New & Noteworthy: Red Hill, GEMS

posted in: March 2018 | 0

Red Hill Rebuke: On February 21, Judge Jeffrey Crabtree of the 1st Circuit delivered a knockout blow to the state Department of Health. In granting a motion for summary judgment filed by the Sierra Club of Hawai‘i, Crabtree found that the DOH rules exempting the Navy’s massive and aging Red Hill tank farm from having to comply with regulations governing all other underground storage tanks in the state were invalid and contrary to the state Constitution.

“In 1992, the legislature required that DOH enact rules to ensure that (1) pre- existing underground storage [tanks] were upgraded (or replaced) to prevent releases by December 22, 1998, and (2) these tanks are maintained, repaired, and operated to prevent releases,” attorney David Kimo Frankel wrote in arguing for the summary judgment. “The plain language of the law, its interpretation pursuant to the public trust doctrine, the reason and spirit of the law, the legislative amendments to the law, and legislative statements demonstrate that DOH is required to enact rules that require that underground storage tanks be upgraded and operated in a manner that prevents releases of petroleum into our water. Despite these statutory and constitutional mandates, DOH has failed to enact rules requiring the upgrading of existing tanks” at Red Hill.

In court filings, the DOH had already stipulated to a set of damning facts, including: that the tanks had leaked 27,000 gallons of jet fuel in January 2014; that petroleum-related compounds had been detected in monitoring wells “more than once”; and that groundwater contamination exists in an area below the Red Hill tanks.

The tank farm, with a capacity of more than 200 million gallons, sits just 100 feet above a major aquifer that is an important source of drinking water for O‘ahu.

Last May, the Sierra Club had petitioned the DOH to amend its UST rules, and the DOH began that process a month later. Draft rules, including provisions that set a deadline for upgrades to Red Hill, were taken to public hearing in January. In asking the court to dismiss the complaint, the DOH argued that the department “has, in fact, initiated rulemaking” and intended to adhere to its schedule of having the new rules in place by May – “an aggressive timetable considering the complexity of the subject matter and procedural requirements.”

Frankel said he expects Crabtree’s ruling to result in changes to those proposed rules, including a faster timeline for the Navy to install leak detection and prevention measures and other more stringent requirements.

GEMS Update: The Hawai‘i Green Infrastructure Authority has published its report for the second quarter of the 2017-2018 fiscal year. Highlights include the announcement that it has committed to financing $81 million in loans from the Green Energy Market Securitization fund.

But of that amount, how much has really been spent?

A large fraction ($46 million) is the amount that the Legislature authorized the HGIA to loan out (interest-free) to the Department of Education. The actual amount spent, as of December 31, was just shy of $2 million. Whether the DOE can encumber the remaining $44 million by the legislatively imposed deadline of June 30 this year is an open question. HGIA also counts as committed a nearly $10 million project – as yet unapproved – to underwrite instal- lation of solar water heaters on Moloka‘i. In other loan categories as well, the amount of money HGIA says is committed substantially exceeds what has been spent.

In short, of that $81 million, only around $10 million has actually gone out the door.

In 2013, when the Legislature approved the framework for the GEMS program (a $150 million bond float secured by Hawaiian Electric ratepayers), the announced intention was to help bring benefits of photovoltaic panels and other energy-saving technologies to segments of the population who would otherwise not be able to afford them. As of the end of last year, just 98 residential loans had been made, 88 of which went to households with annual in- comes less than 80 percent of the adjusted median income.

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