08
Aug
Failure of Hawai’i to Enforce Pesticide Law Sparks Request that EPA Revoke State’s Authority
(Beyond Pesticides, August 8, 2016) Last week, the Environmental Protection Agency (EPA) received a letter from Earthjustice requesting that the agency notify the Hawaii State Department of Agriculture (HDOA) of its chronic failure to meet statutory duties for pesticides regulation and enforcement under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and, if timely corrections are not made, to rescind HDOA’s primary enforcement authority completely. Earthjustice has asked EPA to immediately notify HDOA that it has failed to carry out its responsibilities, and, pursuant to FIFRA, to give the agency 90 days to correct its overwhelming shortcomings. If the problems, which include failure to enforce pesticide use violations and a large backlog of pesticide complaints and investigations dating back to as early as 2008, are not corrected and addressed within 90 days, Earthjustice requests 
that EPA revoke HDOA’s primary enforcement authority indefinitely. In the event that HDOA’s authority to regulate is stripped, EPA would then take over the responsibility for enforcing pesticide use violations occurring within the state.
Under FIFRA, the federal statutory authority for pesticide approval and use, EPA may delegate to a state primary responsibility for enforcing pesticide use violations if thestate has adequate pesticide laws and adequate procedures for carrying out the law, or enters into a cooperative agreement with EPA. The state must have procedures that allow for quick and effective prevention, discovery, and prosecution of pesticide use violations. EPA regulations require that a state with primary enforcement authority have sufficient personnel and financial resources to maintain an effective compliance monitoring program, and must pursue enforcement actions promptly. EPA and Hawaii currently have a cooperative agreement giving Hawaii those responsibilities.
But EPA has been warning HDOA repeatedly since at least 2012 that HDOA has failed to adequately enforce pesticide laws and has allowed an unacceptable backlog of inspection files to grow. Instead of increasing its staff, HDOA’s enforcement staff has been steadily shrinking, and not surprisingly, the number of inspections and enforcement actions has been decreasing every year. EPA’s most recent annual review of HDOA’s performance noted there were about 700 inspection files in need of review, some dating back to 2008. As a result, there have not only been enforcement delays but some cases can no longer be enforced because the statute of limitations expired while files sat on HDOA’s desk. At the same time, the number of complaints about pesticide misuse has been increasing, along with public frustration and loss of confidence.
HDOA is not the only government body in Hawaii failing to take action when it comes to addressing pesticide issues plaguing the state. This past March, a draft version of a report commissioned by Hawaii and Kauai County found that Hawaii should dramatically improve its regulation of pesticide use and study its impacts fell on deaf ears in the state legislature. Additionally, in 2015 the Hawaii state House agriculture committee rejected a bill that sought to impose buffer zones for large agricultural companies that spray restricted-use pesticides near schools and other sensitive areas, once again failing to act to protect the interests of Hawaiian citizens from toxic pesticide use. The bill had strong support from the Hawaii chapter of the national nonprofit Center for Food Safety (CFS), as well as a strong backing from neighbor island residents, but industry efforts once again proved overwhelmingly powerful in obstructing the bill.
In light of continuing inaction at the state level, several local governments took action to try to protect their residents from harmful pesticide practices across the islands. Maui, Kauai, and the Big Island all passed laws to regulate the seed industry, but a federal district court judge ruled that Hawaiian counties do not have that power, citing state preemption in his reasoning. That ruling followed a similar federal court decision handed down in August 2014 that overruled a Kauai ordinance requiring annual reporting of genetically engineered organisms. Both of those decisions were unfortunate, as state preemption laws effectively deny local residents and decision makers their democratic right to better protection when a community decides that minimum standards set by state and federal law are insufficient, and in the case of Hawaii, often unenforced.
Paul Achitoff, Earthjustice’s managing attorney in Hawaii, noted that the lack of enforcement is consistent with the Department of Agriculture’s general failure to take seriously its duty to regulate pesticides in Hawaii and protect the public: “The Department of Agriculture has been ignoring for years repeated warnings from EPA that it’s not keeping up with its responsibility to investigate pesticide complaints and enforce the law against violators. So pesticide users now have good reason to think they can get away with carelessness, or even ignoring the law. And why shouldn’t they, when the Department cuts its enforcement staff instead of increasing it, and allows the statute of limitations to run out, preventing any enforcement at all?”
Mr. Achitoff pointed out, “While agrochemical companies have been arguing in court that only the State, and not the counties, have the power to protect the public from pesticide drift and contamination, the Department of Agriculture has done nothing to use the authority it has. In fact, the Department’s Chair recently scoffed at the findings and recommendations of KauaÊ»i County’s Joint Fact Finding report that that toxic chemicals are finding their way into our air, water, and soils in violation of the law, and that HawaiÊ»i’s pesticide enforcement and monitoring are inadequate. It’s no wonder that many believe the State is protecting the agrochemical industry rather than the public.”
Residents living on the Hawaiian Islands are subject to a particularly pronounced form of environmental assault, as the state’s premiere growing conditions have made it a prime target for agrichemical companies to test new, experimental forms of genetically engineered (GE) crops. Data released last year reveals that high levels of restricted use pesticides, in some cases almost double the pounds per acre average of other states, are being used in Kauai County. According to the Center for Food Safety, in 2014 alone, there were 1,381 field test sites in Hawaii, compared to only 178 sites in California- a large agricultural state. Most of these crops are engineered to resist herbicides and pesticides. Testing these crops means repeated spraying of dangerous chemicals near neighborhoods, schools, and waterways. Residents of the Hawaiian Islands that live, work, or go to school near these fields are subject to incessant pesticide spraying, as the climate provides a year-round growing season for GE crops. A May 2014 report found 25 herbicides, 11 insecticides and 6 fungicides in Hawaii’s waterways, underscoring resident concerns for both the land and human health.
Beyond Pesticides continues to be an ardent supporter of common sense protections from pesticides and their associated use on GE crops. If you too support these issues, please visit our website to learn more about the issues and find ways to get involved in your local community.
Source: Earthjustice Press Release
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
