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HomeMy WebLinkAbout2013-01-10 Windward Transcript PD Rule 12 PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT OCTOBER 4, 2012 A discussion on the PLANNING DIRECTOR’S PROPOSED AMENDMENTS TO PLANNING COMMISSION RULE NO. 12, COUNCIL CHAIRPERSON DOMINIC YAGONG’S AUGUST 2, 2012 LETTER AND COUNCILMAN FRED BLASS’S AUGUST 8, 2012 LETTER RELATING TO THE GEOTHERMAL ASSET FUND was held at 4:20 p.m. in the County of Hawai‘i Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Chairman Dean Au presiding. COMMISSIONERS PRESENT: Dean Au, Ronald Gonzales, Raylene Moses, and Stephen Ono STAFF PRESENT: Ivan Torigoe (Deputy Corporation Counsel), B. J. Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Phyllis Fujimoto (Staff Planner), Maija Cottle (Staff Planner), Jeff Darrow (Staff Planner), and Sharon Nomura (Secretary) ABSTAINED: Wallace Ishibashi And approximately 7 people from the public in attendance. INITIATOR: PLANNING DIRECTOR Discussion of possible amendments to Planning Commission Rule No. 12 regarding the Geothermal Asset Fund relating to procedures and guidelines for the processing of proposed community approved geothermal impact mitigation projects within the District of Puna. Discussion regarding letter dated August 2, 2012 from Council Chairperson Dominic Yagong to Windward Planning Commission Chairperson Zendo Kern requesting information on the process for requesting use of the Geothermal Asset Fund to fund a health study as a community approved mitigation project for the Puna community to address the alleviation or attenuation of direct detrimental effects of geothermal operations permitted under Geothermal Resources Permit No. 2. Discussion regarding letter dated August 8, 2012 from Councilperson Fred Blas to Windward Planning Commission Chairperson Zendo Kern requesting information on procedures for requesting use of the Geothermal Asset Fund to fund a health study for Puna to determine the possible negative impacts of geothermal power producing activities at the Puna Geothermal Venture Plant. AU: No. 7, Initiator: Planning Director. Discussion of possible amendments to Planning Commission Rule No. 12. It has been a while, it has four months, we put it aside. And Mr. Melrose has come every meeting since then. So, Mr.Melrose, we will see it. Are you signed up to testify? Is anybody signed up to testify? PETRICCI: I signed up to testify. AU: Okay, okay. Thank you. 1 EXHIBIT D LEITHEAD TODD: For the Commission’s information, Item No. 7 is basically so we could comply with the Sunshine Law. We don’t have specific written proposals to amend the rule. But in order to allow the Commission to discuss possible amendments to Rule 12, that is why we have this on the agenda, just so that we can comply with the Sunshine Law, if it is the desire of the Commission. What we are really here to do more is the administrative matters, which is the letters from Mr. Yagong, and from Mr. Blas regarding the geothermal. AU: Thank you, Madam Director. So, staff, is there a staff presentation, is there a brief, or -? ARAI: Yeah, just briefly. Again, there are two communications from the Planning Department that I would like to draw your attention to, and it was previously distributed to you. First of all is a letter dated October 3, 2012 from the Director to the Commission. It basically provided a background information regarding GRP No. 2, as well as some points of discussion regarding both letters from former Council Members Yagong and Blas. In a nutshell, as the Director mentioned, their request is basically asking what is the procedure in which a proposed health study can be funded by the Geothermal Asset Fund. There was also a second letter that was provided to the Commission dated November 7, 2012 in which the Planning Director offered her analysis regarding the possible funding of a health study by the Geothermal Asset Fund. So basically what you have before you are, is the request, as well as some background information and the Director’s analysis and recommendation. In a nutshell we believe that the Geothermal Asset Fund can fund a health study. But it may need some adjustments or modifications to your rules in order to accomplish that more effectively. But in order to accomplish that, we probably need some direction from the Commission on how you would like it to be accomplished. So basically we need a directive from the Commission. So I stand ready to answer any questions that you may have at this time. AU: Any questions for Daryn? ISHIBASHI: Brother Chair, I’m excusing myself on the side. AU: Okay, thank you. Let’s put our stuff together as Commissioner Ishibashi takes a seat with the public. Okay, we have four people signed up to testify. Why don’t you all just come up – Kerri Marks, Robert Petricci, and Tom Travis. So what we’ll do is we’re taking testimony on Agenda No. 7, as well as administrative matters. Is that correct? Mr.Arai, is that correct, we’re taking testimony on behalf of No. 7 as well as administrative matters? Or do we need to take testimony out of -. ARAI: Well, I guess you could speak on both, but there is no specific proposal to amend Rule 12 at this time. But I guess they could if they have any specific comments or suggestions on any of the amendments to Rule 12. AU: And we have a Laura Travis? L. TRAVIS: Okay. Actually I’m going to donate my time to either Tom or Kerri. Kerri will also testify. 2 EXHIBIT D AU: Okay. L. TRAVIS: Thank you. AU: Okay. Can you two please raise your right hand. Okay. Do you affirm and swear to tell the truth in front of the Windward Planning Commission today? TESTIFIERS: I do. AU: Thank you very much. Why don’t we start off with Kerri Marks. MARKS: Good afternoon everyone. I’m Kerri Marks. I live in Kaumana city and I’m donating my time to Robert Petricci. AU: Okay. Mr. Petricci, go ahead. PETRICCI: Okay, thank you. So I gave you written testimony, and this is the Amendment to the Geothermal Asset Fund Rules as submitted by the Planning Director on November 7, 2012. The GRP-2 requires PGV to contribute to “a Geothermal Asset Fund or other appropriate existing fund for the purposes of geothermal impact mitigation efforts within the District of Puna….” It further says a “priority list of impact mitigation projects may be established by the County Council or agency designated by the Council in conjunction with Puna residents or designated representatives.” Puna Pono Alliance delivered a proposal by Dr. Kaye Kilburn for a health study to the County Council. The Council Chair forwarded Dr. Kilburn’s proposal to the Commission. Subsequently Mayor Kenoi’s Research & Development office contracted with Dr. Peter Adler saying, in the context of promoting clean, affordable and renewable energy, “the County desires to conduct a scientifically thorough, culturally appropriate, and objective fact-finding study of the potential community health impacts from geothermal energy production in the Puna district….” Dr. Adler prepared a scope of work exhibit to the contract that says the group will list public health questions about Puna geothermal effects, inventory existing studies on the subject, and develop recommendations “about the priorities and preferred methodologies for future scientific and monitoring studies….” The Director’s November 7, 2012, letter notes the Commission has adopted Rule 12 in relation to the Geothermal Asset Fund, and Rule l2 is “geared towards the making of individual claims for compensation based on adverse impact, including claims for temporary relocation….” 3 EXHIBIT D Funding a health impact study is not expressly covered by Rule 12, and the procedures outlined in Rule 12 relate to the handling of claims for compensation…suggestions for a comprehensive health study is not yet a subject which is addressed by Rule l2.” The Director’s letter proposes amending Rule 12 in keeping with Condition 49 “to allow impact mitigation projects to be funded by the Geothermal Asset Fund and set up the process for the council or designated agency to set up a priority list of such projects.” The Director says the amendments should give the Commission authority to address a health study’s methodology, to hire a consultant to make a model for the study and criteria for the expertise of an investigator, to have the Planning Department solicit bids and select qualified individuals to conduct the study, and to authorize the Commission to review the draft health study and require supplementation of the study’s content and methodology. That proposal is not acceptable for several reasons. First, there is an obvious overlap of purposes between the County’s contract with Dr. Adler and the proposed new rules. Second, the recommendation exceeds the authority allowed by the Planning Commission by the County Code: i.e., to administer payments from the asset fund. The recommendations made by the Director purport to authorize the Commission to take a hand in the details of conducting and reporting the results of a health study. No law gives that right to the Commission. Without legal authority (and especially without scientific competence) it should not be attempted. With all due respect, the recommendation plainly exceeds the reasonable competence of this Commission. In the County’s $50,000 contract with Dr. Adler there is a plan to recommend priorities and preferred methodologies for a community health study. Dr. Adler’s website says his contract on health risks associated with geothermal energy production will result in (1) a list of public health questions pertinent to the issues, (2) a reliable inventory of existing studies pertinent to the issues, and (3) “recommendations about the priorities and preferred methodologies for future scientific and monitoring studies that may be required….” The Director’s proposal for the Commission to address methodology and hire a consultant to develop a model for the study directly overlaps the results required by Adler’s existing contract. Third, it appears the Geothermal Asst Fund rules in fact have been applied to claims for relocation that were paid from the geothermal relocation and community benefits fund, but have not been applied to the Geothermal Asset Fund. Hawai‘i County Charter 10-12 provides for the establishment of special funds, and there are two such geothermal-styled funds: County Code Chapter 2, Article 35 creates the Geothermal Asset Fund from PGV payments required by GRP-2. Code Chapter 2, Article 36 creates the geothermal relocation and community benefits fund from geothermal royalties received by the County. Code 2-182 authorizes the planning director to make rules for the administering relocation claims from the Article 36 Royalty Fund, but it seems no such rules were made. Instead Rule 12 relating to the Geothermal Asset Fund defined in Article 35 appears to have been used for claims for relocation paid by Article 36 fund. 4 EXHIBIT D Thus, the Planning Department precedent, if Rule 12 is being applied to Article 36 claims, the Article 35 Geothermal Asset Fund is left without rules. With Rule 12 applying to Article 36 relocation claims, amending Rule 12 cannot address issues in regards to the Article 35 Geothermal Asset Fund. In sum, we object to the proposal of the Planning Director for new rules purporting to regulate both the fund and the conduct of health studies, we object to ignoring how rules for the Geothermal Asset Fund appear to have been applied to Article 36 relocation claims, and we object to duplicating the existing Adler proceeding that is working toward ends similar to those proposed by the Planning Director. It would be, for lack of a better word, abusive of the Planning Commission’s legitimate role for it to usurp the field of science by arrogating to itself decisions on the expertise, methods, criteria and final content of a health study. We believe this could result in an attempt to control the health study by censorship so as to obtain politically desired results. As an appropriate initial remedial step, the Planning Commission should request an audit of the two special funds existing under Articles 35 and 36. An audit can determine the nature of disbursements under both funds, especially in terms of how claims were processed. The audit may give the Commission a basis for setting its house in order after the apparent confusion. You know, we have a widespread history of conflict between the community and the County. And what’s interesting is what Mr. Ishibashi brought up in the last thing about community input into projects. And from the community’s standpoint geothermal projects in our community, we haven’t had, we don’t feel that we’ve had a voice. We don’t feel that we’ve had that kind of input. And after 31 years, I’ve been doing this for 31 years, we don’t feel we’ve gotten a health study that’s acceptable to the community. And that’s all we’re really trying to do here, is get a health study that everybody can agree to; and then I hope we can get the rules to do that. You know, the County gave Peter Adler $50,000 to study the study. After 31 years we think that’s, you know, they actually had long enough to look at this issues; and we should have gotten to this. We asked for $200,000 to do the study and we’ve already spent 25 percent of that now to study the study. And so I hope we can just get the health study, a real health study. There’s obviously people on both sides of this issue. Some people think there are impacts, some people say there are no impacts. We need to settle it one way or the other. Thank you. AU: Madam Director? LEITHEAD TODD: I just wanted to clarify a couple of things, which may not be apparent from Mr. Petricci’s testimony. The rules under which the Article 36 relocations and community benefits have been done are the Planning Department’s rules. Rule 12 that we are discussing is the Planning Commission’s rule which applies to the Asset Fund. There are two separate sets of rules. One is the Planning Department’s rules which apply to the Royalty Fund -. PETRICCI: Is it Planning Department Rule 6? 5 EXHIBIT D LEITHEAD TODD: No, no. There’s, I’m trying to remember the exact rule number, but I think we can grab it for you. Because we were directed to create rules for the Royalty Fund, and we did as a Department. The Director does not make the rules for the Planning Commission. You can, you know, you do public hearing, you do rules for the Department. So we have Department rules that cover the use of the Royalty Fund. The rules that the Planning Commission has controls the use of the Asset Fund. So there are two different sets of rules. I think it was 10 but I wasn’t 100 percent sure. So it’s Planning Department Rule 10 that you may want to go and take a look at, which is our Geothermal Relocation Program. PETRICCI: Planning Department Rule 10, you said? LEITHEAD TODD: Yeah. T. TRAVIS: And that applies to the Royalty Fund? LEITHEAD TODD: Yeah. T. TRAVIS: So Rule 12 is the Commission’s rule then for the Asset Fund? LEITHEAD TODD: For the Asset Fund, yeah. I think that’s the confusion. Because we have Commission’s rules, we have Department’s rules -. PETRICCI: Do you have the paperwork so we can understand that better so when we come back -? NOMURA: Microphone, please. PETRICCI: Is there any kind of written rules or some way that we could get that in writing like –. LEITHEAD TODD: Well, we’ve, No. 1, I believe it’s on our website, the Planning Department’s rules. And you just go to Rule 10; and it’s in writing. And that’s the rules that we operate under. We also have a form that people typically use in order to apply for relocation. The other ways the fund gets utilized are basically through the County Council’s budgeting process or their resolutions. And that’s a separate process, because that’s through the County budget where they, that was when we were doing the community benefits projects; and they would actually put that into the budget. So if they put it in the budget, then it was already approved by the Council. PETRICCI: And that’s why we went to the Council first and asked for money from the Council. And then we were told that, oh, well, there’s another mechanism in place to do that, which is the Asset fund, and that that was the proper place to go. But then when we went to the, that’s what led us here. We have no real -. LEITHEAD TODD: Well, the other reason is that I have 22 requests which exceed the entire amount of money in the Royalty Fund. 6 EXHIBIT D PETRICCI: I understand. LEITHEAD TODD: So if that’s a priority, then there isn’t any money going to be in that. PETRICCI: I see, I see. LEITHEAD TODD: That’s another reason why we started looking at the Asset Fund, which is sitting there $2,000,000 not being utilized, but clearly was intended under Condition 49 to do mitigation projects. PETRICCI: I understand. I would like to make a point of clarification. When we made the request for the $50,000, for the study, you didn’t have those claims. A majority of those claims came in after we made the request for the funds. LEITHEAD TODD: The problem is that both the Department’s rules as well as the County Code make relocation of people a priority expenditure. And so it became problematic. PETRICCI: No, no, I hear you. My point really was this, that when we made the request for the funds to the County Council you didn’t have those claims to be a priority, but we were told, no, you have to go to the Asset Fund. But I just wanted to make sure everybody was clear about that. AU: Okay, thank you. Any questions for the testifier? Okay, if not we’ll go on to Tom Travis. Please state your name, where you reside and you may -. T.TRAVIS: I’m Tom Travis. Is the mike working? AU: Yes, it’s on. T. TRAVIS: I’m Tom Travis. I reside in lower Puna. I have the following concerns to the proposed procedures and rules for using Geothermal Asset Funds for community health studies. First, the proposed rules give the Planning Department and Commission influence in shaping health studies and then deciding how to report out the health study. The Planning Department has neither the expertise nor the experience to assume these responsibilities. Second, Dr. Adler is currently heading a working group to identify what health studies are needed and in what priority. Makes sense to await results of that study before setting procedures for study conduct. Third, the Geothermal Resource Permit requires these funds to be used for the community. Yet I see no safeguards to insure funds go to the community from which these funds are generated. Nor do the rules strictly safeguard the community’s role, ensuring participation of the community but not providing accountability to the community. Without involvement of the County Council I see no other remedy for guaranteeing the community’s role. Finally, use in administration of the two funds is difficult to sort out and in my limited ability difficult to comprehend. To mitigate this problem I would recommend an audit of the two funds, what 7 EXHIBIT D expenditures there have been from each and what rules have been in place for each expenditure. Thank you. AU: Thank you. Any questions for the testifier? Thank you. So how are we going to take this? These are nonvoting matters, right? TORIGOE: As the Director said there’s no specific rule proposal to discuss. However, there are those two requests from the former Council people just asking for some direction it sounds like, well, from the testifiers. And maybe we should get from the Planning Director what she thinks about waiting for Mr. Adler’s study to be completed as well. It seems to be something that the testifiers are suggesting. AU: Yes. You know, I’d like to hear that and I’d like to see where Adler is at, where exactly he’s at. I mean you guys must have some kind of report from him, right? Well, maybe Mr. Melrose can come up and do that. Can you come up, Mr. Melrose, please. So the rest of you may be seated. Thank you very much. Thank you for your time. So Mr. Melrose, I need to swear you in. Can you raise your right hand. Do you affirm and swear to tell the truth in front of the Planning Commission today? MELROSE: I do. AU: Thank you. Please state your name and where you reside. MELROSE: My name is Jeff Melrose. I reside in Hilo. And I currently am a project development specialist in the Mayor’s office, and as the point of contract for Mr. Adler’s study. So, really I don’t know how to address the legal questions, and I’ll let the Planning Director deal with the sequence of this. But I’ll give you just an update. The administration believes that this is an important issue, that the development of health studies is an important outcome and is an important part of resolving and clarifying public policy going forward as it relates to geothermal. Getting a good public study, getting a study done that is done in the best possible way with the least amount of, kind of political or political science engagement in the process is an important outcome to make a good decision with. So the administration found a small amount of funds in the Department of Research and Development to fund what is called a joint fact-finding process. Science and public policy often pass each other in the night. And this is partly an effort to bring some clarity about what science is, would be appropriate, what the current issues are, what kind of priorities there are to study what. You have a limited amount of money, $2,000,000. Actually in the science study context it’s relatively small. How would you do that, how would you come up with the right kind of study using the right kind of information. So Mr. Adler is an internationally known complex problem solver and he was contracted. We are at arm’s length. He makes his own decisions. He has created, selected a joint fact-finding study group. It includes, I think at this point, about 12 or 13 people. It will grow. We have no impact on who those are. I believe Mr. Travis and Mr. Petricci are on that group. Its first meeting is Saturday morning. It’s primarily organizational by nature; and it will have a presentation both by a guest specialist from HVO and from PGV in terms of specific questions about operations and chemicals involved in that operation. The group includes a cross-section of epidemiologists, public health specialists, people who have been active in the community in a variety of different perspectives. And I think, you know, this is an important effort to try and get to the bottom of the matter. I’m very pleased that Mr. Petricci and Mr. Travis are willing to sit in this conversation, and as with all of the other members of it. So I expect 8 EXHIBIT D that that process will probably take, depending on how the conversations proceed, into April, probably before a final report is due. It’s due to you with a set of recommendations that will help improve your capacity to understand the challenge of use of those monies, since those monies are, I believe, in the responsibility of the Commission to approve. So it will set a context, it will try to provide a, some guidance about what this group arrives at in terms of the sequence of science. And maybe the part of the issue that the group arrives at is we really ought to do monitoring, we need to do -. I mean who knows what they’re going to come up with. But the point is that the sequence is something that they will come up with as a body of recommendations for you. So that helps to build your capacity to make better decisions in this process and to give the County Planning Department some clarity about what is, what amounts to significance science, what’s gone on with other places in the world, what’s gone on in New Zealand and other places around the world - so that we not just jump in at whatever point, you know, somebody pushes us - that we actually use that body of science in as constructive way as we can. So this is a tool to be useful to your deliberations going forward. So any questions, clarifications? It’s really a serious effort to get to the, to get clarity and to do the study that I think Mr. Petricci is asking to get done. AU: Thank you very much. Any questions? Okay, well, thank you. I’m glad to see that we’re moving along even though we didn’t hear from you guys for four months, even with that you guys are still going along; and I’m glad to see that both of you guys are involved in the process. PETRICCI: Thank you for staying late. AU: We all have to do our part in serving our community. So thank you guys. Madam Director, could we get a report on where we go from here and what are we doing? LEITHEAD TODD: The biggest concern we had when we reviewed Rule 12 is that it didn’t seem to fully implement Condition 49. And Condition 49, you know, it was clearly intended that you could do mitigation projects. And I consider something like funding a health fund, I mean, a health study a mitigation project, because you can’t really mitigate unless you know what is it or is it not the impact, because you have to know what the impact is in order to do mitigation. So I felt that that was a reasonable use and implementation of Condition 49. The problem is that Rule 12 as written only addresses claims for direct impact and says that those claims go through a Claims Adjuster. So I thought that the Rule probably needs to be tweaked to follow Condition 49 more, and also create a process by which you would fund something like a health study, as opposed to sending it to a Claims Adjuster. And so, you know, I’m just saying I think there needs to be something tweaked. I need some direction from the Commission if you want me to go and draft something along those lines which would then come back, you would take a look at that draft. If you were interested in amending the Rule, then we would have to conduct a public hearing on amending the Rule, at which point people could comment on whether the Rule satisfied what they thought it needed to have, whether it addressed the concerns, whether it was implementing 49. And you have that authority because, you have that authority under your approval of the geothermal resource permit and under your condition which set up the $50,000 per year, cause you folks did that. The reason the fund is specifically created in the County Code is under the Charter you have to, for accounting purposes, you have to set up a special fund so that the Finance Department can segregate the money and account for it separately. And then the Council said go and make rules up to administer 9 EXHIBIT D the fund. But you already have a lot of that authority under the Geothermal Resources Permit authority that you had when you issued it. The disconnect I had in all of this is that we had $50,000 coming in -. Because it was only set up for like the direct claims and because of the process and people could not prove that what they were, what they believe was a detrimental impact, they could not provide proof that in fact this was because of PGV. You couldn’t come in with a doctor’s report saying I’m suffering from this because of PGV, because there wasn’t the basis. So what happened is nobody, you know, virtually nobody was applying for any of the asset fund money; and which is why at the rate of $50,000 a year we’re at $2.1 million. And the last time we expended any money, I think, was the Commission approved back in the, maybe 2007, I’m not sure, there was a Mr. Malasek that put in a claim that, you know, he did relocation and as a result of the relocation he had lost revenues from the crops that he would have had on his property. And so he was given some Asset Fund money to mitigate the lost revenue from his orchard. But it has been very small amounts. And, in fact, almost all of the relocation has been done under the Royalty Fund; and that’s because there’s no requirement under the Royalty Fund that you show you have been impacted by geothermal. All you need to do is express a desire to be relocated, and then we have a Department rule on that. And we just set up a preference that it had to be a pre-1989 structural permit and that there’s a preference for those that were located within one mile of PGV. But you don’t have to provide any proof that you’ve actually detrimentally impacted by PGV, just a desire to be relocated under that. So it’s much easier to go under that Fund. And it was designed to make it easier for people to use that money when those rules were adopted apparently, because they have no proof requirement. Whereas, the Asset Fund has a proof requirement, which is why you have nobody asking, or virtually anyone asking, for relocation under the Asset Fund. AU: Okay. So under the Asset Fund we have $2,000,000? LEITHEAD TODD: The last time we looked at it we have approximately $2.1 million and the fund grows at the rate of $50,000 per year, because that’s the requirement that PGV has to pay into it. AU: Okay. And where are we at, at the Royalty Fund? We also over see that fund? LEITHEAD TODD: Not really. The Royalty Fund is administered under the Department, under the Department’s rules. That is money that comes in from, because the State considers geothermal heat a part of their mineral rights, under the lease agreements for harvesting the mineral rights, PGV has to pay a percentage of their profits to the State of Hawai‘i. The State then gives us a percentage of that money. And basically the way it works is that we get, 20 percent of the funds go to OHA, I believe 30 percent of the funds come to the County of Hawai‘i at which we put into the Royalty Fund, and the remaining 50 percent stays with the State of Hawai‘i. And OHA is able to spend their money however they want to. We have specific restrictions that the Royalty Fund has to be spent in specific, originally it was just relocation. And so under our Department rules, it was primarily the1989 and the one-mile radius. Subsequently the County Council amended it, and part of that was that there was a significant period of time when there were no claims being made against the Royalty Fund for relocation. So the Fund was growing, because we were getting from a low of maybe, you know, $100,000 to a high of $700,000 in a year, was coming in under Royalty. So the County Council amended it to create a community benefits fund so that some of the money could be spend for community benefits. And under that 10 EXHIBIT D amendment the Council could decide how that money would get spent; and they would appropriate it in the budget. So prior expenditures have been, they used some of the money to combine, I think, with fuel tax money so they could pave or repave Opihikao Road. Some of that money got used to repave Pahoa Road, right in Pahoa Village Road. About $700,000 went to expand the new transfer station in Pahoa. Cause they had enough money through CIP to do, I think, two chutes, and the $700,000 allowed them to do three chutes. So, and then some of the money has been spent for the Council offices in Pahoa. Some of the money has been spent in Parks and Recreation accounts. And all of this has been through direction of the County Council as to how those monies would be spent. The Department doesn’t decide how the money gets spent. It comes through the County Council. And recently we’ve had a number of claims made, that the last time we looked at it it adds up to approximately $4.5 million in claims for relocation. The funding at the beginning of this fiscal year was about $2.1 million, so the request for relocation exceeded the amount of money. And also, you know, frankly, it kind of overwhelmed the Department in terms of just the sheer number. Because from the time the fund was originally set up through this year, I think we only dealt with by maybe a total of five or six relocation requests. And the last one I think was, that had been processed was probably Mr. Malesek which was, I’m trying to remember if it was 2004 or 2005, you know, somewhere in there, I can’t remember the exact date. But it had been a while before anybody had actually made a claim. And so suddenly, partially because of publicity, we suddenly had a whole slew. And I think the drilling exacerbated it cause people were being, feeling overwhelmed by the amount of noise being generated. AU: So do you know the dollar amount that we’re at? I know it doesn’t pertain to us, but I’m just curious. LEITHEAD TODD: The last time I saw we had 2.1, they’re both, 2.1 in the Asset and 2.1 in the Royalty. We should have additional revenues coming in, but we frequently see a time lag between the time the State receives the royalty money and they cut us a check. But we were anticipating at going forward, particularly because PGV is back up. Well, they had for a period of time, you know, some of their production had been down, and their production is back up. We anticipate that we would probably receive in the neighborhood of between $500,000 to $700,000; and we’re hoping that it’s closer to the $700,000 per year that would be additional revenues. AU: Okay, thank you for that information, Madam Director. ARAI: Mr. Chairman? AU: Yes. ARAI: I just want to draw your attention again to our Director’s October 3, 2012 letter. I just want to make sure you’re aware that she does set forth a recommendation to the Commission for its consideration. So I just wanted to point you to that recommendation. AU: Okay. So on behalf of the Commission, I’d like to give direction to Madam Director to draft something to amend Rule 12 to implement Condition 49. If the Commissioners are okay with that, that’s what I’d recommend to the Planning Commission. 11 EXHIBIT D TORIGOE: So, yeah, I mean if the Commission is in unanimous consent with that, that’s okay. I don’t know if you want to make any connection given that in the timing of the Adler study or not. AU: Of course, with the result of the Adler study, the draft is going to go along the lines of that. Am I correct? And what’s the timeframe? What are we anticipating for the Adler study? LEITHEAD TODD: If you want me to wait for the Adler study’s recommendations to come in, we can. And then based on the recommendations draft the rule in a fashion that would allow us to fund the types of studies that the Adler recommendations make. We’re just trying to make sure that it’s consistent with Procurement Code and that there’s a process. AU: I think that would be appropriate to wait for the Adler study and then draft up something, if everybody is in favor of that. MOSES: But the -. AU: Commissioner Moses. MOSES: Thing is we do not know how long that’s going to take. Correct, is that correct? We don’t know how long the Adler’s would be? AU: Mr. Melrose, can you come and maybe if you just give us an anticipated -. The first meeting is this Saturday and I believe they’re both involved in it. MELROSE: Yeah, I would believe that essentially the process will move along quickly, hopefully by early April you’ll get a study. I think the questions really are of moving into the next phase of a study of actually implementing a study. If you wait until after that study is to begin to even consider the draft rules and go through a public hearing process and that, you won’t have the rules to be able to implement it until some period after April. And, you know, I think there’s a sense of, there’s perhaps a sense urgency in the community to want to move this thing forward. So I think generically the specifics of the study will you give some content issues. But what you need is the structural clarity in the rule itself so that public health studies can be enabled and you get away from this, what was it called, Adjuster, Claims Adjuster; and, you know, you set up the system that allows that to happen. And so I don’t think the details of the study necessarily need to be in the rules. But if you wait to make them sequential it will be a longer time before the studies are initiated. Studies themselves take a fair amount of time. So it’s just -. LEITHEAD TODD: I never anticipated delineating the methodology of a study or the content of a study. I was more concerned about methodology of awarding money for a study. Whether you have to do a, is it an RFP, is it straight procurement, is it sole source? And those were the kinds of issues that I was more concerned about, but also getting away from the idea that a Claims Adjuster makes the decision on whether something gets funded or not. Cause I didn’t think that that was the appropriate entity. PETRICCI: Can I -? 12 EXHIBIT D LEITHEAD TODD: Sure. AU: Yes, yes, please come forward. PETRICCI: As far as the procurement process, you’re going to be really limited. There’s a limited pool of people that can actually do these kinds of studies on hydrogen sulfide. There’s very few people that are -. The top experts in the world is what we need. So just take that into consideration. If you just put a contract out to bid, I don’t think that’s going to work very well. LEITHEAD TODD: I think what we’re going to probably do is say that you develop either, you know, that you have to do it either through an RFP, or through a sole source, or, you know, if there’s only a sole source, but some mechanism in the rule that allows us to procure, and it has to be consistent with the Procurement Code. And that’s all that I’m looking for, because my concern was that the way it’s currently drafted everything goes through a Claims Adjuster. And I’ve just, you know, just talked to representatives from the insurance industry and stuff like that and they say, hey, a Claims Adjuster can tell you how much damage you had to that building or that car, but they’re not the person who should tell you whether this study versus that study should get funded. That’s my concern with the Rule. It’s not trying to design or have the Department say this is what the study is going to look like, so much as setting up the process by which you would fund the study. MELROSE: And I would just add that I just don’t think it needs to be done sequentially. I think exactly what the Director is saying is, you know, fix the structure so the solution can evolve appropriately. And the details of the study aren’t in the rules, they’ll be an advice that comes from the study group. AU: Yeah, I agree with our testifiers and our Madam Director. You know, it’s not time of an essence. But it’s something that doesn’t have to go hand in hand; and it’s two different things, two different issues, procurement as opposed to the health study. LEITHEAD TODD: And I might note that Mr. Petricci and his friends can comment on the rule. What I’m proposing is to come in with like a draft rule before we actually go out for a public hearing to adopt so that there can be comment from the public whether the rule addresses your concerns, whether it’s going in the wrong direction, and then we can tweak. And then when the Commission, you know, when we’ve got something that the Commission likes, then we set it up for public hearing with the public notice, cause we’ve got to publish it, and show people what we are, and then have people come in. AU: Okay. So it would be just a draft and it would come in front of the Commission and it would be open up to public testimony. So I think it would be safe to just go ahead and give direction to the Planning Department and the Madam Director to go ahead with it. Mr. Travis? T. TRAVIS: I have just one quick comment. If we could figure out some way to involve the community in deciding what the health study is, either being a member of the, who determines the contract is awarded to or not, or having, you know, some accountable input through the elected officials. I think that would also be helpful. Thank you. 13 EXHIBIT D AU: Okay. Well, that would definitely be something that if Madam Director drafts it or if, I believe, a Commissioner can put it in as a condition. Is that correct? Not necessarily? Or it would have to be in Madam Director’s draft? ARAI: It would probably have to be incorporated within draft rules, if you want that component to be explicitly clear. But that’s something, again, they can make the recommendation once the draft rules are prepared and the Commission can consider to incorporate it or not. AU: Okay, okay. Well, we’ve got time as far as the first, the initial one which would be draft and, you know, you have time to testify. PETRICCI: Just one little note on the history, there’s been several studies attempted; and one was done by the Department of Health, and I’m sure the Planning Director is aware of this, so one was done by the Department of Health, the community wasn’t, didn’t think it was done in a way that was acceptable to the community. Another was done by the University of Texas that the developer wasn’t - . So, you know, that’s our problem. We need something that’s going to be acceptable to everybody so we don’t just spin our wheels and keep doing the same thing. AU: Okay. Thank you very much. The discussion ended at 5:22 p.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 14 EXHIBIT D