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HomeMy WebLinkAboutCOM 0271.994 2012-2014 Margaret Wille w.os' Phone No. Hilo: (808)961-8027 Council Member v '�y..,• Phone No. Waimea: (808) 887-2043• District 9-North and South Kohala f 1--"„”N‘1•""� Fax No.: (808)887-2072 't:*; E-Mail: mwille @co.hawaii.hi.us t c►.N'.N . HAWAII COUNTY COUNCIL County of Hawai`i Hawai`i County Building Holomua Center West Hawaii Civic Center Bldg.A 25 Aupuni Street 64-1067 Mamalahoa Highway, Suite C-5 74-5044 Ane Keohokalole Hwy. Hilo, Hawaii 96720 Waimea, Hawaii 96743 Kailua-Kona, Hawaii,96740 o � TO: J Yosh' oto, Chair © embers of the Hawai`i County Council FRO Margaret Wille, Council Member .r r- Date: August 6, 2013 4y w 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 Council feels compelled to take such action for the following reasons: (1) The United States government has failed to establish adequate protocols and safeguards for animals, and other organisms. None of the three federal agencies charged with protecting • . . -, • - • .' - -•- - . ' . - •. • - -- - ..- . - D ••-• . •.- have required sufficient basic scientific review of transgenic technologies to assure no • harm will occur. None of these agencies have required adequate public research or testing, public, environmental, or agricultural health from long term exposure to transgenic organisms; Comm. .52-7(-a H Ref.To: Irmi G- Serving the Interests of the People of Our Island Ref.Date 6 2013 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 (3) While there are times when it is preferable that agricultural and environmental policy be . .- - . . ..• . . . . . . .. .. . .. . . . • decision, decided after rigorous public scientific review and extensive opportunity for (11) The United Nations Biosafety Protocol, with 85 signatory nations, became international law on September 1-1, 2-403. This protocol, net _ -- _ : . - , _ . - - "Precautionary Principle," which requires that when a new technology poses threats of (5) The Council believes that unless a particular agricultural product is shown to be in (6) The Council believes that whereas the government is generally responsive to acute and our environment; (7) The Council believes that pursuing this agricultural policy that promotes local non••• _ - - - - . - : "' . . -- . . . Hawai`i into a unique scientific and cultural model, where economic gains arc in balance impact on the residents of the County, not only in terms of immediate short run economic benefits."; ., . .. ... _ .. . • - • , --, •.• - . . . . - - -.- ; • . . - • . . .. - - . - . . . : - - , . . , . - . , . - , 2 seed stocks, and suffer loss of their markets for non transgenic products. For the many -- • -- - - - - .. . • - . ' " - - • - - - - ' . transgenic organisms brought by pollen, or seeds brought by wind, insects, birds, animals, (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 illegally released large amounts of farmed fish into our public rivers and oceans, it is a-- c rivers and ocean; used to kill "super weeds" and `super bugs" those farm pest species which quickly evolve ecosystems and the plants, fish, trees, and soil flora and fauna found within from the domesticated crop has already : - .. - _ •-. . - - - - • granted to counties by: -- - . - .•`• ' - - • - , • _ 4 . throughout the State." - - - - , 3 - . • - --- - • . .. ..• _ .. • . - - • --, limitations and regulation as provided by law."; (3) The Hawaii State Constitution, Article XI, Section 1 "Conservation and Development of conservation and in furtherance of the self sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people."; ('1) The Charter of the County of Hawaii, Article XIII, Section 13 29 "Conservation of • . . . . . . . ' - - . - " - .. . • . - . •_ - - - - . protect our natural environment on this island, and reads: "For the benefit of present and sources, wahi pana, surf spots, historic sites, and historic structures, and shall promote the on the human and natural environment; -themselves; and - - - - -•-- . - • - . -- - . -- .. -• . . . - : - • . : •, .. - . - - .. : "• 2. Bill No. 79 is amended by amending Section 2 to read as follows: "SECTION[ 21 1. Chapter 14 of the Hawaii 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 Hawaii 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" means following USDA protocols and guidelines at the BSL 3 Ag Containment Level or greater as outlined in USDA Departmental Manual No. 9610 001: "USDA Security Policies and Procedures for Biosafety Level 3 Facilities."] "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 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 contained, as defined herein. The proof submitted, such as by way of a description written by the person seeking the exemption accompanied by photographs, shall also include a sworn statement that the containment facilities shall be maintained in provided an updated report is submitted on an annual basis.] (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 [director] enforcement authority shall give written notice to the suspected person that [any organisms in violation of this article constitute a public nuisance and] 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. [(c)](d) Any person who receives notification under subsection (b) [ ] 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 [ tom] 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 Derr.] 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 locations of any violations, and the steps that have been taken to destroy or remove such organisms. The report shall include a list of all persons who have sought and received exemptions to the prohibitions of this article, as allowed herein. This report shall be made available to the public by the council. This subsection shall not have effect in cases of violations, or suspected violations, of this article where the director is bound by a court order or by state law to not disclose facts in an ongoing investigation.] (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. [(h)](j)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 [director,] 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. ROM) 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 [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 creates 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 Hawai`i. [(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 Action by the director to initiate enforcement of this article fallowing the notice by a citizen plaintiff shall supplant the citizen plaintiffs right to file a citizen suit.] 14 [(c) If the action by the director does not demand injunctive relief and damages for a 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. Section 14- . Establishment of a GMO ad hoc committee. (a) Within sixty days of the effective date of this article, the council shall form an ad hoc committee, pursuant to the Rules of Organization and Procedure of the Council of the County of Hawai`i, to advise the council on issues relating to the pros and cons of cultivation of GMO produce in the County, as compared to conventional farming, natural farming, and to organic farming, taking into consideration the State and County precautionary principle and strategies for agriculture self-sufficiency and sustainability in a manner that promotes the health of the economy, the health of the environment, including the soil, waters, and ecosystems, and the safety and health of the people. The ad hoc committee shall also report on alternative methods of enforcement taking into consideration the experience of other municipal and state governments that enacted ordinances restricting the cultivation of GMO crops. (b) The ad hoc committee shall review and assess the findings of the Earth Open Source June 2012 report entitled "An evidence-based examination of the claims made for the safety and efficacy of genetically modified crops", prepared by Michael Antoniou, Claire Robinson, and John Fagan, as those findings relate to the cultivation of crops in the County. (c) The ad hoc committee shall be composed of council member Eoff, council member Poindexter, and council member Wille, the chair of the committee on agriculture, water, and energy sustainability, who shall serve as chair of the ad hoc committee. (d) The ad hoc committee shall be assisted by the following persons: (1) Nine members of the public; three to be chosen by each of the above named council members, with a preference for having one member who represents economic interests, one member who represents environmental interests, and one member who represents socio-cultural and health interests; (2) The deputy director of the department of research and development; and (3) Hector Valenzuela, professor and crop specialist at the University of Hawai`i, or his designee. (e) The ad hoc committee shall schedule meetings on a monthly basis at such locations selected by the ad hoc committee with a preference for utilizing county facilities where meetings can be telecasted to the other county facilities to allow for broad consumption by the public. (f) Members and assistants of the committee shall be expected to attend in person absent extenuating circumstances. (g) Members of the public may attend and may be utilized as guest speakers; however public testimony will not be accepted. (h) To the extent possible, notice of all meetings shall be made available to public, including on the website of the council. (i) The ad hoc committee shall report to the full council on a quarterly basis concerning its findings and recommendations." 15 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. 16 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 Hawaii 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 Kauai Springs Inc. vs. Planning Commission of the County of Kauai, dated April 20, 2013, as well as the Circuit Court of the Third Circuit in Missler v. Board of Appeals of the County of Hawaii, dated April 15, 2013, both recently underscored the importance of the public trust doctrine and its corollary precautionary principle. In Kauai 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 Kauai 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 Hawai`i. (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 14-_ Establishment of a GMO ad hoc committee. (a) Within sixty days of the effective date of this article, the council shall form an ad hoc committee, pursuant to the Rules of Organization and Procedure of the Council of the County of Hawai`i, to advise the council on issues relating to the pros and cons of cultivation of GMO produce in the County, as compared to conventional farming, natural farming, and to organic farming, taking into consideration the State and County precautionary principle and strategies for agriculture self-sufficiency and sustainability in a manner that promotes the health of the economy, the health of the environment, including the soil, waters, and ecosystems, and the safety and health of the people. The ad hoc committee shall also report on alternative methods of enforcement taking into consideration the experience of other municipal and state governments that enacted ordinances restricting the cultivation of GMO crops. (b) The ad hoc committee shall review and assess the findings of the Earth Open Source June 2012 report entitled "An evidence-based examination of the claims made for the safety and efficacy of genetically modified crops", prepared by Michael Antoniou, Claire Robinson, and John Fagan, as those findings relate to the cultivation of crops in the County. (c) The ad hoc committee shall be composed of council member Eoff, council member Poindexter, and council member Wille, the chair of the committee on agriculture, water, and energy sustainability, who shall serve as chair of the ad hoc committee. (d) The ad hoc committee shall be assisted by the following persons: (1) Nine members of the public; three to be chosen by each of the above named council members, with a preference for having one member who represents economic interests, one member who represents environmental interests, and one member who represents socio-cultural and health interests; (2) The deputy director of the department of research and development; and (3) Hector Valenzuela, professor and crop specialist at the University of Hawaii, or his designee. (e) The ad hoc committee shall schedule meetings on a monthly basis at such locations selected by the ad hoc committee with a preference for utilizing county facilities where meetings can be telecasted to the other county facilities to allow for broad consumption by the public. 10 (f) Members and assistants of the committee shall be expected to attend in person absent extenuating circumstances. (g) Members of the public may attend and may be utilized as guest speakers; however public testimony will not be accepted. (h) To the extent possible, notice of all meetings shall be made available to public, including on the website of the council. (i) The ad hoc committee shall report to the full council on a quarterly basis concerning its findings and recommendations. 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. 11