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HomeMy WebLinkAboutCOM 0791.000 1996-1998 aec4v~ County Council I-I : _ n g..: t H L ;7 7, 7 7, C I .I F- 4- 3rrl ! vd 'Y tI ' fi _ - Gl FG - F.- - " APR 0 9 iS98 April 3, 1998 U.S. Environmental Protection Agency (EPA) Office of the Administrator 401 N Street SW, Washington D.C. 20460 Pe:SUPPLEMENTAP.Y PETITION PSD 97-16; PSD/CSP Permit No. 0007-01-C (expansion of HELLO power plant @ Kea.hole, N.Kona. Hawaii) Dear EPA Appeals. Board members-, As one of 8 authorized appellants, I request that you please accept this supplement to my attached formal reply (that also includes the DOH "Notice of Finding of Violation, and Order") to HELCO's. "no response" response. This supplement, which only scratches the surface, is born of an immense frustration at the extraordina.ry machinations on the part n; HELLO and permit granting state & county agencies that his occurred and is still occurring) throughout the ` years the planned Keahole power plant expansion has been seeking approval. The long sought after DOH "finding=_" Yerify claims made by me and other petitioners regarding HELLO`=_ many year= of illegal emissions from its CT-2 generator at K:ea.hole. These DOH findings along with the record you are reviewing further validate what I perceme as criminally lax enforcement practices by DOH for at least 4 year from 19? 3, and an extraordinary degree of bias to help HELLO tantamount to DON aiding and abetting HELCO to circumvent the law. The $14,000 DOH mini-fine assures HELLO of DOH support in failing to comply with federal and state Clean Air laws. This perverse laxity and apparent complicity exists to this day wherein DOH i named in a lawsuit for ongoing violations that still plague the Keahole facility. CIVIL 97-017K; KDC v. HELLO, DLNP & DOH is pending a jury trial. Such favored treatment of HELCO by DOH is standard operating procedure and has remained a constant problem throughout this entire air permit process.. HELLO, (and its parent company HERO and holding company HEI) control or manipulate the administrative agencies they seek approval from. Federal & State Clean Air laws and public health are but one of the victims.. In the State of Hawaii there is no fair play for the public interest when it comes to matters pertaining to HELLO, HECO, or HEI who also own other electric power companies, banks, inter-island shipping companies, insurance companies (one of which went bankrupt rather than pay hurricane damage claims) and other major Hawaii industries. They tell government agencies what to do rather than the other way around. DOH, whose mission is public health, operates as if its mission is to increase HELCO'=_ profits.. April 3, 1998 page 2 Aside from tie DOH, this subservience has been similarly manifested b ever;: government agency involved in this HELLO application including the: - Dept, of Land & Natural Resources (DLNR.) which in violation of Hawaii law, secretively adopted "conditions_" to a. conservation district use permit. They've taken no action to stop HELLO's site preparation while their CDU Permit is on appeal to the Supreme Court and DOH Air Permit is on appeal to the EPA Appeals Board. They allowed the AG to abandon their defense in court proceedings. Is DLNR/ BLNR run by the AG, or does the AG run the department and its board? - Attorney Genera.l's office who couldn't do a getter job of representing HELLO if it were on their payroll. The Dep.AG counseled DLNR to issue HELLO "conditions." for a permit undergoing Supreme Court appeal in a highly improper manner that violated Hawalis open government law, and then directly withheld this important information from both the judge and the other parties to the case r98-058Kj for 6 weeks On several orrasslons the Dep.AG failed to show up in court to defend BLNP. When the he did show up it was to defend HELCO's position, not BLNR. The Dep.AG also lied to the judge when asked why nobody else was notified. "The:;: didn't ask:" he replied, when he had been asked no less than In time=_ on the record. - Public Utilitie_. Commission who has tolerated years of delay on HELr_.O's part in negotiating power purchase contracts with independent producer=. !,.her, PURPA laws allow for 75 days. Mock:ets 94-0079, 7?569 27-0102). - County of Hawaii that issued an illegal building permit to HELLO based not on any documentation but rather on HELC:n's verbal misrepresentions.. When asked to void the unlawful permit, the Corp. Counsel refused to do so for "fear of being sued by HELLO." Illicit construction is underway RIGHT NOW! This acquiescent posture by the state and county is also apparent in the lower court.12 suits have been filed to date, includin one won by HELCO to obtain the permit denied them by BLNR. the suits are based on "Environmental Impact Statement" issues, and three fundamental misapplications of law by the 3rd Circuit Court that are presently on appeal to the Hawaii Supreme Court (421263). According to that appeal, the circuit court improperly granted HELLO a Conservation District Use Permit (CDUP) "by default" even though: (1) the Board of Land Natural Resources voted 3 to deny HELCO the permit, (2) a lava repealed in 1961 ,,as used as the basis for the court granting the permit, and 12) Hawa.ii's conservation district use law precludes building an oil fired plant at the Keahole site (Act 270 1994?. The governor praised this decision as a way of cutting through rod tape. Dept. of Hawaiian Home Lands (DHHL) has also filed a. Notice of Appeal. According to information provided by HELCO's own noise expert, 90% of the abutting 153 acres of Hawaiian Homelands established for residential use would be rendered uninhabitable by severe noise pollution. Yet another Supreme Court appeal was filed April I because the Circuit Court would not issue an order stepping HELCO's illicit construction work presently underwa.y(21369). r,,pr.' I , l'ylo page 3 As noted in prior petitions, the uog pollution, which will be exacerbated by emissions from HELCO`s proposed expansion at Keahole, is a daily occurrance in Kona except when the continuous volcanic eruption temporarily' ceases, or infrequent heavy rain washes it out of the air, or when even less frequent "Kona winds blow it to Oahu. When it blows to Oahu, residents there respond immediately with respirator;.' ailments, the media. covers it as front page news, and e"en the DOH responds with health alerts. We in W.H.awa.iI, (especially Kona where an air inversion trap= and concentrates voq and HELCO's emission=_) live with this severe health problem EVERY DAY of the wear, except as noted above. I also request that should thi'_. EPA Board of Appeals find (from the record of public hearings, DOH documents., Appeal Board submittals, and other documents relevant to this matter) that the DOH permit is at be=_.t shoddy, incomplete, biased, tainted, inaccurate or ofherwise suspect, that you: (a) void or otherwise invalidate the permit, and if DOH issuance of this Air Permit smacks of misfeasance or malfeasance, that you: (b) recommend to the appropriate federal authorities an investigation of the policies and practices of the Hawaii Dept. of Health, particularly its department heads and its Clean Air Branch, and !c) consider a, RICO investigation of HEI/ HECO!HELCO (Hawaii Electric Industries, Hawaiian Electric Company, Hawaii Electric Light Co.) and appropriate agencies and officials of the State of Hawaii, and the County of Hawaii. 1' r for a b e t s a,'•' ry R.oths _e i n, CDCW 6-123 Royal Poinciana Dr. Ka i t u.a-Kona. Hawn i i i s l an d ='6740 804-329-1563 / 329-5464 fax Attached: Certificate of Service to all other appealers, HELCO's attorneys, and DOH & EPA officials as required (15). cc: Vice President Al Gore Sen. Dan Inouye Sen. Dan Ak:aka Rep. Patsy Mink Rep. Pfeil Abercrombie Gov. Ben Ca.yata.no Sen. And'y' Levin, chair. Health Environment Comm. Rep. Terri Yos.hinaga.' . chair. Energy ,Q: Env. Protect,Cemm. Sen. Ma.la.ma Solomon Rep. David Tarnas. Chas. Totto, Consumer Advocate, DCCA Yukio Naito, chair. Public Utilitites Comm. Margery Bronster, Attorney General May'or Steven Yama.shiro n/iame Arakski, County Council chair. .--p 'he Honolulu Advertiser alo Mottdalt, AWN 6, Mill Ctryt Do* 525-sm HAwAii Maw utm tY, state settle mil issue per Critics say pie A I itgly- ot on does this case reveal Maul Elec c s flagrant pollution went dlgrcgard for our environment, 11 also demonstrates the bJit unpunished ~ a< enl o Hea L t e mee allltllds- wer enforcement terra Club director David By Edwin Ta.+31 Franke sal . AdvertlgerMaul County Auteea ruc¢ nderson deputy director qr env ron- I AHULUi, M0111 - Maui mental affairs Bald the viola Electric Co. has agreed to pay lions were tar el technical $100,000 for an educational pro ems t a no a - program on climate change to versel affect Maul's air qual- resolve charges that the com j v. evera v o a ons, or en violaled air- uallt per- Inelance were re aI lied a s- m esue the state sions t at excea e in is artment o Health. Im ose a r-qua The sett emenl agreement nn or ai ling to repot em prompted the. Ilawall Sierra stone Anderson said. = ,charge to charge that the 1 ea Eii "'i ierc were slgnflfcent De artment failed to Impose adequate penalties for multi- See 13mle910a0, Page 134 OM PAGE Bt Frankel, however, said Maul the Health Department. He Electric generators put out added that the emlgslons pro6"- t6bleme but Wertric more pollutants than aft-qual- gems that occurred did no__ t re- c oIty permits allowed on several sent a otential threat to peo- e au days. "The_FroteseloneleWUf pl_e~'s b~ealt hitve ezceeded emission limits the Department -piHealth - Anderson sa it Is not l nip med b its permits, the pol- slier ed tjW eptiesion Ilmtls usual far t e ea th Deaart- lutants d1~ not exceed broader Maul _ ec c'e eg neri tote went to ore o turect -titles and ' Clean Air Act standards, An- t~p[otect air auailty_Efl Per reaulte "bane t payments or Berson Built Air-quality permits Hruca_BttdersOn 18 wrong or violations. allow a business to release a the_profeselonal staff lids Maul Ejectric'e Slon,Wo pay limited amount of pollutants wrong went would go to the Hawall Into the air; standards un er Maul_ F.IectrlS._ Prealearn- Nature Center to prepare an the Clean Air Act met lhnits on WIW3M_Q_Q_nWt said the com educational on climate t the amount of pollution pany has tried to m"t sir-(11101- program allowed for permitted busi- Ity limits. When lapses oc- changes that occur because of 1 bosses in a given area- curred. they were reported to air pollution, he Paid. I ' Continued rom page 12 A Citizen. rspective is either unwilling or incapable of making HELCO negotiate in good faith. The recent, much-publicized announcement that HELCO has Keahole Coalition Turns to reached a power purchase agreement with Encogen, one of the IPPs, appears to be a farce The Courts to keep the public and PUC appeased while HELCO tries to build its Keahole plant. The PUC has stated that, for the present, only one new by Keichi Ikeda and Jerry Rothstein power plant is needed, and that it will approve the plant that is built first. For the past five years, the Keahole majority; and therefore BLNR's 3-2 It appears that HELCO chose to negotiate with Defense Coalition (KDC), a vote to deny did not meet the definition Encogen because it is the only IPP that does not Hawai'inon-profitpublic interest of a legal action. HELCO further argued have the air quality permit necessary to begin corporation, has been battlingHELCO's that since 180 days had passed without construction immediately. The other IPP, plan to triple the size of its Keahole the board taking "legal" action, it had KawaihaeCogeneration Partners, has itsairqual- power plant at the entrance to Kona In- an automatic right to proceed with its ity permit in hand, but continues to be stone- ternational Airport. Though boardmem- plant. As mentioned above, the judge walled by HELCO in its power purchase con- bets of KDC, we are writing this article agreed, tract negotiations. KDC understands that a third in our capacity as private citizens. If the judge is correct in his ruling, IPP, the Hilo Coast Power Company, also has It is common knowledge that the air we have here a terribly unfair law. It the necessary permit, but is also being stone- quality in the Kona region is the worst takes four members to deny an applica- walled. in the state, due to its location behind tion, while it only takes three to cause it Third, HELCO is expending tremendous ef- Mount Hualalai. This mountain blocks to be granted by default. fort, with help from the state Department of the trade winds from sweeping away the The 180 day rule is also a subject of Health (DOH), to circumvent the EPA's Clean vog which remains trapped in the area. controversy. Research by our legal Air regulations to avoid installing the best con- HELCO intendsto build its powerplant, counsel reveals the 180 day rule was troltechnology, known asSelective Catalytic Re- without EPA-recommended emission repealed many years ago; but because duction (SCR), to clean up its emissions of ox- controls, on Conservation District land of an oversight by the person charged ides and nitrogen (NOx). NOx is a mixture of in this already heavily polluted environ- with updating the code, this rule re- two very poisonous gases, NO2 and NO. NO2, ment.It intends to do this despite its own mained on the books. when mixed with water (which is present in the site study's conclusion that Keahole was In addition, when the question of ap- exhaust gases) becomes nitric acid, a chemical the least desirable of all the possible sites plicabillty of Act 270, which prohibits used to dissolve rust from steel. NO is poison- that were considered. oil-fired power plants on Conservation ous like carbon monoxide (CO2). Apart from the obvious negative im- District land was raised regarding this The DOH, the PUC, and the attorney general pact that this plant will have on the es- project, the judge tided that it does not for the BLNR continue to help HELCO force the thetics and air quality of the region, there apply because HELCO's application Keahole power plant on the public by ignoring are several very disturbing series of was made in '92, before Act 270 took state and federal laws and their own regulations. events that surround this project. effect. This ruling is in direct conflict With the public hearing process for this power First, the plant is located on Conser- with a previous State Supreme Court plant over, the only remaining productive re- vation District land, which is protected ruling that says that if a law is changed course to stop HELCO's arrogant plans and ac- by rules governing its use. A special con- while an application is pending, the law tions, and the state's acquiescence, is through the ditional use permit, issued by the Board that was in force during the hearings and courts. A of Land and Natural Resources (BLNR), decision applies. Act 270 took effect To obtain more infoimation about the follow- is required. When the BLNR, following July 1, 1994. BLNR's contested case ing, please write KDC, PO Box 1510, Kailua- the recommendation- of its hearing of- hearing was held in late 1995. The Kona. Or,call it's president, Dr.NathalieTLcker, ricer, voted 3-2 to deny HELCO this BLNR's 3-2 vole to deny HELCO's at 325-7073: permit, HELCO went to Judge Ibarra of permit took place in April 1996. KDC 1. The lawsuit (96-131 K) granting HELCO a the Third Circuit Court to have him de- believes that Act 270 should apply. Conservation District Use Permit by default and clare that the BLNR's 3-2 vote was a When the court finally issued its final the resultant appeals. non-action, and that HELCO has an an- judgment on this case this pastFehm- 2. The lawsuit (97-017K) filed against HELCO, lomatic right to proceed with its project ary, KDC filed an appeal challenging (1) BLNR, and DOH, for ongoing violations at by operation of the 180 day rule. In case the applicability of the 180day rule, (2) Keahole. Civil 96-131K, the judge granted the finding that a 3-2 BLNR vote was 3. Illegal construction by HELCO at the HELCO's petition. This ruling is the not valid, and (3) the finding that Act Keahole site. subject of much controversy. 270 does not apply. 4. HELCO lies to the PUC. The BLNR consists of six members. Second, although there is a federal 5. HELCO fined $14,000 for six years of air BLNR rules say that four members are law, known as the Public Utilities Rego- pollution. required to constitute a quorum (the latory Policies Act (PURPA), that re- 6. DOH's air quality permit on appeal to the minimum number of members required quires utilities to negotiate power pur- EPA. for a body to legally conduct business), chase agreements with qualified inde- 7. Hawaiian Homelands (DHHL) interests and all business must be decided by a pendent power producers (IPP) within harmed by HELCO. majority vote. When HELCO's applica- 60 days after receiving an offer, HELLO 8. Fund raising, and helping KDC stop HELCO lion was being considered, one member has stonewalled negotiations with IPPs at Keahole. recused himself because of a conflict of for more than rive years. The 1PPs pro- interest, leaving five members eligible pose to build plants similarto HELCO's, to vote on the application. First, a mo- have more environmentally-suitable lo- I don't have optimism. I do, how- tion to grant the permit was defeated by cations, propose to use EPA-recom- a vote of 2-3. Ordinarily, this is suffi- mended pollution control measures, and ever, have a little hope. Hope grows out cient to deny the permit. Nevertheless, will produce useful by-products from of despair. I think the very despair of BLNR's deputy attorney general said their waste heat, such as desalinated our times is a reason forhope, because that a second motion, a motion to deny, water at Kawaihae and heat for food maybe it can wake us up. Necessity was required. That motion to deny processing at Hamakua. In contrast, moves the human species; it changes passed by a vote of 3-2. Based upon this HELCO's plant will dump its waste heat history. I think we are in a moment of vote, the BLNR said that the permit into the atmosphere. Unfortunately, en- would not be issued. HELCO argued, forcemenl of PURPA rests with our Pub- necessity. however, that since the BLNR consists tic Utilities Commission (PUC), which -Matthew Fox of six members, four votes constitutes a Continued on page 18 April 1998 A Magazine fror" the Island .