§ 21.64.140. Regulations for the location and siting of genetic engineering experiments.

A.

Purpose: The purpose of this Section is to establish a uniform County regulatory policy, standards, and permitting process pertaining to the location and siting of experiments involving the release of genetically engineered microorganisms into the environment with the end in view that public health and safety and the environment are afforded the maximum degree of protection. It is not the intent of this Section to enter the regulatory sphere occupied by the federal and State government; rather, it is the ntent of this Section to use land use plans and zoning ordinances as primary guides in the determination of proper location for the conduct of genetic engineering experiments.

B.

Applicability: This Section is applicable to any and all experiments involving the release of genetically engineered microorganisms into the open environment conducted by any person or agency. It is not applicable where the experiment proposed has already been conducted without any adverse impacts on public health and safety and the environment, on a crop within the same crop grouping, as defined in 40 C.F.R. 180.34, within the United States.

C.

Findings:

1.

Experiments involving the release of genetically engineered microorganisms into the open environment may pose risks to public health, safety, and the environment not adequately addressed under current federal and State regulations.

2.

While the control of the release of genetically engineered microorganisms into the environment may generally be considered the responsibility of federal and State governments, it is local government that may initially be called upon to respond to any adverse effects to public health, safety, and the environment, resulting from the release of such microorganisms into the open environment.

3.

In order for local government to have the capacity to provide appropriate response in such instances, it is, at a minimum, necessary for local government to be able to determine sites within its jurisdiction appropriate for the conduct of such experiments within the parameters of its land use prerogatives.

4.

In order to protect the public health, safety, and the environment, it is in the public interest for local government to establish rules and regulations addressing certain land use aspects of such experiments, including suitability of test sites and their compatibility with surrounding land uses.

D.

Definitions:

1.

"Agency" means any local agency as defined in Section 53090 of the government Code. It does not include the federal government or any agencies thereof.

2.

"DNA" means deoxyribonucleic acid.

3.

"Genetically engineered microorganisms" means microorganisms including bacteria, fungi, protozoa and viruses, created or modified by recombinant (rDNA) technology which are nonpathogenetic to humans and animals.

4.

"Genetic engineering" means a process or technology employed whereby the hereditary apparatus of a living cell is altered, modified, or changed so that the cell can produce more or different chemicals or perform completely new functions.

5.

"In vitro" means, literally, in glass. This pertains to biological reactions taking place in an artificial apparatus; sometimes used to include growth of cells from multicellular organisms under cell culture conditions.

6.

"Open environment" means any unenclosed area or area in the open or place outside a building or shelter.

7.

"Person" means any individual, firm, partnership, trust, corporation, company, estate, public or private institution, association, organization, or group, and any representative, agent, or agency of any of the foregoing.

8.

"Recombinant DNA (rDNA)" means the hybrid DNA produced by joining or deleting pieces of DNA from the same or different organisms or synthetic DNA from the same or different organisms or synthetic DNA together in vitro.

9.

"Release" means to intentionally or deliberately discharge, emit, or liberate any genetically engineered microorganism into the open environment.

E.

Regulations:

1.

Genetic engineering experiments are an allowed use on properties designated by the Monterey County General Plan, area plans or coastal land use plans as Farmlands, Permanent Grazing, Rural Grazing, Agricultural Conservation or Agricultural Preservation, except as provided in subsection E.2. below and provided such experiments have been approved by the Agricultural Commissioner.

2.

No person or agency shall conduct experiments involving the release of genetically engineered microorganisms into the open environment within one hundred (100) feet of an occupied structure without first obtaining a Use Permit pursuant to Chapter 21.74 of this Title. Chapter 21.74 shall govern all matters relating to Use Permits for such experiments except as provided for in this Section. A Permit Committee comprised of the Director of Environmental Health, Agricultural Commissioner and Director of Planning shall have the power to hear and decide applications for, and issue such Use Permits,

3.

No application for a Use Permit may be considered unless the applicant demonstrates that he/she has been granted the necessary permit to conduct such experiments by the appropriate federal and State agencies at the time of the filing of the application.

4.

All Use Permits for experiments involving the release of genetically engineered microorganisms shall require environmental review pursuant to the California Environmental Quality Act and the guidelines adopted by the County of Monterey. Such Use Permits may not be categorically exempt.

5.

All Use Permit applications shall be accompanied by all necessary forms, plans and supporting information deemed necessary by the Director of Planning, the Director of Environmental Health and the Agricultural Commissioner to consider the Use Permit application complete. Such information shall include at the minimum:

a.

A site plan showing in sufficient detail and scale:

i.

the size of the property proposed for the use;

ii.

the current use of the property;

b.

Copies of all approved State and federal permits for the use;

c.

Copies of all information submitted to State and federal agencies, except materials and information considered to be "trade secrets";

d.

Information relative to the type of microorganism to be used;

e.

Plans and measures for the control of public access and trespass on the subject site;

f.

Measures for the protection of surface and groundwater;

g.

Measures for vector control;

h.

Measures for control of airborne materials from the site;

i.

Measures proposed for meeting potential liability.

6.

Upon the application being deemed complete, it shall be submitted to the Monterey County Agricultural Advisory Committee for a report and recommendation prior to consideration by the Permit Committee.

7.

The Permit Committee may impose such conditions as it deems necessary to protect the public health, safety and the environment.

8.

The decision of the Permit Committee may be appealed to the Board of Supervisors pursuant to Chapter 21.80 of this title.

F.

Financial Assurances and Indemnification:

1.

Each permit issued pursuant to this Section shall have as a condition of the permit, a requirement that the applicant provide financial assurances that are necessary to respond adequately to damage claims arising from activities permitted under this Chapter. The financial assurances shall be in the form of a trust fund, surety bond, letter of credit, insurance, or other equivalent financial arrangement in a form and in amounts acceptable to the County.

2.

Each permit issued pursuant to this Section shall have, as a condition of the permit, a requirement that the applicant indemnify and hold harmless the County and its officers, agents, and employees from actions or claims of any description brought on account of any injury or damages sustained, including death, by any person or property resulting from the issuance of the permit and the conduct of the activities or experiments authorized under said permit.

C.

Severability: If any section, subsection, sentence, clause, or phrase of this Section is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Section. The Board of Supervisors hereby declares that it would have passed this Section and each section, subsection, sentence, clause, and phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses, or phrases may be declared invalid.

(Ord. 3849 § 1, 1995)

(Ord. No. 5135, § 135, 7-7-2009)