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HomeMy WebLinkAbout09-23-2009 Council Meeting Minutes COUNCIL MEETING SEPTEMBER 23, 2009 The Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, Historic County Building, 4396 Rice Street, Room 201, Lihu`e, Kauai, on Wednesday, September 23, 2009 at 9:24 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable Jay Furfaro (excused at 3 p.m.) Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Derek S.K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair APPROVAL OF AGENDA: Mr. Kaneshiro moved for approval of the agenda as circulated, seconded by Mr. Furfaro, and unanimously carried. MINUTES of the following meetings of the Council: Special Council Meeting of September 9, 2009 Council Meeting of September 9, 2009 Special Council Meeting of September 16, 2009 Mr. Bynum moved for approval of the Minutes as circulated, seconded by Mr. Kawakami, and unanimously carried. COMMUNICATIONS: C 2009-306 Communication (07/31/2009) from the Planning Director, transmitting three (3) draft bills to re-designate a portion of a property in Kilauea, Kauai, Tax Map Key No. 5-2-017:028, back to its previous land use designations as follows: 1) State "Urban" Land Use District (U) back to the State "Agricultural" Land Use District (A) 2) General Plan "Residential Community" designation back to the General Plan "Agriculture" and "Open" designations 3) "Limited Industrial (I-L) Zoning District" back to the "Agriculture (A) Zoning District": Mr. Kawakami moved to receive C 2009- 306 for the record, seconded by Mr. Kaneshiro, and unanimously carried. COUNCIL MEETING - 2 - September 23, 2009 C 2009-307 Communication (08/19/2009) from the Mayor, transmitting for Council information the Cost Control Commission's recommendations and findings regarding a County performance contract proposal and the establishment of departmental employee green teams: Mr. Chang moved to receive C 2009-307 for the record, seconded by Mr. Kawakami. Mr. Bynum: Thank you Mr. Chair. I just wanted to recognize the Cost Control Commission for their wox•k on this initiative and the mayor's intent as stated in this cover letter to implement both these recommendations related to energy savings: 1) creating... using an energy saving performance contract which the county has used to great success in the past and is consistent with kind of the reading of working in this day and age to increase efficiency of energy usage. These contracts will assure savings for the county and they've been employed successfully in the past. The other initiative is to create a county employee green team, which really empowers members at the department level to look at county operations and acknowledge opportunities to save energy. So I just am very pleased with the Cost Control Commission's work. In this last year it was the commission that I was kind of unfamiliar with and has been pretty active I providing good recommendations. So thank you for letting me say that. Council Chair Asing: Thank you. Any further discussion? Councilmember Furfaro. Mr. Furfaro: Yes Mr. Chair. Before we vote on this, I would like to send a communication over to the Cost Control Commission and ask them to have a presentation on some of the existing systems that we have in place, in particular, oux• Trane air conditioning management system that we have in certain county facilities, our computer programs that monitor circulating pumps... I would like to suggest that the Cost Control Commission get a presentation on the capacities and items that we have put in place over the last few years, to have a thorough understanding of what they can contribute and how they are currently being managed. Council Chair Asing: Thank you. I think that's an excellent idea. Thank you for that information, and we will transmit that over to them. Mr. Furfaro: Thank you. Council Chair Asing: Any further discussion? If not... The motion to x•eceive C 2009-307 for the record was then put, and unanimously carried. C 2009-308 Communication (08/25/2009) from Virginia Kapali, Chairperson, Kauai Salary Commission, transmitting for Council information, Salary Commission Resolution No. 2009-2, relating to the salaries of certain officers and COUNCIL MEETING - 3 - September 23, 2009 employees of the County of Kauai which was adopted by the Salary Commission at its August 25, 2009 meeting, and recommending amendments to the Kauai County Code related to salaries of certain officers and Council appointees: Mr. Chang moved to receive C 2009-308 for the record, seconded by Mr. Bynum. Council Chair Asing: Any discussion? Mr. Furfaro: I have discussion. Council Chair Asing: Go ahead. Mr. Furfaro: I might ask the county attorney if he could come up. I want to pose a couple questions to him before I vote on this item. Council Chair Asing: Thank you. With that, county attorney please. There being no objections, the rules were suspended. AL CASTILLO, JR., County Attorney: Good morning, Council Chair, Councilmembers. Al Castillo, County Attorney. Mr. Furfaro: Thank you Al for being here. Al, I just want to ask on... We have some deadlines coming up on salary commission dates here on these recommendations and so forth, and yet at the same time, there seems to be some inconsistency or a difference of opinion between certain commissions and the salary commission, as well as the mayor's position on funding and controlling costs going forward. Are we able to defer and send portions possibly of this proposed resolution back to the salary commission for further study? Mr. Castillo: Yes. The answer to that is...that question is if you have any questions regarding the...what the salary commission did or recommendations or concerns, what you can do is you can itemize for the salary commission where you have concerns. So the answer to your question is can we defer, yes you can defer. However... Yes, you can defer and I can guide you more at a later date. So to no complicate the analysis right now, the answer to your question is yes you can defer. Mr. Furfaro: Okay. And if I recall, this would become law in October sometime. Am I correct? Mr. Castillo: Yes. Because this is...the form of this communication is in the nature of a resolution, yes it'll become law at the end of October, unless there...the salary commission decides to introduce something else in addition to what's there before you today. Because your questions raised... I cannot... I don't have a crystal ball, and but...you know, depending on the COIJNCII, MEETING - 4 - September 23, 2009 questions that you ask the salary commission, depending on what they do may change the resolution before you. Mr. Furfaro: Okay. And do you know, do they still meet monthly or... If one of us wanted to testify in front of them or... Mr. Castillo: Yeah, we discussed that, and what we would have to do is we would have to engage in a special meeting for the salary commission for the purpose of addressing any concerns that you have. Mr. Furfaro: Okay, that answers my question. Council Chair Asing: Okay. Any further discussion? Councilmember Bynum. Mr. Bynum: For clarification, my understanding coming in to the meeting is that our options were either to receive this and it would go into effect, ox• reject it by a super majority and... But we can't... My understanding, and if it's incorrect, please correct me as I... Mr. Castillo: Yeah, yeah. Mr. Bynum: We can't amend this, is that correct? Mr. Castillo: That's correct, you cannot amend it, and... Howevex•, one end of the spectrum would be to accept it, the other end of the spectrum would be to reject it. The middle ground would be to defer and ask your questions so that the salary commission can address the questions that you have. Mr. Furfaro: And if I may, that was the questioning... I clearly understand that the council has no authority to amend that piece. But the authority should be able to have the responsibility to ask the appropriate questions, especially in what I believe is going to be very difficult economic times coming up on the horizon for us next year, and ask them, through a deferral, to consider any evaluations we might want them...or rationale we might want them to defend. Mr. Castillo: And especially, you know, this body is the legislative body and does have... I don't know if any of you were involved with the salary commission, but then you know, there may have been some information that the salary commission did not have before them to propose this resolution. Mr. Furfaro: But I just want to clarify, a deferral didn't mean I'm looking to amend it. A deferral means I'm looking to go in front of the salary commission and probe some questions and also make sure that they had certain assumptions about the financial condition of the county next year. Thank you. COUNCIL MEETING - 5 - September 23, 2009 Council Chair Asing: Councilmember Bynum, are you through? You have further questions? Mr. Bynum: I think I would... There would be time, right? Mr. Castillo: Yes. Mr. Bynum: This anticipates changes effective December lsc. Mr. Castillo: Yes. Mr. Bynum: There would be time, so... Council Chair Asing: Thank you. Ms. Kawahara: Time for? Mr. Bynum: To meet with the salary commission and for them to make any potential changes they may choose, right? Mr. Castillo: There is time. Mr. Bynum: Thank you. Council Chair Asing: Any further discussion? Yes, Councilmember Furfaro. Mr. Furfaro: And another option here would be to receive it, then write them a communication until we can get on their agenda. Mr. Castillo: Yes, but if you receive it today, it's my understanding that it's approved. So if you defer it, at least it is pending approval. I think that makes a big difference. Mr. Furfaro: Okay. But if we receive it, we still can ask to go in front of them to make some queries, and they could still change it up to December 1. Mr. Castillo: That is true. I guess it's just a matter of how it would be received from the salary commission, and I cannot opine on what they might...how they might receive it. Mr. Furfaro: I just wanted to point that out. If we do receive it, if there are members that do want to receive it, it doesn't preclude us from making an appointment to speak on specific items. Mr. Castillo: Yes. COUNCIL MEETING - F~ - September 23, 2009 Council Chair Asing: Thank you. Any further questions? Councilmember... We have the county attorney up, you have questions for the county attorney? Ms. Kawahara: Yes, I think I do. Council Chair Asing: Go ahead. Ms. Kawahara: This was at request of the mayor for the different salaries to be frozen. Can I ask what... since it was at the request of the mayor, these are the executive positions, how does it work for the legislative positions with the cost commission? Mr. Castillo: I'm sorry, I don't understand your question, how does it... Ms. Kawahara: The request came from the mayor for the executive salaries... Mr. Castillo: Yes. Ms. Kawahara: On executive administrative salaries... Mr. Castillo: Yes. Ms. Kawahara: Do you know where the legal approval comes from foz• the salaries in article 2 on the legislative side? Mr. Castillo: Okay. Let me try to understand this question correctly. You are the legislative side, and this is a resolution before you, and this is where you vote yay or nay for or against the resolution. However if you have any concerns regarding the makeup of the resolution, how it got to this point, and if you would like to ask more questions, then I believe that the deferral would be appropriate for you to ask those questions regarding legality, regarding whether or not next year's budget was taken into account, you know, all the factors that created this resolution. So but you are the legislative body, and this is where if you accepted it, then it becomes...it becomes...it takes effect, and the reason why I...it's my opinion that it would be better to defer is because if it does take effect today, then you would have to reverse...you would be asking the salary commission to reverse what they have suggested. Ms. Kawahara: Okay, thank you. Council Chair Asing: Any further questions? COUNCIL MEETING - 7 - September 23, 2009 Mr. Furfaro: I do. Council Chair Asing: Go ahead. Mr. Furfaro: But I think... Some more clarity to that question, because I may settle for receiving this today, now that I know I can still talk to them, the salary commission, on a few particular spots. But in answer to Councilwoman Kawahara, this body cannot act on any salary review for the legislative body for the current elected term we're in. Mr. Castillo: Yes. Mr. Furfaro: We have no control over that. Mr. Castillo: Yes. Council Chair Asing: Any further questions? If not, thank you. Mr. Castillo: You're welcome. Council Chair Asing: I'd like to call the meeting back to order and is there further discussion? The meeting was called back to order and proceeded as follows: Ms. Kawahara: I would like Councilmember Furfaro to explain that to me again about the current term and the salary. Mr. Furfaro: I would say at this point I am fine to receive this, because I know from the county attorney now, if I have a specific concern about an individual department or a commission's concern, I can get on their agenda. So I'm fine with receiving this. But your question was about the legislative group. Ms. Kawahara: Yes. Mr. Furfaro: It is my understanding that anything we vote on can never be effected during this term for us. Mr. Kaneshiro: Correct. Ms. Kawahara: Okay. Thank you. Council Chair Asing: Thank you. Any further discussion? If not, I'd like to just read a few notes that I have down here, and let me just read it. At the 2006 General Election, the voters of Kauai approved the Charter amendment giving the County Salary Commission the responsibility to set salaries of all elected officials COUNCIL MEETING - 8 - September 23, 2009 (the Mayor, Councilmembers, and Prosecuting Attorney) and for appointed officials, unless the Salary Commission's recommendations are rejected by a vote of a two-thirds supermajority of the Council, which is 5 votes. Before this 2006 Charter amendment, the Salary Commission set salaries for councilmembers, but could only recommend salaries for appointed County officials, with the Council having that final say. Since the Salary Commission started its work under the new Charter px•ovisions of 2007, they have dedicated many hours in meetings, reviewing documents, and discussing how to establish a system of salary administration for the County's elected and appointed officials based on a realistic standards in accordance with their duties and responsibilities. Since that time, they have also provided both the Administration and this Council with a number of reports that reflect their hard work in meeting their goal of having a fair and equitable salary system with accountability. I feel it is only right for us to recognize and respect the Salary Commission's past and present work in this area, and accept their recommendations as contained in the Salary Commission resolution which is before us. With that, if there is no further discussion, all those in favor say aye. The motion to receive C 2009-308 for the record was then put, and unanimously carried. C 2009-309 Communication (08/28/2009) from Council Chair Bill "Kaipo" Asing, transmitting a resolution to amend Resolution No. 2009-27, relating to the appointment term of Charles Iona to the Police Commission as a partial term: Mr. Bynum moved to receive C 2009-309 for the record, seconded by Mr. Kaneshiro. Council Chair Asing: Any discussion? Yes, go ahead. Mr. Furfaro: I believe it's just for the public. This is a housekeeping item regarding his partial term and that he can still be reappointed for two terms. Council Chair Asing: Yes, and we have the resolution in the back. This is the communication for the resolution, so thank you. Any further discussion? If not, all those in favor say aye. The motion t;o receive C 2009-309 for the record was then put, and unanimously carried. C 2009-310 Communication (08/19/2009) from the Executive on Transportation, requesting Council approval to apply for, receive, indemnify and expend a Federal Transit Administration (FTA) Section 5317 New Freedom grant for capital expenditures for the County Transportation Agency in the amount of $121,123 which will be used to retrofit the existing fleet of vehicles with retractable wheelchair tie down straps and the installation of illuminated signage, increasing efficiency and visibility of bus routes: Mr. Kawakami moved to approve C 2009-310, seconded by Mr. Chang, and unanimously carried. COUNCIL MEETING - 9 - September 23, 2009 C 2009-311 Communication (09/04/2009) from the Director of Office of Economic Development, requesting Council approval to apply for, receive, and expend funds for our 2010-2012 Hawaii Tourism Authority (HTA) County Product Enrichment Program in the amount of $425,000 per year for three (3) years. Funds are subject to availability via the TAT Tax Collection and required HTA board approval each year: Mr. Nakamura: Mr. Chair, for the record if I may? Council Chair Asing: Go ahead. Mr. Nakamura: There was an inadvertent omission in the transmittal where the contract that's to be entered into between the county and the Hawaii Tourism Authority, which is part of the State required indemnification approval also from this council. So we would require indemnification approval from the council, so we would ask that in the final motion that indemnification be included as part of this grant acceptance. Council Chair Asing: Okay, with that said, can I have a motion to approve? Mr. Chang moved for approval of C 2009-311, seconded by Mr. Kaneshiro. Council Chair Asing: Any discussion? If not, I believe we need to have an amendment to the approval to take care of the indemnification process. Mr. Chang: Chair, I'd like to make a motion to amend the approval to indemnify the State and the Hawaii Tourism Authority. Mr. Bynum: Second. Council Chair Asing: Yeah, as related to in the contract. Mr. Chang move to amend the motion to include indemnification as related to in the contract, seconded by Mr. Bynum. Council Chair Asing: Any further discussion on that? If not... Let me vote on that first. Mr. Furfaro: No, I have a question about the amendment. Council Chair Asing: Okay, go ahead. COUNCIL MEETING - 10 - September 23, 2009 1VIr. Furfaro: Mr. Clerk, the amendment and the reference to indemnification is the... The question and reference to indemnification is on page 10 of what I assume is the performance contract? Mr. Nakamura: Correct. Mr. Furfaro: Okay. Council Chair Asing: Thank you. With that, all those in favor say aye. The motion to amend was then put, and unanimously carried. Council Chair Asing: That is on the amendment. We're back to the main motion as amended. With that, any further discussion? Yes, Councilmember Kawakami. Mr. Kawakami: Thank you Mr. Chair. And I want to bring up the fund are subject to availability via the TAT tax collection, and that's fine and dandy. I know this past legislative season a few of us lobbied hard for TAT, but with the shortfall in the State budget, it looks pretty dismal. What is our contingency plan if we don't receive this TAT tax collection, because it's a pretty vital program. Oh, okay, okay. I was just informed that's the HTA share. That's not the county share. Okay, that answers my question. Council Chair Asing: Okay, thank you. Any further discussion? If not, all those in favor say aye. The motion for approval of C 2009-311 as amended to include indemnification was then put, and unanimously carried. C 2009-312 Communication (09/08/2009) from the Anti-Drug Coordinator, requesting Council approval to apply for, receive, and expend funds in the amount of $8,572.50 from the Hawaii Community Foundation's 2009 Crystal Meth Initiative grant which will assist with expenses of the Annual Drug Summit `E Ho`omau ka `Ike (continue the awareness, learning, vision): Mr. Kawakami moved for approval of C 2009-312, seconded by Mr. Kaneshiro, and unanimously carried. C 2009-313 Communication (09/17/2009) from Council Chair Bill "Kaipo" Asing, responding to Councilmember Tim Bynum's request for a rationale relating to denial of reimbursement for a travel request: Mr. Kawakami moved to receive C 2009-313 for the record, seconded by Mr. Kaneshiro. Council Chair Asing: What I'd like to do is have a short recess now and then we'll get back. We're in recess. COUNCIL MEETING - 11 - September 23, 2009 There being no objections, the Chair called a recess at 9:48 a.m. The meeting was called back to order at 10:05 a.m., and proceeded as follows: Council Chair Asing: With that, we have the county attorney. I'm not sure what the county attorney is there for, but since you're sitting there, what is your question? There being no objections, the rules were suspended. Mr. Castillo: Council Chair... Well, with all due respect, Council Chair, I looked at the agenda item 2009-313 and I believe this matter and your presentation should be done in executive session under HRS 92-5, for the first reason that it may pertain to the board's powers, duties, privileges, immunities, and/or liabilities. I'm not going to give any...I guess insight as to which of these I'm looking at, but I strongly suggest that...and I could also enumerate under other sections in which I think this should be in executive session under numerous exceptions in...that's enumerated in HRS Chapter 92. Council Chair Asing: Okay. Mr. County Attorney, this item is a policy item. It is related to a policy. What is the policy is travel for the county council. So that's the item. Mr. Castillo: Okay, and if it stays... Council Chair Asing: That's the item. Mr. Castillo: Okay. I'm just out of abundance of caution, if it stays on that level, then I guess I would have no reservations, and I'll just sit on the side and observe. Council Chair Asing: Thank you. The meeting was called back to order, and proceeded as follows: Council Chair Asing: With that, what I'd like to do, I'm going to make a short presentation regarding the policy item, and with that, I'd like to turn it over to Councilmember Furfaro. Mr. Furfaro: Thank you Mr. Chair. And on that note for the other members here, I am going to ask for the county attorney if in fact this expands beyond areas dealing with travel policy, then in fact if he could acknowledge his wish to consult with the whole body by... and I will acknowledge him as such. Mr. Asing, the floor is yours. Council Chair Asing: Okay, before we go there, I'm going to take another recess. So we're going to be in recess for another 10 minutes. Thank you. COLINCIL MEETING - 12 - September 23, 2009 Mr. Furfaro: Okay, I am chairing this meeting. It has been requested for us to go into a recess, and we will be in recess for 10 minutes. There being no objections, the meeting was recessed at 10:09 a.m. The meeting was called back to order at 10:24 a.m., and proceeded as follows: Mr. Furfaro: Okay. May I ask Mr. Asing, the floor is yours, and we'll take care of the lights right now. Council Chair Asing: Thank you. Am I on? Thank you. What I'd like to do is let me preface this by saying, on Monday July the 13th I received a communication and verbally talked to our secretary who notified me that Councilmember Bynum will be traveling to Honolulu to meet with special attorney in Honolulu and was asking for my approval for the travel request. It was about 4:30 to 5:30 in the afternoon. That was a Monday, and Councilmember Bynum was going to travel to Honolulu on a Tuesday. That didn't give me a lot of time to review the request. At any rate, Councilmember Bynum made all of the necessary arrangements and did go on the trip, and when Councilmember Bynum returned, he went to the meeting the next day on July 14, met with special counsel, and after reviewing everything the next morning on Wednesday, I verbally advised Councilmember Bynum that I would not be allowing for reimbursement for the trip to Honolulu. I didn't feel that it should have been done in the manner that it was done, and therefore, I was not going to be reimbursing him for that trip. So that was a verbal statement that I made to Councilmember Bynum. Then on July 16, I received a memo from Councilmember Bynum, who requested that he needed more rationale for my denying his travel request, and here is that memo. So what this is is Councilmember Bynum is asking me for reasons on why I denied him the reimbursement for the trip to Honolulu to meet with special counsel, and let me just read the memo that was sent to me by Councilmember Bynum. Let me read it to you. The council agenda on July 8, 2009 contained two items, communication 2009-236 and communication 2009-237, requesting authorization to expend the total of $175,000 for special counsel representing the county in two ongoing matters, one of which is scheduled for trial this month. Although we entered into executive session for a briefing, update, and to request authority related to possible settlement proposals, the special counsel was not present, and therefore, I expressed a desire to meet with Mr. Minkin who is the special counsel hired by the county attorney's office at the meeting. I contacted him the next day by mail. On Friday, July the 10th, 2009, confirmed an appointment and met with special counsel Minkin on Oahu Tuesday morning July 14. On the morning of Wednesday, July 15, 2009, you informed me that you had denied my travel request. As I think of no creditable reason to deny this routine travel request, I would like to request your rationale for denying in writing. So Councilmember Bynum did not accept my verbal reply to him and he felt that I owe him a written memo back. So with that, on July 16, hex•e is the memo. On August the 4th, I sent a memo to Councilmember Bynum, and if you will note here, to Councilmember Bynum from myself, and re: it COUNCIL MEETING - 13 - September 23, 2009 says, rationale for denying travel request. So he's asking me for my rationale in denying his request, which I think is reasonable. Now I'm going to read you my reply in writing to Councilmember Bynum. This is in response to your request for an explanation regarding my denial of your travel reimbursement for your recent trip to Honolulu. First, the county attorney represents the county of Kauai with regard to all of our contracts with special counsel. Any proposed meeting with special counsel should have been cleared with the county attorney. It is my understanding that you did not receive authorization from the county attorney to have this meeting with special counsel David Minkin. Second, it is my understanding that you met with Mr. Minkin to discuss cases in which his firm is representing the county of Kauai. I do not have an objection to councilmembers being briefed by our special counsel; however, the briefing should be done with all councilmembers present, so that the information can be provided to all councilmembers at the same time. It is costly in terms of air fare, car rental, and the hours charged by the attorney, and inefficient to have councilmembers fly to Honolulu to receive individual briefings with the attorney. More importantly, you in essence held aone-man executive session with Mr. Minkin to discuss matters that were the subject of a posted executive session agenda. Third, under Rule 3A-10, the rules of the council of the county of Kauai, the council chair approves all travel requests. As council chair, I am also the chief procurement officer for the county council. As such, I am responsible for the procurement of all services, including travel for councilmembers. I did not find out about your trip until 4:30 the day before you left. I was not given a reason for the trip, except that I was told that you were going...you were meeting with Mr. Minkin. You still have not given me a creditable reason as to why the discussion with Mr. Minkin required a trip to Honolulu. If you merely sought a briefing, the discussion with Mr. Minkin could have been conducted by telephone, preferably a conference call during a legally posted executive session with all councilmember, all the county council, present and able to ask questions and receive answers at the same time. If you felt that time was of the essence, you could have requested a telephone call with the county attorney and special counsel to obtain a briefing. The county attorney could then report the entire county council during...to the entire county council during an executive session summarizing what had been discussed. I have approved your travel request in the past because I believed that the conferences that you attended in Washington, D.C. and New Mexico, and your attending the opening of the State legislative session, would be beneficial to you as a councilmember. However, for reasons set forth above, I do not want to encourage individual councilmembers to set up unauthorized meetings with special counsel that requires traveling to Honolulu. I trust that this response to your July 16, 2009 memorandum... If you have any other information to share with me that would justify your trip to Honolulu, I will be happy to consider it. So that is the memo that I sent to Councilmember Bynum. I think it is reasonable. My job as the COUNCIL MEETING - 14 - September 23, 2009 council chair is to review travel requests, and if they are reasonable in nature, I will approve of the travel request. As an example, Councilmember Bynum is traveling to Honolulu tonight for a conference in Honolulu for two days. I received the request and approved it. I believe that that trip is good for Councilmember Bynum. It'll help him and in turn help the entire council, and therefore, I approved the trip. With that, can I have the next... I have two concerns about the request as it relates to council's travel policy. First, we recently had a lengthy council meeting about open government and giving councilmembers equal access to information. You stated in your request that you were meeting with special counsel about matters that were the subject of a posted executive session agenda. Your meeting with special counsel violated the spirit of the Sunshine I~aW by holding this one-man executive session. Second, your meeting is contrary to the policy of providing members with equal access to information. I have not seen or heard a report of summarizing regarding your meeting with our special counsel. You now have information that you have not shared with your fellow councilmembers. Third, you have... You have in several different forums said that the council should have equal input from all councilmembers. How do you propose that we have equal input when you have information from our special counsel that none of the other members have? I do not believe that it is right. The counc;il's travel policy is relatively simple. I use the word simple. If the trip provides you with the knowledge and experience that will also benefit the council s a whole, then it will generally be approved. As in the case of your going to the meeting tomorrow and Friday, it's reasonable. I looked at the agenda that...on the meeting that you are going to be attending, and it's reasona... It'll help you. It'll help us as a whole also, and that's the reason I approved it. That trip in itself is going to cost in excess of $800, so it's a lot of money, but I believe that it is right, and so I approved it. For example, I recently approved your travel to Honolulu for a planning conference, and this is the one that I'm making reference to, that will broaden your knowledge on planning issues. On the other hand, your July 16 request was for a meeting with special counsel on a case that was of concern to the council as a whole. All councilmembers should have been present for the meeting, and it certainly did not require that you take a special trip to Honolulu. So with that, thank you. I'd like to get back to my chair now and answer any questions that councilmembers might have. Mr. Furfaro: As the members come back, I would like to remind you that I will continue to chair this portion of the meeting as it reflects on the Chairman's presentation. Thank you. I guess the question surfaced. My perception is perhaps I should chair the remainder of this meeting as it relates to that presentation. I would like to ask other members if you have any... Ms. Kawahara: I agree with that. COUNCIL MEETING - 15 - September 23, 2009 Mr. Furfaro: Okay, very good. We have a presentation. The presentation touched on Mr. Asing being the chief procurement officer for the council. It focused on rule number 3, referencing the presiding officer's authorization under a-10 to pre-approve routine travel for the council. And those are the two items that I will focus on. If there's any questions on those two items, and those two items only. Mr. Bynum. Mr. Bynum: I'd like to make a statement and then make... and then ask some questions. As my memo indicates, on July 8 we had two items on the agenda requesting $175,000, but also requesting...or saying that the session was for a briefing, update, and to request authority relating to possible settlement of proposals. One of these two agenda items was set for trial like in a few days. The special counsel was not available during that meeting. I expressed the desire to meet with the counsel about possible settlement, about the current status of the case, and that we had been briefed previously. I had a dialogue with the county attorney about setting up that meeting. That was all in the presence of other councilmembers, and there was an attempt that was in my mind being made to set up a meeting between me and the special counsel that day, because I was the only councilmember that expressed a desire to do that. It didn't end up happening because of logistics. I thought it was important. We were going to go into settlement on an issue that, you know, I have interest in, and I see it as part of my duty, and I felt like I had expressed a desire to meet with special counsel and we just started to discuss how we would arrange that. So time was of the essence. I made an arrangement to meet with Mr. Minkin in Oahu, and I followed what the only protocol I know, which is to make a travel request. It didn't happen real quickly because time was of the essence. You know, I went to the meeting, I met with Mr. Minkin, I came back the same day, and you know, as Mr. Asing has said, he informed me that he wasn't going to approve the travel. I asked in writing his rationale. He said I didn't accept his reply. I did accept his reply. He said I'm not going to approve this, and I said explain it to me. It took a couple of weeks, but I got a memo explaining the rationale. I don't disagree with some of the rationale in there, although some if it is news to me. First of all, what was news to me was that there was a expectation that we approve...we get prior approval from the county attorney before we meet with special counsel. That doesn't seem like a bad idea to me, but is there a policy that says that, that states that? That is something I'd never heard before. But it's logical, it makes sense. You know, the... And so, you know, it was interesting to receive information from Mr. Asing in writing, because that hasn't happened before, and I thought that his responses made logical sense and should be something that the entire council discusses. You know, the... But I found out that basically that... The only policy I've seen about travel is in our council rules, which says the chair has to authorize it, and I followed that policy. But I looked at the other counties and figured out how they do travel, and every other county has a written policy that outlines these issues .about how travel occurs, what travel is approved and what isnt. It goes beyond just their council rules. In Maui county for instance, each COUNCIL MEETING - 16 - September 23, 2009 councilmember has a $122,544 account to hire personal staff to...and to do personal expenses, including travel. They still have that travel approved by the chair, but the chair gives wide latitude, and you can see their written policy about council travel. On the Big Island, they also have two...each councilmember has two individual staff members, and has an account for discretionary spending, which includes discretionary travel, and that account is between 5,000 and 15,000 per councilmember each year. On the City & County of Honolulu has $250,000 budget for each councilmember to hire personal staff and to do personal... and they have written council travel policies. Having policies is something that I've asked for this council to dialog about that I've asked for in writing, because I don't think things are clear. So in this instance, Mr. Asing's response suggests policies that we should perhaps consider about our interactions with special counsel or with the county attorney. It probably is a good idea that contacts be controlled. I don't think that's been the practice before in the past, and I would ask if Mr. Acing or other councilmembers have had occasions in the past when they met with special counsel without the entire council present, because I believe that most likely has occurred. So I appreciate Mr. Asing's response. I hope that we follow up with travel policies that make the parameters more clear than they currently are, and that we engage in discussions about our relationship with the county attorney and the special counsel. I actually in the past have proposed council rule changes to address how this body interacts with the legal folks, which have not been considered as of yet by this council. So I appreciate the beginning of the dialogue, but I don't feel like I did anything inappropriate. I take this job really seriously, and I have traveled to the NACo conference and to the smart growth conferences, and I want to continue to do that, because I think those are critical issues for the county of Kauai, and I welcome our ongoing dialogue about establishing the kind of policies that every other county has and that are nonexistent as f'ar as I know in the county of Kauai. Mr. Furfaro: Okay, Mr. Bynum. Council Chair Asing: Yes, let me... Can I respond? Mr. Furfaro: Yes. Council Chair Asing: I just want to respond to councilmember Bynum's I guess assertion that there is no policy regarding to talking to special counsel. I'd like to read from the special counsel contract. This is the contract that is signed by the special counsel and the county attorney's office. And it says, officer in charge, the county attorney shall be the officer in charge of this agreement, shall represent the county on all matters relating to this agreement, and shall have the authority and responsibility to act on behalf of the count to resolve any disputes. Now, this is the contract, and we cannot go to talk to special counsel unless we clear it with the county attorney's office. Because we don't want to have the county attorney's office doing one thing and councilmembers talking to the special counsel doing something COUNCIL MEETING - 17 - September 23, 2009 else. That's not the way it works, and for me, it's just plain common sense. I don't need a policy. It's a contract. A contract that must be abided by. Don't go around the contract and try to talk to special counsel. Clear it through the county attorney's office, because there is a bound contract between special counsel, county attorney's office. That's a contract, and if you have anything, go through the county attorney's office to get to special counsel if necessary. So that's the process and procedure, and it's just common sense. Read the contract, that's what the contract says. Thank you. Mr. Furfaro: Thank you Mr. Asing. Mr. Bynum? Mr. Bynum: As I early... stated earlier during the... I had a dialogue with the county attorney about my desire to meet with Mr. Minkin in the presence of all councilmembers, including the council chair. I admit to not have read the provisions of every contract that the county attorney has. My point is is if we have policy, it should be provided, and I believe that other councilmembers have had occasion to meet with special counsel without the county attorney present. But if that's the requirement, first of all inform me, second of all, I just said that I was dialoguing with the county attorney about having this meeting with other councilmembers present, and nobody objected. Mr. Furfaro: Mr. Kaneshiro. Mr. Kaneshiro: Since Mr. Bynum did pose a question whether if any councilmembers had an opportunity to meet with counsel, I can tell you, for the 10 years I've been on the council, I've never done that. So I just want to make it clear on the record that for myself, I have never met individually with, you know, with our hired...I would say counsel, to have any type of discussion. So for the record, I just want to say, because the 10 years I've never done it, and you know, I was here when we had some of those conversations, and I think, you know, we can move on and take what has been presented today, and for each and every one of us, it's a lesson for us, and look at it. I mean that's fine. I think, you know, this happened, but my recollection of the discussion was that because Mr. Minkins was on the island that day that there was a possibility that if we wanted to have further discussion, as Mr. Bynum has stated that he wanted to have, that we would try to make an attempt to at least get Mr. Minkin here for cost savings and to have some discussions if need be for the body as a whole. So hearing about the individual himself and so forth, I wasn't aware of any of this until, you know, this incident happened. But I think like you said, this is good for open discussion, this is a good time for us to reflect and see what, you know, some of the policies are and the contract calls for, and hopefully, you know, we can all try to improve ourselves to abide by that. So I just wanted to add that. Mr. Furfaro: Thank you Mr. Kaneshiro. Mr. Kawakami. COUNCIL MEETING - 18 - September 23, 2009 Mr•. Kawakami: Thank you Mr. Kawakami. Yeah, there is some value. I mean I guess for a new councilmember, we get to see, you know, the standard procedure. But I think this kind of dialogue is more appropriate to have with maybe just councilmember Bynum and Council Chair, and if we can, I just want to wrap this up, and I think we're all clear on the issue, and just like move forward with the other real council business, yeah, that we have. Mr. Furfaro: Thank you. Councilwoman Kawahara. Ms. Kawahara: Yeah, I think this has brought up some really good issues, and again, like councilmember Kawakami, I think having something for new c;ouncilmembers coming in would be useful, especially if it's a standard operating procedure that isn't readily available that might be in contracts that aren't readily available to us. I would like to request while we have this discussion going, as the presiding officer, that a policy do...that a policy does...is created on specific issues like travel so there aren't misunderstandings like the one we have here. Because policies guide us in how we interact in what we do, and I think it's important to know what the guidelines are so that we and follow the guidelines rather than get... do only what we think is normal, to find out later that it wasn't the case. So I'd like to request somehow a travel policy. Thank you. Council Chair Asing: May I respond to that? Mr. Furfaro: Yes, go ahead. Council Chair Asing: I think that's an excellent idea. I don't have any problem with that, and I will have staff draft a travel policy so it'll be plain and easy for us to understand. Ms. Kawahara: Thank you Chair. Council Chair Asing: I will agree to that. Ms. Kawahara: You know in addition to that, I hope that we would consider a lot of what the other councils are doing with having kind of an independence for each individual councilmember that they have funding... Mr. Kaneshiro: Point of order. We're not in discussion of what the other council does (inaudible). Mr. Furfaro: She's acknowledged that. Mr. Kaneshiro: Thank you. Ms. Kawahara: So just as an independent thing, I think it's a good idea, regardless of where the information came from. Having that kind of COUNCIL MEETING - 19 - September 23, 2009 independence would be beneficial and I think necessary and appropriate. Thank you. Mr. Furfaro: Thank you. I do want to touch on a couple items, if I can. So that the public is believing that we are not following any parallels, there are council rules. I think we acknowledged today that we need to revisit those rules and perhaps refine them somewhat. I believe we might see something to that effect initiated relatively soon, and I had expressed the fact that I would be more than willing to serve on such a committee. In the meantime, we have rules rather than policy statements, but rules that indicate that travel is subject to the approval of the chairman. We also have rules, and I am painfully aware of this as I have attempted to meet with, under a previous county attorney, I have attempted to meet with counsel on particular issues that have interest of me, and I was reminded of the statement that was read by Mr. Asing that was in the contract we issue to individual attorneys, and that contract basically says that whatever counsel we take on, they understand that approval to discuss items with them with individuals is subject to the approval of the county attorney, and it's a boilerplate contract. I think that's another particular item we need to revisit, and a couple good things have come up from this discussion, but in the meantime, I also want to caution us. You know, we started discussing who has what from the other counties and so forth. You know, we only have $154million to operate this county. Maui has a $315million budget, and Honolulu is well into the millions. So some of our frugalness is driven by the kinds of moneys we have, but it should not find us in a position that we can't constantly make improvements. I also want to say that subsequently, I would hope Mr. Bynum would do a trip report and hopefully call for an executive session to share his material from his trip. That was would be appreciative, but I would suggest that's done in executive session so that we can all share equally. On that note, I hope we understand what we have to accomplish going forward, and it sounds like we have some items and some support to address refining some policies. If there is anything else? Mr. Asing. Council Chair Asing: Thank you. With that, any further discussion? If not... We have a motion and a second to receive. All those in favor say aye. Those opposed say no. The motion to receive C 2009-313 for the record was then put, and unanimously carried. LEGAL DOCUMENT: C 2009-314 Communication (09/04/2009) from the Executive on Transportation, Transportation Agency, transmitting for Council approval a recommendation to indemnify the landowners to establish bus stops on their property as follows: • Right-of--Entry Agreement by and between Syngenta Hawaii, LLC and the County of Kauai for the Kauai Bus to establish a bus stop for picking up COUNCIL MEETING - 20 - September 23, 2009 and dropping off of passengex•s on their premises: Mr. Kawakami moved for approval of C 2009-314, seconded by Mr. Furfaro, and unanimously carried. CLAIMS: C 2009-315 Communication (09/01/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by State Farm Insurance as subrogee for Gerald Daly for property damages, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Kawakami moved to refer C 2009-315 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mx•. Furfaro, and unanimously carried. C 2009-316 Communication (09/02/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Wayne R. Daniel, individually and as trustee of the Wayne R. Daniel Self-Trusteed Trust, for damages, losses, and expenditures related to his subdivision project: Mr. Kawakami moved to refer to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Furfaro, and unanimously carried. COMMITTEE REPORTS: BUDGET & FINANCE COMMITTEE REPORT A repox•t (No. CR-B&F 2009-20) submitted by the Budget & Finance Committee, recommending that the following be received for the record: "Bill No. 2292 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUA`I COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAX APPEALS," Mr. Kawakami moved for approval of the report, seconded by Mr. Furfaro, and unanimously carried. (See later for Bill No. 2292) Pi1BLIC WORKS/ELDERLY AFFAIRS COMMITTEE REPORT: A x•eport (No. CR-PWE 2009-06) submitted by the Public Works/Elderly Affairs Committee, recommending that the following be received for the record: "PWE 2009-3, Communication (7/22/2009) from Tim Bynum, Committee Chair, requesting that the Mayor and County Engineer be present to provide an update on the status of all CIP projects," Mx•. Kawakami moved for approval of the report, seconded by Mr. Furfaro, and unanimously carried. COUNCIL MEETING - 21 - September 23, 2009 RESOLUTIONS: Resolution No. 2009-54 - RESOLUTION AMENDING RESOLUTION N0.2009-27 RELATING TO POLICE COMMISSION APPOINTMENT TERM (Charles Iona, Partial Term): Mr. Bynum moved for adoption of the resolution, seconded by Mr. Kawakami, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. BILLS FOR FIRST READING: Proposed Draft Bill No. 2328 - A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. PM-227-91, RELATING TO STATE LAND USE DISTRICT BOUNDARY IN KILAUEA, KAUAI (County of Kauai, Applicant): Mr. Kaneshiro moved that the bill be approved on first reading, that a public hearing thereon be scheduled for October 21, 2009, and that it thereafter be referred to the Planning Committee, seconded by Mr. Kawakami. Mr. Kaneshiro moved to amend the bill as circulated (see Attachment 1 hereto), seconded by Mr. Bynum. Mr. Kaneshiro: As recommended by the chair of the Planning Committee, Mr. Jay Furfaro, I believe these are just technical amendments? Mr. Furfaro: Yes they are as such, and I would like to move on this particular amendment. Again, just to point out to the public, this is a downzoning of property from light industrial to agriculture. It's the reverse. Council Chair Asing: With that, we have the approval, then we have the amendment. We are now on the... Let's vote on the approval of the floor amendment first. All those in favor say aye. The motion to amend the bill was then put, and unanimously carried. Council Chair Asing: Motion carried. We're back to the main motion as amended. With that, any discussion? If not, roll call please. The motion for passage of the bill, as amended, on first reading was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, COUNCIL MEE'T'ING - 22 - September 23, 2009 EXCUSED & NOT VOTING: None TOTAL - 0. Proposed Draft Bill No. 2329 - A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. PM-228-91, RELATING TO GENERAL PLAN DESIGNATION IN KILAUEA, KAUAI (County of Kauai, Applicant): Mr. Kaneshiro moved for passage of the bill on first reading, that a public hearing thereon be scheduled for October 21, 2009, and that it thereafter be referred to the Planning Committee, seconded by Mr. Kawakami. Mr. Kaneshiro: I also have an amendment...or Mr. Furfaro, chair of this committee, has another technical amendment that at this time I would like to introduce as circulated. Mr. Kaneshiro moved to amend the bill as circulated (see Attachment 2 hereto), seconded by Mr. Bynum. Council Chair Asing: Thank you. Let's vote on the amendment first. All those in favor say aye...of the amendment. The motion to amend the bill was then put, and unanimously carried. Council Chair Asing: We're back to the main motion as amended. Any discussion? If not, roll call please. The motion for passage of the bill, as amended, on first reading was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Proposed Draft Bill No. 2330 - A BILL FOR AN ORDINANCE AMENDING ZONING CONDITIONS IN ORDINANCE NO. PM-229-91, RELATING TO ZONING DESIGNATION IN KILAUEA, KAUAI (County of Kauai, Applicant): Mr. Nakamura: Council Chair, on proposed draft bill number 2330, which is a bill for an ordinance amending zoning conditions in Ordinance No. PM-229-91, which relates to the same property, if we could ask for a deferral on this particular bill, because there were some technical matters that we need to verify with the planning department at this time. So we would ask if possible for the council to defer this bill. COUNCIL MEETING - 23 - September 23, 2009 Mr. Kawakami moved to defer Proposed Draft Bill No. 2330, seconded by Mr. Chang, and unanimously carried. BILLS FOR SECOND READING: Mr. Nakamura: On Bill No. 2321, Draft 1, Council Chair, I believe there's a request to take this up after the lunch recess. Council Chair Asing: Yes. Mr. Nakamura: So if we could move to Bill No. 2292, which is: Bill No. 2292 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAX APPEALS: Mr. Furfaro moved to receive Bill No. 2292 for the record, seconded by Mr. Kawakami, and unanimously carried. Mr. Nakamura: At this time, Mr. Chair, if we could take a short recess to get the appropriate parties here for the executive session that's coming up? Mr. Furfaro: May I have a moment of personal privilege? Council Chair Asing: Go ahead. Mr. Furfaro: Just for the clerks and for my colleagues here, I know we're going to do the plastic bill at 1:30, but I do have a request coming to you. Due to some family matters and I have to handle some transactions, I will be requesting to leave at 3 o'clock. So just to let you know. There being no objections, the Chair called a recess at 11:06 a.m. The meeting was called back to order at 11:20 a.m., and proceeded as follows: Council Chair Asing: We have the county attorney's office. ES-403 Pursuant to Haw. Rev. Stat. sections 92-4, 92-5(a)(4) and (8), and Kauai County Charter section 3.07(E), the Office of the County Attorney requests an executive session with the Council to provide the Council a briefing, update, and to request authority relating to the expansion of the Kekaha Landfill, adjoining areas, 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 rules were suspended. MICHAEL DAHILIG, Deputy County Attorney: Good morning Chair, I'm Mike Dahilig, Deputy County Attorney. I'd like to request pursuant to Hawaii COUNCIL MEETING - 24 - September 23, 2009 Revised Statutes sections 92-4, 92-5 sub (a) (4), and sub (8), and Kauai County Charter 3.07 sub (e). The office of the county attorney requests an executive session with the council to provide the council a briefing, update, and to request authority relating to the expansion of the Kekaha landfill, adjoining areas, 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. Council Chair Asing: With that, I'd like to call the meeting back to order. Any questions Councilmembers? If not, I'd like to have a motion to move into executive session. The meeting was called back to order, and proceeded as follows: Mr. Furfaro moved to convene in executive session at 11:21 a.m., seconded by Mr. Bynum, and unanimously carried. Council Chair Asing: Motion carried. We're going to move into executive session now. There being no objections, the meeting was in recess at 11:21 a.m. The meeting reconvened at 1:39 p.m., and proceeded as follows: Mr. Nakamura: Mr. Chair, we're on page 4 of the council's agenda on a bill for second reading. Bill No. 2321, Draft 1 - A BILL FOR AN ORDINANCE ESTABLISHING A NEW ARTICLE 19, CHAPTER 22, KAUAI COUNTY CODE 1987, RELATING TO PLASTIC BAG REDUCTION. Mr. Nakamura: Just for the record, on this bill, Councilmember Kawakami is recused and will not be participating in the discussion or deliberation. Mr. Bynum moved for adoption of Bill No. 2321, Draft 1, on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Furfaro. Council Chair Asing: Councilmembers, let's try to follow rules, and the rules state that you should be recognized prior to addressing the council. So with that, Councilmember Bynum. Mr. Bynum: I just moved to approve. Council Chair Asing: And that's what I'm saying. What `I'm saying is you cannot do anything on the floor until you're recognized, and now that you're recognized, you can make a motion. COUNCIL MEETING - 25 - September 23, 2009 Mr. Bynum: Move to approve. Mr. Furfaro: Second. Council Chair Asing: Thank you. With that, any discussion? If not, why don't we do this? I believe we had someone from abroad who wanted to speak on the item. Am I correct? Wrong? There being no objections, the rules were suspended. Council Chair Asing: With that, I believe we have a list of registered speakers. Can we have the first speaker please. GORDON LABEDZ: Hi. Councilmembers, thanks for bringing this bill in front of us. My name is Gordon LaBedz. I'm the chair of the Kauai chapter of the Surfrider Foundation. As I said last time, the Surfrider Foundation has a national campaign to ban single use plastics, that's plastic bags, plastic bottles, Styrofoam, etcetera. And my comment for today is something that my environmental mentor taught me many, many years ago, a guy named David Brower, he was the first executive director of the Sierra Club, and he went on to form a number of very famous environmental groups. And he said there was no business on a dead planet. Our economy here on this island depends on its beauty, and if plastic bags are flying all over the place and the place looks like a junk pile, business is not going to be good. People are not going to come back. And I think that that's the perspective that we have to look at. Yeah, this might be a little bit more expensive, and for sure it's going to be a shift for lots of people to bring canvas bags to the store and remember to take them out of their car. It's a change, but to say it's bad for business is very shortsighted thinking. I think this is a good bill. I thank you for bringing it. I think it's really good for business. It'll make our island more beautiful. Thank you. Thanks for your yes vote. Council Chair Asing: Thank you. Councilmember Chang. Mr. Chang: Thank you. Thank you Mr. LaBedz. How do you think... What do you think causes the plastic bags to be flying all over the place on this island, as you mentioned? Mr. LaBedz: My side of the island is Kekaha. That's where I live, and they fly off the trucks. They're all over the place. You drive through any, any place west of Kalaheo, you got plastic bags along the road, and in the woods, and on the beach, and... That's... We do a monthly beach cleanup, and plastic bags are on those... You know, they're in the water, they're on the beach, and I don't think tourists leave them there. I don't think local people leave them there. I think they fly around. COUNCIL MEETING - 26 - September 23, 2009 Mr. Chang: And that probably goes true to, you know, every part of this island, and that's I guess the point I was trying to make, because herein again lies a big part of the education process, because I think we've all followed pickup trucks that we've seen plastic bags flying out, and we get really, really upset, because if you'll ever notice, you know when the maintenance crews goes along the sides of the road to cut grass, that's when it's evident that all the stuff that we don't see is now visible in the grass that's cut out. So I think that's one good point that we should also let the public know that, you know, we need to create awareness about loose plastic rubbish period in all of the trucks islandwide on this island. And thank you for bringing up that point about flying around here, very much so, because that right there created a lot of awareness. So thank you very much. 1VIr. LaBedz: Well thank you. Thanks for your yes vote. JOHN HARDER: Good afternoon Chairman Asing and the rest of the Council. For the record my name is John Harder, and I'm the chairman of Zero Waste Kauai. Zero Waste Kauai would like to thank you all for your continued support for bill 2321. The reduction in the use of single use plastic bags is an important step in recognizing that we can create a conscious behavioral change in the way people think about trash. Plastic check-out bags are a major source of windblown litter and coastal marine pollution. They waste limited natural petroleum resources and unnecessarily impact our landfills. And I know you've heard from businesses who claim the cost is too great, but once we've transitioned to reusable bags, the cost to consumers will be less because they won't have to provide those bags. And while the transition will take some adjustment, dozens of cities across the country are already transitioning into reusable bags, and we can learn from their process. Zero Waste Kaua`i's recommendation is to not to replace one waste produce with another, but the bill focuses on source reduction, which is eliminating waste. We think it's time for the people of Kauai to join the twenty- first century. Our island will be all the cleaner for it, and please continue to support the plastic bag reduction ordinance. I do have one comment. Again, another answer to Councilmember Chang's question about why the bag's abound. I think one of the issues is just the bags themselves, as you notice, they don't break down and they fly all around. They're not like paper, different kinds of paper that will break down rather quickly. I do a lot of highway clean-ups and I see cardboards, I see newspaper, and after a week it's starting to fall apart; plastic bags don't. And secondly, they're just part of a litter issue. I've been out there for years cleaning up highways, and it used to be majority of our problem was beverage containers. With the hi-5 bill, when the government took a step to help correct that, we don't see very many beverage containers out on the highways anymore. So I think this is an area where it does take some government interaction to help correct a major problem, and it is, to me, the major litter problem of all the materials that are out there, and especially marine litter. Thank you. Council Chair Asing: Thank you John. With that, can we have the next speaker please. COUNCIL MEETING - 27 - September 23, 2009 ALICE PARKER: Alice Parker for the record, and good morning... Good afternoon all. I am really glad that you came up with the wording for 2321, because we do need to decrease plastic bags. I don't understand why produce bags are exempted, because they also could be reusable plastic bags, I would think, and I would think from movies I've seen, with England they wrap fish and all kinds of things in newspaper, which breaks down fairly readily, from what John Harder said. The other thing is, not using or using only fabric bags has drawbacks. I am a pet owner. It's obvious-I live in a condominium, and our garbage goes from our apartments down a chute to a dumpster which goes into another dumpster, which is then picked up by the trucks, and you have to have garbage and things contained for health, as well as other things. This is a good start, but maybe the produce bags could also be biodegradable. Okay? Question? No? Council Chair Asing: Thank you. Mr. Bynum: Thank you. Council Chair Asing: Can we have the next speaker please. KEN TAYLOR: Chair and members of the council, my name is Ken Taylor. I do thank you for bringing this bill forward, and I do hope that you will pass it today. I think there's lots of reasons for approving this bill, and all the previous speakers have raised all of the issues. I did pass out today an article that talks about the difference between biodegradable products versus the oxy-biodegradables. I think that in this article (se Attachment 3 hereto) the biodegradable folks are separating themselves to some extent from the oxy-biodegradable people, and they give some reasons and I think that it makes good sense to pass the bill as you have it before you. Since this thing's been around a little bit, are there some amendments to the original bill that... I've lost track of pretty much just the way it was originally put forth. So hopefully you'll see fit to take good care of the environment on the island and remember that it's all we have to offer the tourists. Thank you. Council Chair Asing: Thank you. Can we have the next speaker? LAUREN ZIRBEL: Good afternoon Councilmembers. My name is Lauren Zirbel. I'm here on behalf of Hawaii Food Industry Association. First off I'd like to say that we agree with a lot of the testimony that has been submitted today in that we absolutely support that people should stop using single use bags, and they should start using reusable bags, and to that effect, we have had numerous events where we've given away thousands of reusable bags. We've actually created a campaign with slogans and signs that people have put up in front of their stores. A lot of major chains are doing this, and we've seen a huge increase in reusable bags and a huge increase in plastic bag recycling. Foodland recently released a study that they've seen a 900 percent increase in recycling of plastic bags, and that's COLJNCII, MEETING - 28 - September 23, 2009 pax•tly because... One of the gentlemen, he mentioned hi-5. That's a great example of how recycling can really work when you put incentives behind recycling, and that's something that I think we could look into doing at the State level for plastic bags, some sort of a redemption tax, because some stores are actually doing that. Foodland gives back five cents for every plastic bag that the consumer returns, and they have just seen a tremendous increase in recycling on plastic bags that people aren't already reusing in their homes for plastic bag liners. And people also noted the sea debris issue, which obviously people assume that plastic bag is a huge percentage of sea debris, and that's actually not true. The largest by far percentage of sea debris is fishing nets, and I don't see any bills up to ban fishing nets, and that is like a huge percentage of marine debris. We're by no means saying that plastic bags are a great thing, but we're also being aware of the fact that these other options, like paper bags for example, are not god for the environment either. In fact, from an energy standpoint and from a resource standpoint, they are far worse for the environment. I think it's not too much to ask for people to use the waste stream and not throw all of their litter on the ground, which is basically where this bill would show some sort of an environmental benefit is if we...if we are assuming that all bags are going to be littered, then that would be where this bill would make a huge environmental difference. But if you're not assuming that and you're looking at what we have right now in our waste stream, we have a recycling system and we have a waste bin. If you give somebody a compostable option, like these alternative compostable bags which I can show you, I brought some, they look a lot like a plastic bag, if you put them in the recycling stream, they corrupt the recycling system. That entire batch of what was recyclable plastic, which is now...we have a thriving recycling industry in Hawaii, we send them back to the mainland, they're tux•ned into eco-friendly building materials. If you put in the compostable option in that, it destroys the entire recycling system. We won't have that anymore. It would be gone, and all of the plastic wrap that we use to import our food, all of our vegetables, all of our meat products, everything that we have that uses plastic that's now being recycled, it won't be able to be recycles anymore, because it'll be corrupted by things that...by these other options which are the consumer is going to mistake for plastic. And the other option obviously is you have a waste bin where people can put what they perceive to be things that cannot be recycled. That's where you would have to put the compostable option, because you know, there is no curbside composting bin, and we have no composting facilities in the entire State of Hawaii to take these alternative compostable products. In the landfill, I mean there are a lot of FDA studies that show that paper doesn't degrade at a quicker rate than plastic in a landfill; nothing does. Landfills are specifically designed... Council Chair Asing: Lauren, you've had your three minutes, but there's three additional minutes that you can use. So go ahead. Ms. Lirbel: Let me just read some of the testimony, actually. The amendment to the biodegradable definition is a standard that was established COUNCIL MEETING - 29 - September 23, 2009 using materials... testing materials in composting facilities. We don't have these facilities in Hawaii, and the fact, if you look at the website for these products, it says that... It doesn't say anything about breaking down in the natural environment, except for that they break down at comparable rates to things such as leaves, but that's actually really deceptive, because say for example an evergreen leaf takes three years to degrade in a natural environment, I mean that's not really a standard by any means. The other point that we wanted to make is that compostable products are made from corn and other food sources. The world bank released a report that stated that the use of food products for alternative means is resulting in food shortages and huge increases in the basic cost of food stuffs, not to mention the fact that these products are encouraging deforestation to make room for more farmland, and corn is one of the most water-intensive crop. The increased demand for corn, which results from these alternative bio-based products causes runoff issues in other countries. compostable bags also have shelf-life problems, and a lot of stores in Hawaii especially, because we have such a humid hot climate, they start degrading quickly if stores are trying to buy in bulk to make up for the fact that these products are so much more expensive, and they are. I drove all around the island of Oahu trying to find one store that offers these compostable options. I could not find one, because they are so prohibitively expensive right now. When plastic degrades... Plastic obviously does have downsides, and we're not by any way encouraging plastic. We're encouraging reusable bags, and we would like to work with the county on creating maybe a mandatory reduction of plastic bags, or a mandatory recycling program, or things like that, or even helping you to fund some sort of public education campaign about using reusable bags, which I think would help really with the reduction issue, which is the most environmentally friendly aspect of the single use bag problem. Paper bags are seven times more volumous(sic) than plastic bags. Therefore, for every one shipment of plastic, retailers will now have to pay for seven shipments of paper. Even with this cost, it's still cheaper than compostable biodegradable bags. And also in San Francisco, when they did do the ban, consumers switched wholeheartedly to paper, which generates 70 percent more air pollution than plastic bags and take 91 percent more energy to produce. Council Chair Asing: Do you have a lot more? You want to finish up, please? Ms. Zirbel: I mean I guess the main point of our testimony is that we believe that the best solution is a mandatory reduction of single use bags by retail establishments, and this is the only approach that will truly reduce the environmental impact of all bags regardless of what material they're made from. So we hope that you consider that and maybe create legislation to that effect that would reduce the use of all materials, which is the first R, right... reduction, reuse, recycle. Council Chair Asing: Thank you. Any questions Councilmembers? Go ahead Councilmember Chang. COUNCIL MEETING - 30 - September 23, 2009 Mr. Chang: Thank you Lauren. First of all, you mentioned that Foodland had a five cents return policy. Is that Foodland Honolulu? Ms. Zirbel: Yeah. I mean actually I think that might be their storewide policy in general (inaudible). Mr. Chang: But not on Kauai? 1VIs. Zirbel: Maybe not, I don't know. There is a guy who came to our meeting that had a big chart that said 900 percent means that they were offering rebates. Mx•. Chang: So you know, you talked about doing an education implementation about working with the county. Did you folks... have you folks created some sort of plan that you might want to present? Ms. Zirbel: Yes, absolutely. We actually...we created this public/private environmental solution which we had a lot of our members sign on to, and it basically the title of it...I think I may have sent you guys copies, is that HFIA is committed to planning comprehensive solutions to waste issues by investing in an educational approach to changing consumer behavior, and this is the best way to use less resources, because the overall use of single use bags, improper disposal, and most importantly lack of education about reusable products and recycling are the root problems associated with plastic bags, the solution lies in the public education campaign which puts a priority on reduction. And then we have a list of things that the local businesses will sign and say that they're going to do, such as place large signs in front of each store which reminds customers to use...to remember their reusable bags, provides in-store plastic bag recycling bins conveniently and prominently located at the front of every store, setting a reduction of plastic bags to 30 percent fox• the next year, and then documenting this and giving a report back to local legislators on the progress of this initiative, and then it has a list of things that local government can do, such as, use(inaudible), bring your own bag and reduce your use slogans in solid waste education and promotional programs, and giving away reusable bags (inaudible) and things like that. Mr. Chang: So when you mentioned a little bit about the biodegradable bags, if they are in storage and you're buying it in bulk because you want to save money in bulk, is there a possibility that the biodegradable bags biodegrade like before they used, like on the shelf, or... Ms. Zirbel: Right, so it's a double downside. I mean we have had one our members who's a smaller grocer and they looked into buying these compostablc; PLA bags, and they had to buy in bulk to the tune of one and a half million, that was the smallest that they could buy in order to get the cost down to What ended up being 10 times what they were going to pay for their plastic bags. COUNCIL MEETING - 31 - September 23, 2009 But even then, if they're a smaller store and they don't have the type of usage that they're expecting, say people are remembering to bring their reusable bags finally and then they have all these bags that start biodegrading, that's a double loss. Not only did they pay 10 times more for the product, but then they can't use it. So it actually, it's a big problem for smaller businesses that can't buy in bulk. Mr. Chang: I just find something pretty interesting also that came through our desks. I think San Francisco, the big city, is used as a model that they were successful in their attempts to ban plastic bags. But it seems as though they`ve concluded that the number of plastic bags in and around the city is about the same, but the bag litter actually increased. Ms. Zirbel: Right. Mr. Chang: Is there an explanation behind that? Ms. Zirbel: So I mean there's a few things that could potentially be causing that. Number one, San Francisco is a huge tourist destination, not unlike Kauai, and people often bring over things packaged in plastic bags. I know I do that with my tennis shoes and my bathing suits or whatever. And I'm sure those were getting maybe...they blow away, or I don't know what's happening there, but also just the general increase in litter. There has been a study that shows that when things are labeled as biodegradable, people are much more likely to litter them, which actually is the exact opposite of what we'd like to see, because a lot of these things... I don't know if you guys have been following this in the news, but the Federal Trade Commission is suing people left and right for claims of biodegradability, even against paper products. Because they're saying in their statements that if a product will go to the landfill, most likely if that's the waste stream that is used in that community, you can't label it as biodegradable, because it will not biodegrade in a landfill. So these...I mean there is a...there are multiple lawsuits in progress right now over all these different conflicting claims on biodegradability. It's definitely yet to be sorted out. Mr. Chang: Thank you. Thank you Mr. Chair. Council Chair Asing: Thank you. Any other questions? If not, thank you very much. DON HEACOCK: Good afternoon lady and gentlemen. Mr. Chairman, I just rewrote my whole testimony in the last two minutes. Listen, I know it's difficult for people to grasp this situation, but it is absolutely essential... and by the way, I wasn't sure if the former speaker was for or against the bill; I couldn't figure that out. But I'm for the bill. This is a step in the right direction. Plastic bag, especially one-time use bags, are, in contract to what you just heard, one of the number one plastics that washes down our watersheds...in Hanama'ulu, in Niumalu, in Nawiliwili...is plastic bags. I've been a beach captain, COI_JNCIL 1VIEETINCx - 32 - September 23, 2009 I've been a watershed assessment leader for Kauai High School, King Kaumuali`i, Kapa`a Elementary, Kapa`a High School...I'm going to stop there, virtually every school, and we've done this for 20 years. 7.'he last time we did it here in Hanama'ulu and in Puhi, plastic bags, ironically many of them single use bags which say litter bags me on them, ranked 527 that we picked up in an hour in...off Lawehana street in Hanama'ulu. That was with Pat Cocliett's class. They end up on a reef. I've done necropsies on dead turtles with plastic bags in their esophagus. Now that's rare, rind she...the previous speaker was right. If you look at marine debris in general, non-natural fiber netting, contrary to what was said, it's not fishing netting, it's cargo netting and troll netting that which is fishing netting, does make up the majority of the debris in the Pacific; ocean. But on our coral reefs and coming out of (excuse me) and coming out of our watersheds, it's cigarette butts number one, plastic bags number two, and all kinds of things come in next. Out at Kilauea Point, about 15 percent of the total volume of the gut contents of those baby seabirds of the fledglings are plastics. Pieces of plastic bags are in there. Plastic bags will last...pieces of them will last 500,000 years, even though most people use them for less than 12 minutes. I have been frustrated for the last 20 years at carrying one item to a grocery store or a supermarket or a Long's Drugs Store, and if I don't stop the person, it's going to go in a plastic bag. I was able to carry it to the counter without a bag, and we just have to pass this law. Plastic... single use plastic bags are a pollutant. They are a pollutant. They are a visual pollutant that kill marine life...they kill seabirds. And the statement you just heard that plastic bags are cheaper, well, that's an externality. That's only when you don't factor in the death of these endangered species. I really don't have much more to say. I changed my testimony, but I would love to get a written copy of the previous testimony. Things like corn that require more water...sugar requires almost 20 times more water than corn, and we grew thousands of acres of sugar here. If we really want a long term solution, we'd grow industrial hemp and make our own bags; you wouldn't have to ship them in. We'd reuse them, we'd make clothes, we'd make everything out of it, undies eventually. Please gentlemen and lady, pass this bill If you don't, all it will tell me as an individual and as a professional is that I failed in educating my fellow community members. Thank you. I don't think I said my name. Don Heacock. I'm representing the marine life that can't be here. I'm representing the conservation council for Hawaii. And the scientific marine biology community. Thank you. Council Chair Asing: Don, just. for your information and I think you know it, but I guess it's good for the public. That identifying yourself as the speaker is really for a captioner that we have sitting in Honolulu, so the captioner in Honolulu is listening, but... Mr. Heacock: Doesn't know who they're listening to. Alright, thank you. COUNCIL MEETING - 33 - September 23, 2009 Council Chair Asing: ...who is speaking, so that's the reason for people identifying themselves, because of the captioner we have in Honolulu that is listening and captioning at the same time. Mr. Heacock: Thank you Kaipo, and I totally agree with what John Harder said earlier. This is, and you know, I thank you for entertaining this bill, and for the mayor supporting it. Thank you sir. Council Chair Asing: Thank you. And staff, can you get a copy to Don please? Is there anyone else who has not signed up that would like to speak? Please... ELY WARD: My name is Ely Ward, and I asked Mr. Chang to pass around this carton that I happened to see in Maui last week, and it's a parent...it could be a seagull or Laysan albatross and a baby chick with a platter of plastic trash in front of the baby chick. And the baby chick says, plastic again? This is this worried look in the mother's eyes or the father's eyes. I kind of have to change my testimony too after hearing the lady testify, because I happened to live in San Francisco when the ban on plastic bags was passed, and I admit it was very difficult to change my habit, my family's habits. Although some people would say that the best solution to changing an addiction or a destructive habit is to go cold turkey, it didn't work for me. I did wind up buying biodegradable bags, and being Filipino, being thrifty, I didn't use them...I tried to use them sparingly. And I have to say they didn't break down on me. You know, I would buy a little pack, keep them in the closet, and they would last me for months, and they didn't break down while waiting to be used. But the biggest change was in Chinatown where I would go do my shopping...well, part of my shopping. It's kind of a...living in San Francisco, that's where you want to go for fresh fish or fresh produce, and a lot of the Chinese people shop every day because they want fresh things, and it's not unusual to see, mostly Chinese, grandparents, grandpa, grandma, with six bags, plastic bags, in one arm, another six plastic bags in another arm, and sometimes one bag would just have one onion, one fish, and there was just this proliferation of plastic bags, and you could tell when you were in Chinatown how dirty it was with plastic bags flying all around, and just, you know, a lot of things that were just left on the side. And in a space of a few months, there was a big change when the plastic bag ban was passed-you didn't see as many colorful plastic bags flying around. There was a lot of resistance from the store owners, because it was their way... They had like a bag that was identified with a certain store, and so that was one way they could tell that the item had been paid for. And so that's why you see these people going around with, you know, several bags. I was one of them. I did that too. Several bags in one arm, because that's what they felt was the best way to keep track of their items. But you know, they were able to change their habits, and I'm hoping that that's continued, and if San Francisco is being used as a model, that means it's successful. COUNCIL MEETING - 34 - September 23, 2009 My testimony actually came about because I've been asked by some friends, knowing that I support...I'm a rabid(sic) supporter of the plastic bag ban bill, asked me, if they didn't have plastic bags, what would they use instead to line their trash cans? And so I decided, well, you are probably going to be asked that too, and so I did some research, called around, talked to some friends, and then went on the internet, and these are some of the answers I jotted down. The biggest thing is reduce your waste. You know, that's the first thing we have to do is reduce our w~zstc. This can be achieved by composting, recycling... Council Chair Asing: Excuse me, that was three minutes, but go ahead and finish up. Thank you. Ms. Ward: Thank you Chairman. Reduce waste, you can achieve this by composting, recycling, avoiding buying overly packaged goods, bringing your own bags and containers to stores and restaurants. I mean I myself am guilty of that. I have like five... six bags in my car. I always forget, but I do go back and get the bag in. Okay, kitchen and wet waste. This is another big problem. We have to be reminded that before plastic bags were invented, people wrapped kitchen waste in newspapers. And another idea was to save the cereal, cookies, and chips bags-you can put your wet waste into it and secure with a rubber band until you're ready to throw to the outdoor trash can. And for composting, keep your container with a lid by the sink and get into the habit of disposing non-meat food items into the container. And also, like for some people who do gardening, small backyard gardening, you'll be surprised how much better the garden grows when you throw your compostables in the land. Reducing the number of garbage cans in a home. Dike the garbage cans for clean waste such as non-food or dry items, they don't need liners. Use the liners only for kitchen and bathroom cans. Empty the clean dry waste into these two cans. Unlined cans can be rinsed and set out to dry in the sun periodically. The sun actually is a very good disinfectant. So that's all you need to do-rinse it, set it out to dry in the sun. There was talk about biodegradable bags not being available. There is a website... It may not be available on this island, but it can be ordered on the internet. It's www.Qardenin dg elights.com. But I'm not sure if our landfill is designed for biodegradable bags. According to this material I read, the landfill has to be designed to hasten decomposition through aerobic and anaerobic means. So I don't know about that. Paper bags, though not the best solution, decompose over time. To avoid leaks, line the bottom of paper bags with newspaper. Then canvas bags which are washable can also be used with a liner. Again, line it with a newspaper, and this is a good advertising, I think, for the Garden Island. And then once you're done with the clean dry trash, just fold and dispose in the outside trash can. Is that it? Council Chair Asing: Thank you. COUNCIL MEETING - 35 - September 23, 2009 Ms. Ward: Okay, thank you very much. Please pass the bag bill. Council Chair Asing: Is there anyone else? Please? SANDRA HERNDON: Good afternoon. For the record, my name is Sandra Herndon. And I have submitted testimony...written testimony in support of this bill in the past, and I'm sure that pretty much every relevant thing that could be said in support of this has been said, and I know that there are lots of opportunities here for thinking out of the box or out the bag, so to speak, and I think that it is difficult for people to change habits. One of the things that I've noticed makes people a little bit more responsive is if it affects their pocketbook. So I'm here to suggest that in addition to whatever considerations are built into this bill that perhaps instead of giving people a nickel for every bag that they have to take, they charge them a nickel. And I think people would become very cognizant, and those bags that get left in the car would probably be remembered more the (inaudible). Now, I have to go out and get my bags because I don't always remember, you know, getting out the car to go shopping either. But rather than juggle five or six pieces of merchandise, I go back out to the car, get my bag, and go back in, and I feel a whole lot better about the process in doing that. So that's just my manao. I think that...I think we all know that we have to do something about this issue and do it right away, and so I appreciate your time and consideration on this, and I think as with a lot of things in our society, there is a financial aspect to it. So I'm just saying, maybe turn it around the other way and let it support people's choices. Thank you. Council Chair Asing: Thank you. Is there anyone else? If not, I'd like to call the meeting back to order. Is there any discussion, Councilmembers? The meeting was called back to order, and proceeded as follows: Council Chair Asing: Councilmember Kawahara? Ms. Kawahara: Thank you Chair. I appreciate all the testimony that we've gotten here. Just so you know, we have also this much testimony received previously for the public hearing. Ninety-two said yes, and eleven were... did not support the bill. What I wanted to share was an overview, actually, of maybe some of what you heard in opposition to this bill. There's a company or...yeah, a company called the progressive ag alliance, and what they do is they have...of course they advocate very strongly for their constituents, and they are plastic bag advocates. They have strategies that are very well developed, and they battle them on a local level every...on every level every time a bag bill comes up. So when you hear different testimony in opposition, I want you to think about these three things. When the testimony was given, did it shift the focus of the discussion and making possible solutions appear limited? Did it seem like we weren't going to be able to get rid of bags because any other options were just as bad? The other one WaS... Ari0ther Strategy is to promote weakening a legislation and delaying more COUNCIL MEETING - 36 - September 23, 2009 effective legislation. So...and another one would just be intimidation, where different actually cities have backed down from doing plastic bag reduction bills. This bill that we have in front of us I believe addresses many things that we as an island may be able to support in a much stronger way because of where we're located. The education that is brought up, educating individuals is something that the county does already, and that the State has done. I believe they had a not the bag... not your bag type of campaign. I believe that the county has been very strong in promoting recycling and reusing. Reducing is the very first thing you do in your three-Rs. Reducing is the most practical thing you start at the production point. The education is good. We have testimony from everybody that education would be useful. In my x•eadings, I find that education is moderately effective at raising general awareness, but not actually in changing behavior. So when...I commend everybody for educating the people and educating shoppers, and we've done that. I think it shows that this is an issue that still remains after we have done diligently...worked diligently to educate people and our consumers. What this bill does is... Well, first of all I should say, the legislation that we're looking at, we've had testimony also that it would be an issue that the government was stepping in and getting in the way. In this case, I would argue that obviously with the testimony and all the articles that are out everywhere in all the magazines or whatever you do, it is an issue. Everybody knows there's a plastic island out there the size of Texas. It is an issue that everybody has read about, and it is definitely an issue on Kauai because of our lack of landfill space. The point is that if there was no problem, then why are all these issues? The government is here, I think in this case, it has a reasonable ordinance that we are suggesting that addresses an issue that is obvious and that is an issue that hasn't been able to be solved otherwise. It also levels the playing field in a way, because there are people...of course, I know, my stepmother says, you know, you know I recycle my bags, I use my bags all the time, I rinse them out, I dry them out. That's great, but you know what`? You're not playing on a level playing field because there's people that don't care. So the people that don't care are the ones that are causing great impacts on our environment. Also, I want to state that the bill doesn't mention this, but in our State constitution, it is section 11 that requires that the State conserve and protect its resources, its natural resources. This is an ordinance that does that, and again, I would like to reiterate that this is an island community. We are isolated. The fact that people can say that there are other options without the plastic bags aren't good is just the way of trying to delay or weaken legislation that's trying to address an issue that everybody...would give everybody a chance to do something individually for the environment that we all love, we all want to protect, for our local people and for our visitors. So I do want you to think about that, because I've thought a lot about it, and I just want this bill to be understood, and I want people to understand what kinds of things circulate around a bill like this. I was contacted by American Plastics Council, I believe, from the mainland, and that's the first time ever I've had any lobbyist come or try to talk to us from the mainland and come over COUNCIL MEETING - 37 - September 23, 2009 here. So it is a big investment. It is a big issue for some...for a lot of plastic bag distributors and creators. So in light of that, I just want you to have a perspective of what it is we're trying to do and why we're trying to do it, and why it's important. We're following our State Constitution. We've done our education, and... None of this precludes us from continuing to do education. And thank you. Council Chair Asing: Thank you. What I'd like to do now, I'd like to have the county engineer up, please. There being no objections, the rules were suspended. Council Chair Asing: Hi Donald. Donald, you have a copy before you of the bill, and please note section 22-19.1 under definitions, and let me just read it. As used in this article, unless the content clearly requires otherwise, a biodegradable bag means a bag that one) conforms to the European standard EN13432, which was established by the European committee for normalization. Two, contains no petroleum derived content, and three, is intended for single use and will decompose in a natural setting at the rate comparable to other biodegradable material such as paper, leaves, and food waste. As the agency who will more than likely be monitoring this area, how would you be able to identify the biodegradable bag? I mean, you know, I have all kinds of plastic bags, and how will you say you do not meet this standard? How you going to do that...with this definition. DONALD FUJIMOTO, County Engineer: I haven't done sufficient research to fully understand this standard, but it is my understanding that this is a higher level product that people would be proud of, and I'm sure they would establish some sort of labeling that would recognize that it meets this standard. But another way to identify this is to actually have a lab do analysis of the bags to confirm whether it meets this standard or not. Council Chair Asing: So how are you going to do the enforcement with this definition here? Mr. Fujimoto: Again, you know, I don't... Again, I'm not familiar enough with this standard and what really this represents. I haven't done sufficient research, but my understanding is that this standard would explicitly say what is required to meet these standards, and part of that would be the actual chemical composition of the bag. Council Chair Asing: I think, Donald, what I'm saying is if I'm a store and I have these bags and if you ask me, your bags is it biodegradable, and I will tell you, yes it is. COUNCIL MEETING - 38 - September 23, 2009 Mr. I{'ujimoto: And so obviously under this present legislation if it is passed, I would think that stores that offer this would be proud to do that and would provide the labeling. Council Chair Asing: But the stores that do not do this and just say, but my bag is biodegradable. Mr. Fujimoto: Yes, so one means is to actually do the necessary testing to see if it is actually meets the standard. Council Chair Asing: So you'll be doing the testing? You will be sending it out? Mr. Fujimoto: Again, I haven't, you know, looked into this sufficiently, but that is a means of confirming whether it is a biodegradable or not. Council Chair Asing: Yeah, I think the concern I have is there's a definition here, and you as the enforcing agency should have the means of making a determination whether it meets this standard or not, and how would you in fact be doing it. Mr. Fujimoto: Right, and you know, I just like to say that number one, it is a standard that we're referencing, so it's not arbitrary, that it refers to, again, a standard that is established, and again, I...without doing the research on this, I trust that these standards have very specific, you know, issues... or it identifies the conditions of meeting these standards. Council Chair Asing: But you're not sure. Mr. Fujimoto: I'm not sure. I haven't done the research. Council Chair Asing: Okay, good. Thank you. With that, what I'd like to do is I'd like to have the county attorney up, please. AL CASTILLO, JR., County Attorney: Good afternoon everyone, Council Chair, Councilmembers, Al Castillo, County Attorney. Council Chair Asing: Let's see. Al, I've sent you a memo and the memo was sent on September the 15th, and let me read the memo. Mr.. Castillo: I read it. Council Chair Asing: Well, let me read it for the public. Mr. Castillo: For the public, okay. COUNCIL MEETING - 39 - September 23, 2009 Council Chair Asing: And this is from myself as council chair to the county attorney's office, and the subject, plastic bag reduction bill. The Kauai County Council is considering a bill to regulate and prohibit the distribution of plastic bags. On April 7, 2009, your office provided the county council with a memorandum regarding the bill as previously written. Since then, the bill has been revised and is now pending before the county council as bill number 2321, draft 1. Please review the enclosed bill and provide us with your comments regarding its validity as currently written. Please feel free to contact me at the council services office if you may have any questions. Mahalo for your attention in this matter. Before you answer that, I would like to say that I cannot, because it is under the attorney-client privilege area, disclose the previous written comments by your office. So I cannot do that, but I can say that your office had major concerns, and the concerns I believe were put forward to the councilmembers that got the report. But I wanted to put that on the table so we all understand what we're talking about. So with that, you have my communication and my question to you is, do you have a response to my communication? Mr. Castillo: Yes I do. Council Chair Asing: Okay. Mr. Castillo: And without going into the specifics and without disclosing the liabilities of the county, what I can do is address the concerns that we have in general terms, and then we can provide the council with the specific concerns that we have. But I would just like to say, as our county engineer was grappling with trying to answer you a few minutes ago, that in itself is one of the major problems in terms of enforcement, implementation...implementation and enforcement of this bill. Also, the definitions that are contained in the bill right now are insufficient to carry this bill should it be passed today. It still needs a little bit more work. September 15 was Tuesday...last Tuesday. We did start on addressing the concerns from last Tuesday; however, we don't have the final written legal opinion of all of the concerns that we have in this bill. We are not making any opinion on the judgment of the bill. We are just making an opinion regarding the legality, the difficulty in the implementation, the difficulty in the enforcement. Those are the areas which we have grave concerns at the present time. Council Chair Asing: Thank you. With that, Councilmember Bynum. Mr. Bynum: Is there a particular definitions that you have difficulties with? Mr. Castillo: Okay. I said earlier, sir, Councilman Bynum, without going into the specifics where I would get into the liabilities of the county, I don't want to share with you the weaknesses in the bill, because this bill, we have pros and cons. We have the people that want the plastic bag bill, we have people...the merchants out there aren't necessarily happy with this bill. The COUNCIL MEETING - 40 - September 23, 2009 manner in which this bill will be implemented and enforced is of grave concern, and I share that with the county council, because I was a prosecutor for almost 15 years. I know and I worked at the legislature, the Hawaii State Legislature, where I was involved in the promulgation of bills. The legislature does the promulgation. You know, we at the prosecutor's office, we did the implementation and enforcement, and sometimes it doesn't mesh. So I'm just giving you the best advice that I can at this point in time. Council Chair Asing: Thank you. Councilmember Bynum. Mr. Bynum: So the original... The bill as originally written was sent to your office for review. Correct? Mr. Castillo: Yes. Mr. Bynum: And we received a written response. Correct? Mr. Castillo: Yes. Mr. Bynum: And subsequent to that, we worked in collaboration with your office to revise the bill, and all the amendments that were in the bill were done in collaboration with the county attorney's office with the exception of the one amendment that was that I introduced to change the definition. Is that correct? Mr. Castillo: Yes. Mr. Bynum: Okay, so I'm going to assume then that if there's any concerns, it's related to that one amendment. Mr. Castillo: No. And when... I don't want you to assume it's only that. 1VIr. Bynum: Well that's why I'm asking. Mr. Castillo: And I see... The bill taken a whole, and I have my copy marked up and it's not only that one area, and like I say again, I would not want to divulge the weaknesses in the bill, because that's the areas where it exposes our county. Mx•. Bynum: If we were working collaboratively with the county attorney's office who was involved with all of the revisions we made to the bill, with the one exception I noted, right, why would there be other areas that raised concern when the county attorney advised us in the process of creating the bill? Mr. Castillo: Well, you know, and I don't want to argue with you. When I personally took a look at the bill and I saw all the necessary legal COUNCIL MEETING - 41 - September 23, 2009 adjustments that has to be made, whether or not this was caught early in time, late in time, I think there is time now to do the prudent thing and look at what we have...what we will tell you are the concerns that we have, and then you pass the bill. Whether this was way back in April or September, I can't answer that question why... You know, the questions poses why didn't...you know, I'm assuming, why didn't we catch this and why didn't we catch that. All I can tell you is on the 15th when we got it, we got on it right away. We did more research. We looked at it more closely. I looked at it personally, and I found that there were flaws. And based on my years of experience knowing how these things occur, I can tell you for a fact, the implementation and the execution of this bill will be hard on the enforcement part. And I don't... I don't want that to happen. Mr. Bynum: So I want you to be patient with me for a minute. Mr. Castillo: Sure. Mr. Bynum: I just want to make sure that we're absolutely clear. The original bill as written was sent to your office for review. There was an extensive response in writing. Correct? Mr. Castillo: That's right. Mr. Bynum: That was sent via the council chair, and then distributed to councilmembers subsequently. Okay. After that, the county attorney who wrote the opinion collaborate with staff here and myself to resolve the concerns that were addressed in that bill, with the entire wording of the bill, with the exception of the one definition that was amended. So turn this... Have I got this right... correct? Mr. Castillo: I don't know which county attorney you met with, and I wasn't privy to that meeting. All I know is that when I made the final review, my final review didn't pass muster, and it could have been several of my deputies that reviewed the bill. I just wanted to make sure that the bill was okay and sufficient to be delivered. Mr. Bynum: I think our credibility with the community is on the line here, because I followed the procedures, went through the process, consulted with the county attorney to make sure that the bill as written would work. If the problem is in the one definition, that's resolvable without delaying...further delaying this. Because you're right, we are very late in the process. We've been through committee when all of this review should have been done. We've deferred this bill two weeks ago to look at new testimony. And so I'm sitting here frustrated that when you follow the process, you consult with your attorney and then your attorney comes up at the last minute and says there's problems in the areas where the attorney's office was consulted, can you understand my frustration? COUNCIL MEETING - 42 - September 23, 2009 Council Chair Asing: Hang on. Before you respond to that. Councilmember Bynum, you may not...I'm going to say again, you may not be exactly correct. I do not believe that when you completed all of the necessary changes that was addressed to you by the county attorney's office, you did not in fact sit down with that attorney and go line by line working on the item. So when you say you followed the process, that's not exactly true, because I do not believe that you took that last step, which is really the step that we're taking now. So you need to be corrected a little bit that you did not follow the process as you seem to believe you have followed the process. So I want to make that plain. With that, g~o ahead. Mr•. Castillo: Thank you. Thank you Council Chair. In terms of credibility, I would be committing malpractice to allow a bill to go through after reading it and just for the sake of the credibility that you talking about, and it, you know, basically, haste makes waste. The credibility that I adhere to is my professional responsibility to make sure that what I give to this council is the best work that I possibly can, and you know, when we go out and we try to enforce this bill, it will not be the council that will deal with the problems out there. It'll be us, the attorneys. So I just want to make sure that are on as solid ground as we possibly can, and that's what I bring to you. If you didn't want me to do my job, then go right ahead, pass this bill. But I've told you there are many flaws. Council Chair Asing: Councilmember Bynum, then Councilmember Kaneshiro, then Councilmember Kawahara. Go ahead Councilmember Bynum. Mr. Castillo: And to put it precisely, the biodegradable bag definition was there for the longest time, and it was always my criticism that we do not have the necessary lab here, the necessary people to do the testing, and then it becomes problematic if we're going to rely on some lab that does the European testing. And it brings into the situation a lot of problems regarding enforcement, and that is not the main issue, but that is one of the material issues that we're dealing with. Council Chair Asing: Okay, Councilmember Bynum. Mr•. Bynum: So if we corrected that by removing from the bill the option for biodegradable plastics, would that resolve your concern? Mr. Castillo: No. There's...there are more, and I would suggest... Mr. Bynum: With all due respect, I'll stand by my earlier statement. Every other word in that bill was done in collaboration with the county attorney's office. The chair is correct that once we completed that, we didn't go back and say, okay now bo do another formal review, because the county attorney was... V~Thatever that county attorney recommended is what we did, and so... I'll put this COUNCIL MEETING - 43 - September 23, 2009 in a form of a question. Are you aware of other bills that this council has passed without final review from the county attorney's office? Mr. Castillo: I'm sorry, I don't understand the question. Because on this one here, I think maybe we... I had thought that the bill was already looked at by many...by my office. But when I got the further questions on the 15th, that's last Tuesday, then it caused me to wonder why am I being asked questions again. So that caused me personally to go look at the bill and personally go line by line, and I said, oh this bill is really not ready, and therefore, three of us started more research and there were terms in the bill that I had problems with. And that's what sparked the second or third or fourth review. Mr. Bynum: Are you aware of... Is every bill passed by this council get final review from your office? Mr. Castillo: I would assume so. Of course. I mean we got to look at the bills before passing it on. But I don't... Mr. Bynum: Are you aware of bills that this council has passed over the objection of the county attorney's office...against the advice of the county attorney's office? Mr. Castillo: No. Council Chair Asing: Okay, Councilmember Kaneshiro. Mr. Kaneshiro: Thank you Chair. Mr. Castillo, wouldn't you agree with me that with Mr. Fujimoto's testimony today in answering the questions that we still have some problems with procedures for issuing and contesting citations? Mr. Castillo: Yes. Council Chair Asing: Thank you. Councilmember Kawahara. Ms. Kawahara: Two actual questions. One in extension of Mr. Kaneshiro's. I wasn't aware that ordinances actually set up the office's procedures. Do you think that the ordinance should set up an office's and department's procedures on how to enforce something? Their actual day-to-day procedures about identifying a bag? Mr. Castillo: I'm sorry. Okay, I'm trying to understand the question. So are you asking me whether or not the ordinance itself should have specified exactly what the agency or the department has to do? Ms. Kawahara: Yes. COUNCIL MEETING - 44 - September 23, 2009 Mr. Castillo: I don't... I can only answer this... that question by telling you it's not in here, but I know for a fact that the procedures have not been established, and that would be something that we would be... the county attorney's office would engage in with the particular department. But again, that is one of the issues that I know we talked about. Ms. Kawahara: So in your experience right now, you said you would engage in discussions with the department on how they would proceed with following an ordinance. Mr. Castillo: Yes. Ms. Kawahara: That is generally what happens first-the ordinance is passed and then you set up a procedure. Mr. Castillo: Yes. Ms. Kawahara: Okay. Mr. Castillo: However, the mechanics of the ordinance itself in the way that it interacts with the department, that is what I have to look at also. Ms. Kawahara: Okay. I still had another question. You said that you had received questions about the bill, and you also mentioned that there wex•e...x•ight here on the floor, that there were retailers upset with the bill. Mr. Castillo: No. I'm just... You know, you have this bill and like anything else, you have pros and cons. You have people for it or against it. That's all. Ms. Kawahara: Okay. I guess I would like to mention at this point, and maybe I could give you the level of comfort. That the Maui chamber of commerce on this, their issue yeah with the plastic bags, they said that they wanted to work... they wanted to help with the bill and pass it as long as there was a phased multi-pronged approach employed to help them achieve the goal of reduction. Mr. Castillo: I make no opinion on... Yeah, but I have no judgment on the wisdom of the bill. It's not my role as county attorney to judge what this legislative body does. To me, my role is to deal with the legal aspect. So you know whether or not the chamber of commerce in Maui is helping you assist and they are in favor... Ms. Kawahara: No, for their bill. Mr. Castillo: Yeah, but: to me that is just a side issue, not an issue foi our office. COUNCIL MEETING - 45 - September 23, 2009 Ms. Kawahara: Okay, so you don't take a precedence... a look at preceding things. Mr. Castillo: Just because Maui did something doesn't necessarily mean we're going to look at it the same way. Ms. Kawahara: Okay, thank you. Mr. Castillo: You're welcome. Council Chair Asing: Councilmember Furfaro. Mr. Furfaro: Yes, thank you. Al, you know I'm scheduled to leave the meeting today at 3 o'clock. Since I seconded the motion today to move to approve, obviously I came today to vote. But I do want to say that there is a timeline in this bill. I was surprised when the county engineer was not able to make reference to the fact that this county uses several companies that do chemical research for us. We have access to chemists. He's an engineer, he's not a chemist. There should have been some initiation to, you know, send that question out about the European standard and have some test done that would have provided your office with a much broader opportunity to opine on that European standard. That's number one. Number two, this is a bill that does not take place for a while, and also lets merchants deplete their inventory of about 18 months. To me there would have been plenty of time for the county engineering and the administration to develop administrative rules for the implementation...I mean and enforcement of this during that time. You know, we're talking about things here that, you know, so often we talk about values here in the community. You know we talk about kokua. We talk about malama the `aina. That's what this bill is about. This bill is to put a situation in place where people realize we need to change habits. I mean we're sitting here getting information that may be right or wrong about the consumption of water on case versus sugar. This is about taking care of our place. To me, the issue about enforcement, the bigger issue is, when this county finally wants to start to enforce, let's give those departments the personnel and the budgeting to go out and enforce. But it seems to me that, you know, the concerns that have been raised here can be resolved in this period of time, you know, have some testing done, get a chemist opinion, you know, create the administrative rules on what is possibly an insignificant portion that we could enforce. But the concept in this legislation is about taking care the place, you know, the values that we all try to walk the talk in, you know, caring for Kauai. So looks like this debate can go on for a while, and quite frankly, I was prepared to vote today, but I have a deadline with an attorney at four o'clock regarding some family matters. So I just wanted to say, I think there is time to address these pieces. And you know, when it comes to the merchants, I've been in the hotel business 37 years here. I have changed everything that we have used when we've needed to use it from, making sure lunches go out in cardboard, that forks are biodegradable, because we accept that responsibility as a community. C0I7NCIL MEETING - 46 - September 23, 2009 And I'm hearing you need some more time, but at the same time, I want to say, to get the facts...I'm sorry, to get the facts, let's go spend some money and get the facts, so we're not sitting here from April until September saying, well we don't quite understand and we're not sure. I'm not referencing the county attorney's office, but you clearly have some questions. Let's get the facts. (Mr. Furfaro was noted as excused from the meeting at 3:00 p.m.) Council Chair Asing: Thank you. With that, Councilmember Bynum. Mr. Bynum: I just want to clarify a couple things, Mr. Castillo. First; of all, regarding the biodegradable standard, the European standard, you know, this came about... Well, let me take it in three steps. First step, the Maui bill doesn't allow plastics of any kind. You know, I looked at what were alternatives, I wanted to give the people of Kauai time to make this behavioral change, I wanted to give the merchants as much consideration as possible, and wanted to include, unlike Maui, a bio-plastic. Ms. Lauren who's here from the retailers industry came and offered testimony that said that our definition of biodegradable wasn't clear to her about whether it would cover oxy-biodegradable bags. That prompted... You know, I listen when people testify, and so that prompted me to do research and look into this issue about what are standards for biodegradable bags. And what I came to discover is that there was a, you know, an international debate about standards about biodegradability, and that the chemical industry, particularly plastics industry, was promoting these oxy-biodegradable bags which are petroleum products. The purpose of this legislation was to reduce the use of petroleum. Those bags are controversial, and there are claim about how they biodegrade are not fully vetted, and the European standard is what people who want to avoid petroleum products have centered around. It's a standard. It has criteria. As Donald said, manufacturers who follow that standard get certified and they promote that in their literature that they meet this standard. And so I think Councilmember Kawahara's question is a good one that I trust that departments develop policies and procedures that...and that we don't go often into that level of detail in the legislation. My frustration earlier had to do with that there was a review of the bill, and that all of the other changes that were made to the bill were made in consultation with the county attorney's office. You know, the message was, and the staff hex•e knows that, as does the attorney we worked with, hey we want to make sure that you are comfortable with. In a conversation I had with that attorney, it's like I'm assuming now that you're comfortable with this bill. I want to own that the exception is that she didn't specifically review that definition change that was the subject of the last amendment. I'm more than happy to amend this bill to eliminate the plastic bag option of any sort, the way Maui did. You know, there are certainly people in the environmental community who would like that, you know, and I had to give a rationale that we were trying to ease a transition for our population and for Our retailers and wanted to give them that option as well. But the intent of this COUNCIL MEETING - 47 - September 23, 2009 bill is reuse...is to reduce any disposal product. And so my frustration was one that other than that, I feel like we have consulted on an ongoing basis with the county attorney's office. So to hear at this late date that there are other problems, okay, now that doesn't mean that I don't want to get it right, that I don't respect what your role in that is. But I also think your office needs to know, if you're coming with these concerns at this late date, there was a breakdown in communication, at least. Mr. Castillo: Well you know, two things, Councilman Bynum. The first is in terms of the county attorney's or my office's...how we... Regarding the wisdom of the bill, that is not an issue for us, you know, so... And personally I might feel a way about a bill, but that's not neither here nor there. But when you tell me at this late a date, well on September...last week Tuesday I get asked a question, and do I ignore the question? And I wouldn't be doing my job if I ignore the question. So if my response...I mean that's last Tuesday, and we have been working on it, and I found what I told you that I found. So if you wanted me... Anyway, I don't think, and I got three messages here on the day that we got the request to look at this bill again, so I don't know if that's...we took a long time to address this bill when we were asked to address it again, and this time I personally addressed it. I started in the very beginning, I was privy to the deputy that was assigned to looking over this bill, I spoke with that deputy, and basically went over what to look at, what to make sure we include in the bill, and that was about it. But as far as on the 15th, what I saw was exactly what I saw and what I addressed. So you know, I'm frustrated too because of the fact that you're telling me why so late in time, and I'm telling you wait a minute, we just got it last week Tuesday. Anyway... Mr. Bynum: Without belaboring this too far... Mr. Castillo: Yes. Mr. Bynum: When your office writes an opinion and assigns an attorney, that's who I'm going to work with, unless I'm told otherwise. Mr. Castillo: Yes. Mr. Bynum: And so I assumed that when that attorney says good to go, good to go, that's the seal of approval from your office. Mr. Castillo: Yeah, but you didn't send me that memo on the 15th asking me... Mr. Bynum: No, I didn't. Mr. Castillo: Well, it was another councilmember asking me, and I could not ignore the request. COUNCIL MEETING - 48 - September 23, 2009 Mr•. Bynum: And that's why I've tried to say, if it's about this one definition, then I understand, and we can address that today by removing that portion of the bill. If it's about other concerns, then something broke down in the communication, that's my opinion. Mr. Castillo: Okay. Council Chair Asing: Any other questions for the county attorney? If not, I'd like to call the meeting back to order. You know, I'd really like to recommend that we defer this until we get the opinion from the county attorney's office. Now, Councilmember Bynum, in your questioning of the county attorney about whether we, you know, clear all bills with the county attorney's office, I could answer that, and the answer is no, we don't clear all. Should we clear all? My answer will be yes, but we don't. But when there are important bills that we feel could have implications that if not addressed now will have to be addressed at a later point, and at that later point, what we will have is major problems. And we try to avoid that by clearing with the county attorney's office. So you know, the answer is no, we don't clear all bills with the county attorney's office. We clear what I would term as critical, important, that has long term ramifications that we need to look at and address. So that's really my reason for, in this case, just sending the memo, did you have a chance to review the completed bill as it stands today. So that's the reasoning. Go ahead, Councilmember Bynum. Mr. Bynum: Right, and I hope you appreciate, Mr. Chair, that I'm not suggesting that we don't get it right and do whatever legal review is required, and I appreciate your answer about that. Because as I've said it and excuse me if I'm being redundant, but every revision that was made to the bill was made in collaboration with the county attorney, other than that final definition, and I'll own that, because I didn't think there'd be a problem with an internationally recognized definition that is a certification matter that any retailer would get the certification, and I trust that the county engineer knows how to write policies and procedures to do that. So I am expressing frustration that...and I do believe that Councilmember Kawahara, myself, and the staff did consult with the county attorney throughout this process and should have had reasonable assurance that we had a bill that was okay. Council Chair Asing: Well, I'm not going to I guess get into that debate, but that really would be my suggestion, that we defer this until we get the information from the county attorney's office. I think it's important enough for us to... Do we listen to the county attorney's office or do we not listen to the county attorney's office. I've been here enough years to know that when the county attorney gives an opinion, it is more than likely an opinion that we should follow, because if we do not follow that and we move into the direction that the county attorney's opinion is not suggesting, then the possibility of us being out there by ourselves could be devastating, in my opinion. And you know, I've agreed with the County `dt,tOYYley'S office at times, and not agreed, but they're our legal advisor, so we COUNCIL MEETING - 49 - September 23, 2009 do listen to our legal advisors? I think we should. And waiting until they come up with their recommendations on possible questions that they have so we can address it the way we want to I think is a reasonable move. Councilmember Bynum? Mr. Bynum: Would you agree that the...whatever recommendations that they come up with in writing be shared with all councilmembers? Council Chair Asing: Definitely. Mr. Bynum: Thank you. Council Chair Asing: Yes, go ahead. Mr. Chang: Thank you Chair. I just wanted to make a couple comments before we plan to defer. And this question is addressed to Councilmember Kawahara if I can. You made reference to speaking with a manager of State affairs, and I think you were mentioning the American chemistry council? Ms. Kawahara: Yeah, that's Sheri, yeah. Mr. Chang: Did you... You said you got a call from her based out of Sacramento, did you get back with her or did you folks chat and did she say... Ms. Kawahara: I did. I did chat with her, and she brought up several of the issues that, you know, that they advocate. Mr. Chang: And did she say she wanted to try to meet you, like in person? Ms. Kawahara: I had told her... I told her that I probably wasn't going to be able to meet with her. Mr. Chang: Okay, because I'm just making reference to the memo, because I noticed that she had requested to speak to the authors, Councilmember Bynum and yourself. So do you have a problem deferring this? Ms. Kawahara: Well actually, because I discussed it with her and I think she went down her list of all the concerns that she had, I was able to speak with her for a period of time and I was satisfied with my discussion with her, and I believe that I got enough out of it to be educated to make a decision... so when I did talk to her. Mr. Chang: Thank you. And lastly, can I ask a question of the county engineer? COUNCIL MEETING - 50 - September 23, 2009 Council Chair Asing: Sure. Rules are suspended. Donald? There being no objections, the rules were suspended. Mr. Chang: Thank you Donald. My question was pretty simple. The county recently bought or purchased 25,000 cloth bags for the community. Have you figured out who gets it, how to distribute it? What's the... Mr. Fujimoto: Well, first I'd like to say that program is independent of this bill, and the intent of... Council Chair Asing: Councilmember, I'm going to allow that to go through, but it's really kind of straying off the line, but go ahead. Mr. Chang: Well, if it's straying... Council Chair Asing: Go ahead, finish up. Mr. Chang: Because this is all in regards to not having sufficient time to define biodegradable. So I just thought if he had... Council Chair Asing: Go ahead, Donald. Mr. Fujimoto: Anyway, that program is separate and independent of the proposed bill, but it... again, the bill, you know, both of the programs try to address the same issue, which is what Councilwoman Kawahara brought up. I guess the highest priority of the three Rs, which is recognized solid waste management goals, is to reduce, or source reduction. And with that said, that program is really targeted to reduce waste... generatedtyaste. Mr. Chang: Okay, thank you. Council Chair Asing: Thank you. I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Council Chair Asing: Further discussion? Councilmember Bynum. Mr. Bynum: Thank you Mr. Chair. I think I've made my frustration clear. It's a process frustration in that I think due diligence was done appropriately on this bill, and you know, that's not to say, as I've said, that we...now given what was said here today, need to look at those concerns. This is a bill that's important for Kauai and for the environment and for the United States and for our planet. You know, as Councilmember Kawahara said, I've read the COUNCIL MEETING - 51 - September 23, 2009 testimony from the chemical industry, I received the emails requesting meetings, Councilmember Kawahara had that discussion, I chose not to, and part of that was because this is the same group that sues municipalities to do intimidation on these kind of matters. This is a world... This is a struggle that is happening around the country, and you know, the arguments that are made about why you would want to continue to use plastic bags and why you would want to encourage recycling of those bags, why the alternatives such as paper and bio plastics are plastics that are made from biological matter as oppos...I guess it's all biological, but non-petrochemical. Those arguments are... Well, first of all, the goal of this bill is to reduce any disposal use. The standard that my family has adopted, and it wasn't that easy, but now that we've done it it's really easy and it feels good is to use reusable bags. And it's great, you take your bags and you put them on the conveyer belt before you put your food at the retail store; they know exactly what to do with it, and they give you three cents at Safeway for every one that you don't use. And so but it's a behavioral change. So I trust that we will get past these issues and that the arguments against the bill are weak at best. In terms of those general arguments that you hear from the chemical industry, those arguments were repeated in the Chamber letter almost word for word, and so this is kind of like this industry standard argument about why we shouldn't protect the environment, and I wasn't going to do this, but I'm going to. This is all I need right here, you know. Somebody, one of the hundreds of testimonies received, sent this picture of a green sea turtle swimming with a plastic bag. And this is a bill whose time has come. I trust that we will get through whatever concerns the county attorney has and pass it in due time. Thank you very much. Council Chair Asing: With that, Councilmember Kawahara, and then Councilmember Kaneshiro. Ms. Kawahara: I just wanted to also... I wanted to state my frustration on a different level. The strategies and tactics that I discussed earlier are exactly what we're going through here. We are a small place in the middle of the Pacific, so I do want people to be aware that the plastics industry will try to win local battle by local battle, by small...wherever it's come up in local places, in small places, that's where they would try to get it defeated or to weaken it. That's all I want to say that their strategies are clear-it's to make it seem that there are no alternatives or the alternatives are bad. We are not saying that the alternatives are great. We are just saying we want to reduce plastic bag usage, one use. I don't want to have a weakened plastic bag bill, which is another one of their strategies. And last but not least, there's always the specter of being sued, which Councilmember Bynum has spoken about. That is what they do and that is how it works to help stop the legislation of something like this. I would like to say that I hope Hawaii, and Kauai specifically, would be able to make a point that we are different and we a specific case where we are isolated and we have an even higher responsibility to be able to reduce whatever we have, use less, consume less, because we're stuck in the middle of the island...I mean I the middle of the sea. So my frustration is, I'm sure you're hearing it, is that I want people to know that COUNCIL MEETING - 52 - September 23, 2009 there are strategies that are occurring across the country and it does not bypass little Kauai. Thank you. Council Chair Asing: Councilmember Kaneshiro. Mr. Kaneshiro: Thank you Mr. Chair. I could support a deferral, and based upon the questions and answers that were given by our county attorney and also by our county engineer who will be the enforcement officer. You know, to hear him say that he's not real certain yet as how or what is the procedures for issuing and even contesting citations, you know, I'm not sure that I can vote on any bill with that kind of, you know, response back from the enforcement agency. We've had the no smoking ban in place, the police force enforce that, we had many other, you know, liquor commissioners that have to enforce this. But to hear the enforcement agency, which is the county engineer, citing that, you know, until we have some discussions on that and if we need to go in executive session to do that, I think at that point where I'm satisfied that we can issue and contest citations, I'Il be ready to vote on a bill that I'm not disagreeing. I think we got a good bill out here, but I have a problem about, you know our enforcement person not even having the ability to issue and contest citations. I think it's a good reason for us to defer this. Like I said, if we need to go into executive session to discuss this in the next meetings, then so be it, because again, this is all part of strategy. But as of today's meeting, I haven't heard that there was any way that it could really start the procedure or to contest any citations at this point. So `till then, you know, I would call for a deferral. Council Chair Asing: Thank you. With that, let me just say this. I am in 100 percent, 100 percent support of the idea, the concept, and the purpose... excuse me, the purpose of the bill. I am, however, concerned that the bill should be structured right so you can do it, enforce it properly, number one, and number two, that if we are in fact contested by anyone, we will prevail in court. Thex•e has been instances around the country that bills have been passed, challenged, and they lost because it was not structured properly. So with that concern, I'd like to, you know, try to get it so that we can at least get the county attorney's office to give us the concerns, and we'll work on the concerns, and pass the bill. So with that... Mr. Kaneshiro moved to defer bill No. 2321, Draft 1, seconded by Mr. Chang, and unanimously carried. Council Chair Asing: Motion carried. Thank you. We have the continuance of the executive session. There being no objections, the Chair recessed the meeting at 3:22 p.m. The meeting was called back to ordex• at 4:55 p.m., and proceeded as follows: COUNCIL MEETING - 53 - September 23, 2009 ADJOURNMENT: There being na further business, the meeting was adjourned at 4:55 p.m. Respectfully submitted, PETER A. NAKAMURA County Clerk September 23, 2009 Flaar Amendment Introduced By: Jay Furfara (By Request) Proposed Draft Bill Na. 2328; A BILL FC}R AN C.}RDINANCE AMENDING ORDINANCE NO. PM-227-91, RELATING TO STATE LAND USE DISTRICT BOUNDARY IN KILAUEA, KAUAI (COUNTY OF KAUAI, APPLICANT) Amend Proposed Draft Bill Na. 2328 in its entirety as follows; "SECTION 1. Findings and Purpose, The purpose of this ordinance is to comply with condition number four {4} of Ordinance Number PM- 229-91. canditian number faun {4) of said ardinance states the following: Applicant shall complete "substantial construction" of the project within two {2) years fram the date of Class IV Zaning Permit approval or subdivision appraval. "Substantial construction" shall mean completion of site preparation and building foundations. The Planning Department shall determine whether substantial construction has been campleted. If substantial canstructian is not campleted within two {2} years fram Class IV Zaning Permit appraval or subdivisian approval, or if the praperty is sold within two {2) years fram the date or adoption of this ardinance, the County shall initiate proceedings to redesignate the praperty to its prior land use designatians. On April 23, 1998, the Planning commission approved Class IV Zaning Permit Z-IV-98-29 to allow the development of a limited industrial/commercial park on the respective praperty; however, since that time, substantial canstructian has not occurred. In accordance with canditian number faun {4) of Ordinance Number PM-229-91, this ordinance re-designates that certain area in K`xlauea, Kauai, identified as Tax Map Key ~-2-017:028 that Ordinance Number PM-229-91 affected, fram the ["State Land Use Urban District" back to the "State Land Use Agriculture District."] State "Urban" Land Use District,~LT} back to the State "A~riculturai" Land Use District~A~. Separate ordinances are also being proposed to re-designate the subject area back to its other previous land use designatians; fram the "Limited Industrial {I-L} Zoning District" back to the "Agriculture Zaning District"; and fram the General Plan "Residential Community" designation back to the General Plan "Agriculture" and ``Open" designations. ATTACHMENT 1. V:CS OIiFICE FILESlSLtJD I{3I,AtTEr11J~F`P:Iki [SECTION 2. The State Land Use District designation for that certain area in K-ilauea, Kauai, identified as Tax Map Key 5-2-017:028, is hereby amended from the "State Land Use Urban District" back to the "State Land Use Agriculture District," as shown on the map attached hereto and incorporated herein as Exhibit A-2010-1.] SECTION 2, The designation of the State Land Use District for that certain area in Kilauea, Kauai, identified as TMK: 5-2-1'7: Por, 28 (formerly TMK: 5-2-17: Por. 26), as shown on the map attached hereto and incorporated herein as Exhibit A-2410-1, is hereby amended from the State "Urban" Land Use Distric~U) back to the State "Agricultural" Land Use District (A~. SECTION 3. The Planning Department is directed to note this amendment on the official thousand- {1000} scale maps on file with the Department. All applicable provisions of Section 205 of the Hawaii Revised Statutes shall apply to the area amended herein. SECTION 4. Pursuant to Section 11-4.5 of the Kauai County Code 1087 and Section 205-3.1 of the Hawai`l Revised Statutes, the County Planning Director shall transmit this ordinance to the [Land Use Commission and the Department of Business and Economic Development] State Land Use Commission the Department of Business= Economic Development and Tourism, and the State Office of Planning within sixty (60) days from the effective date of this ordinance. SECTION 5. Severability, The invalidit~of any word, section, clause, paragraph, sentence, part or portion of this ordinance shall not affect the validit~f any other part or portion of this ordinance that can be given effect without such invalid part or parts. SECTION [5.] 6. This ordinance shall take effect upon its approval," (Material to be deleted is bracketed. New material is underscored.} vacs o~FZC~ Ftz~Sast~t~D xzz.~~~~,~r:~z ATTACHMENT 1 ' a~ ' ~ ~ ~ ~ ~ ~ ~ - y` ~ - f!• ~~I r? f itries.•i .ei O i sr~~~/r i T r~rrr~rr i~rfik r = ~ .~t ~ ~ t `fix rra~~k~ sl+~ r lf~ •i~*t~ ~ E~*•' r,,rt, r,E,,', 1 , a • r r r rj r S ~j ~ rll r• . ' _ Q ~ 4y ` • • \4 . « + i • 1 • 'c :'F • • t Z:. ~ • • i i ~K . - , ~ ~ • - • ,- ..*-- ; - ~ . ` ' Prajec~ Area - - r t ~ ` - r - ~ To Be Amended ' ~ 'f • ~ " - ~~i • • LOCATION SHOWING r. PROPOSED STATE LAND USE DISTRICT BOUNDARY AMENDMENT - FROM 5' - THE URBAN DISTRtCTTO THE AGRICULTURE DISTRICT r: PORTION C?F TA}C MAP KEY 5-2-n17.Ci28 3} KiLAUEAa KAUA'ir NAWAI'I ATTACHMENT 1 September 23, 2009 Floor Amendment Introduced By; Jay Furfaro (By Request) Proposed Draft Bill No. 2329; A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. PM-228-91, RELATING TO GENERAL PLAN DESIGNATION IN KILAUEA, KAUAI {COUNTY OF KAUAI, APPLICANT) Amend Proposed Draft Bill No. 2329 in its entirety as follows: "SECTION 1. Findings and Purpose. The purpose of this ordinance is to comply with condition number four {4} of Ordinance Number PM-229-91. Condition number four {4} of said ordinance states the following: Applicant shall complete "substantial construction" of the project within two {2} years from the date of Class IV Zoning Permit approval or subdivision approval. "Substantial construction" shall mean completion of site preparation and building foundations. The Planning Department shall determine whether substantial construction has been completed. If substantial construction is not completed within two {2} years from Class IV Zoning Permit approval or subdivision approval, or if the property is sold within two {2} years from the date or adoption of this ordinance, the County shall initiate proceedings to redesignate the property to its prior land use designations. On April 23, 1998, the Planning Commission approved Class IV Zoning Permit Z-IV-98-29 to allow the development of a limited industriallcommercial park on the respective property; however, since that time, substantial construction has not occurred. In accordance with condition number four {4} of Ordinance Number PM-229-91, this ordinance rezones that certain area in Kilauea, Kauai, identified as Tax Map Key 5-2-017:028 that Ordinance Number PM-229-91 affected, from the General Plan "Residential Community" designation back to the General Plan "Agriculture" and "Open" designations. Separate ordinances are also being proposed to re-designate the subject area back to its other previous land use designations: from the "Limited Industrial {I-L} Zoning District" back to the "Agriculture Zoning District"; from the ["State Land Use Urban District" back to the "State Land Use Agriculture District".] State "Urban" Land Use District {IJ} back to the State "A~ricultural" Land Use District (A). ATTACHMEI~IT 2 V:CS C}FIi ICE FILEStGP KILAUEAtJFT:Iki [SECTIC}N 2. The General Plan designation for that certain area in Kilauea, Kauai, identified as Tax Map Key 5-2-017:028, is hereby amended from the General Flan "Residential Community" designation back to the General Plan "Agriculture" and "Open" designations, as shown on the map attached hereto and incorporated herein as Exhibit GPA-2010-1.] SECTIQN 2. The General Plan designation for that certain area in Kilauea, Kauai ,identified as TMK: ~-2-17: Por. 28 (formerly TMK: 5-2-17: Par, 26, as shown on the map attached hereto and incorporated herein as Exhibit GP-2010-1, is hereby amended from the General Plan "Residential Community" designation back to the General P]an "Agriculture" and "C}pen" dentitions. SECTIt)N 3. The Planning Department is directed to note this amendment on the official General Plan map an file with the Department, All applicable provisions of the General Plan shall apply to the area re-designated herein. SECTIC}N 4, Severtibility. The invalidity of any word, section, clause, paragraph, sentence, part or portion of this ordinance shall not affect the validity of any other part or portion of this ordinance that can be given effect without such invalid part or parts. SECTI(?N [4.] 5. This ordinance shall take effect upon its approval." (Material to be deleted is bracketed. New material is underscored.} vacs oF~ICE ~IL~s~o~ x~~V~rar~r:~k~ ATTACHMENT 2 -.w.757Nr4xar~tvw,~€~"rr.:rsr, +ac•.~+,~..e~^ -'- - ~ acwavavra.xri~Y:rn::er- ~ ...v~ffi+.,~~.~~m.~a.:.,.._r.... _ ~'.p L t' ~ ` ~T 3 ~ m ~ ~ ~ ,~-~ ~ ~ y n c a° t 3 a ~- I"1 v 3 C w~ v CA 'X ~ S ~ to W ^-"'~ 4,~~ f ~ ;.v7y + '1 j;~'•,' ~ ~ ~ x f( fry:' g i ~ v ~ ~ n ; r;,»; o' n c x X 0 5 ~ ° -' ti.L a ~ a ~ a p o n ~ ° ' f'' n o = N A a a ~ ~ V 9 'p o a ~ ~ a ~ 'si A - -~t,~ ~rri n ~ o . _ ~ _fr"..Yj ~ ;t ~ , ,ro r, ~ ~ y i' ' - 4~~ ~s .,'~'1~ "t3 - ~ ~ ~'~- ~r ~ ~ rn _ C mow" ~ r~.f t, y r.. ~ w.. `J ~ '.'rte°~`.:,ii~,,~x ~:~E3' -+ ~.~J' ~ r: _ p ~ +i, ~ ~ a t'1 0 V~ } rn m ~ ~ ~ ~ ~ ~ ~1 } C r ~ -~ ~ ~~{~~1 't rva lY ~ ~ ~ _ MENT 2 ~ 1. ~r r-, ~~1~ ~,~~l~~z~, t~ ~ European Bioplastics ~ s~~ 2~ ~ ~ :~s Position Paper tin ~o-galled "C)xo-. , ; biodegradable" Plastics Launch~~ ~ August 12, 2009 Berlin -European Bioplastics recently published a position paper distancing itself from the sa-called "oxo-biodegradable" industry. The paper sheds same light on the technology behind the so-called "oxo-biodegradable" industry, its failure to live up to international established and acknowledged standards that effectively substantiate claims on biodegradation and compostability, and the implications resulting from the different approaches. "Bioplastics are still a relatively young industry", says Andy Sweetman, Chairman of the Board of European Bioplastics. "Inherent implications made an the environmental suitability of our products are subject to close scrutiny by all kinds of stakeholders. It is, therefore, vital that claims on biodegradability or compostability are backed by internationally accepted standards", he adds. "We just cannot allow that the public, who are generally very sensitive to ecological issues, be further confused by claims on biodegradability and compostabiiity resulting from conflicting approaches. If certain products that claim to be biodegradable ar campostable are proven not to fulfil acknowledged standards, this is liable to impact negatively on our own members' products, even though they do fully comply", Sweetman further states. It should, under all circumstances, be avoided that products carrying the compostability mark of European Bioplastics, the seedling, be associated in any way with so-called "oxo-biodegradable" products and the like. Products carrying the seedling have undergone rigorous independent testing beforehand, Only if proven to comply with the strict standards on biodegradability or compostability, such as iSC3 17088, EN 13432 or other similar standards, can the tested material or product be awarded the seedling. "This is also why we so vigorously fought against the attempt of the'oxo- biodegradable' industry to water-down the criteria of the EN 13432, requesting longer timeframes far materials to decompose. It would not have been in the public or the composting industry's interest to have compromised the strict criteria of EN 13432 which ensures the materials are fit fior purpese", the ATTACHMENT 3 chairman adds. "Fortunately, our position is fully shared by the experts of the plastic and packaging sectors, as was evident during the last meeting of the relevant Working Group of The European Committee for Standardization (CEN) on July 9, 2009, where the requests for revision of the standard were rejected." Publications European Bioplastics F~?Q paper on bioplastics This paper covers all relevant areas from definitions to market development, casts, environmental aspects, food competition and politics. It is a living document that will be adapted from time to time in order to keep it up to date. Download of the FAQ {pdf, 4~,6 mB) last updated January 23rd, 2fl08 European Bioplastics Leaflet Short introductory flyer about European Bioplastics. Download of the Leaflet ~,pdf, 275 kB~ Position papers A'I"TACHMEI~T 3 • JAI 22, 209 POitic~n ~a~r: Qx0-biod~~r~dable Plastics ~pdfi, 4~~ kB} • Dec a3, 2a08 Position paper: Life Cycle Assessment of Bioplastics {pdf, 1.5 mB} • May 15, 2oo9 Position paler: "Degradable" PE Shop~g Bads {pdf, 224 kB} • Apr 22, 2aa5: Recommendations of the Implementation of Compostable Plastics Packaginc~(detailed concept.} {pdf, 227 kB} • Nov 17, 2aa4: Voluntary Agreement on biodegradable polymer products -self commitment (pdf, 2,7 MB} Supported by ERRMA, European Bioplastics and Plastics Europe and signed by four companies. The Amendment of the German Packaging Ordinance in 2t}tI5 The German packaging ordinance has entered in force since 28`~ of May 2aa5. Full text of the ordinance (,pdf, 2a7 kB~ "Madificatians only" version fde] (pdf, 72 kB,~. German Packaging Directive - Impiementation Recommendation (detailed concept) (pdf, 227 kB} Press release: Recommendations of the Implementation of Compostable Plastics Packaging (pdf, 47 kB} ATTACHMENT 3