HELCO Ke’ahole Plant Expansion Faces New Challenge in Court
Opponents of plans to add 58 megawatts of generating capacity to the power plant at Ke’ahole have sued the company and several state officials in Third Circuit Court. The lawsuit alleges that the state officials violated the law in granting prior approvals to the existing plant, owned by the Hawai’i Electric Light Company, Inc.
Bringing the lawsuit are the Ke’ahole Defense Coalition, a non-profit organization made up mainly of Kona residents who op–pose the power plant’s expansion; and three individuals: Thomas O’Toole, Catherine O’Toole, and Brad Houser, all of whom live near the power plant.
Defendants are the state director of health, Lawrence Miike; the state Board of Land and Natural Resources; and HELCO.
The first count alleges that HELCO failed to submit applications for permits to con–tinue operating some of its existing equip–ment within the time frame required under a new Department of Health regulatory sys–tem that took effect in 1994. State law does not give Miike the discretionary authority to extend the deadlines, as he did, the lawsuit claims.
The lawsuit next alleges that HELCO, Miike, and the BLNR have violated the state Noise Pollution Act. The Department of Health did not develop regulations for Hawai’i Island until 1996, the lawsuit notes, and in the absence of DOH regulations, the BLNR established standards (70 dbA, day and night) that exceed those eventually adopted by DOH (55 dbA daytime, and 45 dbA nighttime). The BLNR and Miike were made aware of the discrepancies, the lawsuit says, but neither has taken any action to enforce the noise standards at the Ke’ahole generation station.
The third count claims that by not follow–ing the Department of Health regulations as alleged in counts one and two, HELCO has also violated its Conservation District Use Permit, which requires it to abide by all applicable laws.
Count four claims that HELCO is in viola–tion of laws governing the ceded land trust. This claim arises out of the fact that the generating station at Ke`ahole was built on ceded land sold to HELCO in 1973 by the state. The sale was subject to restrictions, including one requiring HELCO to comply with all of the requirements of the municipal, state, and federal authorities and observe all county ordinances, state and federal statutes, rules and regulations now in force or which may hereinafter be in force.”
The fifth and final count stems from the Third Circuit Court’s earlier order finding HELCO had obtained a permit to expand the plant by default, when a four-vote majority of the Land Board failed to vote against the expansion plan. The award of a “conditional use” permit is not possible, the lawsuit claims, because a prior hearing officer appointed by the BLNR determined that the use proposed by HELCO was inconsistent with the BLNR’s rules defining the terms and conditions of such permits.
Emissions Permit
The Department of Health, meanwhile, is processing a draft permit covering emissions at the expanded HELCO plant. In a move that has been denounced by opponents of the expansion, the DOH has proposed that HELCO not be requited to install a state-of-the-art scrubbing system on its stacks, which would provide maximum reduction of emis–sions. Instead, it proposes allowing HELCO to implement several emissions-reducing measures which, in total, would cause future emissions to be below the level triggering involvement of the Environmental Protec–tion Agency.
The draft DOH permit would require HELCO, however, to make room for installa–tion of a selective catalytic reduction system if the DOH should later require it.
The comment period for the draft permit expired March 5. There is no firm date for a final permit to be released. The final permit will become effective 30 days from the date of issuance, unless appealed to the EPA within that time. At that point, barring a court in–junction, there seems to be no further legal obstacle to HELCO’s expansion of the plant.
The controversial fishpond project of Lance “Kip” Dunbar on Moloka’i has resulted in a neighbor taking Dunbar and a host of state officials and employees to federal court. The lawsuit, filed by Harold S. Wright and Wright’s lessee, Leimoku, Ltd., alleges that the defendants violated Wright’s and Leimoku’s constitutional right to due process and protection against unjust taking of property. In addition, the lawsuit alleges Dunbar and the other defendants should be found in violation of the federal Clean Water Act.
Defendants include Dunbar; two former chairmen of the Department of Land and Natural Resources, William Paty and Keith Ahue; the present DLNR chairman, Michael Wilson; Governor Benjamin Cayetano; former state Department of Transportation director Edward Y. Hirata; the DOT Maui district engineer Robert O. Siarot; and Michael Mangca, an officer of the DLNR’s Division of Conservation and Resource En–forcement (DOCARE).
The dispute arises over Dunbar’s work in the coastal area work that he has claimed is to restore an ancient fishpond, but which Wright and others argue far exceeds the scope of any fishpond that might have existed at the site.
For at least the last 10 years, Wright at–tempted to get the state to force Dunbar to comply with regulations concerning work on state land and in the Conservation District. Among other things, Wright claims, Dunbar’s work has interfered with coastal currents, resulting in a loss of sandy beach in front of his property.
(More details of the dispute over Dunbar’s project may be found in the February 1993 edition of Environment Hawai`i: “[url=/members_archives/archives_more.php?id=1157_0_31_0_C]Corps of Engineers Nears Decision on Controversial Moloka’i Fishpond[/url]” and in the January 1995 edition, “[url=/members_archives/archives_more.php?id=1044_0_29_0_C]Department of Health Flip-Flops on Removal of Moloka’i Fishpond Wall[/url].”)
The University of Hawai’i College of Tropi–cal Agriculture and Human Resources build–ing in Hilo was the site March 9 of a judging contest and symposium for breeders of fighting chickens. State Representative Robert Herkes presented the trophy to the grand champion rooster.
Environment Hawai’i asked Mike DuPonte, livestock extension agent for Hawai’i County, about the propriety of the state sponsoring an event in support of the illegal enterprise of cock-fighting. DuPonte said that the state’s involvement was limited to providing use of the CTAHR building court–yard to the Big Island Game Breeders Associa–tion. That is in addition to his serving as an advisor to the association.
According to DuPonte, the association is strictly to promote good breeding and good animal husbandry practices among people who raise game cocks. DuPonte said he had weeded out from the association anyone who promoted gambling. As soon as the subject came up at meetings, he said, he would “turn out the lights” and send everyone home.
Does this mean that no one in the associa–tion is involved with cock-fighting? Environment Hawai`i asked. DuPonte acknowledged that he had no idea, but at least people weren’t talking about it at association meetings. As further evidence that he had winnowed out those involved in illegal gambling, DuPonte noted that the association had 1,400 members, while only about 12 regularly attend meetings.
DuPonte said he did not encourage cock-fighting. However, he said, “if the animals get sick, I’m the one that has to take care of them.”
“I try to make sure the breeders don’t bring in disease,” he said, noting that although the state does require imported live fowl be quarantined, not all game-cock breeders fastidi–ously comply. “I’ve seen stuff brought in that I know didn’t go through quarantine,” he added.
DuPonte insisted that he was not support–ing illegal cock-fighting – although he admit–ted that the birds were being bred for this purpose. Most of the breeders he dealt with shipped their birds to Tinian or Guam, he said. “I know of one guy making $300,000 a year off three acres – selling his birds to Guam,” DuPonte said.
In addition, there’s a growing mainland market for fighting chickens, DuPonte said. He said he had been getting calls from North Carolina, Georgia, California, and elsewhere – all from people wanting to purchase Hawai’i-bred fowl. “For some reason,” he said, “people aren’t buying from the Philip–pines anymore.”
Jack Jeffrey, a wildlife biologist at the U.S. Fish and Wildlife Service’s Hakalau Forest Na–tional Wildlife Refuge, has been honored as the National Wildlife Refuge Employee of the year. The award, granted by the National Wildlife Refuge Association and the National Audubon Society, was presented to Jeffrey last month in Washington, D.C.
In addition to his duties on the job, Jeffrey is well known as a photographer whose elegant pictures of birds have illustrated many texts on Hawaiian wildlife. He is a dynamic, persua–sive – and tireless – advocate for native forests. Most recently, he has been working to establish a Hakalau refuge “Friends” group.
The U.S. Department of Agriculture esti–mates it will be spending $186,083 over the next three years to help bring into commercial production a food irradiator using cesium-137. According to documents obtained by Environment Hawai`i most of the funds – $107,600 – will be used to prepare a site at the USDA’s research facility in Philadelphia to receive the prototype cesium irradiator from Gray Star, Inc.
The irradiator is not yet built, but when it is, it is expected to weigh somewhere around 144 tons. This explains why costs of site preparation are high, relative to other costs to be borne by the USDA under terms of a Cooperative Research and Development Agreement between the USDA and Gray Star.
The balance of the federal money is to be spent on wages ($62,423), equipment ($6,000), materials and supplies ($6,000), and travel ($4,000). In addition, any licensing fees that may be required by the Nuclear Regulatory Commission or other regulatory agency are to be borne by the USDA.
According to a letter last July from Gray Star president Martin H. Stein to John Cherry, director of the USDA’s Eastern Re–gional Research Center in Philadelphia, Gray Star has chosen Dynamic Industries, Inc., of Cincinnati to fabricate the irradiator. “Dynamic Industries,” Stein wrote, “has of–ten acted as a sub-contractor to Babcock & Wilcox,” an engineering firm that has de–signed many nuclear reactors. “If we had concluded an agreement with B&W to manufacture the prototype it is quite likely that Dynamic Industries would have been the actual fabricator,” Stein continued. “Babcock & Wilcox is, at present, far more interested in supplying the cesium radiation source for the prototype and for all subsequent units.”
As reported in the February issue of Environment Hawai`i the state of Hawai’i De–partment of Agriculture has signed an agree–ment with Gray Star giving the state right of first refusal to purchase the seventh Gray Star irradiator built.
The Pacific Legal Foundation has announced that Thomas C. Leppert has joined its board of trustees. PLF is a non-profit law firm, based in California, that was established to protect private property rights. It has recently set up an office in Honolulu.
PLF describes Leppert as vice chairman of the Bank of Hawai’i and the former president and CEO of Castle & Cooke Properties, Inc.
Appointed as managing attorney of PLF’s “Project Hawai’i” is David White. Most re–cently, White was an attorney with the mari–time law firm of Alcantara and Frame.
Volume 7, Number April 1997