Even as legislators consider more stringent regulations, the state Department of Agriculture hasn’t complied with a law passed in 2013 that requires it to post sales records for restricted-use pesticides on its website.

State officials say they’re worried that they will be sued if the information is released. And they contend that the information can be kept confidential because its release would make agricultural companies less likely to accurately report pesticide use.

Thomas Matsuda, who leads the agency’s pesticide branch, said the agency hasn’t implemented the law because of legal issues related to confidential business information and privacy.

“We wanted to release something but we can’t do that, we can’t be reckless,” Matsuda said, adding he hoped the information could be posted within the next three months. “I don’t want the state being sued.”

Gate adjacent to Waialua High School with road leading to Pioneer Hi-Bred International Inc. for Anita's story.  13 jan 2015. photograph Cory lum/Civil Beat

Pioneer Hi-Bred International Inc. on the North Shore of Oahu is one large agricultural business operating near a sensitive site — Waialua High School.

Cory Lum/Civil Beat

Anne Lopez, spokeswoman for the attorney general, said in an email that the proprietary information includes who the pesticide dealers’ customers are and what exactly they’re buying; the mix of pesticides used and when and how much is used.

She said the information is protected under an exemption to the state’s public records law that shields “government records that must be confidential to avoid frustration of a legitimate government objective.”

That objective is having the industry comply with reporting requirements. Lopez said that if the companies believe the information would be made public, “they would be less inclined to either fully comply or accurately comply” with the disclosure law.

As a result, the Legislature’s objective — to make the information public — hasn’t been met.

Paul Achitoff, an attorney with the nonprofit law firm Earthjustice, called the state’s explanation “nonsense.”

“They’re simply reluctant to make the chemical companies do what the law says,” Achitoff said.

When the Legislature passed Act 105 in 2013, it was a watered-down measure of a bill that had been strongly opposed by the local seed industry. Rep. Dee Morikawa from Kauai sponsored the measure in response to concerns about pesticide spraying by large agricultural companies such as Syngenta in her district.

State regulation of pesticide use has become an even more pressing issue after a federal judge ruled last fall that Kauai County and Hawaii County don’t have the authority to regulate agriculture. Earlier this month, the state Senate passed Senate Bill 1037 to require farms to submit monthly pesticide disclosure reports.

Sen. Josh Green from the Big Island, who introduced SB 1037 this session, said the agency’s failure to implement the prior law is a sign that it doesn’t take pesticide regulation as seriously as it should.

“Who’s in charge, the chemical companies or the DOA?” Green said, adding that he hopes someone will sue if the agency continues to neglect the law. “They need to man up and take control of this issue because the people want to know. If they live in fear of lawsuits, they’ll be paralyzed.”

Senator Josh Green listens to Rachel Wong speak during meeting.  5 march 2015. photograph Cory Lum/Civil Beat

Sen. Josh Green wants to require even more disclosure even as he calls for the state to enforce the law it already has on the books.

Cory Lum/Civil Beat

Waiting on AG’s Office

When Morikawa introduced Act 105 — then known as House Bill 673 — it was an attempt to provide a broad swath of information to residents about what pesticides are being sprayed and where.

Initially the bill sought to require an annual list of all pesticides used in each county by type and volume; a summary of health complaints related to pesticide use reported to the department and the results of those investigations; an analysis of trends in pesticide use; an assessment of the accuracy of the reported pesticide use data; and an accounting of the amount and type of pesticides imported into the state and the amount and type of pesticides reported as being used in the state.

The first draft of the measure also mandated that pesticide users submit detailed disclosure reports. Stores that sell pesticides would also have had to report the annual volume of each pesticide sold.

“The Department of Agriculture seems to be letting the industry tell them how to comply with the law. There’s just no oversight, there’s no accountability.” — Gary Hooser, Kauai County Council member

But by the time HB 673 passed the Legislature, it simply required the legislative reference bureau to conduct a study, and ordered the Department of Agriculture to publish on its website the public information contained in all restricted use pesticide records, reports, or forms submitted to the department for all uses except structural pest control.

Matsuda said the limited number of pesticide dealers per island means that publishing information on the sales of restricted-use pesticides could reveal confidential business information. He also said there are concerns about publishing the names of company employees who have purchased the pesticides because some have already received threats from activists who are opposed to pesticide use.

The agency has proposed several options for implementing the law, but is awaiting final approval from the Attorney General’s Office.

Lopez from the AG’s Office said the state has been discussing the law with industry interests and must continue to do so.

“The process of reviewing and redacting these documents is complex and time-consuming,” she wrote. “HDOA, the Department of the Attorney General, in consultation with the Office of Information Practices when necessary, and the businesses whose potentially confidential information may be exposed are all involved. The result is that it takes time to complete the work.”

Matsuda said that he hopes to make the information available within the next three months. In the meantime, Matsuda suggested that residents ask companies directly what pesticides they are using.

Gary Hooser. editorial Board.  2 march 2015. photograph Cory Lum/Civil Beat

Kauai Councilman Gary Hooser pushed successfully for a county measure requiring pesticide disclosure information, only to see it struck down in court. He says the current voluntary disclosure system on Kauai is insufficient.

Cory Lum/Civil Beat

‘A 21st Century Issue That’s Not Going Away’

Morikawa doesn’t seem concerned by the department’s failure to comply with the law she sponsored. She noted that several months after it was passed, the Kauai Good Neighbor Program went into effect, in which five agricultural companies voluntarily report the type of pesticides applied on their Kauai fields and abide by 100-foot buffer zones.

“I think when the department has more personnel in place they should be able to do more,” Morikawa said. “I’m confident they’re moving in that direction.”

But Kauai Councilman Gary Hooser said the Good Neighbor Program is far from enough.

Hooser introduced a county measure known as Bill 2491, that sought to require large agricultural companies to abide by buffer zones and stricter disclosure rules. Although Bill 2491 passed, it was struck down in court.

“We wanted to release something but we can’t do that, we can’t be reckless. I don’t want the state being sued.” — Thomas Matsuda, head of Department of Agriculture’s pesticide branch

Hooser said there is a perception that large agricultural companies are highly regulated, but the reality is the department isn’t enforcing the law.

“The Department of Agriculture seems to be letting the industry tell them how to comply with the law,” Hooser said. “There’s just no oversight, there’s no accountability.”

The department also has a backlog in reviewing pesticide inspection reports to ensure companies are complying with existing pesticide regulations.

Matsuda blames the backlog on a lack of funding, and said if SB 1037 passes, the agency will need even more resources to comply.

Green said the department’s failure to comply with existing laws doesn’t dissuade him from trying to add another. Senate Bill 1037 would require all farms to submit monthly reports on all pesticides used the preceding month and where they were applied. The measure passed the Senate and is awaiting a hearing from the House committees on the environment and agriculture.

“They need to be aware that this is a 21st century issue that’s not going away,” Green said. “We have to push the edge of the envelope to make sure we have a healthy environment.”

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