Monday, October 4, 2010


PANTS ON FIRE: In the wake of County Attorney Al Castillo’s performance in requesting the council go into executive session to discuss the ordinance banning plastic bags last Wednesday things have became curiouser and curiouser over the weekend.

As we noted last week on Wednesday and Friday Castillo told the council that, despite the fact that the ordinance had been passed about a year ago, the Department of Public Works (DPW) had not even begun to promulgate Chapter 91 administrative rules (ad rules) because they- and he- were confused about the “intent” of the ordinance.

He also told them apparently after doing their due diligence the DPW found there were no bags in existence that fit the requirements that “no fossil fuel polymers” be used in manufacturing them.

But late Friday, an email showed up in the inbox of one of those most active in the passage of the bill with a brand new informational county web page containing a draft of those very rules which were supposedly nonexistent.

Brad Parson, who worked diligently with others to pass the bill last year, said he had run into Mayor Bernard Carvalho’s assistant Beth Tokioka after the council meeting and asked about the rules and apparently, in response, she sent him a link to the brand new country web page containing a copy of the ordinance, the ad rules and the public hearing notice for the bill.

The rules were either done in one night by Menehunes or more likely existed despite Castillo’s assurance they didn’t exist.

The rules do contain a “list” of acceptable plastic bags under which is printed the word “none”. They also have a section describing a process for submission by merchants of bags for testing to see if they comply.

But the contention that there are no bags being made today that do not contain fossil fuel polymers and in fact that they had checked, seemed a little too pat an answer for Parsons who got busy over the weekend to see if it was true.

It didn’t take him long to find at least one called the “Naturtech Nature Bag” from Northern Technologies Industrial Corp (NTIC) out of Minnesota that thus far appears meets the standard in addition to others that may.

Parsons, a meticulous researcher, is still on the case today to verify the claims made by NTIC as well as others.

But one thing was becoming apparent to Parsons as he did his inquiry- that no one else had asked questions of these manufacturers that he found on-line.

As anyone who has done any research knows- especially in the on-line age- when you start nosing around you will find the fingerprints of anyone who did the same research before you. But Parsons says that so far he seems to be asking questions of the various manufacturers that haven’t been asked before, possibly due to the unique nature of the Kaua`i ordinance.

Another problem with the administration’s whole approach to the implementation is that the notice of public hearing for the rules is being held the very day Ordinance 885 goes into effect, January 11, 2011. That apparently “builds in” a delay in implementation between when the old bags become illegal and when stores can know what bags to use, if any- or even worse, submit one for testing and wait until the results come back- and then order and receive them.

And, in typical “fire ready aim” county manner, they have scheduled a series of three “public information meetings” on October 25 and November 4 and 8, however they are all being held from 10:00 am to 11:00 am for some reason.

The answer to the question as to what “information” is to be disseminated if the rules have yet to be finalized through a public hearing isn’t apparent... unless of course the public hearing is actually superfluous and it doesn’t really matter to them what the public says.

The whole thing is up for discussion this Wednesday at the meeting of the council’s Public Works and Energy Committee where Chair Tim Bynum is “requesting the Administration's presence to discuss Ordinance No. 885, relating to Plastic Bag Reduction.”

In addition there is another request on the agenda from Castillo to go behind closed doors to discuss some kind of “liability” with the council.

Whatever the outcome, one extremely troublesome issue with Castillo’s approach is in his contention that without knowing the council’s “intent” it is impossible to know what to put into the ad rules.

This isn’t the first time that Kaua`i CAs have decided that they need to “interpret” ordinances rather than relying on the plain reading of the law. The same has happened in the Board of Ethics brouhaha over the plain reading of the charter and how it conflicts with the rules of the BOE because someone decided to “interpret” the plain meaning of the charter... interpreting the plain reading out of existence, as it were.

The ordinance is plain- if a bag that meets the criteria exists, it is permissible, If not it isn’t and people must use paper or preferable reusable canvas bags, as is stated in the “purpose” section of the bill that became Ordinance 885.

The reality is that there are only 18 jurisdictions that have any plastic bag bills and the one on Kaua`i is unique in allowing only those that contain no petroleum products. In doing so we are leading the way in providing the industry with the impetus to manufacture them so that other jurisdictions will be able follow in our steps.

But apparently there are bags that meet out standards if the DPW gets off their butts and looks for them.

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