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HomeMy WebLinkAbout2016-03-03 Hearing Transcript - Update Puna Pono Alliance et al GAF Claim WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT MARCH 3, 2016 A hearing for the Planning Director Initiated Update regarding the remand of Claimant Puna Pono Alliance, et al.’s claim against the Geothermal Asset Fundto the Planning Department was called to order at 10:28 a.m. in the County of Hawai‘i Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i with Chairman Charles Heaukulani presiding. COMMISSIONERS PRESENT: Charles Heaukulani, Donn Dela Cruz, Gregory Henkel, Donald Ikeda, Myles Miyasato, and Raylene Moses. ALSO PRESENT: Duane Kanuha (Planning Director), William Brilhante (Assistant Corporation Counsel for the Planning Director), Danny Patel (Deputy Corporation Counsel for the Windward Planning Commission), Daryn Arai (Planning Program Manager), Jeff Darrow (Staff Planner), Christian Kay (Staff Planner), and Sarah Hata-Finley (Commission Secretary). And approximately 11 people from the public in attendance. PLANNING DIRECTOR INITIATED Update regarding the remand to the Planning Department of Claimant Puna Pono Alliance, et al.’s, claim against the Geothermal Asset Fund for funding to conduct a Psycho-Social Impact and Community Well-Being Study. HEAUKULANI: All right, we’re going to move to number five on the addendum to our agenda today. It’s the Planning Director initiated update regarding the remand to the Planning Department of Claimant’s Puna Pono Alliance, et al.’s claim against the Geothermal Asset Fund for funding to conduct a psycho-social impact and community well-being study. Daryn, could you give us an update on this matter, please? ARAI: Sure, glad to. Commissioners may recall back in March of last year, they reconsidered the claim that was previously awarded to the Claimants, Puna Pono Alliance, et al., and they approved a motion for reconsideration and directed the Department to work with the Claimants on restructuring an RFP that would hopefully, for like resubmittal back through the process. We’ve had limited discussions with the Claimants, in particular Mr. Travis, but at this time, we do not have anything formal in the way of a restructured RFP that we can deliver to the Commission as they directed. We apologize that it’s taken longer than maybe the parties as well as the Commission has anticipated, but there are—it’s proved to be a more complex, thought- provoking issue than we anticipated, so at that point, not having anything else to offer to you or present to you at this point, that is basically the update that we have. HEAUKULANI: Commissioners, do you have any questions of staff on this matter? 1 EXHIBIT E HENKEL: Mr. Chair? HEAUKULANI: Commissioner Henkel. HENKEL: I’m—I’d like a clarification on what exactly is the matter before us. Are we discussing why it hasn’t been resolved or are we going to take additional action? Are we able to take additional action ‘cause, you know, I mean, we did vote unanimously that the parties work something out, and I’m, you know—you know, I’ve asked Daryn a couple times about progress, and it’s kind of alarming that they’re hasn’t been any progress— HARDEN (from audience): Could you use your microphone? HENKEL: I’m sorry. It’s alarming that there hasn’t been any progress for 14 months. So, clarification on what, why are we here with it now? PATEL: So, procedurally, there is no application to act on for the Commission today. So, this was an update on the status. I guess they’ve been issues, and the Claimants would like to give a presentation or testimony. But, to answer your question, there is nothing before the Commission on this matter to act on at this point in time. HENKEL: Okay, thank you, but I’m eager to hear testimony. HEAUKULANI: And, just to, I think, clear up the record, I spent some time this morning looking at the transcripts of our March 5, 2015, proceeding which was a year ago and two days. And, at the time, the issue revolved around Section 103D-101 and 301. It’s really the procurement requirements that every claim or every contractual obligation that the County enters into offer everyone a fair opportunity to, to show that they’re qualified to participate. The motion, I believe, and staff can correct me I’m wrong, but I think that the motion was that we remand the matter to the Department to request and thanks to the Applicants that they would take time to sit with the Department to structure the RFP in such a way as expeditiously as possible put this project out for bid so we can get this study underway. And then there was some discussion and the motion was amended to remand the Department for the Applicants to work with the Department to structure the RFP and to restructure the application accordingly. So, there is no question, and I think the Director and counsel correctly discerned this Commission’s inclination that this project be funded as quickly as possible, and the only hold-up was that the RFP be consistent with procurement laws and that this thing not get hung up in the Finance Department because of some technical issues. So, that’s kind of where we are, and I guess my question would be to staff, what—what has taken place. I join in Commissioner Henkel’s concerns. What has taken place toward that end in the last 363 days and where we are in the process? 2 EXHIBIT E ARAI: As far as the—you know, we have had limited discussion with the parties. Part of the challenge has been that the Department has been charged in making efforts to structure or assist the Claimants in structuring an RFP, and obviously to structure it in a way that hopefully it will be successful through the various processes that such a RFP has to go through. One of the challenges I guess has been that the current claim as structured was recommended for denial by the claim adjuster, and even though that recommendation was originally—what’s the proper word—rejected, at a subsequently meeting, the reconsideration, the Commission voted to use the claim adjuster’s recommendation as the basis for its action which, of course, obviously led to the desire for the Department to work with the Claimants. The Claimants were concerned about having to go and resubmit anything that is restructured back to the claims adjuster. In trying to figure out how one process flows into the other has also been a challenge because we can try to structure an RFP that best preserves what the Claimants wish to have or define as its goal or, or outcome. I feel compelled to look at also whether an RFP can reasonably be funded by going—you know, because the way we look at it is that it would have to go back to the claim adjuster for review because that is prescribed by the rules. You cannot award monies for something unless it is reviewed by the claim adjuster and then subsequently awarded by the Planning Commission. So, there’s these relationships between the various processes in trying to see how one affects the other which has led to some of the difficulties, and trying to find a clear path has been a struggle. HEAUKULANI: You know, just to make sure that I and the Commissioners understand the issue. The issue before us a year ago was the fact that our—the motion that was passed by this Commission was directed to a single individual which was contrary to State procurement laws. Correct? ARAI: Correct. HEAUKULANI: So, was it the, was it the fix to—can we fix that by eliminating that aspect of it? It just didn’t seem like it was, was that difficult to deal with either by putting it out generally to people that might, people or entities that might have a, the skill set to the study that we’re asking for or alternatively to put other individuals on the list. You know, I’m just looking at Mr. Brilhante’s on-the-record discussions, and you know, there were a lot of exceptions. You know, the University didn’t have to go through this. State agencies didn’t have to go through this. And, I thought at one point we were talking about putting other individuals that might have the skill set necessary to do this study on that approved list, I guess is the way to—but, I just don’t understand what the problem is. ARAI: There—there was an attempt to place Mr. Edelstein on the professional services list. We later found out that that’s probably not the best avenue or the proper venue by which to identify because simply my understanding of the procurement law is that after a certain amount, which I believe is more than fifty thousand is that the County of Hawaiʽi, the County has to be the 3 EXHIBIT E procurement officer, if I’m using the right term, or has to procure the services, so that being said, then it suggests that any award of monies may have to go, be awarded to the County, and then, the County goes through the RFP process which then in order to secure the needed services. You can even look back as far as the Adler study that also recommends that process. HEAUKULANI: Commissioners, any other questions for staff? Commissioner Miyasato. MIYASATO: I guess kind of to—I guess for the understand—I kind of feel like we’re back at square one. I—I thought we were at a different stage, but so what you’re saying is that a RFP at this point needs to be authored, put out, bids come in, someone’s selected, then that selection has a labelled amount on it that needs to go back to the claims adjuster approved and then be approved? ARAI: No, I think what needs to be done is a claim needs to be restructured, and that claim then filed with the claims adjuster pursuant to your rules. A recommendation from the claim adjuster is then offered to the Planning Commission for its consideration, and then the Commission decides whether to award the claim. Should the claim be awarded, then an RFP can then be structured around the awarding of the claim. MIYASATO: Okay, I understand that process. I guess, you know, when we had the first go around, I kind of asked the question if that was a sufficient amount at that time, and it just, I guess it just kind of seems how if you have a set amount that’s publicly stated and you go out for RFP’s, I guess it’s kind of known that you have to, that’s the starting point, and you go below that. I mean, it just seems weird that you have an amount first before you go out, and you can kind of—you go out and get qualified people and their prices and then submit that amount and you can lock it in. ARAI: I understand, and it’s not like I fully understand the procurement process, too, although it’s been challenging to review it, but it does occur. I mean, the County or anyone for that matter, will do their best efforts to do a cost analysis in—I guess we have someone who’s more qualified than me. HEAUKULANI: Good morning, Mr. Brilhante. BRILHANTE: Good morning, Chair and fellow Commissioners. William Brilhante, Assistant Corporation Counsel. I think I kind of understand the gist of Commissioner Miyasato’s question, and I just wanted to respond accordingly. I think we’re having a discussion regarding two issues that came up, you know, initially, when this application came forward. First, there was the issue regarding the denial by the claims adjuster related to the claim. In his denial, he stated specific reasons or justifications to base his denial on, and I think one of them was the fact that the contract was specifically, the study would be contracted with a specific individual. I think that was one of his claims. When we had that 4 EXHIBIT E discussion here, that’s when the procurement issue came forward, and we addressed the situation where, you know, on their procurement, we have some, you know, concerns, you know when we’re using County funds. We have to comply with HRS 103 and the like. As it relates to your question, Commissioner Miyasato, if this matter goes forward and there’s a RFP and there’s a price stated in the RFP and the bids come in, and the actual awardee is for a higher price amount then what was identified in the bid, what then happens is the County will then come back and would have to make a secondary request to the claims adjuster to address the higher bid—you know, the difference in the requested proposed amount and the actual bid amount. They would have to go to the adjuster and then his recommendation would come forward to this Commission for approval as well. And, quite honestly, that’s what’s kind of happening with the Mayor’s department initiated study, is we’re going along those lines as well and we’re working through that process because in that case, the bids came out higher as well. So, there has to be a procedure in which we follow. So, we’re still in the process of going through the RFP requirements with the, the Mayor’s office health study proposal so, you know, so something similar like that, you know, could happen here. I’m not saying it would, but I think first and foremost what I think the Planning staff, Mr. Arai, is attempting to articulate is the fact that the first hurdle we have to go through is we have to structure the request, the application, in such a way so that when it goes back to the claims adjuster, it will receive a favorable recommendation and we address the initial problems that were identified in the first denial of the application. That’s not to say that’s mandated that we get a favorable recommendation, but when we’re dealing with public funds, you know, that’s the first step. You know, but for specific reasons as to why you know we feel that the, you know, the recommendation was inaccurate, we’d have to formulate a basis for that. So, when this matter was remanded back to the Planning Department, the first item that needed to be addressed is we had to, we have to structure the application in such a way that it would be deemed a favorable application by the claims adjuster. You know, because that’s the first hurdle. Then, once we get through that step, then we deal with the procurement issue, and, you know, like I alluded to earlier, that’s the same hurdle we’re trying to get over with the Mayor’s office, you know, the initial health study that we’re trying to procure through the Mayor’s office. We’re having to go through those issues. I hope that cleared it up. Clear as mud. MIYASATO: Okay, thank you. HEAUKULANI: Commissioners, any questions for Mr. Brilhante? Commissioner Henkel, I think to your question, and Danny, please correct me if I’m wrong, is we—I mean, this is what we have on the agenda today is just a status update for us. And, I see that we’ve got some folks that are signed up to testify so assuming and expecting that we’re going to get the position of the Applicants and their representatives. 5 EXHIBIT E HENKEL: I have one more. HEAUKULANI: Sure, certainly, and before Sarah tells me to tell you that you need to use your microphone. HENKEL: With the release of material from Puna Geothermal that happened during Tropical Storm Iselle, there was a declaration of emergency I believe right after that. Does that allow for the bypassing of some of the regulatory hurdles that we’re facing here? Isn’t that what the emergency declaration is for? KANUHA: Mr. Chairman? HEAUKULANI: Director Kanuha. KANUHA: Commissioner Henkel, can you restate your question again? I’m kind of getting two, two different components here. You know, not necessarily what—I’m just saying. The emergency declaration was— HENKEL: —My main concern is that this is a time sensitive issue, and that a whole year has gone by, and I’m, and I’m wondering if there is any way to expedite it. You know, I don’t understand a lot of the legal issues, the procurement issues and stuff. I’m a, I’m a layman when it comes to that, but I do know that, you know, there was a release of toxic material. I live five miles away from geothermal, and during the tropical storm, I experienced it myself, and I was wondering if since there was a declaration of emergency following that, if part of that declaration of emergency doesn’t allow for the, you know, expediting these issues. KANUHA: Okay, that’s, that’s the clarification I was looking for because that declaration of emergency was for the storm. It wasn’t for the release. That’s my understanding. HENKEL: Well, the release, the release was a result of the storm as far as I know. BRILHANTE: You know, Commissioner Henkel, I’m going to have to say—what I would have to do is I would have to review the specific language of the emergency declaration. My concern would be when you get a declaration like that, the declaration is specific to the items that have been exempted, and I know procurement is generally an item that’s exempted, but here we’re running into two problems. First, is not only, you know, the procurement requirements are one item that we’re discussing, but the primary requirement is the requirement under the Hawaiʽi County Code regarding use of the Geothermal Asset Funds and the procedures associated with that, that use or awarding of those funds. And, I’m not sure whether that specific code section was exempted under the, the emergency proclamation so that would be my concern. I don’t want to come here—my thought process is that it wasn’t but, you know, what I’m, what I’m thinking, but I don’t want to say specifically on the record, no it wasn’t without, you know, checking first. 6 EXHIBIT E But, we will definitely look into it and if that’s something, if that’s an avenue that, you know, maybe Planning Department can, you know, explore, then maybe we can use it to expedite the process. That’s definitely something we’d, we could consider and look into. HENKEL: I appreciate that. Thank you. KANUHA: One more comment, Mr. Chairman. The difficult we have, the Planning Department has, is that the asset funds are under our Department. So, when the Commission overrode the claims adjuster findings that this particular claim didn’t meet the requirements of, of the statute—whether you agree with him or not—and when the, and when the Commission overruled that recommendation and then asked us to work with the Applicants to try and come up with a submittal that would be more compliant with what the claims adjuster’s recommendation did not find to be, it puts us in a, you know, tough situation because we are the administrators of the funds, which is why the process is set up such that we should be arm’s length from everything. You know, it’s—it’s like we’re a bank and you guys are the credit committee and you’re saying, and we’re saying we don’t think this, you know, a separate body says we don’t think this qualifies, and maybe the Board of Director of the bank, and you say, well, you know, we don’t, we don’t think that is, you know, that complies. That’s a, that’s why we, we try to figure out a way how to work this, but the more we did, the more, the more I found that it was really putting us into a conflicting situation since. And, that’s why it’s set up such that there’s the claims adjuster, you folks do that, and, you know, once the, once the claim is gone, it’s all good to go through procurement. I mean, we don’t have anything to do with the whole procurement because, component because we are the ones who have the funds. That’s the, that’s a difficulty we had with this particular one, and I think this should illustrate the difficulty we’re gonna have if the recommendation of the claims adjuster is, you know, not followed because that’s the only, you know, I think protection we all have that these funds are being used in a correct manner. And, it’d be different if these funds came from, you know, just the County’s general account or somebody else’s account, but those funds are sitting in, in our Department. PATEL: If I can, Mr. Chair, just to follow up with Mr. Brilhante regarding Commissioner Henkel’s question about the emergency declaration. You mentioned earlier that the Mayor’s RFP was running into some issues. Does that mean then that the emergency declaration wasn’t used in the Mayor’s RFP up until this point as well? BRILHANTE: Correct, that’s my understanding. HEAUKULANI: Commissioners, anything further? For staff? For Director Kanuha? For Mr. Brilhante? All right, I’m going to open this up—thank you, Bill, appreciate it. I’m going to open this up to public testimony. We’ve got eight people signed up to testify. I’d like the first four—Tom Travis, Cory Harden, Geoff--Geoff Shaw, and Palikapu Dedman—to please come up to the table. Remain standing for just a second while we swear you in. If you could all raise 7 EXHIBIT E your right hands, please. Do you swear or affirm to tell the truth on this matter now before the Planning Commission? TRAVIS/SHAW/HARDEN: I do. DEDMAN: You guys raise your right hand, too? HEAUKULANI: So, is that a yes? You do swear or affirm to tell the truth? DEDMAN: Yeah, yeah, yeah, yeah. HEAUKULANI: Thank you, sir. DEDMAN: Wish you guys would do the same. HEAUKULANI: Please have a seat. Let’s see. First on the list is Tom Travis. Sir, could you please state your full name for the record. Tell us where you reside, speak clearly in the microphone if you would, and try to limit your testimony to three minutes. TRAVIS: My name is Tom Travis. I reside at on Papaya Farms Road in Kapoho. My full name —did I give that? I’m Thomas Lee Travis. HEAUKULANI: You did, Tom. Thanks. TRAVIS: I was—first, before I start, I would like to make it clear that this is my testimony and not Puna Pono Alliance’s. That, Puna Pono Alliance’s testimony will be given later. I was the contact point for the Applicants that was to work with the Planning Department to try to resolve this issue, and I want to make it clear from the beginning before I start my testimony that I have been asked to do nothing in a year. In fact, 15 months. Nothing. Zero. So, I understand that there—I understand the discussion, and I appreciate the problems of legality and the government, but I want it clear that we haven’t been asked to do anything, so we are at the same place we were on March, in March exactly without anything. We’ve had discussions and in every discussion I asked, is there something you want me to do, and the answer was always no. I offered to help write an RFP. One request that I did make was I asked that the Planning Department use the same procedures to justify spending money for this study that had been used for the over a million dollars of studies that the Mayor’s office has done using exactly the same fund. Now, I understand that they may be more in depth at the procedures than we are, but it would seem that we could follow the same procedures. I am very concerned that the Geothermal Asset Fund has become a slush fund to which the community has no access. As three of us that were on the Adler group, all told them that we 8 EXHIBIT E would be on the Adler group, on the commission that Dr. Kilburn’s study would have an equal footing, that if it stood up to the rigors of the analysis, it would have an equal footing. After the Adler group finished up, we found a testimony by Mr. Jeff Melrose, who had served as the Mayor’s point man throughout the Adler study, in which he said the current Mayor thought the solution being proposed, that is a funding by Dr. Kaye Kilburn wasn’t the solution and, therefore, he vetoed the bill. I point out that they had told us as a condition to participate that Kilburn was on the table but then there’s that statement made in the public record. The second issue is the Geothermal Asset Fund being used for a Geothermal Health Meta-Study. I testified in front of this group that there is no way that the University of Hawaiʽi’s meta-study as specified by the Mayor’s office proposal, to have ‘em do a meta-study, could in any way compare to the meta-study already done as the technical document to the acute exposure done, acute exposure guideline provided by the Environmental Protection Agency, and that is, that meta-study was done by the National Research Council. That study was funded. It went ahead, and the result of that was a sophomoric study in which a group of people, who had no expertise on how to conduct an epidemiological study, made a recommendation to do so. th The fourth \[sic\] issue I have is that on August 7, Puna Geothermal Venture had a major release of hydrogen sulfide that caused loss of consciousness of over a dozen people, contributed to the death of two people, caused respiratory problems, skin rashes, and other exposure related symptoms to over a hundred people. My wife interviewed all of those people and gathered the time of the study. The County did not assist community members in investigating these people although we asked that they did. Despite my advice, the request for proposal for the geothermal health study that has been previously discussed, the one by the Mayor’s office, was not modified to include the fact that the harm had already occurred to these people. It strikes me as odd— Tom Travis—it strikes me as odd that we would do a study for almost $800,000 to try to determine if there’s harm from geothermal in lower Puna when all we have to do is go out and th talk to the people that were hurt on August 7, but we have not even done that. Now, for a year, nothing has happened with the Planning Department despite the Planning Director’s words, I will, I personally will make sure that this RFP gets put together, gets formatted, and gets processed in the most expeditious way I can do it. I believe those were your words, Director Kanuha. The evidence would either indicate that the Planning Director has been prevented from expeditiously taking action or is not very effective in doing so. I am losing confidence in this County’s administration’s use of the Geothermal Asset Fund. It seems like to me that it’s a fund that can be used by the Mayor’s office at will but at which the community has no access. Thank you. HEAUKULANI: Thank you, sir. Cory Harden. HARDEN: Good morning. Cory Harden for Sierra Club Moku Loa Group. I first want to thank all of you for your volunteer service on this Commission. I am not going to claim to understand 9 EXHIBIT E all the ins and outs of the County process. Just, it’s been way too long to get the basic health study off the ground, and the Native Hawaiian health study. It seems like if the Geothermal Asset Fund can be used for environmental and health studies, and for equipping the Fire Department with monitoring equipment that apparently has never been used for geothermal, if it can be used for those purposes, it would seem like the Asset Fund could be used for this Native Hawaiian study. It was difficult even for people to get this item on the agenda today, and basically your decisions, Planning Commission, are not being carried out. Puna Geothermal is a hazardous industrial operation built way too close to people’s homes. It’s a classic and continuing case of environmental injustice. Please look at possibly using the emergency declaration or other means to get this moving. Thank you. HEAUKULANI: Thank you. Geoff? Am I saying that correctly? SHAW: Geoff. HEAUKULANI: Geoff, Geoff Shaw. SHAW: My parents are English so they, they had a reason for burdening me with that spelling. So, anyhow, Geoff Shaw. Thank you for giving me the opportunity to share my thoughts because that is the foundation of what is being discussed today. If we are to move forward as people from all walks of life, we have to learn to respect all perspectives. Modern Hawaiʽi is a product of colonialism and a basic tenet of that colonialism is one nationality imposing its will on another and that process inherently means that perspectives of the oppressor overrides the oppressed. This has not happened overnight. It is a process of conditioning that happens over time and if that process is to be reversed, that will also happen over a period of time and most likely won’t be pretty. I could go into my version of history that has led to this point, but that is not really necessary. What we really need to ask is the question do we perpetuate colonialism or do we remedy it? If we want to remedy it, then we need to understand it and the study is a great way to start. The effects of oppression aren’t always apparent, and people are reluctant to discuss it. So, for those on the outside looking in, it can take some searching to see it. When the discussion does surface, it is often reversed such as non-Hawaiians being excluded from Kamehameha Schools and in other instances, it gets dismissed too easily such as when Faye Hanohano was upset about not enough art by Hawaiians being promoted by the Hawaiian Arts Commission. She raised a point that was valid, but everyone focused on a response which was immediate and emotional but that is often how these issues bubble to the surface. Oppression is a form of abuse, and people naturally are uncomfortable with being abused and discussing that abuse. Colonialism is a cycle of abuse on a national scale, and you can’t break that cycle by ignoring it. 10 EXHIBIT E Bringing this home to geothermal, people don’t seem to dismiss what were likely false projections from the late seventies and early eighties that there was potentially 500 megawatts available supposedly based on science. In the 35 years since, there have been numerous test wells dug that turned out not to have enough potential, one failed pilot project, and the PGV plant which for a brief period of time produced 38 megawatts but is permitted to produce up to 60. For the 500 megawatt number to prove true, there would need to be 13 more PGV’s producing at the maximum level that they only achieved briefly. If you want to be scientific, you had to base your facts on data and now that there is a reliable data base, are they adjusting? Not to my knowledge. They are sticking with that 500 megawatt number which was based on speculation. That makes me question science was ever a player in the geothermal equation or is it strictly a clash of cultures—one that dictates where, where nature is to be exploited when reasonably possible and the other that dictates that nature is to be revered and man should maintain harmony. The latter bases their culture on centuries of living on these islands while the other explains itself through false science that alters reality to justify its means. At the beginning of geothermal development, thousands of people protested right by Hawaiians but that energy has largely dissipated, but what is the result? On the obvious level, there has been one huge blowout back in the 1990’s and many smaller ones that affected the health of the immediate community. The plant has mostly produced a steady supply of baseload energy to the grid but at what cost? There are some who have rebranded geothermal energy as Pele’s gift. If that is a gift, then a thief that breaks your window and steals from you—is that considered a gift? Or better yet, break some windows of many people’s homes, finally finds what he wants, even then not all what he anticipated, but enough to go ahead and take that gift. That is a very giving person who looks at that as a gift. In the process of justifying geothermal development, Pele has been marginalized into being synonymous with, with lava when Pele is so much more. Hawaiians have the right to stay true to their beliefs. The history of the last century and a half is a cautionary tale that shows that the culture that grew from these islands is a culture that understands these islands, and ignoring that reality has hurt the Hawaiians the most but everyone who, who loves this place also suffers. HEAUKULANI: Thank you, sir. Palikapu Dedman. DEDMAN: Palikapu Dedman, Pele Defense Fund. I don’t wanna stand here and repeat myself. You folks all know what’s going on. I just want to dialogue with the Planning Director on what you gonna do about the situation. You guys all made a bunch of excuses. Now, how you’re gonna remedy that? Your three minutes with me, dialogue, so everybody can understand where we’re headed. So, what’s your answer on how we gonna deal with this situation? KANUHA: I deal with the situation based on what the Commission’s decision is. How to use the asset fund is—we got, I got nothing to do with that. DEDMAN: I was going with the word, Director. So what do you direct? 11 EXHIBIT E KANUHA: I take my direction from the Commission. DEDMAN: So, what’s your answer with, with what you gonna do? You have suggestions as a Director? You’re the only recycle that the Mayor when put out. He recycled you like government property. You’re back again. You were gone for a while. You were here when we were dealing with geothermal. You know all about the round table discussions. You scrapped the whole thing toward the end. What are you gonna do about it now? Were you hired back to push geothermal with the Mayor or what? What is it? Is it a conflict of interest that you folks wanted to happen or do you understand about the study? EPA just showed you that there was a problem with PGV. Just recently. But, PGV gets their permission from you to operate. Are you liable, too? What’s the insurance that the people have with your permitted process? You’re supposed to be a planning commission. You guys one permitting permission \[sic\], Commission. Not a planning commission. So, what’s your idea on how you’re gonna deal with this situation now? What’s your recommendation to these people since you’ve been around it the longest? KANUHA: The recommendation to this Commission was given to them by the claims adjuster, and they did not take that recommendation which is why no matter which way they want me to see how this could fit, I just can’t make it fit. DEDMAN: Then, why wasn’t the claim adjuster sitting here to make all of that adjustment before we make these commitments? What is that all about? KANUHA: What, what commitment? DEDMAN: The commitment of passing to do the study. The commitment of so much amount of money one year ago. KANUHA: Right. DEDMAN: So is it to delay for one year? In the meantime, EPA just came out and said there were wrong things done. In the meantime, people are getting sick in the process. What’s the one year about delaying? Is it because geothermal might be taken out of your pocket? This free money that you guys receive? Not even taxpayer money. It’s royalties from Native lands, Native rights, Native beliefs. That’s where you get your money from? You guys real racist by sitting there and ignoring it, man. No laugh. That wasn’t a laughable thing. You know I’m right. Nobody invited you folks. So, not that you’re here, how you treating me about the situation? Like we stupid? You was around the longest, Duane. You should have more input on this than anybody else— the do’s and the don’ts. ‘Cause you went through that with us before. Here you are 20 years later playing the I don’t know card. You the one should be coming up with ideas and situations on how to fix this. Quit using procurement laws and other crap just to hide behind something legitimate. You neva use all of that when you needed the money to do all kinds of stuff and 12 EXHIBIT E repairs around Puna. Neva run into no problems. Bam! Here is a fire station. Roads. Recycling rubbish. No problem. Come to this—problem! Yeah, I blame you. I think you should be taking care of the situation knowing most about it. So, what’s your commitment to this, and how fast does it get done. PATEL: If I can just interject real quick— DEDMAN: —I just talking to him. I like his answer— PATEL: —I understand. Let me just say what I’m going to— DEDMAN: —You can interject after I get my answer— PATEL: —Let me just say what I’m gonna say first, okay? This is not the forum to engage in this kind of a dialogue. DEDMAN: What dialogue? I’m asking a simple question. You one legal person trying to make it a dialogue. Trying to look at some legal angle when it’s just up and up with this guy. That’s all. Simple. PATEL: Just stating for the record, this is not the forum. So, if—if you’re going to continue in this at the Director’s and Chair’s leisure, that’s fine, but this is not the forum for that. DEDMAN: If he wants to dialogue, it’s okay, yeah? PATEL: That’s what I just said. KANUHA: I don’t, I don’t have a problem dialoging with, with Pali, and you know again, the way the, the way it’s set up now, is all of the claims gotta go through the claims adjuster, okay? That’s, that’s the way it was set up. The claims adjuster does whatever he does and makes a recommendation not to me, but he makes a recommendation to the Commission, okay? They either take his recommendation or not. And, his recommendation is pretty specific because the—once his recommendation is based upon whether or not the, the claim, right, meets the requirements that’s gonna be able to pass procurement. You know, and I got, we got nothing to do with the procurement side. If those requirements can’t be meet \[sic\], met, you know, even if the Commission says, you know, we understand the claim, what the claims adjuster said, but you know, we really think we want to do this and we’re finding out with this particular one, it’s just not gonna pass procurement, you know. No matter how—the only way that can be—the only way that can happen is the claim has to be reformatted, done whatever so that the claims adjuster can look at it and say okay, this is good to go, you know. That’s—that’s the predicament, you know, I’m in right now. DEDMAN: For how long you think we gotta wait again? Another year? 13 EXHIBIT E KANUHA: Just depends what, you know, the Commission’s directive or decision’s going to be, but, you know, until the claim is adjusted, and, again, yeah—that’s, that’s where the real issue is, yeah? Making some adjustments to the claim so that it can meet this procurement requirement. DEDMAN: And where does the Mayor’s situation come in? Does it have a problem with that? KANUHA: Well, the Mayor’s situation is the Mayor’s Geothermal Health Study, they had a hard time getting into procurement themselves. Matter of fact, it’s been eight months, and they’re not through. They’re not even through the process. Eight months—none of the funds that the Commission allocated to them have been issued— DEDMAN: And that’s not taxpayer’s money; that’s geothermal royalties? KANUHA: Geothermal, right. It’s geothermal fund— DEDMAN: —So, it’s nothing to do with the taxpayer, yet it has all these taxpayer’s fingers— KANUHA: —Exactly— DEDMAN: —on top of it? KANUHA: Exactly. HARDEN: So, what does it need in it to get through the claims adjuster? KANUHA: And that’s what we’ve been trying to figure out. What would it take for the claims adjuster to run this, this claim through? Again, the more we get into it, the more we’re going, eh you know what? The money that this claims adjuster is going to make a recommendation as to whether or not it’s good to go or not is money that, you know, we control. So, that’s why we rather keep that out of our wheelhouse. You understand what the, what the deal is. That asset fund is—is basically protected. I mean, we can’t use it for, we can’t even use it for the claims adjuster. You know, we gotta pay him out of our own budget. There’s no staff. It’s—it’s a real protected fund, and the setup is like this and so it’s protected where it is and how people can use it is through this procurement thing. And, believe me, man, we in government, we run into our own issues with procurement, but, you know, there’s a reason for that. It’s not as if there’s, there is a way to have certain things go through procurement and others not because the guy that, the gatekeeper for the procurement thing, he has, you know, Federal standards and everything weighs on him, so he’s gonna make sure everything—every “i” is dotted, every cross is “t’d.” \[Sic.\] That’s— DEDMAN: Is this adjuster a private or is he a County employee? KANUHA: Oh, he is a County—he’s with the Department of Finance, yeah. BRILHANTE: May I interject. The claims adjuster is an independent third party. 14 EXHIBIT E KANUHA: That’s right. But, the—the claims adjuster is contracted, well we get the claims adjuster through procurement, you know. We have to say this is what we’re looking for these are what his requirements are and whoever we select has to be off of that list and all of that stuff. DEDMAN: So, he’s not a County employee? He’s a hired contractor? KANUHA: The County employee is the person that reviews the RFP to determine whether or not it meets the procurement requirements and all of that stuff. That’s—that’s what they do in here. SHAW: I mean getting into more specifics, getting back to his initial objections, what were those initial objections? That would be on the record somewhere, wouldn’t it? HEAUKULANI: That is part of the record, and, you know, I don’t want to cut off this discussion ‘cause I think these are questions that everyone in the room is interested, but I, we just can’t sit here all day and have a question and answer session. That’s part of the record. It was th fully briefed and fully addressed. You can pull the transcripts of the March 5, 2015 hearing, and you’ll understand what the position is. I had a question, though. Mr. Travis, thank you, sir, for your written summary. I appreciate it. I really appreciate you bringing to this Commission’s attention Mr. Melrose’s comments to the joint fact finding workshop in March 2014. I wanted to ask you—I remember, and I might not be pronouncing the name right. I remember Professor Edelstein? Edelstein. TRAVIS: He’s the person, yes. HEAUKULANI: But, I wanted to ask you about Dr. Kaye Kilburn. I don’t think I’ve heard that name, and that’s— TRAVIS: —He— ARAI/HATA-FINLEY – Microphone. TRAVIS: He, as I understand the history, and I was part of it, but sometimes memory doesn’t serve, there was a bill passed by the County Council to do a health study in 2012, I think it was about the July time frame. And, the Mayor—that bill was passed by the County Council. The contents of that bill were to do a health study that would have been done by Dr. Kilburn. It was proposed by the, by Puna Pono Alliance to the County Council, and the County Council said okay, go ahead and do this health study. The Mayor subsequently vetoed that and said that the County Council was using the wrong funds; that the correct fund to be used for the geothermal health study should be the Geothermal Asset Fund, rather than the Geothermal Community Improvement Fund. 15 EXHIBIT E And, then the Mayor used his Research Department money to set up the Adler study. The Adler study recommended the, the health study be done and subsequently work was begun on an RFP and a process to get in an appropriately positive claims adjuster ruling for the geothermal health study. Much of that work, at least when I was involved in it, we remained involved in it for a long time, much of that work was headed by Jeff Melrose, and, so that’s what the history of that is, sir. HEAUKULANI: Thank you. Appreciate it. Commissioners, any questions for these testifiers? Thank you. I’m going to call up five more, and so we’re going to have to bring one more chair up to the table. Jim Albertini, Katarina Culina, Robert Petricci, Luana Jones, Ronald Fujiyoshi. If you five could come up, please remain standing for just a minute here so we can swear you all in at one time. If you could all raise your right hand, and do you swear or affirm to tell the truth before the Planning Commission in this proceeding? TESTIFIERS: I do/yes. HEAUKULANI: Thank you. Please be seated. Jim Albertini. You’ve done this often enough. Just please help us out speaking into the microphone and try to limit your comments to three minutes, please. Thank you. ALBERTINI: Good morning, Commissioners. HEAUKULANI: Good morning, sir. ALBERTINI: And I submitted written testimony. I’ll be brief and add a few additional th comments. On January 8, I testified on behalf of our organization in support of the proposed Michael Edelstein Native Hawaiian Psycho-Social Impact Health Study that was passed unanimously that day by this body, and I congratulate all of the members of the Commission for taking that action. It was very good. And it’s now 14 months later, and that study hasn’t been funded or initiated. We want to know why. Why wasn’t this study done more than 30 years ago when geothermal was first proposed? Geothermal energy involves drilling into Pele, the goddess of the Volcano. What are the psycho- social impacts to Native Hawaiians from drilling into their deity for energy and profit? Do Native Hawaiian lives matter? It doesn’t appear so. It looks more and more like institutional racism is involved in this long delay at looking into impacts to Native Hawaiian people. It looks more and more there is an attempt to delay, to stall this study so it doesn’t get done. It seems to me, and I’ve listened carefully to all this testimony this morning, that there’s obstruction going on in the Planning Department or even among certain members of this Commission. Someone or some people in the Planning Department or this Commission are acting like il Duce, Donald Trump. Acting like they are the law. We want to know who was holding this up and why. We want answers, and more importantly, we want the study to go forward now. And, the claims adjuster to me is the tail. This Commission is the dog. The tail doesn’t wag the dog. You made the decision for it to go forward. If—if it’s obstruction, you need to take action, and 16 EXHIBIT E the Planning Director needs to be directed, and the staff that are over there kuka kukai when they should be listening over here. It’s disgusting—the points that Daryn made that there hasn’t been anything done, and the same with Duane Kanuha. Hey! Hey! I wanna talk to you folks, please. The public is testifying. Call them over here, please. The Director should be here when the public’s speaking. We’re talking about you, Mr. Kanuha. HEAUKULANI: Go ahead, Mr. Albertini. ALBERTINI: You said a year ago. You were going to take responsibility to get this thing done, and you heard from Tom Travis. Nothing has been done. You were the one that needs to take responsibility for that and get it done. BRILHANTE: Excuse me, Chair. May I raise an objection? HEAUKULANI: Mr. Brilhante. BRILHANTE: You know, the County has a requirement in that we treat everybody in the public with respect and dignity, and all we request is that when public officials are being addressed, that the same consideration be given to the public officials, and if we could direct the testifiers to keep that in mind. HEAUKULANI: Fair enough. ALBERTINI: This started because we’re testifying, and you’re over there talking with each other. There’s a public meeting going on. HEAUKULANI: Mr. Albertini, you’re talking to this Commission. You’re not talking to the Planning Director. Go ahead. ALBERTINI: He’s part—he’s part of it, and he’s the one that was given the responsibility by the Planning Commission a year ago, 14 months ago, to make sure this study got done a.s.a.p. You failed in that position. I think you’re obstructing justice. I think the Planning Department is obstructing justice, and this has gotta change. BRILHANTE: Again, Chair, objection. Just to be clear. The burden has always been on the Applicant to submit their claim. The Planning Department plays no role in the validity of the claim that was submitted. HEAUKULANI: I’m not sure that that’s appropriate. Your point is taken. Mr. Albertini, go ahead. ALBERTINI: I think I’m finished pretty much. The Planning Commission made the decision. I commend that decision. It’s been 14 months since that decision’s been made, and no effort has 17 EXHIBIT E been made by the Planning Department to work with the Claimants to move this thing forward. Now, there’s a problem there. There’s an obstruction of the process. It seems deliberate to me. It’s not accidental. The Claimants are willing to work to move this thing forward. The obstruction is with the Planning Department, and I really question Mr. Ikeda’s motivation when he called for the reconsideration of this a year ago, too. You were a County Clerk. You were a County Councilmember. Now, you’re a Planning Commission member. If there’s anyone on this Commission that knows the process and how to jam it up, sabotage it, it is you. You could be working to make this thing go forward, too, if you really supported the Native Hawaiians’ position that this study should be done. And, I challenge all of the Commissioners, especially Mr. Ikeda since he made the motion for reconsideration. HEAUKULANI: You know, Mr. Albertini, I’m going to have to call you on that one. I have a problem with you challenging Commissioner Ikeda. He filed the—he moved to remand it. I seconded it, and I seconded the motion because the—what I didn’t want to have happen, and as it turns out, it happened that way anyway, but what I didn’t want to have happen was for this thing to get stuck in Finance because of procurement and get ignored for a couple of years. I didn’t want you folks to have to file suit and have it, have it loll away across the way for another three years. So, I—I share in your, I share in your concern. I think it’s inappropriate for you to attack Commissioner Ikeda on this one. He filed—he moved to remand it for the same reason that I had the second, because neither of us thought that it would do anyone any good to let this funding go float around in Finance for a while. ALBERTINI: Well, then, get it done— HEAUKULANI: I don’t disagree with you that— ALBERTINI: —if your good faith is—get it done! HEAUKULANI: My problem is, I think you, you need to focus on what the issue is and not focus on individuals. ALBERTINI: How long do we wait before there’s another suit? It’s been thirty-some years with geothermal, and this is the most basic study you can possibly do. Look at the impacts to Native Hawaiians from drilling into Pele. HEAUKULANI: I don’t think anybody has a problem with substantive issue with this. I looked at the transcript. I looked at Director Kanuha’s testimony on the record. I looked at Mr. Brilhante’s comments on the record. No one there had a substantive problem with it. Now, I will grant you that sometimes you can procedural games, and you can stop substantive movement forward by playing games behind the scenes. I’ll grant you that. But, no, I don’t think—I didn’t hear anyone in the room disagree that the study was warranted and necessary. ALBERTINI: You heard Daryn Arai, and you heard Tom Travis’s testimony. Nothing’s been done in a year— 18 EXHIBIT E HEAUKULANI —I— ALBERTINI: —14 months— HEAUKULANI: —That is— ALBERTINI: —That’s inexcusable! HEAUKULANI: That’s a problem. I don’t disagree with that. ALBERTINI: And Duane Kanuha said he would personally take responsibility and make sure this got worked out to a way it could go through. What have you done in a year? That’s the question Palikapu was asking you. What have you done in 14 months? HEAUKULANI: Thank you, Jim. Katarina Culina. CULINA: Aloha. My name is Katarina Culina, and I’m testifying today as a Director of Puna Pono Alliance to ask the Commission to consider, approve, and authorize the Native Hawaiian Psycho-Social Impact and Community Well-Being Study. I also want to point out that the addendum for today’s agenda, the Native Hawaiian was left out. So, the purpose of the study is two-fold. Specifically, to conduct a baseline and perspective psycho-social impact assessment on the Big Island in order to identify past, existing, and potential adverse impacts upon Native Hawaiians associated with the development of geothermal energy. The second general purpose is to provide a framework to the government on how to measure and examine impacts of proposals for energy, tourist, or science developmental projects, proposals on the Native Hawaiians whose religion is based on relationship with land and nature. Currently, there is no framework for balancing this perceived religious desecration of Hawaiʽi’s natural environment against the interests of those asking for land use permits. Some of us have already spoken here to give you a little bit more of the background of this original proposal—2012, Mayor Kenoi commissioned the Geothermal Public Health Assessment Study Group or Adler Study Group as it was called. It’s called to examine the potential health effects from geothermal development. In 2013, the study group issued a report and recommendations. In its narrative on Native Hawaiian issues, it says, beginning of the quote, Native Hawaiians, especially Pele practitioners, have suffered additional health harms because geothermal energy development is a cultural and religious desecration. Geothermal energy development on top of other historical dispossessions now creates unique suffering amongst Hawaiians in ways that stand apart from non-Hawaiians and the conventions of Western science and medicine, end of quote. So, as you know, several members of the study group have joined with community groups, Native Hawaiian advocacy groups, and other community leaders in asking for the approval of the funding for this study, which was originally submitted to the Commission in the late 2014. 19 EXHIBIT E th On January 8, 2015, the Commission, you have awarded the authorization of the release of th funds from the Geothermal Asset Fund. However, a month later, February 5, Chairman Miyasato has directed that a discussion and action on a motion for reconsideration by th Commissioner Ikeda of this January 8 action be placed on the next Commission agenda which th was March 5. th So, at the Commission’s meeting on March 5, 2015, the Commission voted to approve the motion for reconsideration and directed that this matter be remanded to the Planning Department with the request that the Planning Department and the Claimants work together to restructure the application and to structure a request for proposal, an RFP. Within two days of the March Windward Planning Commission meeting, the signatories on the original request notified the Planning Department that the contact would be Tom Travis. As of March 2016, a year later, the Planning Department has not specified any action required of the signatories to restructure the application. So, you have not actually told anybody what specifically all needed to be do, needed to be done by the claims adjuster, suggestions or to structure an RFP. The interactions between the Planning Department and the signatories included one meeting between Travis and Daryn Arai, in which the Planning Department specified again no action for the signatories. One set of emails in which the Planning Department suggested a revision process for Rule 12, which relates to the Geothermal Asset Fund. The signatories indicated they did not feel that the revision of Rule 12 is necessary to fund the study, but that they were willing to participate in such a process. Again, no follow-up on this has been received from the Planning Department either. In conclusion, it is clear that studies can be funded using Geothermal Asset Funds since the Commission has approved the Mayor’s office’s request to fund environmental and health studies and has used the fund to equip the County’s Fire Department as you already heard. If the County knows how to expend the fund for this type of expenditures, bureaucratic complexity should not be allowed to prevent the community from using the GAF for this most important and timely study. We and other signatories remain ready to do what is necessary to meet any requirements to fund this study. We ask the Windward Planning Commission and the Planning Department to take necessary action to release the GAF funds to perform this study. HEAUKULANI: Thank you. Robert Petricci. PETRICCI: Aloha Commission Members, and thank you for allowing me the opportunity to speak again. It seems like this has been going on for years, and it has actually. Since 1989, when Director Kanuha with PGV wrote Rule 12 and, and that was after the community had spent a year trying to write, write-up these rules, and on the last day, all the community work was 20 EXHIBIT E discarded, and the rule that was implemented was written by Duane Kanuha and PGV. And that’s how we got here. And now we’re still here dealing with the same, the same kind of thing. So, it’s really interesting that the fund can be used to build bus stops and pave streets, but it can’t be found how to use the money for what it was intended for which was to protect this community. Director Kanuha is the person that set it up that way, and that was over the objections of the community at that time, and I was there, and Luana Jones was there, and a lot of us were there. I mean, that’s ’89, ’99, 2009. It’s gonna be 30 years. Its 27 years that this has been going on, and I think it is unacceptable that after 27 years, we can’t find a way to fund this study and the other health studies. We went to the—it took us years. We went to the County Council with hundreds of people, and we got them to approve a health study with Dr. Kilburn, and the Mayor vetoed that study, and that was years ago. And, here we are still. We have none of that. And, how much of that money has been used for other things, but we’ve never been able to accomplish what the funds were intended for. You know, I, it just seems like it’s either, there’s some kind of fix is in. I mean, special interests like PGV, they have a lot of political clout, and they’re able to do things, and our community has been, has been hurt. A lot of people have been hurt, and this has been going on for a very long time. First, we were hurt by the geothermal releases of the toxic gases, and now we’re being hurt by the process that’s preventing anything from being done about it. So, it’s, you know, it’s a double injury, and I mean, it’s almost like there’s corruption in play here at some level because it’s hard for me to comprehend how after all of the things that have happened. And when Iselle happened, there were a lot of people hurt. Over a hundred people. You know, that—and so you had adjusters for the house’s damage. You had like 20 people out there. From FEMA—they were, anything if your house, your car, you know, anything happened so we asked for a nurse to interview the over hundred people that had been injured because we had been trying to get the health study, and the County said yeah, we wanna do the health study, and so, you know, our position was that well here you have a whole bunch of people that have just been injured. Please send a nurse out here, and let’s get, let’s document this. Mayor Kenoi told me personally no; he wouldn’t do it; that we should do it ourselves because we were good at it. And, I—I don’t understand that kind of thinking or being treated that way after all this time, and after everything that’s happened. There’s been at least 17 Civil Defense declared emergencies of that one power plant. I can’t think of another power plant in the State of Hawaiʽi that’s even had one declared Civil Defense emergency, yet we have 17 out there, and we’re talking about are they hurting people? Well, I think the Adler report found that they are hurting people, and nothing’s being done about it. And, the Goddard & Goddard report after the blowout in ’91 found that people did get hurt. You know, I don’t understand. It seems to me that if Director Kanuha wanted to get this study done, they can, they can get all, anything they want done, you know. I think it’s intentional. I’m sorry, but that’s what, that’s how I feel about it at this point. Some of us lived there and been through all this and been part of the process the whole time. Thank you. 21 EXHIBIT E HEAUKULANI: Thank you, sir. Luana Jones. JONES: Here we go again. Aloha all you guys. I want to start with apology, you know, for the rudeness, but we’ve been dealing with this for so long. You know, each of us have different ways of dealing with our frustration and our anger. I can’t even bring my husband to these things anymore, but the fact is we’re all connected. Whatever the issue, we’re all connected. And, I’ve been praying about this for a long time in addition to being impacted by it. Watching my neighbors being impacted by it. And—one time was in Kalapana, and it, message came to me. Help, help the hewa. You know what hewa is? It’s when things is not right. Terrible, not right. And, so that’s why I’m here. Hopefully, to help the hewa. Government’s supposed to serve the people. Serve the people, and not usurp the people. And, as the, if you, if you’re not aware as the ʽaha aloha ʽāina grows, the people of this place, assert their rights, and as we go into the future with our young folks coming up knowing the language and the culture, things are gonna change. It’s like what happened with Mauna Kea. It’s just the beginning of the change. We all need to take our responsibility. Take our kuleana to take care of Hawaiʽi. I was contemplating bringing a picture in from my car, but I don’t know if any of you have seen what kind of sludge that they reinject into the ʽāina. I have a picture in my car if you want to see it, but it’s pilau. And, you know, in our culture, that’s not acceptable. Just for that reason alone, we could not do geothermal. Not that way. I respect Pali’s manaʽo, and I agree with that but, you know, us Hawaiians have been dealing with so much hewa for so long being pushed to the side, and I don’t know the word—like, nobody is noticing. Nobody is acknowledging. But, these are real things, and we are all connected no matter we come from. When we come here—and it’s important that we, when we get in positions of leadership that we serve the people. And a—yeah, I just want conclude with the State motto. It’s, you know, Ua Mau ke Ea o ka ʽĀina I ka Pono. That means the life of the land is perpetuated in righteousness, you know. What is—what is the right thing to do here? I think we took the wrong turn a long time ago, and our State song, Hawaiʽi Ponoʽī, Hawaiʽi pono—right, righteous Hawaiʽi. And then Robert mentioned 1989, the permit was approved, and I was there, and Duane and Russell were there, and you. I remember you handing Condition 51 to us and saying this is going to take care of the people, and, really, we didn’t have much say, but today, I would just like to ask you and ask you all, even us—I am thankful for all these people, that are taking care of the people, to please, please take care of the people. Mahalo. HEAUKULANI: Thank you. Kahu Fujiyoshi. 22 EXHIBIT E FUJIYOSHI: Good morning, Chairman Charlie Heaukulani, Members of the Commission. I’ll try to direct my comments to you. My name is Ronald Fujiyoshi. I—I’m, my family moved here about 60 years ago now. I married a girl who’s lived here. Our family has been here for a few generations but still not as long as the host people. I’ve been listening to—forgive me if I say things, repeat things that have been said before because I know it’s redundant, but I think I need to say it. Listening to staff from the Planning Department and Corporation Counsel report kind of seems to have us focusing on the things like procurement laws, and I think my understanding of the context of this issue is different from that. And I want to explain that. I think we need to understand clearly the background of this study, and as Katarina said, it’s not on the agenda correctly because it’s supposed to be the Native Hawaiian Psycho-Social Impact and Community Well-Being Study, which I will call the Edelstein study. Now, the, in August, the—of 15, 2013, I attended a meeting in Puna, in Pāhoa of the geothermal public health assessment study group which I call the so-called Adler study because Mr. Peter Adler facilitated that study group. And, in that meeting, I heard quite a few Native Hawaiians voice their disapproval of a study that did not take seriously the impact geothermal had on the health of Native Hawaiians because it did not spell out the violation to their cultural and religious traditional beliefs, traditions and beliefs. Now, as you should know, those Native Hawaiians that were supposed to be in the study weren’t there, and so the impact of those Hawaiian voices at that meeting, I think, was crucial to that study and came out in some people’s comments in the way the study came out. Now, this study that we’re talking about, the Edelstein study, as Jim Albertini pointed out, is long overdue. Now, why do I say this? This study comes closest to showing whether the rights guaranteed to Native Hawaiians in Article 12, Section 7 of the Constitution of the State of Hawaiʽi, on protecting their traditional and customary rights are being violated. Can I say that again? This study comes closest to showing whether the rights guaranteed to Native Hawaiians in Article 12, Section 7 of your Constitution of the State of Hawaiʽi on protecting their traditional and customary rights are being violated. This study should have been done a long time ago. th So, let’s recap what happened on the study. In my recap, on January 8, 2015, I testified and heard testimony from various members of the public strongly in favor of the Native Hawaiian Psycho-Social Impact and Community Well-Being Study. There was no opposition voiced from the public. After listening to the credentials of Dr. Michael Edelstein, all of us in the room seemed convinced of his expertise. As I recall, the vote from the Windward Planning Commission members present was unanimously in favor of funding the study from the Geothermal Asset Fund to the tune of $293,760. The staff did not voice any problem with this decision as I recall. Then, a strange thing happened. One Commissioner moved in the February Commission th meeting to place on the agenda a motion to reconsider the decision. At the March 5, 2015, meeting in which I testified, the said Commissioner explained that the motion for consideration \[sic\] was to direct the staff of the Planning Department to add the name of Dr. Michael Edelstein to the list of those who can contract with the Department to conduct a study, thereby, speeding 23 EXHIBIT E th up the process of the study. That was my understanding of what happened on the March 5 meeting. Then, surprisingly, nothing moved until here we are 14 months later with no progress. Why has this happened? It sure smells of something not pleasant. I don’t—I think almost anyone who reflects upon this situation would come up to the same conclusion. It does not smell right. Instead of the study being speeded up, it stalled. Why? With the testimony from the public all in favor of the study, and with the unanimous vote of the Commissioners, you would think that there should be no problem. Isn’t it the job of the staff to carry out the wishes of the public and the unanimous vote of the Commission? Maybe I’m too simplistic, but to me, that’s the way I see it. th So, in conclusion, I urge you, Commissioners, to return to the decision made on January 8, 2015, in favor of the study, and to fund the study from the Geothermal Asset Funds. Staff’s role is to figure out how to implement your decision. If it means bringing the claims adjuster here in the meeting so you can figure it out together, then do it, but it should not take one more month to figure out. Thank you very much. HEAUKULANI: Thank you, Kahu. Commissioners, any questions for these testifiers? Thank you. Is there anyone else that has not testified that wishes to be heard on this matter? You wish to testify, sir? ALEXANDER (from audience): Yes. All right— HEAUKULANI: Could you please raise your right hand? Do you swear or affirm that what you say to this Commission is going to be true and correct? ALEXANDER: Yes, I do. HEAUKULANI: Could you state your name for me and tell me where you’re from? ALEXANDER: My name is Gary Alexander, and I’m from Kapoho here on the Big Island. HEAUKULANI: Thank you, Mr. Alexander. You’re doing a great job speaking in the microphone. Continue that, and you’ve got three minutes to tell us what’s on your mind. ALEXANDER: Well, now I’d just like to say that I worked with the legal teams on the first three lawsuits pertaining to geothermal development. One, the first was Aluli vs. the Department of Health pertaining to ambient air quality. The second was Emily Naole vs. Campbell Estate and the State of Hawaiʽi for the land exchange. And, the third was with Ken Krause in relation to the blowout for personal injury. And, what I found in travelling to California to the largest geothermal electrical power generating area in the world, The Geysers, from the California Air Resources Board, the Governor of the State of California, the California Energy Commission, and the Air Quality Management District office in Lake County where The Geysers exist, is that there is no reason in 24 EXHIBIT E the world, there’s no benefit, they found over the years through constant conflict resolution which is what we’re going through. And, we will be going through the course again, and each one person can be held liable no matter what—whether you’re elected or you’re just an appointed individual. Your assets, your land, your bank account, everything you own, is at stake because of your decision being made here. But, what they came to was source testing. We need to test the source of the pollutant coming out of the ground, what they call the resource. When it comes out of the ground, after it goes through the plant, and then before it is reinjected into the ground or released to the atmosphere, and only at that point, can you tell what has been gained or lost through that. Now, the heat and the temperature are proprietary but the elements that are in the, what they call resource or the liquid steam whatever, are not proprietary. They are covered under Article 51 of the United States Code, the Public Right-to-Know Act. Then if anything more than a hundred pounds of pollutants are released, that the public has the right to know, and, then the emergency management part of that where all schools, principals of schools, the fire department, the fire chief, the chief of police, the police department, every public agency within the area impacted by the, this development, is, has to be part of the determination of what happens. So, this is what’s going to happen in the end no matter what, but the way that California, in Lake County and through the California Air Resources Board, and the California Energy Commission, the California legislature and the Governor of the State of California have come to is that they formed a committee of concerned citizens, developer, the California Air Resources Board, and the California Energy Commission, to form rules, regulations, to deal with complaints and, thereby, resolve the conflicts that have occurred due to the massive amount of geothermal development which at the peak was 1,500 megawatts of energy. So, here, they don’t even consider this, which when I was at the plant, they were generating 20 megawatts and five that was parasitic loads, so they were putting 15 megawatts into the grid, which to them in California, is, seem like nothing. And, also, I went to Reno, Nevada where I was, we were treated quite badly, and we filmed, and there was a lawsuit there, but that is where Ormat’s headquarters are, and they made it very clear with weapons, law enforcement, and people who would not identify themselves that we were not welcome there. So, we will not go back to Reno to the headquarters of Ormat and file any form of lawsuits. The lawsuits will be filed here and in Federal Court, District 9 against Ormat Energy Systems which is PGV, and only facts of law will be allowed. And, what we’re doing is going about it in reverse which California found out years ago does not work. You’re chasing a gas in the wind, and that is not admissible as a fact in a court of law. So, what needs to be done is to be find out what is coming out of the ground, what is being put back into the ground, and what is being lost in between, and then how is that impacting the people’s health in the area. If these—if these are, if these are restricted or they are on the EPA’s list of hazardous materials, then they need to be dealt with on the Federal level, in the end on the State level, too, and on the County level, but we’re gonna get nowhere doing health studies and running around in circles. And the amount of, the money itself, that’s a whole nother ballgame. That’s for the lawyers, and they will be here, and when they smell money, you can look in the, in the telephone directory 25 EXHIBIT E and see how many doctors there are here and how many lawyers. And, I’ll tell you, there’s a lot more lawyers then there are doctors. So, that’s what’s going to be happening, you know in the future. That is what you will be seeing, and you will be testifying to the fact of your involvement in this. Like you said, you have—you have control over the asset fund, and we want to know show me the money. Where is it? Where has it gone? And, we wanna know where the pollutants are; whether the how much comes out; how much goes in; and where does the rest go. And, this is a fact of law, and this will be brought up in the courts, and this will be determined by judges, either at the County, State, Federal level through the, the judicial process, which is the only way to do it legally. Because we have not been able to form a committee of people who are concerned, or who are informed enough to have conflict resolution here ‘cause we do have a conflict here, if we cannot resolve it as, as community, as neighbors, as it’s people, then we have to take it to court, and that is what I’m here to tell you. This is what’s going to happen, and there’s no way to stop it. It’s like a steam roller. And, it’s on such a minor scale as to the people in the energy commission couldn’t even believe that I was standing there one, one guy, a carpenter. And they thought we were some huge movement to stop geothermal ‘cause they had heard so much about it, and they have a building as big as our capitol with 12 stories on it. Each one deals with gas, oil, geothermal—each one deals, it’s the California Energy Commission. So, you know, you just have to ask yourself, how are we going to deal with this? How are we going to resolve this conflict because it will be in the courts soon, and if we can’t do it amongst ourselves as neighbors as they did in the Lake County, Air Quality Management District, then the courts are gonna have to mandate what it is. And, it’s gonna be much more expensive to the County, to the developer, and to us. Our money that could be used for other things for the people who are needy in our community. So, I appreciate you listening to me, and thank you for your time. HEAUKULANI: Thank you, Mr. Alexander. Commissioners, any questions for this testifier? Thank you, sir. I don’t see anyone that hasn’t already testified. Commissioners, I would entertain a motion to close public testimony. IKEDA: Move to close public testimony. HEAUKULANI: Thank you, Commissioner Ikeda. MOSES: Second. HEAUKULANI: Second by Commissioner Moses. Any discussion? All in favor signify by saying aye? COMMISSIONERS: Aye. HEAUKULANI: Any opposition? Hearing none, the motion to close public testimony carries. I think that is it. We just need to move on I believe to approval of the February 4, 2016, minutes. 26 EXHIBIT E KANUHA: Mr. Chairman? HEAUKULANI: I’m sorry, Director Kanuha. Yes? KANUHA: Before we move off of this subject, I have no problem in acknowledging the fact that this process has gone on, you know, way too long, but I also need to let you know that staff and I have been in constant consultation in terms of, well, how do we get to where you guys want us to get. And, it got to the point, eventually, where we just couldn’t figure a way around it which is why we decided to put it on your agenda, right, and get it out there instead of, you know, the issue just dragging along. And, we fully expected the kind of testimony, and I think a lot of it is more correct than wrong, but I just wanted to emphasize that, you know, there has been, there hasn’t been any attempt to, you know, to just push this aside and let it go. At the same time, I’d also like to apologize to the public and Jim as well. I think the dialogue that Palikapu and I had, in my mind, was, was somewhat helpful, and what I was trying to do was to consult with staff in figuring out okay, well, what do we do, where do we go from here, because I find myself ending up speaking on behalf of the claims adjuster, so one of the things that we were talking about really briefly is to bring the claims adjuster here so you guys can get from him what he needs in order to make, you know, this thing, move. The other question to that is why didn’t we come up with that earlier? You know, why has it taken us, you know, that long to accomplish that? But, I just wanted to make those comments for all of you Commissioners and for all the people that testified today. HEAUKULANI: Thank you, sir. MOSES: So, Director Kanuha, are we saying then or are you saying that there is a possibility that we can add the claims adjuster onto our agenda to come here to speak to what the restrictive requirements are that has stalled the process—so that we can get answers— KANUHA: —That’s, that’s exactly what we’re, that’s exactly what we were considering. MOSES: So we can get answers and move forward— KANUHA: —Correct— MOSES: —with what this body has— KANUHA: —And, you know, also so that—you folks are interested in this— MOSES: —Absolutely— KANUHA: —also hear from this dialogue, you know, what’s, what’s really needed to be done. They may not agree with it or whatever, but at least they get to hear it from—from that component ‘cause that’s, that’s where you need to take your, make your decision on and based on that, that’s how we, you know, we’ll proceed, but my thinking is to try and schedule that as soon as we can. 27 EXHIBIT E MOSES: Okay. Agree. The next agenda? The next meeting possibly? ARAI: I’ll try to see if I can schedule it for the next meeting. I gotta look at the schedule ahead because sometimes the publication requirements forces me to finalize it by next week Monday, so maybe the next day or so, I’ll try to see if I can check on the claim adjusters schedule and their willingness to come over to hopefully at next month’s meeting. MOSES: Okay, so if we can’t get it to next month’s meeting for that reasons that you’re, you brought, definitely by the following month we’ll have the claims adjuster. ARAI: Yeah, every effort will be for the— MOSES: —For the next one— ARAI: —your next meeting in April, right. MOSES: Thank you, Daryn. HEAUKULANI: Do you want to phrase that in terms of a motion? MOSES: Do I need to? HEAUKULANI: You don’t need to. MOSES: Do you want me, too? HEAUKULANI: Just a question. MOSES: Counsel? PATEL: No. MOSES: No? PATEL: No, there’s, there’s— MOSES: —No need? PATEL: —Yeah, there’s nothing today before the Commission for them to act on such that a motion like that would be appropriate, but I think the, I think everyone’s in agreement that that’s what’s going to happen, is they’ll try to schedule the claims adjuster. So, in other words, there’s no motion needed for the department to go and do that. MOSES: Okay. KANUHA: You know, one other alternative to consider is if the Commission is, you know, really serious about pursuing this is perhaps a special meeting just for that agenda item if the 28 EXHIBIT E Commission is willing to do that depending upon when we can schedule that, and that will be the only item on the agenda. You don’t get distracted by other components, so— MOSES: —That is an excellent suggestion. KANUHA: If that’s something you want us to see if we can schedule, you know, we’ll take a long at that, doing that. MOSES: Do we need to make a motion for that, counsel? KANUHA: No. MOSES: Thank you. I like that. I agree with that. KANUHA: That’s all I have. Thanks. HEAUKULANI: Commissioners, anything else before we leave this agenda item? Very well, thank you, Director Kanuha. The discussion ended at 12:10 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 29 EXHIBIT E