ACCEPT NO SUBSTITUTIONS

ACCEPT NO SUBSTITUTIONS: We fully expected the brief, clueless presentation by the Department of Public Works (DPW) at last Wednesday’s council Public Works and Energy Committee meeting on the plastic bag ban ordinance 885 which we predicted over the past two weeks.

But the council’s equally befuddled response to both the lack of due diligence by the DPW and the incompetence of County Attorney (CA) Al Castillo in maintaining his quest to hold the legally required public hearing on the administrative rules after the ban takes effect, was both predictable and incomprehensibly blind to irregularities and outright chicanery.

The always incompetent DPW Solid Waste Division Director Troy Tanegawa’s “Power Point” presentation contained exactly one sentence in claiming that in fact there were no bags that meet the standards for use but offered no evidence that he had even checked with anyone, nor did he present any report on the subject.

The fact is that according to researcher Brad Parsons- who as we said last week spent a few days looking into the subject- although no one is presently making bags that are both “compostable” and “contain no fossil fuel polymers” there are companies that make material that could be used to manufacture them if there was a demand for them.

That of course means that if Tanigawa and his division had bothered to look into it as the official government representative of a jurisdiction that wanted bags to fit our unique ordinance - and do so when the ordinance was passed last October- they might have them available by now.

But we would have been shocked to actually find him doing his job at this point in time- he hasn’t shown any ability or initiative in the past 15 years so why would he start now?

And the fact that the council just sat there and bought his brief claim to have looked and found nothing isn’t much of a surprise either- why would they start actually doing their oversight job now?

But the real outrage was this absurdity- courtesy of CA Castillo- of holding the official public hearing on January 11, 2011 the date the ban goes into effect- and, even worse, the way the council went along with it.

Castillo first went into his “say no more-I can say no more” routine regarding the reason claiming it had something to do with a provision in the Hawai`i Revised Statues Chapter 91 which governs administrative (ad) rules, apparently trying to say that he couldn’t have the hearing until the law want into effect but not citing any provision.... perhaps because there isn’t one.

This of course despite the fact that the Maui plastic bag ban law’s ad rules have already gone through their public hearing in August for an ordinance with an effective date of, not so coincidentally, January 11, 2011.

But the real debacle was the fact that the “informational meetings” that the county has announced they will hold on Oct 25 and Nov. 5th & 8th from 10-11 a.m. are apparently being offered in lieu of the legally required official public hearings.

And of course no one on the council had any problem with that.

So why should you?

Maybe its because there’s nothing required of “informational meetings”- where Tanigawa assured the council they would “take testimony”- while there are 1767 words in §91-3 alone regarding “Procedure for adoption, amendment, or repeal of rules”.

Whereas nothing has to occur at an “informational meeting”- and no information obtained must be considered- under an official Chapter 91 public hearing on ad rules.

(2) Afford all interested persons opportunity to submit data, views, or arguments, orally or in writing. The agency shall fully consider all written and oral submissions respecting the proposed rule. The agency may make its decision at the public hearing or announce then the date when it intends to make its decision. Upon adoption, amendment, or repeal of a rule, the agency, if requested to do so by an interested person, shall issue a concise statement of the principal reasons for and against its determination.(emphasis added).

Not only that but while the county can just plop a “notice” of an unofficial informational meeting on their web site in order to give the notice for a public hearing the agency promulgating the rules must

(1) Give at least thirty days' notice for a public hearing. The notice shall include:

(A) A statement of the topic of the proposed rule adoption, amendment, or repeal or a general description of the subjects involved; and

(B) A statement that a copy of the proposed rule to be adopted, the proposed rule amendment, or the rule proposed to be repealed will be mailed to any interested person who requests a copy, pays the required fees for the copy and the postage, if any, together with a description of where and how the requests may be made;

(C) A statement of when, where, and during what times the proposed rule to be adopted, the proposed rule amendment, or the rule proposed to be repealed may be reviewed in person; and

(D The date, time, and place where the public hearing will be held and where interested persons may be heard on the proposed rule adoption, amendment, or repeal.

But here’s the kicker:

The notice shall be mailed to all persons who have made a timely written request of the agency for advance notice of its rulemaking proceedings, given at least once statewide for state agencies and in the county for county agencies. Proposed state agency rules shall also be posted on the Internet as provided in section 91-2.6

The whole purpose of this process is to allow the greatest public input and scrutiny possible to these “rules” which, after all, have the effect of law. What’s supposed to happen is that since they are required to “fully consider all written and oral submissions respecting the proposed rule”- and of course demonstrate that they have- once that input is given, if it is substantive they are supposed to go back and rewrite the rules.

If that happens, according to the case note 50 H. 156, 434 P.2d 516 on §91-3:

Changes may be made in a rule between the original proposed and presented at a public hearing and as finally adopted. Substantial change in a rule after a public hearing may require another public hearing.

But leave it to a befuddled DPW, a twit of a CA, an Ainokea council and an administration that is so addicted to secrecy and dedicated to keeping incompetent appointees that they would rather ignore the laws in favor of minimizing public participation in public processes, to think their little mid-morning hour-long schmooze session can suffice for official state procedures, as expressed in law.

This whole business is of course a result of the way the council went about “banning” plastic bags in the first place.

Rather than just ban them outright as Maui and other jurisdictions have done, they decided to kiss the butts of the stores that insist on packing our landfill and polluting our roads and waters with these poison products by trying to carve out an “allowable” plastic bag... and then depend on the administration to actually do it’s due diligence in creating a set of rules for the two prong test they set out.

Because there are so few places with bans, in the first to set a reasonable standard that assures petroleum-free biodegradability, the Kaua`i standard would be able to be used by other jurisdictions when manufacturers actually produced them because there was now a market for them.

But our lazy DPW dunderheads had a year to work with manufacturers to use available materials to actually produce the type of bag that local merchants would buy- or at least attempt to do so- and instead sat on their collective `okole protecting their clicking and dialing fingers to they could show us all the middle one.

Then, to make this an archetypical tale of Kaua`i-style incompetence and illegalities, they have decided to supplant the rule making process with a secretive process designed to make sure the public has the least input into the rules possible.

The one mistake the council made was thinking Kaua`i could ever do anything innovative or even new.

And that might have caused Castillo’s, Tanegawa’s and Mayor Carvalho’s heads to explode.... not that that would make any difference...