2020-02-06 Exh B Piilani Partners Remand SMA 18-070

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pump installation standards. In Section 3.2 of those standards, the commission points out that the objective of sealing a well and the reason they do it is it's basically to restore the hydrological and geological conditions that existed before the well—before the well was constructed. And, how do they do that? How do they seal a well? We have abandoned wells all over the State. How do they get sealed? By putting cement in them. I mean, the Section 3.4 of those same rules identifies the materials that are approved for sealing a well, and those materials are, and I'm quoting, "neat cement," I don't really know what that is, "sand -cement slurry, concrete, cement bentonite or bentonite pellets." So, if these are the materials that are approved by the Commission on Water Management for sealing a well, they, by definition, cannot be contaminants. They are restoring the geological and hydrologic condition by, by filling the borehole that existed before it was drilled, and that's that's what the Commission uses. Findings 58 and 59 are similar. I have a hard time making sense out of them. They're, they are critical of Piilani for not providing quantitative or scientific data on the effects of the contamination when, in fact, Piilani's expert testified that there would be no effect, no impact on the yield or the quality of water in the aquifer. So, I'm not sure how Piilani would be expected to provide scientific data on an impact that doesn't exist. That's the end of the findings of fact, so there's basically those five are additional, but most have been addressed before, and the Court has seen them. So, let's look at the conclusions of law that start on the next page. What I thought was striking was that all the conclusions concerning the SMA criteria have just been deleted. So, the proposed decision—should I stop? HALL: No, you're fine. BUNN: Okay. The proposed decision would rely only on the public trust doctrine and not YEE: —Hang on, Pam. So, if you want to have a conversation, please take it outside. I know we're nearing lunch but it's getting a little difficult to hear. Thank you. [Referring to members of the public having discussions while the meeting was going on.] BUNN: Thank you. So, the proposed decision would rely entirely on the public trust doctrine as the basis for denying the permit. It would not rely on the SMA criteria at all. And, if we look at the conclusions on the public trust doctrine, the first one is the same, conclusion 5. It's a restatement of the principles from the Kauai Springs case. And, then in the application of those principles, there is, there are more words added—let's put it that way. It's, it's not any clearer on the analysis and how it got from point A to B, and more fundamentally, it doesn't address the three specific issues pointed out by the Court. There is still no application of the reasonable beneficial use test mandated by the Hawaii Supreme Court, because there has been no examination of the use in comparison or in the context of other pub—excuse me, public or private uses. There is no assessment of the degree of risk of contamination but, again, merely stating that there is a risk, and the Commission has still been unable to point to anything in the record that is contrary to Mr. Nance's expert opinion. EXHIBIT B 16