCIL MEETING 127 OCTOBER 15, 2013 Chair Furfaro: Start her three (3) minutes from now. Do you have your breath? Ms. Rogers: Yes. Chair Furfaro: Okay, good. Ms. Rogers: A kahea to all my kupuna and all of our spiritual guardians that are surrounding us now that we cannot see, but is here. I do kahea them and ask them to please come in this room and join us. Bring their presence here and their knowledge of how we are supposed to protect our lands. I am going to clear my head of all of the arguments and all of the discussions, and everything that we have been talking about that seems somehow to be distractions to us, when the main focus here is "how do we take care of our aina?" As you know, governments recognize us as Native Hawaiians, Aboriginals, or indigenous people of these Hawaiian islands. Our ancestors were the original people of these islands and should also be recognized as the indigenous people of these islands. Based on that truth, I wish to read some articles of the United Nations Declaration of Indigenous People's Rights of the World. This declaration has been signed and adopted by the United Nations on September of 2007. Therefore, it is law that all nations of the world, including the United States of America and its puppet, fake State of Hawai`i and this County are all subjects of this document. Having said that, I wish to read you Article 32 of the United Nations Declaration. I am speaking to you as an indigenous person of this aina; a kanaka maoli. I am speaking about the whole archipelago, not necessarily just Kaua`i. That is how far our rights go to the aina including the oceans. "Indigenous people have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. States shall consult and cooperate in good faith with the indigenous people's concerns through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of minerals, water, land, and other resources." Chair Furfaro: Pua Nani, that was your time. Ms. Rogers: It is three (3) minutes? Chair Furfaro: Yes. Ms. Rogers: May I just close with one more comment? Chair Furfaro: Let me do this; do you have another comment for us as it relates to indigenous people? Ms. Rogers: Yes. Mahalo. "The State shall also provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse, environmental, economical, social, cultural, or spiritual impact." I am in agreement with this Article and have spoken to support Bill No. 2491, which has already offered many, many reasons on why it should pass regarding its science, hydrology, medical facts, all of the research that is done on pesticides, and manmade laws of Government, as SPECIAL COUNCIL MEETING 128 OCTOBER 15, 2013 well as the "fake State laws." Above all of these laws is the law of ke akua and I believe that is the supreme law above all manmade laws. Chair Furfaro: Pua Nani, on that, I have to say that you answered my question. Ms. Rogers: Okay. Please, not just physically or spiritually, I hope you will give the consideration about how we malama our aina because that is why I am here and speaking for our kupuna and for people that are not here, that do not have a voice. I am that voice. Please malama our aina and pass the Bill. Thank you. Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Angela Hughes, followed by Amanda Oana. ANGELA HUGHES: Aloha, my name is Angela Hughes. I want to give a mahalo to the distinguished Councilmembers, Attorney, and Chair for all your tireless and continued efforts. There is a significant danger in moving to a deferral. The State has been working on attempts to strip citizens at the County level of protecting ourselves from pesticides. There may be potential for a special session where these may be reintroduced prior to January's normal session. If the State were to be genuine in its sudden supposed interest, I am sure they would be welcomed to join in effectively moving in alignment with our efforts as we progress. Enhancing their presentation operations in research, regulation, and enforcement along these lines may be a relevant place to start. Protections in place with separations of our levels of Government provide checks and balances and stagger at the distribution of power, i.e., in the Federal, State, and County and city levels. The ability of our County to pass this Bill is an example of how those with vested interests coming from within our County community can effectively create positive change with lower levels of risk like conflict of interest among government officials, regulatory agencies, and problems with corruption from corporate money influences. We have a risk of facing even further obstacles to our ability to be part of these minimal protections. Our community is activated and this is at the forefront of our awareness. In regards to the question to Blake from the GMO-Free Kaua`i group with presence at future meetings and efforts to assist with our community; we are behind you. Although Blake may be a bit on the busy side, I can attest on behalf of the community that there are many others who can fill his shoes and even be advised by him, if needed. I will personally help to connect those community members and others as well, if it is pursued and desired. We have the opportunity to leave a legacy that we can be proud of. The time to act is now. I believe in you. I believe in us. Mahalo. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Amanda Oana, followed by Shane Johnson. Chair Furfaro: Is Amanda here? Please go to the next speaker, and then come back to Amanda. I know she is right here, but I want to keep moving here. Amanda, you will be next. Shane Johnson, please come up. SPECIAL COUNCIL MEETING 129 OCTOBER 15, 2013 SHANE JOHNSON: Aloha, Council and Mayor. I am known as (inaudible), also known as Shane Johnson. I come from the paint clan of a sovereign Cherokee Treaty recognized nation. Our Country has treaties with the Kingdom of Atooi. I was actually asked to come here as a spiritual ambassador. I am a prayer man. We have a church here. The Mayor knows our church and actually stood up for us and to help protect our religious rights. I want to say that on his behalf. He came to the powwow and he danced. The County supported us here. I was asked to come here today to this island to pray and bring prayer. There is a prayer I wanted to share with you guys. This prayer is for life. Our prayer is for clean food, clean medicine, clean Earth, clean water, and clean air for the future generations. There was a covenant that was given to us by God in the beginning. The covenant was life everlasting. It was given to us as kuleana to take care of this. I am going to tell you that this is real simple. Our Country goes after other Countries that are doing chemical warfare on people. My question is this; let it be known. Let us let it be known because if these chemicals take one (1) day to kill our children, one (1) week, or one (1) year; do we have the right to know, resist, and make laws to protect our environment, life, and our connection to creator. Yes, we do have that right. I am asking not for a deferral because you know why— I have five (5) kids. My wife is pregnant with a child right now. If there is a chance that these chemicals are hurting us, our Earth, water, and air... no more. No second can go on. I trust in God. I come here to pray. This is the thing about disclosure, buffers, and all of this. When you create these chemicals, they go into the Earth, air, and water. You cannot contain them. If a bug will not eat something, you better pay attention to that. There is a serious problem with that. What are we doing to our Earth? Then they want to use corn. That was something the native people gave to them, and then they took something sacred and turned it into poison, and poisoned the people with that. My daughters had something to ask the Mayor today. They asked him, "Are you for support of the Bill or not?" He said, "Do you think any of us in our right mind poison the generations knowing that?" No, I do not. That is why we want to pass the Bill so we can know. If we do find out that this is the case then let us put laws to protect ourselves, our future, and to protect our keiki. It is commonsense. It does not take a lawyer, rocket scientist, or anything to know about that. We are talking about pesticides and poisons here. What is the difference between those and chemical warfare? I tell you, there is a warfare that is going on. They are poisoning our aina, water, air, and the food. Whether it takes us one (1) year to get sick or ten (10) years to get sick, we have to think about the future. The other Countries that gets disclosed... every Country where it got disclosed of what they used—they have been kicked out of the Country. Chair Furfaro: That is your three (3) minutes. Mr. Johnson: Pass the Bill. Ms. Fountain-Tanigawa: The next speaker is Amanda Oana, followed by Wendall Kabutan. Chair Furfaro: Amanda, you need to introduce yourself before you speak. AMANDA OANA: Hi, I am Amanda Oana. I actually was not going to come in because I think over the years of how I watched everybody on television and everybody's opinion, but nobody counts pretty much sums it up for me after watching a lot of changes here, which is really sad to me. I am going to come forth today. One thing I want to say, although I did not have anything SPECIAL COUNCIL MEETING 130 OCTOBER 15, 2013 prepared, is that the word "buffer" is not in the Hawaiian language. Number one, "buffers," which to me seems endless to find what that exactly means on the island to safety. You guys can make history today and pass this Bill, and stand up to whatever is bigger than you guys. To our Councilmembers, I have a feeling that there is something even scarier behind Syngenta. Without going into other names, possibly DuPont. These are big, big companies out there running everything. I pray today that you will do the right thing and pass this Bill. I would like to comment Susan, who maybe hours ago, came up who has been working for Syngenta two and a half (2.5) months. She could not answer to any results or any scientific studies turned in since they have been here growing things to alleviate our fears that they can show us that they are safe. Do you guys have anything from them? Honestly, you, JoAnn? Chair Furfaro: Your questions are not appropriate. You can address it to the body. Please use your time appropriately. Ms. Oana: Okay. I will and I hope you will, too. I hope you will make history today and pass the Bill, and do the right thing. Do you have any questions for me? I would like to make one comment. I have a little girl who is eight (8) years old and this is not something made up. I do not live near the Canyon. I have a little girl with a lot of bloody noses and if we need to bring that in and document with Dr. Ross or somebody else, I will. There is more going on than you just singling out Waimea because that is where they are growing stuff and the pesticides are being sprayed. I would like you to think about that when you see me today and not my daughter. Thank you. Chair Furfaro: We have a question for you. JoAnn, you have the floor. Ms. Yukimura: Where do you live? Ms. Oana: Keapana Valley. Ms. Yukimura: Okay. Thank you. Chair Furfaro: Are there any questions? Okay, thank you for your testimony. Ms. Oana: Thank you. God bless you on this. Ms. Yukimura: And you also. Ms. Fountain-Tanigawa: The next speaker is Wendell Kabutan, followed by Klayton Kubo. WENDELL KABUTAN: My name is Wendell Kabutan. I am from Waimea Valley. To be brief, my wife had breast cancer and two and a half (2.5) years ago, I almost died because I could not breathe. About two and a half (2.5) weeks ago, again, I could not breathe. It may be anecdotal. I cannot prove anything, but I know it is the pesticides because weeks before it is coming on. I know they are spraying the fields and depending on the poisons that they use, I used to be asthmatic as a kid so it affects me. I went to the emergency room two and a half (2.5) weeks ago and they could not find anything wrong with me. Two and a half years (2.5) ago, they sent me to Honolulu, took a dye test, and found SPECIAL COUNCIL MEETING 131 OCTOBER 15, 2013 nothing wrong with me, except that I cannot breathe. My wife and I are going to leave and sell. Does anybody want to buy our house? It is cheap. It is too dangerous for us. I hear the seed companies saying that we have to prove that their chemicals are affecting our health, but I have not heard them say that they proof beyond a reasonable doubt that all of the poisons that they are using not affecting my health. It is like we have to prove but they do not have to do anything. They can use all of these poisons like 2,4-D, Glyphosate, and Atrazine which has been scientifically proven by all kinds of scientists and research all around the world that there are side effects on people's health. Yet, they denied the American Academy of Pediatrician's report of all the effects on the children, as well as adults. We are doing our own little cluster study in Waimea. It is not professional but just in the Valley and in Kekaha, we have one hundred eighteen (118) names of people who died of cancer and survived, et cetera. One is too many. That is my question to the seed companies. Prove to me that all those poisons are safe. They are not safe. It is proven. All over the world, they use it to kill bugs, animals, and whatever. It is affecting our health in Waimea... the children and people who have been spraying in the fields. They are afraid to come out in the public but they have told us that they had problems, so that is one of my main questions about the health issue. If this is a democracy, I believe in the democracy. I believe in the Declaration of Independence and the Constitution. How can five (5) corporations who came to be people overrule thousands of people who object it? Is this a democracy or what? Five (5) corporations rule the world and our voices are quenched. It does not make any sense to me. Chair Furfaro: Wendell, thank you very much. Are there any questions for Wendell? JoAnn, you have the floor. Ms. Yukimura: Wendell, thank you very much for coming forward. I know it takes considerable courage and effort. How far is the nearest field from your house? Mr. Kabutan: I live on Ala Wai Road. I do not know. I live close to Klayton Kubo. We live on the same street. Ms. Yukimura: Are you talking about the field across the river that is high above? Mr. Kabutan: Yes, right on the cliff. Ms. Yukimura: If the spray is coming, it is likely to be through the dust rather than through pesticide drift or you think that... Mr. Kabutan: No, I can smell the poison. Ms. Yukimura: You can you smell it. Mr. Kabutan: I have filed pesticide reports and they could not do anything. Ms. Yukimura: The closest field is across the river and up on the hill? Mr. Kabutan: Yes. SPECIAL COUNCIL MEETING 132 OCTOBER 15, 2013 Ms. Yukimura: There is nothing in the valley itself? Mr. Kabutan: No. It is coming off the cliff. You can see the dust and you can smell the poisons. They used to do it during the day, and then they changed and started doing it late at night like 12:00 a.m. I go out and I can smell the poisons. I thought my neighbor's house was burning. They do it at night to the hide the dust and some of the spraying. Ms. Yukimura: So you are doing this informal study of one hundred eighteen (118) people who died... Mr. Kabutan: Or survived or presently going through chemotherapy. Ms. Yukimura: So they either died or presently have cancer of some sort? Mr. Kabutan: Yes, primarily. Ms. Yukimura: Have you done data on how many of those smoke or used to smoke as well? Mr. Kabutan: No. Ms. Yukimura: Okay. There are those factors that could be contributing. Mr. Kabutan: Yes. Ms. Yukimura: If we get to do epidemiological studies, we would have to factor that in in order to be able to say accurately what the cause is. Mr. Kabutan: But it is just that so many neighbors have been sick like my neighbor across the street and two (2) homes down. They all have cancer. Ms. Yukimura: Right. Mr. Kabutan: It is on and on, and on in the valley. The thing of it is, again, it is not for us to prove. That is my thinking. It is in reverse. They have to prove that they are not affecting my health using proven poisons that kill people. Ms. Yukimura: Well, an epidemiological study should help to test for some of that. Mr. Kabutan: They have to prove it to me. Ms. Yukimura: Correct. Mr. Kabutan: It is not that I have to prove to them; they have to prove it to me that it is safe. SPECIAL COUNCIL MEETING 133 OCTOBER 15, 2013 Ms. Yukimura: What the epidemiological study should show is whether there is a cause and effect or not. Mr. Kabutan: I called the State people. They put out that report. The first lady told me thirty-five (35) cases a year. The second guy told me seventy-five (75). From the American Cancer Society on Kaua`i, there were two hundred fifty (250) who applied for services. That does not count the people who did not apply. Ms. Yukimura: Right. Mr. Kabutan: The numbers are all off from the reports that are given in the newspaper. Ms. Yukimura: We have to make sure that is not the same situation where there are no corn companies at all. Thank you. Mr. Kabutan: The American Academy of Pediatricians put out that report and they study all over the United States. It is also professionals who did the study, so it does not have to be proven. It has already been proven. It is a matter of accepting what the medical community has provided for us. Ms. Yukimura: That does not show site specific research, but thank you very much. Chair Furfaro: Thank you, Wendell. Ms. Fountain-Tanigawa: The next speaker is Klayton Kubo. KLAYTON KUBO: Good afternoon, Council. I think this is my fourth time talking to the five (5) of you. Chair Furfaro: Klayton, you need to introduce yourself for the record. Mr. Kubo: Klayton Kubo from Waimea. I think this is fourth time talking to some of you guys. I do not know what else to say. I do not know how to convince you guys that we need help. This is a serious matter happening, not only in Waimea, but Puhi and Po`ipu. Where else are they going? Why do we have to prove that they are doing something wrong to us? Why is that? That is what I cannot understand. For me, it has been many years now, many years. It seems like that one company, to me, they just disrespecting me majorly. How can they even do that? What right do they have that they can farm and their stuff can come on my stuff? How is that? Their stuff comes on my son— I do not approve of that already. When are we going to get help? That is all I can say. When is the help going to come? The Department of Agriculture and the Department of Health are not happening. Not even. I dealt with them many years now and they seem to like not get it, I guess, I am going to say because I guess we have to prove that we are getting affected. I got proof in my house. I got proof on my truck. I get proof on my son's pillow. In fact, he just told me, "Dad, remember you bought the pillow and told me open the windows, and the wind became strong; my pillow was all brown." It seems like to me that these guys have to prove that they are not harming us. That is what I look at. They need to prove that. How can they spray "side" action? All the "sides" kills. All the thing does is kill. Maybe I am SPECIAL COUNCIL MEETING 134 OCTOBER 15, 2013 a human being and that is why they are taking a long time to kill me must be. I guess so. I am still here, thirteen (13) years trying to do something, but you guys have to do something. You guys are the one. In actuality, why do we have to prove that they are not harming us? Something is wrong there that we have to prove. No, I think that is wrong. Chair Furfaro: That was your three (3) minutes. Mr. Kubo: Thirteen (13) years now— thank you very much, Mr. Mayor. Chair Furfaro: To the audience, I want to tell you that if you continue to carry applause after applause for each speaker, I am going to recess the meeting. Did somebody call him? JoAnn has a question. Ms. Yukimura: That is okay. Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Kaliko Kanaele, followed by Alan Hoffman. KALIKO KANAELE: Aloha, Council. My name is Kaliko Kanaele. My name itself, "Kaliko," for the Kaliko summit here and "Kanaele," for the Kanaele Swamp. We also have a Kanaele taro patch around here someplace. I come from Hawai`i island. We talk about buffer zones there, too. Our Council also has this great task before them. We spoke there, too. Our buffer zones are ten (10) miles off of Kaua`i. Any given good, windy day, you will see vog here from Hawai`i island accompanied with depleted Uranium, geothermal, and maybe some GMO, too. It travels by dust and is activated by an open fire. If you are around an open fire and it is windy that day, you might be affected. We support this Bill that you have here. It is not as strong as our Bill, but it is a step to really knowing what is going on. How do you like the Staph... the new Staph, and now we have the Methicillin-resistant Staphylococcus aureus (MRSA). Remember before when we were young, our age group; our generation is supposed to fix this. We came from a time when walking inside the ocean would heal ourselves. Now, when we walk into the ocean, we might die. We have to pay attention. Thank you for bringing it this far and listening to our people here on this island. I can see you really care. Please support this Bill, yourselves, and even our Mayor here, to do the best thing you can do for our people. I believe that God has given us all of this. We stand upon, sleep in it, swim in it, and breathe it. The living God is within. When he leaves us, he just leaves a shell. They say the living God is human; no, it is the Earth. We are the extensions of the God called Maka`ainana. We look from the source so I can speak all of these things to you. The Earth cannot talk. It can shake a little bit and (inaudible). A few of us come and speak this way. You have to understand that we have to help each other on this Earth. Do not let our (inaudible) help us out in the other way. Thank you. Chair Furfaro: Before you leave and before I recognize JoAnn, we need to take a tape change break. We have a question from one of the Councilmembers. We are on a tape change break. There being no objections, the meeting recessed at 5:11 p.m. SPECIAL COUNCIL MEETING 135 OCTOBER 15, 2013 The meeting reconvened at 5:29 p.m., and proceeded as follows: Chair Furfaro: May I have the attention in the audience, please. We would like to continue with the meeting. If you have conversations, please take them outside. If the seats are not filled in the appropriate time afterwards, I will let the Staff fill the other seats. We were about to recognize Councilmember Yukimura. You had a question for the speaker. Ms. Yukimura: Thank you, Kaliko. The Bill that was passed on Hawai`i island, did it address pesticides at all? Mr. Kanaele: I think it addressed getting them out. I think we are beyond pesticides already. Ms. Yukimura: Right, so it basically banned GMO crops with the exception of papayas? Mr. Kanaele: Yes, they grandfathered it in. Ms. Yukimura: Okay, so they did not address pesticide use? Mr. Kanaele: No. We already knew it was the bad thing. Ms. Yukimura: How many acres of GMO crops are there on Hawai`i island? Mr. Kanaele: That is the part. We need disclosure, too. In Puna alone, I think there is about three (3) or four (4) big farms that we are aware of and I do not know how many others. Ms. Yukimura: Are these corn? Mr. Kanaele: Besides papaya... they are just starting to experiment with different things but because of the push from the community, I think they kind of stopped pushing. Ms. Yukimura: Okay. Are there any established farms of any of the five (5) GMO companies like Monsanto, DuPont, BASF, Dow, or Syngenta on Hawai`i island presently? Mr. Kanaele: Presently, I think they are there but I am not really sure. Ms. Yukimura: Okay. Thank you. Chair Furfaro: Are there any more questions? If not, Kaliko, mahalo. Mr. Kanaele: Thank you. Can I say one comment before I leave? Chair Furfaro: Let me do this— do you have a comment? SPECIAL COUNCIL MEETING 136 OCTOBER 15, 2013 Mr. Kanaele: Yes, I do. Thank you. I would just like to thank you, Councilmembers, Mayor, and all of our people here on both sides for bringing it to educational purposes and bringing it all together to really do something about it. Thank you. Chair Furfaro: Thank you. Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Alan Hoffman, followed by Pua La`a. Chair Furfaro: Alan Hoffman is not present. Next speaker, please. Ms. Fountain-Tanigawa: Pua La`a is up next. Chair Furfaro: Do we have a Pua La`a? Can somebody call her? There she is. PUA LA`A: Aloha kakou. `O ko`u inoa `o Pua La`a. Thank you Honorable County Councilmembers for having us present here to exercise our right for democracy. I have already spoken quite a few times and sent in testimony. I feel a little bit frustrated to have to have to come again, but I am actually happy to have the opportunity. Gary and Tim, I cannot thank you enough, really. I am just so grateful to you for sponsoring this Bill. When I listen to some of the testimonies that occur and how you speak, I am really grateful to have you in our County Council. To get to the point, basically, you have already been presented with the facts. These RUPs are extremely dangerous to life forms. They are not containable. They mutate. Once they are into the water, they are going to go into the food chain. We already have had Pediatricians speak about the health concerns. I am sure you seen test results on lab rats, pigs, frogs, intestines exploding, et cetera. You cannot ignore that information. Bottom line, when it comes down to it, you have to err on the side of caution. Until it is proven safe, they do not have the right to expose the public to these chemicals until they can prove and they have the responsibility. They have the burden of right to prove that it is safe. It is not that we have to prove that it is unsafe and it is not that we should have to provide documentation, et cetera. Actually, that documentation is there. You just need to look behind the smoke screen. There is a reason why many nations in the world are banning and boycotting GMOs. People do not want to buy the crops. Please do not fall into the illusion of"we are trying to feed the world." First of all, these crops are not for human food consumption. Second, they are not safe. There are centuries old of agricultural practices that are sustainable to the environment and do not cause harm, death, and destruction. There are many crop resources that we could cultivate that would create income and revenue, where we try to ship it off island or export it out of the Country, you are not meeting people saying, "No, we do not want that. It is boycotted and it is banned." Why on earth would we be considering having these crops and allowing them to use these pesticides in the air, exposing our children, elders, neighborhoods, soil, and the resources of land, air, and water? Why would you even consider that? Bottom line, these things are proven to be unsafe. There is no reason. You should look towards sustainability. You should be considering... Chair Furfaro: That was your three (3) minutes. SPECIAL COUNCIL MEETING 137 OCTOBER 15, 2013 Ms. La`a: Okay. Pardon me. County Councilmembers, what I would like to ask is that you absolutely do not defer this. Do not pass this responsibility onto the State. I ask that you actually reinsert the guts back into the Bill, pass the Bill, and we will move forward from there. Many of us will not accept a deferral. A deferral is not acceptable. Thank you. Chair Furfaro: Thank you. Ms. La`a: I have one last closing statement. Pardon me. Health and the resources of the land, air, and water... Chair Furfaro: Excuse me, let me stay with the rules. Do you have a last statement? Ms. La`a: I do. Chair Furfaro: Please summarize. Ms. La`a: Thank you very much. You cannot buy back the health of the land, people, air, and the water. Once you lose that, it is gone. Furthermore, these companies are making a profit off of our natural resources for their benefit and they are taking that profit off island. It is not about money; it is about health. Health is the greatest wealth. Mahalo and aloha. Chair Furfaro: Thank you. I want to cover a little housekeeping item here about the making of a bill so that everybody understands. It has been a long time, but a bill starts with an introduction of a bill presented to the Chairman. The bill is presented to the Chairman. The Chairman then decides if it goes on the agenda. It goes on to the agenda, and it then has a first reading. That first reading is then determined to create a public hearing. The public hearing has occurred and it goes into Committee. The Committee is chaired by Mr. Hooser and five (5) members. It came out of Committee on October 8th. That is the process. This is only the second time it has been in front of the full Council. That is how a bill is made and that is the process. Thank you. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Timoteo Hew Len, followed by Mary Mullhall. Chair Furfaro: Is that Timoteo? Staff, we having a little problem here with calling people. Maybe we should go down and read a list of members names. Mary, you can come up if you are ready. MARY MULLHALL: Thank you all of you for sitting through all of this. What I have to say is short. Chair Furfaro: Mary, you need to introduce yourself. Ms. Mullhall: I am Mary Mullhall. One of the things that is not in dispute is that the teachers and the children of Waimea Canyon Intermediate School got very sick. Some went to the hospital because of something that was sprayed around Waimea Canyon School. That is not in dispute. Given that simple, straightforward fact, asking for buffer zones around the schools and asking to find out what is being sprayed are very reasonable requests. Thank you all for listening and thank you for hanging in there all day long. Thank you. SPECIAL COUNCIL MEETING 138 OCTOBER 15, 2013 Chair Furfaro: Thank you. The speaker that we put before Mary; can we call him again? Ms. Fountain-Tanigawa: Timoteo Hew Len. Chair Furfaro: He is not present and I heard he left. Ms. Fountain-Tanigawa: The next speaker is Cahla Bloom, followed by Lyle Robinson. Chair Furfaro: These two (2) are not present at the moment, so let us call up the next speaker. Ms. Fountain-Tanigawa: The next speaker is Kathleen Viernes, followed by Andrea Brower. Chair Furfaro: Staff, we are going to take a five (5) minute break. Please have somebody read the names of the people downstairs because we need to move on. There being no objections, the meeting recessed at 5:41 p.m. The meeting reconvened at 5:43 p.m., and proceeded as follows: Chair Furfaro: We are back in session. Andrea, you may begin your testimony. ANDREA BROWER: Thank you all so much for sitting through another round of this and thank you especially to the Administration because I realize that you do not have to be here, and this is not the first hearing that you have voluntarily sat through. I feel like such a hypocrite because I told everybody else not to testify, but here I am because after having a couple of conversations over the hours, I felt a need to briefly clarify a couple of things. The last time I testified, I criticized the Administration for the sense of overwhelm they brought forward and the role of the seed companies were playing in creating this. I would like to acknowledge that the sense of overwhelm is a logical reaction to the intense kind of emotion in charge that is coming from us, the community, and the Administration's worries that if this Bill passes, people might see it as "the be all, end all savior" and start to direct all of their concerns to the Mayor's Office. As somebody who has been very involved in this process, I would like to clarify that a vast majority of the public does understand that this Bill is not going to solve all of the concerns and frustrations that have are being raised. The public's intensity of emotion comes from feeling that something needs to be done and very serious issues that need to be addressed. This Bill is a commonsense, reasonable, first action step to addressing health and environmental concerns, gather more information with that information, investigate impacts, and implement buffer zones as most other Counties and developed countries do. While the public is strongly opposed to a deferral because we already know there are efforts underway at the State level to preempt the County's efforts, we do appreciate as is in the current draft of the Bill, that some of the rule making details will take some time to work out and to implement. We have sloganized "pass the bill, pass the bill" to make it clear that we demand action, but nobody is expecting or should be expecting all of the problems that are related to this industry to be solved the day the Mayor signs the Bill into law. I would just SPECIAL COUNCIL MEETING 139 OCTOBER 15, 2013 like to repeat the word "law" because voluntary action is never a substitute for regulatory action, especially when you are dealing with, and let us be very blunt and straightforward— this is not hyper rhetoric, when you are dealing with the largest chemical companies in the world that have some of the very worst track records in terms of environmental pollution and human right violations. Thank you very much. Chair Furfaro: Are there any questions? If not, Andrea, thank you very much. Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Lyle Robinson, followed by Kathleen Viernes. LYLE ROBINSON: Thank you, Councilmembers. Aloha, my name is Lyle Robinson. Thank you for continuing to listen to us. I know that at this point, we are all saying variations on the same theme. You know what we think and you know how we feel. I am a doctor here, and for more than the past ten (10) years, I have been concerned about the GMO and pesticide experimentation on this island. I am so relieved and grateful that the island community has now come together to address this very serious concern for our people, for our land, and for the future. I am here again to strongly urge you to vote in favor of Bill No. 2491. Since you have been elected by the people of Kaua`i to represent the people of this island and not corporations, please do honestly represent us. We live in a democracy, which was based upon a government for the people, of the people, and by the people. It seems increasingly that our Government is shifting into a corporatocracy. Please do not cave in to this stripping of democracy. History will reveal that this trend is entirely detrimental to the well being of ordinary citizens. Please do not contribute to the corruption of our democracy. Please do what you know in your hearts to be right thing for the island of Kaua`i. We know this is just the beginning of our struggle to restore the aina and the people of Kaua`i to their rightful and healthy states of being. We are not going away and we are not giving up. We must protect what we love and it is our kuleana to aloha aina. It is not for no reason that at least twenty-two (22) countries around the world are in the process of banning or have already banned GMOs and many of these dangerous pesticides. The burden of proof should not be upon us to prove that these practices are dangerous, but rather the burden of proof should be upon the chemical agricultural companies to prove that what they are doing is indeed safe. Please choose to be on the right side of history at this very crucial time for all of us. Mahalo and aloha. Chair Furfaro: Thank you. We have a question for you. Ms. Yukimura: Is it Dr. Robinson? Ms. Robinson: Yes. Ms. Yukimura: Thank you for your testimony and excuse me for not knowing but, are you one of the doctors from the west side? Ms. Robinson: I am not. I do know nurses in the hospital on the west side who are actually afraid to come forward and speak for fear of losing their jobs. Ms. Yukimura: Okay. I was going to ask this of Councilmember Hooser, but anybody— I know there was an assertion that the rate SPECIAL COUNCIL MEETING 140 OCTOBER 15, 2013 of birth defects is far greater than usual, but I have seen no statistics. Do you have any? Ms. Robinson: I do not have statistics. What I hear is anecdotal from two (2) friends of mine who are labor and delivery nurses there. They say that what they are seeing is so disturbing. Ms. Yukimura: Yes, but they do not have... Ms. Robinson: I know. I have said that you need to go forward and document. Ms. Yukimura: They do not even have to come forward themselves, but somebody needs to accumulate the statistics. Ms. Robinson: Yes. Ms. Yukimura: Thank you. Maybe that is something we will do through the EPHIS study. If assertions are being made, there has to be some numbers. Ms. Robinson: Yes, I agree. I do keep talking to them and urging them to start collecting data that is presentable. Ms. Yukimura: Thank you. Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Kathleen Viernes. KATHLEEN VIERNES: My name is Kathleen Viernes. Aloha, Councilmembers. I am here speaking today to advocate for the passing of Bill No. 2491 today. I read Councilmember Yukimura's commentary in The Garden Island and I feel that the Council needs to be aware of the word "delay" in the context of this Bill decision today. Basically, it translates to mean a "no vote" out there in the real world. It does not matter what color clothing a person is wearing today. Everyone knows that the word "delay," as you propose in The Garden Island commentary, means that chemical agriculture on Kaua`i will be alive and well and free to conduct business as usual. Many of us know that the State Legislation will crush whatever semblance we have for controlling pesticide use by these GMO giants on our own island. In two (2) months, all the "probablies," "maybes," and "coulds" that you put in your commentary, Councilmember Yukimura, will surely prove to be devastating for Kaua`i. In your commentary you wrote and I quote, "Working with the Department of Agriculture over the next two (2) months could give us a contingency plan." What if it does not? Again, I quote "they," and you are referring to the Department of Agriculture, "could adopt the provisions of the Bill No. 2491 or something similar and take it from there with all of us watching." Watching? Is that what you think that the citizens of Kaua`i wants to be doing over the next two (2) months, years, or decades as the State drags their feet and health and environmental problems pile up because the GMO companies dodged the bullet of accountability? Bill No. 2491 is about acting, not watching. The mountain of seriously disturbing testimony that has been shared with all of you about the toxic poisoning of our island has not happened because citizens of Kauai were content to watch. We are done watching and waiting. We are done watching the toxic dust SPECIAL COUNCIL MEETING 141 OCTOBER 15, 2013 blow from these experimental fields onto the skin and into the lungs of our people and all life form here. We are done watching those same toxic chemicals wash into our precious ocean, killing and deforming all life forms there. We are done hearing about the rise of cancers, illness, and diseases related to toxic exposure of countless, horrible poisons coming from those GMO companies. Those companies who are totally out of touch with what is going on, and the Mayor— you ask us to give another chance for them to rise up to the occasion? No. They have never earned such consideration. We are done licensing to those lying GMO companies spew toxic words that ask us to trust them now, even as they threaten to sue us. Their entire legacies are built upon lies, deceit, and self serving actions aimed only at profits and power mongering. The community has no value to them beyond providing a workforce supply and land. That is it. We are done trusting that our Government at the State level is even capable for standing up for the citizens of Kaua`i or anywhere in the State for that matter because the GMO companies have imbedded themselves into our State government and agriculture decision making. Apparently, it seems into our County government as well now. They happily fill campaign coffers in exchange for special favors and protection. Do you think the people of this island, of this State, and of the world cannot see that? The people of Kaua`i are over the threat of being sued by these GMO bullies and our Council needs to get over that fear, too. We are not alone in this fight and not incapable of handling it. Chair Furfaro: Your three (3) minutes are up. Please summarize. Ms. Viernes: Please vote "yes" today to pass Bill No. 2491. I know that even if it gets messy, because real change often does that, your vote is the right vote. It will make Kaua`i a better place to live, and you, a better person for your courage to vote "yes." Thank you. Chair Furfaro: We have questions for you. Councilwoman Yukimura, you have the floor. Ms. Yukimura: Kathleen, thank you for your testimony. I just want you to understand that what I said in my guest commentary was if the court throws the Bill out, then where do we go and if we have tied down the Department of Agriculture in a memorandum of agreement; that is better than not having anything, including having the local law being declared "illegal." Ms. Viernes: Can I respond to that? Ms. Yukimura: Yes. Ms. Viernes: My concern is that there has been a lot... it is the legal opinion thing. The GMO companies say "we are going to sue and this is our case," which of course they are not saying everything. Then we have Legal Counsel— who would propose a Bill that does not have some standing and a lot of opinions going on that support that passing. You are right. I am not a lawyer, but I can see that sometimes you just step out of the comfort zone and make a move. I really do not know what to say about that other than if we do not do this and we delay it, and then the Legislature shuts down Kaua`i's ability to make that choice later— the fact that you are asking us to stand back and watch to see what happens; that has been going on for years. It is very unsettling and I do not trust that process. SPECIAL COUNCIL MEETING 142 OCTOBER 15, 2013 Ms. Yukimura: If the Bill is thrown out of court, we will have to go to the State Legislature or the Department of Agriculture. Ms. Viernes: Well, then we do that, but I say the first step... Ms. Yukimura: That is what I mean about hopefully they have adopted something and we have to watch them to make sure they enforce it. Ms. Viernes: Why do we not pass it today is my question? What is the problem with that? If there is a "plan B," which is again, go back and hold them accountable... Chair Furfaro: Excuse me, our format is that you have had your time and she poses the question. Ms. Viernes: I do not have an answer for that because I cannot answer. Chair Furfaro: Thank you. Ms. Fountain-Tanigawa: The next speaker is Cahla Bloom. CAHLA BLOOM: Hello, Councilmembers. My name is Cahla Bloom and it is an honor to be here. I have lived on the island for Kauai for nearly a year. October 18th will be my one (1) year anniversary. You might wonder "who am I to speak?" I want to share with you my background a little bit. I was born in Johannesburg, South Africa under the oppressive Apartheid Regime. I was ten (10) years old when Nelson Mandela became president. I also lived in Chile while studying the effects of the dictatorship of the Pinochet Regime, which was very oppressive. I hold degrees from two (2) of the top ten (10) universities in the Country. I have a Bachelor of Arts (BA) from Columbia in Anthropology and Human Rights and a Master of Arts from the University of Pennsylvania in Psychology. Why am I telling you this? I have also lived, worked, and traveled in over thirty (30) countries and some of my work experience includes two (2) of the top law firms in New York City. I worked with a paralegal. I have interned for the United Nations and have done a bunch of other stuff. I have chosen to make Kaua`i my home because I think there is no other place on Earth like this. The beauty and abundance of the land is unparallel. We know this. Look at the Na Pali Coast, Secret Beach, and every single beach. This island is stunning. The richness of the community is also so unique. The values that we hold here in the State of Hawai`i and on the island of Kaua`i in particular are sound and moral. I could live anywhere in the world. I could have a job doing very many profitable things, but I choose this island because it is so special. Those who have grown up here, lived here, and others who have moved here see that. I think this issue— you notice I am wearing purple. I am not taking sides. I stand for what is good and what is right. I think all of us in our hearts know what that is. We know what is right. The political is so personal. Protecting the Earth, human rights, and families are totally intertwined. We cannot separate those issues. This Garden Isle is the Garden of Eden. When you pass Bill No. 2491, you will not only be standing up for Kaua`i, but setting an example for the rest of the world. I truly think the issues we have at hand are no less than the issues that Rosa Parks or my former President, Nelson Mandela, stood for. Progress is not easy. It is never easy and it is always messy. SPECIAL COUNCIL MEETING 143 OCTOBER 15, 2013 Chair Furfaro: Your three (3) minutes are up. Ms. Bloom: Thank you. Chair Furfaro: Are there any questions? If not, thank you very much. Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Josephine Bonaparte, followed by James Trujillo. JOSEPHINE BONAPARTE: Aloha, Council. Josephine Bonaparte for the record. Would we really jeopardize the health of our people for a few jobs? I am not sure if any of you saw the short documentary that has been going on and filmed on the west side of Kaua`i with all the dead fish from the pesticides and the littering of the plastic hoses from the irrigation ditches. If so, did that affect you in any way? The harmful effects are taking place right now, killing our stream life, and now going out into the ocean. Our own Mayor says he did not do his homework, yet he was at our March in March in Po`ipu. He did not March, but he knew why such a large group of fifteen hundred (1,500) people marching in the rain were all in attendance. We sent our voices loud and clear. Just now, we marched up Rice Street, four thousand (4,000) strong, and the Mayor knew why. He knew why we were there but he still did not to his homework, or he is stalling for the Legislature to take over and say it is a State issue. The County and its people lose the power when it goes to the State where no one cares about us here on Kaua`i. We need to stay community based for our own sovereignty. To me, we need to make our own regulations as a community. For me personally, what is going on with the GMOs is not farming. We can do much better. We can farm here and grow industrial hemp and create plenty of jobs because of it like cloth, rope, hemp seed, and hemp oil. Council, I ask you to please vote "yes" and pass Bill No. 2491. Mahalo. Chair Furfaro: Thank you. Ms. Fountain-Tanigawa: The next and last registered speaker is James Trujillo. Chair Furfaro: You are the last speaker, Jimmy. Ms. Fountain-Tanigawa: I am sorry, Chair. There is one more speaker after him. Chair Furfaro: Okay. You are second to last, Jimmy. JAMES TRUJILLO: Thank you. James Trujillo for the record. I hope you guys are having an enjoyable day. It is not as long as some might have anticipated. I want to take the opportunity to talk to you all about the Bill in front of us and our work that is needed to go forward. Going forward is what we want. It is movement. I know folks have spoken about the deferral. I do not know what the opportunity for compromise looks like, but I know two (2) months is a very long time for some people. I think this is a process that we have engaged in so mahalo to you, Councilmembers Bynum and Hooser, for introducing the Bill and getting moving forward. I brought something here as a visual aid. You know what it is. This is a piece of protection that beekeepers wear to protect them from the bees. As Klayton Kubo from Waimea has asked us over and over again, "who is going to protect us?" SPECIAL COUNCIL MEETING 144 OCTOBER 15, 2013 The issue that I have is protection for our pollinators, people, the elderly, and the infirm. This Bill represents the first step in the process like asking these questions. Who is going to protect us? We, beekeepers have asked the State to look at this issue for many years. I think the last time here, Representative Morikawa talked about the Bill that she introduced with Representative Mina Morita. It did not get out of Committee and did not even get a hearing. Things have changed since then. This year, it got heard, passed, and got watered down. The State has a responsibility and you guys are putting pressure on the State. Mahalo to you, Mayor, for asking the Governor to do what he needs to be doing like taking leadership. This is what we ask of you guys— taking leadership. Leadership requires action, which is why passing this Bill is the first step in us taking action to address the problems that are numerous. I have nothing more to say, but just ask you guys to protect pollinators, people, our children, our kupuna, and our future. Thank you. (Mr. Bynum was noted as present at 6:03 p.m.) Chair Furfaro: Thank you. Are there any questions? May I ask you a question? Mr. Trujillo: Yes. Chair Furfaro: Sir, did you receive an E-mail from me today, just yes or no? Mr. Trujillo: Thank you, Sir. I did. Chair Furfaro: Thank you. At the request of Councilwoman Yukimura, she had asked the previous speaker to be available. Could you call that speaker? Ms. Fountain-Tanigawa: It is Klayton Kubo. Chair Furfaro: Thank you, Klayton, for coming back. We have a question from Councilmember Yukimura. Ms. Yukimura: Thank you. Klayton, in your testimony today you mentioned your son's pillow. I was just wondering when that occurred. Mr. Kubo: Well, I would say maybe a couple of months ago. I bought the pillow from Costco. I told him to open the windows, and then I guess a few days went by and that pillow started turning brown. Who knows what else is in the dust. Ms. Yukimura: When we talked several days ago, you told me that the dust problem has been reduced somewhat, but it is still... Mr. Kubo: It has been reduced because of the lawsuit and also because of this Bill, and that is the way I look at it. I go up on the mountain, look down, and I see that their production plummeted. In fact, when this Bill came out, their production plummeted. Now they are firing up again. That is for sure. SPECIAL COUNCIL MEETING 145 OCTOBER 15, 2013 Ms. Yukimura: Well, I think as I am told, this is the time where they plant for the next season or something. I, too, went out to their fields now, and they are doing crop cover and wind breaks so there is a clear effort to try to stop the dust. I believe, like you, that it is because of the lawsuit and the proposed Bill. But I am glad to hear that there is some movement in the right direction, but we need to have more. Mr. Kubo: We definitely have to get more. Chair Furfaro: Thank you. Are there any more questions? Klayton, if not, thank you for coming back for JoAnn's question. Mr. Kubo: Thank you guys again. A two (2) month deferral is pretty tough there on the residents. Chair Furfaro: I am going make an announcement here and I want to look towards the Staff. By our agreement, we should take a dinner break at 6:30 p.m. I just want to know from members that if we get to a point where we are introducing amendments, if you folks have your amendments prepared? Ms. Nakamura: Yes. Chair Furfaro: Okay, I am going to see that we go to 7:00 p.m. as a decision by the Chair. We have two (2) more speakers? Ms. Fountain-Tanigawa: We have one last speaker. Chair Furfaro: This is our last speaker before we go to the Mayor. Ms. Fountain-Tanigawa: Yes. The last registered speaker is Phoebe Eng. PHOEBE ENG: Good evening. My name is Phoebe Eng for the record. I was not planning on testifying, simply because all of the things that I have thought about this Bill, in support of this Bill, have been expressed in so many ways over the last several months. I am here only to share information that I would like to bring out of the anecdotal and into the factual. This is actually follow-up information that comes off of a meeting that Vice Chair Nakamura and Councilmember Mel Rapozo attended at KVMH with a number of lawyers. What I have here... Mr. Rapozo: Lawyers? Ms. Eng: I am sorry, I stand corrected. I meant to say "doctors." This is a follow-up communication that was given by one of the Obstetricians who gave us some very, very interesting and compelling information. Before I share this information, I do have to say that I am actually quite honored to have worked with many of you on this Bill. I understand that you are trying very hard to stay with the facts. This is a completely emotional and very heart wrenching issue. It is very hard for people to stay in a place where you are really trying to bring people, which is stay rational and stay logical. The facts will reveal themselves when we have disclosure, and I think that is one of the things that the community, overall, has wanted for so long. If that is something that you can put in SPECIAL COUNCIL MEETING 146 OCTOBER 15, 2013 the center of your amendments, that would be wonderful. Let me just share this factual information from one of the Obstetricians that delivers babies. There are about two hundred fifty (250) to three hundred (300) babies who are born in KVMH every year. Two (2) months would equate to about fifty (50) babies born, so let us just think about it that way when we think about a deferral. This is a follow-up to one of the birth defects that had been described by one of the Obstetricians. I quote, "Of particular concern are the incidents of serious cardiac malformations, particularly those that result from early embryogenesis defects that occurred in our population the last three (3) years. We have had five (5) major cardiac defects that required early extensive surgical repair in San Diego the last three (3) years. The babies had to be flown to San Diego; two (2) cases of transposition of the great vessels, one (1) hypoplastic left heart, one (1) hypoplastic right heart with heterotaxy, and one severe pulmonary stenosis." I read this because I hope there are other viewing doctors that can give us more information and give you the kinds of descriptions that I certainly cannot as a layman. I want to give this to people to share it with the public. Chair Furfaro: Phoebe, that was your three (3) minutes. Can you summarize? Ms. Eng: This is actually very telling if I can read the last few sentences. "The transposition cases and hypoplasia cases are considered defects that occur in early first trimester. While cardiac birth defects are the most common birth defects, these particular types of lesions are rare. Recent Centers for Disease Control and Prevention (CDC) statistics puts transposition at one (1) out of three thousand three hundred (3,300) births, hypoplastic left heart at one (1) out of four thousand three hundred forty-four (4,344) births, and hypoplastic right heart at one (1) out of seventeen thousand (17,000) births. In the last three (3) years, we have had about seven hundred fifty (750) deliveries. That gives us an incidence of fifty-three (53) out of ten thousand (10,000) births for these four (4) defects... Chair Furfaro: Excuse me, Phoebe, before you go any further, let me do this because I want to be consistent and fair for everyone. Ms. Eng: Absolutely. Chair Furfaro: Is there any more information you can expand on as it relates to this report? Ms. Eng: I have one last sentence, which is, "National US data shows an incidence of five point five (5.5) out of ten thousand (10,000) births, so we have ten (10) times the national rate of those birth defects." Thank you. Chair Furfaro: Phoebe, may I ask you if we can get something electronic or a hard copy of what you just read? Ms. Eng: I know you have gotten a lot of E-mail over the last few weeks. This was sent to you in Council Testimony at "kauai.gov" but I will send it to you again. Chair Furfaro: Thank you. I still have two hundred eighty- five (285) that I have not even read. SPECIAL COUNCIL MEETING 147 OCTOBER 15, 2013 Ms. Eng: Yes, I feel your pain. Chair Furfaro: They all came today. Ms. Eng: Thank you so much. Chair Furfaro: Phoebe, we have a question for you. Ms. Yukimura: Phoebe, do you know where these babies lived or where their birth mother lived? Ms. Eng: Do I know where the birth mothers lived? Ms. Yukimura: Yes, because I am assuming these are west side babies, but we have heard that people from... actually, my Obstetrician is at the Veteran's Hospital but I have not had any babies there. If there are babies who came from the north shore or even from Wailua, that would be... Ms. Eng: This is further questioning that could be clarified in the EPHIS study in follow-up conversations with the doctor that shared the information. Ms. Yukimura: Or the doctor might even be able to give us that information now before the study? Ms. Eng: He is not in the room, but yes, I am sure he would be willing to. Ms. Yukimura: Okay. It is kind of a basic question because the assumption is that these babies are from the west side or close to places where the seed company exposure would be. Ms. Eng: Right. Well, that is more information that we would need. Ms. Yukimura: Okay. Thank you. Chair Furfaro: Okay. That is the last of our speakers. This is the absolute last call to anyone in the room here because once I call the Mayor up, then we are going to go into the decision process. If not, Mayor, would you like to come up and address the Council? Mayor, first of all, before you begin to speak, I want to reiterate how much I appreciate you being here with your Staff for the day. Thank you very much. Mr. Carvalho: Thank you. Aloha, Councilmember and Council Chair. It has been a long day. I appreciate the discussion and all the hearts and souls speaking their mana o, sharing their thoughts, concerns, fears, emotions, passion, and aloha; all of it, and just uncertainty on the discussions that have been taking place for a while. I appreciate, of course, being here and our team members ready and willing to come forward, speak, and provide information. We have a really good, solid team in place who is very knowledgeable and intelligent people who help me and assist me in many of the things from this issue to potholes, to transportation, to access, and to beaches. There is a whole menu of things. I am not making excuses, but they are all critical issues, but for this particular SPECIAL COUNCIL MEETING 148 OCTOBER 15, 2013 discussion, I have been trying my best to figure out and educate myself which leads to my next topic of discussion. "How does the Mayor not know?" I have heard that numerous times today. I just want to clarify that I do know. I have been out. I am a "hands-on" kind of Mayor. I like being out with the community, hearing and asking questions. I may not have read some documents that Councilmembers asked me if I did. I am not going to sit here and lie that I did, but I did sit through numerous hours and hours of testimony, and when I did finally read it— thank you, Councilmember Hooser, for sending a whole binder over. I did look through that and a lot of it was discussed during those sessions. I have heard it, believe me. I have been out there, standing in the middle of Manokalanipo Park, how some people have talked about, just to understand and asking people face to face, man to man, woman to woman, me and whoever... and children, just to hear and understand. I am not going to go any further in that and do not tell me I do not know because I do. It is a very emotional part for me as Mayor, trying to figure out how we are going to manage this and come up with something that is going to benefit all people. My heart is with the people right here. My heart is with the working men and women who work the fields every day. We have to figure that out, too. What is that area? How do we manage that? How do we keep them safe? How do we hold people accountable as leaders, the eight (8) of us right here in this room; how do we do that? I think I have taken on responsibility to ask and to educate myself along with an awesome team, who I can call upon any time and they can come up here and read every single communication that is coming because they have to, and they inform me and red flag me on some of the key areas which is a great thing because it is impossible sometimes. In this particular discussion, I really wanted to express to the people who are saying that I am totally clueless— let me tell you something; I am not. I can hold a conversation with any of you based upon the information I have gotten. I admit that I have not read everything, but I have my E-mails coming in, too, late at night when I have to sit and understand, and hear Alexander Wilhelm not wanting to come back to this island, amongst everything else. Regarding the Bill, there is a magnified version of the Bill which kind of started and the process for the people watching and listening— there is a process in place. The bigger version... the original version— we were here, not me personally, but our Public Works team was here, and every step of the way was to look at the Bill, look at the discussion, and see how I can be an awesome manager and CEO of these wonderful islands of Kaua`i and Ni`ihau, and ensure that I have all of the resources and people that I need to surround myself with to make it happen. In that larger discussion, our Public Works teams, just as an example, came forward to the County Council and shared some of the personnel and how we would have to structure our operations to really address that first, bigger, and magnified version. Then we went to the current version, which came to me two (2) weeks ago, and I sincerely say that I have been reading it as best I can throughout the entire process but people have to understand the final version... I was surprised to see it was in Economic Development now, who is responsible for managing. It may be simple to some people, but I take the simple things is really complicated sometimes. To best manage what people are saying we are going to be doing, I am not going to set ourselves up to fail. I want to be successful, not only for me, but all of us. If I am responsible for managing pesticides, buffer zones, and what have you within the current Bill, then I want to make sure... that is why we came back. I was invited back and I requested to come back and present to the council not only why we could not do it in this current way, but offered solutions and areas that we could talk about, which led to the possibility of a deferral. The deferral was not that I did not support the Bill. I support buff zones and disclosure. I have said that numerous SPECIAL COUNCIL MEETING 149 OCTOBER 15, 2013 times. It is how to get to what is the right fit to address the overall issue. That is why I wanted more time because I feel strongly, with my capabilities as Mayor, to connect and develop strong relationships and try to hold people accountable. If you look at the Bill itself, without going into details, it takes our Staff and our responsibilities to different levels where it is unknown. I wanted to see if I could direct the responsibility to the right parties, whether it would be the Department of Health or the Department of Agriculture. We will take our responsibility. What can we give as a County in the bigger picture and set a model? I want the world to know we on Kaua`i and Ni`ihau work things out and we are not fighting and arguing. We have a major issue that is of concern to a large number of our community. This whole island is talking about it. How do we, not the red and the blue, but come to some understanding and move forward? That was my reason for asking for two (2) month deferral; not because I did not support it. I wanted to make sure that if it was going fall under the County of Kaua`i, the Mayor, and his team, that we have all of the right resources, and should somebody call with concerns or misunderstandings that we have the resources in place. We gave you that information, Councilmembers. We gave you our understanding of what it would take. Some of our people are saying, "It is just as simple as one position or two (2)." It is not simple. It is complicated sometimes, so we need to be sure. I am not going to set us up to fail. I have gone there with some of our other initiatives, so I just wanted to understand and get firm on what we needed to do to make it right. That is the Bill part. The buffer zones, the disclosure, and the study—we are there. It is how to bring the parties to the table to discuss what the right operational fit is to make it work so people are not fearful and they know that if they want to find out about "Field 667," they can go to the website that says "Field 667 was worked on this particular day or this particular time," or however it is done. Anyway, that is my own overall piece. I think the study is a good thing and we talked about that, but it is how to manage it and work it. There are a number of people who work the fields who are fearful of losing their jobs. I will say that upfront. I have talked to them. What is the plan for that? I want to work on that. I want to work with all the people who took time out of their busy days to come and testify and see how we can address that. That is my job as Mayor to figure out how to find that balance and address the needs of the people so they are not fearful. That was my whole overall intent of this deferral. The last thing is the legal part. There was all of this discussion today. The amended version— I did say in my last discussion that I did put a communication in to the County Attorney to get a legal... I want to see the most recent legal opinion based upon the amended version. That is another part that I need time to look at and understand— "we." At the end of the day, I do not want to be left open with all of these lawsuits coming our way. If we can work it out with all of the parties, the State Department of Health, the seed companies, the workers, our friends, and all of us— I see that. That is why I requested a two (2) month deferral. Since then, I have talked to— in fact this morning, with things just happening, I did submit a communication to our County Council from Mr. Kokubun. Since then, our Board Chair indicated that they intend to implement voluntary buffer zones and pesticide use disclosures with the companies impacted by Bill No. 2491 by the end of this month. You can laugh and giggle, but I see that as progress. It may not be enough, but I have it. I spoke with him because we need to move to the next piece. I have that. By the way, instead of two (2) months because of this movement and some of the commitments and discussions that are happening, I am even looking at getting down to one (1) month deferral because of the recent discussions that have taken place with the Department of Agriculture. I want people to understand that I am SPECIAL COUNCIL MEETING 150 OCTOBER 15, 2013 not deferring just to defer. If it is not going to produce any positive outcomes for all of us to understand it better, then so be it. If it is going to give me, as Mayor, the chance to really dissect everything and make sure that if George Costa is going to be responsible, then he can be responsible in a way that is under his jurisdiction or George Costa will have to refer this to the right party because we have a commitment around the table through an moa or some kind of written understanding and take it to the next level. That was my purpose and reason for the deferral. Now if the deferral goes, it goes. I was hoping that because of the time needed and trying to take the responsibility and make sure that our team members understand— because this is not just a walk in the park; this is a very serious issue for our island. That was my reasoning. Again, before I close, I know I am going on and on and everybody wants to go home, but I appreciate the discussion— hearts and souls, we are there. "How does the Mayor know about it?" I know. I am meeting with Andrea Brower tomorrow just to sit and talk with her. I have talked to Fern. I am trying to figure out who, how, and where everybody is going. Anyway, so that is happening. Then, of course, the Bill itself— that is what I was talking about from last week and I am talking about what is written before me? What is our responsibility in this Bill? That, I wish I knew, was Economic Development, so we sat and talked about it. That is why we came back. Okay, enough already. Finally, the legal part of it. How do I assure that the legal part— again, I put in a request to the County Attorney for his legal opinion. I am waiting for that, too, let alone making sure that we have the parties around us who are willing to talk and come to the table, and that is my style. That is how I choose to operate and I would include our Councilmembers as we move forward. To say that I am not in tune— sorry. To say that I do not know what happens— sorry because I know. That is why I have been here. I have sat here just to listen to very interesting conversations, and also very emotional. I know the hearts and souls that are here, like I said. At the end of the day, a decision has to be made, and that is why I am asking for that time for us to really dissect it and look at the overall picture. Thank you for your time. Mahalo and we will leave it at that. Chair Furfaro: Thank you, Mayor. I am not sure if I am going continue with meeting until we can get some decorum downstairs. Mr. Carvalho: Yes. Chair Furfaro: We are not taking any more public speaking. Mayor, we have some questions for you from the Council. We might as well take the dinner break. We are going to take the dinner break on the regular scheduled time. We have rules that we have to follow. We are required to give our Staff a break at 6:30 p.m. We will come back and work on the Bill. There being no objection, the meeting recessed at 6:29 p.m. The meeting reconvened at 7:39 p.m., and proceeded as follows: Chair Furfaro: Our public testimony period is closed. For the Mayor, did members have any questions? Mayor, may we ask you to come up again? JoAnn, are you ready? Ms. Yukimura: Mayor, I want to also thank you for being here all day today and for your concern about enforcement because that is your SPECIAL COUNCIL MEETING 151 OCTOBER 15, 2013 kuleana. It is right that you be concerned about how you would enforce any bill that looks likely to pass this Council. You have asked for the delay, and my question is, what is your desired outcome from the delay? What is it that you hope to see at the end? It is one (1) month, right? Mr. Carvalho: Yes, it is one (1) month. Like I said, we got a communication back from the Department of Agriculture, Mr. Kokubun, who plans to have a program in place by the end of the month. I have that in writing and it was my hope to bring all the key leaders to the table because if the Bill passes tonight, I just want to be prepared that we will be responsible for that. I was hoping that we could get some healthy dialogue and get the right people to the table and really understand everybody's role. If the State is the responsible part of this, then they should be held responsible. If I am responsible, I am responsible, but we do it in a collaborative way and help the people understand that these are the roles and responsibilities that are before us. That is what I know and that is what I want to do. We said two (2) months and now we are down to one (1) month because of what took place just today. I feel that we can pull the key leaders together. Ms. Yukimura: Is it your intention to secure the kind of protection that the Bill, as amended, would provide? Will you be advocating to the Department of Agriculture the kinds of provisions that are in the Bill? Mr. Carvalho: Yes. Ms. Yukimura: You will. If the Department of Agriculture does not agree or cooperate with those kinds of protections at the end of one (1) month, will you be willing to support a bill similar to this Bill before us? There might be some smaller changes but the basic provisions would be disclosure and buffers? Mr. Carvalho: Yes. Ms. Yukimura: You are willing to support it, which means that would you be willing to say that you would not veto it at the end? Mr. Carvalho: Yes, after that one (1) month period and we had the chance to sort through all of the discussion pieces and put it on the table. I just feel strongly that we are able to do that. Ms. Yukimura: If we are not able to do that come the end of one (1) month, and there are four (4) votes to pass it on the Council, then you would either sign it or allow it to go into effect without your signature and you would not veto it, so as to require five (5) votes to override? Mr. Carvalho: At the end of one (1) month you said? Ms. Yukimura: Yes. Mr. Carvalho: Yes. Ms. Yukimura: I know you said you had legal questions of the County Attorney, as we have had, and I expect that he will be briefing you? Mr. Carvalho: Yes. SPECIAL COUNCIL MEETING 152 OCTOBER 15, 2013 Ms. Yukimura: Right now, it is just an opinion that has come to us as his client so he is not technically able to share it with you, but if you make a request, he can give you the opinion as his client. Okay. Chair Furfaro: Excuse me, do we have music in the audience somewhere? Is that somebody's phone ringing? Please step outside to take care of that. Thank you. Sorry for the interruption, Mayor. Please continue. Mr. Carvalho: Just to clarify your question, at the end of the month, the Bill will be in its same form? Ms. Yukimura: It would similar. I do not know. We might find ways to quote "improve it." Mr. Carvalho: I just want to clarify that we understand it. Ms. Yukimura: It would be the judgment of four (4) people on the Council to pass... whatever the Council passes. Mr. Carvalho: It will be in somewhat... Ms. Yukimura: I am imagining it would be somewhat like this Bill. For example, Council Vice Chair and I have some amendments that fine tune it, but I do not think it changes it dramatically. Of course, that would be judged today. Mr. Carvalho: As long as we are all on the same page that it will not be something totally different and foreign. If we are in the same arena, have an understanding, and the commitment is there to assemble this group of people and at the end of the one (1) month period, then we will take it from there. Ms. Yukimura: Because you and I are both aware that in one (1) month, Council Vice Chair will not be on the County Council. Mr. Carvalho: Right. Ms. Yukimura: We do not know who will be, but I personally do not want this issue to be the sole issue by which we choose the seventh Councilmember, so I would like to hinge on four (4) votes that are here tonight. If you do not veto it, we will not need five (5). Ms. Yukimura: If I veto it, you would need five (5)? Ms. Yukimura: Yes. If there is any possibility you are going to veto it... Mr. Carvalho: I just say that with knowing that is the process and that is the option and all of that stuff, just so we are all on the same page. Ms. Yukimura: Exactly. I guess I just want to hear your opinion about what is the best way to settle the legal issues? I am concerned and it has been an issue for the Council that some people feel the legal issues are so clear SPECIAL COUNCIL MEETING 153 OCTOBER 15, 2013 that they will not vote for the Bill. Some of us are saying that the legal issues are unclear. There is a possibility we might not be held to be legal by a court, but we feel the best way to settle it is to go to court and have "Mohammed speak," so to speak, or the actual deciding entity to speak what the law is rather than us to assume either way what the law is. Mr. Carvalho: It is my hope that maybe we do not have to go to court and that we can work it out and get the right people. I am just saying my side. I know there are legal ramifications and legal opinions that I still look forward to seeing. Ms. Yukimura: How do you see us avoiding legal determination? Mr. Carvalho: I am just saying that is my hope that we can come together and come out with some kind of compromise that will benefit all and hold whoever is accountable, accountable. If it means some kind of MOU for now as we move towards the next steps because it is within this one (1) month period, then that is what I believe we have been talking about and I look forward to that kind of discussion. Ms. Yukimura: Okay, but Mayor, the way that seems to me is that you are thinking that we will not need a Bill and I am not sure anybody has confidence in putting solely in the Department of Agriculture. Mr. Carvalho: Correct. That was my opinion. Ms. Yukimura: I was thinking that we might avoid a legal overturn by having an MOA and a cooperative agreement with the Department of Agriculture, but we would have to go to court anyway by having the Department of Agriculture in the law and with the cooperative agreement that we could avoid the court's conclusion that there was preemption, but I am presuming that we go to court. Mr. Carvalho: I look forward to the legal opinion, too. Ms. Yukimura: Okay. I think that is all I have. Thank you very much for your straightforward answers. Chair Furfaro: Mr. Bynum, and then Mr. Hooser. Mr. Bynum: Thank you very much for being here, Mayor. I want to take this time to make a few comments about the last couple of meetings and then ask some questions. The first thing I want to say is that I sincerely, very much appreciate you being here. I appreciate you being in Po`ipu. We were both there in the rain. I appreciate you being at the Mana March all day listening. I appreciated Gary and Beth being there. I agree with almost everything you said when you were here before. You are the Mayor of this island and it is your kuleana. Everything that you have brought before the Council is logical and appropriate for you to do as a Mayor. I said that last time, but what came out that was I was disappointed that you did not know a few key facts. I think what my statements were last time and what they are this time is that I very much support the leadership you are showing by being here. For those who have not been engaged in Kaua`i politics, this is unprecedented for the Mayor to sit through this many County SPECIAL COUNCIL MEETING 154 OCTOBER 15, 2013 Council Meetings and sit here and exchange dialogue, and it shows leadership. I admire it very much. I disagree with your position that we need to defer the Bill and so I will ask a few questions about that just to clarify, I think, the way JoAnn has tried. First of all, you agree that there are at least four (4) members and I can assure you a fifth, myself, who support at a minimum the Bill that passed out of Committee. There may be amendments tonight but recognizing that, I have no faith that some voluntary plan that we have— some of us are purview to and others are not, is going to result in the outcomes that you are hoping for. I want to be very specific. Notification means "prenotification." So someone can go to a website and say, "Oh, this is what they are going to spray when and where," so as a citizen they can choose to avoid it. What I heard from the Governor, which all I have heard, is a press release that said, "Oh, we want them to disclose the aggregate amounts." That is after the fact and that is not specific. That kind of specificity that is in our Bill. Reasonable buffer zones— his statement said we are going to ask for voluntary buffer zones around schools and hospitals. That is inadequate if it does not include homes or people living, sleeping, and breathing. It is inadequate if it does not include parks and areas where people congregate on a regular basis. I will be flabbergasted if the provisions that are in this Bill, without any further amendments, are included in this. I am certain they will not be. Everything you are doing is what I want my Mayor to do. I appreciate that kind of analysis, but let us keep it to dialogue, please. If this body were to pass this Bill today, I hear you making a commitment to fulfill your responsibility. I have said publically that I though Public Works was a better place to put it so that is why it was not there in the Bill. I have faith in the leadership in both those Departments. Chair Furfaro: Mr. Bynum, I need a question for the Mayor. Mr. Bynum: Those are the questions, Mayor. Does it include prenotification, adequate buffer zones around homes and parks as well as schools and hospitals? Is that your expectation of the Governor? Mr. Carvalho: That is why I would want to include all of this materials and suggestions into this discussion. I think we can come up with a good, solid understanding of what needs to happen. Who is responsible? I am not saying "no" to buffer zones and "no" to disclosure, and all of that. I just want to make sure that we are in an arena where we can work it to benefit the people, of course. Of course, we do not want to shut any companies down overall, any business period on the island. We want to see how we can help people, but they also have to understand their role and how it affects what they do on our island. Mr. Bynum: I guess I will close with this question because you brought it up, but is it clear to you at this point that if this Bill passed in its current form or even with five hundred (500) feet buffer zones would not put these people out of business? It would not cost anybody their jobs. That never was the intention. What if they lost ten percent (10%) of their usable land, and it will not be that much at all— do you understand that jobs are not going to be lost and that was not the motive of this Bill? Mr. Carvalho: Let me just say this; I am going to disagree with you with the information that I have and the possibility of that happening and the fear on that side of the fence of people losing their jobs and companies folding. With this side of the fence, we have the medical side, which is validated, too. SPECIAL COUNCIL MEETING 155 OCTOBER 15, 2013 However, I just want to make sure we do not forget that there is this other side that could cause major disaster and friction in families because of that breakdown in the family without... that is all they have. I want to make sure that the families who are working in the fields, as well as here and whatever employment they are on the island, tourism, that they continue to work. There is a commitment that they are not going to lose or there is a commitment that they have an opportunity to have something else solid because that is all they have for some of them. That is my pitch on that... my understanding. I just want to make sure that when we come out with whatever we come out with, it is well thought out and I can provide the support with my hat on, and we can hold everybody else accountable. I feel like I can do that, but I just need the time. Mr. Bynum: Yes, I acknowledge that fears about losing jobs are real and serious for people. I do not believe that will be the outcome and if it is, that will be the companies that made that decision because the provisions of this Bill will not keep them from continuing. The last part is that of course we want everyone to work and have a viable economy. Thank you very much for being here. Chair Furfaro: Mr. Hooser, you have the floor now. Mr. Hooser: Thank you, Mayor, for being here. Just so I understand; I am a little slow on the take tonight. I believe I heard Councilmember Yukimura ask you what you intended to accomplish, and I believe you said a commitment from the Department of Agriculture or from the State to essentially do what is in Bill No. 2491. Is that what you said? To implement the provisions... Mr. Carvalho: That is what I would like to do and get close to that or whatever is in that Bill. Mr. Hooser: Is that your objective? Mr. Carvalho: Yes, that is something that we could work out and have their say and understanding in how we would manage that. Mr. Hooser: The Director of the Department of Agriculture, one (1) month ago, sent me a letter that says the Department of Agriculture has no plans to promulgate new rules in response to Bill No. 2491. The Director of Agriculture, when he was a State Senator is the only democratic State Senator to vote with reservations on the Bill to protect Waimea Canyon Intermediate School with buffer zones eight (8) years ago. He was the only democratic out of twenty-three (23) at that time to vote with reservations on that Bill. I have looked in my own experience with eight (8) years in the Senate and looking back recently, I have never found one instance where the Department of Agriculture testified in support of any pesticide or GMO bill to increase regulation. I did not find any instance of the Farm Bureau doing that or the Hawai`i Crop Improvement Association. Never have they ever supported any increase in public protections for pesticides and GMOs. That is the lens I am looking at, so I admire your confidence, but I have a very difficult time believing it. The Department of Agriculture does not have the legal authority to put into place the provisions that we have. They cannot pass law. They cannot pass rules like that. All they can do is to negotiate a voluntary agreement. You are, I guess, familiar with that. Correct? Mr. Carvalho: Yes, I am. SPECIAL COUNCIL MEETING 156 OCTOBER 15, 2013 Mr. Hooser: The rule making process is at least one (1) year. They can do an emergency rule making process for a forty-day (45) day period, but they cannot just snap their finger at the Governor and his cabinet and make these things happen, no matter how well-intended they may be. It takes a legislative act or rulemaking process which takes some time. Again, I appreciate your good intentions. You heard the testimony earlier from Ms. Eng on KVMH doctors. Bottom line with that testimony is that twenty (20) babies are born every month in that hospital, and those doctors who have been practicing there seven (7), eight (8), or nine (9) years and deliver those babies believe that there is ten percent (10%) the national average of birth defects. You talk about fear... I am hoping that they are wrong. Mr. Carvalho: Me, too. Mr. Hooser: I am hoping that they are wrong, but if they are right, every month another twenty (20) babies are ten percent (10%). I am hoping that they are wrong, but every delay— and that is just one part of the health impact. If they are not wrong, there are all the other health impacts that are happening or could be happening. I believe, as I have said before over and over again, the urgency is paramount. The Governor's letter also mentions only restricted use pesticides, not general use pesticides. Just so I am clear, your intent would be to have the State basically mimic the provisions that are in Bill No. 2491? Mr. Carvalho: It is my hope that whatever is the responsibility of the Department of Health, Department of Agriculture, and the County of Kaua`i that we all look at the whole picture collectively. Councilmember Hooser, as I said before, I believe it is based on relationships. You can pick up the phone, call, and say, "We have a major issue and we need to talk about this. How do we move forward?" Because I believe, like everybody is saying, that this is going to be a model for the whole world to see. I would hope that this model would be that we in Hawai`i, on Kaua`i especially, are able to work it out and bring people together. I feel that whatever happens here will just happen everywhere else, I would think. It is my hope... if I may, I am going to read this because I want to. This is to Chair Furfaro and Councilmembers. Today, I just want to do this. "Mahalo for allowing to us make a presentation to you last week regarding the operational impacts of Bill No. 2491, which included our suggestions for improving the current draft along with a request for deferral for two (2) months. The deferral is requested so that we could work with the State Department of Agriculture on shared implementation of the Bill. Since then, I have spoken to the Board of Agriculture Chair, Russell Kokubun, and he has indicated that the intent to implement voluntary buffer zones and pesticide use disclosure with the companies impacted by Bill No. 2491 by the end of this month. Because of this positive development and the clear regulatory authority of the State in these matters, we feel that it is prudent to defer action on Bill No. 2491 until the terms of such agreements are disclosed. We feel that a minimum of one (1) month is prudent." This is just one example of trying to get something back from the State. Now where it goes within this month's period, I plan to take it to the next step. Like you mentioned before in many discussions, Councilmember, in budget discussions you talked about management like managing your Departments; managing Planning and managing Parks. I want to manage and understand what I need to do to manage and what resources I need, so we can make things happen if it goes either way. SPECIAL COUNCIL MEETING 157 OCTOBER 15, 2013 Mr. Hooser: May I continue? Mr. Carvalho: Yes. Mr. Hooser: I appreciate you reading the letter. Your request to the Department of Agriculture was for them to work with "shared implementation of the Bill." What they said they are going to do is implement voluntary buffer zones. That is not shared implementation of the Bill; that is voluntary buffer zones. It is not us passing the Bill and they helping us implement it. First of all, this Council is poised to, as you said, "be a model." I do not know if you heard BASF... Mr. Carvalho: The Council and the Administration working together; that is what I am saying. Mr. Hooser: I am hopeful that the Council will take the first step and then the Administration will join us. Frankly, everybody else is a little bit late to the dance. We have been working on this for months, if not one (1) year. The Governor shows up three (3) weeks ago. Kokubun shows up ten (10) days ago. I will take full credit for this Council and this community starting this and taking it all the way to this step. I appreciate the help from everybody. It does not preclude us from working together. My vision is that we pass this Bill tonight, and then you and I, Councilmember Kagawa, Councilmember Rapozo, the Council Chair, and the rest of us go to Honolulu and meet with the Governor and Director Kokubun and work with them to do the funding, inspections, and their part of it. We do our part of it and then we have it even better. Earlier, the seed company representatives said his biggest fear is that we were going to set an example for other communities to do this in other places. I think you just said that you would like to set an example and I would, too. That is what I would like and I would reach out to you and ask you if we pass this Bill tonight, will you support this Bill and then work with me and the other members of this Council to work with the Governor and Director Kokubun to make this the best that it can be together with Council and State action? Mr. Carvalho: Let me say this. The Bill came from you, Council, to me, Mayor; Administration. I looked at the Bill. I dove into the Bill and figured out what we needed to do and what resources we needed. I am willing to take what I have before me first and give me that chance now because you folks said you went through all of your deliberations. I had to wait until I got the final written draft before me. Discussions took place all over the place and I just want people to understand that on Tuesday, two (2) weeks ago, I got it in front of me. I acted on that written document. In that written document, I took it, and then went and tried to develop these discussions, and that is where I am at right now. That is my responsibility and it is in my court, not to say that we are not going to team up later, Councilmember. That is where I am at now and that is why I am asking... I have the opportunity, I feel, to take it to the next step right now. Once we get through this timeframe— and then, yes, let us come together because you have gone through many discussions. Like you said, you tried to reach out to the State. Great. Now I have this before me and I am doing what I need to do to get the right people at the table to address this, and then we will come together with the final... whether it is a MOU or whatever. Mr. Hooser: If we choose not to defer and choose to pass it into law tonight, would you then go with us tomorrow or the next day like I SPECIAL COUNCIL MEETING 158 OCTOBER 15, 2013 described and meet with the Governor, Director Kokubun, and the community for that matter and say "how do we make this better and better? We have a Bill. We need your support. We need the State's support." Would you do that? Mr. Carvalho: I would look at that. I just have my own questions that have not been answered yet. The problem here is that you had your chance. I just want to say this... Mr. Hooser: No, I am asking you if you would go with us if we choose to pass this Bill tonight. Mr. Carvalho: But I still have questions for myself, so I can understand it. If you pass the Bill, which I am not saying "do not pass the Bill," it automatically becomes County's responsibility; my responsibility, period. It is a done deal. All I am saying is before you do that, give me that little time so I can get more clarification on our side, and then with we go. That is all I am saying because once the Bill passes it automatically becomes our responsibility, which I am not saying that I do not want it, but I feel I need the time to work it. Mr. Hooser: Six (6) months before the effective date is not sufficient time? Mr. Carvalho: Six (6) months before the effective date? Mr. Hooser: If we pass the Bill tonight, you sign it tomorrow, then you have six (6) months to implement the Bill. That is the way the Bill is written. Mr. Carvalho: Now you are talking about... we may need more time. I just want to sort through that. I am not making excuses. Mr. Hooser: Six (6) months is not enough time to sort through it? Mr. Carvalho: I am trying to work through that. I am not going to commit anything right now— six (6) months, nine (9) months, or (3) three months. Mr. Hooser: Twenty (20) babies are born every month. Mr. Carvalho: I am telling you that there are a lot of statistics that I am totally familiar with as well, Councilmember. Do not start throwing statistics because I understand that. I truly do. All I am asking is if I am going to be responsible, like I said... I feel like I am repeating myself; I am sorry. But that would be the reason why I need that time. Mr. Hooser: Thank you, Mayor. Thank you, Chair. Chair Furfaro: Would anybody like to ask the Mayor questions for the first time? If not, Mayor, I want to share something with you, Mayor. I have not said a lot going through this process and I try to be a very good listener. First of all, I want to thank Mr. Hooser and Mr. Bynum for introducing the Bill. Secondly, I want to thank Mr. Kagawa and Mr. Rapozo for going to talk to the Governor. Thirdly, I want to talk in terms of the work that Ms. Nakamura and SPECIAL COUNCIL MEETING 159 OCTOBER 15, 2013 Ms. Yukimura have put into this Bill. Everybody has been focused on their stewardship of this island, and that is our kuleana. Along with you, we try to implement these pieces. I have to say that I cannot, in my mind, going through as many things that I have gone through— I introduced the Money Bill for us to acquire Black Pot eight (8) years ago. We are still working with the State. We find ourselves in a situation to manage coqui frogs. JoAnn and I have to introduce our own Bill to take care of that. We got no relief from the State. I have been in conference calls with the EPA with JoAnn. I have gone to Hilo to meet with Kokubun about the Bill and the need to manage our bees in the proper way to make sure that we get them tested, which is another issue. I find myself, right now with the work that the two (2) ladies have done and the information that Ross and Mel have brought back; for me, there is no logical reason to defer this Bill anymore. Please, let us keep some decorum. I want to say that to you because you and I have always worked well together. But we pass the Bill tonight and the reality is those people who have said things to us about the legal question— maybe they file for a declaratory judgment or maybe this gets resolved in the courts. But for us to believe in all the work that we have done over the last seventy (70) days... and I want to make sure you understand that I clearly know you will do your very best to make this happen for the right reason, for the right people. I do not doubt you. My concern is with the State. That is where I am coming from. Mayor, I want to tell you that everybody on this Council body has worked very hard in the same direction with you, and I do feel we can paddle together. This wa'a can go forward. I want to make sure very much upfront that I will not support a deferral today. I needed to tell you that because it is important that you understand my rationale. Mr. Carvalho: If I may? Chair Furfaro: Yes. Mr. Carvalho: The only reason I would again request a deferral is not that I am against it; I just need the time for myself to make the right connections and information. That is why. Chair Furfaro: Mayor, if you came to me and said "I need three (3) more months at the end to implement it," then I would be open to the nine (9) months, but I think we are at the point here that we need to make a decision about the work and the contributions that have gone into this. This Bill is about pesticides. I am in a completely different place with GMOs. I do not have the science and the technology to know about those particular things. But I do feel that as we go forward, the things that the two (2) ladies have worked out in the amendments are doable for the pest control companies. I feel that the setbacks are the right thing to do. I think the disclosure is the right thing to do. I feel that it is also our responsibility now because it has taken us so long to get to this point. I want to make sure between you and I, you understand where I am at and together we are going to try to do the right thing. Mr. Carvalho: Right. Chair Furfaro: I think the time is right now. If the seed companies are going to move us to court and get a declaratory judgment on us, then let us find ourselves in court. Please understand. Mr. Carvalho: I understand. SPECIAL COUNCIL MEETING 160 OCTOBER 15, 2013 Chair Furfaro: If you need three (3) more months in the end to get the right people in the right places, I am very much open to that, or if you need some contract services to implement this until you get the right people. I want nothing to come between you and I and the aloha that we have for each other, but that is where I am at. Mr. Carvalho: I really appreciate that. You know that we can work together. My last statement is that my concern would be that is the right place to put this responsibility in the Office of Economic Development? Answer my question... not you personally, but I will just leave it at that. Is the place to put this responsibility in the Office of Economic Development? I will leave it at that. That is all I am asking, and to take it from there with all the responsibilities come... we will work together. Chair Furfaro: Mayor, you have copies of all of my correspondence from the EPA to Senator Schatz? You have all of that? Mr. Carvalho: Yes. Chair Furfaro: Okay. Thank you. Vice Chair, you have the floor. Ms. Nakamura: Mayor, I want to ask you a follow-up question. If it is not the Office of Economic Development, is there another Department that you would prefer to see it in? Mr. Carvalho: To me, whether it is Public Works, Parks, Economic Development, or wherever it ends up; I just want to make sure that we have the right people in the right place with the right resources with the right time to manage this thing in the right way, so we can make sure that we follow through on our responsibility. At the end of the day, I am responsible. This is such a critical issue not only for Kaua`i, but for the State and the world. It is not a park or anything else. This is something that really as leaders, we have to work together and that is my take on it. It does not matter where, it is "what" and "how" and to assure that we have the resources. Chair Furfaro: Does anyone else have a question for the first time? If not, JoAnn, you have the floor for the second time. Ms. Yukimura: Mayor, is it that you want time before a bill passes because you feel you would have more leverage in making some proposals to change the details of the Bill if the Department of Agriculture makes that a condition of them helping with enforcement? Mr. Carvalho: That would be my hope, yes. Ms. Yukimura: Okay. When you say "voluntary plan," does it mean whatever the companies volunteer to do? Do you envision an agreement that is enforceable by the parties who sign it, meaning the County and/or the State? Mr. Carvalho: We would have to get strict guidelines in place. I just want to make sure that we get the right parts in place. SPECIAL COUNCIL MEETING 161 OCTOBER 15, 2013 Ms. Yukimura: When you say "strict guidelines," do you mean specific buffer distances and so forth? Mr. Carvalho: If it is buffer zones, one (1) person is saying five hundred (500) and two hundred (200). What is the right distance? Ms. Yukimura: Do you see there being some delineation of what that will be and not just say "whatever buffers the companies feel is appropriate for their particular situation?" Mr. Carvalho: Yes. Ms. Yukimura: Yes what? Mr. Carvalho: It is not just left up to the companies themselves to decide. I want everybody at the table to decide and what the best safety is for the people, the workers, and the company. How does that match up to the needs? I like the idea of the buffer crop you talked about. I do not know if we are getting off the subject, but bottom line; buffer zones, disclosure, and the plan. Ms. Yukimura: So you see some actual distances specified? Mr. Carvalho: Yes. I know I can say this... some of the companies already have buffer zones in place or the ones that I visited because I wanted to get a good understanding of where it is at. I cannot tell you the exact distance, but from Kaumakani School, I can see that there is a buffer from the school to where the actual crops are. I do not know the distance now. We have to look at all of that like what is already there, what is not there, how much more do we need, and what kind of crop do we need? There is all of that and those are the kinds of discussion I want to have with the key people so we can come up with a good, good understanding. For example, "it is not one thousand (1,000), or five hundred (500); it is seven hundred (700)." I do not know. Ms. Yukimura: Okay. It is a distance that is agreed to and enforceable? Mr. Carvalho: Yes. Ms. Yukimura: Okay. If you get the deferral, will you include representation from the Council in negotiations with the Department of Agriculture? Mr. Carvalho: Yes. Ms. Yukimura: It is not just going to be your Office negotiating? Mr. Carvalho: I was just look at Chair Furfaro and we need to keep this canoe going in the right direction. That is it. Ms. Yukimura: Okay. That is all the questions I have. Thank you. Mr. Carvalho: Thank you. SPECIAL COUNCIL MEETING 162 OCTOBER 15, 2013 Chair Furfaro: I am going to call our meeting back to order. This is the time for the Council to do work. I understand from the Staff that there are some possible amendments. I believe Vice Chair or Councilwoman Yukimura has a pair of amendments. Mr. Hooser, do you have amendments? There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Hooser: I will listen to the Vice Chair since they worked so hard on this last time and we were so successful at it, I would like to talk to those and then add discussion for mine and Councilmember Bynum's. I think it worked well last time in terms of process, rather than throwing too many things out. Chair Furfaro: On that note, between the two (2) ladies, JoAnn, are you going to speak first? Ms. Yukimura moved to amend Bill No. 2491, Draft 1 as circulated, as shown in the Floor Amendment which is attached hereto as Attachment A, seconded by Ms. Nakamura. Ms. Yukimura: Mr. Chair, may I have your permission to explain these amendments? Chair Furfaro: You have the floor. Ms. Yukimura: Thank you. We made some very technical or housekeeping amendments, which we have not highlighted so I wanted to go over the highlighted ones starting on page two (2). Actually, the two (2) colored ones are just technical grammatical changes. Going down to the bottom of page two (2), we have added a provision to clarify "intention of the County to collaborate with the State Department of Agriculture to support implementation and enforcement of the Bill." Then going on page four (4), we have added the definition of "crop" because later on in the Bill, we are defining the buffers based on lack of crop or a commercial crop. We feel that will be easier to enforce and thus, will require less technical enforcement personnel. Then on page five (5), we have added the definition of "ground cover" because we do want the buffers to have some kind of cover. We do not want it to be bare, which would then create dust problems. We are saying no crops except cover crops of some sort. Then on page seven (7), we have actually set the threshold criteria for which companies this Bill applies to. We have done it on a prior calendar year so that there is a record that applies prospectively. We have also put the threshold of five (5) pounds or fifteen (15) gallons of any single restricted use pesticide. This is to make sure that we are not including smaller farmers because I think Councilmember Hooser said at the very beginning, it was not the intention of this Bill to cover smaller farmers who have less land area and the buffers would really affect them. Furthermore, they do not use any single pesticide in these quantities, but if you start adding all of the pesticides they use too, they might reach the threshold faster. We have said any commercial entity that uses an excess of five (5) pounds or fifteen (15) gallons of any single restricted use pesticide during the prior calendar year. All five (5) companies that are now covered by the Draft 1 are still covered by this language. Then that is really all on page seven (7). SPECIAL COUNCIL MEETING 163 OCTOBER 15, 2013 The next significant amendment starts at the bottom of page eight (8). In questioning Councilmember Hooser about the intention behind the disclosure of genetically modified organisms, it appeared to us that people mainly want to know whether they are GMOs growing and what crops. If somebody is growing corn, organically or otherwise, they know if it is GMO corn or GMO soy that is growing. We have said that we want them to disclose the growing of genetically modified organisms and that the description, as you see in page two (2), will be a general description e.g., GMO corn or GMO soy. The next significant changes come in the buffer zone on page nine (9), "Pesticide Buffer Zones." The changes to threshold are the same changes we made in the thresholds for the application of this Bill. You will see in (a)(1), we have changed "no pesticide may be used" to "no crop may be grown," hoping that that makes the Bill more easily enforceable. Because no pesticide of any kind may be used may be interpreted that no pesticide can be in the buffer zone and that is not our intention. The buffer zone is actually supposed to capture and be the place where pesticides can go, as long as it does not go outside of the buffer zone. The buffer is supposed to be a buffer that protects people outside of buffer zone. We have gone to no crops. In paragraph number three (3), "no crops may be grown unless..." Sorry, this is one about residences, "no crops may be grown within five hundred (500) feet of any dwelling unless," and we have three (3) exceptions. The first is what we talked about in the Draft 1, which is that there is an approved Soil and Water Conservation Plan that explicitly— we had first "addresses pesticide drift on the dwelling," but due to a testimony today, we said that "explicitly demonstrates no pesticide drift on the dwelling." We want the plan to be rigorous to show no pesticide drift based on the plan, and then the buffer would be one hundred (100) feet. If it does not hit the dwelling at all, one hundred (100) feet should be good. The second exemption is one that says if "the dwelling is owned by the landowner, and occupied by the landowner or a family member of the landowner, and there are no other dwellings occupied by third parties within five hundred (500) feet of the landowner dwelling, then there shall be no pesticide buffer zone." This has been requested by a major landowner. Basically, it is saying that they do not believe there is a risk from the pesticide spraying and they are willing to bear the risk as the landowner. Then (c) regarding a mature orchard, which in this case would apply to just Kaua`i Coffee, but if there are other mature orchards of a similar characteristic, they would also be covered. "The crops which grow in a hedge-like manner creating a windbreak effect, if pesticide application occurs between crop rows from a source no higher than two (2) feet from the ground, for the purpose of eliminating weeds in the ground, then no crops may be grown within seventy-five (75) feet of any dwelling. This came out of my personal experience of witnessing the spraying of Kauai Coffee, which was a small tractor that went between twelve (12) foot rows of very thick coffee trees. It had nozzles pointed downward that are no more than two (2) feet high. They sprayed water to be sure everybody was safe in the demonstration, so we could get up close and look at it. They sprayed water and the hedges acted as windbreaks. The crop was so low that they sprayed in high winds when they are not supposed to spray it, which is the worst case scenario, which is good because I wanted to see how far it goes even when there is operator error not following the label, and it did not go beyond twenty (20) feet in my estimation. To say that there is a five hundred (500) feet buffer just does not make sense. Furthermore, in a one hundred (100) foot buffer— they marked it out for me, and on no crop within the buffer, they would have to pull out their coffee plants. I believe there is protection in this exemption and that is the reason for the proposal here. We were told that there are County, State, and Federal government agencies that have authorized pesticide use for public health or safety purposes and we need SPECIAL COUNCIL MEETING 164 OCTOBER 15, 2013 to allow that. Then at the bottom, "Rulemaking," we have authorized the Office of Economic Development to collaborate with the State Department of Agriculture. Finally, the Ordinance is to take effect in nine (9) months after its approval in order to accommodate the Administration in setting up the necessary enforcement infrastructure, whether it is rules or personnel. That concludes the amendments and we are open to any questions that you might have. Chair Furfaro: Who made the motion? Ms. Yukimura: I did. Chair Furfaro: Okay. We have a motion by Councilwoman Yukimura and a second by Vice Chair Nakamura. Mr. Bynum, you have the floor. Mr. Bynum: Thank you very much for this work. My first question is in Section 22-22.5, which is labeled "Pesticide Buffer Zones." In every single instance where it says "no pesticide of any kind may be being used" is being eliminated by the Bill and being replaced by "no crop may be grown." Should I not be concerned that in a section called "Pesticide Buffer Zones," the comment or the provision that "no pesticides of any kind may be used" is removed in every instance in this section. I do not understand that, so that is my question. Chair Furfaro: Would one the coauthors of this want to respond to this? Ms. Yukimura: I will try, Chair. Chair Furfaro: Go right ahead, JoAnn. Ms. Yukimura: You will see that in the first paragraph (a), it says, "it shall be mandatory for all commercial agricultural entities that use"... et cetera, "to restrict the growing of crops except ground cover to which no pesticide is applied, and thereby restrict the application of all pesticides in the following areas." Councilmember Bynum is correct in observing that we have changed the nature of the buffer, at least in terms of how we have described it. The purpose is to protect against pesticides, but the language is to make it easy to enforce. You do not have to check whether pesticides are in the buffer zones because the original language alone was "no pesticide use in the buffer zone." That alone is not a good description of a proper functioning buffer because there could be pesticides in the buffer, but that is the whole reason for the buffer that it does not go beyond the buffer. No evidence of crops will make it so the people enforcing it do not have to check about pesticide use in the buffer zone. They just have to check that crops are not being grown there. Yes, I see some people shaking their heads. We are open to discussion and dialogue about this, but we are trying to make this a functional Bill and also a clear Bill. If you say "no pesticide use," somebody will argue that there are pesticides in the buffer when actually, it is the role of the buffer to capture these. Chair Furfaro: Vice Chair, you may add to that. Ms. Nakamura: I think we are thinking about ease of enforcement. That is the main thing. If we are going to be hiring County inspectors, our thought was that it is easier to measure the distance from the home SPECIAL COUNCIL MEETING 165 OCTOBER 15, 2013 and the field just by measuring where the crops are grown, rather than having to measure drift or doing more technical analyses and testing that we may not be initially equipped to do. Mr. Bynum: From your response, it is like the one hundred (100) feet has no pesticides, so you are assuming that drift does not happen at all, even a few feet? Ms. Yukimura: There will be no application of pesticides in the buffer, but if there is application on the crop that is legitimately there, there might be pesticide drift into the buffer, but the buffer is the one that is supposed to take it, rather than the residents or the school. That is the intention. My thought is if there is an experience is of pesticide in the school or home, that is a report to the Department of Agriculture because they are qualified to test for pesticide drift. If we find that pesticide drift is happening, then we have to change the buffer. Ms. Nakamura: Just think about it. The problem stopped at Waimea Canyon Intermediate School when they stopped growing the crops in the five hundred (500) feet or six hundred (600) feet buffer zone. The idea is to not grow the crops in that buffer zone. Mr. Bynum: I appreciate this dialogue. The problems did not stop. They created a buffer zone and we tested and continued to find restricted use chemicals in the air. I do not want to have that discussion. My concern is why could it not say "no pesticide use of any kind may be used or crops grown within the five hundred (500) feet. It is the same outcome, but you have removed from the pesticide buffer zone section the words you are going to restrict pesticide use, so I would ask if we could just say both. Mr. Hooser: I think what Councilmember Bynum is saying makes sense. It does not affect the substance, but it certainly makes it a lot clearer that no pesticides of any kind could be used. I would agree with that. I am concerned that "no crops" is a larger impact on the landowner. Theoretically, the landowners could plant some other kind of crop in there if not for this provision. Without this provision, you have a buffer zone... you could plant avocados or you can plant some other kind of plant that does not need pesticides, theoretically. I understand the enforcement issues in terms that it is cleaner this way, but I do have some concerns because by saying "no crops," it is a larger impact on those owners. I could probably live with that. The other item of topic would be the distances. We could go one by one. Again, I think parks are just as important as hospitals, nursing homes, or daycare centers. The five hundred (500) feet for parks— I am still not comfortable with the approved Soil and Water Conservation Plan from the dwelling. I would prefer "property line," not from "the dwelling." It is a lot easier to measure from the property line than from the dwelling. If your house happens to sit closer or further away and different impacts, the property line would be much clearer. Chair Furfaro: If you are finished Mr. Hooser, I am going to go back to Mr. Bynum. Mr. Hooser: Sure. Chair Furfaro: Mr. Bynum, you have the floor. SPECIAL COUNCIL MEETING 166 OCTOBER 15, 2013 Mr. Bynum: The language of both... in essence it would read "no pesticides of any kind may be used or crops may be grown within..." and just leave the language with both. Chair Furfaro: I will let both of the ladies respond to you since they are the coauthors. JoAnn? Ms. Yukimura: Yes. I am not fully comfortable with this either because of the impact on the companies. We have had some preliminary discussions with them and they do not know of any commercial crop that can be grown in the buffer zone without pesticides. They even had concerns about how they are going to manage a ground cover crop. One option is mowing so they could just mow. Yes, and grazing. They could have animals... Chair Furfaro: Excuse me for an interruption. Mr. Hooser and Mr. Bynum, I am getting feedback so please turn your mics off. Please continue, JoAnn. Ms. Yukimura: As to Mr. Bynum's point, you will see that in buffer zone main paragraph (a), they would be restricted to growing crops except ground cover to which no pesticide is applied. We are saying that they cannot apply pesticides in the buffer zone, but used in the buffer zone is subject to interpretations that, "Oh, there is drift in the buffer zone." We just thought it would be clearer to say "no crops" and then "cover crops," but you cannot control cover crops with pesticides. That is about the closest thing we would come. We are open to other suggestions, but again, we are trying to think about ease of enforcement because this County has no trained personnel in pesticide drift regulation and enforcement. We can see inspectors who just come and measure with these fancy new devices of the fact that there is no commercial crop within certain distances. Mr. Bynum: JoAnn, is the answer no? Chair Furfaro: Excuse me, I am going to let the other coauthor add if she had any comments first. Do you have anything to add, Nadine? Ms. Nakamura: No. Chair Furfaro: Okay. Mr. Bynum, you have the floor again but you need your mic on. Mr. Bynum: My first question was would it be acceptable to leave both languages... and I am sorry, JoAnn, I did not hear an answer. Ms. Yukimura: I tried to say that there are complications with saying no use of pesticides in a buffer zone. I do not want to allow that ambiguity to continue. You can still propose an amendment and see if the body would accept it. Chair Furfaro: Mr. Hooser, the Chair recognizes you. Mr. Hooser: I think I understand the word "use." Paragraph (a) says "no pesticide is applied," so let us say "no pesticide of any kind may be applied and no crops may be grown." It is the same operative word as used SPECIAL COUNCIL MEETING 167 OCTOBER 15, 2013 above; it is not "used," it is "applied." It accomplishes the same text with a little more clarity. I think that satisfies your concern that drift might be called "use." Chair Furfaro: Is there a response from the ladies for Mr. Hooser's comment? Ms. Yukimura: I do not see why it is necessary. Mr. Hooser: Sometimes things are necessary to accommodate the needs of other members, if it is not going to weaken the Bill. That is my comment. Chair Furfaro: Are there any further discussion? Mr. Bynum: Yes. I had hoped to talk about the "no crop" part but I was trying to do it one at a time. I like what Gary said, and the reason would be because it is important to me. I am asking you. It does not change the intent. I think it is important for that language to be in there and I am asking for that concession. Ms. Yukimura: I would like to go on and give it some thought. Mr. Bynum: May I ask about crops? Ms. Yukimura: Yes. Mr. Bynum: One thing we have learned from this process is that our agricultural land is very valuable. If we are talking about passing a law that says "you cannot grow anything valuable on our valuable agricultural land." I never envisioned that people were not going to use their agricultural lands for agricultural purposes. There are ways to grow things without using pesticides. There is hand labor and there are alternatives. To say to Kaua`i Coffee that you have to take out your trees— I am sorry, you have dealt with that with a special provision for Kaua`i Coffee. I just cannot understand why we would say— and then we are requiring them to grow something. If this is what it takes, I would support this, but I believe that the regulation is not— you do not need a visual thing because the companies keep very meticulous records. I do not believe that they will purposefully manipulate those records. I am sorry if you think I am naïve, but I do not think they will because they report that to the EPA and USDA. I just want to make those comments. I just cannot imagine that we would say "you cannot grow agriculture on agricultural land, but you have to grow some kind of a buffer crop." I just do not understand why it is necessary. Chair Furfaro: Is there any more dialogue before I call for a vote? Mr. Rapozo: I have a question for the either one of the introducers. On page ten (10), (3)(C), when you talk about the mature orchard. The buffer goes down to seventy-five (75) feet. I guess I am having a problem because pesticide is a pesticide. The danger of a pesticide, whether you are at Kaua`i Coffee, Waimea, or in the valley, it is the same. Yet, we are making concessions here for certain people and (b), the landowner occupies the property and all of a sudden there is no buffer zone. I am trying to understand the rationale for that. If, in fact, SPECIAL COUNCIL MEETING 168 OCTOBER 15, 2013 the pesticide hazards are driving this Bill or this amendment, how can we say that for some people it is okay and for some it is not? I am struggling with that because why should the landowner or the homeowner— I just do not see the difference between mature orchard versus... I know you explained the nozzle shooting down low to the ground and I believe that the seed companies have similar type of nozzles in some cases, but what is the rationale for allowing some people to be exposed to pesticides and not others? Chair Furfaro: You may answer, JoAnn. Go right ahead. Ms. Yukimura: We are trying to control for harm. In the case of this spraying just for the weeds on the ground in a hedge-like environment, the harm is not there because it does not go very far. The hedges act like a windbreak. As far as I know, the corn company and Kaua`i Coffee spraying are very different. I am scheduled to witness corn spraying this Thursday because I was not able to do it beforehand. My understanding is that their rigs are higher and the corn crop is much lower when they are young. They are young more often because they are constantly rotating crops. They do not create the kind of windbreak effect, so we were trying to make this... we are recognizing that one size does not fit all. We are trying to tailor it to the harm. The harm is less when the spraying is as described with Kaua`i Coffee. Now as to your question about the landowner, the obligation is primarily to people, like I said, "somebody's right to swing their arm ends where another person's nose begins." You have much more right to do on your land what you want to, than you have to cause impacts to another. If the landowner is willing to take the risk that indeed he feels that there is no harm from the present spraying that goes on, there is more leeway to allow that than if he is harming somebody outside of his property. Mr. Rapozo: Including the unborn child of maybe the spouse or the children on that property that have no control? Ms. Yukimura: If there is proof to that, then we will increase the regulation. Mr. Rapozo: I am just trying to find the rationale, JoAnn, because we are basing this on the safety and the hazards. Ms. Yukimura: I am trying to give you the rationale. The other example is the termite companies and the fact that homeowners invite termite companies to come. If there is a third party harm here, then we have to stop it. I do not know if that has been established yet, and so we are trying to balance the lack of information against some information and the request from the public to impose some of these restrictions. We are trying to create a balance and we have provisions for a study that hopefully will make available much better data and reliable data that we can then legislate upon. Mr. Rapozo: One more, Mr. Chair, if I may? Chair Furfaro: Go ahead. Mr. Rapozo: The golf courses and the resorts are in very close proximity to residences, whether it is in Princeville or Kiahuna. I actually had some pictures made to show how close some of these fairways are to residences, but there is no mention of that. I guess, again, why would we want not want to protect SPECIAL COUNCIL MEETING 169 OCTOBER 15, 2013 those residents or neighbors? Nowhere is that addressed in here. In fact, they are not included. Ms. Yukimura: I think you are asking a very good question. I have not investigated how golf courses apply the pesticide. I am envisioning backpack sprayers, but maybe not. Mr. Rapozo: I can tell you that I passed Wailua Golf Course this week and they had an antique sprayer. It was amazing what was blowing from that sprayer. I do not know what they were spraying, but you could see the mist coming and there are no residences around there. My point is that we are not even addressing that at all. I have not seen any request for information on the termite control companies. I have not seen any investigation or interrogation regarding the golf courses or resorts. Not at all. I think that is a concern, for me, anyway. Chair Furfaro: JoAnn, do you want to respond to Mr. Rapozo? Ms. Yukimura: Yes. I think you are raising good points, but I also know that the law does not... I think I know that the law does not require us to address everything at once. Legislators have the choice and any of us could put forward a bill that addresses golf courses or termite companies. That is where the initiative of introducing a bill comes... Mr. Rapozo: So this one was just for GMO companies? Ms. Yukimura: This one is responding to a Bill that is before us, listening to the testimony in terms of evidence and concern, and trying to navigate an appropriate or wise balance in terms of what we know and what we do not know, and trying to give protection based on incomplete information until we get some more complete information. Mr. Rapozo: Thank you. Chair Furfaro: On that note, Mr. Hooser. Mr. Hooser: I have a comment and also a process question. We are talking about the amendments that are in front of us. I have a number of suggestions that I would like to distribute and share with the two (2) introducers and the rest, talk about some of that, and then perhaps we can take a brief recess like we did before. Hopefully we can accommodate some of the discussion here at the table, if that is okay with the process? I am going to start with page one, if I could. Should I pass out what I have? Do you want to put what I have up on the board? Chair Furfaro: Excuse me, Gary. The Chair will recognize the dialogue on the first amendment as recognized. We will continue after the floor now recognizes Mr. Hooser and his amendments (which is attached hereto as Attachment B). Mr. Hooser: Yes. We can motion and second... do you want to do that or do you just want to do this conversation on the same breath? SPECIAL COUNCIL MEETING 170 OCTOBER 15, 2013 • Chair Furfaro: The same breath. Mr. Hooser: Okay. I agree. Let us go to page two (2). Page two (2) addresses— part of these suggestions are to strengthen it legally and part of it is just for clarity. Letter (h) at the top there, just clarifies the pounds and gallons. I checked with Staff to make sure we have pounds and gallons and not just pounds as was there before. That is the top. Because the existing language specifies the chlorine gas and the termites, it does beg the question "what about these other two (2)?" So that last sentence explains the rationale of the three (3) categories, "only agricultural operations involve the open air applications of large amounts of multiple restricted use pesticides and general use pesticides in an uncontained environment, over large areas of open land where windy..." That is why the chlorine gas and the termite are not addressing that. I think legally, it clearly shows the rationale of why we are focusing on what we are focusing on, and what is now (h). Ms. Nakamura: I think this is good. One amendment that I would make is that under the County portion, the chlorine liquefied gas is for two (2) Departments. Mr. Hooser: For what? Ms. Nakamura: For two (2) Departments; Water and Wastewater. Mr. Hooser: Okay. That is fine. You are the keeper of this information. Since we are using your vehicle as the one, I am fine with that. Chair Furfaro: Excuse me, I have a clarification. Did I just hear you say that you would prefer it be their vehicle? Mr. Hooser: I think that is the one on the table now and these suggestions are... Chair Furfaro: Thank you. I just wanted to get clarification. You have the floor. Mr. Hooser: For letter (j), I am not sure if "travel" or "travels" was included in here. It is more of a housekeeping grammatical thing. For letter (n) at the bottom of the page, I think the question is "what," not whether or not GMOs are being grown because we know they are being grown. It is "what" genetically modified organisms are being grown. Is everybody with me so far? Page three (3) has nothing. Page four (4) there is nothing. On page five (5), we have a definition for "nurse practitioner" which will be self explanatory later. For the definition of "park," we added in "Federal Government." There may be Federal parks or marine parks. It is just kind to cover ourselves with the Federal parks, as well as State or County parks. On page six (6)0—just bear with me for a second on this. We have a definition for "perennial streams," that comes from the Department of Health rules that was recommended by Dr. Berg. We also have a definition for "physician" and that will become clear in a second. On page seven (7), we have a definition of "significant effect." "Significant effect" comes out of Chapter 343. It is a universal definition on EIS planning. We are not doing an EIS, but I think the definition is important. "Significant effect" means the sum of the SPECIAL COUNCIL MEETING 171 OCTOBER 15, 2013 effects and the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of uses," et cetera. Then we have a definition for "State waters." It is important to point out that State waters do not include irrigation or drainage ditches that are used in agricultures. When we get to our buffers later that I worked with Councilmember Bynum on, there is a provision for all other State waters. The definition there, if you take a moment to read it, excludes ditches, flumes, ponds, and reservoirs that are part of water pollution control or the same that are solely used for irrigation and do not overflow into other State waters. Most of this discussion is from Dr. Berg's testimony and recommendations. If you go to the next page, page eight (8). This is the mandatory disclosure of pesticides. We add in similar provisions in terms of clarifying that it is year after year. I think it is just a language difference. The original language and the original Bill was a little fuzzy like the calendar year. I think we are approaching it the same way here, but just different language. We are saying that if you use this during any year, then the following year you have to disclose, so I think the intent is the same. On number two (2), we add in "revocable permit holder." It was brought to our attention that there are people who access these properties. I know hunters have revocable permits to get on the property and back, so we put that in there as a person who can entitle to a "good neighbor courtesy notice." Then we have a provision, number nine (9), which I think is important that I should point out. Basically, all of those notices are posted online and available for the public. That is already there. They are being sent out on a regular basis, so this is just one small step further where the Department consolidates this and makes it available to the general public. The last sentence says "any licensed physician or nurse practitioner shall be provided the disclosure information immediately upon request," basically when they diagnose a person. Right now, the disclosure is weekly or something... that provision number two (2), "good neighbor courtesy notices." This allows physicians and nurses treating patients to say they need that information immediately. Chair Furfaro: There is a question from Vice Chair to you, Mr. Hooser. Ms. Nakamura: Is there a definition for "immediately?" Mr. Hooser: I do not believe we added one in, but we certainly could. Ms. Nakamura: What is your idea? Mr. Hooser: Like right away. If it is a nurse or doctor trying to treat a patient, they should get it immediately, whether that it is within four (4) hours, six (6) hours, or twelve (12) hours, I am open to that or whatever the pleasure of the Committee is. I would think that if I was a doctor treating a patient and I called Syngenta and wanted the information, I would want it as soon as possible. We could change it to "the earliest possible moment" or something. Chair Furfaro: JoAnn, you have the floor. Ms. Yukimura: My concern is that these good neighborhood notices may not even happen— I mean the spraying may not even happen. Some of the companies were really concerned that at some time, depending on weather SPECIAL COUNCIL MEETING 172 OCTOBER 15, 2013 conditions, fifty percent (50%) of their projected or planned pesticide sprayings... because these are "pre-application notices." They are saying "this week we plan to spray on Monday, Wednesday, and Friday," but fifty percent (50%) of them may not happen. You can envision a practitioner getting these notices and then having to go back and ask "did this happen" or "did it not happen?" Or there will be people getting mad that it did not happen and that the companies are trying to deceive them. There are these issues that with the provision in the present draft, there were concerns about this. I am thinking the reliable information for the practitioner is the post-application spray notices. That is not in this paragraph; it is in number three (3). Mr. Hooser: Thank you, Councilmember. Ms. Yukimura: That is available to everyone. Mr. Hooser: Thank you for bringing that up. I would suggest that we move that sentence to number three (3), but keep it "immediately" or something like that because it is a post-application. "Spraying occurred, my patient is sick, what did you spray?" It is post-application, but this post-application is once every seven (7) days, right? A doctor should not have to wait seven (7) days to find out how to test or treat their patient. Perhaps we could add that under (3)(a) and we put some reference to the doctor. The doctors have said that they do not know how to treat their patients because they do not know what is being sprayed. I think the heart of it is really the health matters. Chair Furfaro: JoAnn, do you have further questions? Ms. Yukimura: We brought the post-application spraying from annual to weekly, and we did that because at least some of the companies told us that they reconcile their spray records weekly. They wanted to make sure that what they have and what they used were accurate before they finalized the reporting of it. They check with their applicator records and all of that. Because they did that on a weekly basis, we thought it would be reasonable for them to disclose on a weekly basis. I feel like we need to touch bases with the companies about if we are going to make it more frequently, how they are going to do that logistically because our effort was to not make it an additional burden than to what they are regularly doing, but to make it useful information by its weekly frequency. Mr. Hooser: Okay. I apologize for not making myself clear. This is the situation where a doctor has a patient that got sprayed, got sick, or there is some complaining and they want to treat this patient right away. This is not regular reporting. I did not want to use the word "emergency" because we would have to deal with a definition again, but this a physician or nurse practitioner who needs the information to do their job. I am open to new language. I thought that language was good. We could say within twenty-four (24) hours if that makes "immediately" or "no later than twenty-four (24) hours," and place it under (3). Maybe Vice Chair and the co-introducer can think about that and then we could move on. You know what I am trying to accomplish and perhaps you could work with the language a little bit. Chair Furfaro: JoAnn, are you following up on that? Ms. Yukimura: Well, I just want to say that we have to involve the companies in this discussion. It may by be a select... that we do this SPECIAL COUNCIL MEETING 173 OCTOBER 15, 2013 weekly, public disclosure, and there be a special way for health practitioners to make the request for certain things. To have daily disclosure to everybody is a major thing. What I am saying is that we have to— it is a whole new ballgame as far as... I am willing to work on it, but I am going talk to the companies to see what their issues are. Chair Furfaro: Mr. Hooser, you still have the floor and I hope when I break for thirty (30) minutes, you folks will be able to talk to who you need to talk to. Mr. Hooser: Thank you. Again, I am not making myself clear and I apologize for that. This is not meant to ask the companies to do a daily, weekly, hourly, or anything at all, but simply to say when a situation arises and when a physician or nurse practitioner treating a patient needs to know what they were exposed, they do not have to wait a week to get the report. Chair Furfaro: Urgent or emergency care. Mr. Hooser: Yes, thank you. Can we move on? The bottom of that page is just an oversight, if you would, in terms of when it takes effect. The way it is written now, it says no later than sixty (60) days following the calendar year because there is going to be delay in implementation. This is at the bottom of page nine (9); "except that the first report shall be due on date that the ordinance takes effect," rather than wait a whole other calendar year to get the first disclosure. It says sixty (60) days from the end of the calendar year, you have to disclose your GMOs. That is the way it is written. Because this will not be implemented until June or whenever, then we would have to wait until sixty (60) days all the way around again. This says the first report is due upon taking effect, and then after that they are due sixty (60) days after the calendar year. The disclosure of the genetically modified organisms— you see there is more yellow. I believe it needs more than just GMO corn or GMO whatever... sunflowers. Chair Furfaro: There is a question for you, Mr. Hooser. Mr. Hooser: Sure. We are almost done. Ms. Nakamura: I am going back to the previous— "except that the first report shall be due on the date this ordinance shall take effect?" Mr. Hooser: Yes. Ms. Nakamura: So that is the date? Mr. Hooser: That would be six (6) months or nine (9) months—well, whatever date we agree on. Ms. Nakamura: Okay. I understand. Thank you. Mr. Hooser: The GMO notification has two (2) components in that block of yellow. The first component says we need a little bit more than just GMO corn and GMO sunflowers. We are still not looking for trade secrets, but the general purpose of the organism. Is it pest resistant? Is it drought resistant? Again, it is not a trade secret; it just a general description of the characteristic. For example, if it is pesticide resistant, you might expect there SPECIAL COUNCIL MEETING 174 OCTOBER 15, 2013 would be more pesticides used. If it is pest resistant, it tells you a little bit more information than just corn. That is the first sentence. Now to the second sentence starting with "any applicant." "Any applicant to any Federal agency for any permit or approval of any bioproduct basically shall submit a copy of their application to us, the County, at the same time that they submit an application to any Federal agency." If they are applying for a new GMO organism, a permit from the Federal government, they will give us a copy of that application at the same time they give it to the Federal government. This is State law now. Those exact words are in the State law. They have to provide that same information to the Department of Health as we sit here. We are not asking them to do anything more than what they are already required by law to do. Chair Furfaro: Councilmember Yukimura? Ms. Yukimura: My understanding is that every application is on the USDA website. Mr. Hooser: I am asking them to disclose that information the same as they are disclosing or supposed to disclose to the State of Hawai`i right now. We do not have to go look everyday to check the website to see what a new application is. When they file an application, they would send that application to us, the same as when they send it to the Department of Health. It is the same information. Chair Furfaro: Excuse me, are you finished, JoAnn? Ms. Yukimura: I want to finish this conversation if I may? Chair Furfaro: You finish and I will give the floor to Nadine. Ms. Yukimura: We can find out when, but I think every application is posted under Kaua`i and by company as to every application that is made. Mr. Hooser: I am not arguing whether or not they are posted or not. I am suggesting that the companies provide us with the information, just like they are required by law to provide the State with the information. Ms. Yukimura: But that means the County has to enforce this provision? Mr. Hooser: This is record keeping. They send the information and we post it. This is important information. This information is the information provided when the companies apply to do a new test. That way, we would know that they are applying for a new test. We get the copy of the Federal application at the same time the State does. We can then, if we choose to, respond. We do not have to go dig around and wonder when they are posting something on the website. Again, it is the same information that they are supposed to be doing right now, according to State law. I think it is important. It is an existing State law, just like the worker protection signs are in existing law. Can I move on? Chair Furfaro: One moment. I think the Vice Chair had a question on this subject. SPECIAL COUNCIL MEETING 175 OCTOBER 15, 2013 Mr. Hooser: Okay. Chair Furfaro: You have the floor, Nadine. Ms. Nakamura: What would you do? You would post the application on the County website? Mr. Hooser: It goes with the disclosure. It is part of what is disclosed. Yes, so it is public information. Ms. Nakamura: Is it currently public information? Mr. Hooser: It is as public as the State wants it to be, just like the Department of Agriculture. Did you have a comment, Councilmember Yukimura? You want to wait until I am finished? Right now for example, the Department of Agriculture says restricted use pesticides are public information. But to get the information, you have to send them a Uniform Information Practices Act (UIPA) request. Did you have something to say? Ms. Nakamura: Councilmember Yukimura, maybe you can just... Chair Furfaro: Let me share this with you. Mr. Hooser has the floor. When you are finished with the floor, I will recognize members who will pose questions to you. Mr. Hooser: Thank you. Chair Furfaro: You have the floor, Sir. Mr. Hooser: So getting information from the Department of Agriculture, which I have firsthand experience, is very difficult. It is supposed to be public information. To get it, it is similar. This would allow our public to have easy access to this information, since it is important to our community. Ms. Nakamura: If Councilmember Yukimura is saying that it is already available on a USDA website, and if it that is true, can we just do a link? Mr. Hooser: Can I respond? Ms. Nakamura: If you want the information, this says when an applicant applies for a Federal permit, they send you a copy. We will not know when they are applying unless someone is checking that website on a regular basis to know when a new application is comes up. That is really the issue. You have to assign somebody to check. Again, they are supposed to be filing this information with the State. They just make a second copy for us and it goes here. Ms. Nakamura: You just want this to be the trigger of notification. Mr. Hooser: Yes, so we would know and not have to go look for it. Ms. Nakamura: Thank you. SPECIAL COUNCIL MEETING 176 OCTOBER 15, 2013 Chair Furfaro: Councilmember Yukimura. Ms. Yukimura: My understanding is that the applications are on the web, so they are listed. It is going to come to the County and then what are we going to do with it? We are going to put it on our web? I just do not understand the difference? It is by island and I think it shows what company is applying. I do not understand what new information will be provided. Chair Furfaro: Let us move on, please. Mr. Hooser: For the Pesticide Buffer Zones, again, bear with me or a second because it does not include the "no crop" provision. If we can focus on the distances... so Councilmember Bynum and I have worked on this. He has particularly worked on it a lot. It is five hundred (500) feet from the property line. I think that is an important distinction. If you say schools, is it the playground? The property line is a very clear line and we include park in that. "Property line" is a key element word and the term "park." We believe parks are where senior softball is played, where children play, and where mothers take babies. It is just as important as the other daycare centers and others. If we go onto page eleven (11), item number two (2), five hundred (500) feet from the property line on which a dwelling is located. If there is a house on the property, it is five hundred (500) feet from the property line, except for and similar to your provision, of the person living in the property. So except for if it is part of a contiguous property related owned or managed, then it is five hundred fifty (550) from the dwelling. We do not believe someone living in Kaumakani Camp or someplace like that should have less protection. This says you cannot do it from the property line or something like that because it is all one big parcel, it is from the dwelling. Everybody else gets from the property line— five hundred (500) feet from the land, so let us do five hundred fifty (550) feet from the dwelling to give them an approximation of the same protection. The next provisions come a lot from Dr. Carl Berg. "Five hundred (500) feet from any shoreline." "Shoreline" is defined as a "high-watermark" in the State "shoreline" definition. We have your disclaimer in there on the Department of Agriculture for health purposes. Number four (4), "no pesticide of any kind may be used within two hundred (200) feet of perennial streams." The definition is there. Number five (5), "no pesticide can be used within one hundred (100) feet of any other State waters. Again, the State water definition is there and State waters do not include irrigation ditches or drainage ditches. Last but not least on that, "no pesticide of any kind"... we have five hundred (500) feet from a public roadway— this is controversial to some people, but it is five hundred (500) feet from a public roadway, except if you choose to post signage that you can see from the speed limit that you are going. We believe that to give special treatment for orchard crops weakens the Bill in some respects because you are giving special treatment to one (1) person. We believe that everybody is treated equally and say, "It is your choice. You can either not plant there or put the signs there." Councilmember Bynum, jump in if I get this wrong because you worked really hard on this. That is that provision. Again, we believe that treating different people differently is a weakness in the Bill. For page twelve (12), this is the Environmental and Public Health Impacts Study, the EPHIS, and some of it is just kind of cleaning up. We put "multi-part" SPECIAL COUNCIL MEETING 177 OCTOBER 15, 2013 instead of"two-part." I would rather be broad in case we go to the Resolution and want to do it different. Changing "using" to "utilizing." Taking out the word "growing." It is just better language, I believe. Then we put in "As determined by Council Resolution," which is on the table now. That last sentence in that first paragraph (a), I think it is important that it is clear that the EPHIS is not just a study, but makes recommendations that include, but not limited to possible actions the County may take in order to address the significant effects, which is defined or public health impacts, or both as may be determined. I think it is good to put the "significant effects" in there, but it is "as may be determined by the EPHIS." On completion of the EPHIS, then the County goes back to these buffer zones. What did we learn with the EPHIS? Maybe we adjust them. We have the so-called "one size fits all because we want protection, but after the study is done, we learn more and we can revisit the buffer zones. In paragraph (b), I think it is very important that we have a funding provision in there. There has been a lot of talk about who is going to pay for this, so it says, "in addition to other funding sources, the County may pay for this and anything else required for the implementation from property taxes directly related to these properties, through new permitting fees or both." In addition to "others," that is a big phrase so that does not limit it to anything. It specifically says "property taxes directly associated or new permitting fees." I think it is very important that we have a funding mechanism in here, should the County decide to use it. Permitting— we discussed this last time and I think it is real important that we put this in here. It says "the County may," and does not say that "the County has to..." "Develop and implement a permitting process that applies to activities and entities contained within this article and it shall include, but not limited to provisions that mitigate whatever impacts come out of this EPHIS." That is the missing leg. We get disclosure, do our study, and you mitigate. You cannot mitigate without permitting and this does not say you have to do it right away, but says you may do it in future. It also says that County may administer and implement fees to be used for the regulation and enforcement of this article. It is double language to make sure that we have the ability to charge fees. There are many people who feel that these companies should be paying the price of this enforcement and not the taxpayers. I think it is important to have that language in there. When we asked the Administration last time, they agreed that if we gave them the authority that the law allows them to do that. Those are it in a nutshell. Again, I want to thank Councilmember Bynum for really, really working hard on these, especially the buffer zones, and I am open to any further questions or we can recess. Chair, thank you for the time. Chair Furfaro: Okay. I will give Mr. Bynum a few minutes, and then I want to go into recess to find out what you guys can agree on. Mr. Bynum, you have a few minutes. Mr. Bynum: Thank you very much, Chair. I really appreciate this work. This is good. I am glad Mr. Hooser was allowed the opportunity to present the amendments that we have been contemplating and working on. I will not go over each one other than to say particularly on the buffer zones and roadway buffer zones. The provision that is in here I think is outstanding. We have two (2) issues that I think as we go through this that I would ask members to be open to in this dialogue. One is this base number. One hundred (100) feet is not adequate in my view. I think five hundred (500) feet is the right SPECIAL COUNCIL MEETING 178 OCTOBER 15, 2013 number, but my view is also that pragmatically up to one hundred fifty (150) feet, that is just getting started, kind of pragmatic, and it really only starts to have any safety impact— this is my opinion, not based on science, but just on commonsense... at about one hundred fifty (150) feet. I would hope that if there is a compromise, it is in the three hundred (300) range and I would ask the people to look at that. In terms of roadside notification, this is very important to people who have lots of chemical sensitivities. We received testimony from Teresa Tico that was particularly on point about this and how our changing laws identify this medical (inaudible). It gives those people a sense of power, but more importantly, it is just pragmatic. You notify twenty-four (24) hours in advance with signage that can be read, you have no buffer zone but the people have an opportunity to avoid that area. It has no impact on that cultural production along the roadways. I think that is important and a reasonable thing. If you have a base number that might be lower through compromise, but the provision telling people to "please not grow anything on our agricultural land." There are lots you can grow. Kaua`i Coffee can continue to grow coffee. They will not be restricted on the roadway, but I am going to say in a minute that I hope there are some restrictions for Kaua`i Coffee on the ocean side, which is currently not in the Bill as I understand. Anyway, those are really the key things. In terms of the EPHIS, I think these are just logical inclusions to make it clear of what the potential outcomes would be. We are being really honest here tonight. Gary and I— excuse me and correct me, but we have surrendered a lot... more than I ever wanted to surrender. We are surrendering it to well-intended, super dedicated Councilmembers. Basically, they are going to go back during this break, look at these things, and put in what we have convinced them to put in, if any. That is just the reality of where we are. Thank you. Chair Furfaro: Thank you. The objection here from the Chairman is with the disclosure from Mr. Hooser and Mr. Bynum on their items, I would hope that between the two (2) ladies who introduced the first amendment to find some agreement. To Mr. Rapozo and Mr. Kagawa, I would like to give you the floor to see if you have any feedback on what we have heard so far. Obviously, it is important for people to understand that if I have to go and vote in seriatim on these items then I will, but an amendment will require four (4) votes from the body. The Bill is intact as it came out of Committee. These items will require four (4) votes and I probably will vote in seriatim when that happens. I am expecting the members who have introduced these potential amendments to share with me what they can agreement on when we go on recess. I will give the floor to Councilmember Kagawa or Councilmember Rapozo for any commentary at this point. Mr. Kagawa, you have the floor. Mr. Kagawa: Thank you, Chair. I originally wanted to go along with the Mayor and his deferral. I believe that the State and Federal government really are the ones that should be overseeing this type of legislation. However, it appears that with your commitment to get a decision tonight that the deferral is probably not there. I am just kind of concerned that we did a lot of work in Committee. We came up with a Bill that could garner four (4) votes and now we are here at 9:30 p.m. and we are looking at almost something way different than what we approved in Committee. I just hope that we can come to some kind of agreement or else let us refer it back to Committee. Thank you. SPECIAL COUNCIL MEETING 179 OCTOBER 15, 2013 Chair Furfaro: Mr. Rapozo, I will give you the courtesy of the floor. Mr. Rapozo: I guess I will reserve my comments for the end. I am assuming that we are going to take a vote tonight. Chair Furfaro: That is my intention. Mr. Rapozo: If it is going to be deferred and that is the wishes of the body, then we should probably try that motion first because we are probably looking at several more hours and if it is only going to arrive at a deferral, then let us entertain that first. I just do not want to be here to midnight just to end up with a deferral. We have done this before, but I just hate to go through all— because our Staff will have to be back in the morning. That is my only comment. As far as the Bill itself, I think I will just reserve my comments for the end. Chair Furfaro: That is fine with me. Mr. Hooser, and then Mr. Bynum. Mr. Hooser: Chair, thank you very much and I appreciate you sticking through it. It has been a long night for all of us. I feel that Councilmember Bynum and I put your amendments out, and addressing many of the same issues that had to be resolved. If we along with the Vice Chair and her co- introducer can take a recess and look at those to see wherever they could incorporate those into theirs and take into consideration our concerns, we can come out and vote on this Bill, and be done in a relatively short period of time. Chair Furfaro: JoAnn? Ms. Yukimura: I have some questions about the proposed amendments. Chair Furfaro: I have no problem allowing you to ask those questions of the gentlemen. I do want to make sure everybody understands that when we get through that piece, I want to break for half an hour to see what you can agree on. When we get into a roll of a vote, and I have already shared with you, I do not support a deferral. I support the portions that we have in the Bill that came out of Committee that deals with pesticides, but as it becomes more and more complicated and adding in other things with GMO issues, that is certainly some things that should be addressed through another Bill in my opinion. I just want to say that. I intend on voting on Bill tonight as it came out of Committee, but I will leave that to your group for discussion. You have questions for the gentlemen. You have the floor. Ms. Yukimura: Thank you. I have questions that will help me in trying to decide what to accept and what not to. Chair Furfaro: I understand that. Go right ahead. Ms. Yukimura: I do want to say that it is not just going to be Council Vice Chair and myself who determines this. As you have said Chair, this will be determined by vote of the body. In terms of property line of all dwellings, that means we would have to establish where the property line is. It is kind of SPECIAL COUNCIL MEETING 180 OCTOBER 15, 2013 easier to see where the dwelling is and up to the walls, rather than figuring out where the property lines are. Chair Furfaro: JoAnn, you still have the floor. Ms. Yukimura: It is a question. Chair Furfaro: Mr. Bynum, do you want to respond? Mr. Bynum: We have property lines already down to the square inch designated everywhere. Property lines make sense. Now dwelling, we do not know exactly where the dwelling is on each property, but we know where residential property lines are to the inch. Ms. Yukimura: You do? Mr. Bynum: Yes. Ms. Yukimura: So you can identify where it is on the land very easily? That is where you are going to have to measure from. You do? Mr. Bynum: May I respond? Ms. Yukimura: Please. Chair Furfaro: You need to ask me if you may respond. Mr. Bynum: May I? Chair Furfaro: You may respond. Mr. Bynum: I have spent hundreds of hours on our Geographic Information Systems (GIS) maps. Every property line is defined. You can measure it easily. Yes, it is very simple. That is the reason the property line makes sense in residential. On those agricultural parcels, which I identified weeks ago that we needed a provision for those parcels like Kaumakani, where the residents are all on one big parcel which is the purpose of Councilmember Hooser's amendments. This is a totally pragmatic and practical thing. Property lines in residential areas are easily defined. Dwellings on agriculture will be a little more difficult, but it will only be in those circumstances. Ms. Yukimura: Forgive me for being so ignorant, but I am not familiar with easily identifying property lines on land and I guess surveyors will tell me how easy it is. I just had to ask that question because we are trying to make this Bill easily enforceable. Chair Furfaro: I am glad you asked the question, JoAnn. Ms. Yukimura: On the EPHIS, you are changing "related to large commercial entities utilizing pesticides and genetically modified organisms." You taking out "crops" and saying "organisms." What was the rationale for that? SPECIAL COUNCIL MEETING 181 OCTOBER 15, 2013 Mr. Hooser: Everywhere else in the Bill says "organisms." It does not say "genetically modified crops." It says "genetically modified organisms" throughout the Bill. Ms. Yukimura: Okay. We are not talking about genetically engineered bacteria, which are organisms. I think we just wanted to distinguish crops from genetically engineered insulin, et cetera. The thing about special treatment— my understanding of the law is that it is not special treat when it is based on legitimate circumstances of difference. In fact, you mentioned that if we find in our study that we would make recommendations based on those differences by investigation. We have found, through our investigations, some legitimate differences in circumstances. Would that not qualify for a difference, for example, in hedge-like orchards? Chair Furfaro: Do one of you gentlemen want to respond to that? Mr. Bynum: I would not disagree. I am not saying that provision is not legal; I am just saying it is unnecessary. If you can avoid making distinctions for one particular person, that is better. If there were buffers on the roadside that would be eliminated, there would be no impact. I just think there is a better way to go. I am not saying there is anything wrong with that. I just do not think it is good policy and it is not necessary. We can set one standard that will work for all of these entities. Ms. Yukimura: I think there was some concern on the part of the companies that there would be a sign maybe every day on the highway. How is that going to help people? Mr. Bynum: May I answer? Chair Furfaro: If you ask me, then yes. Mr. Bynum: They are asking questions about... I am sorry. Can you repeat the question? Ms. Yukimura: There was a concern by companies that if you just relied on notification of signage that there would be a sign there every day. Mr. Bynum: The original Bill said seventy-two (72) hours. I later recommended making it forty-eight (48) hours. The Bill was amended to be twenty-four (24) hours. If you give a twenty-four (24) hour notification, Monday morning, the sign goes up that says, "We are going to spray Tuesday, Wednesday, Thursday, Friday this week." The sign is up there on Monday, Tuesday, Wednesday, Thursday, and Friday. They have a three (3) day window to spray. Why is this important? People want to be able to avoid that area if pesticides are going to be sprayed in proximity to the roadway. I do not want to impact the company's operations, so just give us roadside notification that empowers those individuals to avoid that potential expose injure. It will have no impact on your operations. The other thing is that I also have been talking to the seed companies and looking at ways to not needlessly impact their operations. I have also been talking to physicians who need certain things to treat their... I would hope that they would have equal consideration in this Bill. SPECIAL COUNCIL MEETING 182 OCTOBER 15, 2013 Chair Furfaro: JoAnn, do you have a comment? Ms. Yukimura: If you are talking about prospective notification, there may be signs. What we were talking about signage was saying "spraying" like the Department of Transportation. If you are going to say Monday, Wednesday, and Friday on a road sign, for one, it is more words and two (2), they may plan to spray Monday, Wednesday, and Friday, and then they do not spray and on those days people could easily go, but they do not spray because it is windy and so forth. It is not going to be real accurate information for people. Mr. Bynum: JoAnn, whatever position you take is a position you take. I am trying to work on something that is called a "precautionary principle," that when you have things that might hurt people, you act safely. Chair Furfaro: Mr. Bynum, we need to move on. She is asking the questions. I want to make sure everybody understands the intent of the Chair is to take a thirty (30) minute break. Mr. Kagawa: For numbers sake, can we just see who agrees with the Mayor that a one (1) month deferral is something that... he is the head of the County. He is asking us for some time to see if he can lessen the burden on the County government. I had some positive talks on Friday with the Department of Agriculture and the Department of Health. Although many may not feel the same way, I tend to hope that we can get some cooperation because the County cannot fund all of the responsibilities that I think our residents really want in the end. I think we are going to need that corporation from the State in order to satisfy all of the impacts on not only the peoples' health, but the environment. If we can at least see if we can get a deferral vote, I am very positive that in one (1) month, we will finally come to a conclusion that everybody can be really happy about. I do not see this as "kicking the can down the road." Thank you. Chair Furfaro: I want to make sure that we all understand that a deferral question has precedence by the rules over everything else we do here. I think we have an amendment now that gives the Mayor's group nine (9) months to implement things. I will suspend the rules and ask questions of the Administration on what was just presented. I do want to make sure that you understand, I suspend the rules to do that and if you want to go to a deferral vote and a deferral vote passes, it is the end of the business. I have already strongly stated by position. I just needed to share that with you. If somebody makes a motion and somebody seconds it and we call for a roll call, that motion has precedent over all other motions. Before I get to that point, I want to suspend the rules and see if the Administration has any questions as it relates to the discussion at the table. Mayor, this is specifically directed at the Administration if you have any comments. Also knowing in the provisions, the six (6) months going to nine (9) months. We are going to have to take a caption break, and then we will proceed. I am going to give thirty (30) minutes to the merging of amendments. Before I do that, Mr. Hooser, do you want the floor? Mr. Hooser: I was just going to suggest that we take a caption break, give thirty (30) minutes to the amendments, come back, continue discussion on the amendments, and vote on the amendments. Chair Furfaro: We are going to call a recess for ten (10) minutes. SPECIAL COUNCIL MEETING 183 OCTOBER 15, 2013 There being no objections, the meeting was recessed at 9:49 p.m. The meeting was reconvened at 10:06 p.m., and proceeded as follows: Chair Furfaro: We are back in session. Before we broke, there was some discussion, Mauna Kea, and I have asked you folks to come back up to hear some of your comments. In my mind, I want to get some real clarity about the question Ms. Yukimura raised about property lines. Although through metes and bounds and surveys, we can see the information. If we had a complaint filed about the distance, would that require us to send a surveyor out? There being no objections, the rules were suspended. Mr. Trask: Yes, I believe so. We would have to shoot the lines. I use pictometry a lot in the work that I have to do. Pictometry GIS comes with this disclaimer that it is not accurate; it is approximate. It is a tool for that purpose. When looking at five hundred (500), one hundred (100), or whatever the zone is, we would have to determine if it is criminal beyond a reasonable doubt, and the Prosecutors have to do that. If it is via civil complaint, the burden of proof is the preponderance of the evidence, but I would anticipate that we would have to shoot the lines with the surveyor. Chair Furfaro: That is what you would anticipate? Mr. Trask: Yes. Chair Furfaro: Okay. Thank you very much. I just wanted a follow-up on that based on the fact that we know what metes and bounds are available to us and so forth. The Councilwoman asked that question. It was worth asking a legal opinion. If we have a complaint that deals with the property lines, you are telling me that it is most likely going to be required of us to send a surveyor out. Mr. Trask: (Inaudible) foundation to do so, yes. That is separate and apart from this Ordinance. It is the rules of evidence. Chair Furfaro: Mr. Bynum. Mr. Bynum: Thank you for that clarification. I agree with you that our GIS metes and bounds are approximate. They are within plus or minus ten (10) feet probably. I just purchased a home and I could choose to have a surveyor come out and do the pegs if I wanted to pay six hundred dollars ($600). The people who purchased my home did that and guess what? The property line was right where they thought it was. I agree with you. I do not have any question that should we proceed to some kind of fine and that was challenged, we would have to in those circumstances do that. In terms of identifying where buffers are, in my view, those plus or minus few feet is enough. In terms of setting boundaries, I do not disagree. Let me turn this into a question. This would only be the case, should we actually move to some type of enforcement, either civil or criminal, and that enforcement was challenged. Then as part of the evidentiary, we would have to have surveyed lines. Is that correct? SPECIAL COUNCIL MEETING 184 OCTOBER 15, 2013 Mr. Trask: I will answer your question with the second prong. Yes, if we were to go to court and prosecute the case, whether in a criminal or civil venue, we would have to prove it according to the requisite evidentiary standard. How any Department would— the internal polices is setup in order to regulate it. They could decide to go plus or minus a couple of feet. I believe, and without confirming with the County Attorney, the County Attorney's Office position would that it would be good to establish that at the onset so you would know. You would know the five hundred (500) feet. It is more a policy call in how thorough whatever Department who ends up with the task would do it. Mr. Bynum: Thank you. You have answered my question. Mr. Trask: Okay. Chair Furfaro: Thank you for coming up to answer mine. I do not know if you are part of this group here, but I have suspended the rules to get feedback from you on any of the dialogue you heard about these additional amendments. Also granting that one of the amendments takes it for nine (9) months from six (6) months. I think there was a question about other permitting issues, but it is really your opportunity now to give us some feedback before we move forward. STEVEN A. HUNT, Director of Finance: Steve Hunt, Director of Finance for the record. I was actually going to speak to some of the GIS pitometry issues regarding the property lines. Another thing that sort of came to light to is that properties are not always square or rectangular. Sometimes they have arcs or are a little triangular. I know as a general rule, the crops are typically planted in a fashion that is more of plots and being rectangular, so I do not know in terms of enforcement whether it is expected that the buffer follow the shapes of other subdivisions or properties surrounding, which may actually change the way that the buffer is impacted. There may be deeper buffers if they have to meet the shallowest point for the five hundred (500) feet. It may actually impact them a little bit more. The other thing that is not really explicit in the Bill is whether there are any tolerances. It is enforceable at four hundred ninety-nine (499) feet? If it is a five hundred (500) feet buffer, is there a fence line if you are over six (6) inches so it is something that you are going to have to tear down? Is there any tolerance to that? On the funding side, it sounds like permits may or may not be an issue here, but I heard discussion at an earlier meeting last Tuesday that talked about using the CIP Bond Fund for the study. I want to make it real clear that that is not an eligible source. It is not an infrastructure project that would jeopardize our total sixty million dollar ($60,000,000) bond offering that we have in our tax-exempt status if we are going to go out for something that is not eligible for bond funding. Neither the study nor the EPHIS would be a CIP project. I just want to make that real clear when we get to the funding portion of this that it is not an eligible tool to fund this. Chair Furfaro: That is based on the fact that there is no visible asset obtained qualifying as an additional asset. Mr. Hunt: Correct. It is not capital asset in nature and it does not result in any infrastructure asset for the County. It may be for the good of the County, but because it does not result in actual physical construction, a study that is an architectural study or an EIS that actually precedes something that is SPECIAL COUNCIL MEETING 185 OCTOBER 15, 2013 going to be built would be eligible, but if there is no construction at the end of it, it would not be eligible. Chair Furfaro: George, do you have any comments about the narrative? GEORGE COSTA, Director of Economic Development: Yes. Aloha, Chair Furfaro and Councilmembers. A lot of the issues and concerns being brought up right now are exactly what I was concerned with when I first got the Bill and approached the Mayor for a deferral to work through exactly what we have here. With the disclosure notice, it sounds simple enough where these reports would be either downloaded or E-mailed to the Office of Economic Development. Depending on what time of day we establish as the deadline, I am concerned with that because I believe they do spraying on the weekends so we would need to have somebody physically in the Office. I know there was some thought of being able to download it external of the County website. I know for me personally, I work from home and I try to access the County infrastructure and I cannot because of firewalls or protective reasons. We have to literally be physically in the Office to do that. That may pose a concern. Also, there is the funding issue to bring on another person that can work the weekends. The other thing was on the study itself, I know we need to work through issues with that. That would have been my main concern from the disclosure portion of it. Obviously, the buffer zones were already discussed. Chair Furfaro: Thank you. Larry, you have the floor. LARRY DILL, P.E., County Engineer: Good evening, Council Chair and members of the Council. For the record, Larry Dill, County Engineer. It has already been spoken about the buffer zones. In Public Works, we often deal with issues of encroachments, right-of-way, and things like that. When we get down to brass tacks, we have to send our surveyor out to determine whether or not an encroachment exists, and I would use that as analogy to get to the point where any enforcement might be required. However, well prior to that, the County will have to manage this, so there will have to be some good way to understand where property lines are. Often in the field, that can be difficult to see where the property lines actually are. That is a challenge that we are regularly faced with in Public Works. I also want to share that we have just been presented with these amendments, as we all have, and I understand the situation here. It is difficult for us to do you a good service here and give you good feedback when you have not had a good opportunity to review and digest this. Having said that, I do understand the situation tonight. Chair Furfaro: Okay. I have a question from Vice Chair, and then a question from Councilmember Yukimura. Ms. Nakamura: Larry, I wanted to just follow-up on your comment. Would it be easier for inspectors to measure by the structure? Let us say a dwelling or the structure of the school versus the property line? Mr. Dill: Out in the field, it is obvious where say the closest approach of the structure is, whereas it may not be that obvious where the property line is. I would say it is easier to go from the structure. Ms. Nakamura: Thank you. SPECIAL COUNCIL MEETING 186 OCTOBER 15, 2013 Chair Furfaro: Councilmember Yukimura. Ms. Yukimura: That was my question, so it has been answered. Thank you. Chair Furfaro: Mauna Kea, is there anything that you want to add to the amendments that you have heard so far here? Do you have an additional comment, Mr. Dill? Mr. Dill: If I may? Chair Furfaro: You have the floor. Mr. Dill: Further to Councilmember Nakamura's question about measuring from a structure; during the regular management— if it gets down to enforcement, I envision that we will have a two (2) man survey crew out there ascertaining exactly what that distance was to find out whether or not it was inside a buffer zone. In the regular day-to-day management in Public Works, we work to get people into compliance so we try to help them out and say this is where we need to be. In order to provide that type of assistance to them and to help them be in compliance, I am not sure how we would help them do that, short of having a survey crew out there measuring. I guess they could have a five hundred (500) feet tape if we needed to. That is just one of the challenges that I see here. Ms. Nakamura: Thank you. Chair Furfaro: Councilmember Hooser. Mr. Hooser: Thank you. I thought it was the agricultural entity's responsibility to establish the buffer zone. I would think they would go to their property line and they would know where that is, and go back five hundred (500) feet. They would not go on to property line to measure from my house. They would go to their property line which abuts my property and then move back. That is how I envision it would work. They would be the ones responsible for planting their crops and not spraying, and they would know where their property lines are at. I do not know why we would think they would come onto my property with the tape measure against my house. Mr. Dill: It all depends on how you end up with your Bill and your Ordinance. Mr. Hooser: In terms of measuring from the property line and measuring from the dwelling. Mr. Dill: Okay, but my point is that if it comes to a point of enforcement, we are going need to verify and that is why I bring it up. Mr. Hooser: Okay. From the County's perspective, it is easier for you to measure from my house than it is to measure from the property line? Mr. Dill: Yes, that is correct. SPECIAL COUNCIL MEETING 187 OCTOBER 15, 2013 Mr. Hooser: Okay. From the person who is supposed to be doing the buffer zone, they would be measuring from their property line back five hundred (500) feet? Mr. Dill: That is dependent upon how you write your law. Mr. Hooser: Thank you. Chair Furfaro: Councilmember Yukimura. Ms. Yukimura: This is just a follow-up. The language would say "no crops may be grown within five hundred (500) feet of any school, medical facility, or adult boarding home," so it seems to me that you would define where the medical facility or school is and then go five hundred (500) feet from that. Mr. Dill: I would need the language in the law interpreted. First of all, the way it is written, is not clear to me. Is that a building or is that a property in the way you just read it? Ms. Yukimura: "No crops may be grown within five hundred (500) feet of any school, medical facility, et cetera." Mr. Dill: To me, I cannot tell if that means the building or the property, first of all. Is that defined in there elsewhere? Ms. Yukimura: No. Where the property line was going to be used was on dwellings. Rather than dwellings it was... let me see how it was going to be read. "No crops may be grown within five hundred (500) feet of any dwelling." Councilmembers Bynum and Hooser were saying it should be within five hundred (500) feet of any property line... I guess of the dwelling. It would be going from a building wall to five hundred (500) feet to make sure there was not any crop in that distance, or it would be from the boundary line where the dwelling is located. Mr. Dill: Correct. I am just saying that in order to do it from the property line, certainly if it got to an enforcement level, we would probably have to do a land survey. Ms. Yukimura: Okay. Thank you. Chair Furfaro: Okay. Do you have any more to share with us on the amendments? I intend to go into a recess for half an hour to see what the individuals can agree on. Then we will vote on them individually. Mr. Costa? Mr. Costa: Chair Furfaro and Councilmembers, some of the concerns I shared earlier on, and I shared with some of the people in the audience, was one, if the Bill is passed, the expectation that this is going to be instantaneous... and I think for the most part, people said, "No, we realize it would take a while to develop." Now whether that "takes a while" would be one (1) month, two (2) months, or three (3) months, and as we pointed out, it might be a nine (9) month period to work towards resolving a lot of those concerns. One of the scenarios, because my Department was involved with the Waimea Canyon Air Study, is that you have the school and if you have the established property line and the buffer zone where the seed companies are operating or planting. If a call or SPECIAL COUNCIL MEETING 188 OCTOBER 15, 2013 complaint came in and said, "We are not feeling well. We think there is a smell or something." Whoever is responding, whether it is in the Office of Economic Development— and one of the ideas was to have it in the Fire Department and let them be the first responders. When they approach the scene, hopefully there is evidence there of the spraying and that can be determined right away. If not, then it will be more crucial to establish these boundaries. One concern that I have is with the case of Waimea Canyon Intermediate School, you have the hospital right next door. You have a neighborhood that is only a hollow tile wall separating the school from the residential area. Say if Mrs. Kinoshita is out spraying malathion in her yard, is she going to be subject to fines and penalty. I want to pose that question. Ms. Yukimura: I am not familiar with the Department of Agriculture rules as to this, but it would come under Department of Agriculture rules and not under this Ordinance or law, at least as I understand it. Even pesticide smelling and drifts, to me that is a Department of Agriculture complaint that has to be addressed. We are saying measurable buffers, no crops. That is why we are trying to keep the simplicity of a no crop buffer. Otherwise right now, the Department of Agriculture Inspectors has the right to go onto properties to inspect records. We do not have any of those rights right now that I know of, unless we put them in the Bill. We would have to check with the Attorney if we could do that. That would go to the preemption question again. Mr. Costa: That is why I just wanted to make sure that the general public understood that. If it is an emergency situation or we need to resolve it or investigate, there is going to be a point where we can declare if it is the Department of Agriculture, so we can step back. I just wanted to make sure we are clear on that. Chair Furfaro: George, I am going to give you my set of the Department of Agriculture rules and the law. Mr. Costa: I have that. Chair Furfaro: Use it. I am serious. You find the situation where you need something investigated according to the rules that are on the books with the State of Hawai`i— use it. My comment about first responders or our Hazmat group and so forth, obviously, I believe they could be available, too. Just do not say to the State that we are not holding you accountable for things that are within your agricultural division and are rules and laws. That would be my response. Mr. Costa: That is my point, Chair. They should be held accountable and they should be responding. I want to ensure that the public knows that. Chair Furfaro: I understand. Thank you very much, George. On the amendments— that is what I have suspended the rules for. Mr. Dill: Chair, when comparing these two (2), I am noticing that in one of the sets, there is a provision for penalties in there and there is no provision for penalties in the other, unless I am missing something. SPECIAL COUNCIL MEETING 189 OCTOBER 15, 2013 Chair Furfaro: We have not decided how they are merging yet. Mr. Dill: Okay. Chair Furfaro: Then we will vote on that. I want to go into a recess. I am going to call our meeting back to order. I thank you for your feedback on the amendments. We are going to be in recess. Jenelle, may I say half an hour? Okay. We are going to be in recess to work on these. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Bynum: I just wanted a little discussion about the presentation. I did not have questions. Is that okay? Chair Furfaro: You guys are dismissed. Do you have a question, Mr. Bynum? Mr. Bynum: I just want to make a couple of comments. Again, I very much appreciate Administration being here and going through these technical things. However, these are Administrative Rule issues. Once we pass the Bill, these kind of technical details are routinely worked out through Administrative Rules. These are all logical questions for the Administration to be asking, but that the right time to do that, in my opinion, is after we pass this Bill. The last thing about property lines— we have been through this on other issues. Property lines are the pragmatic boundary from which to measure. They make sense. They are perfectly accurate. If you get into a dispute with your neighbor about encroachment or something, you have to have the surveyor come out there. I do not believe we are going to have to do that very often, if at all, if we do these rules properly. Property lines make sense. Mr. Katayama and I discussed that in our first meeting and he said that property lines are the only thing that makes sense. It gets way complicated when you go beyond that. We made that distinction just for the dwellings on those. Thank you very much. Chair Furfaro: Mr. Kagawa, do you want to comment? Mr. Kagawa: I think the concern I see from some of the Administration personnel and managers is about how they are going to enforce some of these buffers, et cetera. Just in my talks on Friday with the Department of Health's Deputy Director Gary Gill, these are the things that he is looking at like an Air Quality Inspector, Soil/Groundwater Quality Inspector, and a Health Concern Clerk that would handle any calls from the public that has a health concern that they want the Health Department to look into. They already have an Epidemiologist and the support staff on Oahu. I just talked to Thomas Matsuda from the Department of Ag on Friday also and he is looking at an additional Agriculture Inspector, Education Specialist, and another Clerk to help the person that Mr. Hooser got the information from. I believe her name is Avis. She showed me the files. She is actually a Waimea Valley resident from the Hashimoto family. Klayton guys know who that is. She needs help in order to process these files, which are taking a long time. We need answers in a day, in a week. These are the things that they are looking at adding and I think these are the commitments that the Mayor wants to have. Otherwise, we need to maybe go with a more severe bill. I think we are reacting to Councilmember Nakamura moving on, but it is just the SPECIAL COUNCIL MEETING 190 OCTOBER 15, 2013 time it takes. I think we need to let the Mayor do what he needs to do in order to save the County resources and County money, and do it in the best interest of the County. That is why I am saying I support the Mayor in searching for these. I just got these things in one meeting and they are not solid. I think the Directors still need commitments from the Governor that he will actually fund those. I think if we pass the Bill, we risk them not stepping up and filling these positions. In the end, we need that cooperation with the State and the County in order to be effective. Thank you. Chair Furfaro: Thank you. We are going to be in recess until two (2) minutes after eleven (11). There being no objections, the meeting was recessed at 10:32 p.m. The meeting was reconvened at 1:22 a.m., and proceeded as follows: Chair Furfaro: Aloha, everyone. I want to just cover some procedural pieces here so we all understand what is going on. An amendment was introduced for a Bill that passed out of Committee. For the Bill that passed out of Committee, we will eventually get to vote on it, but we have to deal with the amendments first. Since the first amendment was introduced by the two (2) ladies, I need to ask them to withdraw that amendment if they are introducing a new amendment, and that is based on the fact that Mr. Hooser shared some of his intent that if they could incorporate it in to the new amendment, we would try to do so. As I said before we went through earlier, I would like to get to a vote on the amendments. It is up, down on the amendments. If other Councilmembers have amendments they can introduce, I will give them three (3) minutes to share their amendments, and then I will call for a vote. We have to go through that process before we get to the Bill that came out of Committee. I also want to point out that no matter what the outcome is as we go forward, this Council may still have to deal with the Resolution after the vote. Please understand that we also have to secure the building and this group has to be back for our regular Council Meeting tomorrow morning. Please keep your containment one way or the other. Let us finish our business for the night. Let us also be able to secure the building. If you want to meet outside, I can appreciate that, but I have to get Staff turned around and take care of our regular Council business tomorrow. On that note, to the Vice Chair and Councilmember Yukimura, I need you to withdraw the original amendments that were issued if that is your intention. Ms. Yukimura withdrew her motion to amend Bill No. 2491, Draft 1 for Amendment#1, (Attachment A) and Ms. Nakamura withdrew her second. Chair Furfaro: Thank you. Is there a new amendment being introduced? Ms. Nakamura moved to amend Bill No. 2491, Draft 1 as circulated, as shown in the Floor Amendment which is attached hereto as Attachment C, seconded by Ms. Yukimura. Chair Furfaro: Mr. Bynum does not have an amendment. I believe we are putting it up on the board at the same time. You can take mine and I will watch the board. Who is going to walk us through this? Ms. Nakamura: JoAnn. SPECIAL COUNCIL MEETING 191 OCTOBER 15, 2013 Chair Furfaro: JoAnn, are you going to do that? Ms. Yukimura: Yes. Chair Furfaro: Very good. JoAnn, you have the floor. Ms. Yukimura: Thank you. The first proposal that Councilmember Hooser made was on page two (2), letter (h). You will see the third paragraph there. We accepted part of it, rounding off the numbers. We did not accept a portion that says "of the three (3) categories, only agricultural operations involve open-air application" just because there was some question about the termite treatment, which does actually let the gas off into the air. We just wanted to quickly go through this and we did not have time to verify. On the second amendment, "nurse practitioner," on page five (5); we have accepted that. I think we kept the parks proposal, "State of Hawai`i, Federal Government." Did we not? Ms. Nakamura: We are supposed to. Ms. Yukimura: Okay. We can add that back in. Chair Furfaro: Hold on just a second. Staff, did you catch that query? Jenelle? Okay. Continue, JoAnn. Ms. Yukimura: Then following that, there was a proposal for a very complex definition of "perennial streams." It was so technical and we just have no time to understand it, and without understanding it, we do not know what its implications are. We do not know how you are going to measure it so we did not feel that under this limited timeframe we could feel comfortable to adopt it. We actually went back to the definition of"stream" which we will come to later. It talks about a defined channel and that makes it easier to measure from and enforce. Then the next one is "physician," which we have accepted and you will see the implications of that later. I think we kept "significant impact." You will see that we have returned to the definition of"stream," which means "flows in a defined bed or channel." We thought that would make it much easier to enforce. We are open to any further discussion that can enlighten us, but given the time constraints and our understanding, that is what we have chosen. Then on "mandatory disclosure of pesticides and genetically modified organisms," we felt that in the top paragraph (a)— this is on disclosure yet. In the prior calendar year, it is there but just with different language so we kept ours. We did add under "pre-application good neighbor courtesy." Aida, can we come back down to "pesticide pre-application good neighborhood courtesy notice?" We supposed to have put in there the "revocable permit holder." I do not see it though. Where is it? Mr. Rapozo: It is right there in the second highlight. Ms. Yukimura: Where is it? Mr. Rapozo: In the second highlighted paragraph. Ms. Yukimura: Okay. The revocable permit holder is there with a little bit of explanation. Then we did move the courtesy notice where Councilmembers Hooser and Bynum wanted to have notice for licensed physicians SPECIAL COUNCIL MEETING 192 OCTOBER 15, 2013 or nurse practitioners. We actually created a new section, if we can move down, Aida. Let us take the first one. "Pesticide Post-Application Public Disclosure." There was a proposal to add the material safety data sheet and the label. We understand those are voluminous like pages and pages so instead, we are putting it in the EPA registration number and trade name, which would allow people to go to the EPA website and get access to the label and the material safety data sheet. We did not quite understand "total volume of applied material," so maybe if the proposers want to explain that, we can go back to that. Then we come down to the special additional section where it deals with "Pesticide Post-Application Urgent Emergency Care Disclosure." We have crafted it for the health practitioner, requiring that "each commercial agricultural entity shall establish an emergency response hotline to be made available to any licensed physician or nurse practitioner practicing in association with a clinic, medical facility, or emergency center." Also, that there would be a response to a request within six (6) hours for those who have a documented medical need. The entity must provide the following information, which is basically the post-application information. We hope that will be helpful to the practitioners. As to notice of genetically modified organisms, we have accepted the suggestion that the first report shall be due on the date that this Ordinance takes effect since there is a six (6) month period of taking effect. Can we have the bottom of page nine (9)? Thank you. You see up above "it shall be mandatory for all commercial agricultural entities to disclose the growing of genetically modified organisms." We did not include the information as to species, whether the genetically modified organism is experimental or the general purpose of genetically modified organisms. We did not include applicants to Federal agencies for permits because we understand that to be on a USDA website by island and by applicant. Then in pesticide buffer zones, we adopted the idea of"prior calendar year." We felt it was adequate that there would be no pesticide applied to ground cover... to say that in the leading paragraph. Then we kept the definition of"buffer" by "no crops." We kept the one hundred (100) feet buffer for parks. We kept our definitions of "buffers." I want to say that we did consider Dr. Berg's proposals for broader buffers from the shoreline, perennial streams, and other state waters, but when I asked him whether he had any data suggesting problems, he said "no." We are hopeful that the study will give us better data and then at that point, we can change these buffer requirements. We did accept and we are open to discussion on this, the last proposal about roadways, but we made it one hundred (100) feet instead of five hundred (500) feet. "No crops may be grown within one hundred (100) feet of public roadways," but if signs are put up, then it is none at all... signs that will notify people within twenty-four (24) hours. Going on to the EPHIS, we changed "the EPHIS shall make recommendations that include" to "may make recommendations that include." We eliminated that "upon the completion of EPHIS, the Council shall reconsider the buffer zone requirements" because we feel that is both a given and that there will be other requirements to look at based on the data that we get. We did not include funding sources because we think that we will look at funding sources anyway... everything to get one million dollars ($1,000,000) in our very strapped budget. We will be looking at everything. We also feel that if we can get a real community based EPHIS, there will be people and other entities that are willing to fund it like foundations and maybe Hawai`i Seed. Or what is that other one? Series? I mean if we want the study, but we will not depend on it. We will come up with the moneys. We are committed to doing this study. Then we did not include permitting because we feel it is premature. The County may develop and implement a permitting SPECIAL COUNCIL MEETING 193 OCTOBER 15, 2013 process. We already may do that, and we will do that if the study shows that it is merited. I think that was it. Chair Furfaro: Very good. I want to make sure that everybody understands that we spent almost two (2) hours trying to merge these additional amendments to the Bill. I am going to be calling for a vote after I go around the table for discussion by members once. If other members have additional amendments you want to introduce after we spent two (2) hours after attempting to merge both, then you can introduce additional amendments. I will go around the table starting with Mr. Hooser. Mr. Hooser: I just had a question, Chair, before I make my remarks. Chair Furfaro: Sure. Mr. Hooser: On page eight (8), Section 22-22.4, I am a little concerned because the words "no pesticides of any kind" have been stripped out of the Bill. At the very beginning of the disclosure paragraph is the only place that it says "disclose the use of all pesticides." All the other subsequent paragraphs do not really refer to that. They talk about disclosure, but they do not really say "all pesticides." I want to be clear that this is not just restricted use pesticides. It refers to restricted use pesticides and the subsequent line says "use of all pesticides," so it can be interpreted that this is all restricted use pesticides. I was wondering if we could include "disclose the use of all pesticides "of any kind" during that following year" so we avoid misunderstandings down the road. It is my understanding and I think it is the intent for this to be a disclosure of all pesticides. I think that really leaves it open. If those three (3) words could be inserted to say "disclose the use of all pesticides of any kind during the following calendar year." I think it would make a significant difference to future interpretations of this. Thank you. Chair Furfaro: Okay. That question was posed to the two (2) introducers of the amendment. JoAnn, you have the floor. Ms. Yukimura: I do concur that the intent is to disclose the use of all pesticides. We actually mean "chemical pesticides," right? There are other kinds of pesticides. Mr. Hooser: Pesticides are defined in the Bill. Ms. Yukimura: Yes. Pesticides as defined in the Bill include "organic pesticides" because it says any substance or mixture intended to prevent, destroy, repel, or mitigate any pests. I think the intention is chemical pesticides, right? Mr. Hooser: If I may, Chair? Chair Furfaro: You may. Mr. Hooser: The Bill is limited to only commercial agricultural entities that use a certain minimum threshold of restricted use pesticides and requires a disclosure of all pesticides, so that would include everything that is in the definition. It is my belief that that is the intent and I just want to make sure it is enforced that way and by adding "of any kind" just SPECIAL COUNCIL MEETING 194 OCTOBER 15, 2013 reinforces that all pesticides gets disclosed by these agricultural entities that meet the threshold. That was in the original Bill and I believe that that is the intent. Ms. Yukimura: You mean all organic pesticides, as well? Mr. Hooser: I mean all pesticides that are defined within the Bill as pesticides. Ms. Nakamura: I do not have any problems with that. I think that was the intent. It says here "to disclose of use of all pesticides." Mr. Hooser: Right, so if you could add those three (3) words, I think that would just... Ms. Nakamura: I do not have any problem with that. Mr. Hooser: Thank you. Ms. Yukimura: I just hope there are no unintended consequences. Chair Furfaro: Go ahead, Mr. Bynum. Mr. Bynum: I just have a process question. Is it your intention that we are going to vote this straight up or down? If we wanted to make modifications, that would be a subsequent amendment? Chair Furfaro: You can introduce something, yes. That is your privilege. Mr. Bynum: Subsequent to this Bill? Chair Furfaro: Yes. Mr. Bynum: We are discussion possible amendments to this? Chair Furfaro: I have already discussed possible amendments to this when Mr. Hooser wanted merge his items. Mr. Bynum: Okay. Chair Furfaro: This is the outcome. I would like to vote on this. All members have an opportunity to get an up or down vote on other amendments. JoAnn? Ms. Yukimura: I just want to point out that Councilmember Hooser used a method which is available to you, which is if you make a suggestion and it is accepted by the makers of the motion, it can be incorporated. It is like a "friendly amendment," so it just becomes part of it. Chair Furfaro: That is your interpretation; that is not the Chair's interpretation. I want to get this first amendment out of the way. If there SPECIAL COUNCIL MEETING 195 OCTOBER 15, 2013 are other members that want to introduce it, whether it is friendly or not, it is going to show up in the way the vote goes. Ms. Yukimura: Okay. That is fine with me. Chair Furfaro: Mr. Kagawa. Mr. Kagawa: I recall at the last Committee Meeting before we started the meeting, your directions to the Committee was that all amendments be done in Committee. If we are going to go further into amending these amendments and bringing on further amendments, I would suggest that we move to another day because I do not feel I am really thinking straight after seventeen (17) hours or whatever it has been. Let us either make a decision to vote on these before us or let us push it forward. Chair Furfaro: It is my intent is to try and vote on these amendments and get to the Bill that came out of Committee. Ladies, are there any further commentary? Mr. Bynum. Mr. Bynum: So we are just going to have one discussion and vote, right? Chair Furfaro: Yes. Mr. Bynum: I want to thank the Councilmembers for working on this. I would strongly suggest that if you do not like that definition of "perennial stream," then go back to the "perennial stream" definition that I put forward initially. However, I will vote for your stream definition, but I want you to know that it is going to include a bunch more places. It is going to make it more... so that is fine. I am deeply disappointed that this base number remains at one hundred (100). This is my belief that the first one hundred fifty (150) feet really have no protected impact because it is already setback that far on a practical basis. I am talking one hundred (100) period from anything. I will support that if that is best we can get, but I am deeply disappointed that we are going to establish buffer zones and we are going to deal with the legal challenges that we assume will come, so why not make them meaningful at two hundred fifty (250) feet or three hundred (300) feet because that will actually help offer further protection to our community. If we are going to err, let us err on the side of caution. If we are going to take the hit and deal with the legal challenges about buffer zones, let us make them at least meaningful. I have showed the graphics which JoAnn asked me to print out, and I will show again that even if the buffer zones are in place, it has very little impact on the usable land. I am deeply disappointed we would not have a better base number to start from. Those are just my comments. I will be happy to vote on this up or down. I would like to offer not a lot, but one (1) or two (2) amendments for consideration. Chair Furfaro: Well, we need to take a tape change. Nobody move. Actually, I am going to make it a ten (10) minute recess so that individual Councilmembers can prepare their additional amendments. There being no objections, the meeting recessed at 1:49 a.m. The meeting reconvened at 2:10 a.m., and proceeded as follows: SPECIAL COUNCIL MEETING 196 OCTOBER 15, 2013 Chair Furfaro: We are back from recess. Mr. Hooser, you have the floor to explain your amendment. Mr. Hooser: Thank you, Chair. My amendment is three (3) words that I raised earlier, "of any kind," to be placed on page eight (8)— "disclose the use of all pesticides" and insert "of any kind." I believe Staff is writing that up and that is my amendment. Chair Furfaro: I am going to refer to your amendment as amendment number four (4). Mr. Hooser: Okay. Chair Furfaro: Mr. Bynum, do you have an amendment being written up? Mr. Bynum: I do. Chair Furfaro: Can you want to tell us about it, please? Mr. Bynum: Yes. It is pretty straightforward. In the four (4) instances where the Bill says "one hundred (100) feet," this amendment changes it to "two hundred fifty (250) feet." Chair Furfaro: Okay. I will refer to your amendment as amendment number five (5). JoAnn, would you want to tell us what these changes are coming up in number three (3) because that could or could not affect the entertainment of amendment number five (5)? Ms. Yukimura: We were trying to accommodate the requests of Councilmembers Hooser and Bynum, so we are proposing to amend our amendment by adding those three (3) words and also by going back to the definition of "perennial waterways" rather than "streams." We do not have the two hundred fifty (250) feet in there, but we do have the definition of waterways that Mr. Bynum wants. Ms. Nakamura: Chair, I just heard from Staff that we can put it up on the screen and they are printing it out. Can we put it up on the screen and describe it further? Chair Furfaro: That is what we will do. On a housekeeping note, I went to public school in the Territory of Hawai`i, okay? I went to a very good public school in Wai`anae. If you do not understand my point of asking for separate pieces so we can move forward, please ask me for some clarity. That is all I am asking. Let us put this up on the board. Ms. Nakamura withdrew her motion to amend Bill No. 2491, Draft 1 for Amendment#2 (Attachment C) and Ms. Yukimura withdrew her second. Ms. Nakamura moved to amend Bill No. 2491, Draft 1 as circulated, as shown in the Floor Amendment which is attached hereto as Attachment D, seconded by Ms. Yukimura. SPECIAL COUNCIL MEETING 197 OCTOBER 15, 2013 Chair Furfaro: Thank you. Aida, do you know what piece we are trying to show on the screen? It is up there. Okay. JoAnn, you have the floor. Ms. Yukimura: Thank you. In the fourth line on the right hand side, you will see the words "of any kind" as requested by Councilmember Hooser. We have to go back to "waterways." We have taken out "stream" and we are putting in "perennial waterways" which is in Draft 1, so you do not see it. It is already in Draft 1 so it is back there. The references in the rest of the Bill where they said we had "stream" is now changed to "waterways." No? We did not change it? Yes, it is there. Thank you, Aida. Chair Furfaro: Okay. Mr. Hooser, may I ask that with the verbiage that was presented on the board, are you satisfied with your potential amendment number four (4)? Mr. Hooser: My three (3) words look fine. Thank you. Chair Furfaro: Mr. Bynum, have you seen what they are proposing under the definition there? r Mr. Bynum: Yes. That is fine. Thank you. Chair Furfaro: I am going to go to waterways now, which is amendment number five (5) proposed. Are you satisfied with that? Mr. Bynum: For the definition of "waterways," I think that is an appropriate one. Chair Furfaro: Okay. Now on the footage? Mr. Bynum: Is it being circulated? We will vote on this one first? Chair Furfaro: Yes. I just want to hear if you are not satisfied with the distance yet? Mr. Bynum: No, I am not satisfied. Chair Furfaro: That is what I want clarity on. This is amendment number three (3). I am going to be calling for the question here. I have a motion by Vice Chair Nakamura and I have a second by Ms. Yukimura. Am I correct? Did I get that right? Ms. Yukimura: Yes. Chair Furfaro: Okay. I would like to go and ask for roll call vote on this for amendment number three (3). The motion to amend Bill No. 2491, Draft 1 (Attachment D) was then put, and carried by the following vote: FOR AMENDMENT: Bynum, Hooser, Kagawa, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, SPECIAL COUNCIL MEETING 198 OCTOBER 15, 2013 AGAINST AMENDMENT: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. Chair Furfaro: There are seven (7) ayes on amendment number three (3). Will there be no amendment number four (4) from you because it is now covered? Mr. Hooser: Yes, Chair. The items that I wanted to amend, I proposed, and was rejected by the two (2) co-introducers of the other amendments in large part. I do not think it would be good use of our time for me to reintroduce those and have discussion on those amendments. I am disappointed they were not included, and felt that they would have added a lot of value to the Bill but they were chosen not to be included, so I will not be consuming more time with those. Chair Furfaro: Thank you. Is the next piece that was handed out, which is referenced as amendment number five (5) from Mr. Bynum ready? Mr. Bynum: Yes, Sir. Chair Furfaro: Mr. Bynum, you have the floor. Mr. Bynum moved to amend Bill No. 2491, Draft 1 as amended, as circulated, as shown in the Floor Amendment which is attached hereto as Attachment E, seconded by Mr. Hooser. Chair Furfaro: Okay. You have the floor to discuss your piece. Mr. Bynum: I will make this very quick. It changes this base figure of one hundred (100) feet to two hundred fifty (250) feet. It says "no crops shall be grown within two hundred fifty (250) feet of any park. The commercial agriculture entity has an approved Soil and Water Conservation Plan that explicitly demonstrated no pesticide drift on the dwelling, then no crop may be grown within two hundred fifty (250) feet of any dwelling." Same with "no crops may be grown within two hundred fifty (250) feet of any public roadway." But it keeps "except that this restriction shall not apply..." and it keeps those other language, but makes the basis figure of two hundred fifty (250) feet. It also does that with two hundred fifty (250) feet of any shoreline or perennial waterway. I just want to show one graphic that I showed three (3) weeks ago really quick, if we can put it up on the screen. I have the hard copy right here. Chair Furfaro: Do we already have this? Mr. Bynum: I presented this three (3) weeks ago. The graphic that is going to go up is a huge agricultural parcel on the west side which several companies have leases on. This is the whole west side; Polihale; all of that Mana. As soon as we can see, I will make my point and we can call for the vote and be done. While we are waiting for it to come up, I will keep talking because as I said earlier, I really wanted to make it different. I hope you can see this. That is all one large parcel. Portions of it are leased by the seed companies. I know BASF and I believe Syngenta and Dow all have... this is a five hundred (500) feet buffer on the SPECIAL COUNCIL MEETING 199 OCTOBER 15, 2013 road. This is the road to Polihale. That is the road up to the Canyon from Kekaha. You see this huge parcel that is only— this is at five hundred (500) feet. I am saying let us go to two hundred fifty (250) feet and if you do notification, then none. Under this, even though the numbers are two hundred fifty (250), this parcel will have absolutely no impact. Even at five hundred (500) feet, it only had this little bit. I do not know why we cannot in the name of caution say let us make this buffer zone a little bit bigger. It is not going to be a deal killer for these companies and the work that they are doing. Most of that two hundred fifty (250) feet already does not have things growing in it. This one hundred (100) feet is not meaningful in my opinion. I am done. Chair Furfaro: Thank you. Members, I will take discussion on this from each member on this amendment before we call for the vote. JoAnn, do you want to speak? Ms. Yukimura: Where is the Waimea River? Mr. Bynum: It is not on this parcel. This is Kekaha/Mana. Ms. Yukimura: My point is that you are not showing the issues where there are actually more houses and more conflicted areas, so we cannot really— yes, right here it does not look like there is any problem but in the others, there may be. Also, if you are willing to go to nothing on a roadway, what difference does it make between one hundred (100) feet and two hundred (200) feet? Nothing on a roadway, as long as you have signage. Now I agree that there are issues about park. The dwelling— if we are saying that the Conservation Plan has to show definitely... and has to be developed so there is no drift on the dwelling, if you adhere to the plan, then it seems to me that one hundred (100) feet is a good buffer of safety beyond that. The park, I agree, is a judgment call and I hope when we get better... if you do this for a park, then you have to exempt those crops that are hedged and have a spray that is less than two (2) feet because it does not make sense to have a two hundred fifty (250) feet buffer when it does not even go twenty (20) feet. Ms. Nakamura: Call for the question. Mr. Hooser: I would like to get out of here, too, but this is important. These buffer zones went from five hundred (500) feet to nothing. I think it warrants a discussion about trying to split the difference and maybe go to two hundred fifty (250) feet, if I may, Chair? Chair Furfaro: Mr. Hooser, I indicated that we would go around the table and everyone will have one chance. Mr. Hooser: Thank you. Chair Furfaro: I do and I will respect the Vice Chair's call for the question after everyone has one chance. Mr. Hooser: I appreciate that. I did not mean to snap. It has been a long night. SPECIAL COUNCIL MEETING 200 OCTOBER 15, 2013 Chair Furfaro: You have the floor. Mr. Hooser: Thank you. I stand by what I said. We started with five hundred (500) feet and we started to look out for the public interest. We end up with one hundred (100) feet because we do not want to cost anybody any money. I think we should err on the side of caution for the community, health, and the environment. Two hundred fifty (250) feet... five hundred feet (500) feet is not enough. One hundred (100) feet is nothing and I would ask that we seriously consider and vote in support of raising this to two hundred fifty (250) feet, including the parks. We do not have to exempt hedges or low-spraying anything. We can do what we want to do to protect the public in parks. That is where children play and old people play, so I would just strongly encourage a vote in support of this amendment. Thank you. Chair Furfaro: Other members? On that note, I would like to have a roll call vote on Mr. Bynum's amendment. The motion to amend Bill No. 2491, Draft 1 as amended (Attachment E), was then put, and carried by the following vote: FOR AMENDMENT: Bynum, Hooser TOTAL — 2, AGAINST AMENDMENT: Kagawa, Nakamura, Rapozo, Yukimura TOTAL — 4, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0, SILENT: Furfaro TOTAL— 1. Chair Furfaro: I am going to record my vote as a silent. I want to point out the fact if we have our task force, this is an item that can continue to be discussed within the task force. Please note me as a silent. Mr. Bynum you have the floor. Mr. Bynum: So that was 4:3? Chair Furfaro: No, it was 3:4. JoAnn, you want the floor? Ms. Yukimura: Yes. I just want to say... Mr. Hooser: I thought the question was called. Ms. Yukimura: We voted, right? I just want to say... Chair Furfaro: I am recognizing her on a new item. Ms. Yukimura: This is a potential new amendment. I am open to two hundred fifty (250) feet on any park, but with an exemption for mature crops with hedges. Chair Furfaro: Is that written out? Ms. Yukimura: No. I do not want to waste time, but if... Mr. Bynum: It is not a waste of time. Ms. Yukimura: Okay, then we will work on it. SPECIAL COUNCIL MEETING 201 OCTOBER 15, 2013 Chair Furfaro: So we are going to work on it very quickly here because there are no more amendments and I want to now go to the main motion. We are on a ten (10) minute recess. There being no objections, the meeting recessed at 2:28 a.m. The meeting reconvened at 2:42 a.m., and proceeded as follows: Chair Furfaro: Councilwoman Yukimura, I am going to reference this as amendment number six (6). Can everybody make note of that reference? You have the floor. Ms. Yukimura moved to amend Bill No. 2491, Draft 1 as circulated, as shown in the Floor Amendment which is attached hereto as Attachment F, seconded by Mr. Bynum. Chair Furfaro: Okay. Discussion? Ms. Yukimura: Mr. Chair, you and everyone will see that the buffer for parks would be two hundred fifty (250) feet except for mature orchards, which are growing in a hedge-like manner. The sprays are from less than two (2) feet high. Chair Furfaro: Okay. Is that posted up there, Scott? Thank you. Let us turn on the overhead lights since it has been explained as such. Members, I will give everyone an opportunity to speak one time on the amendments. We will start with Mr. Hooser. Mr. Hooser: I just had a question. This qualification is to accommodate Kaua`i Coffee. Is that correct? Ms. Yukimura: It is to accommodate any mature orchard where crops grow in a hedge-like manner. Mr. Hooser: I think the only company that will affect is Kaua`i Coffee. Is that correct? Ms. Yukimura: I think so. Mr. Hooser: I just wanted to clarify that. Thank you. Chair Furfaro: Are there other Councilmembers? JoAnn, you have the floor. Ms. Yukimura: I just want to say that when there is a rational distinction that takes into account circumstances, it is my understanding that this is permitted as law and it is not considered special legislation. Chair Furfaro: Mr. Rapozo, you have the floor. Mr. Rapozo: Thank you, Mr. Chair. I think the perception is not that, JoAnn. With all due respect, it is pretty clear and I think that is one of the troubling parts of this entire Bill. How many of us actually went SPECIAL COUNCIL MEETING 202 OCTOBER 15, 2013 out and checked the sprayers of the other companies? That is where I think we run into trouble when we start crafting legislation with a specific goal and objective, and then as we move forward, we start making concessions for special groups. I think that is where we ran into trouble should this be litigated, so I am not going to be supporting the amendment. Chair Furfaro: Any other member for the first time? No? JoAnn, I am going to be asking you to speak for the last time, and then I am going call for the vote. Ms. Yukimura: Thank you. I struggled with how we could achieve protection while accommodating different circumstances, such as type of spraying. That led me to create a permitting system specifically for the creation of buffers that would take something like a Planning Commission that judged the circumstances. But that required too much of a bureaucracy, so I have not proposed it. When we have situations that require tailoring to achieve protection, but balance for the operator, why would we have a five hundred (500) feet buffer for a backpack sprayer? That is what it takes. Again, we are trying to do a balance here and this is the best we can do given the time that we have to work on this. Chair Furfaro: Any other members? If not, may I ask for roll call vote? The motion to amend Bill No. 2491, Draft 1 as amended (Attachment F), was then put, and carried by the following vote: FOR AMENDMENT: Bynum, Hooser, Kagawa, Nakamura, Yukimura TOTAL — 5, AGAINST AMENDMENT: Rapozo TOTAL — 1, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0, SILENT: Furfaro TOTAL — 1. Chair Furfaro: Thank you. We have dealt with all of the amendments to the Bill. I do want to ask you folks to please understand that I am going to allow each Councilmember three (3) minutes to speak before I call for the vote. There is a Councilmember that wishes to make a motion to defer. Is that what I understand? You have the floor. Ms. Nakamura: Thank you, Chair. Ms. Yukimura: Maybe we should wait before a motion to defer because a deferral allows no discussion. Chair Furfaro: That is right. Ms. Nakamura: Okay. Ms. Yukimura: Can we have some discussion before you make the motion? Ms. Nakamura: Sure. I am proposing this just because I know that in a few weeks, I am going to have to be involved in implementing this law. I believe based on the Transient Vacation Rental experience that if we do not SPECIAL COUNCIL MEETING 203 OCTOBER 15, 2013 pay attention to how we enforce the laws that this body creates, we run into a lot of problems. Just in the number of contested case hearings that are as a result of not good implementation, the number of appeals that our County Attorneys have to deal with, the hearings for renewals, cease and desist orders all because we did not pay attention to the implementation of a law. The Mayor asked for time to establish and clarify roles and responsibilities to develop a memorandum of agreement, a cooperative agreement, and I just feel that we should— this is not a political ploy as people have made it out to be. The killing of this Bill or standing down to bullies; this is about really taking a close look and developing relationships with the State entities that we have to work with to implement this law. Unfortunately, that is something that I need to consider. I am just putting that on the table. Chair Furfaro: I want to make sure we understand that if there is a second upfront before there is discussion, it will kill the discussion. I want to make sure that we allow for some discussion from each member. JoAnn, did you want to say anything? Ms. Yukimura: I would like to let others go first. Chair Furfaro: Mr. Hooser, you have the floor. Mr. Hooser: I am flabbergasted to put it mildly after getting here to ten (10) minutes until it is 3:00 a.m., looking through all these amendments, and having the Vice Chair lead the efforts on the amendments. Then to hear support for the Mayor's deferral after we had such extended discussion earlier— I am flabbergasted and disappointed. It is no question, and this is not to put to anybody's personal intent, but a motion to defer in my opinion is a motion to kill the Bill. Again, it is not to intent— if the audience could please bear with me, this is my opinion. I think if we defer this Bill given the circumstances of a change on the Council, it will be deferred again. If we wait for the Department of Agriculture, it will be deferred again. We have come so far and this community has come so far. Some of these people have been here for three (3) days; thirty-six (36) hours. They are counting on us to do what is our responsibility. We have talked about it for months. The genesis of this Bill is about a year. We have crafted amendments which significantly weakened the Bill, and we continue to weaken the Bill while catering to the industry. I have accepted that. As disappointed as I am, I have accepted that because the core of what we need to do, the right to know, is still intact. We cannot count on the State to do this. We cannot count on the Mayor to do this. We cannot count on Russell Kokubun to do this. It is up to us. I am hopeful that we will not have the votes to sustain or to carry a vote to defer. I think that would be just an affront is to put it mildly to our community and to the work that we have done on this issue. That is it. Thank you. Chair Furfaro: Mr. Bynum. Mr. Bynum: So your intention is to vote for a deferral, Nadine? Ms. Nakamura: Yes, to make the motion for a deferral. Mr. Bynum: So you would vote for it? Ms. Nakamura: Yes. SPECIAL COUNCIL MEETING 204 OCTOBER 15, 2013 Mr. Bynum: I do not even know how to respond to that, but I have to respond from my heart. It is no secret that I am a huge supporter of Nadine Nakamura. I have made positive statements about her leadership and her work here many times. I am disappointed that she is not going to be here on the Council to provide that leadership, but I honor the decision that she made to work for the Mayor. Until you resign, you represent the people of Kaua`i and for you to say that you have to consider that next week that you are going to work for the Mayor and have to implement this is highly inappropriate and unethical. As soon as you resign from this body, then you need to do the Mayor's bidding, but until then, you already voted for this Bill, Nadine. You stated your intention as a Councilmember. That is all I have to say. Chair Furfaro: Other members? I guess I do want to share something that I said earlier that I would like to vote on this Bill today. My reasons are the fact that I think Mr. Hooser indicated that it is been watered down. I indicate that it is focused on managing pesticides. It is about disclosure and stewardship, which is a very important issue for those people that do business on our island to understand— it is about stewardship. The Bill is substantially different than when it was first introduced, quite frankly, Nadine, because of the kind of work you did and the kind of contributions you made to the body that is the steward for our island home; for this political subdivision. We could be challenged legally. If we get challenged, we get challenged. It is in the court's hands. I never found myself in a situation where I did not put the Bill on the agenda when it first came to me by the two (2) individuals, but I have to share with you my sincere desire to get this amended Bill passed out today and work from there. We gave the amendments and we gave the Administration another three (3) months on the end rather than the one (1) month they asked for here. If that requires us to contract out some services because we have not hired the right professional people yet or have not identified them, then we have to go to contract services. We have talent on our island. Really, to me, I would like to pass this. I also want to say that I am sending a message to the State. We need their kOkua, too. We need them to allocate the resources for the responsibility that is in their pesticide bill and their rules. We need their kOkua. I think that is what this Bill also says. I would hope I can convince four (4) members here that we cannot defer this Bill, but pass it. Nadine, I say this sincerely that your work has gotten us where we are at. It was because of your effort, your contributions, and your stewardship that we are where we are at for the right reasons for the right people. I would ask that we do not defer. Other members? Mr. Kagawa. Mr. Kagawa: Thank you, Chair. I said it earlier, and to no surprise, I feel like working with the State is going to help us in the long run. Tomorrow they have a meeting with the State Department of Agriculture. What kind of message does that send that we pass a Bill, working on amendments seventeen (17) hours after the meeting just to rush it out today and tomorrow, when they meet with the State Department of Agriculture, they will say, "Sorry, our County already passed this Bill." It seems like it is easy for us to do it all by ourselves, but let me tell you, there are a lot of workers that will be needed; way more than the two (2) that we are hearing about. It would sure help the more help we get from the State Department of Health and the State Department of Agriculture. That is my opinion. I wish that the County Attorney's opinion could get released and then maybe some of you would understand why I am saying what I am saying, but unfortunately only I and Councilmember Rapozo believe that the County Attorney's opinion is something that you all should see as well. Thank you. SPECIAL COUNCIL MEETING 205 OCTOBER 15, 2013 Chair Furfaro: Is there any other member who wants to speak? JoAnn? Ms. Yukimura: I actually see, as I said in my guest commentary today, that there are good reasons for delay if our goal is to have Bill No. 2491 in effect because of the precariousness of our legal position. By my guesstimate that we have a sixty/forty (60/40) chance that we are impliedly exempt and if we could get a memorandum of understanding with the Department of Agriculture; that could be an insurance if the Bill is kicked out of court. The chances are slim, but I usually want to push the possibility as far as possible. As the Chair was saying, this would be a chance to educate the State which has to be involved in some way. However, if we come to the end of the month deferral and there are no results, I want the assurance that... Chair Furfaro: I need all of you to take a moment and to realize that each member has an opportunity to speak. I also want you to reflect on our sense of place. This is important. It is important for our community. Going forward, one way or the other, we have not gotten to a vote on a deferral or not, but I need to make sure that we all realize how important it is to be Kaua`i. Thank you. Ms. Yukimura: Thank you, Chair. I want you to see that this is an example of what has been happening throughout this of jumping to conclusions. Because I want to say that however, if we come to the end of the month and there are no results, I wanted the assurance that we could pass the Bill that is the same or similar as to the one before us. The Mayor has said that he will not veto the Bill at the end of the month. However, I still need four (4) votes in order to give this deferral a chance, but have the Bill passed ultimately. Without Nadine Nakamura one (1) month from now, there are not going to be four (4) votes to pass the Bill. I have been committed from the start to pass a Bill. At the beginning, I said I expected a Bill to pass and expressed reservations about provisions that are unworkable, or did not by my analysis, pass legal muster. I worked with Council Vice Chair Nakamura to make this Bill as workable as possible. That is why I cannot vote for a deferral today. Chair Furfaro: Excuse me, JoAnn. I will give you one more minute if you need the time. Do you need any more time? Now I am going to ask all of you in the audience to please return to your seats. Even on our worst day on Kaua`i, it is better than anywhere else. Let us remember that, please. This is the process that we have. Please, return to your seats. Other members? No? I have not heard a second. Ms. Nakamura: I did not make the motion to defer. Mr. Rapozo: Mr. Chair, I would ask for a recess. Chair Furfaro: I am thinking about that, but I want to make sure that everybody understands that there has been no motion and there has been no second. There has been a discussion about the process of the deferral. If there is no second, it has no precedent, and there is no vote. It does not look like we have a second. It was not a formal motion; it was a query. I want to say to you folks that it takes a lot of looking by all of us on very emotional items and we need to keep ourselves in a position that is king ole, without flaw. We have to follow the procedure. It is important as "Kauaians." Madame Clerk, we have no motion. I SPECIAL COUNCIL MEETING 206 OCTOBER 15, 2013 have members that have not used their three (3) minutes yet. Any further discussion? Mr. Rapozo: We are on the main Bill? Chair Furfaro: Yes, we are on the main motion as amended. Mr. Rapozo: I will make my comments now. Chair Furfaro: You have the floor. Mr. Rapozo: I am just going to ask the public to understand that my position has not changed. I think Jeri DiPietro said earlier in her testimony that the language for this Bill was drafted by experts in the field, and she was right. The problem was that the experts in the field may not have been familiar with the Hawai`i State Law. I know we keep talking about this "memorandum of agreement," but Chapter 149(a) requires that memorandum of agreement before the County or any non-Federal or non-State agency can, in fact, regulate or enforce the State Pesticide Law. That is in the law. Like Mr. Kagawa said, it is unfortunate that this Council decided not to release the County Attorney's opinion because that is the basis for my vote. It is not fair that I am not able to share that with the public, yet the public got a chance to see everybody else's opinion except the County Attorney, who by our Charter is our legal representative. I wish we would focus our energy at the State level. I know, like many of you, I have very little confidence at the way the State has handled this issue. I will say that there is movement. Whether you agree or disagree or whether you think it is going to work or not work, the fact of the matter is that the State has a vehicle in place to regulate and enforce. Mr. Kagawa and I went down to meet with the Governor, and I know Mr. Kagawa has met with others as well, but there is movement. We will get positions on the island. We will have the ability to start to enforce and bring the community's concerns into the State law and to the Administrative Rules. I think Mr. Hooser said it would take one (1) year to change an Administrative Rule. Well, this Bill if passed would take nine (9) months before it even gets enacted, and then from that point, it takes a substantial amount of time to get this Bill moving or the law moving. As I stated in the Committee Meeting a while ago, my interest, goal, or desire was not necessarily to say that I was responsible for passing a Bill that was going to make the news. It was never that. It was how do we get the community's concerns addressed? How can we get the buffer zones and the disclosure done through a vehicle that cannot be challenged, which is the State law? It is already the State law. Rather than try to recreate the wheel— it is troubling when I hear comments like, "Let us pass the Bill and wait for the lawsuit to figure out if we are right or wrong." That is not the way to do business in my opinion. There is a legal issue and unfortunately I cannot share it with you because this Council decided not to release the opinion. It is very difficult in my position to cop convey the reasons for not supporting the Bill because a lot of it is contained in that opinion. The other big disappointment is the Attorney General. The Attorney General refused or declined to prepare an opinion for us and Hawai`i island— outright refused. Yet, it is a jurisdictional issue that is related to the State law and for the Attorney General to come and say, "We are not going opine." I have not given up on him, but I think it is a shame and it is a real, what I consider, blatant display of disrespect to our island. I hope he gets to hear that one (1) day. I know I did SPECIAL COUNCIL MEETING 207 OCTOBER 15, 2013 mention that to the Governor, but the Attorney General choose not to respond. It is frustrating for me because we did not get any legal guidance from the State. I get to rely on my personal knowledge, my personal due diligence, and the County Attorney's opinion that I cannot release. Finally, it is a concern that this Bill appears to target a certain industry. It is a pesticide bill, but yet it does not deal with pesticides except for the pesticides with the GMO companies. The fact of the matter is that this County has no jurisdiction at all— and that one; you talk about a Federal preemption as far as GMOs. Everybody has an opinion on GMOs, but we utilize the shell of a bill for pesticides, but it does not affect anybody else that uses pesticides like resorts and golf courses. I stated that earlier today. Yet, if you look at our resort golf courses, you see them right up against residential properties. That is not a concern. If you look at the Bill, it is not. It is simply targeted for the seed companies. I believe that is where we are going to suffer in court. There are some major issues that go well beyond whether or not the State has jurisdiction or we have jurisdiction, but there are other legal issues that come into play that we have pretty much ignored, and we cannot have the discussion. It is not as simple as just passing a bill, hiring two (2) people, and they will go out and heal the world. Not in this town. I think you guys know that. It is a great thing and I am almost positive this Bill will pass. My job is to represent the County, as well, and to make sure that this body does not do anything that puts the County at exposure. I am not talking about pesticide exposure; I am talking about exposure to liability and lawsuits. There is a way to reach the goals and objectives of the people that would limit that, but this Council has chosen this route and I respect the decision. I always say that the right decision is always made on this body because the majority prevails. I am sure that will happen today. Mr. Chair, I think you let me go beyond the three (3) minutes and I appreciate that, but I just wanted to explain the reasons why I will not be supporting the Bill. Thank you. Chair Furfaro: Understood. Again, members, I am going to allow three (3) minutes for your comments on the Bill before I call for the vote. Mr. Hooser. Mr. Hooser: Chair, thank you very much. I want to spend my three (3) minutes thanking you. It has been a long day today and you have done a fabulous job as Chair and I just commend you for holding it steady all the way through. I would also like to thank Jenelle Hughes, who is our Staff member. Jenelle, raise your hand for a second. This woman has done a fabulous job. I think it is okay to clap, really. She started brand new and got introduced to me and this Bill, and she did not know what she was getting into. She has held it all the way through and has been working with us all. Thank you, Jenelle. Thank you to the entire Staff. It has been a lot of long hours, a lot of long days, and a lot of stress. I thank Councilmember Bynum who co-introduced this with me and has worked long and hard with me on this. Thank you, Councilmember Bynum and all of the Councilmembers for the work that they put into it. It was stated earlier— I think Jeri misspoke when she said this Bill was put together by experts. I think she meant experts looked at this Bill, but this Bill is a people's Bill. This Bill started in the living room of Sol Kahn eleven (11) months ago. Sol, Fern Rosentiel, and a handful of other people said, "Gary, can you do something? Can you help?" I said, "I know what I can do. Maybe I can do disclosure and maybe we can do this." From that moment forward, the people of this island who have taken ownership of this Bill and have taken ownership of the issue, and brought us to where we are at today. I am not happy with a lot of the Bill, but we got two (2) things that we SPECIAL COUNCIL MEETING 208 OCTOBER 15, 2013 worked really hard for and two (2) things that the industry fought us hard, hard, hard for— the right to know. They still have not told us the chemicals that they are spraying, but they will have to tell us when this takes effect. They fought that all the way. The other thing they fought was the empowerment of our community. It was said today in testimony that they were afraid that we were going to set an example for other communities, and that is what we have done here today is set an example for other communities. I am thankful to this Council for recognizing that. We still have a lot of work to do, but those two (2) things alone are worth all of this energy, time, and stress. I do not blame the audience for getting riled up. I really do not. I know many of you slept on the sidewalks. You have spent day, after day, after day and when you thought this was going to die, you got a little excited. I understand that. It is not acceptable, but I understand it. It was an understandable reaction. I just want to thank everyone. Again, I wish we could have had a stronger Bill. There were roadblocks thrown up every single step of the way and we have seemed to overcome those roadblocks. I would be remiss if I did not mention this. There was one thing that came in today. This is a petition that was sent to me by David Murphy, who is the founder of Food Democracy Now with forty-three thousand (43,000) names of people from around the world who support this Bill. Thank you. Chair Furfaro: Next member? Mr. Bynum, I am limiting you to three (3) minutes. Go ahead. Mr. Bynum: I want to thank everybody on this Council that worked really hard. I want to thank the Mayor for coming and engaging during this entire process, in my opinion. I disagreed with some of your positions, Mayor, but I know you are sincere. I know we will work together for our community. I am disappointed. I feel like we gave up a lot. That parcel I showed was thirteen thousand one hundred twenty-eight (13,128) acres. One hundred fifty (150) feet of extra buffer zone would have been nineteen (19) acres. Even a sense of safety and security is worth nineteen (19) out of thirteen thousand (13,000) acres. But, we are here where we are. I am going to support this Bill and we are going to keep working together as a community to move forward on other issues. This has been very emotional for me because I care about this community very deeply. I care about my daughter who is four (4) months pregnant with her second child. I listened to Dr. Richard when he said, "I cannot do justice to treating my patients on the west side because I do not know." We are fixing that today, I think, and that is really significant. I tend to be more concerned about our physicians and our community members than I am how a few acres will impact these agricultural entities. This Bill is not about GMO food safety for me. It was not about shutting anybody down. It was about the practices that are happening here on Kaua`i that are different than anywhere else in the Country, as far as I know, and they have never been adequately studied. We are going to move forward with a study and I am going to argue very strongly that it has to include an economic impact and environmental justice component because to do less than that— anyway, thank you. I am done. Everybody knows how I am going to vote. Chair Furfaro: Mr. Kagawa, you have the floor. Mr. Kagawa: Thank you, Chair. The day after the Committee Meeting, I got a call from my high school football coach at Waimea and Waimea is a pretty tight community. The first thing he asked me when he called me up was, "Hey Ross, how come you voted for the Bill?" I told him we amended it, and I counted the votes. It was either to vote 3:2 with Mel or come together and try SPECIAL COUNCIL MEETING 209 OCTOBER 15, 2013 to support something that was a compromise." He said, "Okay." Even though he wanted me to vote "no" and make a stand for the west side and the workers there, he understood that life is more than just posturing. I think it is coming together when you know that something is not going your way and to make the best of it from here on out. For me, my biggest help can be to work on the State end and continue to work that fight because I do not believe it is a lost cause. I do believe that I can get a lot of good to come out of it. I will be working with the Mayor and Councilmember Rapozo, my buddy. We will continue to try and do things that hopefully the County will not have to do. If we do end up in a lawsuit, we are already working in the right direction. I will continue those efforts and I think it is time to move on. We did a lot of good work and I thank the members for their support. Chair Furfaro: Is there any member that did not get to speak? JoAnn? Ms. Yukimura: I want to start by thanking our Staff because they have been extraordinary and have put out far more than they have ever put out, even though they put out a lot. Also, a special thanks to Jenelle who has been a real trooper and a really effective Staff member, but all of the Staff together have been very exemplary. I want to thank Councilmember Hooser and Councilmember Bynum for introducing the Bill. I know it has created a lot of rifts and polarization, but it took on an issue that needed to be addressed. I think it has created great awareness in all sectors of our community and brought forth an issue that is very important. I want to thank the people of Kaua`i who have supported the Bill so passionately with so much love and energy. I want to also thank those who have been against the Bill and the companies that have been part of this discussion because they have put out a lot of effort, too. The workers truly love their community as well. We needed all voices involved in making this decision. I want to say thank you to Chair Furfaro for his excellent leadership and to Vice Chair Nakamura for her incredible work on this Bill. It has been a privilege to work with her. I want to thank Councilmembers Rapozo and Kagawa because their questions and actions represent a good portion of our community, too, that needed to be heard and their thoughts have been very important in this process. It seems like a lot of the original bill has been removed, but I feel like the core has been kept. The majority of the people have come to this place of disclosure, buffers, and pesticides. I hope that this will take us to legally establish the County's right to deal with these matters and will give us experience in enforcing the provisions. Then I look forward to the study, which is so critical to address these very urgent concerns and will then help us to be more effective in addressing these issues. Thank you all. As you know, I will be voting for this Bill. Chair Furfaro: Did you want to speak? You have the floor. Ms. Nakamura: I think everybody has said everything that I wanted to say, so ditto to everything JoAnn said to everyone around this table. I just wanted to personally thank Phoebe Eng and thank you very much for letting me hear the voices of the west side. To Matt Snowden, who brought me the voices of the teachers; thank you very much. Also, to the companies who educated me about their practices. JoAnn and I really tried to craft something that we thought would be a middle ground that nobody is really happy with it. I do not think anyone in this room is totally happy with this Bill, but I think this is what we needed to move forward and to take a step in this direction to make a statement of concern. I SPECIAL COUNCIL MEETING 210 OCTOBER 15, 2013 hope we can all move forward together. Thank you for your patience throughout this whole process. Chair Furfaro: Okay. I think everybody has spoken. I will take my turn. First of all, I am very, very proud of Kaua`i; and my mo opuna and my children. They trace their family back to the 1840s, the ranch and the Wainiha power house. It is stewardship that we have on our island. I also want to apologize a little bit for perhaps being a little direct with some of the Councilmembers about getting us to where we need to be today. I also want to share with the public that when I spoke to them at the break outside, I needed to make sure we understood we need the time to do our job because by doing our job, we modeled the way. To the seed companies, I want to make sure you understand that we have to envision the future of our island. Your companies have their policies. We need to envision Kaua`i in the future and this is a start for us. I also want to make sure for the GMO people that see these issues as two (2) separate issues. The pesticide portion is a pesticide issue. I do not have the science and technology to even understand managing the GMO part, but I do believe we had a challenge about setting some standards. Ross and Mel, I want to thank you for going to Honolulu because we have to enable the State to do their part and their kuleana. The way we do it is from building relationships and those two (2) gentlemen—they brought the urgency to the State office for us. Thank you, gentlemen. To the two (2) ladies, the Bill has gone through a large evolution. It is a lot different than what we started with, but it is a starting point and I want to thank you for your work. Mr. Hooser and Mr. Bynum; when you came to see me about putting this on the agenda, you were convincing. I put it on agenda and you guys did a lot of work, and I want to thank you for it. We are where we are. I will be supporting this Bill. I want to make sure we understand that we have a long ways to go. Some of the things that JoAnn and Nadine mentioned— there has to be collaboration between the Council, the Administration, and of course, collaboration with the State. Mayor, we gave you the extra three (3) months. I personally have faith in what you say today and I thank you. I also thank you for having your Staff here. My sidekick and my grandchildren also want to thank you because it is something that we have to do. We have to do that. It is a start for us and we have to move cautiously but at the same time, respectfully. On that note, I would like to call for the vote, but I would like to remind everybody that we have additional business to do. You may leave the room and we also have to close up the building and get our Staff out of the building. If you want to go and talk story, please head outside just because we need to secure this building. Ms. Yukimura: Can I just say one more thank you? Chair Furfaro: Sure. Ms. Yukimura: Councilmember Nakamura's comments reminded me that I also want to thank Andrea Brower, Elif Beall, Phoebe Eng, and Stephanie Krieger for the support and the work. Chair Furfaro: Mahalo to everyone. Madame Clerk, I would like to call for the vote. Ms. Fountain-Tanigawa: Chair, we need a motion to approve as amended. SPECIAL COUNCIL MEETING 211 OCTOBER 15, 2013 Mr. Hooser moved for adoption of Bill No. 2491, Draft 1, as amended, on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Bynum, and carried by the following vote: FOR ADOPTION: Bynum, Hooser, Kagawa, Yukimura, Furfaro TOTAL— 5, AGAINST ADOPTION: Rapozo TOTAL — 1, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0, SILENT: Nakamura TOTAL — 1. Chair Furfaro: We have six (6) ayes. Mayor, thank you. I believe we have one more item left on our agenda. I am open to a deferral on the Resolution. If there are amendments tonight, I would like to defer it. If there is a straight vote, I would like to vote. RESOLUTION: Resolution No. 2013-72 — RESOLUTION TO IMPLEMENT AN ENVIRONMENTAL AND PUBLIC HEALTH IMPACTS STUDY (EPHIS), VIA FORMATION OF A PESTICIDE AND GENETIC ENGINEERING JOINT FACT FINDING GROUP (JFFG): Mr. Rapozo moved for adoption of Resolution No. 2013-72, seconded by Ms. Yukimura. Chair Furfaro: Mr. Hooser, you have the floor. Mr. Hooser: Chair, I am not prepared to vote on this. We have just seen this, did not have any discussion at all, and it has been a long night. I have questions and I will have amendments that I would like to propose. Chair Furfaro: Okay. Any further discussion? Mr. Bynum. Mr. Bynum: I would appreciate a deferral because this is very serious and I am not prepared to do it tonight. Chair Furfaro: Is there any further discussion? Mr. Rapozo moved to defer Resolution No. 2013-72, seconded by Mr. Hooser. Chair Furfaro: Okay. There is no discussion on a deferral. Is the deferral date specific? Ms. Fountain-Tanigawa: This would be deferred to the regular Council Meeting on November 6, 2013. Chair Furfaro: Okay. Is there anyone in the audience who wants to give testimony on this? If not, it will appear again on our regular November 6th meeting. The motion to defer Resolution No. 2013-72 was then put, and unanimously carried. Chair Furfaro: I believe that concludes our business. Folks, we are back here at 8:30 a.m. tomorrow. Thank you everyone. SPECIAL COUNCIL MEETING 212 OCTOBER 15, 2013 ADJOURNMENT: There being no further business, the meeting was adjourned on March 16, 2013 at 3:37 a.m. Re .ectfu y submitted, JA G . OUNTAIN-TANIGAWA Deputy County Clerk :cy/aa ATTAGNENT A Draft 1, NN & JY#1 1 October 15, 2013 (Continued October 08, 2013 Meeting) FLOOR AMENDMENT Bill No. 2491, Draft 1, Relating to Pesticides and Genetically Modified Organisms Introduced by: NADINE K. NAKAMURA and JOANN A. YUKIMURA 1. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22- 22.1 as follows: "Sec. 22-22.1 Findings. [(a)] In order to establish provisions governing the use of pesticides and genetically modified organisms (GMOs) by large-scale commercial agricultural entities on Kaua`i, the Council finds that: [(1)] Section 1, Article XI of the State Constitution states: "For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawai`i's natural beauty and all natural resources, including land, water, air, minerals, and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people." [(2)] (b) The growth of commercial agricultural entities engaged in the use and development of genetically modified organisms and the widespread use of pesticides in the County of Kaua`i has created a situation where residents live, work, and commute daily in close proximity to areas where there is regular application of restricted use pesticides and general use pesticides. [(3)] There are increasing concerns about the direct and long- term impacts of the large-scale use of pesticides, and the impacts that the intense agricultural cultivation is having on the land, on the natural environment, and on human health. [(4)] (d) Hawaii Revised Statutes Section 46-1.5(13) states: "Each county shall have the power to enact ordinances deemed necessary to protect health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State." [(5)] The County of Kaua`i has become a location of increasing commercial agriculture operations that utilize genetically modified organisms for the production of crop seed and field testing of new genetically modified organisms. [(6)] ff Genetically modified plants could potentially disperse into the environment of the County of Kaua`i through pollen drift, seed commingling, and inadvertent transfer of seeds by humans, animals, weather events, and other means. This could have environmental and economic impacts. Draft 1, NN & JY#1 1 October 15, 2013 Draft 1, NN & JY#1 2 October 15, 2013 [(7)] (g) Records obtained from the State of Hawai`i Department of Agriculture indicate that twenty-two (22) different restricted use pesticides, comprising approximately 5,477.2 pounds, and 5,884.5 gallons, were used during 2012 on Kaua`i by five (5) commercial agricultural entities, which constituted approximately 99% of the restricted use pesticides utilized by agricultural operations on Kaua`i. [(8)] 101 In 2012, restricted use pesticides were used on Kaua`i by agricultural operations (7,727 pounds, or 13%), county government operations (28,350 pounds of Chlorine Liquefied Gas, or 49%), and non- government operations for structural pest control (25,828 pounds, or 38%). [(9)] Pesticides have the ability to contaminate groundwater, and are often toxic to humans, animals, bees, and other insects. Some restricted use pesticides are banned by the entire European Union. [(10)] Dust and drift from both restricted use pesticides and general use pesticides sometimes [travels] travel beyond commercial agricultural operations. Dust, pesticide drift, and long-term exposure to toxic chemicals are potential sources of pollution endangering human health and the natural environment. [(11)] (k) Hawai`i Revised Statutes Section 46-17 states: "Any provision of law to the contrary notwithstanding, the council of any county may adopt and provide for the enforcement of ordinances regulating or prohibiting noise, smoke, dust, vibration, or odors which constitute a public nuisance. No such ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or rule of the State; provided that in any case of conflict between a statute or rule and an ordinance, the law affording the most protection to the public shall apply . . . .,, [(12)] f The impacts on the County of Kaua`i of large-scale intensive cultivation and associated agricultural practices should be further evaluated. [(13)] (m) Information pertaining to the intensive use of pesticides within the County of Kaua`i, and the experimentation and growing of genetically modified organisms, is currently withheld from the public. Thus, the public is unable to evaluate the full extent of the impacts on the residents and environment of the County of Kaua`i. [(14)] (n) In the interest of protecting the health of the people and fragile natural environment of the County of Kaua`i, the people of the County of Kaua`i have the right to know what pesticides are being used on a significant scale, and whether or not genetically modified organisms are being grown within the jurisdiction of the County of Kaua`i. The people of the County of Kaua`i have the right to know the likely potential impacts on their human health, and the health of their environment." (o) It is the intent of the County to collaborate with the State of Hawai`i Department of Agriculture to support the implementation and enforcement of this Article." Draft 1, NN & JY#1 2 October 15, 2013 Draft 1, NN & JY#1 3 October 15, 2013 2. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22- 22.3 as follows: "Sec. 22-22.3 Definitions. When used in this Article, the following words or phrases shall have the meaning given in this Section unless it shall be apparent from the context that another meaning is intended: "Active ingredient" means: [(1)] fal In the case of a pesticide other than a plant regulator, defoliant, or desiccant, an ingredient which will prevent, destroy, repel, or mitigate any pest; [(2)] (b) In the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or maturation or otherwise alter the behavior of ornamental or crop plants or the produce thereof; [(3)] In the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant; and [(4)] ,(01 In the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissues. "Adult family boarding home" means any family home providing for a fee, twenty-four (24) hour living accommodations to no more than five (5) adults, unrelated to the family, who are in need of minimal protective oversight care in their daily living activities, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "Adult family group living home" means any family home providing twenty- four (24) hour living accommodations for a fee to five (5) to eight (8) elderly, handicapped, developmentally disabled, or totally disabled adults, unrelated to the family, who are in need of long-term minimal assistance and supervision in the adult's daily living activities, health care, and behavior management, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. ["Ahupua a" means a land division usually extending from the uplands to the sea.] "Agriculture" means the breeding, planting, nourishing, caring for, gathering and processing of any animal or plant organism for the purpose of nourishing people or any other plant or animal organism; or for the purpose of providing the raw material for non-food products. For the purposes of this Article, "agriculture" shall include the growing of flowers and other ornamental crops and the commercial breeding and caring for animals as pets. "Ahupua a" means a land division usually extending from the uplands to the sea. "Certified pesticide applicator" means any individual who is certified under Hawai`i Revised Statues Section 149A-33(1) as authorized to use or supervise the use of any pesticide which is classified for restricted use. Draft 1, NN & JY#1 3 October 15, 2013 Draft 1, NN & JY#1 4 October 15, 2013 "Commercial agricultural entity" means a firm, corporation, association, partnership, or any organized group of persons, whether incorporated or not, that is engaged in growing, developing, cultivating, or producing agricultural products. "County" means the County of Kaua`i. "Crop" means a plant or product thereof that can be grown and harvested for subsistence, profit, or research. "Day care center" means any facility where seven (7) or more children under the age of eighteen (18) are cared for without overnight accommodations at any location other than their normal place of residence, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. This term includes child care services and other similar uses and facilities consistent with this definition, and not covered by the "Family child care home" definition. "DOA" means the State of Hawai`i Department of Agriculture. "Dwelling" means a building or portion thereof designed or used exclusively for residential occupancy and having all necessary facilities for permanent residency such as living, sleeping, cooking, eatingg, and sanitation. "Environment" includes water, air, land, and all plants and humans and other animals living therein, and the interrelationships which exist among these. "EPA" means the United States Environmental Protection Agency. "Experimental genetically modified organisms" means organisms that have not received final approval by the Federal Food & Drug Administration, United States Department of Agriculture, United States Environmental Protection Agency, or the appropriate federal regulatory body, for human consumption, release into the environment, or both. "Family care home" means any care home occupied by not more than five (5) care home residents, in compliance with State of Hawaii or County of Kaua`i licensing requirements, or both. "Family child care home" means providing child care services and other similar uses consistent with this definition where six (6) or fewer children under the age of eighteen (18) are cared for in a private dwelling unit without overnight accommodations at any location other than the children's normal place of residence, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "FDA" means the Federal Food & Drug Administration. "General use pesticide" means a pesticide other than one designated as a restricted use pesticide. "Genetically modified" means produced from an organism or organisms in which the genetic material has been genetically engineered through the application of: Draft 1, NN & JY#1 4 October 15, 2013 Draft 1, NN & JY#1 5 October 15, 2013 [(1)] fal In vitro nucleic acid techniques, which include, but are not limited to: recombinant deoxyribonucleic acid (DNA) techniques; direct injection of nucleic acid into cells or organelles; encapsulation; gene deletion; and doubling; or [(2)] (b) Methods of fusing cells beyond the taxonomic family that overcome natural physiological reproductive or recombinant barriers, and that are not techniques used in traditional breeding and selection such as conjugation, transduction, and hybridization. For purposes of this definition: [(3)] "In vitro nucleic acid techniques" include, but are not limited to, recombinant DNA or RNA techniques that use vector systems and techniques involving the direct introduction into the organisms of hereditary materials prepared outside the organisms such as micro-injection, macro- injection, chemoporation, electroporation, micro-encapsulation, and liposomefusion. [(4)] (d) An animal that has not itself been genetically modified, regardless of whether such animal has been fed or injected with any food or any drug that has been produced through means of genetic modification, shall not be considered "genetically modified" for purposes of this Article. "Genetically modified organism" means an organism or organisms whose genetic material has been genetically modified. "Ground cover" means small plants such as salal, ivy, ferns, mosses, grasses, or other types of vegetation that normally cover the ground and includes trees and shrubs less than six (6) inches in diameter. "Medical facility" means a facility licensed by the State of Hawai`i to provide medical services. "Nursing home" means a facility established for profit or nonprofit, which provides nursing care and related medical services on a twenty-four (24) hour per day basis to two (2) or more individuals because of illness, disease, or physical or mental infirmity, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "OED" means the County of Kauai Office of Economic Development. "Orchard" means the establishment, care, and harvesting of over twenty-five (25) fruit-bearing trees, including, but not limited to, banana, coffee, guava, papaya, or persimmon, for the purpose of selling the fruit to others. "Organism" means any biological entity capable of replication, reproduction, or transferring genetic material. "Park" means any park, park roadway, playground, beach right-of-way, or other recreational areas under the control, management, and operation of the County of Kaua`i or State of Hawai`i." Draft 1, NN & JY#1 5 October 15, 2013 Draft 1, NN & JY#1 6 October 15, 2013 "Perennial waterway" means a natural waterway that has continuous flow in parts of its waterway bed year round during years of normal rainfall. "Pest" means any insect, rodent, nematode, fungus, weed, or any other form of terrestrial or aquatic plant or animal life or virus, bacterium, or any other microorganism, except viruses, bacterium, or any other microorganisms on or in living humans or other living animals, which the Administrator of the United States Environmental Protection Agency determines to be a pest. "Pesticide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, and any substance or mixture of substances intended for use as an attractant, plant regulator, defoliant, or desiccant. A product shall be deemed to be a pesticide regardless of whether it is intended for use as packaged, or as a dilution or mixture with substances such as carriers or baits. Products not considered pesticides include: [(1)] kal Deodorants, bleaching agents, and cleaning agents for which no pesticidal claims are made or implied; [(2)] (b) Embalming fluids; [(3)] Building materials which have been treated to protect the material itself against any pest and bear no claims for protection of other surfaces or objects; [(4)] Fabrics which have been treated to protect the fabric itself from insects, fungi, or any other pests; [(5)] Fertilizer and other plant nutrients; and [(6)] ff Products intended only for use after further processing or manufacturing such as grinding to dust or other operations. "Public roadway" means a roadway on which the public is allowed to generally travel in a vehicle without obtaining special permission, or providing advance notice. "Registered beekeeper" means a person registered with the Hawai`i Apiary Program, through the State of Hawai`i Department of Agriculture. "Residential care home" means any care home facility occupied by more than five (5) care home residents, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "Restricted-entry interval" means the time after the end of a pesticide application during which entry into the treated area is restricted, as contained within the Worker Protection Standard for Agricultural Pesticides regulation established by the Environmental Protection Agency, and specified on all agricultural plant pesticide product labels. "Restricted use pesticide" means: [(1)] ) A pesticide or pesticide use classified by the Administrator of the United States Environmental Protection Agency for use Draft 1, NN & JY#1 6 October 15, 2013 Draft 1, NN & JY#1 7 October 15, 2013 by certified applicators or competent persons under their direct supervision and so designated on the label of the pesticide; or [(2)] (b) A pesticide or pesticide use classified by the Hawai`i Board of Agriculture for use by certified applicators or competent persons under their direct supervision. "School" means an institution with an organized curriculum offering instruction. "Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves. "USDA" means the United States Department of Agriculture. "Worker protection standard" means the Worker Protection Standard for Agricultural Pesticides regulation established by the Environmental Protection Agency, which is aimed at reducing the risk of pesticide poisonings and injuries among agricultural workers and pesticide handlers, and contains requirements for pesticide safety training, notification of pesticide applications, use of personal protective equipment, restricted-entry intervals after pesticide application, decontamination supplies, and emergency medical assistance." 3. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22- 22.4 as follows: "Sec. 22-22.4 Mandatory Disclosure of Pesticides, and Genetically Modified Organisms. (a) It shall be mandatory for all commercial agricultural entities that [annually purchase or use] purchased or used in excess of five (5) pounds or fifteen (15) gallons of [restricted use pesticides] any single restricted use pesticide during [any] the prior calendar year to disclose the use of all pesticides during [that same] the following calendar year. Disclosure requirements include: (1) Worker Protection Standard. Posting of warning signs in the area in which pesticides are to be applied no sooner than twenty-four (24) hours before the scheduled application of any pesticide. Posting of warning signs during and after the application of any pesticide shall conform to the official label of the pesticide. Posting of warning signs at the time of application shall conform to the worker protection standard established by the Environmental Protection Agency (EPA), and shall remain posted until expiration of the applicable restricted-entry interval established by the EPA. The size of all signs, and the symbols and wording on all signs, shall conform to the worker protection standard established by the EPA. A posting notification area shall be provided daily for workers, and shall conform to the worker protection standard established by the EPA, and the State of Hawai`i. (2) Pesticide Pre-Application "Good Neighbor Courtesy Notices." Pesticide [Pre-application] pre-application notification must be provided to any requesting registered beekeeper, property owner, lessee, or person otherwise occupying any property within 1,500 feet from the property line of Draft 1, NN & JY#1 7 October 15, 2013 Draft 1, NN & JY#1 8 October 15, 2013 the commercial agricultural entity where any pesticide is anticipated to be applied. A mass notification list shall be established and maintained by each commercial agricultural entity, and shall include access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions. Any interested registered beekeeper, property owner, lessee, or person otherwise occupying any property within 1,500 feet from the property line of the operation of any commercial agricultural entity, shall submit contact information to the relevant commercial agricultural entity. These interested persons may submit up to three (3) local telephone numbers, and two (2) e-mail addresses. All mass notification messages shall be sent via telephone, text message, or e-mail, with the method or methods of transmittal to be determined by each commercial agricultural entity. Each commercial agricultural entity shall provide an alternative method of transmittal for any recipient who does not have access to the technology necessary for the method or methods of transmittal selected by the commercial agricultural entity. Requests to be included on, or removed from, the mass notification list must be processed within three (3) business days. These "good neighbor courtesy notices" shall contain the following information regarding all anticipated pesticide applications: pesticide to be used, active ingredient of pesticide to be used, date, time, and field number. (A) Scheduled Weekly Applications. Each commercial agricultural entity shall send regular mass notification messages at least once during every seven (7) day week period summarizing the anticipated application of any pesticide for the upcoming seven (7) day week. (B) Unforeseen Pest Threat Necessary Applications. Whenever a pesticide application that was unforeseen and therefore not contained in the weekly "good neighbor courtesy notice" is deemed by the commercial agricultural entity to be necessary to alleviate a pest threat, an additional "good neighbor courtesy notice" shall be generated to all recipients of the mass notification list within twenty-four (24) hours after the application. (3) Pesticide Post-Application Weekly Public Disclosure. Each commercial agricultural entity shall submit regular public disclosure reports once during every seven (7) day week period compiling the actual application of all pesticides during the prior week. These weekly public disclosure reports shall contain the following information regarding all actual pesticide applications: date; time; field number; total acreage; pesticide used; active ingredient of pesticide used; gallons or pounds of pesticide used; and temperature, wind direction, and wind speed at time of pesticide application. Each commercial agricultural entity shall submit all public disclosure reports to the County of Kaua`i Office of Economic Development (OED), and shall include online access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions for all applicable commercial agricultural entities. All public disclosure reports shall be posted online, and available for viewing and download by any interested persons. OED shall develop a standardized reporting form. (b) It shall be mandatory for all commercial agricultural entities that intentionally or knowingly possess any genetically modified organism to disclose the [presence of] growing of said genetically modified organism. Draft 1, NN & JY#1 8 October 15, 2013 Draft 1, NN & JY#1 9 October 15, 2013 (1) Annual public reports [of all genetically modified organisms intentionally or knowingly possessed during each calendar year] shall be provided to the Office of Economic Development and the State of Hawai`i Department of Agriculture (DOA), and shall be posted online on the County website. Direct notification to [the Department] OED and DOA documenting such disclosure shall occur no later than sixty (60) days following the end of each calendar year. (2) Disclosure shall include a general description of each genetically modified organism (e.g., "GMO Corn" or "GMO Soy"), a general description of the geographic location including at minimum the Tax Map Key and ahupua a where each genetically modified organism is being grown or developed, and dates that each genetically modified organism was initially introduced to the land in question." 4. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22- 22.5 as follows: "Sec. 22-22.5 Pesticide Buffer Zones. (a) [Effective January 1, 2014 it] It shall be mandatory for all commercial agricultural entities that [annually purchase or use] purchased or used in excess of five (5) pounds or fifteen (15) gallons of [restricted use pesticides] any single restricted use pesticide during [any] the prior calendar year to restrict the growing of crops, except ground cover to which no pesticide is applied, and thereby restrict the application of all pesticides in the following areas: (1) [No pesticide of any kind may be used] No crops may be grown within 500 feet of any school, medical facility, adult family boarding home, adult family group living home, day care center, family care home, family child care home, nursing home, or residential care home. (2) [No pesticide of any kind may be used] No crops may be grown within 100 feet of any park. (3) [No pesticide of any kind may be used] No crops may be grown within 500 feet of any dwelling, [except that if the commercial agricultural entity has an approved Soil and Water Conservation Plan that explicitly addresses pesticide drift on the dwelling, then no pesticide of any kind may be used within 100 feet of any dwelling.] unless: (A) The commercial agricultural entity has an approved Soil and Water Conservation Plan that explicitly demonstrates no pesticide drift on the dwelling, then no crops may be grown within 100 feet of any dwelling; or (B) The dwelling is owned by the landowner, and occupied by the landowner or a family member of the landowner, and there are no other dwellings occupied by third-parties within 500 feet of the landowner dwelling, then there shall be no pesticide buffer zone restricting growing of crops in proximity to the landowner dwelling; or Draft 1, NN & JY#1 9 October 15, 2013 Draft 1, NN & JY#1 10 October 15, 2013 (C) Regarding a mature orchard, the crops of which grow in a hedge-like manner creating a windbreak effect, if pesticide application occurs between crop rows from a source no higher than two (2) feet from the ground, for the purpose of eliminating weeds in the ground, then no crops may be grown within 75 feet of any dwelling. (4) [No pesticide of any kind may be used] No crops may be grown within 100 feet of any public roadway, except that this restriction shall not apply to any existing orchard, provided that the orchard posts roadway signs along the roadway no sooner than twenty-four (24) hours before the scheduled application. Roadway signs shall be located at the start and end of the field along the public roadway where application will occur, and shall comply with all State of Hawai`i Department of Transportation requirements. (5) [No pesticide of any kind may be used] No crops may be grown within 100 feet of any shoreline or perennial waterway that flows into the ocean. This provision shall not apply to any irrigation ditch that does not flow to the ocean. [This provision shall not apply to any specific instance where the State of Hawai`i Department of Agriculture has authorized such pesticide use for public health purposes.] (b) The provisions in Section 22-22.5(a) shall not apply to any specific instance where any County, State, or Federal government agency has authorized such pesticide use for public health or safety purposes. [(b)] If this Section, or any part thereof, is determined to conflict with any pesticide labeling information [pertaining to such pesticides (restricted use, general use, or experimental)], the more restrictive and environmentally protective provisions shall apply." 5. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22- 22.8 as follows: "Sec. 22-22.8 Rulemaking. In order to effectuate all provisions of this Article, the Office of Economic Development may engage in any rulemaking it deems necessary or proper, utilizing the provisions of Hawai`i Revised Statutes Chapter 91. In so doing, OED is authorized to collaborate with the State of Hawaii Department of Agriculture." 6. Amend Bill No. 2491, Draft 1 by amending the proposed SECTION 4 as follows: "SECTION 4. This ordinance shall take effect [six (6)] nine (9) months after its approval." (Material to be deleted is bracketed. New material to be added is underscored.) V:\AMENDMENTS\2012-2014 term\Bill No. 2491, Draft 1 NN&JY#1 10-15-2013 JH Draft 1, NN & JY#1 10 October 15, 2013 ATTAR B Draft 1, GH#1 1 October 15, 2013 (Continued October 08, 2013 Meeting) FLOOR AMENDMENT Bill No. 2491, Draft 1, Relating to Pesticides and Genetically Modified Organisms Introduced by: GARY L. HOOSER 1. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22-22.1 as follows: "Sec. 22-22.1 Findings. [(a)] In order to establish provisions governing the use of pesticides and genetically modified organisms (GMOs) by large-scale commercial agricultural entities on Kaua`i, the Council finds that: [(1)] Section 1, Article XI of the State Constitution states: "For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawai`i's natural beauty and all natural resources, including land, water, air, minerals, and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people." [(2)] (b) The growth of commercial agricultural entities engaged in the use and development of genetically modified organisms and the widespread use of pesticides in the County of Kaua`i has created a situation where residents live, work, and commute daily in close proximity to areas where there is regular application of restricted use pesticides and general use pesticides. [(3)] There are increasing concerns about the direct and long-term impacts of the large-scale use of pesticides, and the impacts that the intense agricultural cultivation is having on the land, on the natural environment, and on human health. [(4)] Hawai`i Revised Statutes Section 46-1.5(13) states: "Each county shall have the power to enact ordinances deemed necessary to protect health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State." [(5)] The County of Kaua`i has become a location of increasing commercial agriculture operations that utilize genetically modified organisms for the production of crop seed and field testing of new genetically modified organisms. [(6)] Genetically modified plants could potentially disperse into the environment of the County of Kaua`i through pollen drift, seed commingling, and inadvertent transfer of seeds by humans, animals, weather events, and other means. This could have environmental and economic impacts. Draft 1, GH#1 1 October 15, 2013 Draft 1, GH#1 2 October 15, 2013 [(7)] (g) Records obtained from the State of Hawai`i Department of Agriculture indicate that twenty-two (22) different restricted use pesticides, comprising approximately 5,477.2 pounds, and 5,884.5 gallons, were used during 2012 on Kaua`i by five (5) commercial agricultural entities, which constituted approximately 99% of the restricted use pesticides utilized by agricultural operations on Kaua`i. [(8)] In 2012, restricted use pesticides were used on Kaua`i by agricultural operations (7,727.20 pounds and 5,892.5 gallons, or 13%), county government operations (28,350 pounds and zero (0) gallons of Chlorine Liquefied Gas for water treatment, or 49%), and non-government operations for structural pest control termite treatment (25,828 pounds and 20 gallons, or 38%). Of the three (3) categories, only agricultural operations involve the open air application of large amounts of multiple types of restricted use pesticides and general use pesticides in an uncontained environment, over large areas of open land where windy conditions and drift may occur. [(9)] Pesticides have the ability to contaminate groundwater, and are often toxic to humans, animals, bees, and other insects. Some restricted use pesticides are banned by the entire European Union. [(10)] Dust and drift from both restricted use pesticides and general use pesticides sometimes [travels] travel beyond commercial agricultural operations. Dust, pesticide drift, and long-term exposure to toxic chemicals are potential sources of pollution endangering human health and the natural environment. [(11)] (k) Hawai`i Revised Statutes Section 46-17 states: "Any provision of law to the contrary notwithstanding, the council of any county may adopt and provide for the enforcement of ordinances regulating or prohibiting noise, smoke, dust, vibration, or odors which constitute a public nuisance. No such ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or rule of the State; provided that in any case of conflict between a statute or rule and an ordinance, the law affording the most protection to the public shall apply . . . .,, [(12)] The impacts on the County of Kaua`i of large-scale intensive cultivation and associated agricultural practices should be further evaluated. [(13)] (m) Information pertaining to the intensive use of pesticides within the County of Kaua`i, and the experimentation and growing of genetically modified organisms, is currently withheld from the public. Thus, the public is unable to evaluate the full extent of the impacts on the residents and environment of the County of Kaua`i. [(14)] In the interest of protecting the health of the people and fragile natural environment of the County of Kaua`i, the people of the County of Kaua`i have the right to know what pesticides are being used on a significant scale, and [whether or not] what genetically modified organisms are being grown within the jurisdiction of the County of Kaua`i. The people Draft 1, GH#1 2 October 15, 2013 Draft 1, GH#1 3 October 15, 2013 of the County of Kaua`i have the right to know the likely potential impacts on their human health, and the health of their environment." 2. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22-22.3 as follows: "Sec. 22-22.3 Definitions. When used in this Article, the following words or phrases shall have the meaning given in this Section unless it shall be apparent from the context that another meaning is intended: "Active ingredient" means: [(1)] (a) In the case of a pesticide other than a plant regulator, defoliant, or desiccant, an ingredient which will prevent, destroy, repel, or mitigate any pest; [(2)] (b) In the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or maturation or otherwise alter the behavior of ornamental or crop plants or the produce thereof; [(3)] (c) In the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant; and [(4)] (d) In the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissues. "Adult family boarding home" means any family home providing for a fee, twenty-four (24) hour living accommodations to no more than five (5) adults, unrelated to the family, who are in need of minimal protective oversight care in their daily living activities, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "Adult family group living home" means any family home providing twenty-four (24) hour living accommodations for a fee to five (5) to eight (8) elderly, handicapped, developmentally disabled, or totally disabled adults, unrelated to the family, who are in need of long-term minimal assistance and supervision in the adult's daily living activities, health care, and behavior management, in compliance with State of Hawaii or County of Kauai licensing requirements, or both. ["Ahupua a" means a land division usually extending from the uplands to the sea.] "Agriculture" means the breeding, planting, nourishing, caring for, gathering and processing of any animal or plant organism for the purpose of nourishing people or any other plant or animal organism; or for the purpose of providing the raw material for non-food products. For the purposes of this Article, "agriculture" shall include the growing of flowers and other ornamental crops and the commercial breeding and caring for animals as pets. "Ahupua a" means a land division usually extending from the uplands to the sea. Draft 1, GH#1 3 October 15, 2013 Draft 1, GH#1 4 October 15, 2013 "Certified pesticide applicator" means any individual who is certified under Hawai`i Revised Statues Section 149A-33(1) as authorized to use or supervise the use of any pesticide which is classified for restricted use. "Commercial agricultural entity" means a firm, corporation, association, partnership, or any organized group of persons, whether incorporated or not, that is engaged in growing, developing, cultivating, or producing agricultural products. "County" means the County of Kaua`i. "Day care center" means any facility where seven (7) or more children under the age of eighteen (18) are cared for without overnight accommodations at any location other than their normal place of residence, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. This term includes child care services and other similar uses and facilities consistent with this definition, and not covered by the "Family child care home" definition. "DOA" means the State of Hawai`i Department of Agriculture. "Dwelling" means a building or portion thereof designed or used exclusively for residential occupancy and having all necessary facilities for permanent residency such as living, sleeping, cooking, eating., and sanitation. "Environment" includes water, air, land, and all plants and humans and other animals living therein, and the interrelationships which exist among these. "EPA" means the United States Environmental Protection Agency. "Experimental genetically modified organisms" means organisms that have not received final approval by the Federal Food & Drug Administration, United States Department of Agriculture, United States Environmental Protection Agency, or the appropriate federal regulatory body, for human consumption, release into the environment, or both. "Family care home" means any care home occupied by not more than five (5) care home residents, in compliance with State of Hawai`i or County of Kauai licensing requirements, or both. "Family child care home" means providing child care services and other similar uses consistent with this definition where six (6) or fewer children under the age of eighteen (18) are cared for in a private dwelling unit without overnight accommodations at any location other than the children's normal place of residence, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "FDA" means the Federal Food & Drug Administration. "General use pesticide" means a pesticide other than one designated as a restricted use pesticide. "Genetically modified" means produced from an organism or organisms in which the genetic material has been genetically engineered through the application of: Draft 1, GH#1 4 October 15, 2013 Draft 1, GH#1 5 October 15, 2013 [(1)] faj. In vitro nucleic acid techniques, which include, but are not limited to: recombinant deoxyribonucleic acid (DNA) techniques; direct injection of nucleic acid into cells or organelles; encapsulation; gene deletion; and doubling; or [(2)] (b) Methods of fusing cells beyond the taxonomic family that overcome natural physiological reproductive or recombinant barriers, and that are not techniques used in traditional breeding and selection such as conjugation, transduction, and hybridization. For purposes of this definition: [(3)] "In vitro nucleic acid techniques" include, but are not limited to, recombinant DNA or RNA techniques that use vector systems and techniques involving the direct introduction into the organisms of hereditary materials prepared outside the organisms such as micro-injection, macro- injection, chemoporation, electroporation, micro-encapsulation, and liposomefusion. [(4)] An animal that has not itself been genetically modified, regardless of whether such animal has been fed or injected with any food or any drug that has been produced through means of genetic modification, shall not be considered "genetically modified" for purposes of this Article. "Genetically modified organism" means an organism or organisms whose genetic material has been genetically modified. "Medical facility" means a facility licensed by the State of Hawai`i to provide medical services. "Nurse practitioner" means a person licensed as an advanced practice registered nurse under Hawai`i Revised Statutes Chapter 457. "Nursing home" means a facility established for profit or nonprofit, which provides nursing care and related medical services on a twenty-four (24) hour per day basis to two (2) or more individuals because of illness, disease, or physical or mental infirmity, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "OED" means the County of Kaua`i Office of Economic Development. "Orchard" means the establishment, care, and harvesting of over twenty-five (25) fruit-bearing trees, including, but not limited to, banana, coffee, guava, papaya, or persimmon, for the purpose of selling the fruit to others. "Organism" means any biological entity capable of replication, reproduction, or transferring genetic material. "Park" means any park, park roadway, playground, beach right-of-way, or other recreational areas under the control, management, and operation of the County of Kaua`i[ or State of Hawai`i.], State of Hawai`i, or Federal Government. Draft 1, GH#1 5 October 15, 2013 Draft 1, GH#1 6 October 15, 2013 "Perennial streams" means fresh waters flowing year-round in all or part of natural channels, portions of which may be modified by humans. Flow in perennial streams may vary seasonally. Perennial streams may be subdivided into longitudinal zones, based on elevation and gradient: (1) headwater zone (elevation above 800 meters (2,600 feet) or gradient above thirty (30) percent or both); (21 mid-zone (elevation between 50-800 meters (165-2,600 feet), or gradient between five (5) and thirty (30) percent or both); and (3) terminal zone (elevation below 50 meters (165 feet) or gradient below five (5) percent or both). Perennial streams may be either continuous or interrupted. Continuous perennial streams discharge continuously to the ocean in their natural state, and contain water in the entire length of the stream channel year-round. Interrupted perennial streams usually flow perennially in their upper reaches but only seasonally in parts of their middle or lower reaches, due to either downward seepage of surface flow (naturally interrupted) or to man-made water diversions (artificially interrupted). ["Perennial waterway" means a natural waterway that has continuous flow in parts of its waterway bed year round during years of normal rainfall.] "Pest" means any insect, rodent, nematode, fungus, weed, or any other form of terrestrial or aquatic plant or animal life or virus, bacterium, or any other microorganism, except viruses, bacterium, or any other microorganisms on or in living humans or other living animals, which the Administrator of the United States Environmental Protection Agency determines to be a pest. "Pesticide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, and any substance or mixture of substances intended for use as an attractant, plant regulator, defoliant, or desiccant. A product shall be deemed to be a pesticide regardless of whether it is intended for use as packaged, or as a dilution or mixture with substances such as carriers or baits. Products not considered pesticides include: [(1)] (a) Deodorants, bleaching agents, and cleaning agents for which no pesticidal claims are made or implied; [(2)] (b) Embalming fluids; [(3)] (c) Building materials which have been treated to protect the material itself against any pest and bear no claims for protection of other surfaces or objects; [(4)] � Fabrics which have been treated to protect the fabric itself from insects, fungi, or any other pests; [(5)] Fertilizer and other plant nutrients; and [(6)] Products intended only for use after further processing or manufacturing such as grinding to dust or other operations. "Physician" means an individual authorized to practice medicine or osteopathy under Hawai`i Revised Statutes Chapter 453. "Public roadway" means a roadway on which the public is allowed to generally travel in a vehicle without obtaining special permission, or providing advance notice. Draft 1, GH#1 6 October 15, 2013 Draft 1, GH#1 7 October 15, 2013 "Registered beekeeper" means a person registered with the Hawai`i Apiary Program, through the State of Hawai`i Department of Agriculture. "Residential care home" means any care home facility occupied by more than five (5) care home residents, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "Restricted-entry interval" means the time after the end of a pesticide application during which entry into the treated area is restricted, as contained within the Worker Protection Standard for Agricultural Pesticides regulation established by the Environmental Protection Agency, and specified on all agricultural plant pesticide product labels. "Restricted use pesticide" means: [(1)] ( A pesticide or pesticide use classified by the Administrator of the United States Environmental Protection Agency for use by certified applicators or competent persons under their direct supervision and so designated on the label of the pesticide; or [(2)] (b) A pesticide or pesticide use classified by the Hawai`i Board of Agriculture for use by certified applicators or competent persons under their direct supervision. "School" means an institution with an organized curriculum offering instruction. "Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves. "Significant effect" means the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State. "State waters" means all waters, fresh, brackish, or salt, around and within the State, including, but not limited to, coastal waters, streams, rivers, drainage ditches, ponds, reservoirs, canals, ground waters, and lakes; provided that the following are excluded: groundwater; ditches, flumes, ponds, and reservoirs that are required as part of a water pollution control system; and ditches, flumes,ponds, and reservoirs that are used solely for irrigation and do not overflow into any other state waters, unless such ditches, flumes, ponds, and reservoirs are waters of the United States as defined at 40 C.F.R. 122.2. "USDA" means the United States Department of Agriculture. "Worker protection standard" means the Worker Protection Standard for Agricultural Pesticides regulation established by the Environmental Protection Draft 1, GH#1 7 October 15, 2013 Draft 1, GH#1 8 October 15, 2013 Agency, which is aimed at reducing the risk of pesticide poisonings and injuries among agricultural workers and pesticide handlers, and contains requirements for pesticide safety training, notification of pesticide applications, use of personal protective equipment, restricted-entry intervals after pesticide application, decontamination supplies, and emergency medical assistance." 3. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22-22.4 as follows: "Sec. 22-22.4 Mandatory Disclosure of Pesticides, and Genetically Modified Organisms. (a) It shall be mandatory for all commercial agricultural entities that annually purchase or use in excess of five (5) pounds or fifteen (15) gallons of restricted use pesticides during any calendar year to disclose the use of all pesticides of any kind [during that same] throughout the duration of the immediately following calendar year. Disclosure requirements include: (1) Worker Protection Standard. Posting of warning signs in the area in which pesticides are to be applied no sooner than twenty-four (24) hours before the scheduled application of any pesticide. Posting of warning signs during and after the application of any pesticide shall conform to the official label of the pesticide. Posting of warning signs at the time of application shall conform to the worker protection standard established by the Environmental Protection Agency (EPA), and shall remain posted until expiration of the applicable restricted-entry interval established by the EPA. The size of all signs, and the symbols and wording on all signs, shall conform to the worker protection standard established by the EPA. A posting notification area shall be provided daily for workers, and shall conform to the worker protection standard established by the EPA, and the State of Hawai`i. (2) Pesticide Pre-Application "Good Neighbor Courtesy Notices." Pesticide [Pre-application] pre-application notification must be provided to any requesting registered beekeeper, property owner, lessee, revocable permit holder, or person otherwise occupying any property within 1,500 feet from the property line of the commercial agricultural entity where any pesticide is anticipated to be applied. A mass notification list shall be established and maintained by each commercial agricultural entity, and shall include access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions. Any interested registered beekeeper, property owner, lessee, revocable permit holder, or person otherwise occupying any property within 1,500 feet from the property line of the operation of any commercial agricultural entity, shall submit contact information to the relevant commercial agricultural entity. These interested persons may submit up to three (3) local telephone numbers, and two (2) e-mail addresses. All mass notification messages shall be sent via telephone, text message, or e-mail, with the method or methods of transmittal to be determined by each commercial agricultural entity. Each commercial agricultural entity shall provide an alternative method of transmittal for any recipient who does not have access to the technology necessary for the method or methods of transmittal selected by the commercial agricultural entity. Requests to be included on, or removed from, the mass notification list must be processed within three (3) business days. These "good neighbor Draft 1, GH#1 8 October 15, 2013 Draft 1, GH#1 9 October 15, 2013 courtesy notices" shall contain the following information regarding all anticipated pesticide applications: pesticide to be used, active ingredient of pesticide to be used, date, time, and field number. All "good neighbor courtesy notices" shall also be submitted to the County of Kaua`i Office of Economic Development (OED) where they will be posted online and available for access by the general public. Any licensed physician or nurse practitioner shall be provided the disclosure information required in this Section 22-22.4(a)(2) immediately upon request based on the need to diagnose a person within his or her care. (A) Scheduled Weekly Applications. Each commercial agricultural entity shall send regular mass notification messages at least once during every seven (7) day week period summarizing the anticipated application of any pesticide for the upcoming seven (7) day week. (B) Unforeseen Pest Threat Necessary Applications. Whenever a pesticide application that was unforeseen and therefore not contained in the weekly "good neighbor courtesy notice" is deemed by the commercial agricultural entity to be necessary to alleviate a pest threat, an additional "good neighbor courtesy notice" shall be generated to all recipients of the mass notification list within twenty-four (24) hours after the application. (3) Pesticide Post-Application Weekly Public Disclosure. Each commercial agricultural entity shall submit regular public disclosure reports once during every seven (7) day week period compiling the actual application of all pesticides during the prior week. These weekly public disclosure reports shall contain the following information regarding all actual pesticide applications: date; time; field number; total acreage; pesticide used; label; Material Safety Data Sheet (MSDS); active ingredient of pesticide used; gallons or pounds of pesticide used, including total volume of applied material; and temperature, wind direction, and wind speed at time of pesticide application. Each commercial agricultural entity shall submit all public disclosure reports to [the County of Kaua`i Office of Economic Development (OED),] OED, and shall include online access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions for all applicable commercial agricultural entities. All public disclosure reports shall be posted online, and available for viewing and download by any interested persons. OED shall develop a standardized reporting form. (b) It shall be mandatory for all commercial agricultural entities that intentionally or knowingly possess any genetically modified organism to disclose the presence of said genetically modified organism. (1) Annual public reports of all genetically modified organisms intentionally or knowingly possessed during each calendar year shall be provided to the Office of Economic Development and shall be posted online on the County website. Direct notification to [the Department] OED documenting such disclosure shall occur no later than sixty (60) days following the end of each calendar year, except that the first report shall be due on the date this ordinance shall take effect. Draft 1, GH#1 9 October 15, 2013 Draft 1, GH#1 10 October 15, 2013 (2) Disclosure shall include a general description of each genetically modified organism, a general description of the geographic location including at minimum the Tax Map Key and ahupua a where each genetically modified organism is being grown or developed, and dates that each genetically modified organism was initially introduced to the County of Kaua`i. General description shall include information as to the species of the genetically modified organism; whether or not the genetically modified organism is experimental as defined in Section 22-22.3; and the general purpose of the genetically modified organism, including but not limited to, pest resistance, nutritional enhancement, drought resistance, and biopharmaceutical or bioindustrial designations. Any applicant to any federal agency for any permit for or approval of any bioproduct, field testing of any genetically modified organism, or environmental impact assessment of genetically modified organism shall submit one (1) copy of that application to OED, at the same time that the application is submitted to the federal agency." 4. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22-22.5 as follows: "Sec. 22-22.5 Pesticide Buffer Zones. (a) [Effective January 1, 2014 it] It shall be mandatory for all commercial agricultural entities that annually purchase or use in excess of five (5) pounds or fifteen (15) gallons of restricted use pesticides during any calendar year to restrict the application of all pesticides of any kind during the subsequent calendar year in the following areas: (1) No pesticide of any kind may be used within 500 feet of the property line of any school, park, medical facility, adult family boarding home, adult family group living home, day care center, family care home, family child care home, nursing home, or residential care home. [(2) No pesticide of any kind may be used within 100 feet of any park. (3) No pesticide of any kind may be used within 500 feet of any dwelling, except that if the commercial agricultural entity has an approved Soil and Water Conservation Plan that explicitly addresses pesticide drift on the dwelling, then no pesticide of any kind may be used within 100 feet of any dwelling. (4) No pesticide of any kind may be used within 100 feet of any public roadway, except that this restriction shall not apply to any existing orchard, provided that the orchard posts roadway signs along the roadway no sooner than twenty-four (24) hours before the scheduled application. Roadway signs shall be located at the start and end of the field along the public roadway where application will occur, and shall comply with all State of Hawai`i Department of Transportation requirements. (5) No pesticide of any kind may be used within 100 feet of any shoreline or perennial waterway that flows into the ocean. This provision shall not apply to any irrigation ditch that does not flow to the ocean. This provision shall not apply to any specific instance where the State of Hawai`i Draft 1, GH#1 10 October 15, 2013 Draft 1, GH#1 11 October 15, 2013 Department of Agriculture has authorized such pesticide use for public health purposes.] (2) No pesticide of any kind may be used within 500 feet of the property line of any parcel on which a dwelling is located, except that for any dwelling that is part of a contiguous parcel or related parcel owned or managed by a commercial agricultural entity regulated by this Section 22- 22.5, or by the commercial agricultural entity's lessor, then no pesticide of any kind may be used within 550 feet of any such dwelling. (3) No pesticide of any kind may be used within 500 feet of any shoreline. This provision shall not apply to any specific instance where the State of Hawai`i Department of Agriculture has authorized such pesticide use for public health purposes. (4) No pesticide of any kind may be used within 250 feet of perennial streams. This provision shall not apply to any specific instance where the State of Hawai`i Department of Agriculture has authorized such pesticide use for public health purposes. (5) No pesticide of any kind may be used within 100 feet of any other state waters. This provision shall not apply to any specific instance where the State of Hawai`i Department of Agriculture has authorized such pesticide use for public health purposes. (6) No pesticide of any kind may be used within 500 feet of any public roadway, except that pesticides may be used within 500 feet of any public roadway if the commercial agricultural entity posts notification signage on land that is adjacent to the public roadway. Notification signage must be of a size that is legible from vehicles traveling at the posted speed limit. At least one (1) sign must be placed at the beginning of the property boundary that is adjacent to the public roadway, at the end of the property boundary that is adjacent to the public roadway, and at intervals of 2,500 feet along the property boundary that is adjacent to the public roadway. (b) If this Section, or any part thereof, is determined to conflict with any labeling information pertaining to such pesticides [(restricted use, general use, or experimental)), the more restrictive and environmentally protective provisions shall apply." Draft 1, GH#1 11 October 15, 2013 Draft 1, GH#1 12 October 15, 2013 5. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22-22.6 as follows: "Sec. 22-22.6 Environmental and Public Health Impacts Study (EPHIS). (a) The County of Kaua`i shall complete an Environmental and Public Health Impact Study (EPHIS) through a [two-part] multi-part community-based process to address key environmental and public health questions related to large-scale commercial agricultural entities [using] utilizing pesticides and [growing] genetically modified [crops] organisms. [The] As determined by Council Resolution, the first part shall utilize a Joint Fact Finding Group (JFFG) convened and facilitated by a professional consultant to determine the scope and design of the EPHIS within twelve (12) months of the Notice to Proceed. In the second part of the process, the EPHIS shall be conducted by a professional consultant with oversight by the JFFG and shall be completed within eighteen (18) months of the relevant Notice to Proceed. The EPHIS shall make recommendations that include, but are not limited to, possible actions the County may take in order to address any significant effects, public health impacts, or both, as may be determined by the EPHIS. Upon completion of the EPHIS, the Council shall reconsider the buffer zone requirements referenced in Section 22-22.5 herein, based on recommendations made by the EPHIS. (b) In addition to other funding sources, the County may pay for the EPHIS process and other necessary mechanisms required for the implementation of this Article, from property taxes that are directly related to those commercial agricultural entities governed by this Article, through new permitting fees, or both." 6. Amend Bill No. 2491, Draft 1 by adding the proposed Section 22-22.7 as follows: "Sec. 22-22.7 Permitting. The County of Kaua`i may develop and implement a permitting process that applies to activities and entities contained within this Article. The permitting process shall include, but not be limited to, provisions that facilitate the elimination or mitigation of significant effects and impacts that may be identified in the Environmental and Public Health Impacts Study (EPHIS) described in Section 22-22.7. The County may administer and implement fees to be used for regulation and enforcement of this Article." 7. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22-22.8 as follows: "[Sec. 22-22.7] Sec. 22-22.8 Penalties. (a) Any person, firm, or corporation, whether as principal, agent, employee, or otherwise, violating, causing, or permitting the violation of any of the provisions of this Article, shall be assessed a civil fine of $10,000-$25,000 per day, per violation. (b) In addition to any penalty described in Subsection 22-22.7(a), any person, firm, or corporation, whether as principal, agent, employee, or otherwise, violating or causing or permitting the violation of any of the provisions of this Draft 1, GH#1 12 October 15, 2013 • Draft 1, GH#1 13 October 15, 2013 Article, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than two-thousand dollars ($2,000.00), or imprisoned not more than one (1) year, or both, for each offense. The continuance of any violation after conviction shall be deemed a new criminal offense for each day that the violation or violations continue." 8. Amend Bill No. 2491, Draft 1 by amending the proposed Section 22-22.9 as follows: "[Sec. 22-22.8] Sec. 22-22.9 Rulemaking. In order to effectuate all provisions of this Article, the Office of Economic Development may engage in any rulemaking it deems necessary or proper, utilizing the provisions of Hawai`i Revised Statutes Chapter 91." (Material to be deleted is bracketed. New material to be added is underscored.) V:\AMENDMENTS\2012-2014 term\Bill No. 2491, Draft 1 GH#1 10-15-2013 JH:aa Draft 1, GH#1 13 October 15, 2013 ATTACHMENT C Draft 1, NN & JY#2 1 October 15, 2013 (Continued October 08, 2013 Meeting) FLOOR AMENDMENT Bill No. 2491, Draft 1, Relating to Pesticides and Genetically Modified Organisms Introduced by: NADINE K. NAKAMURA and JOANN A. YUKIMURA Amend Bill No. 2491, Draft 1 in its entirety as follows: "SECTION 1. Chapter 22 of the Kaua`i County Code 1987, as amended, is hereby amended by adding a new Article 22 to read as follows: "ARTICLE 22. PESTICIDES AND GENETICALLY MODIFIED ORGANISMS Sec. 22-22.1 Findings. [(a)] In order to establish provisions governing the use of pesticides and genetically modified organisms (GMOs) by large-scale commercial agricultural entities on Kaua`i, the Council finds that: [(1)] Section 1, Article XI of the State Constitution states: "For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawai`i's natural beauty and all natural resources, including land, water, air, minerals, and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people." [(2)] (b) The growth of commercial agricultural entities engaged in the use and development of genetically modified organisms and the widespread use of pesticides in the County of Kaua`i has created a situation where residents live, work, and commute daily in close proximity to areas where there is regular application of restricted use pesticides and general use pesticides. [(3)] There are increasing concerns about the direct and long- term impacts of the large-scale use of pesticides, and the impacts that the intense agricultural cultivation is having on the land, on the natural environment, and on human health. [(4)] (d) Hawai`i Revised Statutes Section 46-1.5(13) states: "Each county shall have the power to enact ordinances deemed necessary to protect health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State." • [(5)] The County of Kaua`i has become a location of increasing commercial agriculture operations that utilize genetically modified organisms for the production of crop seed and field testing of new genetically modified organisms. Draft 1, NN & JY#2 1 October 15, 2013 Draft 1, NN & JY#2 2 October 15, 2013 [(6)] Genetically modified plants could potentially disperse into the environment of the County of Kaua`i through pollen drift, seed commingling, and inadvertent transfer of seeds by humans, animals, weather events, and other means. This could have environmental and economic impacts. [(7)] (g) Records obtained from the State of Hawai`i Department of Agriculture indicate that twenty-two (22) different restricted use pesticides, comprising approximately [5,477.2] 5,477 pounds, and [5,884.5] 5,885 gallons, were used during 2012 on Kaua`i by five (5) commercial agricultural entities, which constituted approximately 99% of the restricted use pesticides utilized by agricultural operations on Kaua`i. [(8)] f In 2012, restricted use pesticides were used on Kaua`i by agricultural operations (7,727 pounds and 5,892 gallons, or 13%), county government operations (28,350 pounds and zero (0) gallons of Chlorine Liquefied Gas for water and wastewater treatment, or 49%), and non- government operations for structural pest control termite treatment (25,828 pounds and 20 gallons, or 38%). [(9)] U Pesticides have the ability to contaminate groundwater, and are often toxic to humans, animals, bees, and other insects. Some restricted use pesticides are banned by the entire European Union. [(10)] U Dust and drift from both restricted use pesticides and general use pesticides sometimes [travels] travel beyond commercial agricultural operations. Dust, pesticide drift, and long-term exposure to toxic chemicals are potential sources of pollution endangering human health and the natural environment. [(11)] (k) Hawai`i Revised Statutes Section 46-17 states: "Any provision of law to the contrary notwithstanding, the council of any county may adopt and provide for the enforcement of ordinances regulating or prohibiting noise, smoke, dust, vibration, or odors which constitute a public nuisance. No such ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or rule of the State; provided that in any case of conflict between a statute or rule and an ordinance, the law affording the most protection to the public shall apply . . . .,, [(12)] f The impacts on the County of Kaua`i of large-scale intensive cultivation and associated agricultural practices should be further evaluated. [(13)] Information pertaining to the intensive use of pesticides within the County of Kaua`i, and the experimentation and growing of genetically modified organisms, is currently withheld from the public. Thus, the public is unable to evaluate the full extent of the impacts on the residents and environment of the County of Kaua`i. [(14)] In the interest of protecting the health of the people and fragile natural environment of the County of Kaua`i, the people of the County of Kaua`i have the right to know what pesticides are being used on a significant scale, and [whether or not] what genetically modified organisms Draft 1, NN & JY#2 2 October 15, 2013 Draft 1, NN & JY#2 3 October 15, 2013 are being grown within the jurisdiction of the County of Kaua`i. The people of the County of Kauai have the right to know the likely potential impacts on their human health, and the health of their environment. (o) It is the intent of the County to collaborate with the State of Hawai`i Department of Agriculture to support the implementation and enforcement of this Article. Sec. 22-22.2 Purpose. The purpose of this Article is to establish provisions to inform the public, and protect the public from any direct, indirect, or cumulative negative impacts on the health and the natural environment of the people and place of the County of Kaua`i, by governing the use of pesticides and genetically modified organisms, and the penalties associated with any violation of this Article, or the laws, rules, or any other requirement that may be authorized by this Article. Sec. 22-22.3 Definitions. When used in this Article, the following words or phrases shall have the meaning given in this Section unless it shall be apparent from the context that another meaning is intended: "Active ingredient" means: [(1)] In the case of a pesticide other than a plant regulator, defoliant, or desiccant, an ingredient which will prevent, destroy, repel, or mitigate any pest; [(2)] (b) In the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or maturation or otherwise alter the behavior of ornamental or crop plants or the produce thereof; [(3)] In the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant; and [(4)] In the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissues. "Adult family boarding home" means any family home providing for a fee, twenty-four (24) hour living accommodations to no more than five (5) adults, unrelated to the family, who are in need of minimal protective oversight care in their daily living activities, in compliance with State of Hawai`i or County of Kauai licensing requirements, or both. "Adult family group living home" means any family home providing twenty- four (24) hour living accommodations for a fee to five (5) to eight (8) elderly, handicapped, developmentally disabled, or totally disabled adults, unrelated to the family, who are in need of long-term minimal assistance and supervision in the adult's daily living activities, health care, and behavior management, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. ["Ahupua a" means a land division usually extending from the uplands to the sea.] Draft 1, NN & JY#2 3 October 15, 2013 Draft 1, NN & JY#2 4 October 15, 2013 "Agriculture" means the breeding, planting, nourishing, caring for, gathering and processing of any animal or plant organism for the purpose of nourishing people or any other plant or animal organism; or for the purpose of providing the raw material for non-food products. For the purposes of this Article, "agriculture" shall include the growing of flowers and other ornamental crops and the commercial breeding and caring for animals as pets. "Ahupua a" means a land division usually extending from the uplands to the sea. "Certified pesticide applicator" means any individual who is certified under Hawai`i Revised Statues Section 149A-33(1) as authorized to use or supervise the use of any pesticide which is classified for restricted use. "Commercial agricultural entity" means a firm, corporation, association, partnership, or any organized group of persons, whether incorporated or not, that is engaged in growing, developing, cultivating, or producing agricultural products. "County" means the County of Kaua`i. "Crop" means a plant or product thereof that can be grown and harvested for subsistence, profit, or research. "Day care center" means any facility where seven (7) or more children under the age of eighteen (18) are cared for without overnight accommodations at any location other than their normal place of residence, in compliance with State of Hawai`i or County of Kauai licensing requirements, or both. This term includes child care services and other similar uses and facilities consistent with this definition, and not covered by the "Family child care home" definition. "DOA" means the State of Hawai`i Department of Agriculture. "Dwelling" means a building or portion thereof designed or used exclusively for residential occupancy and having all necessary facilities for permanent residency such as living, sleeping, cooking, eating, and sanitation. "Environment" includes water, air, land, and all plants and humans and other animals living therein, and the interrelationships which exist among these. "EPA" means the United States Environmental Protection Agency. "Experimental genetically modified organisms" means organisms that have not received final approval by the Federal Food & Drug Administration, United States Department of Agriculture, United States Environmental Protection Agency, or the appropriate federal regulatory body, for human consumption, release into the environment, or both. "Family care home" means any care home occupied by not more than five (5) care home residents, in compliance with State of Hawai`i or County of Kauai licensing requirements, or both. "Family child care home" means providing child care services and other similar uses consistent with this definition where six (6) or fewer children under the age of eighteen (18) are cared for in a private dwelling unit without overnight Draft 1, NN & JY#2 4 October 15, 2013 Draft 1, NN & JY#2 5 October 15, 2013 accommodations at any location other than the children's normal place of residence, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "FDA" means the Federal Food & Drug Administration. "General use pesticide" means a pesticide other than one designated as a restricted use pesticide. "Genetically modified" means produced from an organism or organisms in which the genetic material has been genetically engineered through the application of: [(1)] In vitro nucleic acid techniques, which include, but are not limited to: recombinant deoxyribonucleic acid (DNA) techniques; direct injection of nucleic acid into cells or organelles; encapsulation; gene deletion; and doubling; or [(2)] (b) Methods of fusing cells beyond the taxonomic family that overcome natural physiological reproductive or recombinant barriers, and that are not techniques used in traditional breeding and selection such as conjugation, transduction, and hybridization. For purposes of this definition: [(3)] "In vitro nucleic acid techniques" include, but are not limited to, recombinant DNA or RNA techniques that use vector systems and techniques involving the direct introduction into the organisms of hereditary materials prepared outside the organisms such as micro-injection, macro- injection, chemoporation, electroporation, micro-encapsulation, and liposomefusion. [(4)] An animal that has not itself been genetically modified, regardless of whether such animal has been fed or injected with any food or any drug that has been produced through means of genetic modification, shall not be considered "genetically modified" for purposes of this Article. "Genetically modified organism" means an organism or organisms whose genetic material has been genetically modified. "Ground cover" means small plants such as salal, ivy, ferns, mosses, grasses, or other types of vegetation that normally cover the ground and includes trees and shrubs less than six (6) inches in diameter. "Medical facility" means a facility licensed by the State of Hawaii to provide medical services. "Nurse practitioner" means a person licensed as an advanced practice registered nurse under Hawai`i Revised Statutes Chapter 457. "Nursing home" means a facility established for profit or nonprofit, which provides nursing care and related medical services on a twenty-four (24) hour per day basis to two (2) or more individuals because of illness, disease, or physical or Draft 1, NN & JY#2 5 October 15, 2013 Draft 1, NN & JY#2 6 October 15, 2013 mental infirmity, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "OED" means the County of Kaua`i Office of Economic Development. "Orchard" means the establishment, care, and harvesting of over twenty-five (25) fruit-bearing trees, including, but not limited to, banana, coffee, guava, papaya, or persimmon, for the purpose of selling the fruit to others. "Organism" means any biological entity capable of replication, reproduction, or transferring genetic material. "Park" means any park, park roadway, playground, beach right-of-way, or other recreational areas under the control, management, and operation of the County of Kaua`i or State of Hawai`i." ["Perennial waterway" means a natural waterway that has continuous flow in parts of its waterway bed year round during years of normal rainfall.] "Pest" means any insect, rodent, nematode, fungus, weed, or any other form of terrestrial or aquatic plant or animal life or virus, bacterium, or any other microorganism, except viruses, bacterium, or any other microorganisms on or in living humans or other living animals, which the Administrator of the United States Environmental Protection Agency determines to be a pest. "Pesticide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, and any substance or mixture of substances intended for use as an attractant, plant regulator, defoliant, or desiccant. A product shall be deemed to be a pesticide regardless of whether it is intended for use as packaged, or as a dilution or mixture with substances such as carriers or baits. Products not considered pesticides include: [(1)] Laj Deodorants, bleaching agents, and cleaning agents for which no pesticidal claims are made or implied; [(2)] (b) Embalming fluids; [(3)] fcl Building materials which have been treated to protect the material itself against any pest and bear no claims for protection of other surfaces or objects; [(4)] (d) Fabrics which have been treated to protect the fabric itself from insects, fungi, or any other pests; [(5)] Fertilizer and other plant nutrients; and [(6)] (f) Products intended only for use after further processing or manufacturing such as grinding to dust or other operations. "Physician" means an individual authorized to practice medicine or osteopathy under Hawai`i Revised Statutes Chapter 453. Draft 1, NN & JY#2 6 October 15, 2013 Draft 1, NN & JY#2 7 October 15, 2013 "Public roadway" means a roadway on which the public is allowed to generally travel in a vehicle without obtaining special permission, or providing advance notice. "Registered beekeeper" means a person registered with the Hawai`i Apiary Program, through the State of Hawaii Department of Agriculture. "Residential care home" means any care home facility occupied by more than five (5) care home residents, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "Restricted-entry interval" means the time after the end of a pesticide application during which entry into the treated area is restricted, as contained within the Worker Protection Standard for Agricultural Pesticides regulation established by the Environmental Protection Agency, and specified on all agricultural plant pesticide product labels. "Restricted use pesticide" means: [(1)] ) A pesticide or pesticide use classified by the Administrator of the United States Environmental Protection Agency for use by certified applicators or competent persons under their direct supervision and so designated on the label of the pesticide; or [(2)] (b) A pesticide or pesticide use classified by the Hawai`i Board of Agriculture for use by certified applicators or competent persons under their direct supervision. "School" means an institution with an organized curriculum offering instruction. "Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves. "Significant effect" means the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State. "Stream" means any river, creek, slough, or natural watercourse in which water usually flows in a defined bed or channel. It is not essential that the flowing be uniform or uninterrupted. The fact that some parts of the bed or channel have been dredged or improved does not prevent the watercourse from being a stream. "USDA" means the United States Department of Agriculture. "Worker protection standard" means the Worker Protection Standard for Agricultural Pesticides regulation established by the Environmental Protection Agency, which is aimed at reducing the risk of pesticide poisonings and injuries Draft 1, NN & JY#2 7 October 15, 2013 Draft 1, NN & JY#2 8 October 15, 2013 among agricultural workers and pesticide handlers, and contains requirements for pesticide safety training, notification of pesticide applications, use of personal protective equipment, restricted-entry intervals after pesticide application, decontamination supplies, and emergency medical assistance. Sec. 22-22.4 Mandatory Disclosure of Pesticides, and Genetically Modified Organisms. (a) It shall be mandatory for all commercial agricultural entities that [annually purchase or use] purchased or used in excess of five (5) pounds or fifteen (15) gallons of [restricted use pesticides] any single restricted use pesticide during [any] the prior calendar year to disclose the use of all pesticides during [that same] the following calendar year. Disclosure requirements include: (1) Worker Protection Standard. Posting of warning signs in the area in which pesticides are to be applied no sooner than twenty-four (24) hours before the scheduled application of any pesticide. Posting of warning signs during and after the application of any pesticide shall conform to the official label of the pesticide. Posting of warning signs at the time of application shall conform to the worker protection standard established by the Environmental Protection Agency (EPA), and shall remain posted until expiration of the applicable restricted-entry interval established by the EPA. The size of all signs, and the symbols and wording on all signs, shall conform to the worker protection standard established by the EPA. A posting notification area shall be provided daily for workers, and shall conform to the worker protection standard established by the EPA, and the State of Hawai`i. (2) Pesticide Pre-Application "Good Neighbor Courtesy Notices." Pesticide [Pre-application] pre-application notification must be provided to any [requesting] of the following requesting persons within 1,500 feet from the property line of the commercial agricultural entity where any pesticide is anticipated to be applied: registered beekeeper, property owner, lessee, or person otherwise occupying [any property within 1,500 feet from the property line of the commercial agricultural entity where any pesticide is anticipated to be applied.] property within 1,500 feet. Pre-application notification must also be provided to any revocable permit holder authorized to enter the property of the commercial agricultural entity. A mass notification list shall be established and maintained by each commercial agricultural entity, and shall include access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions. Any interested [registered beekeeper, property owner, lessee, or person otherwise occupying any property within 1,500 feet from the property line of the operation of any commercial agricultural entity,] person as described in this Section 22- 22.4(a)(2) shall submit contact information to the relevant commercial agricultural entity. These interested persons may submit up to three (3) local telephone numbers, and two (2) e-mail addresses. All mass notification messages shall be sent via telephone, text message, or e-mail, with the method or methods of transmittal to be determined by each commercial agricultural entity. Each commercial agricultural entity shall provide an alternative method of transmittal for any recipient who does not have access to the technology necessary for the method or methods of transmittal selected by the commercial agricultural entity. Requests to be included on, or removed from, the mass notification list must be processed within three (3) business days. These "good neighbor courtesy notices" shall contain the Draft 1, NN & JY#2 8 October 15, 2013 Draft 1, NN & JY#2 9 October 15, 2013 following information regarding all anticipated pesticide applications: pesticide to be used, active ingredient of pesticide to be used, date, time, and field number. (A) Scheduled Weekly Applications. Each commercial agricultural entity shall send regular mass notification messages at least once during every seven (7) day week period summarizing the anticipated application of any pesticide for the upcoming seven (7) day week. (B) Unforeseen Pest Threat Necessary Applications. Whenever a pesticide application that was unforeseen and therefore not contained in the weekly "good neighbor courtesy notice" is deemed by the commercial agricultural entity to be necessary to alleviate a pest threat, an additional "good neighbor courtesy notice" shall be generated to all recipients of the mass notification list within twenty-four (24) hours after the application. (3) Pesticide Post-Application Weekly Public Disclosure. Each commercial agricultural entity shall submit regular public disclosure reports once during every seven (7) day week period compiling the actual application of all pesticides during the prior week. These weekly public disclosure reports shall contain the following information regarding all actual pesticide applications: date; time; field number; total acreage; trade name of pesticide used; EPA registration number; active ingredient of pesticide used; gallons or pounds of pesticide used; and temperature, wind direction, and wind speed at time of pesticide application. Each commercial agricultural entity shall submit all public disclosure reports to the County of Kaua`i Office of Economic Development (OED), and shall include online access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions for all applicable commercial agricultural entities. All public disclosure reports shall be posted online, and available for viewing and download by any interested persons. OED shall develop a standardized reporting form. (4) Pesticide Post-Application Urgent/Emergency Care Disclosure. Each commercial agricultural entity shall establish an emergency response hotline to be made available to any licensed physician or nurse practitioner practicing in association with a clinic, medical facility, or emergency center. Within six (6) hours of a request from any such licensed physician or nurse practitioner who provides a documented medical need, the commercial agricultural entity must provide the following information regarding all actual pesticide applications related to the alleged incident: date; time; field number; total acreage; trade name of pesticide used; EPA registration number; active ingredient of pesticide used; gallons or pounds of pesticide used; and temperature, wind direction, and wind speed at time of pesticide application. (b) It shall be mandatory for all commercial agricultural entities that intentionally or knowingly possess any genetically modified organism to disclose the [presence of] growing of said genetically modified organism. (1) Annual public reports [of all genetically modified organisms intentionally or knowingly possessed during each calendar year] shall be Draft 1, NN & JY#2 9 October 15, 2013 Draft 1, NN & JY#2 10 October 15, 2013 provided to the Office of Economic Development and the State of Hawai`i Department of Agriculture (DOA), and shall be posted online on the County website. Direct notification to [the Department] OED and DOA documenting such disclosure shall occur no later than sixty (60) days following the end of each calendar year, except that the first reports shall be due on the date this ordinance shall take effect. (2) [Disclosure] Annual public reports shall include a general description of each genetically modified organism (e.g., "GMO Corn" or "GMO Soy"), a general description of the geographic location including at minimum the Tax Map Key and ahupua a where each genetically modified organism is being grown or developed, and dates that each genetically modified organism was initially introduced to the land in question." Sec. 22-22.5 Pesticide Buffer Zones. (a) [Effective January 1, 2014 it] It shall be mandatory for all commercial agricultural entities that [annually purchase or use] purchased or used in excess of five (5) pounds or fifteen (15) gallons of [restricted use pesticides] any single restricted use pesticide during [any] the prior calendar year to restrict the growing of crops, except ground cover to which no pesticide is applied, and thereby restrict the application of all pesticides in the following areas: (1) [No pesticide of any kind may be used] No crops may be grown within 500 feet of any [school, medical facility,] adult family boarding home, adult family group living home, day care center, family care home, family child care home, medical facility,. nursing home, [or] residential care home[.],, or school. (2) [No pesticide of any kind may be used] No crops may be grown within 100 feet of any park. (3) [No pesticide of any kind may be used] No crops may be grown within 500 feet of any dwelling, [except that if the commercial agricultural entity has an approved Soil and Water Conservation Plan that explicitly addresses pesticide drift on the dwelling, then no pesticide of any kind may be used within 100 feet of any dwelling.] unless: (A) The commercial agricultural entity has an approved Soil and Water Conservation Plan that explicitly demonstrates no pesticide drift on the dwelling, then no crops may be grown within 100 feet of any dwelling; or (B) The dwelling is owned by the landowner, and occupied by the landowner or a family member of the landowner, and there are no other dwellings occupied by third-parties within 500 feet of the landowner dwelling, then there shall be no pesticide buffer zone restricting growing of crops in proximity to the landowner dwelling; or (C) Regarding a mature orchard, the crops of which grow in a hedge-like manner creating a windbreak effect, if pesticide application occurs between crop rows from a source no higher than two (2) feet from the ground, for the purpose of eliminating weeds in the ground, then no crops may be grown within 75 feet of any dwelling. Draft 1, NN & JY#2 10 October 15, 2013 Draft 1, NN & JY#2 11 October 15, 2013 [(4) No pesticide of any kind may be used within 100 feet of any public roadway, except that this restriction shall not apply to any existing orchard, provided that the orchard posts roadway signs along the roadway no sooner than twenty-four (24) hours before the scheduled application. Roadway signs shall be located at the start and end of the field along the public roadway where application will occur, and shall comply with all State of Hawai`i Department of Transportation requirements.] (4) No crops may be grown within 100 feet of any public roadway, except that pesticides may be used within 100 feet of any public roadway if the commercial agricultural entity posts notification signage on land that is adjacent to the public roadway no sooner than twenty-four (24) hours before the scheduled application. Roadway signs shall be located at the start and end of the field along the public roadway where application will occur, shall be of a size that is legible from vehicles traveling at the posted speed limit, and shall comply with all State of Hawai`i Department of Transportation requirements. (5) [No pesticide of any kind may be used] No crops may be grown within 100 feet of any shoreline or [perennial waterway] stream that flows into the ocean. This provision shall not apply to any irrigation ditch or drainage canal that does not directly flow to the ocean. [This provision shall not apply to any specific instance where the State of Hawai`i Department of Agriculture has authorized such pesticide use for public health purposes.] (b) The provisions in Section 22-22.5(a) shall not apply to any specific instance where any County, State, or Federal government agency has authorized such pesticide use for public health or safety purposes. [(b)] If this Section, or any part thereof, is determined to conflict with any pesticide labeling information [pertaining to such pesticides (restricted use, general use, or experimental)], the more restrictive and environmentally protective provisions shall apply." Sec. 22-22.6 Environmental and Public Health Impacts Study (EPHIS). The County of Kaua`i shall complete an Environmental and Public Health Impact Study (EPHIS) through a two-part community-based process to address key environmental and public health questions related to large-scale commercial agricultural entities [using] utilizing pesticides and [growing] genetically modified [crops] organisms. [The] As determined by Council Resolution, the first part shall utilize a Joint Fact Finding Group (JFFG) convened and facilitated by a professional consultant to determine the scope and design of the EPHIS within twelve (12) months of the Notice to Proceed. In the second part of the process, the EPHIS shall be conducted by a professional consultant with oversight by the JFFG and shall be completed within eighteen (18) months of the relevant Notice to Proceed. The EPHIS may make recommendations that include, but are not limited to, possible actions the County may take in order to address any significant effects, public health impacts, or both. Draft 1, NN & JY#2 11 October 15, 2013 • Draft 1, NN & JY#2 12 October 15, 2013 Sec. 22-22.7 Penalties. (a) Any person, firm, or corporation, whether as principal, agent, employee, or otherwise, violating, causing, or permitting the violation of any of the provisions of this Article, shall be assessed a civil fine of $10,000-$25,000 per day, per violation. (b) In addition to any penalty described in Subsection 22-22.7(a), any person, firm, or corporation, whether as principal, agent, employee, or otherwise, violating or causing or permitting the violation of any of the provisions of this Article, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than two-thousand dollars ($2,000.00), or imprisoned not more than one (1) year, or both, for each offense. The continuance of any violation after conviction shall be deemed a new criminal offense for each day that the violation or violations continue. Sec. 22-22.8 Rulemaking. In order to effectuate all provisions of this Article, the Office of Economic Development may engage in any rulemaking it deems necessary or proper, utilizing the provisions of Hawai`i Revised Statutes Chapter 91. In so doing, OED is authorized to collaborate with the State of Hawai`i Department of Agriculture. SECTION 2. Severability Clause. If any provision of this ordinance or the application thereof to any person, commercial agricultural entity, or circumstance is held invalid, the invalidity does not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. SECTION 3. New material is underscored. In printing this ordinance, the brackets, bracketed material, and underscoring need not be included. SECTION 4. This ordinance shall take effect [six (6)] nine (9) months after its approval." (Material to be deleted is bracketed. New material to be added is underscored.) V:\AMENDMENTS\2012-2014 term\Bill No. 2491, Draft 1 NN &JY#2 10-15-2013 JH Draft 1, NN & JY#2 12 October 15, 2013 ATTACHMENT D Draft 1, NN & JY#3 1 October 15, 2013 (Continued October 08, 2013 Meeting) FLOOR AMENDMENT Bill No. 2491, Draft 1, Relating to Pesticides and Genetically Modified Organisms Introduced by: NADINE K. NAKAMURA and JOANN A. YUKIMURA Amend Bill No. 2491, Draft 1 in its entirety as follows: "SECTION 1. Chapter 22 of the Kaua`i County Code 1987, as amended, is hereby amended by adding a new Article 22 to read as follows: "ARTICLE 22. PESTICIDES AND GENETICALLY MODIFIED ORGANISMS Sec. 22-22.1 Findings. [(a)] In order to establish provisions governing the use of pesticides and genetically modified organisms (GMOs) by large-scale commercial agricultural entities on Kaua`i, the Council finds that: [(1)] Section 1, Article XI of the State Constitution states: "For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawai`i's natural beauty and all natural resources, including land, water, air, minerals, and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people." [(2)] (b) The growth of commercial agricultural entities engaged in the use and development of genetically modified organisms and the widespread use of pesticides in the County of Kaua`i has created a situation where residents live, work, and commute daily in close proximity to areas where there is regular application of restricted use pesticides and general use pesticides. [(3)] Lel There are increasing concerns about the .direct and long- term impacts of the large-scale use of pesticides, and the impacts that the intense agricultural cultivation is having on the land, on the natural environment, and on human health. [(4)] Hawai`i Revised Statutes Section 46-1.5(13) states: "Each county shall have the power to enact ordinances deemed necessary to protect health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State." [(5)] The County of Kaua`i has become a location of increasing commercial agriculture operations that utilize genetically modified organisms for the production of crop seed and field testing of new genetically modified organisms. Draft 1, NN & JY#3 1 October 15, 2013 Draft 1, NN & JY#3 2 October 15, 2013 [(6)] (f) Genetically modified plants could potentially disperse into the environment of the County of Kaua`i through pollen drift, seed commingling, and inadvertent transfer of seeds by humans, animals, weather events, and other means. This could have environmental and economic impacts. [(7)] (g) Records obtained from the State of Hawai`i Department of Agriculture indicate that twenty-two (22) different restricted use pesticides, comprising approximately [5,477.2] 5,477 pounds, and [5,884.5] 5,885 gallons, were used during 2012 on Kaua`i by five (5) commercial agricultural entities, which constituted approximately 99% of the restricted use pesticides utilized by agricultural operations on Kaua`i. [(8)] (h) In 2012, restricted use pesticides were used on Kaua`i by agricultural operations (7,727 pounds and 5,892 gallons, or 13%), county government operations (28,350 pounds and zero (0) gallons of Chlorine Liquefied Gas for water and wastewater treatment, or 49%), and non- government operations for structural pest control termite treatment (25,828 pounds and 20 gallons, or 38%). [(9)] Pesticides have the ability to contaminate groundwater, and are often toxic to humans, animals, bees, and other insects. Some restricted use pesticides are banned by the entire European Union. [(10)] fil Dust and drift from both restricted use pesticides and general use pesticides sometimes [travels] travel beyond commercial agricultural operations. Dust, pesticide drift, and long-term exposure to toxic chemicals are potential sources of pollution endangering human health and the natural environment. [(11)] (k) Hawai`i Revised Statutes Section 46-17 states: "Any provision of law to the contrary notwithstanding, the council of any county may adopt and provide for the enforcement of ordinances regulating or prohibiting noise, smoke, dust, vibration, or odors which constitute a public nuisance. No such ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or rule of the State; provided that in any case of conflict between a statute or rule and an ordinance, the law affording the most protection to the public shall apply . . . .,, [(12)] The impacts on the County of Kaua`i of large-scale intensive cultivation and associated agricultural practices should be further evaluated. [(13)] (m) Information pertaining to the intensive use of pesticides within the County of Kaua`i, and the experimentation and growing of genetically modified organisms, is currently withheld from the public. Thus, the public is unable to evaluate the full extent of the impacts on the residents and environment of the County of Kaua`i. [(14)] (n) In the interest of protecting the health of the people and fragile natural environment of the County of Kaua`i, the people of the County of Kaua`i have the right to know what pesticides are being used on a significant scale, and [whether or not] what genetically modified organisms Draft 1, NN & JY#3 2 October 15, 2013 Draft 1, NN & JY#3 3 October 15, 2013 are being grown within the jurisdiction of the County of Kaua`i. The people of the County of Kaua`i have the right to know the likely potential impacts on their human health, and the health of their environment. (o) It is the intent of the County to collaborate with the State of Hawai`i Department of Agriculture to support the implementation and enforcement of this Article. Sec. 22-22.2 Purpose. The purpose of this Article is to establish provisions to inform the public, and protect the public from any direct, indirect, or cumulative negative impacts on the health and the natural environment of the people and place of the County of Kaua`i, by governing the use of pesticides and genetically modified organisms, and the penalties associated with any violation of this Article, or the laws, rules, or any other requirement that may be authorized by this Article. Sec. 22-22.3 Definitions. When used in this Article, the following words or phrases shall have the meaning given in this Section unless it shall be apparent from the context that another meaning is intended: "Active ingredient" means: [(1)] In the case of a pesticide other than a plant regulator, defoliant, or desiccant, an ingredient which will prevent, destroy, repel, or mitigate any pest; [(2)] (b) In the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or maturation or otherwise alter the behavior of ornamental or crop plants or the produce thereof; [(3)] Lei In the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant; and [(4)] Lcn In the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissues. "Adult family boarding home" means any family home providing for a fee, twenty-four (24) hour living accommodations to no more than five (5) adults, unrelated to the family, who are in need of minimal protective oversight care in their daily living activities, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "Adult family group living home" means any family home providing twenty- four (24) hour living accommodations for a fee to five (5) to eight (8) elderly, handicapped, developmentally disabled, or totally disabled adults, unrelated to the family, who are in need of long-term minimal assistance and supervision in the adult's daily living activities, health care, and behavior management, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. ["Ahupua a" means a land division usually extending from the uplands to the sea.] Draft 1, NN & JY#3 3 October 15, 2013 Draft 1, NN & JY#3 4 October 15, 2013 "Agriculture" means the breeding, planting, nourishing, caring for, gathering and processing of any animal or plant organism for the purpose of nourishing people or any other plant or animal organism; or for the purpose of providing the raw material for non-food products. For the purposes of this Article, "agriculture" shall include the growing of flowers and other ornamental crops and the commercial breeding and caring for animals as pets. "Ahupua a" means a land division usually extending from the uplands to the sea. "Certified pesticide applicator" means any individual who is certified under Hawai`i Revised Statues Section 149A-33(1) as authorized to use or supervise the use of any pesticide which is classified for restricted use. "Commercial agricultural entity" means a firm, corporation, association, partnership, or any organized group of persons, whether incorporated or not, that is engaged in growing, developing, cultivating, or producing agricultural products. "County" means the County of Kaua`i. "Crop" means a plant or product thereof that can be grown and harvested for subsistence, profit, or research. "Day care center" means any facility where seven (7) or more children under the age of eighteen (18) are cared for without overnight accommodations at any location other than their normal place of residence, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. This term includes child care services and other similar uses and facilities consistent with this definition, and not covered by the "Family child care home" definition. "DOA" means the State of Hawai`i Department of Agriculture. "Dwelling" means a building or portion thereof designed or used exclusively for residential occupancy and having all necessary facilities for permanent residency such as living, sleeping, cooking, eating., and sanitation. "Environment" includes water, air, land, and all plants and humans and other animals living therein, and the interrelationships which exist among these. "EPA" means the United States Environmental Protection Agency. "Experimental genetically modified organisms" means organisms that have not received final approval by the Federal Food & Drug Administration, United States Department of Agriculture, United States Environmental Protection Agency, or the appropriate federal regulatory body, for human consumption, release into the environment, or both. "Family care home" means any care home occupied by not more than five (5) care home residents, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "Family child care home" means providing child care services and other similar uses consistent with this definition where six (6) or fewer children under the age of eighteen (18) are cared for in a private dwelling unit without overnight Draft 1, NN & JY#3 4 October 15, 2013 Draft 1, NN & JY#3 5 October 15, 2013 accommodations at any location other than the children's normal place of residence, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "FDA" means the Federal Food & Drug Administration. "General use pesticide" means a pesticide other than one designated as a restricted use pesticide. "Genetically modified" means produced from an organism or organisms in which the genetic material has been genetically engineered through the application of: [(1)] In vitro nucleic acid techniques, which include, but are not limited to: recombinant deoxyribonucleic acid (DNA) techniques; direct injection of nucleic acid into cells or organelles; encapsulation; gene deletion; and doubling; or [(2)] (b) Methods of fusing cells beyond the taxonomic family that overcome natural physiological reproductive or recombinant barriers, and that are not techniques used in traditional breeding and selection such as conjugation, transduction, and hybridization. For purposes of this definition: [(3)] "In vitro nucleic acid techniques" include, but are not limited to, recombinant DNA or RNA techniques that use vector systems and techniques involving the direct introduction into the organisms of hereditary materials prepared outside the organisms such as micro-injection, macro- injection, chemoporation, electroporation, micro-encapsulation, and liposomefusion. [(4)] An animal that has not itself been genetically modified, regardless of whether such animal has been fed or injected with any food or any drug that has been produced through means of genetic modification, shall not be considered "genetically modified" for purposes of this Article. "Genetically modified organism" means an organism or organisms whose genetic material has been genetically modified. "Ground cover" means small plants such as salal, ivv, ferns, mosses, grasses, or other types of vegetation that normally cover the ground and includes trees and shrubs less than six (6) inches in diameter. "Medical facility" means a facility licensed by the State of Hawai`i to provide medical services. "Nurse practitioner" means a person licensed as an advanced practice registered nurse under Hawai`i Revised Statutes Chapter 457. "Nursing home" means a facility established for profit or nonprofit, which provides nursing care and related medical services on a twenty-four (24) hour per day basis to two (2) or more individuals because of illness, disease, or physical or Draft 1, NN & JY#3 5 October 15, 2013 Draft 1, NN & JY#3 6 October 15, 2013 mental infirmity, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "OED" means the County of Kaua`i Office of Economic Development. "Orchard" means the establishment, care, and harvesting of over twenty-five (25) fruit-bearing trees, including, but not limited to, banana, coffee, guava, papaya, or persimmon, for the purpose of selling the fruit to others. "Organism" means any biological entity capable of replication, reproduction, or transferring genetic material. "Park" means any park, park roadway, playground, beach right-of-way, or other recreational areas under the control, management, and operation of the County of Kaua`i or State of Hawai`i." "Perennial waterway" means a natural waterway that has continuous flow in parts of its waterway bed year round during years of normal rainfall. "Pest" means any insect, rodent, nematode, fungus, weed, or any other form of terrestrial or aquatic plant or animal life or virus, bacterium, or any other microorganism, except viruses, bacterium, or any other microorganisms on or in living humans or other living animals, which the Administrator of the United States Environmental Protection Agency determines to be a pest. "Pesticide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, and any substance or mixture of substances intended for use as an attractant, plant regulator, defoliant, or desiccant. A product shall be deemed to be a pesticide regardless of whether it is intended for use as packaged, or as a dilution or mixture with substances such as carriers or baits. Products not considered pesticides include: [(1)] Deodorants, bleaching agents, and cleaning agents for which no pesticidal claims are made or implied; [(2)] (b) Embalming fluids; [(3)] Building materials which have been treated to protect the material itself against any pest and bear no claims for protection of other surfaces or objects; [(4)] .d,) Fabrics which have been treated to protect the fabric itself from insects, fungi, or any other pests; [(5)] f / Fertilizer and other plant nutrients; and [(6)] (f) Products intended only for use after further processing or manufacturing such as grinding to dust or other operations. "Physician" means an individual authorized to practice medicine or osteopathy under Hawai`i Revised Statutes Chapter 453. Draft 1, NN & JY#3 6 October 15, 2013 Draft 1, NN & JY#3 7 October 15, 2013 "Public roadway" means a roadway on which the public is allowed to generally travel in a vehicle without obtaining special permission, or providing advance notice. "Registered beekeeper" means a person registered with the Hawai`i Apiary Program, through the State of Hawai`i Department of Agriculture. "Residential care home" means any care home facility occupied by more than five (5) care home residents, in compliance with State of Hawai`i or County of Kaua`i licensing requirements, or both. "Restricted-entry interval" means the time after the end of a pesticide application during which entry into the treated area is restricted, as contained within the Worker Protection Standard for Agricultural Pesticides regulation established by the Environmental Protection Agency, and specified on all agricultural plant pesticide product labels. "Restricted use pesticide" means: [(1)] A pesticide or pesticide use classified by the Administrator of the United States Environmental Protection Agency for use by certified applicators or competent persons under their direct supervision and so designated on the label of the pesticide; or [(2)] (b) A pesticide or pesticide use classified by the Hawai`i Board of Agriculture for use by certified applicators or competent persons under their direct supervision. "School" means an institution with an organized curriculum offering instruction. "Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves. "Significant effect" means the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State. "USDA" means the United States Department of Agriculture. "Worker protection standard" means the Worker Protection Standard for Agricultural Pesticides regulation established by the Environmental Protection Agency, which is aimed at reducing the risk of pesticide poisonings and injuries among agricultural workers and pesticide handlers, and contains requirements for pesticide safety training, notification of pesticide applications, use of personal protective equipment, restricted-entry intervals after pesticide application, decontamination supplies, and emergency medical assistance. Draft 1, NN & JY#3 7 October 15, 2013 Draft 1, NN & JY#3 8 October 15, 2013 Sec. 22-22.4 Mandatory Disclosure of Pesticides, and Genetically Modified Organisms. (a) It shall be mandatory for all commercial agricultural entities that [annually purchase or use] purchased or used in excess of five (5) pounds or fifteen (15) gallons of [restricted use pesticides] any single restricted use pesticide during [any] the prior calendar year to disclose the use of all pesticides of any kind during [that same] the following calendar year. Disclosure requirements include: (1) Worker Protection Standard. Posting of warning signs in the area in which pesticides are to be applied no sooner than twenty-four (24) hours before the scheduled application of any pesticide. Posting of warning signs during and after the application of any pesticide shall conform to the official label of the pesticide. Posting of warning signs at the time of application shall conform to the worker protection standard established by the Environmental Protection Agency (EPA), and shall remain posted until expiration of the applicable restricted-entry interval established by the EPA. The size of all signs, and the symbols and wording on all signs, shall conform to the worker protection standard established by the EPA. A posting notification area shall be provided daily for workers, and shall conform to the worker protection standard established by the EPA, and the State of Hawaii. (2) Pesticide Pre-Application "Good Neighbor Courtesy Notices." Pesticide [Pre-application] pre-application notification must be provided to any [requesting] of the following requesting persons within 1,500 feet from the property line of the commercial agricultural entity where any pesticide is anticipated to be applied: registered beekeeper, property owner, lessee, or person otherwise occupying [any property within 1,500 feet from the property line of the commercial agricultural entity where any pesticide is anticipated to be applied.] property within 1,500 feet. Pre-application notification must also be provided to any revocable permit holder authorized to enter the property of the commercial agricultural entity. A mass notification list shall be established and maintained by each commercial agricultural entity, and shall include access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions. Any interested [registered beekeeper, property owner, lessee, or person otherwise occupying any property within 1,500 feet from the property line of the operation of any commercial agricultural entity,] person as described in this Section 22- 22.4(a)(2) shall submit contact information to the relevant commercial agricultural entity. These interested persons may submit up to three (3) local telephone numbers, and two (2) e-mail addresses. All mass notification messages shall be sent via telephone, text message, or e-mail, with the method or methods of transmittal to be determined by each commercial agricultural entity. Each commercial agricultural entity shall provide an alternative method of transmittal for any recipient who does not have access to the technology necessary for the method or methods of transmittal selected by the commercial agricultural entity. Requests to be included on, or removed from, the mass notification list must be processed within three (3) business days. These "good neighbor courtesy notices" shall contain the following information regarding all anticipated pesticide applications: pesticide to be used, active ingredient of pesticide to be used, date, time, and field number. Draft 1, NN & JY#3 8 October 15, 2013 Draft 1, NN & JY#3 9 October 15, 2013 (A) Scheduled Weekly Applications. Each commercial agricultural entity shall send regular mass notification messages at least once during every seven (7) day week period summarizing the anticipated application of any pesticide for the upcoming seven (7) day week. (B) Unforeseen Pest Threat Necessary Applications. Whenever a pesticide application that was unforeseen and therefore not contained in the weekly "good neighbor courtesy notice" is deemed by the commercial agricultural entity to be necessary to alleviate a pest threat, an additional "good neighbor courtesy notice" shall be generated to all recipients of the mass notification list within twenty-four (24) hours after the application. (3) Pesticide Post-Application Weekly Public Disclosure. Each commercial agricultural entity shall submit regular public disclosure reports once during every seven (7) day week period compiling the actual application of all pesticides during the prior week. These weekly public disclosure reports shall contain the following information regarding all actual pesticide applications: date; time; field number; total acreage; trade name of pesticide used; EPA registration number; active ingredient of pesticide used; gallons or pounds of pesticide used; and temperature, wind direction, and wind speed at time of pesticide application. Each commercial agricultural entity shall submit all public disclosure reports to the County of Kaua`i Office of Economic Development (OED), and shall include online access to a legible map showing all field numbers and any key, legend, or other necessary map descriptions for all applicable commercial agricultural entities. All public disclosure reports shall be posted online, and available for viewing and download by any interested persons. OED shall develop a standardized reporting form. (4) Pesticide Post-Application Urgent/Emergency Care Disclosure. Each commercial agricultural entity shall establish an emergency response hotline to be made available to any licensed physician or nurse practitioner practicing in association with a clinic, medical facility, or emergency center. Within six (6) hours of a request from any such licensed physician or nurse practitioner who provides a documented medical need, the commercial agricultural entity must provide the following information regarding all actual pesticide applications related to the alleged incident: date; time; field number; total acreage; trade name of pesticide used; EPA registration number; active ingredient of pesticide used; gallons or pounds of pesticide used; and temperature, wind direction, and wind speed at time of pesticide application. (b) It shall be mandatory for all commercial agricultural entities that intentionally or knowingly possess any genetically modified organism to disclose the [presence of] growing of said genetically modified organism. (1) Annual public reports [of all genetically modified organisms intentionally or knowingly possessed during each calendar year] shall be provided to the Office of Economic Development and the State of Hawai`i Department of Agriculture (DOA), and shall be posted online on the County website. Direct notification to [the Department] OED and DOA documenting such disclosure shall occur no later than sixty (60) days following the end of Draft 1, NN & JY#3 9 October 15, 2013 • Draft 1, NN & JY#3 10 October 15, 2013 each calendar year, except that the first reports shall be due on the date this ordinance shall take effect. (2) [Disclosure] Annual public reports shall include a general description of each genetically modified organism (e.g., "GMO Corn" or "GMO Sov"), a general description of the geographic location including at minimum the Tax Map Key and ahupua a where each genetically modified organism is being grown or developed, and dates that each genetically modified organism was initially introduced to the land in question." Sec. 22-22.5 Pesticide Buffer Zones. (a) [Effective January 1, 2014 it] It shall be mandatory for all commercial agricultural entities that [annually purchase or use] purchased or used in excess of five (5) pounds or fifteen (15) gallons of [restricted use pesticides] any single restricted use pesticide during [any] the prior calendar year to restrict the growing of crops, except ground cover to which no pesticide is applied, and thereby restrict the application of all pesticides in the following areas: (1) [No pesticide of any kind may be used] No crops may be grown within 500 feet of any [school, medical facility,] adult family boarding home, adult family group living home, day care center, family care home, family child care home, medical facility, nursing home, [or] residential care home[.],_ or school. (2) [No pesticide of any kind may be used] No crops may be grown within 100 feet of any park. (3) [No pesticide of any kind may be used] No crops may be grown within 500 feet of any dwelling, [except that if the commercial agricultural entity has an approved Soil and Water Conservation Plan that explicitly addresses pesticide drift on the dwelling, then no pesticide of any kind may be used within 100 feet of any dwelling.] unless: (A) The commercial agricultural entity has an approved Soil and Water Conservation Plan that explicitly demonstrates no pesticide drift on the dwelling, then no crops may be grown within 100 feet of any dwelling; or (B) The dwelling is owned by the landowner, and occupied by the landowner or a family member of the landowner, and there are no other dwellings occupied by third-parties within 500 feet of the landowner dwelling, then there shall be no pesticide buffer zone restricting growing of crops in proximity to the landowner dwelling; or (C) Regarding a mature orchard, the crops of which grow in a hedge-like manner creating a windbreak effect, if pesticide application occurs between crop rows from a source no higher than two (2) feet from the ground, for the purpose of eliminating weeds in the ground, then no crops may be grown within 75 feet of any dwelling. [(4) No pesticide of any kind may be used within 100 feet of any public roadway, except that this restriction shall not apply to any existing orchard, provided that the orchard posts roadway signs along the roadway no Draft 1, NN & JY#3 10 October 15, 2013 Draft 1, NN & JY#3 11 October 15, 2013 sooner than twenty-four (24) hours before the scheduled application. Roadway signs shall be located at the start and end of the field along the public roadway where application will occur, and shall comply with all State of Hawaii Department of Transportation requirements.] (4) No crops may be grown within 100 feet of any public roadway, except that pesticides may be used within 100 feet of any public roadway if the commercial agricultural entity posts notification signage on land that is adjacent to the public roadway no sooner than twenty-four (24) hours before the scheduled application. Roadway signs shall be located at the start and end of the field along the public roadway where application will occur, shall be of a size that is legible from vehicles traveling at the posted speed limit, and shall comply with all State of Hawai`i Department of Transportation requirements. (5) [No pesticide of any kind may be used] No crops may be grown within 100 feet of any shoreline or perennial waterway that flows into the ocean. This provision shall not apply to any irrigation ditch or drainage canal that does not directly flow to the ocean. [This provision shall not apply to any specific instance where the State of Hawaii Department of Agriculture has authorized such pesticide use for public health purposes.] (b) The provisions in Section 22-22.5(a) shall not apply to any specific instance where any County, State, or Federal government agency has authorized such pesticide use for public health or safety purposes. [(b)] If this Section, or any part thereof, is determined to conflict with any pesticide labeling information [pertaining to such pesticides (restricted use, general use, or experimental)], the more restrictive and environmentally protective provisions shall apply." Sec. 22-22.6 Environmental and Public Health Impacts Study (EPHIS). The County of Kauai shall complete an Environmental and Public Health Impact Study (EPHIS) through a two-part community-based process to address key environmental and public health questions related to large-scale commercial agricultural entities [using] utilizing pesticides and [growing] genetically modified [crops] organisms. [The] As determined by Council Resolution, the first part shall utilize a Joint Fact Finding Group (JFFG) convened and facilitated by a professional consultant to determine the scope and design of the EPHIS within twelve (12) months of the Notice to Proceed. In the second part of the process, the EPHIS shall be conducted by a professional consultant with oversight by the JFFG and shall be completed within eighteen (18) months of the relevant Notice to Proceed. The EPHIS may make recommendations that include, but are not limited to, possible actions the County may take in order to address any significant effects, public health impacts, or both. Sec. 22-22.7 Penalties. (a) Any person, firm, or corporation, whether as principal, agent, employee, or otherwise, violating, causing, or permitting the violation of any of the Draft 1, NN & JY#3 11 October 15, 2013 Draft 1, NN & JY#3 12 October 15, 2013 provisions of this Article, shall be assessed a civil fine of $10,000-$25,000 per day, per violation. (b) In addition to any penalty described in Subsection 22-22.7(a), any person, firm, or corporation, whether as principal, agent, employee, or otherwise, violating or causing or permitting the violation of any of the provisions of this Article, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than two-thousand dollars ($2,000.00), or imprisoned not more than one (1) year, or both, for each offense. The continuance of any violation after conviction shall be deemed a new criminal offense for each day that the violation or violations continue. Sec. 22-22.8 Rulemaking. In order to effectuate all provisions of this Article, the Office of Economic Development may engage in any rulemaking it deems necessary or proper, utilizing the provisions of Hawai`i Revised Statutes Chapter 91. In so doing, OED is authorized to collaborate with the State of Hawai`i Department of Agriculture. SECTION 2. Severability Clause. If any provision of this ordinance or the application thereof to any person, commercial agricultural entity, or circumstance is held invalid, the invalidity does not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. SECTION 3. New material is underscored. In printing this ordinance, the brackets, bracketed material, and underscoring need not be included. SECTION 4. This ordinance shall take effect [six (6)] nine (9) months after its approval." (Material to be deleted is bracketed. New material to be added is underscored.) V:\AMENDMENTS\2012-2014 term\Bill No. 2491, Draft 1 NN&JY#3 10-15-2013 JH Draft 1, NN & JY#3 12 October 15, 2013 ATTACHMENT E Draft 1, TB#1 1 October 15, 2013 (Continued October 08, 2013 Meeting) FLOOR AMENDMENT Bill No. 2491, Draft 1, as amended Relating to Pesticides and Genetically Modified Organisms Introduced by: TIM BYNUM 1. Amend Bill No. 2491, Draft 1, as amended by amending the proposed Section 22-22.5 as follows: "Sec. 22-22.5 Pesticide Buffer Zones. (a) It shall be mandatory for all commercial agricultural entities that purchased or used in excess of five (5) pounds or fifteen (15) gallons of any single restricted use pesticide during the prior calendar year to restrict the growing of crops, except ground cover to which no pesticide is applied, and thereby restrict the application of all pesticides in the following areas: (1) No crops may be grown within 500 feet of any school, medical facility, adult family boarding home, adult family group living home, day care center, family care home, family child care home, nursing home, or residential care home. (2) No crops may be grown within 100 feet of any park. (3) No crops may be grown within 500 feet of any dwelling, unless: (A) The commercial agricultural entity has an approved Soil and Water Conservation Plan that explicitly demonstrates no pesticide drift on the dwelling, then no crops may be grown within 100 feet of any dwelling; or (B) The dwelling is owned by the landowner, and occupied by the landowner or a family member of the landowner, and there are no other dwellings occupied by third-parties within 500 feet of the landowner dwelling, then there shall be no pesticide buffer zone restricting growing of crops in proximity to the landowner dwelling; or (C) Regarding a mature orchard, the crops of which grow in a hedge-like manner creating a windbreak effect, if pesticide application occurs between crop rows from a source no higher than two (2) feet from the ground, for the purpose of eliminating weeds in the ground, then no crops may be grown within 75 feet of any dwelling. (4) No crops may be grown within 100 feet of any public roadway, except that this restriction shall not apply to any existing orchard, provided that the orchard posts roadway signs along the roadway no sooner than twenty-four (24) hours before the scheduled application. Roadway signs shall be located at the start and end of the field along the public roadway where application will occur, and shall comply with all State of Hawai`i Department of Transportation requirements. (5) [No pesticide of any kind may be used] No crops may be grown within 100 feet of any shoreline or perennial waterway that flows into the Draft 1, TB#1 1 October 15, 2013 Draft 1, TB #1 2 October 15, 2013 ocean. This provision shall not apply to any irrigation ditch that does not flow to the ocean. (b) The provisions in Section 22-22.5(a) shall not apply to any specific instance where any County, State, or Federal government agency has authorized such pesticide use for public health or safety purposes. (c) If this Section, or any part thereof, is determined to conflict with any pesticide labeling information, the more restrictive and environmentally protective provisions shall apply." (Material to be deleted is bracketed. New material to be added is underscored.) V:\AMENDMENTS\2012-2014 term\Bill No. 2491, Draft 1 as amended TB#1 10-15-2013 JH Draft 1, TB#1 2 October 15, 2013 ATTACHMENT F Draft 1, as amended JY#1 1 October 15, 2013 (Continued October 08, 2013 Meeting) FLOOR AMENDMENT Bill No. 2491, Draft 1, as amended Relating to Pesticides and Genetically Modified Organisms Introduced by: JOANN A. YUKIMURA 1. Amend Bill No. 2491, Draft 1, as amended by amending the proposed Section 22-22.5 as follows: "Sec. 22-22.5 Pesticide Buffer Zones. (a) It shall be mandatory for all commercial agricultural entities that purchased or used in excess of five (5) pounds or fifteen (15) gallons of any single restricted use pesticide during the prior calendar year to restrict the growing of crops, except ground cover to which no pesticide is applied, and thereby restrict the application of all pesticides in the following areas: (1) No crops may be grown within 500 feet of any adult family boarding home, adult family group living home, day care center, family care home, family child care home, medical facility, nursing home, residential care home, or school. (2) No crops may be grown within [100] 250 feet of any park[.], except that, regarding a mature orchard, the crops of which grow in a hedge- like manner creating a windbreak effect, if pesticide application occurs between crop rows from a source no higher than two (2) feet from the ground, for the purpose of eliminating weeds in the ground, then no crops may be grown within 75 feet of any park. (3) No crops may be grown within 500 feet of any dwelling, unless: (A) The commercial agricultural entity has an approved Soil and Water Conservation Plan that explicitly demonstrates no pesticide drift on the dwelling, then no crops may be grown within 100 feet of any dwelling; or (B) The dwelling is owned by the landowner, and occupied by the landowner or a family member of the landowner, and there are no other dwellings occupied by third-parties within 500 feet of the landowner dwelling, then there shall be no pesticide buffer zone restricting growing of crops in proximity to the landowner dwelling; or (C) Regarding a mature orchard, the crops of which grow in a hedge-like manner creating a windbreak effect, if pesticide application occurs between crop rows from a source no higher than two (2) feet from the ground, for the purpose of eliminating weeds in the ground, then no crops may be grown within 75 feet of any dwelling. (4) No crops may be grown within 100 feet of any public roadway, except that pesticides may be used within 100 feet of any public roadway if the commercial agricultural entity posts notification signage on land that is adjacent to the public roadway no sooner than twenty-four (24) hours before Draft 1, as amended JY#1 1 October 15, 2013 Draft 1, as amended JY#1 2 October 15, 2013 the scheduled application. Roadway signs shall be located at the start and end of the field along the public roadway where application will occur, shall be of a size that is legible from vehicles traveling at the posted speed limit, and shall comply with all State of Hawai`i Department of Transportation requirements. (5) No crops may be grown within 100 feet of any shoreline or perennial waterway that flows into the ocean. This provision shall not apply to any irrigation ditch or drainage canal that does not directly flow to the ocean. (b) The provisions in Section 22-22.5(a) shall not apply to any specific instance where any County, State, or Federal government agency has authorized such pesticide use for public health or safety purposes. (c) If this Section, or any part thereof, is determined to conflict with any pesticide labeling information, the more restrictive and environmentally protective provisions shall apply." (Material to be deleted is bracketed. New material to be added is underscored.) V:\AMENDMENTS\2012-2014 term\Bill No. 2491, Draft 1 as amended JY#1 10-15-2013 JH Draft 1, as amended JY#1 2 October 15, 2013