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Democratic Party of Hawaii - Melodie Aduja Testimony

O`ahu County Committee on Legislative Priorities

November 21, 2018

via email: cleanwaterbranch@doh.hawaii.gov


Dear Mr. Anderson:


RE: HU HONUA BIOENERGY, LLC

In addition to the testimony of the O`ahu County Committee on Legislative Priorities (OCCLP) of the Democratic Party of Hawaii (“DPH”), submitted on November 14, 2018, the OCCLP submits its supplemental memorandum contained herein. OCCLP is an interested party as the outcome of the Department of Health’s decision will not only affect Hawai`i island but will have statewide ramifications as statewide precedent. As such, OCCLP strongly urges that an Environmental Impact Statement be required prior to the issuance of any DOH Permits based on the Hawai`i State Constitution Public Trust Document and the Precautionary Principle.


Hawaii Revised Statues Chapter 343 provides as follows:

§343-5 Applicability and requirements. (a) Except as otherwise provided, an environmental assessment shall be required for actions that:

.. . (9) Propose any: (A) Wastewater treatment unit, except an individual wastewater system or a wastewater treatment unit serving fewer than fifty single family dwellings or the equivalent; (B) Waste-to-energy facility; (C) Landfill; (D) Oil refinery; or (E) Power-generating facility


However, there is a loophole in the statute as §343-5 (a)(9)(E) Power-generating facility is defined under §343-2 as follows:


"Power-generating facility" means: (1) A new, fossil-fueled, electricity-generating facility, where the electrical output rating

of the new equipment exceeds 5.0 megawatts; or

(2) An expansion in generating capacity of an existing, fossil-fueled, electricity-generating facility, where the incremental electrical output rating of the new equipment exceeds 5.0 megawatts.


Since Hu Honua Power Plant relies on steam to create energy rather than fossil fuel, it is exempt from §343-5 (a)(9)(E) which requires a power plant that burns fossil fuel to complete an environmental assessment.


Rather, Hu Honua Power Plant is characterized as a "Renewable energy facility" as defined in section 201N-1 as: “Renewable energy facility includes a facility that produces or transmits biofuel.”


The O`ahu County Committee on Legislative Priorities remains steadfast in strongly urging that an Environmental Assessment be conducted prior to the issuance of any DOH Permits pursuant to Article 11, Section 1 of the Hawai`i State Constitution and the Precautionary Principle to argue in favor of an Environmental Assessment.

Article 11, Section 1 of the Hawai`i State Constitution provides:


For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawai`i’s natural beauty and all natural resources, including land, water, air, minerals, and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people.


The Hawai`i Supreme Court has declared that this section makes the Public Trust Doctrine (PTD) a fundamental element of Constitutional Law in the State of Hawai`i.

Specifically, under Article 11, Section 1, of the Hawai`i State Constitution, the State has an obligation to protect, control, and regulate the use of Hawai`i’s water resources for the benefit of its people. The Hawai`i Supreme Court has declared that this Constitutional provision created a duty for the State to protect public trust purposes. The Public Trust Doctrine, therefore, seeks to protect the following Public Trust Purposes:


Domestic water use of the general public, particularly drinking water,

The exercise of Native Hawaiian and traditional and customary rights including

appurtenant rights,

Reservations of water for Hawaiian Home Land allotments, and

Maintenance of waters in their natural state. (Water Resource Protection Plan (2008),

Commission on Water Resource Management)


Both the Hawai`i Supreme Court and the Commission on Water Resource Management have declared that the Public Trust Doctrine applies with equal force to groundwater as it does to surface water.

The Precautionary Principle is a duty under the Public Trust Doctrine. The PTD is a preventative doctrine, not a remedial one, as the Hawai`i Supreme Court recognized when it found that the Precautionary Principle was an inherent attribute of the PTD. In endorsing the Precautionary Principle, the Hawai`i Supreme Court rejected the requirement of scientific certainty before acting to protect Public Trust Purposes, noting that to do so will often allow for only reactive, not preventive regulation.


The Commission on Water Resource Management has espoused that “where scientific evidence is preliminary and not yet conclusive regarding the management of freshwater resources which are part of the public trust, it is prudent to adopt ‘Precautionary Principles’ in protecting the resource.”


Although Hu Honua is not a fossil fuel burning power plant which would make §343- 5(a)(9)(E) applicable, under the Hawai’i State Constitution PTD and Precautionary Principles, the analysis should be the same, i.e., the Department of Health should make the inquiry for determining the necessity of an environmental assessment based on the language of HRS §343- 5(c), whether the proposed action will “likely” have a significant effect on the environment. As defined in this section, “significant effect” includes irrevocable commitment of natural resources; where the burning of thousands of gallons of fuel and the withdrawal of millions of gallons of groundwater on a daily basis would “likely” cause such irrevocable commitment, an EIS was required pursuant to both the common meaning of “may” and the statutory definition of “significant effect.” Kepoo v. Kane, 106 H. 270, 103 P.3d 939 (Haw. 2005). In addition, the sufficiency of an environmental impact statement is a question of law. Price v. Obayashi Hawaii Corp., 81 H. 171, 914 P.2d 1364 (Haw. 1996).


In Kepoo v. Kane, supra., at 103 P.3d 957, the Court found that the 58-megawatt power plant which burns 86,000 gallons per day and discharges 11 million gallons per day of wastewater and exceeds federal significance levels for air pollution, as set forth in the EA, may have a substantial environmental impact. . . . The plant would be a major source of air pollution, emitting hundreds of tons of pollutants. The Kepoo Court further found the withdrawal of 10.4 million gallons of groundwater and the burning of 86,000 gallons of fuel on a daily basis “involves an irrevocable commitment to loss or destruction of” natural resources. Thus, an EIS was required pursuant to HRS § 343-5 (c) and . . . of the significance criteria enumerated in HAR § 11-200- 12(b).


Similarly, pursuant to the PTD and the Precautionary Principle, the inquiry should be that under §343-5(c), the agency initially receiving and agreeing to process the request for approval shall prepare an environmental assessment of the proposed action at the earliest practicable time to determine whether an environmental impact statement shall be required; provided that, for an action that proposes the establishment of a renewable energy facility, a draft environmental impact statement shall be prepared at the earliest practicable time.


Here, Hu Honua Bioenergy, LLC, proposes to draw 21 million gallons of water per day from the Hakalau Aquifer, double the 10.4 million gallons per day found by the Kepoo Court, supra. It will then heat the 21 million gallons of water and combine it with over two dozen chemicals recognized by the EPA and OSHA as “HAZARDOUS CHEMICALS” and 11 million gallons of wastewater will be returned to the Hakalau Aquifer via injection wells that are 400 feet deep above the Hakalau Aquifer, 100 feet from the edge of unstable cliffs and a mere 100 feet from the shoreline. This heated contaminated water will percolate into coastal waters where endangered Hawksbill turtles and other marine life will be at-risk thus not only adversely affecting the fragile marine ecosystem but also the livelihood and subsistence of the surrounding fishing community.


As in Kepoo v. Kane, where it was determined that the withdrawal of 10.4 million gallons of groundwater and the burning of 86,000 gallons of fuel per day involves an irrevocable commitment to the loss or destruction of natural resources requiring an EIS, the Hu Honua Bioenergy Power Plant must also be required to complete an EIS under the Hawai`i Constitution Public Trust Doctrine and Precautionary Principle, HRS § 343-5 (c) and under the significance criteria enumerated in HAR § 11-200-12(b).


II. An air pollution control permit from the DOH Clear Air Branch should also be required given the substantial amount of greenhouse gas emissions that Hu Honua will emit annually. The proposed amount includes 288,920 tons of CO2, 22 tons of methane gas, and 11 tons of nitrous oxide on an annual basis. The Plant will emit three times more CO2 than natural gas and 1.5 times more CO2 than coal. For this reason, the renewable energy source, i.e., steam, it will not reduce the carbon footprint by avoiding fossil fuel as it still emits a substantial amount of greenhouse gas emissions thus failing in being carbon neutral.


Environmental law in the State of Hawaii includes the Constitution of the State of Hawaii, and the Hawaii Environmental Policy Act (“HEPA”).

Article XI, Section 9 of the Hawai‘i Constitution (1978) states: “Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings [...].”


The Hawaii Environmental Policy Act (“HEPA”) (Hawaii Revised Statutes Chapter 343), requires individuals and agencies to provide environmental assessments and/or environmental impact statements when an action may affect the environment.

In Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), the U.S. Supreme Court case involved twelve states and several cities of the United States brought suit against the Environmental Protection Agency (EPA) to force that federal agency to regulate carbon dioxide and other greenhouse gases (GHGs) as pollutants under the Federal Clean Air Act.


The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air ... .” §7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical ... substance[s] which [are] emitted into ... the ambient air.” The statute is unambiguous.


An air pollution control permit from the DOH Clear Air Branch should also be required. Given the excessive amount of greenhouse gas emissions that will be emitted annually, an air pollution control permit would be a means to assure that the amount of greenhouse gas emissions is within acceptable EPA and DOH standards pursuant to the Hawai`i Constitution, the Hawaii Environmental Policy Act, and applicable Hawai`i statutes and Administrative Rules and relevant Hawai`i and Federal case law.

In conclusion, the O’ahu County Committee on Legislative Priorities urges that Hu Honua Bioenergy Plant be compelled under the Hawai`i State Constitution Public Trust Doctrine and Precautionary Principle to complete an Environmental Impact Statement and obtain an NDPES Permit pursuant to the Federal Clean Water Act and an air pollution control permit pursuant to the Federal Clean Air Act.


Thank you very much for your kind consideration.

Me ka `oia`i`o, /s/ Melodie Aduja

Melodie Aduja Chair, O`ahu County Committee on Legislative Priorities


Mālama Hāmākua is a group of community members on Hawaiʻi Island and beyond who seek to protect the health of Hawaiʻi Island's Hāmākua coast and her people.

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