BLNR Moves to Buy Dole Land At Helemano, ‘Warts and All’

posted in: October 2018 | 0

On September 14, the state Board of Land and Natural Resources approved the purchase of 2,800 acres of conservation and agricultural lands in Wahiawa from Dole Food Company, Inc., for $15 million. The lands are slated for a variety of uses, including camping, forestry, and habitat restoration for the endangered Hawaiian hoary bat. The Department of Land and Natural Resources’ Division of Forestry and Wildlife (DOFAW) will now hold public hearings on adding them to the `Ewa forest reserve.

“This has been a very heavy lift,” DOFAW administrator Dave Smith told the board. Smith said his division had been working for years to acquire the lands that include a crucial access road to the Poamoho section of the forest reserve, but had found it difficult to pull the funding together, given the history of the four parcels to be acquired.

It’s relatively easy to buy pristine forest or lands flush with endangered species, but that’s not the case for areas that have been cleared, used for agriculture, and contain a couple of landfills and a former firing range, he said.

Despite the properties’ checkered past, DOFAW, with the help of the Trust for Public Land (TPL), was able to meet Dole’s purchase price with funds from the federal Forest Legacy program, the state’s Legacy Land conservation program, the U.S. Fish and Wildlife Service, the U.S. Navy, and the Kawailoa wind farm, which, with its high level of bat take, has been under pressure to expand its mitigation program. Once the lands have been acquired, DOFAW says it will develop a community-based plan for their use.

The Warts

When DOFAW’s request to acquire the lands and hold public hearings to add them to the forest reserve came to the Land Board, Smith was prepared to field a lot of questions about the contaminants there. A Phase 1 environmental site assessment had identified two former Navy dumpsites that may have encroached onto the properties, as well as an unauthorized shooting range that had been operated by a former Dole tenant.

The Navy is responsible for remediation and maintenance of the two landfill sites, a DOFAW report states. The more significant hazard the report continues, is the former firing range, which spanned about an acre, but has a potential affected area of about 2.5 acres.

“To the best of our knowledge, the pistol range was probably active for two years. DOH [the Department of Health] had some complaints from hunters who said, ‘Hey, you should check this out,’” Dole operations director Daniel Nellis told the board. “The tenants were primarily former enforcement officers. [The shooting range was] part of their recreation. That’s how they explained it to us. They liked to hunt and do target practice. … We never should have allowed so much freedom to our tenant. They scared off poachers and illegal trespassing hunters [but] the trespassers did us a favor by reporting,” he said.

Soil testing revealed significant lead contamination at the site, “with some samples as high as 24 times the DOH Tier 1 Unrestricted Environmental Action Levels (EALs),” DOFAW stated in its report to the Land Board. Antimony was also detected a lower levels, with the highest concentration being 3.5 times the DOH’s Tier 1 EALs.

Normally, when the Land Board approves the acquisition of private lands such as these, the seller would have to complete a Phase 2 site assessment and remediation to state and federal health standards before the deal closed. The seller would also indemnify the state from any damages or claims resulting from the release of hazardous materials. In this case, Dole refused to clean the site and indemnify the state. Instead, TPL assumed the cleanup responsibilities and plans to hire Ford Canty to do the job and secure a No Further Action (NFA) determination from the DOH.

“It is imperative that the unrestricted NFA be obtained, as the fair market value determined by the appraisal did not consider the effects of contamination,” DOFAW’s report stated.

With regard to indemnifying the state, Dole proposed that its liability extend to just the 2.5-acre affected area and be capped at $425,800, which is twice the estimated cost of obtaining the NFA. The state’s attorneys agreed that Dole’s liability would end once the NFA is issued or five years from the date of the warranty deed.

“Land Division and the Attorney General have concerns about the risk the state would incur by 1) acquiring the property prior to obtaining the unrestricted NFA from DOH … and 2) significantly limiting the indemnification provision in the warranty deed, and have advised DOFAW accordingly,” the report states.

Satisfied that TPL would secure an NFA, DOFAW stated that it believed the risk to the state was minimal and recommended board approval.

“We think the public benefits far outweigh the risk. … We feel that we can manage this property. It doesn’t represent anything out of the norm,” Smith told the board, noting that at Kanaio, Maui, DOFAW manages thousands of acres of former military firing ranges that contain unexploded ordinance.

DOFAW O`ahu branch manager Marigold Zoll added that the Poamoho section is the most actively managed forest reserve on the island and provides access to its most beautiful hiking trail.

“Helemano contains such a varied topography … it really provides an opportunity to encompass every facet that we do, from timber management, to camping, ADA [Americans with Disabilities Act] camping, biking, hiking. It’s been in the works for five years. We’ve had a lot of time to look at the place and dream about what we’d do with it,” she said.

Once her agency acquires the lands, she said it will continue managing access the way it has been under its access agreement with Dole — public access on weekends and holidays and permitted access to the upper forest reserve.

‘Frosting Over the Dirt’

While DOFAW had accepted Dole’s terms, Land Board member Keone Downing wasn’t such a quick sell. “If it cannot be cleaned up, we’re stuck with this property. We don’t know what’s on there other than the samples [taken in Phase 1] … Why do we feel we’re in a rush before it gets cleaned up?” he asked. He suggested that the department could forgo buying the parcel that has the firing range on it and just buy the three others.

Irene Sprecher, head of DOFAW’s Forest Legacy program, admitted that the agency was trying to meet Dole’s deadline to sell the lands, which are the last parcels in a large portfolio of O`ahu lands the company put up for sale years ago.

“They would like to move on,” she told Downing.

She added that the type of lead at the firing range can’t leach into the groundwater.

Board member Stanley Roehrig also expressed concern over the state’s potential liability if remediation isn’t successful. “If the cost of remediation is greater that $450,000, the state is going to have the risk of loss on our shoulders [and] there’s nobody to indemnify us,” he said.

Sprecher replied that consultants have estimated that the maximum cost for remediation would be about $200,000 and that amount will be put in escrow.

Roehrig was not satisfied, pointing out that a Phase 2 site assessment hasn’t been done yet. “There has not been any drilling into the groundwater. … That occurs in the ESA 2. Nobody knows at the present time what’s in there. This was an unlicensed firing range … We don’t know what they fired. … Antimony (found in bullets) is highly toxic. It’s a wonderful project, but we can’t put frosting over the dirt,” he said. (Roehrig is referring to a Phase 2 Environmental Site Assessment, or ESA.)

TPL-Hawai`i executive director Lea Hong tried to assure Downing and Roehrig that its contractor, Ford Canty, was actually obliged to fully remediate the site. “They will, for $200,000, get an NFA. They are contractually obligated to clean it up to an NFA level. There is someone on the hook. We negotiated a very tight contract with Ford Canty,” she said.

“So you’re not going to pay them until you get an NFA?” Downing asked.

“Basically,” TPL project manager Steve Rafferty replied.

To this, Downing said, “A lot of people start with good intentions … then they leave.”

When Roehrig started speculating on what would happen if Ford Canty ran out of money before securing an NFA, board member Chris Yuen, who supported the acquisition, said that this was not the first time the company had undertaken such a project and reminded the board that Dole would be providing backup funding amounting to double the contract price.

Rafferty also explained that the remediation would be relatively straightforward. The dirt berms that had been used as targets along the 70-foot-long range would be razed and trucked to the West O`ahu’s PVT landfill, which accepts construction and demolition waste.

Closing the Deal

Nellis told the board that the firing range area occupied less than one percent of the total area DOFAW was seeking to buy and isn’t near the public hiking trail.

When Roehrig asked why the board shouldn’t excise the firing range from the deal, Nellis said that would require Dole to go through another subdivision process, when it already did that to make the parcels available for sale.

“What if we help you with subdivision process?” Roehrig asked.

“That’s a couple more years. … If we can’t close the deal, then they’re [Dole] gonna say no deal and open it up for sale,” despite the fact that DOFAW is the best steward for the lands, Nellis replied.

“It’s only my opinion, but it’s highly unlikely that cleanup is going to cost three times the original quote,” he added.

Downing said he was glad Dole wanted DOFAW to have the lands, but questioned the rush to hand them off.

In short, Nellis said that the company, anticipating the sale of its Hawai`i portfolio, has already spent the money to be gained from it this year.

If the deal with DOFAW falls through, he said the U.S. Army would be the likely buyer for the conservation lands and the agricultural lands would be sold to farmers.

Yuen moved to approve DOFAW’s recommendations; member Sam Gon seconded the motion. “This is a wonderful project. It’s a very important piece of land for the state to acquire. … They’ve been negotiating for several years and sometimes you don’t get everything you want,” Yuen said earlier in the meeting.

In discussing Yuen’s motion, Roehrig said he was heartened by the fact that more than $600,000 dollars was available for remediation, but said buying the land before it was cleaned was not a good precedent. “If it’s a small project, maybe we look the other way [but] it’s got a lot of hairs on it,” he said.

Gon agreed with Roehrig that the state was taking on a lot of risk buying the property at this stage, but said that the parties involved have tried to minimize the health risks and have made clear the nature and scope of those risks.

Deputy attorney general Julie China, who assisted DOFAW and the Land Division in negotiating the terms of the purchase, assured the board that her department was not opposed to the acquisition, despite an assertion by Roehrig that it was. “This was the best deal that I think we could make. We wanted to present the project to the board … while disclosing warts and all,” she said.

Downing echoed Roehrig’s concerns about setting a bad precedent, but said he would vote in support of Yuen’s motion. “But I just want to be clear that I don’t believe that people should be able to come to us and say, ‘I  have all this set up to do it,’ because there’s no guarantees it’s going to be done,” he said.

“I’m sorry that Dole can’t wait until this project is clean. If it’s that small, it should be done fairly quickly. Fifteen million for a company like Dole is not very much money,” he said.

Yuen pointed out that the lead in the berms can hurt people only if they are exposed to it, which he seemed to think was unlikely. “If a kid made mud cookies [from the dirt at the range] and ate them, it would be bad,” he said.

In the end, the board approved DOFAW’s request to acquire the land and hold public hearings on the forest reserve addition, among other things. Roehrig voted in opposition.

(For more background on this, see, “Data Gaps Confound Efforts to Limit Harm to Bats Posed by Wind Farms,” from our February 2017 issue.)

— Teresa Dawson

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