Former Board Member’s Testimony Throws HELCO Case Into Turmoil
The decade-long efforts of HELCO, the Big Island electrical utility, to expand its Keahole generating facility are more and more taking on the traits of a soap opera.
People who have been in a time warp for the last five years or so can tune back in and pick up almost exactly where they left off: the circuit court has vindicated the arguments of expansion opponents; the state Board of Land and Natural Resources is doing all it can to avoid saying “No” to the utility, whose plant sits on state-zoned conservation land.
The latest bizarre twist occurred March 6, when the Department of Health conducted a hearing on whether the utility should be granted the clean-air permit it needs to run the expanded plant. Appearing to add his testimony to those of HELCO’s partisans was former Land Board member Michael Nekoba, who was a member of the board when it considered HELCO’s Conservation District Use Application for the project, which would expand the existing small plant by 58 megawatts of capacity.
Nekoba testified in favor of the expansion, saying that the West Hawai`i area needs the power it would provide. Mike Matsukawa, attorney for opponents of the project, heard the testimony and the very next day, he used it as a basis for reopening questions into the Land Board’s 1995 and 1996 deliberations on the case.
During those deliberations, board members were to limit their evaluation of the HELCO proposal to the question of whether it was appropriate for and allowed by the board’s Conservation District rules. The issue of need was specifically to be excluded.
On March 7, Matsukawa wrote to Dawn Shigezawa, the deputy attorney general representing the state in HELCO litigation. HELCO, Matsukawa reminded her, had intentionally violated the contested case hearing officer’s order to exclude any evidence of need. And while no minutes exist of the secret meeting in which Land Board members voted on HELCO’s application, Matsukawa said, Nekoba’s “voluntary statements to the Department of Health shows that he was influenced by the issue of need, even though that subject was to be disregarded.”
Matsukawa told Environment Hawai`i he intends to raise once more with Third Circuit Judge Ronald Ibarra the possibility that HELCO erroneously caused need to be considered when the Land Board made its decision.
Before this latest glitch, the case was on track for a hearing (the second one) by a contested case officer, as opponents had sought. Their request came after HELCO had asked the board to grant it a time extension on its Conservation District Use Permit for the expansion that was awarded by default when two board members (Nekoba and Herbert Apaka) blocked the wishes of the majority to deny the application.
HELCO had maintained that it was under no obligation to complete construction by any particular deadline, even though default rules provided for a three-year period for construction. Judge Ibarra held otherwise, and last August ruled that HELCO’s CDUP had expired back in 1999. That prompted HELCO to make its hasty, albeit belated, bid for a time extension of six years.
The Land Board staff had recommended the board grant a three-year extension, with no chance for further indulgences and no opportunity for a contested-case hearing. Under this scenario, HELCO’s window for completing construction of the plant would have been April 25, 2002. Assuming award of the DOH permit (something that could occur no earlier than this month), that would give HELCO barely a year to do the bulk of the work on the plant.
In the end, on January 26, the Land Board granted the contested-case hearing request of the Keahole Defense Coalition (KDC), the group that for most of the last decade has worked tirelessly to curb HELCO’s appetite for oil.
State to Pay Costs
In the long process of litigation over the legitimacy of HELCO’s Conservation District permit for the Keahole plant, opponents have prevailed on many of the issues – including the matter of whether an automatic three-year deadline applied.
As a result, opponents have sought to have the court order HELCO and the state (which has generally sided with HELCO in this litigation) to pay their attorney’s fees and court costs.
At a hearing before Judge Ibarra last December, Ibarra basically decided that the state had been largely responsible for many of the opponents’ litigation costs. “Court finds that DLNR’s action or inaction regarding the enforcement of the Court’s orders within a reasonable time cause [the plaintiffs] to seek further court action, resulting in said parties accruing attorney’s fees and costs,” Ibarra ruled. “The court will award attorney’s fees and costs against DLNR only.”
— P.T.
Chevron To Clean Iwilei Pipeline Contamination
Henry Curtis and Kat Brady have been looking into underground contamination in the Iwilei area of O`ahu for about a year – and it’s not been easy. The Department of Health’s response to repeated requests for public records has been frustrating, with officials directing and redirecting them to multiple DOH agencies
Compared to the DOH, the Department of Land and Natural Resources is terrific, Curtis told the Land Board at its March 9 meeting. The DLNR has “been far more friendly to community input than the DOH, far more willing to listen,” he said.
And because of that willingness to listen, Curtis asked the Land Board to overstep its bounds a bit in its dealings with a hazardous waste cleanup in Iwilei involving Chevron U.S.A., the DOH and the state Department of Transportation.
Petroleum pipelines laid under Iwilei’s streets – some almost 100 years old – are contributing to an oily sheen in Honolulu Harbor. And according the Curtis, “Nobody has a map or knows the extent of the pipelines.” He adds that the area could hold 50 million gallons of gasoline.
On February 15, the Health Department informed the DOT it was concerned about a possible release of a hazardous substance after one of its inspectors observed oil on the waters of Honolulu Harbor, Kapalama Stream and Nu`uanu Stream.
The DOT, in turn, told the Land Board on March 9 that the sources of the release “are the petroleum pipelines owned and operated in the vicinity by” Chevron U.S.A.
The Land Board granted a right of entry to Chevron, allowing the company to explore the grounds near Pier 26 and 35 of Honolulu Harbor to locate, identify and remove any hazardous waste in the area.
Curtis and Brady complained to the Land Board that gathering information on the contamination from the state Department of Health had been like pulling teeth. Curtis expressed his concern that unless the Land Board intervened, getting information on Chevron’s activities would also prove difficult, should the DOT not require the company to report on its findings or clean-up actions.
After consulting with its deputy attorney general, the Land Board voted to grant the right of entry, adding a requirement that Chevron provide a report of its cleanup to the DOH, the DOT, and the DLNR within a year of its completion.
Hanauma Bay To Get New Education Center
Peter Rappa, education program manager at Hanauma Bay, will finally be able to move out of the snack bar’s kitchen where he has set up a work station near the grill and exhaust fan.
With the City and County of Honolulu having received a Conservation District Use Permit from the Land Board to renovate its facilities at the popular tourist attraction, the city can now move forward with construction of a snack bar, a gift shop, and an education center, where Rappa and his staff will eventually be housed.
The education program, aimed at teaching visitors about the Bay’s precious natural resources, began in 1990, with only a desk and an umbrella set up on the beach. By 1995, the program had moved into a closet in the back of the bay’s administration building, and in 1998, it moved into the snack bar.
With thousands of visitors passing through Hanauma Bay every day and a good number of them walking on the coral reefs and feeding fish, the need for a better public education program became obvious to Hanauma Bay managers. The Friends of Hanauma Bay, a group of dedicated volunteers, had been working hard for years to educate tourists, but they were facing an uphill battle.
No one argued against the goal of improving public education, but the city’s plans ended up pitting environmentalist against environmentalist, with one side arguing the need for an expanded education program and the other complaining that community concerns were being ignored, the proposed buildings were too large and improperly located, and that better education was just a front for constructing a flashy, touristy building and could be achieved in other ways.
The project is complicated: It involves demolishing the snack bar at the base of the bay’s crater. A new snack bar, gift shop and a large education center will be built at the crater’s rim.
At the Land Board’s February 9 meeting, picketers opposing the $10 million project stood outside the Kalanimoku Building where the meeting was held. Some cars honked in support as they passed.
Members of the East Honolulu Community Association, the project’s most vocal opponent, testified to the Land Board that the Waimanalo and Diamond Head Neighborhood Boards also opposed the project. “We don’t want to commercialize Hanauma Bay,” Dave Washino of the EHCA told the Land Board.
Steve Kubota of the Ahupua`a Action Alliance expressed concern that thorny kiawe trees were going to provide “an artificial canopy to disguise the buildings. Why not do native landscaping?” he asked.
Opponent Rob Ackerson told the board the Friends of Hanauma Bay “are doing a great jobÉ [So] why do we have to spend another $10 million?”
After several hours of public testimony, the need for a better education program won out over arguments of excessive building size, lack of public input, and overall impracticability, and the Land Board unanimously approved the CDUP.
“It appears that there has been a tremendous compromise from the original design to accommodate community concernsÉ [and the project] will meet the needs of the bay. I hope eventually the community comes to embrace it,” Land Board member Kathryn Whang Inouye said.
— Teresa Dawson
Volume 11, Number 10 April 2001