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HomeMy WebLinkAbout2019-12-12 Letter to Aaron Chung re Veto of Bill 101 relating to Herbicide Use cP•� • +., ., Roy Takemoto �I't'�'• Managing Director Harry Kim •c `` •�'�' i•I% r1 Mayor ___'`=Z Barbara J.Kossow .„ ;;°•�'►`�- Deputy Aanaging Director • r�ofM'�- • County of Hawaii Office of the Mayor 25 Aupuni Street,Suite 2603 • Hilo, Hawaii 96720 • (808)961-8211 • Fax(808)961-6553 KONA: 74-5044 Ane Keohokalole Hwy.,Bldg C • Kailua-Kona, Hawaii 96740 (808)323-4444 • Fax(808)323-4440 December 12, 2019 Mr. Aaron Chung, Chairman of the Hawai'i County Council and its Members 25 Aupuni Street Hilo, HI 96720 Dear Chair Chung and Members of the Council, RE: Veto of Bill 101 relating to Herbicide Use Pursuant to Section 3-12 of the Hawai'i County Charter, I am vetoing Bill 101, draft 2 (Bill) and returning it to you for the following regulatory, operational, and other concerns. 1. Regulatory Concerns A. The County does not have the level of expertise to identify herbicides as causing "high risk of exposure,” as "dangerous chemicals" or as "harmful chemicals." o The Environmental Protection Agency (EPA) is responsible for regulating pesticides at the national level. o The Department of Agriculture regulates and enforces pesticide licensing, sale and use at the State level. o The Bill disregards the national and State regulations in place to ensure the safety of people who use herbicides and well as those who work and play in areas where herbicides are used. B. This Bill identifies and codifies the twenty-three (23) listed herbicides as substances subjecting "the public, County workers, domestic animals and wildlife to a high risk of exposure to dangerous chemicals." o The specific twenty-three (23) herbicides are arbitrarily listed in the Schedule of Prohibited Herbicides. There is no basis or explanation as to how or why these herbicides were included in this list. County of Hawaii is an Equal Opportunity Provider and Employer. December 12, 2019 Page 2 • The County should not indiscriminately prohibit herbicides that have no relationship to its current use of herbicides and create unnecessary concerns. • The EPA lists "Alachlor" as an herbicide used on agricultural crops. • The chemical "Trilopr" is not an active ingredient in any common herbicide and should not be included in the list. C. This Bill identifies and codifies one herbicide as a "probable carcinogen." o The Bill relies upon the World Health Organization's (WHO) listing of glyphosate as a "probable carcinogen." • In 2015, the WHO International Agency for Research on Cancer (IARC) was one program (out of four) that published an evaluation of glyphosate categorizing it as "probably carcinogenic". • The other three programs within the WHO that reviewed glyphosate found glyphosate not to be a probable carcinogen: 1. WHO Core Assessment Group; 2. WHO Guidelines for Drinking-Water Safety; and 3. WHO International Programme on Chemical Safety o In 2017, the EPA evaluated the cancer risk of glyphosate to humans and determined that glyphosate was "not likely to be carcinogenic to humans" when used according to the labels. Recommendation: o Delete the statement, "Exposure to these substances subjects the public, County workers, domestic animals and wildlife to a high risk of exposure ' to dangerous chemicals." This is not an accurate statement. o Revise or delete the statement in the Findings and Purpose attributed to "dangerous chemicals" and "harmful chemicals." o Revise or delete the statement in the Findings and Purpose related to WHO. • This statement does not represent the findings of the three other WHO programs or the findings of the EPA. 2. Operational Concerns A. Vegetation Management Transition Committee (Committee) o The transition period begins January 1, 2020. • The Committee is to be made up of seven highly specialized individuals that will be challenging to find. • The Committee "shall be residents of the County." • This requirement limits the Committee from the expertise of non-residents and creates a problem when trying to fill these volunteer positions. Recommendation: County of Hawaii is an Equal Opportunity Provider and Employer. December 12, 2019 Page 3 o Delete the requirement that members of the Committee "shall be residents of the County." o Review and revise the responsibilities of the Committee and possible staffing needs to accomplish the responsibilities of the Committee. B. The requirement to post notices at every site twenty-four hours prior to the application of"prohibited herbicides" translates into a multi-day pre-notice of the intent to apply herbicides. o Herbicide application requires specific conditions at the site (no-minimal wind, rain, moisture conditions, etc.) so application timing must be flexible which makes the 24-hour notice requirement irrational. Recommendation: o Delete the requirement that a notice must be placed at the site where herbicide will be used "at least twenty-four hours before application." C. Section 14-145 (b) (2) states "[t]he area sprayed shall be made inaccessible to the public until the sprayed product dries, but for no less than four hours, or in accordance with the product's label, whichever is greater." o There is no language in the Bill that explains why following the directions relating to dry time on the product's label is not sufficient. o Mandating a 4-hour inaccessibility window essentially translates to an entire day (or more) of closure — partial or complete. ■ If herbicide is applied any time after 3-hours into an employee's workday, they will not have the time to return to the site and remove the barricades or reopen a park. Recommendation: o Delete the requirement that an area sprayed shall be made inaccessible to the public for "no less than four hours, or in accordance with the product's label, whichever is greater." 3. Other Concerns A. The terms "public park", "targeted invasive species" and "waterway" are not defined. B. The new processes during the transition period make public access to its facilities unpredictable and affecting these areas: o Parks, including Hilo Municipal Golf Course, County cemeteries, and Veterans cemeteries o Roadways o Bikeways o Sidewalks o Trails County of Hawai'i is an Equal Opportunity Provider and Employer. December 12, 2019 Page 4 You have this administration's pledge to form a Committee to guide County operations in identifying and using best practices for the management of vegetation on County property with the goal of reducing the use of herbicides. The function of this Committee is critical to the success of a program that ensures the continued protection of the community from exposure to harmful chemicals. We are committed to the environment and the health and welfare of residents, visitors, and wildlife. The commitment to work with you on this very important issue to protect the people from exposure to harmful chemicals and doing our job of controlling invasive species is critical and reaffirmed. Si erely, Harry Kim Mayor Attachment (Bill 101, Draft 2) • County of Hawaii is an Equal Opportunity Provider and Employer. COUNTY OF HAWAII .:6`"-'''� .�' STATE OF HAWAII BILL NO. 101 (DRAFT 2) ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 14, HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY ADDING A NEW ARTICLE 24, RELATING TO HERBICIDE USE. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Chapter 14, Hawai`i County Code 1983 (2016 Edition, as amended), is amended by adding a new article to be designated article 24 and to read as follows: "Article 24. Use of herbicides in Hawaii County parks, roads, bikeways, sidewalks, trails, drainageways, and waterways prohibited. Section 14-141. Findings and purpose. The council finds that herbicides are heavily used to control vegetation in public places such as parks, roads, bikeways, sidewalks, trails, drainageways, and waterways. Exposure to these substances subjects the public, County workers, domestic animals, and wildlife to a high risk of exposure to dangerous chemicals. For instance, the World Health Organization has listed glyphosate, a commonly used herbicide, as a probable carcinogen. To protect the community from exposure to harmful chemicals, it is the purpose of this ordinance to promote and ultimately require the County to use other means besides the application of prohibited herbicides, to control vegetation in public spaces. To accomplish this end, this ordinance creates a list of prohibited herbicides, establishes a prohibition against their use by the County after a four-year transition period, and creates a vegetation management transition committee that will oversee the County's efforts to develop viable alternatives to the use of prohibited herbicides. At the end of the four-year transition period, the ban on County use of prohibited herbicides on the list will take effect and the transition committee will cease to exist. It is not the purpose of this ordinance to affect the use of prohibited herbicides by persons or entities other than the County. Section 14-142. Definitions. As used in this article, unless otherwise specified: "Eco-friendly products and methods" means products and methods that the County has determined are safe for use on County owned or maintained public parks and along all County owned or maintained roads, bikeways, sidewalks, trails, drainageways, and waterways. Examples include but are not limited to use of the following: (1) Manual removal; (2) Mechanical means such as weed whackers, mowers, side cutters, steam or thermal weeders; (3) Animals, such as goats and sheep, to eat weeds; (4) Landscaping; (5) Adding inputs to improve the soil; (6) Mulching; and (7) Products such as D-limonene, baking soda, vinegar, and salt. "Emergency" means an urgent need exists to mitigate or eliminate a plant pest that threatens public health and safety. "Minimum risk products" include products that are exempt from the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act in accordance with the minimum risk exemption regulations contained in 40 CFR 152.25. "Prohibited Herbicide" means any substance or mixture of substances: (1) Intended for use as a plant regulator, defoliant, pre-emergent, or desiccant; or as a spray adjuvant, such as a wetting agent or adhesive; and (2) That is listed in the schedule of prohibited substances contained in section 14-143(b). Section 14-143. Prohibited herbicides in public ways. (a) Except as otherwise provided in this article, the County shall not use prohibited herbicides on County owned or maintained public parks and alongside County owned or maintained roads, bikeways, sidewalks, trails, drainageways, and waterways on or after January 1, 2024. (b) Schedule of prohibited herbicides. The following schedule lists substances containing active ingredients that are prohibited for use by the County to control unwanted vegetation growth on County owned or maintained public parks, and alongside all County owned and maintained roads, bikeways, sidewalks, trails, drainageways, and waterways: 2 Schedule of Prohibited Herbicides Active Ingredients Acetochlor Glyphosate Alachlor Imazapyr Atrazine Isoxaben Aminopyralid MCPA Benfluralin Mecoprop (MCPP) Clopyralid Metolachlor Dicamba Paraquat Dichloride Dithiopyr Pendimethalin Diquat Dibromide Trilopr Diuron Trifluralin Fluazifop-p-butyl 2,4-D" Glufosinate Section 14-144. Exemptions. (a) Persons or entities who are not officers or employees of the County and who are leaseholders of agricultural lands owned or under the County's control, are exempt from this article with respect to the application of prohibited herbicides to their agricultural land leased from the County. (b) Property owners or those in control of private property or any property that is not County maintained, that is located adjacent to a County road easement are exempt from this article, with respect to the use of prohibited herbicides on that easement. Such activity remains subject to the provisions of chapter 149A, Hawai`i Revised Statutes. (c) Persons or entities including officers or employees of the County, are exempt from this article with respect to a direct application of one or more prohibited herbicides directly into the trunk or onto the cut stump of a targeted invasive species using methods known as incision point injection or cut stump application. 3 (d) In the case of an emergency vegetation management situation that results in a public health hazard to the extent that it necessitates a temporary exemption from this article, the mayor or director of the applicable department may request a temporary exemption from the council. A temporary exemption may be granted by the council if it finds the following: (1) The temporary exemption is necessary to address an emergency public health hazard; (2) All other methods available do not adequately mitigate the public health hazard; and (3) That a reasonable time period for this exemption has been proposed. Section 14-145. Use of herbicides during transition. (a) During the transition period from January 1, 2020 until December 31, 2023, the director of the department of environmental management, the director of the department of parks and recreation and the director of the department of public works, shall take steps to reduce the use of substances that are listed on the schedule of prohibited herbicides. These steps shall include: (1) Creating and carrying out, in concert with ongoing advisement from the vegetation management transition committee, a program to transition from using prohibited herbicides to using minimum risk and eco-friendly products and methods; and (2) Establishing and maintaining a County-wide record system to document the County's use of herbicide usage, prohibited and otherwise, the use of other methods, effectiveness of the various choices, and associated costs. These records shall be shared with the vegetation management transition committee. (b) During the transition period, if the departments of environmental management, parks and recreation, or public works intend to apply a substance listed on the prohibited herbicide schedule on a County owned or maintained public park or alongside a County owned or maintained road, bikeway, sidewalk, trail, drainageway, or waterway: (1) A notice shall be posted that a prohibited herbicide, identified by name, will be applied on a specified date and site. The notice shall be posted in a visible location at the site where the herbicide will be used, at least twenty-four hours before application; (2) The area sprayed shall be made inaccessible to the public until the sprayed product dries, but for no less than four hours, or in accordance with the product's label, whichever is greater; (3) A blue dye shall be applied to the product to make it visible to the naked eye; and (4) All directions on the label must be adhered to, such as wind or rain condition restrictions. 4 Section 14-146. Vegetation management transition committee. (a) There shall be a vegetation management transition committee which shall consist of seven members. The members shall be appointed by the mayor, confirmed by the council, and may be removed upon recommendation by the mayor with the approval of the council. The office of the mayor shall provide support service to the committee. (b) Members shall serve a term that will expire upon the abolition of the transitional committee on December 31, 2023. Any vacancy on the committee shall be filled for the remainder of the unexpired term. (c) Members shall be residents of the County who possess education, experience, or knowledge in one or more of the following fields or professions: (1) Native Hawaiian plants and cultural advisement thereof; (2) Tropical horticulture; (3) Agroforestry; (4) Silviculture; (5) Organic landscape design and maintenance, permaculture, or natural farming; and (6) Weed Science. (d) In addition, the director of the department of environmental management, the director of the department of parks and recreation, the director of the department of public works, or their designated representatives, shall serve as ex-officio members of the committee, without the power to vote. (e) There shall be a chairman and vice-chairman of the committee who shall be elected by the members. At a minimum, the committee shall meet on a quarterly basis. (f) The vegetation management transition committee shall: (1) Monitor progress of the departments of environmental management, parks and recreation, and public works, in reducing their use of substances listed on the schedule of prohibited herbicides and establishing a record system, in accordance with section 14-145; (2) Assist the County in researching and developing new and safer vegetation management strategies; (3) Educate County officials, staff, and the public about minimum risk and eco-friendly methods of vegetation control; and (4) On or before November 1, 2020 and annually thereafter, report to the mayor and the Council on the status of efforts by the departments of environmental management, parks and recreation, and public works,to reduce the use of prohibited herbicides on all County owned or maintained public parks and along all County owned or maintained roads, bikeways, sidewalks, trails, drainageways, and waterways." 5 SECTION 2. Severability. If any provision of this ordinance, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. SECTION 3. This ordinance shall take effect upon approval; provided that section 14- 146, relating to the vegetation management transition committee shall be repealed on December 31, 2023. INTRODUCED BY: C UNCIL MEM C ER, COUNTY OF HAWAI`I Kona , Hawai`i Date of Introduction: November 6, 2019 Date of 1st Reading: November 6, 2019 Date of 2nd Reading: November 20, 2019 Effective Date: REFERENCE Comm. 489.338 6 OFFICE OF THE COUNTY CLERK County of Hawaii Kona, Hawaii (Draft 2) Introduced By: Rebecca Villegas ROLL CALL VOTE Date Introduced: November 6, 2019 AYES NOES ABS EX First Reading: November 6, 2019 Chung X Published: November 16, 2019 David X Eoff X REMARKS: Kaneali`i-Kleinfelder X Kierkiewicz X Lee Loy X Poindexter X Richards X Villegas X Second Reading: November 20, 2019 8 1 0 0 To Mayor: Returned: ROLL CALL VOTE Effective: AYES NOES ABS EX Published: Chung X REMARKS: David X Eoff X Kaneali`i-Kleinfelder X Kierkiewicz X Lee Loy X Poindexter X Richards X Villegas X 6 3 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council published as indicated above. COUNCIL CHAIRPERSO Approved/Disapproved this day x • Ink of 20 C• �'!'�RK 101 (Draft 2) Bill No.: MAYOR, COUNTY OF HAWAII C-489 . 338/AWEEMC-10 Reference: Ord No.: