Attorney halts bag ban

SUBHEAD: County Attorney Al Castillo cites enforcibility in order to get deferral of plastic bag bill 2321.  

By Michael Levine on 24 September 2009 in The Garden Island -  
Image above: Al Castillo testifies to Kauai County Council against plastic bag Bill 2321. Photo by Dennis Fujimoto for Garden Island.

The second attempt to pass a bill that would outlaw single-use plastic bags from the island’s retail establishments came up short Wednesday, but frustrated proponents said they remain resolute and confident in their ability to push it through. The Kaua‘i County Council deferred Bill 2321 for two weeks after County Attorney Al Castillo and County Engineer Donald Fujimoto raised concerns about how the administration will implement and enforce the law. “I looked at it personally and I found that there are flaws,” Castillo said when called in front of the council to respond to a written communication his office received last week from Council Chair Kaipo Asing. “My final review didn’t pass muster. ...

This bill is really not ready.” The Department of Public Works would be the enforcement agency responsible for issuing citations of $100 for each store’s first infraction, $200 for the second violation within the same year and $500 for each subsequent violation in that year, and would also be the entity weighing applications for “undue hardship” exemptions lasting up to 18 months from the bill’s July 1 effective date. Fujimoto seemed unsure of how his department would conduct chemical testing to determine if certain biodegradable bags meet the bill’s standards and how Public Works would design policies to otherwise enforce the law.

His unease with the legislation’s implementation and Castillo’s request for a deferral did not sit well with Councilman Tim Bynum, one of the bill’s introducers, who spoke repeatedly of his frustration with the fact that he had worked alongside attorneys when crafting the bill — with the exception of an amendment that tightened the bill’s definition of “biodegradable” to conform to a European standard that does not allow any petroleum-derived content.

 “Every other word in that bill was done in collaboration with the County Attorney’s Office,” Bynum said, offering to remove biodegradable bags from the bill entirely and asking Castillo to identify which other passages he had an issue with.

“I think our credibility with the community is on the line here.” Castillo said he did not want to publicly announce the bill’s weaknesses because it could expose the county to liability, saying he would be committing “malpractice” if he allowed the bill to pass with flaws and warning that “haste makes waste.” “I have no judgment on the wisdom of the bill,” Castillo said, adding that his personal feelings on pending legislation is “neither here nor there.” Asing later said he wanted to comply with Castillo’s request for a deferral so that work could be done to the bill to get it right and put the county in position to prevail in lawsuits should the ordinance be challenged in court.

 Councilwoman Lani Kawahara, who co-introduced the bill with Bynum, said ordinances normally pass through the council and then the administration sets up necessary agency enforcement procedures after passage. She said the plastics industry fights bills like this one on a case-by-case basis, and their influence can even reach Kaua‘i, isolated in the middle of the Pacific Ocean. For or against Before Castillo and Fujimoto revealed their discomfort with the bill, seven community members took the stand in support of the bag ban. Gordon LaBedz of Surfrider warned, “There is no business on a dead planet.” John Harder of Zero Waste Kaua‘i said, “It’s time for the people of Kaua‘i to join the 21st Century.”

Don Heacock, an aquatic biologist with the state Department of Land and Natural Resources, said he was testifying on behalf of marine life that couldn’t be in Council Chambers, and described plastic bags as a pollutant that he has found in a sea turtle’s esophagus when performing a necropsy. Kawahara said the council had received 92 written testimonies in support of the bill versus 11 opposed.

Two groups providing such testimony in opposition were the Kauai Chamber of Commerce and Retail Merchants of Hawaii, whose letters to the council two weeks ago led to the first deferral. On Wednesday, the Hawaii Food Industry Association joined their cause, with spokeswoman Lauren Zirbel arguing that the ban would force the retailers her nonprofit represents to spend additional money on paper or biodegradable bags and would not provide a substantial environmental benefit. She said using corn to create compostable products would lead to food and water shortages worldwide, and added that even paper and other supposedly biodegradable bags do not degrade quickly in landfills due to a lack of water, sunlight and oxygen. Earlier this month, Kaua‘i Mayor Bernard Carvalho Jr. lent his support to the stalled bill, calling the measure “inevitable” despite the economic concerns and asking the community to put in the effort to eliminate use of the bags.

What comes next In the end, Dickie Chang, Daryl Kaneshiro and Asing voted for a deferral, with Bynum and Kawahara voicing their frustration loudly through deafening silence. Vice Chair Jay Furfaro had left for a personal matter at 3 p.m. and was not in attendance for the vote that came after his departure. Derek Kawakami has recused himself for the entirety of the bill due to his role with Big Save supermarkets. Because the deferral was not date specific, the bill’s second reading will likely be placed on the council’s agenda for a third time two weeks from now.

Asing said he was in “100 percent support” of the idea, concept and purpose of the bill, which he described as being critical, important and having long-term ramifications. Furfaro said the county has access to chemists to conduct testing and plenty of time to develop administrative rules for enforcement, saying the concerns raised Wednesday can be resolved before July 1.

 “This is about taking care of our place,” he said, pointing to the Hawaiian ideals of kokua and malama ka ‘aina and noting that throughout his decades in the hotel industry, his businesses have routinely adjusted their policies to meet environmental needs.
“We accept that responsibility as a community.” 
Bynum said the arguments against the bill are “weak at best” and said he was confident the council will navigate through the county attorney’s legal concerns and will pass the legislation in due time. “This is a bill whose time has come,” he said.

See also:
Ea O Ka Aina: Kauai Plastic Bag Ban 9/23/09
Ea O Ka Aina: County Attorney Rampant 9/5/09
Ea O Ka Aina: Kauai's Napoleonic Advisor 8/17/09

1 comment :

Anonymous said...

Swear that is Napoleon re-incarnated here on Kaua'i teamed up with The King for the Battle of the Bags...

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