HomeMy WebLinkAboutBIL 129 Draft 03 2012-2014 COUNTY OF HAWAII ; '/ •- STATE OF HAWAII
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BILL NO. 129
ORDINANCE NO. (DRAFT 3)
AN ORDINANCE AMENDING CHAPTER 14 OF THE HAWAII COUNTY CODE 1983
(2005 EDITION, AS AMENDED), BY ADDING A NEW ARTICLE RELATING TO A
HYDRAULIC FRACTURING POLICY.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Findings and purpose: The County Council finds that the following
conditions necessitate the implementation of a hydraulic fracturing policy:
(1) The negative consequences of hydraulic fracturing pose serious threats to Hawai`i
Island's air, water, watersheds, aquifers, rivers, littoral zone, ocean, land, climate, forests,
wildlife, domestic animals, and the public health, safety, and general welfare; and
(2) The public natural resource trust doctrine as described in the State of Hawai`i
Constitution, Article XI which states:
"For the benefit of present and future generations, the State and its political
subdivisions shall conserve and protect Hawaii's natural beauty and all
natural resources, including land water, air, minerals and energy resources,
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."
and the Hawai`i County Charter, Section 13-29 which states:
"For the benefit of present and future generations, the county shall conserve and
protect Hawai`i's natural beauty and all natural and cultural resources, including
but not limited to land, water, air, minerals, energy sources, wahi pana, surf spots,
historic sites, and historic structures, 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 county. All public natural and cultural
resources are held in trust by the county for the benefit of the people."
(3) Although potential impacts from hydraulic fracturing may be currently under
investigation by federal agencies, other states, academia, and research institutions, no
independent scientific investigations are being undertaken or have been completed for the
Island of Hawai`i to examine the risks of hydraulic fracturing to the island's unique
geologic, geographic, and aquatic features; and
(4) The very nature of hydraulic fracturing increases permeability and porosity of the island's
underground geologic formation which may lead to infiltration of chemicals and toxins
into our aquifers, wells, rivers, shoreline, and ocean. Such increased permeability and
porosity may allow lateral, vertical, or descending movement of human- introduced toxic
chemicals or even additional naturally-occurring volcanic toxins; and
(5) The County of Hawai`i has an immediate need to protect against and prepare for the
emergencies and incidents related to any drilling operation and its related activities; and
(6) The cost of repairing road infrastructure from the damage caused in part by the drilling
rig, support equipment, and massive number and weight of water tankers required for
such a hydraulic fracturing project is beyond the limited maintenance budget of the
County; and
(7) Hydraulic fracturing causes earthquakes. It breaks and displaces rock at depth. The
magnitude is typically one to two on the Richter scale. Injecting fluids into fault systems
has been known to lubricate the fault and earthquakes subsequently can occur. There is
now recognized a class of earthquakes called silent earthquakes where the fault moves
without rupture; and
(8) Emergencies and negative incidents caused by hydraulic fracturing have been reported
and range from small localized events to far-reaching disasters with complex
consequences that may require the involvement and coordination among many agencies
of the county, state, and federal government. It is unknown how the County of Hawai`i,
the State of Hawai`i, and the U.S. Government would be able to quickly respond to such
emergencies or negative events that cause harm to our people, animals, plants, land, air,
water, or ocean; and
(9) Industry cannot be relied upon to provide adequate monitoring for the safety of human,
animal, or plant health, water, ocean, and environmental issues nor is the county or state
equipped to monitor these projects, as revealed in the report issued by the Geothermal
Public Health Assessment Study Group; and
(10) There is inadequate public or private funding to mitigate large-scale disasters caused by
hydraulic fracturing; and
(11) There are no monitoring data available to indicate the risks of hydraulic fracturing on the
Island of Hawai`i and to determine its impact on the health and safety of the public and
the protection of current environmental resources. Even small-scale disasters might
negatively impact the County of Hawai`i if state or federal assistance was denied or such
levels of government were slow to respond to such a disaster; and
(12) Mechanisms to ensure funding, coordination, equipment, and County manpower for
response to these impacts have not been identified and adopted; and
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(13) Hydraulic fracturing has contributed to releases of toxic gases to the atmosphere,
contamination of potable water, and health problems in plants, animals, and humans in
mainland locations; and
(14) The risks of hydraulic fracturing are both great and unknown so that it is banned in some
countries and many states or municipalities in the U.S. Countries that have stopped
hydraulic fracturing include: Argentina, Austria, Australia, Bulgaria, Canada, Czech
Republic, France, Germany, Italy, Ireland,Netherlands, New South Wales, New
Zealand, Romania, South Africa, Spain, Switzerland, and the United Kingdom; and
(15) Hydraulic fracturing requires between four and 10 million gallons of fresh water to
achieve permeability and porosity in an underground geologic formation. The Island of
Hawai`i and its people, businesses, animals, plants, rivers, shoreline marine life, and
ocean cannot afford to lose these millions of gallons of fresh water. Even using partially
treated waste water for hydraulic fracturing may pollute our aquifers, rivers, and ocean.
Salt water may not be a viable solution for hydraulic fracturing due to corrosion which
might require additional anti-corrosives to be placed in the well to protect the drilling
equipment, the well itself, or its various parts. Such anti-corrosives may contribute even
more chemicals and toxins into the environment that could infiltrate the aquifers; and
(16) Remediation of water used for hydraulic fracturing is not currently possible in the County
of Hawai`i because there is no waste water treatment plant on the island able to handle
the chemicals and toxins introduced or produced by hydraulic fracturing. Evaporation is
not a viable option as it degrades air quality. Therefore, the water must be removed to
another location within the United States for safety and is irreversibly lost to the island's
hydrologic cycle; and
(17) Large areas of the Island of Hawai`i need potable water for the people and fresh water for
plants and animals. The ocean and shoreline areas need the fresh water to move from
mauka to makai to sustain a healthy environment. Wasting millions of gallons of water to
achieve hydraulic fracturing is not conducive to supporting the people, the environment,
or natural resources of which the County has an affirmative duty to protect; and
(18) Many chemicals required by hydraulic fracturing are toxic or can create toxic gases and
fluids in the air or water that may damage people, animals, plants, the land, and the
ocean, however full disclosure of those chemicals is prevented through claims of
proprietary rights; and
(19) A company's net worth may be insufficient to cover the costs associated with managing a
hydraulic fracturing disaster. In that case, those costs may be forced on those who have
suffered property damage or injuries, and the County might be liable for the cost of
repairing public infrastructure and the relocation of families. Loss of property taxes may
also create unnecessary financial distress to the County; and
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(20) It is a common industry practice to use site-specific LLC/LLP corporations that are
dissolved after drilling operations are completed. With no solvent company left to pay
the costs of catastrophic loss, the neighboring landowners and the County may be left
with the cost of remediation and recovery; and
(21) Sufficient extreme catastrophic loss event insurance requirements would need to be in
place and be sufficiently comprehensive to cover claims received between a disaster's
occurrence and the time when the discovery of such a disaster might occur. The County
is incapable of determining the sufficient amount of insurance required or what best
practices for such insurance are applicable. However, it is unlikely to find insurance or a
bond for current and future liability adequate to cover the loss of an entire water resource
in the case that a hydraulic fracturing source contaminates that water resource which may
then contaminate a second or additional water resources or a release of toxic gases that
occurs years after the hydraulic fracturing is completed forcing people to move to
survive; and
(22) It is difficult to establish fault for some types of leaks and seepage events, and these types
of fault-finding legal cases may take years to resolve leaving the people and the County
bearing the brunt of the remediation and recovery.
The purpose of this ordinance is to protect the public health, safety, and general welfare;
the public trust; natural resources such as air, water, watersheds, rivers both above and below
ground and its life, the ocean and its marine life, land, animals, both wild and domestic, plants
both indigenous and imported; and the economic value of private and public property. This
ordinance seeks to minimize public and private losses in the County of Hawai`i due to the
negative effects of hydraulic fracturing used in drilling operations for exploration and production
of water, gas, oil, or minerals, or the exploration or production of geothermal energy or related
research including geologic research.
The objectives of this hydraulic fracturing policy are:
(1) To permanently halt or to prohibit the initiation of hydraulic fracturing for any purpose;
(2) To protect human life and health;
(3) To protect the public natural resources trust doctrine as required by the Hawaii State
Constitution (Article XI) and the Hawaii County Charter, Section 13-29;
(4) To protect the air, land, ocean, aquifers, rivers, animals, plants, watersheds, forests, and
all natural resources;
(5) To protect potable ground water resources;
(6) To protect the economic value of private and public property, minimize public and
private financial losses, prevent the loss of purpose for which the land may be used, or the
reduction of property value;
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(7) To minimize expenditure of public funds for costly emergency repairs of public
infrastructure;
(8) To minimize damage to public facilities and utilities such as water, sewers lines, gas
mains, electric utilities, telephone and cable utilities, streets, roads, and bridges located in
areas around or impacted by hydraulic fracturing;
(9) To minimize the need for rescue and relief efforts associated with evacuation from an
unhealthy situation or location undertaken at the expense of the general public due to the
negative effects of hydraulic fracturing;
(10) To protect our emergency response personnel from the danger of toxic chemicals, toxic
air, or unsafe conditions while attempting to ascertain the severity of an apparent disaster
or rescue people;
(11) To minimize prolonged business interruptions;
(12) To help maintain a stable tax base by providing for the sound use and development of
land areas and to minimize future blight areas;
(13) To advise potential property buyers that no property on the island is in an area of
hydraulic fracturing;
(14) To prevent the loss of millions of gallons of water used to initiate or enhance hydraulic
fracturing;
(15) To prevent future earthquakes caused by hydraulic fracturing on the island; and
(16) To advise future companies who might engage in hydraulic fracturing that it is not
allowed on this island.
SECTION 2. Chapter 14 of the Hawai`i County Code 1983 (2005 Edition, as
amended), is amended by adding a new article to be appropriately designated and to read as
follows:
"Article_. Hydraulic Fracturing Policy.
Section 14- . Definitions.
As used in this article, unless the context requires otherwise:
"Department" means the planning department.
"Director" means the director of the planning department, or the director's
authorized representative(s).
"Drilling operation" means the boring, piercing, or penetration into an underground
geologic formation.
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"Hydraulic fracturing" means a drilling operation into an underground geologic
formation and the injection of fluids, gases, chemicals, sand or any other substance with
the intention to cause or enhance fractures in the geologic formation for the purpose of
instigating or increasing the porosity or permeability of the geologic formation to initiate
or increase the production of a desired commodity from a well. Hydraulic fracturing is
also known as "fracking," "hydro-fracking," "hydro-fracturing," "hydro-shearing,"
"hydraulic shearing," "hydro-stimulation," or"enhanced geothermal drilling."
Section 14- . Hydraulic Fracturing prohibited.
Hydraulic fracturing or the practice by any other name shall be prohibited for any
purpose. No permit or exemption to this policy shall be provided by the County. Any
permit issued by the County that allows for a drilling operation shall include a written
condition prohibiting hydraulic fracturing.
Section 14- . Right of entry.
Upon presentation of proper credentials, the director may enter at reasonable times
any property in the County which utilizes drilling operations to inspect the property for
potential violations of this article, provided that such entry shall be made in such a
manner as to cause the least possible inconvenience to the person in possession. An order
of a court authorizing such entry shall be obtained in the event such entry is denied or
resisted.
Section 14- . Violation.
Any hydraulic fracturing for any purpose at any time using any method constitutes
a violation of this article. Single or multiple violations shall be listed on the notice of
violation and penalties shall be applied for each violation.
Section 14- . Notice of violation.
(a) Whenever the director determines that there exists a violation of any provision of
this article, the director shall serve a notice of violation upon the parties responsible
for the violation, which may include, but shall not be limited to the owner and any
lessee of the property where the violation is located, to make the location where the
violation is occurring compliant with this article. Such notice of violation shall
include:
(1) The date of the notice;
(2) The name and address of the person noticed, and the location of the violation;
(3) The section number of the ordinance, code, or rule which has been violated;
(4) The nature of the violation; and
(5) The deadline for compliance with the notice.
(b) Proper service of such notice shall be by personal service, registered mail, or
certified mail upon the owner of record, provided, that if such notice is by
registered mail or certified mail, the designated period within which the owner or
person in charge is required to comply with the order of the director shall begin as
of the date the owner or person in charge receives such notice.
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Section 14- . Administrative enforcement.
(a) If the director of planning determines that any entity is not complying with a notice
of violation, the director may have the party responsible for the violation served, by
mail or delivery, with an order pursuant to this section.
(b) Contents of the Order.
(1) The order may require the parties responsible for the violation, including but
not limited to the owner/lessee of the property where the violation is located, to
do any or all of the following:
(A) Correct the violation(s) within the time specified in the order;
(B) Pay a civil fine in the amount, at the place, and before the date specified in
the order.
(2) The order shall advise the party responsible for the violation that the order shall
become final thirty calendar days after the date of its delivery. The order shall
also advise that the County's action may be appealed to the board of appeals.
(c) Civil fines.
(1) Any person who violates this article shall pay a civil fine not to exceed $25,000
for each separate offense. Each day a violation persists shall constitute a
separate offense. Any action taken in court to impose or collect the fine
provided for in this section shall be considered a civil action.
(2) Any person who denies, obstructs, or hampers the director from the entrance to
or inspection of any building, place, or vehicle pursuant to this article shall pay
a civil fine not to exceed $10,000 for each day of denial, obstruction, or
hampering. Any action taken in court to impose or collect the penalty provided
for in this section shall be considered a civil action.
(3) Factors to be considered by the director in imposing a civil fine shall include
but not be limited to the following:
(A) The nature, circumstances, extent, gravity, and history of the violation and
of any prior violations;
(B) The economic benefit to the violator, or anticipated by the violator,
resulting from the violation;
(C) The opportunity, difficulty, and history of corrective action;
(D) Good faith efforts to comply;
(E) Degree of culpability; and/or
(F) Such other matters as justice may require.
(d) Effect of Order; Right to Appeal. The provisions of the order issued by the County
under this section shall become final thirty calendar days after the date of the
delivery of the order. The party responsible for the violation may appeal the order to
the board of appeals as provided in chapter 91 of the Hawai`i Revised Statutes.
The appeal must be received in writing on or before the date the order becomes
final. However, an appeal to the board of appeals shall not stay any provision of the
order.
(e) Judicial Enforcement of Order. The County may institute a civil action in any court
of competent jurisdiction for the enforcement of any final order issued pursuant to
this section. Where the civil action has been instituted to enforce the civil fine
imposed by such final order, the County need only show that the notice of violation
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and order were served, that a civil fine was imposed, the amount of the civil fine
imposed, and that the fine imposed has not been paid.
(f) From the date the order takes effect, the date on which an appeal has been rendered
against the appellant, or the date on which the judicial enforcement of order has
been rendered, whichever shall have standing, the violator shall make immediate
remediation. If remediation is not initiated within five calendar days or completed
within fifteen calendar days, the County may initiate or complete such remediation,
including but not limited to: brownfield cleanup; bioremediation; soil remediation;
ground or surface water restoration and remediation; environmental restoration;
biohazard remediation; hazardous waste remediation; cleaning, removal, and safe
disposal of chemicals and toxins at an appropriate disposal facility; monitoring
costs; replanting the negatively impacted area with appropriate native or other
plants at the discretion of the County, and safe disposal of poisoned flora and fauna
by composting or other means to prevent further negative impacts. Best
management practices shall be used to compost poisoned flora and fauna. The
County shall charge the violator or its bonding agent for the cost of remediation
accrued by the County.
Section 14- . Penal enforcement.
(a) General Provisions. The provisions of this section are in addition to any other
applicable remedy or penalty provided by law.
(b) In case the parties responsible for violating any provisions of this article fail,
neglect, or refuse to comply or correct a violation, the County may submit the
matter to the proper authority for penal enforcement.
(c) Any person, firm, or corporation violating any provisions of this article shall, upon
conviction, be deemed guilty of a petty misdemeanor and each person so convicted
shall be deemed guilty of a separate offense for each and every day or portion
thereof during which any violation of any provision of this article is committed,
continued or permitted; and upon conviction of any such violation, such person
shall be punishable by a fine of not more than $1,000, or by imprisonment for not
more than thirty days, or by both fine and imprisonment.
(d) Any officer or inspector designated by the County, who has been deputized by the
chief of police as a special officer for the purpose of enforcing the provisions of this
article, pursuant to section 803-6, Hawai`i Revised Statutes, may arrest without
warrant alleged violators by issuing a summons or citation in accordance with the
procedure specified in this section. Nothing in this section shall be construed as
barring such authorized personnel from initiating prosecution by warrant or such
other judicial process as is permitted by statute or rule of court.
(e) Any authorized personnel designated by the County, upon making an arrest for a
violation of this article, may take the name and address of the alleged violator and
shall issue to the violator in writing a summons or citation hereinafter described,
notifying the violator to answer the complaint to be entered against the violator at a
place and at a time provided in the summons or citation.
(f) There shall be provided for use by authorized personnel a form of summons or
citation for use in citing violators of this article which does not mandate the
physical arrest of such violators. The form and content of such summons or citation
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shall be as adopted or prescribed by the administrative judge of the district court
and shall be printed on a form commensurate with the form of other summonses or
citations used in modern methods of arrest, so designed to include all necessary
information to make the same valid within the laws and regulations of the State of
Hawai`i and County of Hawai`i.
(g) In every case when a citation is issued, the original of the same shall be given to the
violator; provided, that the administrative judge of the district court may prescribe
by giving to the violator a copy of the citation and provide for the disposition of the
original and any other copies.
(h) Every citation shall be consecutively numbered and each copy shall bear the
number of its respective original.
Section 14- . Injunctive relief.
Proceedings for injunctive relief in a court of competent jurisdiction may be heard for
potential violations of this article."
SECTION 3. Severability. If any provision of this ordinance or the application
thereof to any person or circumstance, is held invalid, such invalidity does not affect other
provisions or applications of the ordinance which can be given effect without the invalid
provision or application, and to this end, the provisions of this ordinance are to be severable.
SECTION 4. This ordinance shall take effect upon approval.
INTRODUCED BY:
W)z4/0— .—
COUNCIL MEMBER, COUNTY OF HAWAI`I
, Hawai`i
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date:
REFERENCE Comm.. 421.77
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