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Thursday, December 18, 2014

The Birth of Life of the Land

By Henry Curtis

In the spring of 1995 the Honolulu Star-Bulletin ran three Special Sections over a three week period covering four decades of Hawaii. 

In the March 14, 1995 Special Section the paper wrote an article, “Key leaders left mark on the state during Hawaii’s growth years.”

The effect a person can have on a place is immeasurable. Here are the 10 people or organizations who, from 1965 to 1975, helped make Hawaii what it is today.”

Those honorable mentioned but not making the list were such notables as Henry Kaiser, Frank Fasi, William S. Richardson court, Myron B. Thompson, Robert Oshiro and George Ariyoshi.

Their list of key players contained 6 individuals -- John Burns, Tom Gill, George Helm, Dan Inouye, Patsy Mink and Ah Quon McElrath; and 4 organizations -- Land Use Commission, Bishop Estate, Unions and Life of the Land.

Life of the Land was founded in February 1970 and named in September 1970. 

Life of the Land made the top ten list even though the organization existed for less than half of the 1965-75 decade.

Life of the Land burst onto the scene in February 1970, two months before the first Earth Day, by a group of young mothers who were appalled that raw sewage was being dumped in the ocean. 

They went down to Waikiki beach with brochures that asked: Do you know what you are swimming in?

There were no waste water treatment facilities in Hawai`i at that time. This direct action led to the first sewage treatment plant at Sand Island.

Then men joined the organization. They needed a name, a structure, and leaders. The two final names considered were Life of the Land and the Mad Marching Mothers of Manoa.

This was the era of Tony Hodges, Gavin Daws (co-author of Land and Power in Hawai`i) and Sophie Ann Aoki (daughter of Rev. Mitsuo Aoki).

The President's Water Pollution Control Advisory Board Report, Honolulu, Hawaii June 7-10, 1971: “On June 7, the Board made an inspection tour of the Island of Oahu including Pearl Harbor. Pollution problems were viewed from the lookouts at Punchbowl and Nuuanu Pali, and from two Marine Corps heliocopters [sic].

The Board viewed raw sewage being discharged from Honolulu's 50 million-gallon-per-day outfall off Sand Island, a short distance from the Honolulu shoreline and the beaches of Waikiki; sediment and soil erosion problems in Kaneohe Bay; and oil and sewage mixing with silt in Pearl Harbor.”

“On June 8, the Board traveled by plane to Hilo ...The primary pollution problem emanating from the sugar industry is the dumping of mud, silt and cane trash from sugar cane washing operations into the ocean. This is affecting beaches, streams, fishing grounds and coral reefs throughout the State.”

“Mr. Tony Hodges, President, Life of the Land ...stated that the State of Hawaii has not enforced, is not enforcing, and will not enforce the water quality standards, and the standards will not be enforced until the Federal Government intervenes. ...Give citizens the right to sue officials to compel enforcement of anti-pollution laws.”

Life of the Land was cited in newspapers and magazines throughout the country.

Life of the Land is waging a vigorous fight against polluters in and out of court.” Stewart Udall. 1970. (Secretary of the Interior (1961-1969) under Presidents Kennedy and Johnson)

Newsweek (March 1, 1971): “Life of the Land filed a flurry of lawsuits aimed at pressuring the state to enforce its pollution laws.”

President Richard Nixon signed into law the National Environmental Policy Act (NEPA) which required a federal Environmental Impact Statement (EIS) for projects involving the federal government in January 1970.

Hawai`i adopted the EIS process by a Governor’s Executive Order in 1973 and then by law in 1974. At that time, all of Hawaii’s lawyers were educated abroad in U.S. law schools.

The UH Law School opened its doors in the fall of 1973. The first set of second year Hawai`i-trained law students became law interns in the summer of 1975. The first class graduated in the spring of 1976.

In 1971 Life of the Land started its Environmental Research and Law Program (ERLP).

Supplementing the half-dozen plus legal team of attorneys were law interns (usually law students who have completed 2 of their 3 years at law school). The ERLP started with 9 law interns in the summer of 1971.

In 1972 eighty law students applied and nineteen law interns were accepted.  

Interns had to pay their own way to Hawai`i.

The ERLP was Hawaii’s first public interest law firm. The ERLP attorneys represented several Hawaiian, community, and non-profit organizations in legal issues.

The ERLP legal team was larger than either EarthJustice’s or Native Hawaiian Legal Corporation s today.

Air and water pollution were much more extensive in the 1960s that it is today. Part of the pollution came from leaded gas.

Wall Street Journal (April 5, 1972. Lead story, p A1): “When the southerly kona winds blow onto shore trapping auto exhaust, the mountains of this island of Oahu disappear in the haze, and this city, famed for its tropical splendor, is blanketed in yellow smog. The Pacific Ocean nearby isn’t so pretty either.

Only 3,500 feet from shore and less than four miles from Waikiki Beach, 55 million gallons of raw sewage churn into the sea daily, discoloring and polluting the water. ...

Lawsuits and lobbying efforts by Life of the Land are forcing the state health department and the administration of Gov. John Burns to devote increasing time to pollution matters.”

Life of the Land intervened in the 1971 HECO Rate Case and won it on appeal to the Hawaii Supreme Court. Life of the Land sued the Navy over the bombing of Kaho`olawe and got the first military EIS in the nation. Life of the Land argued an EIS case before the U.S. Supreme Court.

Hawaii Business News (Cover Story, November 1973): “Ecology itself has rapidly become a national issue, about as hard to oppose as motherhood or the flag. But while most people agree that something must be done about guarding the nation’s environment, few agree on priorities or even on a definition of the problems.

Because ecology has no clear manifesto, it has spawned all sorts of groups and movements. Often this splintering has made much of the protest ineffective.

Not so in the case of Life of the Land, which in Hawaii has provided a focal point for a widely diverse group of characters and forces – a polarizing force on the local scene that is disrupting long established political, economic and social alignments.

With its bold, sometimes impertinently aggressive tactics LOL has displayed a persistent knack of hitting the State’s governmental and business establishment where it hurts – in the pocketbook. ...

The remarkable thing about Life of the Land is the fact that it has succeeded as well as it has against such a broad and potent array of opposition.”

Much of Hawai`i’s land use case law was written as a result of Life of the Land’s cases.

Star-Bulletin Editorial (May 13, 1975): “Useful Gadfly. ...Life of the Land fills a near-vacuum in the State in terms of a citizens’ lobby to challenge the establishment’s policy decisions ...particularly in the all-important areas of land use and environmental protect."

In 1976 Tony Hodges left the organization. The UH Law School graduated its first class.

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The Bombing of Kaho`olawe

By Henry Curtis

The day after Japan’s attack on Pearl Harbor in 1941 the Navy declared martial law on Kaho`olawe. Residents were forced to leave. 

The Navy used Kaho‘olawe as a target ranch from 1941 through 1990. The Navy assaulted the island with napalm, mock atomic warheads, bombs and rockets.

From 1942-1943, American submarine commanders tested torpedoes by firing them at the shoreline cliffs at Kanapou. Additional torpedoes were test-fired from 1943 to the 1960’s,” according to the Parsons-UXB Joint Venture Final Summary (2004). 

The Report noted that the "’Sailor Hat’ tests were conducted on Kaho`olawe. Three tests of 500 tons of TNT each were detonated to simulate the blast effects of nuclear weapons on shipboard weapon systems.”

Many of the unexploded warheads targeted for land landed in the ocean.

In 1969 protests ensued when a five-hundred-pound bomb was found over seven miles across the channel on Maui pasture land leased to then Maui Mayor Elmer Carvalho.

Congress passed the National Environmental Policy Act (NEPA) in 1969.  Richard Nixon signed the law in January 1970. NEPA required federal Environmental Impact Statements for projects involving federal land or money. It was not clear whether NEPA applied to the military.

In 1970 University of Hawaii Institute of Marine Biology researchers suggested that Kahoolawe be commercialized with a  thermonuclear power plant and aquaculture.

On July 29, 1971 Life of the Land and Maui Mayor Carvalho sued to stop the bombing. They sought an environmental impact statement (EIS) for the navy's use of the island. The suit named Secretary of the Defense Laird, Secretary of the Navy Chafee and Rear Admiral Hayward.

Peter MacDonald wrote Fixed in Time: A Brief History of Kahoolawe. "By November 1971, the Department of Defense filed a statement which gave facts and figures relative to the total annual bomb tonnages dropped on Kahoolawe since 1967. Also, a short discussion was given concerning the island's indigenous plants. … Federal Judge C. Nils Tavares ruled that the Navy and the Department of Defense had until January 20, 1972 to submit more information."

The Navy released a hastily prepared EIS in 1972.

Mansel G. Blackford has written articles on Kaho`olawe, including “Environmental Justice, Native Rights, Tourism, and Opposition to Military Control: The Case of Kaho'olawe” (2004):

“Navy officials prepared an environmental impact statement in early 1972 in response to the lawsuit. The statement admitted that shelling and bombing hurt Kaho'olawe but highlighted the perceived "beneficial environmental effects of military use," ranging from the pulverization of the island's soil, which made it amenable to the growth of vegetation, to the accumulation of rain runoff in bomb craters. 

Navy representatives argued that "the mineral content per acre of the target sites, from [shell and bomb] fragmentations, might someday prove economically worthwhile from the standpoint of salvage and retrieval of some of the metallic alloy material involved." 

"Unexploded dud ordnance" did constitute "a major problem," but one "without noticeably adverse effect on the human population spread within the Hawaiian archipelago." 

In short, according to the navy, "thirty years of use of the island as a target site" had "slightly improved the balance of the island's ecosystems."

In May 1972, the Navy submitted a report with Federal Judge C. Nils Tavares. "The environmental effect of weapon exercises upon the ecology or ecological system of other nearby islands of the Hawaiian archipelago will remain negligible." 

Judge Tavares dismissed the suit on May 16, 1972.

Kanaka Maoli Kahu Charles ("Uncle Charlie") Kauluwehi Maxwell, Sr. and others founded the Protect Kaho’olawe ‘Ohana (PKO) in 1974-75 and occupied the island in 1976 during America's Bicentennial.

The nine initial occupiers of Kaho‘olawe were Dr. Emmet Aluli, Kimo Aluli, George Helm, Ian Lind, Ellen Miles, Stephen Morse, Kawaipuna Prejan, Walter Ritte Jr., and Karla Villalba.

During efforts to reclaim the island, Kimo Mitchell and George Helm disappeared at sea off Kaho'olawe in 1977.

In 1977 "the PKO won a court victory when federal judge Richard Wong ruled that the navy violated both the National Environmental Policy Act (NEPA) and an executive order that required the preservation of historic sites."

Archeological studies conducted by the navy in 1976-80 found 544 archaeological sites dating from 100 A.D. These sites included shrines, quarries, and petroglyphs. 

The government approved funding to start cleaning up the island in 1993 and the following year Kaho'olawe was conveyed back to the State of Hawai'i to be managed by the Kaho'olawe Island Reserve Commission (KIRC).

In 1993, Hawaii Senator Daniel Inouye secured funding for cleaning up the island.
While visiting the Senator in his office, Senator Inouye asked me to guess how many hearings were required to securing the funding. I said I didn’t know. The Senator’s answer was “zero.” He made one phone call.

Congress allocated $400 million toward cleanup. The Hawaiian Legislature established the Kaho`olawe Island Reserve (the island with a two-mile ocean boundary) and established the Kaho`olawe Island Reserve Commission (KIRC) to manage it.

The Parsons-UXB Joint Venture Final Summary (2004) noted that “the detection of subsurface ordnance on Kaho’olawe was complicated by the high (and varying) concentrations of iron in Kaho`olawe’s basaltic rock and soil. 

Traditional magnetometer metal detectors had to be discarded in favor of electromagnetic detectors (EM). EM detectors locate ordnance by reading the magnetic field generated by electrical currents passing through buried metals.”

“Subsurface clearance operations consisted of a geophysical detection to located possible subsurface UXO and an UXO excavation to uncover and evaluate these anomalies.”

 Only a portion of the land and none of the water has been cleared of ordinances. Most of the land that has been cleared had only its surface cleared. Continued erosion has allowed buried active warheads to surface.

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The Right to Sue

By Henry Curtis

The modern air conditioner was developed in the early 1800s but became popular in the 1950s and 1960s.

During the 1950s and 1960s consumers were urged to increase their use of electricity. 

Live Better Electrically (LBE) was launched in March 1956. The industry-wide campaign was supported by 180 electrical manufacturers and 300 electric utilities.

The Southwest Museum of Engineering, Communications and Computation has posted a historical document with historical advertisements.

 “The campaign got then-actor Ronald Reagan, the popular host of ‘General Electric Theater,’ to take his television audience on a series of tours of his and wife Nancy's all-electric Pacific Palisades home.”

“In October 1957, LBE launched the "Medallion Homes" campaign, which sought to sell 20,000 all-electric homes nationwide by 1958, 100,000 by 1960 and 970,000 by 1970.”

The electric industry took off. Profits soared. Rates were low. Regulators did little.

 The Gas Company (GASCO) and Hawaiian Electric Company (HECO) filed requests with the Hawai`i Public Utilities Commission to have ratepayers finance their advertising campaigns encouraging people to use more electricity.

The Commission approved these requests in 1970 and 1972, respectively.

Life of the Land had filed a Motion to Intervene in the HECO case. The intervention was denied but Life of the Land was permitted to ask questions through the Commission staff. This pre-dated the separation of the Commission and the Consumer Advocate.

Life of the Land convinced the staff that requiring ratepayers to pay for advertisement to promote electricity over gas was a bad idea. But the Commission approved it.

Life of the Land appealed. The Commission challenged the right of Life of the Land to appeal arguing that since they were not a party in the proceedings they had no right to appeal.

Justice Benjamin Menor wrote the unanimous Hawaii Supreme Court reversing the Commission on the use of promotional advertisement:

The appellants are users of electrical energy, and two members of appellant Life of the Land, in opposing the rate increase, testified that they would be paying the higher utility rates. A ratepayer who is compelled to pay higher utility rates by agency action is a person specially, personally and adversely affected. 

The fact that he shares this additional burden with all other users does not disentitle him from challenging the results. ...

The PUC staff, however, failed to appeal the decision of the PUC with regard to the rate increase. The practical effect of denying the appellants standing here would be to silence the voice of all those who would speak in the public interest, a duty that normally resides with the PUC staff.

We hold, therefore, that where the appellants have been "aggrieved" by the action of the PUC, and where they were involved as "participants" during the agency hearings, and where the PUC staff (the agency through which they participated at the hearings) has failed to appeal the decision of the PUC, the appellants may challenge the order of the PUC in this court. We shall thus consider their appeal. ...

The appellants contend that the PUC's decision to permit HECO to include promotional expenditures in its budget for ratemaking purposes was arbitrary and unreasonable, and contrary to the best interests of the general public. The PUC staff found itself in complete agreement with the appellants on this issue ...The commission, however, approved ...

The programs due to competitive fuels are designed to attract new customers and, where possible, capture customers and usage from the Honolulu Gas Company [hereinafter GASCO], while defending against similar efforts on the part of GASCO, the electric company's sole competitor in this area. They consist mainly of allowances of payments to owners and developers who build all-electric homes and apartments and advertise them for sale as such. ...

The disturbing aspect of the PUC decision to allow expenditures for these programs is the rationale behind it. GASCO had been granted an allowance for similar promotional expenditures earlier. See Decision and Order No. 2621 (PUC of Hawaii, Aug. 31, 1970).

GASCO, in making its request, had argued that the expenses were necessary to attract customers away from Hawaiian Electric. HECO, in its present application for a rate increase, pointed to the GASCO allowance as justification for its own request. It seems apparent from the record that the PUC's decision was based on this particular argument of HECO.

The PUC has consistently failed to meet squarely the issue of the reasonableness of competitive advertising expenditures. In late 1963, the PUC ordered the opening of Docket No. 1581 for the avowed purpose of inquiring into the promotional practices of the utilities ...

On April 24, 1964, the commission issued its Order No. 1417, requiring the utilities to show cause why certain of their promotional practices should not be discontinued. To date no concrete action aimed at a final resolution of the problem has been taken by the commission. 

On the contrary, it has recently closed Docket No. 1581, thereby assuring the continuance of its practice of passing upon allowances for promotional expenditures on a case-by-case basis, and lending unwarranted validity to the circular arguments of HECO and GASCO.

One of the primary factors the PUC must take into consideration when it fixes rates is fairness to the ratepayer. Obviously, the particular type of advertising competition involved here does not benefit the ratepayer. ...

There are alternative, viable means to promote sound competition among utilities, particularly between two utility companies (HECO and GASCO) which have already established themselves in Hawaii's marketplace. Efficiency of management, technological improvements, superiority of service, and economy of costs should more properly provide the bases for any competition between them.

By basing its decision purely on the previous grant of similar expenditures to a competing utility, the PUC has failed to give adequate consideration to the interests of the ratepayer and has thereby abused its discretion. ...

Moreover, since the appliances being promoted by HECO are those generally in use during peak-load periods, it is difficult to see how HECO can argue that these expenses encourage the increase of off-peak utility loads. ...

In the face of dwindling oil supplies and spiralling costs, promotional practices which are wasteful or which only serve to fuel the energy crisis should be viewed by a regulatory agency with extreme caution.”

The Honolulu Star Bulletin Editorial (Right to Sue, May 9, 1975): “’Right-to-sue’ has always been a red flag in the environmental area. Environmentalists rally round. They see it as one of their most effective tools for stopping environmental abuse.

The Establishment cringes at its potential for harassment, delays of projects, extra costs.

As a result of a unanimous State Supreme Court decision this week, the fight may largely be settled.

A wide right to sue is now law, the Supreme Court has held. The court placed a broad interpretation on the right-to-sue privileges spelled out in the Hawaii Administrative Procedure Act ...It held that two Life of the Land officers were aggrieved parties in a Hawaiian Electric rate setting case because their bi-monthly electric bills are affected.”

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The historical legacy of soil contamination in Hawai`i

By Henry Curtis

Life of the Land played a significant role on-Department of Defense created Technical Review Committees (TRC) and Congressionally-approved Restoration Advisory Boards (RAB).

These entities were created as an interface between the military and civilian populations regarding overseeing efforts to clean up past acts of contamination.

The military went looking for contamination while the State and Counties minimized problems on non-military land. 

The military was willing to test cutting edge cleanup methods.

Life of the Land served on the Army’s Schofield TRC, the Navy’s Pearl Harbor RAB, and the Air Force’s Hickam RAB (LOL’s Henry Curtis served as the community co-chair from 1996-2005) and the Air Force’s Central Oahu RAB (which included Kahuku, Kaena, Kauai, Wake Island and the Pacific).

On most of these boards Life of the Land was the lone environmental voice.

The State of Hawai`i and the U.S. EPA were more interested in covering up the problem. Ironically, the UH Medical School was built on contaminated soil.

So was Costco and Home Depot in Iwilei. After the fact it was determined that the toxic gas buildup in the soil had to be released. That is the smell that one smells in driving in the entrance between Costco and Home Depot.

Waipio Peninsula

Homaikaia (Walker Bay) is an arm of Kaihuopala`ai (West Loch) along the western shore of Waipio Peninsula. On the north shore of Homaikaia was the 195 acre Loko Hanaloa (fish pond) which was filled in. 

On the south shore of Homaikaia was a sugar industry pesticide and fertilizer mixing area. Dioxin was used to fortify pesticides. 

The chemicals were then loaded into backpacks, trucks and planes (a local airstrip was built at the site) for spraying on fields.

The Navy had acquired the land through legal proceedings and condemnation from the John Papa `I`I Estate (which had used the area for growing sugarcane), and then leased the land to Oahu Sugar Company (OSCO) which used the area for growing sugarcane.

H. Hackfeld and Company was founded in Hawaii in 1849. The company became American Factors and then Amfac, Inc. One of the “Big Five,” the company bought Pioneer Mill, Ltd., and Oahu Sugar Company in 1961. At its peak it owned 60,000 acres and founded Liberty House.

Chicago-based JMB Realty bought Amfac in 1988. In 2002 Amfac declared Chapter 11 bankruptcy and emerged as Kaanapali Land, LLC. It owns 5,000 acres in West Maui. Its department store, Liberty House, was sold to Federated Department Stores and is now part of the Macy's chain.

Analysis of the former pesticide mixing area revealed high contamination levels. Normally, when contamination is found, one gradually moves outward from the suspected site to find out where the boundary is.

In this case, every surface, subsurface and groundwater borehole resulted in significant hits, with one site recording a dioxin concentration 1500 times above the residential remediation level (300 times above the industrial remediation level). No one calculated where the boundary was.

One DOH official said it was the most contaminated site in the U.S. west of the Rockies. For several years nothing was done about it. Eventually a fence enclosed the area. 

On a site visit, the fence was found to have been breached and bicycle tracks inside revealed that children had been playing there.

Each year DOH filed a report with the State Legislature stating that it was a high priority issue.

In a filing to the State Legislature regarding its activities for FY 2002, the Hawai`i Department of Health’s Hazard Evaluation and Emergency Response (HEER) Office stated: “Sampling at this site by the HEER Office has indicated the elevated levels of dioxins, DDE, DDT ...This site has been given a high priority ranking by the HEER Office. The responsible party has recently conducted additional sampling to characterize the extent and nature of contamination.

Kaanapali Land LLC filed its 10-Q with the U.S. Securities and Exchange Commission on March 31, 2010. “In 1998 the Hawaii Department of Health issued an order to Oahu Sugar Co to conduct an environmental site assessment. Oahu Sugar submitted a Remedial Investigation Report to the HDOH.”

Attempts at negotiating such a settlement were fruitless and Oahu Sugar received an order from EPA in March 2005 that purported to require certain testing and remediation of the site.” Oahu Sugar declared bankruptcy and Kaanapali Land LLC alleged that “the deadline for filing proofs of claim against Oahu Sugar with the bankruptcy court passed in April 2006.”

“EPA's position is that Kaanapali Land, by virtue of certain corporate actions, is jointly and severally responsible for the performance of the response actions, including, without limitation, clean-up at the site. ...Kaanapali Land believes that the U.S. Navy bears substantial liability for the site”

Kaanapali Land LLC filed a 10-K with the U.S. Securities and Exchange Commission (SEC) on March 27, 2013.

"The Company is now engaged in work at a site on the Waipio Peninsula consisting of, among other things, performing testing at the site …in the event that the EPA were to issue an order requiring remediation of the site, there can be no assurance that the cost of remediation of the site would not ultimately have a material adverse effect on the Company."

"In addition, if there is litigation regarding the site, there can be no assurance that the cost of such litigation will not be material or that such litigation will result in a judgment in favor of the Company."

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Toxic Contamination in Village Park

By Henry Curtis

A major Village Park health cluster became apparent in the 1990s.

Kids were born healthy. Mothers of first graders noticed that something was wrong. There were significant health issues and some kids had open heart surgery.

Village Park is an area of just under one square mile where 9600 people live. The population includes roughly one quarter of Waipahu.

The 2000 census indicated that the community was 58% Asian and 21% multi-racial. Whites accounted for 9% of the population.

The southern boundary is the H1. At the western edge is Kunia Road, which becomes Fort Weaver Road as it goes under the H1 heading towards Eva Beach.

There were a large number of possible culprits as to why kids were getting sick..

The reinforced underground concrete weapon bunkers of Lualualei Waikele lay just mauka of the community. The Navy could neither confirm nor deny whether nuclear weapons were stored there.

Residents could occasionally hear underground noises from the secret naval railroad tracks that transferred weapons to Pearl Harbor.

Up gradient from Village Park is Kunia. 

In 1977 Del Monte Oahu Plantation was offloading pesticides into containers right next to the drinking well when something went terribly wrong. Some 495 gallons of the pesticide ethylene dibromide went down the well.

It took the Department of Health a few years to begin testing the well. In 1994, nearly two decades after the spill occurred, the site became a Superfund site.

Therefore it was not surprising that the Hawaii Department of Health (HDOH) and the U.S. Environmental Protection Agency (EPA) couldn’t see any possible connection between the Kunia spill just upslope from the Village Park health cluster.

The Hawai`i Department of Health reacted to the Village Park cluster by doing a meaningless birth study that found nothing. The community knew this would be the case -- since the kids were born healthy.

During meetings with the EPA regarding the Kunia spill, the EPA had presented maps showing where 18,000 tons of soil had been relocated to what would be the future sites of the Village Park and Royal Kunia residential developments.

The fact that Kunia soil found its way to Village Park made sense. When Village Park was developed, the Environmental Impact Statement said the land was filled and graded. 

But when the community worried that the fill had come from the Del Monte site, the EPA produced new soil transfer maps that eliminated the Royal Kunia and Village Park deposit sites.

Meanwhile there was growing concern in Village Park since one in ten children in that subdivision had a learning disability, and on one street, three children had open-heart surgery before the age of five.

Determining the extent of toxic contamination and the threat it poses can be made more or less complex by the level of willingness of agencies to look into the issues.

The late Clifford Jamille (Chief of the Honolulu Board of Water Supply) came willingly to the community, and met with parents at their homes. He stated that the water supply was secured because it was treated. 

However, he was willing to provide before and after toxic data, and to put the information in the bills of the Village Park community.

A community group and Life of the Land secured $225K from the State Legislature for soil testing. Kudos to the Legislators who cared, people like Representatives Ken Ito, Tom Okamura, and Dwight Takamine; and Senator Carol Fukunaga.

The search for the culprit was sort of like the game battleship. It was unknown whether the contamination was in the air, land or surface water. If it was land-based it could be anywhere and at any soil depth.

Prior to testing, the DOH stated that if there were high hits of chromium they would do further tests to distinguish between chromium 3 and chromium 6, one being relatively safe, the other relatively dangerous.

A random soil sample testing was conducted at several dozen sites. The soil analysis found high levels of arsenic, chromium and dioxin.

After finding chromium, DOH stated that the community was mistaken. DOH would assume, in the absence of proof, that all the chromium was good chromium. That was a heck of an assumption.

Dioxin was looked for at only six sites. All showed significant levels of dioxin. DOH preceded to ignore the dioxin issue.

In recent years the Department of Health has streamlined the processing of business applications.

Hopefully the regulation of toxic sites and disease clusters  will also be brought into the modern era some time soon.

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Environmental Justice and the Rain Forest Palm Oil Fiasco

By Henry Curtis

The Hawaiian Constitution and the laws of Hawai`i are for the most part geographically bounded by the borders of the State of Hawai`i. 

That is to say, the government can not impose its authority beyond its borders. 

There are exceptions. 

The treatment of convicted people who are exported to out-of-state private prisons are still the kuleana of the state government.

Similarly, the government could ban imported goods produce by slave labor.

A decade ago Hawaiian Electric Company (HECO) proposed building a new power plant in Campbell Industrial park to be powered by imported palm oil.

At the time Malaysia and Indonesia produced 88% of the palm oil in the world, and accounted for 91% of the world's trade in palm oil.

The lead story in the December 5, 2006 edition of the Wall Street Journal was eye-opening. 

''Among the world's most fabled islands, Borneo --which is divided between Indonesian and Malaysia --is considered by environmentalists to be one of the last great tropical wildernesses. 

It’s home to rare and unusual species, including the wild orangutan, the clouded leopard and the Sumatran rhinoceros. ... 

Now, the palm-oil boom threatens what's left. …

As fires burn deep into the dry peat soil beneath Indonesia's forests, centuries of carbon trapped in the biomass are released into the atmosphere. 

A study presented last month at a U.N. Climate Change Conference in Nairobi showed that Indonesia is the world's third-biggest carbon emitter behind the U.S. and China, when emissions from fires and other factors are considered.''

Life of the Land intervened in the Public Utilities Commission regulatory proceeding on whether to approve the contract signed by HECO with Imperium Renewables for the importation of palm oil biodiesel.

Initially HECO and the NRDC proposed that the HECO contract need only to adhere to one third of the thirty-nine weak standards established by a pro-palm-oil trade association.

HECO would acquire palm oil from specific plantations. The owners of those plantations had to agree that they were working towards "no child labor" and "free and prior informed consent of native peoples" at those particular plantations.

The plantation owners could do whatever they wanted to at their other plantations.

A broad coalition of Hawai`i and foreign religious, cultural, environmental and community groups coalesced around the issue. 

The HECO contract was rejected by the Public Utilities Commission.

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The Struggle to Protect Wa`ahila Ridge

By Henry Curtis

The widest and deepest utility fight in Hawai`i was the proposal by Hawaiian Electric Company (HECO) proposal to build the Kamoku-Pukele 138 kilovolt (kV) Transmission Line.

HECO sought to build a high voltage transmission line on Wa`ahila Ridge, to connect a transmission substation near Iolani with one in the mauka section of Palolo.

The fight lasted three decades and profoundly changed laws, rules and attitudes.

The size of the conflict is reflected by the number of individuals and groups opposing the project, the sheer volume of documents generated and the number of legislative, executive and judicial bodies weighing in on the proposal. HECO gave the project twelve different names.

Hawaiian Electric Company (HECO) file an application with the Public Utilities Commission on June 1, 1973 requesting the right to spend funds to construction a 138-kV Transmission Line between the Kamoku and Pukele Substations.

The request filed by Hawaiian Electric Company, Inc. on June 1, 1973 for authorization to make a capital expenditure of $1,130,000 to construct approximately 3.5 miles of 138 KV transmission lines from Pukele 138 KV Substation to the proposed 138 KV Kamoku Substation.”

The Public Utilities Commission approved the Pukele-Kamoku Transmission Line project on September 7, 1973.

Commission’s directive of September 7, 1973 requiring that the Company’s distribution circuits be installed underground along Waialae Avenue, King Street and University Avenue in conjunction with the construction of its proposed Pukele-Kamoku 138 KV Line No. 1.”

HECO requested that the Public Utilities Commission withdraw their approval.

HECO objected to a condition of the approval which called for undergrounding distribution lines because of aesthetics.

The Commission received “a request from the Company [HECO] filed October 4, 1973 requesting that the Commission withdraw its directive.”

The Public Utilities Commission withdrew their approval, and then approved the Pukele-Kamoku 138-kV Transmission Line without a condition to underground distribution lines.

The Commission accepted that “Hawaiian Electric Company, Inc. be permitted to install its distribution circuits overhead along Waialae Avenue, King Street and University Avenue in conjunction with the construction of its proposed Pukele-Kamoku 138 KV Line 1.”

The Board of Land and Natural Resources approved a Conservation District Use Application (CDUA OA 4-2-75--657) (Pukele-Kamoku Transmission Line) on April 11, 1975.

The Department of Land and Natural Resources approved the construction plans in November, 1975.

The Board of Land and Natural Resources initially supported the proposal.

In our notification of Board action, on April 11, 1975, you were informed that your CDUA, OA 4-2-75 -- 657, was approved, subject to Section 2C of Department Regulation No. 4. ... On November 5, 1975, the Department approved your construction plans.”

The Board of Land and Natural Resources withdrew their approval pending the completion of an Environmental Impact Statement (EIS).

“This is to reiterate the position of the Board of Land and Natural Resources regarding your Conservation District Use Application OA-4/2/75-657.

Insofar as the satisfaction of Chapter 343, Hawaii Revised Statutes, as it related to Chapter 183-41, HRS is concerned; an Environmental Impact Statement has been required in this project, no work within the State’s Conservation District may proceed until such time as the BLNR has accepted this EIS, and approved your CDUA. ...

Inasmuch as the required EIS is an integral part of CDUA-4/2/75-657, and, was initiated at your request, any past Board action on this CDUA is null and void.”

The Environmental Quality Commission (“EQC”) issued a ruling in 1977 on HECO’s OA-4/2/75-657 proposal since the project would trigger the EIS law on two counts: an easement across conservation land and the use of state park land.

The Environmental Quality Commission has on its own motion ruled upon a recurring question that has lent itself to conflicting interpretations.

This ruling was made at the Commission meeting of November 30, 1977.

The instant case generating this ruling involves a project covered by conservation district use application OA-4/2/75-657 on file with the Department of Land and Natural Resources.

This project is proposed by the Hawaiian Electric Company, Inc., and entails installation of 138 KV transmission lines from Halawa to Pukele.

The transmission lines would cross conservation district lands, portions of which are owned by the State.

Chapter 343, HRS, is therefore applicable on two counts. The use of conservation district lands by HECO would constitute an applicable action under HRS Section 343-4(c); the entitlement to State lands by DLNR would constitute an agency action under HRS Section 343-4(b).

At issues is, who is responsible for meeting Chapter 343 requirements: HECO as an applicant, or DLNR as a proposing agency?”

HECO wrote an EIS Preparation Notice in 1977, a Draft EIS in January 1979 and a Revised [Final] EIS in February 1979 for their 1975 CDUA.

The Palolo community filed a lawsuit against the project. 

An out-of-court settlement was reached in 1980 appearing to end the project. The Agreement specified that there is a permanent “Overhead Exclusion Zone” for new high-voltage transmission lines in Palolo.

HECO waited a few years before informing the United States Federal Energy Regulatory Commission (“FERC”) that the Pukele-Kamoku accounting file was an abandoned capital project.

In the early 1990s HECO filed for a second Conservation District Use Application with DLNR. The Conservation District Use Application was rejected by DLNR on procedural grounds.

HECO then filed for a third Conservation District Use Application. This one was accepted.

In 1993 HECO issued an Environmental Impact Statement Preparation Notice for the proposed line but withdrew the project in 1994. 

In 1995 HECO issued another Environmental Impact Statement Preparation Notice now calling the proposed project “Phase III - the Honolulu City Line.”

During the years 1998-2000 HECO wrote a copyrighted Draft EIS which was rejected by the Office of Environmental Control because public documents can’t be copyrighted.

HECO then wrote a new Draft EIS and a Final EIS. The Final EIS was rejected by DLNR on both technical and procedural grounds.  HECO wrote a Revised Draft EIS and a 26-volume Revised Final EIS. The RFEIS with almost 4,000 comments was accepted by DLNR.

The Board of Land and Natural Resources held a public hearing on the CDUA on March 22, 2001. Requests for a contested case hearing were made by several parties.

The Board of Land and Natural Resources admitted parties HECO, Life of the Land, Malama O Manoa, and The Outdoor Circle as parties to the contested case.

Retired Judge E. John McConnell was appointed the hearing officer by BLNR.

Representing Life of the Land was Henry Curtis. Representing Malama o Manoa were attorneys Cory Park and Pam Bunn. Representing The Outdoor Circle was attorney Guy Archer. Representing HECO were attorneys Ben Kudo and Naomi Kuwaye.

During the Discovery process, HECO was asked to produce an electronic version of the EIS for the other parties. HECO denied the existence of an electronic version.

The Evidentiary Hearing was held on November 1-9, 2001. A HECO witness swore under oath than an electronic version existed.

In June 2002 the Board of Land and Natural Resources rejected HECO’s proposal.

Following HECO’s disastrous transmission line fiasco, the company spent $250,000 initiating each of three projects.

HECO founded the Hawai`i Wind Working Group which flopped.

HECO financed the Undergrounding and Visual Mitigation study which was delegated to the Honolulu Chapter of the American Institute of Architects which subcontracted it to EarthPlan.

A community advisory group including The Outdoor Circle and Life of the Land was permitted to comment on visual mitigation.

The cost analysis was written by a consultant with only one thought in mind. How to scare the public into rejecting undergrounding. The community advisory group was not permitted to influence the outcome of the cost study.

HECO created the Hawaii Energy Policy Group.

HECO restricted membership and attendance for over a year while claiming they had nothing to do with its formation or oversight.

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