HomeMy WebLinkAboutRES 059 Draft 01 2014-2016OFFICE INFORMATION ONLY
Meeting: Council — February 4 2015
Action: Filed due to vote count of 4 ayes (Chung, Ragan, Paleka, Wille) and 5 noes
Re: Res 59-15; Comm. 93 (2014-2016 term)
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RESOLUTION NO.
STATE OF HAWAII
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1.
A RESOLUTION REQUESTING THE OFFICE OF THE CORPORATION COUNSEL
TO INITIATE A DECLARATORY JUDGMENT ACTION TO DETERMINE THE
APPLICABILITY OF ORDINANCE NO. 12-151 TO PUNA GEOTHERMAL
VENTURE'S DRILLING OPERATIONS UNDER GEOTHERMAL RESOURCE
PERMIT NO. 2, AND/OR TO SEEK INJUNCTIVE RELIEF.
WHEREAS, Puna Geothermal Venture ("PGV") is permitted to develop a geothermal
power project at its current operating location in Puna under Geothermal Resource Permit No. 2,
as approved by the Planning Commission on October 3, 1989, and amended on January 19,
2001; and
WHEREAS, in response to noise concerns caused by the drilling of geothermal
production well KS -15, the County on December 5, 2012, enacted Ordinance No. 12-151, which
provides, among other things: "Geothermal resources exploration drilling and geothermal
production drilling operations being conducted one mile or less from a residence, shall be
restricted to the operating hours of 7:00 a.m. — 7:00 p.m."; and
WHEREAS, PGV intends to establish production well KS -16 by drilling four holes,
beginning on or about January 25, 2015, and ending on April 1, 2015, at its current operating
location less than one mile from residences; and
WHEREAS, PGV has expressed its intention of conducting 24-hour drilling for
production well KS -16 and has maintained that such drilling is not subject to Ordinance No. 12-
151; and
WHEREAS, a legitimate argument can be made in support of the applicability of
Ordinance No. 12-151 to PGV's current operation for the following reasons (among others):
1. The language contained in Ordinance No. 12-151 is unambiguous.
2. Hawaii Administrative Rules, Title 11, Chapter 46, Section 13, relating to Community
Noise Control and promulgated by the Department of Health under the authority of
chapter 342F, Hawaii Revised Statutes, states that: "The council of any county may
adopt and provide for the enforcement of ordinances regulating any matter relating to
excessive noise. No such ordinance shall be held invalid on the ground that it covers any
subject or matter embraced within any statute or rule of the State; provided that in any
case of conflict between the statute or rule and ordinance, the law which affords the most
protection to the public shall apply."
3. Ordinance No. 12-151 does not remove any specific right PGV may have acquired under
Geothermal Resource Permit No. 2, as amended, to conduct 24-hour well -drilling at its
production site(s); further, as far as this body knows, the noise permit issued by the State
Department of Health under which PGV is operating does not address the issue of 24-
hour drilling; and
WHEREAS, the Council respectfully requests the Office of the Corporation Counsel to
re-examine the issues, to represent the Council in a declaratory judgment action to determine the
applicability of Ordinance No. 12-151 as it relates to the limited purpose of preventing PGV
from conducting 24-hour drilling for its KS -16 production well, and/or to seek injunctive relief,
now, therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the
Office of the Corporation Counsel is requested to initiate a declaratory judgment action against
PGV to determine whether Ordinance No. 12-151 is applicable to its drilling operations under
Geothermal Resource Permit No. 2, as amended.
BE IT FURTHER RESOLVED that the Office of the Corporation Counsel is requested
to seek injunctive relief arising from the declaratory judgment action.
BE IT FINALLY RESOLVED that the County Clerk shall transmit a copy of this
resolution to the Office of the Corporation Counsel.
Dated at , Hawai`i, this day of , 20_
COUNTY COUNCIL
County of Hawaii
Hilo, Hawaii
I hereby certify that the foregoing RESOLUTION was by
the vote indicated to the right hereof adopted by the COUNCIL of the
County of Hawaii on
ATTEST:
INTRODUCED BY:
ROLL CALL VOTE
AYES NOES ABS EX
CHUNG
DAVID
EOFF
ILAGAN
KANUHA
ONISHI
PALEKA
POINDEXTER
WILLE
Reference:
C-93/Waived AW -ESC
COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. 59 i