2025-10-22 Appellants Exhibit 20_Aluli v. Lewin

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The appellants filed a complaint in the circuit court seeking declaratory and injunctive relief. Essentially, appellants sought cessation of construction and operations of geothermal wells along a segment of the Kilauea Middle East Rift Zone. The complaint was brought against True/Mid-Pacific Geothermal Venture (True)which was developing the wells and against the State Department of Health (DOH) which issued an air pollution permit authorizing the construction and operation of the wells. Among other things, appellants contended that DOH erred in issuing the permit when there were no rules promulgated in accordance with the Hawaii Administrative Procedures Act, Chapter 91, Hawaii Revised Statutes (HRS), governing the issuance of such permits. The circuit court ruled that such administrative rules were unnecessary and denied appellants' claim for relief.We reverse. I. It is undisputed that geothermal wells emit hydrogen sulfide (H2S) into the air. Pursuant to HRS § 342B-32,True submitted an application to DOH for issuance of an air pollution permit in conjunction with the construction and operation of twelve geothermal exploratory and developmental wells along a segment of the Kilauea Middle East Rift Zone. HRS § 342B-32 (Supp.1991),[1] in pertinent part, states: The director [of health] may require private persons or agencies or governmental agencies engaged or desiring to engage in operations which result or may result in air pollution to secure a permit prior to installation or operation or continued operation. The director shall refuse to issue the permit unless it appears that the operations would be in compliance with the rules of the department and the state ambient air quality standards. On September 20, 1989, an Authority To Construct (ATC) permit was issued to True by DOH.At that time, DOH had no rules governing the emission of H2S into the air nor had the federal government adopted state ambient air quality standards for H2S. DOH had been in the process of developing proposed rules governing H2S emissions but none had been adopted. It is obvious that both True and DOH believed that emission of H2S from the geothermal wells may result in air pollution since a permit was sought and issued. *804 Finding itself in the anomalous situation of needing to regulate the construction and operation of geothermal wells, but having no regulatory guidelines, DOH's response to True's application was to issue a permit subject to 26 special conditions. Six of these conditions regulated the emission of H2S. In essence, these were the "rules" and ambient APPELLANT EXHIBIT 20, pg. 2 of 6