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...

SUFFOCATED

SUFFOCATED: One thing we might not have made clear in our three prior posts on apparent efforts to undermine Kaua`i Ordinance 885 restricting the use of plastic grocery bags is that there is a two prong test for acceptable “plastic” bags.

The ordinance allows only "biodegradable bags" which according to the ordinance “means a bag that (1) contains no polymers derived from fossil fuels; and (2) is intended for single use and will decompose in a natural setting at a rate comparable to other biodegradable materials such as paper, leaves, and food waste.”

The second is important too because any bags that merchants use must be certified to meet both standards.

As we said Monday researcher Brad Parsons has been diligently doing the job the Department of Public Works should be doing and will present the following testimony today. Keep the two prong test in mind as you read what he found out. See ya on the other side.

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Aloha Councilmembers:

Over the past week, since the last Council meeting regarding Ordinance 885, I have spent probably 50 hours researching the plastic bag issue. I may not get a chance to say or write everything I found, but here are a few notes, and I will try to write up everything I found after today and submit it to you.

First, after almost literally scouring the planet, I did NOT definitively find a poly bag for sale on the market that meets both of Ordinance 885's requirements, those being that it have no fossil fuel polymers (equivalent to ASTM D 6866 industry standard) and that it be compostable at a natural rate as with paper, leaves, and food waste (equivalent to ASTM D 6400 industry standard). I also heavily research the two industry standards, NOT national standards referenced in the prior sentence. The compostable standard ASTM D 6400 is what is used only in San Francisco, California state law, and Minnesota state law for poly bags. It is used in those two states only regarding poly bags. There are many bags on the market that meet the compostable standard ASTM D 6400. The limiting industry standard of the two is ASTM D 6866 the renewable content standard. Of the 19 other jurisdictions in the U.S. with some form of a poly bag ban, I did not find one other jurisdiction that specifically mentions a legal standard of allowing poly bags with no fossil fuel content.

What I did find is at least two bioresins out there that are 100% biobased (that is the term under D 6866 for a polymer that has no fossil fuel content) made by 1) The company Braskem out of Brazil made 100% from sugarcane called green polyethylene. Braskem is in a JV with Proctor & Gamble to distribute products from this, and 2) the company NatureWorks LLC out of Minnesota who's Ingeo biopolymer is 100% biobased from corn. NatureWorks did refer me to two bag makers that they supply. Of those two, there is the possibility that one of them, Indaco of Canada makes a bag called "Bag to Nature" (about 11 cents per bag) that MIGHT be compostable AND 100% biobased. Indaco starts with a bioresin from NatureWorks LLC that is 100% biobased, but if they add their own polymers that have fossil fuel content, then even their "Bag to Nature" would not be 100% biobased and not meet Ordinance 885's unique requirements. I did also come across one other interesting poly bag maker in Minnesota, in Northern Technologies Natur-Tec "Natur-Bag". The "Natur-Bag" is compostable but not 100% biobased, but I did have a chance to have a long conversation with a Rick Lombardo of Northern Tech this morning that was very helpful and will pass on his contact information in my full written testimony to you in the next few days. Lastly, I did come across 2 Chinese companies who's claims are not tested, but which may have a bioresin approaching 100% biobased by Wuhan Huali in a corn-based resin, and Tianan Biologic Material Co. in a bioresin apparently derived from bacteria.

In the course of this search I did also make contact with the only Biodegradable Products Institute approved ASTM D 6400 testing lab on the West Coast, Soil Control Lab, and exchanged a number of useful emails with their lab director Mike Galloway and also made contact and exchanged email and phone conversations with the only lab in the U.S., Beta Analytic, based out of Florida and Europe, that does systematic testing for ASTM D 6866. The useful feedback and documentation they have provided to me, I will include in my next writeup on this.

There are a number of other details that I will try to mention in my testimony or include in my follow-up writing.

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Today’s council meeting should be a real doozie as the DPW will be forced to explain why they spent a few days short of a full year futzing around and coming up with nothing while Brad spent a few days doing their job for them.

But one thing we will probably not find out today is exactly who approached County Attorney Al Castillo to try to go behind closed doors apparently to sabotage the ordinance’s implementation.

Castillo has refused to say who it was but we sure would like to ask if might have been a certain councilmember who has recused himself due to a conflict of interest due to his employment with Big Save Markets,.

A number of readers have suggested and even alleged this is true but none could provide definitive evidence as to whether Mr. Kawakami used his position as a councilperson to influence the county attorney to put a monkey wrench in the works- which might be seen as a use his position to further a private interest in violation of the county’s code of ethics.

We’re certainly not saying we have any knowledge that it was Kawakami who brought the matter to Castillo’s attention but we’d love to have the both of them answer the question as to whether they have discussed implementation of the bill, especially given Kawakami’s recusal on the matter.

PANTS ON FIRE

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.

GUARD DOG AND YAPPERS

GUARD DOG AND YAPPERS : Though yesterday’s Hawai`i Supreme Court ruling that “Act 2” was created for “a class of one” was obvious all along to anyone but the politically deaf, dumb and blind, at the time of the hearing many doubted whether the justices would see that.

Sure they could have looked at the fact that the original draft was written with the words “Hawai`i Superferry (HSf)” but dropped that and inserted the words “high capacity ferry” instead in the final version. Or they could have just read the transcripts of the special legislative session and reached the same conclusion.

But instead, in the final analysis all they had to look at was something that came to light only after the hearing- that the fact of the sunset date made the addition into service of another vessel meeting the description, a physical impossibility.

And that fact- not well expounded upon in the case filed by Maui Tomorrow (MT) and the Sierra Club (SC) which relied more on the environmental protections in the Hawai`i State Constitution- came to light only through the intrepid efforts of indefatigable Superferry opponent Brad Parsons who spent a few week going through Act 2 with a fine tooth comb looking for a smoking gun.

And he found out that it was staring us all right in the face all along.

We followed his almost daily reports trying to put together the facts that might add to the case but, we admit, we doubted that anyone would listen to whatever he came up with.

That is until one day when the latest installment of his work arrived in our inbox peaking our ears.

Parsons was working on the section showing how it would have been almost impossible to have another company use the law to buy a boat fitting the description to ever start service.

That work seemed to lead to one point that had been escaping scrutiny. Even if somehow another company could have used the law to enter the market someday- a questionable proposition to begin with- there’s no way they could have done it by the “sunset date” in the bill.

After a brief email exchange, Parsons made the case that it wasn’t just virtually impossible but was fully impossible for there to be another ferry covered by the legislation before the expiration date the legislation contained.

Certainly there was a lot of useless and even just plain wrong information from Superferry opponents along the way which was used to try discredit the opposition. The book “The Superferry Chronicles” was a plethora of misinformation such as the now ubiquitously reported number of 1500 protesters in Nawiliwili (no one who was there thinks there were any more than 1000 and even that might be high) to the repeated claim that “Act 2” was named that by Lingle to say that the Supreme Court’s original ruling was only “Act 1” in the Superferry drama yet to be written (it was actually the second “act” passed during the special session, the first being a legally mandated confirmation of a Lingle appointee) not to mention the claim that it wasn’t until late in the game that the project suddenly, somehow morphed into a military boondoggle (documents going back to 2001 uncovered by Hope Kalai show military involvement in the ferry project’s conception through U.S. Senator Daniel Inouye’s “ranking member” position on the Senate Armed Forces Appropriation Committee).

If it weren’t for articles written by people like Joan Conrow, Dan Hempey and Haunani Trask it might not have any credible information at all.

But our hero today is Parsons who dealt with the facts and worked his butt off until he found the one fact that would make all the others pale in comparison. Parsons kept at the facts and, in the final analysis there’s a good probability that his work was indeed recognized and formed the basis for yesterday’s Supreme Court decision.

It stands up while the attempts by some to blow off facts in favor of sloppily written pseudo histories- which well could have derailed opposition and eroded the credibility of those who actually researched the matter via original documentation rather than through sensationalization of a cursory examination of newspaper reports- have done little but provide a potential for a guilt by association discrediting of the work of Parson’s and other actual, credible researchers.

None of this of course would have been possible without the efforts of Isaac Hall and his supporters in MT and SC. But without people like Parsons and many others who stuck to the facts and knew they should be enough, we wouldn’t be here today.

And where we are today is that the HSf’s “surprise” decision to voluntarily stop operations is most likely because they have completed their military “mission” and now will be able to recoup their losses by selling the boat and suing the state for whatever they lost.

Too bad we can’t get clowns like Governor Lingle and the legislators who supported Act 2 to pay for it out of their pockets. And it’s too bad we can’t get all those voters who ignored the facts and kept the circus in town to share in that cost.