Regulating The AgroChemical Industry – A Five Year Journey

The passage yesterday of SB3095CD1 marks an auspicious moment in the legislative history surrounding pesticide regulation in Hawaii. Now on its way to the desk of Governor David Ige, SB3095CD1 contains a “first in the nation” ban on the use of chlorpyrifos, phased in gradually over 4 years.  Chlorpyrifos is a Restricted Use Pesticide (RUP), a neurotoxin that was originally developed to be used as a nerve gas in World War II and is highly dangerous to children and pregnant women. Chlorpyrifos is used through-out Hawaii in industrial agriculture.  In addition the measure contains a statewide RUP reporting mandate and other important protections.

These two components, a ban on chlorpyrifos and robust reporting of RUP usage alone represent a dramatic improvement to existing Hawai’i laws.

A bit of history and context is in order.  As most who follow this issue already know, after several years of mounting health concerns, school children getting sick, sea urchins dying and community lawsuits being filed, on June 26, 2013 Bill 2491 was placed on the Kauai County Council’s agenda.  Bill 2491 required the disclosure of RUP’s, buffer zones around sensitive areas, and a health and environmental impact study. In the interest of full disclosure, Bill 2491 was co-introduced by myself and Councilmember Timothy Bynum (now deceased).

Without exaggeration, Bill 2491 generated more testimony and more public participation in the process than any measure ever proposed in the history of Kauai County. It was passed into law with a 6 – 1 vote by the Council, then vetoed by Mayor Bernard Carvalho and then overrode by the Council, becoming Kauai County Ordinance 960 on November 16th, 2013.

Rather than comply with the new County ordinance requiring full disclosure of their RUP use and modest buffer zones around schools and other sensitive areas, the large chemical companies based on Kauai at the time (Syngenta, DOW Chemical, DuPont and BASF) quickly filed a law suit against Kauai County.

On August 25, 2014 the courts struck down Kauai County Ordinance 960 with U.S. District Court Judge Barry M. Kurren ruling that it unlawfully preempts state law governing pesticide use.

“This decision in no way diminishes the health and environmental concerns of the people of Kauai,” Kurren wrote. “The Court’s ruling simply recognizes that the State of Hawaii has established a comprehensive framework for addressing the application of restricted use pesticides and the planting of GMO crops, which presently precludes local regulation by the County.” – Civil Beat.

Following passage of the Kauai Bill 2491 on November 16th, 2013, – Hawaii County (via County Council action) on December 5, 2013 and Maui County (via citizen ballot initiative) on November 4th, 2014 both also passed County ordinances attempting to regulate the large agrochemical/GMO companies.  The industry quickly filed suit against both Hawaii County and Maui County as well, with the Courts eventually ruling that the Counties did not have jurisdiction in this area.

Thus began the past 4 years of effort attempting to pass state legislation regulating the use of Restricted Use Pesticides (RUP’s), culminating yesterday in the vote to approve SB3095CD1.

For those of us who have been working hard on this issue over the past 5 years or more, yesterday’s vote marks a significant milestone in our efforts.

SB3095CD1 contains 6 main components:

1A ban on the use of the RUP and neurotoxin chlorpyrifos. This ban takes effect immediately however temporary permits will be granted allowing continued use for up to 4 years, at which time no new permits will be issued and no chlorpyrifos will be allowed in the State of Hawaii. The practical expected impact of the ban’s 4 year implementation will be a gradual decline in use, culminating in a complete ban after 4 years.

2The mandatory statewide reporting of annual RUP use to the State Department of Agriculture (SDOA) that includes: RUP product used, amount of RUP used, and the date and location of the usage.

3Annual Public Summary Reports of statewide RUP usage by County reporting the types, amounts and area of the applications.

4A prohibition against using RUP’s within 100 feet of school grounds during school hours (excluding termite fumigation).

5The SDOA will conduct a pesticide drift monitoring study to evaluate pesticide drift at three schools within the State.

6Approximately $700,000 in general funds are being added to the SDOA annual budget, plus two additional positions. These are intended to support the increased pesticide oversight and the drift monitoring studies.

While many of us who have been working hard on this issue for the past years would have preferred various aspects to be stronger, it is without question that the sum total of the above components represent a strong and meaningful step forward in securing increased health and environmental protections.

The ban on chlorpyrifos alone will have tangible health implications and the statewide reporting provisions have the potential to generate long term, consistent data necessary for those seeking to research the issue to determine specific impacts. The summary data by County will allow residents the information needed to make a more informed decision as to where they choose to live, work, play or go to school. Clearly the 100 feet buffer zone around schools is inadequate and must be expanded in the future but it is more than we have in place now, which is zero. The drift monitoring study if done correctly has the potential to yield much needed data but for its results to be credible will require significant forethought and careful planning. Of course the additional financial and personnel resources provided to the SDOA will be hugely helpful in their efforts to properly manage the use of RUP’s while protecting health and the environment.

The multi year effort needed to accomplish the task of bringing SB3095CD1 this far has been daunting and there are many, many people that deserve to be thanked and recognized for their work.

Most of all we must thank the people in the community who stepped up to tell their stories year after year, share their concerns and insist that lawmakers do what they were elected to do: keep bad things from happening to the community. Without their hard work and persistence, we would not have reached this milestone in protecting the health of our families and the fragile environment in which we live.

Also, I would be remiss if I did not recognize and thank Representative Dee Morikawa, as this would not have happened without her personal effort and diligent work that resulted in bringing the various stakeholders and legislators together.

Gary Hooser     http://www.garyhooser.com

About garyhooser

This blog represents my thoughts as an individual person. I presently serve now as a volunteer President of the Hawaii Alliance for Progressive Action (H.A.P.A.) www.hapahi.org In a past life I was an elected member of the Kauai County Council, a Hawaii State Senator and Majority Leader and the Director of Environmental Quality Control for the State of Hawaii - in an even earlier incarnation I was an entrepreneur and small business owner. Yes, I am one of the luckiest guys on the planet. “Come to the edge.” “We can’t. We’re afraid.” “Come to the edge.” “We can’t. We will fall!” “Come to the edge.” And they came. And he pushed them. And they flew. - Christopher Logue (b.1926)
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