HomeMy WebLinkAboutCOM 0271.703 2012-2014 Phone No. Hilo: (808)961-8027
Margaret Wille o+t�`• "v,; Phone No. Waimea: (808) 887-2043
Council Member =tP••-:E 1��lA ( )
District 9-North and South Kohala "$�� Fax No.: (808)887-2072
�� ,• � E-Mail: mwille @co.hawaii.hi.us
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HAWAII COUNTY COUNCIL
County of Hawai`i
Hawai`i County Building Holomua Center West Hawaii i Civic Center Bldg.A
25 Aupuni Street 64-1067 Mamalahoa Highway, Suite C-5 74-5044 Ane Keohokalole Hwy.
Hilo, Hawai 4 96720 Waimea, Hawai`i 96743 Kailua-Kona, Hawai`i,96740
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TO: J Yoshimoto, Chair ,c�
and Members of the Hawai`i County Council r— =�
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FROM: (Margaret Wille, Council Member
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Date: July 19, 2013 -�
Subject: Proposed Amendments to Bill No. 79; Relating to Genetically Modified
Organisms
Please find attached proposed amendments to Bill No. 79. The proposed amendments are
illustrated below by Ramseyer format; material to be deleted is bracketed and stricken, material
to be added is underscored. A draft copy of Bill No. 79, Draft 2, is attached with the proposed
amendments incorporated.
1. Bill No. 79 is amended by deleting Section 1 in its entirety:
"[SECTION 1. Findings and purpose. The Hawai`i County Council, desiring to protect
our agricultural heritage, our natural environment, our public health, and our inalienable•, - - .. , - - - • •• - , •
(1) The United States government has failed to establish adequate protocols and safeguards for
the research, testing, and monitoring of genetically modified transgenic crops, fish, trees
animals, and other organisms. None of the three federal agencies charged with protecting
our agriculture, ecosystems, and public health the United States Department of
Agriculture, the Environmental Protection Agency, and the Food and Drug Administration
harm will occur. None of these agencies have required adequate public research or testing,
peer review of industry claims of safety, or multi generational studies of the impacts on
organisms;
Comm.N .2 Ili ?o3
Ref.To:, P Ps
Reef.Date JUL 3 n 21113
Serving the Interests of the People of Our Island
Hawai`i County Is An Equal Opportunity Provider And Employer
(2) The State of Hawai`i has no regulatory structure in place to monitor where or which
transgenic crops are grown, or what their short or long term impacts on public,
environmental or economic health might be;
(3) While there are times when it is preferable that agricultural and environmental policy be
Council, with this ordinance, is implementing its responsibility of protecting the present
and long term health and welfare of our people, farms, environment, and economy. A
decision to release transgenie-erganisms into our farms, ecosystems, and economy must not
be made by just a few private biotechnology corporations, but instead must be a public
public debate within the impacted communities;
('I) The United Nations Biosafety Protocol, with 85 signatory nations, became international
ee - - --
transboundary movement of transgenic organisms. At the core of this Protocol is the
"Precautionary Principle," which requires that when a new technology poses threats of
damage to human or environmental health, the burden of proof is on the promoter of the
governments to prove that the technology is unsafe. The Council chooses, by way of this
ordinance, to implement the Precautionary Principle regarding the introduction of
transgenic technologies into our farms and environment;
(5) The Council believes that unless a particular agricultural product is shown to be in
imminent danger of extinction without gene interference, that our natural produce and
environment should be supported and conserved;
(6) The Council believes that whereas the government is generally responsive to acute
problems, we must be mindful as leaders in our community to also be on guard against the
cumulative negative impact of the overall increase in toxins on ourselves, our children, and
and our environment;
transgenic produce is consistent with the Hawai`i County General Plan, which provides as
one of its economic goals (Economic policies 2.2(h)): "Promote and develop the island of
with social and physical amenities. Development should be reviewed on the basis of total
impact on the residents of the County, not only in terms of immediate short run economic
benefits.";
(8) The Council seeks to prevent national and international market losses for products from
Hawai`i County's farms and fisheries,-which would likely result from genetic
contamination by transgenic organisms of our fresh produce, fruit crops, wild caught fish,
and our value added ag1icultural products such as coffee, kale,juices and processed foods;
(9) The Council seeks to protect the right to farm, se that those farmers who choose to farm
without transgenic crop varieties can do so without4aving their crops and seed stocks
trucks or farm machinery from neighboring farms with transgenic varieties. If transgenic
2
varieties of crops are introduced into the County, those farmers who choose not to use
transgenic varieties will in time, very likely suffer genetic contamination of their crops and
seed stocks, and suffer loss of their markets for non transgenic products. For the many
certified organic producers in the County, such contamination may result in a loss of
organic certification, and loss of premium sales for organic products. Given the high risk of
contamination by transgenic varieties on this island, time is of the essence in passage of
this general prohibition aimed at preventing agricultural and environmental contamination
from genetically modified (transgenic) organisms;
(10) The Council seeks to protect public and private property owners from expensive
water, trucks or farm machinery;
(11) The Council seeks to protect public and private property owners from the liability associated
with their land or animals becoming contaminated with transgenic organisms, which may
then become vectors to contaminate neighboring land or livestock through cross pollination
or seed dispersal (in plants or trees)or interbreeding (in animals, insects or fish);
(12) The Council seeks to protect the ocean fisheries and ecosystems of the Pacific Ocean from
contamination by transgenic varieties being developed for private "fish farms." Because
past and current "fish farms" in the United States of America have often accidentally and
illegally released large amounts of farmed fish into our public rivers and oceans, it is a
reasonable assumption that new transgenic varieties in "fish farms" will inevitably escape
into our public rivers and ocean;
(13) The Council seeks to protect the public health from any negative impacts from exposure to
inhaled or eaten, or by increased exposure to increasingly toxic herbicides and pesticides
used to kill "super weeds" and "super bugs" those farm pest species which quickly evolve
and develop herbicide tolerance or pesticide resistance due to continuous exposure to
(11) The Council seeks to protect Hawai`i County's extraordinary diversity of native
possibility of irreversible genetic contamination by species related transgenic organisms.
Such"back crossing" of transgenic DNA from a transgenic crop to a native relative of the
The authority to impose long term health and environmental sustainability standards is
granted to counties by:
(1) The Hawai`i Revised Statutes, Section 16 1.5(13), which states: "Each county shall have
• .. . - . -• . - - • . . . - - . • -, . . . . . - .
not inconsistent with, or tending to defeat, the intent of any state statute where the statute
does not disclose an express or implied intent that the-statute shall be exclusive or uniform
throughout the State.";
(2) The Hawai`i State Constitute, Article XI, Section 9 "Environmental Rights," which
states: "Each person has the right to a clean and healthful envirenment, as defined by laws
3
any party, public or private, through appropriate legal proceedings, subject to r asonable
limitations and regulation as provided by law.";
(3) The Hawai`i State Constitution, Article XI, Section 1 "Conservation and Development of
Resources," which states: "For the benefit of present and future generations, the State and
its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural
resources, including land, water, air, minerals and energy sources, and shall promote the
development and utilization of these resources in a manner consistent with their
resources are held in trust by the State for the benefit of the people.";
(') The Charter of the County of Hawai`i, Article XIII, Section 13 29 "Conservation of
Natural and Cultural Resources" underscores our public trust obligation to conserve and
protect our natural environment on this island, and reads: "For the benefit of present and
natural and cultural resources, including but not limited to land, water, air, minerals, energy
sources, wahi pana, surf spots, historic sites, - -• . • , • -
conservation and in furtherance of the self sufficiency of the county. All public natural and
cultural resources are held in trust by the county for the benefit of the people.";
(5) Consistent with our constitutional and Hawai`i County Charter public trust obligations, the
precautionary principle is the guiding principle with regard to protection of our natural
. . "' cautionary Principle" mandates that in the case of uncertainty, the
government must favor caution and conservation in the event of uncertainty of the impact
(6) The United States Constitution, and the 9th Amendment to the United States Constitution,
which recognize and secure the fundamental and inalienable right of people to govern
themselves; and
(7) The 14th Amendment to the United States Constitution, which states in part: "No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States.]"
2. Bill No. 79 is amended by amending Section 2 to read as follows:
"SECTION[2.] 1. Chapter 14 of the Hawai`i County Code 1983 (2005 Edition, as
amended) is amended by adding a new article to be appropriately designated and to read as
follows:
Article_. Genetically Modified (Transgenic) Organisms Prohibited.
Section 14-_. Findings and purpose.
The council, desiring to protect our agricultural heritage, our natural environment,
our public health, and our inalienable constitutional rights, finds it necessary to restrict
the further introduction and use of transgenic, genetically modified crops, plants, seed,
trees, fish, livestock, and other genetic organisms in Hawai`i County. The council feels
compelled to take such action for the following reasons:
4
(1) Conservation of public trust resources. Utilization of public trust resources —
including land and water- is governed by the public trust doctrine. Pursuant to the
public trust doctrine embodied in the Hawai`i State Constitution, Article XI, Section
1 "Conservation and Development of Resources," and in the Charter of the County
of Hawai`i, Article XIII, Section 13-29 "Conservation of Natural and Cultural
Resources," natural resources, including our land and water, are held in trust for the
benefit of both current and future generations. The council acknowledges that
inherent in the public trust doctrine is the precautionary principle. The
precautionary principle mandates caution and conservation when information is
uncertain or unknown, especially when there is a potential risk to long-term human
and environmental health;
(2) The Intermediate Court of Appeals in Kaua`i Springs Inc. vs. Planning Commission
of the County of Kaua`i, dated April 20, 2013, as well as the Circuit Court of the
Third Circuit in Missler v. Board of Appeals of the County of Hawai`i, dated April
15, 2013, both recently underscored the importance of the public trust doctrine and
its corollary precautionary principle. In Kaua`i Springs the Intermediate Court of
Appeals reaffirmed that the county government in its trustee capacity is subject to
the precautionary principle and therefore must exercise a higher level of scrutiny in
establishing reasonable measures and making appropriate assessments in order to
avoid harmful impacts to our public trust resources. In both the Missler and the
Kaua`i Springs case, the Court made clear that the public trust doctrine applies
where activities aimed at economic commercial gain regardless of whether the
property is public or private;
(3) The United Nations Biosafety Protocol, with 85 signatory nations, became
international law on September 11, 2003. This international protocol, though not
signed by the United States, regulates the transboundary movement of transgenic
organisms. This international protocol implements the "Precautionary Principle." In
this context the Precautionary Principle requires that if a new technology poses
threats of damage to human or environmental health, the burden of proof is on the
promoter of the technology to prove scientifically that the technology is safe, not on
the public or governments to prove that the technology is unsafe;
(4) The council therefore recognizes the right of the people and their government to
guard against the intrusion of potential contaminates without having to first wait for
definitive science. As the United States Supreme Court made clear in Maine vs.
Taylor (1986) "the constitutional principles underlying the commerce clause cannot
be read as requiring the State . . . to sit idly by and wait until potentially irreversible
environmental damage has occurred or until the scientific community agrees on
what disease organisms are or are not dangerous before it acts to avoid such
consequences";
(5) The council believes the federal government has not required safeguards for the
research, testing, use, and monitoring of genetically modified transgenic crops, fish,
trees animals, and other organisms, and is concerned that federal agencies have
allowed genetically modified crops and foods exemptions from scientific tests
normally required in the case of products intended for human consumption;
5
(6) The council is aware that the State of Hawai`i has not established a regulatory
structure in place to monitor where or which transgenic crops are grown, or what
their short- or long-term impacts may be on public, environmental or agricultural
economic health;
(7) The council believes that while there are times when it is preferable that agricultural
and environmental policy be controlled at the state and federal levels, in lieu of
meaningful protections from either, the council, with this ordinance, is
implementing its responsibility to protect the present and long-term health and
welfare of our people, farms, environment, and economy. A decision to release
transgenic organisms into our farms, ecosystems, and economy must not be made
by just a few private biotechnology corporations, but instead must be a public
decision, decided after rigorous public scientific review and extensive public debate
within the impacted communities;
(8) The council therefore believes that unless a particular agricultural product is shown
to be in imminent danger of extinction without gene interference, that our natural
produce and environment should be supported and conserved. The council
acknowledges that the papaya industry was in imminent danger and for that reason
genetically modified papaya were introduced;
(9) The council is aware that the international demand for GMO papaya and other
GMO crops is far more limited than in the case of non-GMO products;
(10) The council is aware that the Hawai`i County visitor industry relies on the travel
and satisfaction of citizens belonging to at least 62 nations which prohibit or restrict
the use of GMOs for health and environmental risks;
(11) The council believes that whereas the government is generally responsive to acute
problems, we must be mindful as leaders in our community to also be on guard
against the cumulative negative impact of the overall increase in toxins on
ourselves, our children, and on future generations, that may well have a long-term
impact on the health of our people and our environment;
(12) The council believes that pursuing an agricultural policy that promotes local non-
GMO produce provides a unique economic opportunity to capture a niche market
for non-GMO produce and meats. Optimizing this opportunity is consistent with
the Hawai`i County General Plan, which provides as one of its economic goals
(Economic policies 2.2(h)): "Promote and develop the island of Hawai`i into a
unique scientific and cultural model, where economic gains are in balance with
social and physical amenities. Development should be reviewed on the basis of total
impact on the residents of the County, not only in terms of immediate short run
economic benefits.";
(13) The council seeks to prevent national and international market losses for products
from Hawai`i County's farms and fisheries, which would likely result from genetic
contamination by transgenic organisms of our fresh produce, fruit crops, wild
caught fish, and our value-added agricultural products such as coffee, kalo,juices,
honey and processed foods;
6
(14) The council seeks to protect the right to farm natural, conventional, non-GMO and
heirloom crops, so that those farmers who choose to farm without transgenic crop
varieties can do so without having their crops and seed stocks genetically
contaminated by pollen or seed brought by wind, insects, birds, animals, water,
vehicles, farm machinery, clothing, or in any other manner from neighboring farms
with transgenic varieties. If transgenic varieties of crops are introduced into the
County, those farmers who choose not to use transgenic varieties will in time, very
likely suffer genetic contamination of their crops and seed stocks, and suffer loss of
their markets for non-transgenic products. For the many certified organic producers
in the County, such contamination may result in a loss of organic certification, and
loss of premium sales for organic products. Given the commonly recognized high
risk of contamination by transgenic varieties on this island, time is of the essence in
passage of this general prohibition aimed at preventing agricultural and
environmental contamination from genetically modified (transgenic) organisms;
(15) The council aims to protect public and private property owners from expensive
eradication and environmental clean-up associated with decontamination of their
land from transgenic organisms brought through no actions of their own;
(16) The council seeks to protect public and private property owners from the liability
associated with their land or animals becoming contaminated with transgenic
organisms, which may then become vectors to contaminate neighboring land or
livestock through cross pollination or seed dispersal (in plants or trees) or
interbreeding (in animals, insects, or fish);
(17) The council seeks to protect the public health from any negative impacts caused by
exposure to poorly tested transgenic organisms. Such exposure might occur
through transgenic pollen inhaled or eaten, or by increased exposure to increasingly
toxic herbicides and pesticides used to kill "super weeds" and "super bugs" - that
are carried by the wind or otherwise. "Super weeds" or "Super bugs" are those farm
pest species which quickly evolve and develop herbicide tolerance or pesticide
resistance due to continuous exposure to transgenic crops bred to express an
herbicide tolerance or a pesticide;
(18) The council seeks to protect Hawai`i County's extraordinary diversity of native
ecosystems from the possibility of irreversible genetic contamination by species-
related transgenic organisms;
(19) The council is also aware of the importance of promoting a close relationship with
nature, and that which is natural, as part of the sense of place and cultural identity
of this Hawaiian island as a place of healing and wellness;
(20) The council seeks to protect the ocean fisheries and ecosystems of the Pacific
Ocean from contamination by transgenic varieties being developed for private fish
farms. Because past and current fish farms in the United States and elsewhere have
accidentally released large amounts of farmed fish into our public rivers and oceans,
it is a reasonable assumption that new transgenic varieties in fish farms will
inevitably escape into our public rivers and ocean;
7
(21) The council recognizes that supporters of the genetically modified related biotech
industry seek to pass various federal and state bills to prevent the local regulation
("home rule") of agriculture generally and in particular over agricultural use
genetically modified organisms, but believes there is no current federal or state law
that preempts this ordinance, and knows of no court case to the contrary;
(22) The council is aware that the cultivation of genetically modified crops generally
requires the application of significant amounts of herbicides, in particular
glyphosate also known by its trade name Roundup, and that the use of glyphosate
may be a source of water pollution. Round-up also degrades soil health, killing the
microbial life of the soil, and is known to then release carbon from the soil into the
air as those organisms die, thereby contributing to global warming; and
(23) As discussed in the United States Department of the Interior technical
announcement dated August 29, 2011 entitled "Widely Used Herbicide Commonly
Found in Rain and Streams in the Mississippi River Basin", glyphosate has been
detected in surface waters, streams, rain, and even in the air in the areas where it is
commonly used. Given the potential for water pollution by glyphosate as used in
connection with the cultivation of genetically modified crops, and in light of the
precautionary principle, the council finds any restriction on nuisance suits to be
inapplicable.
Section 14- . Authority.
The authority to impose long-term health and environmental sustainability
standards is granted to counties by:
(1) The Charter of the County of Hawai`i, Article XIII, Section 13-29 "Conservation of
Natural and Cultural Resources," which states: "For the benefit of present and
future generations, the county shall conserve and protect Hawai`i's natural beauty
and all natural and cultural resources, including but not limited to land, water, air,
minerals, energy sources, wahi pana, surf spots, historic sites, and historic
structures, and shall promote the development and utilization of these resources in a
manner consistent with their conservation and in furtherance of the self-sufficiency
of the county. All public natural and cultural resources are held in trust by the
county for the benefit of the people, natural resources, including our land and water,
are held in trust for the benefit of both current and future generations."
(2) The Hawai`i Revised Statutes, Section 46-1.5(13), which states: "Each county shall
have the power to enact ordinances deemed necessary to protect health, life, and
property, and to preserve the order and security of the county and its inhabitants on
any subject or matter not inconsistent with, or tending to defeat, the intent of any
state statute where the statute does not disclose an express or implied intent that the
statute shall be exclusive or uniform throughout the State.";
(3) The Hawai`i State Constitution, Article XI, Section 9 "Environmental Rights,"
which states: "Each person has the right to a clean and healthful environment, as
defined by laws relating to environmental quality, including control of pollution and
conservation, protection and enhancement of natural resources. Any person may
enforce this right against any party, public or private, through appropriate legal
proceedings, subject to reasonable limitations and regulation as provided by law.";
8
(4) The United States Constitution, and the 9th Amendment to the United States
Constitution, which recognize and secure the fundamental and inalienable right of
people to govern themselves; and
(5) The 14th Amendment to the United States Constitution, which states in part: "No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States."
Section 14-_ Definitions.
As used in this article, unless otherwise specified:
"Administrative authority" means the director of the department of research and
development, or the director's authorized representative..
"Containment procedures" means the procedures employed to prevent
contamination of adjacent properties or water sources by a genetically modified
organism.
"DNA" means deoxyribonucleic acid.
["Director" means the director of the department of environmental management.]
"Enforcement authority" means the prosecuting attorney, or the prosecuting
attorney's authorized representative..
"Genetically Modified Organism" ("GMO") means an organism or
microorganism whose genetic material has been altered by transgenetic manipulation.
Such organisms are sometimes referred to as "genetically engineered organisms" ("GE
organisms") or "transgenic organisms." GMO crops include crops for human
consumption or any other purpose.
"Organism" means any living thing.
"Person" includes natural persons, partnerships, joint ventures, societies,
associations, clubs, trustees, trusts, or corporations or any officer, agent, employee,
factor, or any other personal representative thereof, in any capacity, acting either for
himself or for any other person, under personal appointment or pursuant to law.
["Physically contained" m ans following USDA protocols and guidelines at the
BSL 3 Ag Containment Level or greater as outlined in USDA Departmental Manual No.
"Register" or "Registration" means registration of locations engaged in the
cultivation, propagation, or development of genetically modified organisms or transgenic
manipulation, which shall include: the location of the property (TMK); the name of the
owner of the property; the lessee or any other party in control of the GMO operation or
usage; the type of genetically modified organism or transgenic manipulation used; the
produce or products involved; the type, frequency, and customary amount of herbicides
and pesticides used; a description of the containment procedures employed; and relevant
contact information.
"Transgenic manipulation" means the [extraction] fabrication or alteration of
DNA, or its extraction from an organism (the "donor organism") followed by its
introduction into the same or a different organism (the "recipient organism") in such a
manner that the introduced DNA can be transmitted through the reproduction of the
recipient organism. "Transgenic manipulation" [does include] includes methods utilized
to reduce the viability or fertility of the recipient organism as a means of "biological
containment," including but not limited to so-called ["genetic use restriction
technologies" or "terminator technology."] "genetic use restriction technologies."
"Transgenic manipulation" does not include traditional breeding, conjugation, traditional
9
fermentation (such as in the making of beer, wine, bread and yogurt), hybridization, in-
vitro fertilization, or tissue culture.
["Transgenic organism" means an organism whose DNA is modified by
transgenic manipulation. Such organisms are sometimes referred to as "genetically
engineered organisms" ("GE organisms") or "genetically modified organisms"
("GMOs").]
Section 14-_ Prohibitions.
(a) No person shall knowingly engage in the propagation, cultivation, raising, growing,
sale or distribution of transgenic organisms[.-], unless exempted under section 14-
(b) A violation of this article is declared to constitute an imminent endangerment of
agricultural health [and], environmental health and human health as such is
declared a public nuisance].
(c) The provisions of this article are cumulative and nothing in this article affects any
other remedies any individual or government entity may have against any person
from a violation of this article.
Section 14-_ Exemptions.
(a) Nothing in this article shall make it unlawful for a person to purchase, sell,
distribute, or use human food or animal feed which contains transgenic ingredients
(transgenic corn, soy or cotton seed, or their derivatives). This exemption does not
however permit any cultivation of GMO crops or GMO livestock feed except as
provided in this section.
(b) Horticultural floral exemption: Nothing in this article shall make it unlawful to
cultivate genetically modified horticultural floral plants that are used solely for non-
edible purposes and that are completely enclosed in a greenhouse or in another
completely enclosed structure, and provided any person engaged in such
horticultural cultivation complies with the registration requirements set forth in
section 14-
[(b)](c) State or federally licensed medical or agricultural facilities exemption: Nothing in
this article shall make it unlawful for state or federally licensed medical or
agricultural research institutions [, medical or agricultural laboratories or medical or
agricultural manufacturing facilities in the County] to conduct licensed medical or
agricultural research or production involving transgenic organisms [whose
reproduction in the environment can be physically contained, as defined herein.]
provided the GMO related research is located in a completely enclosed greenhouse
or other completely enclosed structure, or as more strictly required in state or
federal license biosafety protocols, and provided the licensed medical or
agricultural facilities complies with the registration requirements set forth in section
14- .
(d) Papaya exemption: Nothing in this article shall make it unlawful to cultivate
genetically modified papaya, provided all persons cultivating GMO papaya for
commercial purposes shall comply with the registration requirements set forth in
section 14-
[(c) Any person using transgenic organisms in the production of agricultural produce or
the raising livestock of any kind prior to the effective date of this article under the
exemption allowed in subsections (b) and (c) is exempt from the prohibition set
10
forth above in section 11 (a), provided documentation of the usage, the defined
location and the extent thereof, is submitted to the department of environmental
management, along with proof that all transgenic organisms are physically
written by the person seeking the exemption accompanied by photographs, shall
also include a sworn statement that the containment facilities shall be maintained in
(e) Sunset provision for those currently engaged in the cultivation of genetically
modified crops or livestock feed: The cultivation of genetically modified crops
including genetically modified livestock feed is prohibited, except that persons
engaged in the cultivation of non-experimental GMO crops or livestock feed as of
the effective date of this article, may continue to cultivate and use non-experimental
GMO crops or livestock feed in registered locations for a period not to exceed
twenty-four months from the effective date of this article, provided any person
engaged in such cultivation complies with the registration requirements set forth in
section 14- . This exemption shall apply only to locations that were customarily
engaged in the cultivation of GMO crops or livestock feed as of the effective date of
this article and provided the locations are registered within ninety days of the
effective date of this article as set forth in section 14-
Section 14- . Administration and enforcement authorities.
The administrative authority shall administer this article and shall exercise such
powers as legal and necessary to carry out and effectuate the purposes and provisions
herein. The enforcement authority shall enforce this article and shall exercise such
powers as legal and necessary to carry out and effectuate the purposes and provisions
herein.
Section 14- . Registration.
(a) All persons engaged in the cultivation, propagation, or development of genetically
modified or transgenic manipulated produce or products of any kind shall register
annually with the administrative authority, beginning within ninety days of the
effective date of this article.
(b) All persons using genetically modified organisms or transgenic manipulated
produce or products shall be required to pay an annual registration fee of$100 per
location,payable to the director of finance. All contiguous land shall be treated as a
single location.
Section 14- [ .] Enforcement.
(a) The [director] enforcement authority shall [administer-and] enforce this article and
shall exercise such powers as legal and necessary to carry out and effectuate the
purposes and provisions herein.
(b) [Within ten business days of having] If the enforcement authority has reason to
suspect that a violation of the this article has occurred, the [di-rector] enforcement
authority shall give written notice to the suspected person that [any organisms in
•- . •- -• . - - • • - • .• - • . - . el a violation of this article
constitutes a health and environmental hazard and that genetically modified crops
and organisms are subject to confiscation [and] and/or destruction, and that a
11
violator is subject to the administrative, enforcement, and abatement costs and the
civil penalties set forth in this article.
(c) Proper service of such notice shall be by personal service, registered mail, or
certified mail upon the owner of record, provided, that if such notice is by
registered mail or certified mail, the designated period within which the owner or
person in charge is required to comply with the order shall begin as of the date the
owner or person in charge receives such notice.
[(E}](d) Any person who receives notification under subsection (b) [shall] may respond
within [ten] twenty business days with evidence that such crops or other organisms
are not in violation of this article [, or that such organisms have been destroyed or
entirely removed from the County].
[(d) Within ten business days of receiving notification under subsection (b), the notified
person may submit additional information and request of the director
reconsideration of whether a violation has occurred. The director shall respond to
the request for reconsideration within thirty days.]
(e) Within [twenty] thirty business days of providing written notice to a person
pursuant to subsection (b), the [director] enforcement authority shall determine if
[the organisms are in violation of this article, and whether any subject organisms
have been destroyed or entirely removed from the County.] a violation has
occurred, or alternatively the enforcement authority may inform the person that
additional time is needed to determine whether a violation has occurred, along with
an estimate of the time that will be required to make the determination. [The
director shall consider evidence submitted under subsections (c) and (d), and any
other evidence presented or which is relevant to the determination of such
vi ] The enforcement authority may request additional information prior to
making a final determination. Absent extenuating circumstances, all determinations
of violations of this article shall be made within ninety days of the first notice of
violation. In making a determination, the enforcement authority shall consider all
relevant evidence submitted.
(f) Upon making a determination that a violation of this article exists, the [director]
enforcement authority shall thereafter promptly issue an order of violation and take
all actions necessary to ensure that all such genetically modified crops or other
organisms are confiscated and destroyed or arrangements made for removal from
the County[7] , and that no further violation will occur.
[(g) The director shall submit an annual report to the council describing all complaints
received and enforcement actions taken under this article, including information
regarding the types and amounts of organisms in violation of this article, the
received exemptions to the prohibitions of this article, as allowed herein. This
director is bound by a court order er by state law to net disclose facts in an ongoing
investigatiend
(g) Contents of the order of violation.
(1) The order may require the parties responsible for the violation, including but
not limited to the owner/lessee of the property where the violation is located,
to do any or all of the following:
•
12
(A) Correct the violation within the time specified in the order;
(B) Pay a civil fine not to exceed $1,000 in the manner, at the place and
before the date specified in the order; and
(C) Pay a civil fine not to exceed $1,000 per day for each day in which the
violation persists, in the manner and at the time and place specified in the
order.
(2) The order shall advise the party responsible for the violation that the order
shall become final ninety calendar days after the date of its delivery.
(h) Judicial enforcement of order. The enforcement authority may institute a civil
action in a circuit court of competent jurisdiction for the enforcement of any final
order issued pursuant to this section. Where the civil action has been instituted to
enforce the civil fine imposed by such final order, the enforcement authority need
only show that the notice of violation and order were served, that a civil fine was
imposed, the amount of the civil fine imposed, and that the fine imposed has not
been paid.
(i) In the event that a person engaged in the cultivation, propagation, or development
of genetically modified crops is found to violate this article on more than one
occasion, that person shall be required to obtain insurance in a sufficient amount to
cover potential damages related to contamination of other properties and water
sources.
[(4WD The prohibitions of this article on engaging in the [propagation, cultivation,
raising, growing, sale or distribution] cultivation, propagation, or development of
transgenic organisms shall supersede any privileges and immunities set forth in this
Code which may exempt agricultural or other activities from nuisance abatement.
Section 14- . Annual administrative report.
The administrative authority shall submit an annual report to the council describing
its administration of this article. The report shall include a list of all persons who have
sought and received exemptions to the prohibitions of this article, as allowed herein, a
summary of all information obtained concerning the use of GMOs in this County,
identification of the amount of fees collected for each exemption category, and a list of
any recommendations for improvement of administration of this article. This report shall
be made available to the public.
Section 14- . Annual enforcement report.
The enforcement authority shall submit an annual report to the council describing its
enforcement of this article. The report shall include a list of all complaints received and
enforcement actions taken under this article, including information regarding the types of
violations including for failure to register, the types and amounts of GMO organisms in
violation of this article, the locations of any violations, the amount of any civil fines
collected, and the steps that have been taken to destroy or remove GMO crops in violation.
This section shall not have effect in cases of violations or suspected violations of this
article where the enforcement authority is bound by a court order or by state law to not
disclose facts in an ongoing investigation.
Section 14-_ Penalties.
(a) Any person who knowingly violates this article shall be held responsible for
administrative, enforcement, and abatement costs associated with actions taken by
13
the [difector,] administrative and enforcement authorities, including but not limited
to the:
(1) Costs of investigation[;] including testing;
(2) Costs of removing and destroying transgenic organisms, and of cleanup and
restoration of the environment[;] on that person's or another's property;
(3) Cost of County employee enforcement time;
(4) Court and legal costs[;] including all costs relating to witness fees and
expenses; and
(5) Costs of monitoring compliance.
(b) Any person who knowingly violates this article shall be fined $1,000 for each
location in violation [:. . . - . - . . - -]. All abatement fees and
fines shall be payable to the director of finance.
(c) Any person who does not timely obey any order of violation, including relating to
the confiscation or removal of the crops or other organisms found in violation, shall
be additionally fined a minimum of$1,000 per day as a separate violation for each
location in violation.
[(c)](d) Unless allowed by exemption as provided in this article, persons who possessed
transgenic organisms prohibited by this article prior to its effective date shall be in
violation of this article[;] thereafter, and are subject to the enforcement provisions
herein. Such persons, however, shall not be assessed the administrative,
enforcement, and abatement costs in subsection (a), nor fined as provided in
subsection (b), [provided that person report to the director] if that person reports to
the enforcement authority the fact of that person's possession of such prohibited
transgenic organisms within [sixty] ninety days of the effective date of this article,
and [can demonstrate to the director's] demonstrates to the enforcement authority's
satisfaction that such prohibited transgenic organisms have been destroyed or
removed from the County[.-] , and that the subject location will no longer be used
for genetically modified crops or other genetically modified organisms.
[(d)](e) The provisions of this article are cumulative, and nothing in this article affects
any other remedies any individual or government entity may have against any
person resulting from a violation of this article.
Section 14-_ Citizen suits.
[(a) This article hereby cr a.tcs and vests a right in all citizens of the County to sue the
Circuit Court, County of Hawai`i.]
(a) In the event the enforcement authority does not pursue judicial enforcement of an
enforcement order violation pursuant to section 14- within ninety days, any
person who has been adversely affected by a violation of this article may seek
injunctive relief and damages for a violation of this article.
(b) All actions shall be filed in the Circuit Court of the Third Circuit, County of
Hawaii.
[(b)](c) At least thirty days prior to the filing of any citizen suit, the prospective [citizen
plaintiffs] citizen-plaintiff shall provide written notice to the [director] enforcement
authority of [their] that citizen-plaintiff's intent to sue. [The director shall initiate
the enforcement of this article within ten business days of receipt of the notice.
Action by the director to initiate enforcement of this article following the notice by
a citizen plaintiff shall supplant the citizen plaintiffs right to file a citizen suit.]
14
impaired by the actions of the director.]
(d) To the extent a citizen—plaintiff is successful in finding a violation of this article, the
Court may award reasonable attorney's fees in addition to the fines payable to the
director of finance."
3. All subsequent Sections of Bill No. 79 are re-numbered accordingly.
Attached is a draft copy of Bill No. 79, Draft 2, with these amendments incorporated.
MW/dh
att.
15
AN ORDINANCE AMENDING CHAPTER 14 OF THE HAWAII COUNTY CODE 1983
(2005 EDITION, AS AMENDED), BY ADDING A NEW ARTICLE RELATING TO
PROHIBITION OF GENETICALLY MODIFIED ORGANISMS.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Chapter 14 of the Hawai`i County Code 1983 (2005 Edition, as amended)
is amended by adding a new article to be appropriately designated and to read as follows:
"Article_. Genetically Modified (Transgenic) Organisms Prohibited.
Section 14-_ Findings and purpose.
The council, desiring to protect our agricultural heritage, our natural environment,
our public health, and our inalienable constitutional rights, finds it necessary to restrict
the further introduction and use of transgenic, genetically modified crops, plants, seed,
trees, fish, livestock, and other genetic organisms in Hawai`i County. The council feels
compelled to take such action for the following reasons:
(1) Conservation of public trust resources. Utilization of public trust resources —
including land and water- is governed by the public trust doctrine. Pursuant to the
public trust doctrine embodied in the Hawai`i State Constitution, Article XI, Section
1 "Conservation and Development of Resources," and in the Charter of the County
of Hawai`i, Article XIII, Section 13-29 "Conservation of Natural and Cultural
Resources," natural resources, including our land and water, are held in trust for the
benefit of both current and future generations. The council acknowledges that
inherent in the public trust doctrine is the precautionary principle. The precautionary
principle mandates caution and conservation when information is uncertain or
unknown, especially when there is a potential risk to long-term human and
environmental health;
(2) The Intermediate Court of Appeals in Kaua`i Springs Inc. vs. Planning Commission
of the County of Kaua`i, dated April 20, 2013, as well as the Circuit Court of the
Third Circuit in Missler v. Board of Appeals of the County of Hawai`i, dated April
15, 2013, both recently underscored the importance of the public trust doctrine and
its corollary precautionary principle. In Kaua`i Springs the Intermediate Court of
Appeals reaffirmed that the county government in its trustee capacity is subject to
the precautionary principle and therefore must exercise a higher level of scrutiny in
establishing reasonable measures and making appropriate assessments in order to
avoid harmful impacts to our public trust resources. In both the Missler and the
Kaua`i Springs case, the Court made clear that the public trust doctrine applies
where activities aimed at economic commercial gain regardless of whether the
property is public or private;
(3) The United Nations Biosafety Protocol, with 85 signatory nations, became
international law on September 11, 2003. This international protocol, though not
signed by the United States, regulates the transboundary movement of transgenic
organisms. This international protocol implements the "Precautionary Principle." In
this context the Precautionary Principle requires that if a new technology poses
threats of damage to human or environmental health, the burden of proof is on the
promoter of the technology to prove scientifically that the technology is safe, not on
the public or governments to prove that the technology is unsafe;
(4) The council therefore recognizes the right of the people and their government to
guard against the intrusion of potential contaminates without having to first wait for
definitive science. As the United States Supreme Court made clear in Maine vs.
Taylor (1986) "the constitutional principles underlying the commerce clause cannot
be read as requiring the State . . . to sit idly by and wait until potentially irreversible
environmental damage has occurred or until the scientific community agrees on
what disease organisms are or are not dangerous before it acts to avoid such
consequences";
(5) The council believes the federal government has not required safeguards for the
research, testing, use, and monitoring of genetically modified transgenic crops, fish,
trees animals, and other organisms, and is concerned that federal agencies have
allowed genetically modified crops and foods exemptions from scientific tests
normally required in the case of products intended for human consumption;
(6) The council is aware that the State of Hawai`i has not established a regulatory
structure in place to monitor where or which transgenic crops are grown, or what
their short- or long-term impacts may be on public, environmental or agricultural
economic health;
(7) The council believes that while there are times when it is preferable that agricultural
and environmental policy be controlled at the state and federal levels, in lieu of
meaningful protections from either, the council, with this ordinance, is
implementing its responsibility to protect the present and long-term health and
welfare of our people, farms, environment, and economy. A decision to release
transgenic organisms into our farms, ecosystems, and economy must not be made
by just a few private biotechnology corporations, but instead must be a public
decision, decided after rigorous public scientific review and extensive public debate
within the impacted communities;
(8) The council therefore believes that unless a particular agricultural product is shown
to be in imminent danger of extinction without gene interference, that our natural
produce and environment should be supported and conserved. The council
acknowledges that the papaya industry was in imminent danger and for that reason
genetically modified papaya were introduced;
(9) The council is aware that the international demand for GMO papaya and other
GMO crops is far more limited than in the case of non-GMO products;
(10) The council is aware that the Hawai`i County visitor industry relies on the travel
and satisfaction of citizens belonging to at least 62 nations which prohibit or restrict
the use of GMOs for health and environmental risks;
(11) The council believes that whereas the government is generally responsive to acute
problems, we must be mindful as leaders in our community to also be on guard
against the cumulative negative impact of the overall increase in toxins on
2
ourselves, our children, and on future generations, that may well have a long-term
impact on the health of our people and our environment;
(12) The council believes that pursuing an agricultural policy that promotes local non-
GMO produce provides a unique economic opportunity to capture a niche market
for non-GMO produce and meats. Optimizing this opportunity is consistent with
the Hawai`i County General Plan, which provides as one of its economic goals
(Economic policies 2.2(h)): "Promote and develop the island of Hawai`i into a
unique scientific and cultural model, where economic gains are in balance with
social and physical amenities. Development should be reviewed on the basis of total
impact on the residents of the County, not only in terms of immediate short run
economic benefits.";
(13) The council seeks to prevent national and international market losses for products
from Hawai`i County's farms and fisheries, which would likely result from genetic
contamination by transgenic organisms of our fresh produce, fruit crops, wild
caught fish, and our value-added agricultural products such as coffee, kalo, juices,
honey and processed foods;
(14) The council seeks to protect the right to farm natural, conventional, non-GMO and
heirloom crops, so that those farmers who choose to farm without transgenic crop
varieties can do so without having their crops and seed stocks genetically
contaminated by pollen or seed brought by wind, insects, birds, animals, water,
vehicles, farm machinery, clothing, or in any other manner from neighboring farms
with transgenic varieties. If transgenic varieties of crops are introduced into the
County, those farmers who choose not to use transgenic varieties will in time, very
likely suffer genetic contamination of their crops and seed stocks, and suffer loss of
their markets for non-transgenic products. For the many certified organic producers
in the County, such contamination may result in a loss of organic certification, and
loss of premium sales for organic products. Given the commonly recognized high
risk of contamination by transgenic varieties on this island, time is of the essence in
passage of this general prohibition aimed at preventing agricultural and
environmental contamination from genetically modified (transgenic) organisms;
(15) The council aims to protect public and private property owners from expensive
eradication and environmental clean-up associated with decontamination of their
land from transgenic organisms brought through no actions of their own;
(16) The council seeks to protect public and private property owners from the liability
associated with their land or animals becoming contaminated with transgenic
organisms, which may then become vectors to contaminate neighboring land or
livestock through cross pollination or seed dispersal (in plants or trees) or
interbreeding (in animals, insects, or fish);
(17) The council seeks to protect the public health from any negative impacts caused by
exposure to poorly tested transgenic organisms. Such exposure might occur
through transgenic pollen inhaled or eaten, or by increased exposure to increasingly
toxic herbicides and pesticides used to kill "super weeds" and "super bugs" - that
are carried by the wind or otherwise. "Super weeds" or "Super bugs" are those farm
pest species which quickly evolve and develop herbicide tolerance or pesticide
3
resistance due to continuous exposure to transgenic crops bred to express an
herbicide tolerance or a pesticide;
(18) The council seeks to protect Hawai`i County's extraordinary diversity of native
ecosystems from the possibility of irreversible genetic contamination by species-
related transgenic organisms;
(19) The council is also aware of the importance of promoting a close relationship with
nature, and that which is natural, as part of the sense of place and cultural identity
of this Hawaiian island as a place of healing and wellness;
(20) The council seeks to protect the ocean fisheries and ecosystems of the Pacific
Ocean from contamination by transgenic varieties being developed for private fish
farms. Because past and current fish farms in the United States and elsewhere have
accidentally released large amounts of farmed fish into our public rivers and oceans,
it is a reasonable assumption that new transgenic varieties in fish farms will
inevitably escape into our public rivers and ocean;
(21) The council recognizes that supporters of the genetically modified related biotech
industry seek to pass various federal and state bills to prevent the local regulation
("home rule") of agriculture generally and in particular over agricultural use
genetically modified organisms, but believes there is no current federal or state law
that preempts this ordinance, and knows of no court case to the contrary;
(22) The council is aware that the cultivation of genetically modified crops generally
requires the application of significant amounts of herbicides, in particular
glyphosate also known by its trade name Roundup, and that the use of glyphosate
may be a source of water pollution. Round-up also degrades soil health, killing the
microbial life of the soil, and is known to then release carbon from the soil into the
air as those organisms die, thereby contributing to global warming; and
(23) As discussed in the United States Department of the Interior technical
announcement dated August 29, 2011 entitled "Widely Used Herbicide Commonly
Found in Rain and Streams in the Mississippi River Basin", glyphosate has been
detected in surface waters, streams, rain, and even in the air in the areas where it is
commonly used. Given the potential for water pollution by glyphosate as used in
connection with the cultivation of genetically modified crops, and in light of the
precautionary principle, the council finds any restriction on nuisance suits to be
inapplicable.
Section 14-_. Authority.
The authority to impose long-term health and environmental sustainability
standards is granted to counties by:
(1) The Charter of the County of Hawai`i, Article XIII, Section 13-29 "Conservation of
Natural and Cultural Resources," which states: "For the benefit of present and
future generations, the county shall conserve and protect Hawai`i's natural beauty
and all natural and cultural resources, including but not limited to land, water, air,
minerals, energy sources, wahi pana, surf spots, historic sites, and historic
structures, and shall promote the development and utilization of these resources in a
4
manner consistent with their conservation and in furtherance of the self-sufficiency
of the county. All public natural and cultural resources are held in trust by the
county for the benefit of the people, natural resources, including our land and water,
are held in trust for the benefit of both current and future generations."
(2) The Hawai`i Revised Statutes, Section 46-1.5(13), which states: "Each county shall
have the power to enact ordinances deemed necessary to protect health, life, and
property, and to preserve the order and security of the county and its inhabitants on
any subject or matter not inconsistent with, or tending to defeat, the intent of any
state statute where the statute does not disclose an express or implied intent that the
statute shall be exclusive or uniform throughout the State.";
(3) The Hawai`i State Constitution, Article XI, Section 9 "Environmental Rights,"
which states: "Each person has the right to a clean and healthful environment, as
defined by laws relating to environmental quality, including control of pollution and
conservation, protection and enhancement of natural resources. Any person may
enforce this right against any party, public or private, through appropriate legal
proceedings, subject to reasonable limitations and regulation as provided by law.";
(4) The United States Constitution, and the 9th Amendment to the United States
Constitution, which recognize and secure the fundamental and inalienable right of
people to govern themselves; and
(5) The 14th Amendment to the United States Constitution, which states in part: "No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States."
Section 14-_ Definitions.
As used in this article, unless otherwise specified:
"Administrative authority" means the director of the department of research and
development, or the director's authorized representative.
"Containment procedures" means the procedures employed to prevent
contamination of adjacent properties or water sources by a genetically modified
organism.
"DNA" means deoxyribonucleic acid.
"Enforcement authority" means the prosecuting attorney, or the prosecuting
attorney's authorized representative.
"Genetically Modified Organism" ("GMO") means an organism or
microorganism whose genetic material has been altered by transgenetic manipulation.
Such organisms are sometimes referred to as "genetically engineered organisms" ("GE
organisms") or "transgenic organisms." GMO crops include crops for human
consumption or any other purpose.
"Organism" means any living thing.
"Person" includes natural persons, partnerships, joint ventures, societies,
associations, clubs, trustees, trusts, or corporations or any officer, agent, employee,
factor, or any other personal representative thereof, in any capacity, acting either for
himself or for any other person, under personal appointment or pursuant to law.
"Register" or "Registration" means registration of locations engaged in the
cultivation, propagation, or development of genetically modified organisms or transgenic
manipulation, which shall include: the location of the property (TMK); the name of the
5
owner of the property; the lessee or any other party in control of the GMO operation or
usage; the type of genetically modified organism or transgenic manipulation used; the
produce or products involved; the type, frequency, and customary amount of herbicides
and pesticides used; a description of the containment procedures employed; and relevant
contact information.
"Transgenic manipulation" means the fabrication or alternation of DNA, or its
extraction from an organism (the "donor organism") followed by its introduction into the
same or a different organism (the "recipient organism") in such a manner that the
introduced DNA can be transmitted through the reproduction of the recipient organism.
"Transgenic manipulation" includes methods utilized to reduce the viability or fertility of
the recipient organism as a means of"biological containment," including but not limited
to so-called "genetic use restriction technologies." "Transgenic manipulation" does not
include traditional breeding, conjugation, traditional fermentation (such as in the making
of beer, wine, bread and yogurt), hybridization, in-vitro fertilization, or tissue culture.
Section 14-_ Prohibitions.
(a) No person shall knowingly engage in the propagation, cultivation, raising, growing,
sale, or distribution of transgenic organisms, unless exempted under section 14-
(b) A violation of this article is declared to constitute an imminent endangerment of
agricultural health, environmental health, and human health.
(c) The provisions of this article are cumulative and nothing in this article affects any
other remedies any individual or government entity may have against any person
from a violation of this article.
Section 14-_ Exemptions.
(a) Nothing in this article shall make it unlawful for a person to purchase, sell,
distribute, or use human food or animal feed which contains transgenic ingredients
(transgenic corn, soy or cotton seed, or their derivatives). This exemption does not
however permit any cultivation of GMO crops or GMO livestock feed except as
provided in this section.
(b) Horticultural floral exemption: Nothing in this article shall make it unlawful to
cultivate genetically modified horticultural floral plants that are used solely for non-
edible purposes and that are completely enclosed in a greenhouse or in another
completely enclosed structure, and provided any person engaged in such
horticultural cultivation complies with the registration requirements set forth in
section 14- .
(c) State or federally licensed medical or agricultural facilities exemption: Nothing in
this article shall make it unlawful for state or federally licensed medical or
agricultural research institutions to conduct licensed medical or agricultural
research or production involving transgenic organisms, provided the GMO related
research is located in a completely enclosed greenhouse or other completely
enclosed structure, or as more strictly required in state or federal license biosafety
protocols, and provided the licensed medical or agricultural facilities complies with
the registration requirements set forth in section 14- .
(d) Papaya exemption: Nothing in this article shall make it unlawful to cultivate
genetically modified papaya, provided all persons cultivating GMO papaya for
commercial purposes shall comply with the registration requirements set forth in
section 14- .
6
(e) Sunset provision for those currently engaged in the cultivation of genetically
modified crops or livestock feed: The cultivation of genetically modified crops
including genetically modified livestock feed is prohibited, except that persons
engaged in the cultivation of non-experimental GMO crops or livestock feed as of
the effective date of this article, may continue to cultivate and use non-experimental
GMO crops or livestock feed in registered locations for a period not to exceed
twenty-four months from the effective date of this article, provided any person
engaged in such cultivation complies with the registration requirements set forth in
section 14- . This exemption shall apply only to locations that were customarily
engaged in the cultivation of GMO crops or livestock feed as of the effective date of
this article and provided the locations are registered within ninety days of the
effective date of this article as set forth in section 14- .
Section 14-_ Administration and enforcement authorities.
The administrative authority shall administer this article and shall exercise such
powers as legal and necessary to carry out and effectuate the purposes and provisions
herein. The enforcement authority shall enforce this article and shall exercise such
powers as legal and necessary to carry out and effectuate the purposes and provisions
herein.
Section 14-_ Registration.
(a) All persons engaged in the cultivation, propagation, or development of genetically
modified or transgenic manipulated produce or products of any kind shall register
annually with the administrative authority, beginning within ninety days of the
effective date of this article.
(b) All persons using genetically modified organisms or transgenic manipulated
produce or products shall be required to pay an annual registration fee of$100 per
location, payable to the director of finance. All contiguous land shall be treated as a
single location.
Section 14-_ Enforcement.
(a) The enforcement authority shall enforce this article and shall exercise such powers
as legal and necessary to carry out and effectuate the purposes and provisions
herein.
(b) If the enforcement authority has reason to suspect that a violation of this article has
occurred, the enforcement authority shall give written notice to the suspected
person that a violation of this article constitutes a health and environmental hazard
and that genetically modified crops and organisms are subject to confiscation and/or
destruction, and that a violator is subject to the administrative, enforcement, and
abatement costs and the civil penalties set forth in this article.
(c) Proper service of such notice shall be by personal service, registered mail, or
certified mail upon the owner of record, provided, that if such notice is by
registered mail or certified mail, the designated period within which the owner or
person in charge is required to comply with the order shall begin as of the date the
owner or person in charge receives such notice.
(d) Any person who receives notification under subsection (b) may respond within
twenty business days with evidence that the subject crops or other organisms are not
in violation of this article.
7
(e) Within thirty business days of providing written notice to a person pursuant to
subsection (b), the enforcement authority shall determine if a violation has
occurred, or alternatively the enforcement authority may inform the person that
additional time is needed to determine whether a violation has occurred, along with
an estimate of the time that will be required to make the determination. The
enforcement authority may request additional information prior to making a final
determination. Absent extenuating circumstances, all determinations of violations
of this article shall be made within ninety days of the first notice of violation. In
making a determination, the enforcement authority shall consider all relevant
evidence submitted.
(f) Upon making a determination that a violation of this article exists, the enforcement
authority shall thereafter promptly issue an order of violation and take all actions
necessary to ensure that all such genetically modified crops and or other organisms
are confiscated and destroyed or arrangements made for removal from the County,
and that no further violation will occur.
(g) Contents of the order of violation.
(1) The order may require the parties responsible for the violation, including but
not limited to the owner/lessee of the property where the violation is located,
to do any or all of the following:
(A) Correct the violation within the time specified in the order;
(B) Pay a civil fine not to exceed $1,000 in the manner, at the place and
before the date specified in the order; and
(C) Pay a civil fine not to exceed $1,000 per day for each day in which the
violation persists, in the manner and at the time and place specified in the
order.
(2) The order shall advise the party responsible for the violation that the order
shall become final ninety calendar days after the date of its delivery.
(h) Judicial enforcement of order. The enforcement authority may institute a civil
action in a circuit court of competent jurisdiction for the enforcement of any final
order issued pursuant to this section. Where the civil action has been instituted to
enforce the civil fine imposed by such final order, the enforcement authority need
only show that the notice of violation and order were served, that a civil fine was
imposed, the amount of the civil fine imposed, and that the fine imposed has not
been paid.
(i) In the event that a person engaged in the cultivation, propagation, or development
of genetically modified crops is found to violate this article on more than one
occasion, that person shall be required to obtain insurance in a sufficient amount to
cover potential damages related to contamination of other properties and water
sources.
(j) The prohibitions of this article on engaging in the cultivation, propagation, or
development of transgenic organisms shall supersede any privileges and immunities
set forth in this Code which may exempt agricultural or other activities from
nuisance abatement.
Section 14-_ Annual administrative report.
The administrative authority shall submit an annual report to the council describing
its administration of this article. The report shall include a list of all persons who have
sought and received exemptions to the prohibitions of this article, as allowed herein, a
8
summary of all information obtained concerning the use of GMOs in this County,
identification of the amount of fees collected for each exemption category, and a list of
any recommendations for improvement of administration of this article. This report shall
be made available to the public.
Section 14-_. Annual enforcement report.
The enforcement authority shall submit an annual report to the council describing
its enforcement of this article. The report shall include a list of all complaints received
and enforcement actions taken under this article, including information regarding the
types of violations including for failure to register, the types and amounts of GMO
organisms in violation of this article, the locations of any violations, the amount of any
civil fines collected, and the steps that have been taken to destroy or remove GMO crops
in violation. This section shall not have effect in cases of violations or suspected
violations of this article where the enforcement authority is bound by a court order or by
state law to not disclose facts in an ongoing investigation.
Section 14-_ Penalties.
(a) Any person who knowingly violates this article shall be held responsible for
administrative, enforcement, and abatement costs associated with actions taken by
the administrative and enforcement authorities, including but not limited to the:
(1) Costs of investigation including testing;
(2) Costs of removing and destroying transgenic organisms, and of cleanup and
restoration of the environment on that person's or another's property;
(3) Cost of County employee enforcement time;
(4) Court and legal costs including all costs related to witness fees and expenses;
and
(5) Costs of monitoring compliance.
(b) Any person who knowingly violates this article shall be fined $1,000 for each
location in violation. All abatement fees and fines shall be payable to the director of
finance.
(c) Any person who does not timely obey any order of violation, including relating to
the confiscation or removal of the crops or other organisms found in violation, shall
be additionally fined a minimum of$1,000 per day as a separate violation for each
location in violation.
(d) Unless allowed by exemption as provided in this article, persons who possessed
transgenic organisms prohibited by this article prior to its effective date shall be in
violation of this article thereafter, and are subject to the enforcement provisions
herein. Such persons, however, shall not be assessed the administrative,
enforcement, and abatement costs in subsection (a), nor fined as provided in
subsection (b), if that person reports to the enforcement authority the fact of that
person's possession of such prohibited transgenic organisms within ninety days of
the effective date of this article, and demonstrates to the enforcement authority's
satisfaction that such prohibited transgenic organisms have been destroyed or
removed from the County, and that the subject location will no longer be used for
genetically modified crops or other genetically modified organisms.
(e) The provisions of this article are cumulative, and nothing in this article affects any
other remedies any individual or government entity may have against any person
resulting from a violation of this article.
9
Section 14-_ Citizen suits.
(a) In the event the enforcement authority does not pursue judicial enforcement of an
enforcement order violation pursuant to section 14- within ninety days, any
person who has been adversely affected by a violation of this article may seek
injunctive relief and damages for a violation of this article.
(b) All actions shall be filed in the Circuit Court of the Third Circuit, County of
Hawaii.
(c) At least thirty days prior to the filing of any citizen suit, the prospective citizen-
plaintiff shall provide written notice to the enforcement authority of that citizen-
plaintiff's intent to sue.
(d) To the extent a citizen—plaintiff is successful in finding a violation of this article, the
Court may award reasonable attorney's fees in addition to the fines payable to the
director of finance."
SECTION 2. If any provision of this ordinance, or the application thereof to any person
or circumstance is held invalid, such invalidity shall not affect other provisions or applications of
the ordinance which can be given effect without the invalid provision or application, and to this
end, the provisions of this ordinance are declared to be severable.
SECTION 3. This ordinance shall take effect upon approval.
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