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HomeMy WebLinkAbout2015-03-05 Hearing Transcript - WPC Initiated Puna Pono Alliance GAFWINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MARCH 5, 2015 A regularly advertised hearing on the Windward Planning Commission Initiated discussion and action on a motion for reconsideration was called to order at 10:30 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Vice Chair Raylene Moses presiding. COMMISSIONERS PRESENT: Raylene Moses, Charles Heaukulani, Gregory Henkel, Donald Ikeda, and Stephen Ono. ABSENT & EXCUSED: Myles Miyasato. ALSO PRESENT: Duane Kanuha (Planning Director), Danny Patel (Deputy Corporation Counsel for the Windward Planning Commission), William Brilhante (Assistant Corporation Counsel for the Planning Director), Daryn Arai (Planning Program Manager), and Sarah Hata-Finley (Commission Secretary). And approximately 18 people from the public in attendance. INITIATOR: WINDWARD PLANNING COMMISSION Discussion and action on a motion for reconsideration of that action by the Windward Planning Commission, at its January 8, 2015 meeting, to reject the claim adjuster's recommendation regarding, and to authorize the release of funds from the Geothermal Asset Fund, for the following geothermal impact mitigation project: Claimants: Puna Pono Alliance, Pele Defense Fund, Sierra Club-Moku Loa Group, Ohana Ho'opakele, Malu 'Aina, et. al. a. Psycho -social Impact and Community Wellbeing Study - $293,760 Funding to conduct a baseline and prospective psycho -social impact assessment on the Big Island of Hawaii in order to identify both past, existing and potential adverse impacts upon Native Hawaiians associated with the development of geothermal energy generation facilities. The claim also includes a request that the Windward Planning Commission establish a Native Hawaiian Health Study Review Board that will provide advice in the conduct of the study and keep the Windward Planning Commission informed as to the progress of the study. MOSES: Next item on the agenda, Item 6. Staff presentation? ARAI: Thank you very much. The next item, and final item of the day, that's currently before you is—and just to provide you with a recap on this particular agenda item—the Claimants, Puna Pono Alliance, Pele Defense Fund, Sierra Club-Moku Ola [sic] Group, Ohana Ho`opakele, Malu `Aina, et al. submitted a claim before the Windward Planning Commission for the release of EXHIBIT E funds from the Geothermal Asset Fund for a geothermal impact mitigation project described as a Psycho -social Impact and Community Wellbeing Study in the amount of $293,760 to conduct a baseline and prospective psycho -social impact assessment on the Big Island of Hawaii in order to identify both past, existing, and potential adverse impacts upon Native Hawaiians associated with the development of geothermal energy generation facilities. The claim that was submitted also includes a request by the ---I'm sorry—the claim also includes a request that the Windward Planning Commission establish a Native Hawaiian Health Study Review Board that will provide advice in the conduct of the study and keep the Windward Planning Commission informed as to the progress of the study. This particular claim was submitted, was transmitted to John Mullen & Co., the claim adjuster approved by the Windward Planning Commission in accordance with your rules, Rule No. 12 regarding the Geothermal Asset Fund. The, your claim adjuster reviewed the subject claim against the requirements of Rule No. 12, with their recommendation, along with all of the material provided by the Claimants, was subsequently made a part of your Planning Director's Background Report that was provided to you in advance of your January 8, 2015, meeting on this particular matter. At your January 8, 2015 meeting, the Commission voted to reject the recommendation of the claims adjuster and to award the claim as submitted while also directing the Planning Department to investigate the process of establishing a Native Hawaiian Health Study review board to be comprised of Native Hawaiians, if possible, that will provide advice in the conduct of the study and to keep you informed as to the progress of the study and to provide you with an outline regarding the establishment of this review board and the process in which they would advise the Commission. Chairman Miyasato, who conducted the meeting at that time, and at theI'm sorry—Chairman Miyasato at the Commission's next meeting held on February 5, 2015, directed that a discussion and action on the motion for reconsideration brought forth by Commission Ikeda, of your January 8 action on this particular matter, be placed on today's agenda, which is where we all stand at this moment. So, that concludes my brief update leading up to today's meeting. Madam Chairwoman? MOSES: Thank you, Daryn. Assistant Corporation Counsel, Bill Brilhante. ARAI: My apologies. MOSES: Assistant Corporation Counsel, Bill Brilhante, will do a short presentation regarding concerns and make recommendation. BRILHANTE: Hi. Good morning, Madam Chair and fellow Commissioners, and Planning Director as well as Corp. Counsel. William Brilhante, Assistant Corporation Counsel. The 2 EXHIBIT E reason that the Planning Department initially took a second look at this proposed application for the claim was, you know, we kind of looked at the practical effect of you know what would actually happen if this matter were to go forward, and you know, as the claim is currently written, you know due to various issues with you know the County's requirement that it complies with the State Procurement Code for release of all contractual obligations whether it be funds or you know agreement of the County to seek professional assistance, the issues that were raised here. And again, you know, we know it was the --how should I say --it was the desire of this Commission to grant the claim and you know the basis and the justification for granting the claim were all, were all valid. But, I think you know the reason that we have a concern as a Department is because the practical effect of what's going to happen is this claim's going to go forward, but due to the deficiencies in the claim as it relates to issues with the Procurement Code, and as well as the condition for the creation of the review committee, the practical effect of what's going to happen as, is this claim's going to go forward and then nothing will stem, you know, follow from it. It would most often, more than likely, sit at the Finance Department, and the funds would not be released because nobodyI could almost assure you nobody within the County Finance Department would want to do anything that would be, that would violate the State Procurement Law. You know, so, the specific issues are you know, one, is as the claim currently reads, there's a specific item within the claim to pay particular individuals, you know definitive sums of money, and I think if you look at HRS, Section 103D-101, and 301, that's something that the County can't do you know beforehand. The requirement is that every claim or every contractual obligation that the County enters into has to offer a fair opportunity for everybody who may be qualified to perform the work or duties or responsibilities under that contract, has an opportunity to submit a bid on it, you know except if there's an item of such specific nature, that it falls with one of our professionals who are already on the County list to do that type of work. And, you know, it's unfortunate at that, within this claim, is a specification that a particular individual and a particular entity would be awarded the contract, and there's specific sums of money within the contract which you know kind of raised the red flag. Some, you know, the payment, to the individual was you know a thousand dollars for an hour a day for review work and two thousand dollars a day to come and actually do site visits and the like, and you know—you know, so those are the reasons as it relates to the procurement issue. The secondary issue was regarding the creation of a review board, and the problem with that again is, you know, you guys are very powerful as a Commission. Unfortunately, within your scope of authority or jurisdiction, you don't have that authority to create an independent review board. You do have the authority to create a ad hoc committee within your Commission consisting or comprised of your volunteer commissioners to sit in such a capacity, but you know, unfortunately, the way the claim as written, and the way that the approval was issued from the Commission, there was, it was—the language and the approval was more analogous to a creation of an independent "review board" and you know so that's something that you know is problematic. So, the recommendation? You know, based on those two primary issues of concern, which were briefly identified within the letter the December 17, 2014, letter from the claims adjuster, 3 EXHIBIT E where he recommended denial of the claim. He alluded to these issues as well. So, I just wanted to bring it to your attention. You know, we're looking at the practical effect. If the Commission is desirous of you know having the community move forward with the study, you know, engaging in a study, your desirous, you identify the beneficial effects of having such a study, then what I'd sure hate to happen is that this approval moves forward, and at the end of the day, nothing really happens because of the legal, you know, defects within the actual claim. I think you know, the desire of the Commission is to have this move forward and let's get this going, and if that's the case, I just wanted to raise those issues, so that being said, my recommendation would be to remand the claim back to the Planning Department, have the Planning Department work with the Applicant to address these two specific areas. Maybe an amendment or redrafting that portion of the claim. Resubmitting it to the claims adjuster after the corrections are made, and moving forward from there. And, I'm not sure if the Planning Director has anything else to add. I hope I was able to articulate you know those concerns clearly. KANUHA: Members of the Commission, the issue that we're raising are primarily procedural, and not, you know, we're not in opposition to the Commission's desire to go ahead and issue this particular claim. We just want to make sure that procedurally, that it's, that it's all in place. I believe both Corporation Counsels will validate that in lieu of a specific claim with damages, this particular aspect and also some of the other claims that were issued for proposals by the Mayor are not those kinds of specific claims which you know once validated could be paid. But these are claims for studies, contractual work, that all need to fall under the procurement requirement of the State of Hawaii and the County of Hawaii. BRILHANTE: That's correct, Director. This actual claim is not, like the Director was the saying, for a specific injury, related to a specific injury. It's more analogous to Section 3, which is a claim for a community approved mitigation project. This would fall under that component. MOSES: Commissioners, any questions? HEAUKULANL I have some questions. MOSES: Yes, Commissioner Heaukulani. HEAUKULANL Bill, thank you for that, and I understand the issues with procurement laws, but how is this different from when we funded, I don't know, what was the phrase? Meta -study or study of a study. How is this different than, than when we funded that one? BRILHANTE: My understanding, and my review of the, the application that came in from the Mayor's office regarding funding the study for the meta -data was that the RFP process for that one, or the, the final entity who would conduct the study wasn't specifically identified, so an RFP process was initiated by the County, the Finance Department, in conjunction with the Mayor's office, and there was a competitive proposal, a notice for you know submission of bids was provided to everybody and a review committee was established, and a particular entity was, 4 EXHIBIT E or I'm not sure if a particular entity was specifically identified. My understanding is that there currently, the County is currently engaged in the RFP process so no awardee has been identified, so the process is still going through the, the competitive, bid process, whereas in this case, the Claimant specifically identified a particular entity with actual funds, you know—you know, assigned to the work, and you know that, and it doesn't afford the opportunity for anybody else who would be able, or feels that they're qualified to do the work, to competitively present a proposal to do the work. HEAUKULANL Yeah, I didn't anticipate this position showing up, so I didn't review those, but I, I thought that when the proposal came to us for the meta -study or the meta -data study or whatever that was, that it was the, the medical school that was the identified procurement entity. BRILHANTE: In that case, under Procurement Law, if the UH or a educational component of the UH system is identified as the fund's recipient, then it's, that's one of the exemptions, exceptions within the Procurement Code, so that is affordeda contract with the University of Hawaii or one of its entities. HEAUKULANL Okay, you lost me. So, it, are they in the bidding process or are they exempted from the bidding process? BRILHANTE: As—there were two studies funded, right? Back in NovemberI'm, you know, I'm just recalling from memory-- HEAUKULANL Me too. BRILHANTE: I don't know it just off the top of my head—There were four items identified, approved. KANUHA: Yeah, there was a study to assess the ground water quality, the meta-analysis, and the soil contamination for the brine ponds at HGP -A one. BRILHANTE: Director Kanuha, you have the communication from the Mayor's office regarding the status of the current application? KANUHA: According to the Mayor's office, those three are underway. They're in the final stages of the RFP for the, the health study component, and this was as of January. BRILHANTE: My understanding is that the meta -data study was specific to the UH so, yeah, I believe, and you know I don't want to give a firm response, but it's my understanding that, that contract went forward because it's contracting with the UH school to do the analysis. The health study, which was approved for $750,000, that's the study that I was referring to that it's currently within, in the RFP progress. So, this study would be more analogous to the health study because the proposal is for an independent entity outside of the UH system to conduct the study. MOSES: Commissioners, any other questions? 5 EXHIBIT E PATEL: If Iso, I just want to put it out there for the Commission that if the Commission would like to discuss the procedural issues from the Commission's perspective, I am prepared to discuss that, but I think that would best done in executive session. HEAUKULANL I'll take you up on that. I'd like to move that we move into executive session regarding Item No. 6 pursuant to 92-5(a)(4) for the purposes of consulting with the Commission's attorney on some questions and issues pertaining to this issue. MOSES: Any second? IKEDA: Second. MOSES: It has been moved by Commissioner Heaukulani and seconded by Commissioner Ikeda. All in favor, say aye? COMMISSIONERS: Aye. MOSES: Any opposed? We're going into executive session. If everyone can please leave the room. Thank you. At 10:47 a.m., it was moved by Commissioner Heaukulani and seconded by Commissioner Ikeda that the Commission go into executive session to consult with its attorney regarding questions and issues pertaining to the Commission's powers, duties, privileges, immunities, and liabilities, pursuant to Hawaii Revised Statutes Sections 92-5(a)(4). A voice vote was taken of all Commissioners present, and motion carried with five aye votes. At 10:50 a.m. the Commission went into executive session. At 11:04 a.m., it was moved by Commissioner Henkel and seconded by Commissioner Ikeda that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with five aye votes. The hearing reconvened for regular session at 11:07 a.m. MOSES: Meeting will now come to order. Corporation Counsel will briefly discuss the procedure for the motion to reconsider. PATEL: Thank you, Chair. So, just so everyone's on the same page as to what's going to happen. So, the public and the Claimants are going to be able to provide testimony. Once the testimony is done, Commissioner Ikeda would neither—would either—need to affirm his motion or withdraw it. If he affirms his motion, there would need to be a second to the motion. If there's a second to the motion, then the motion to reconsider will be discussed. If there's no second to the motion, the motion fails, and the Commission's prior decision stands. If the motion is discussed and voted upon, and passes, at that point, the Commission would need to entertain further motions for action on the claim. 6 EXHIBIT E MOSES: Thank you. So, we will proceed with public testimony, and we do have public testimony. Excuse me, will the Applicant or representative please come forward and be seated at the table in front of the Commission prior to public testimony. PETRICCI (from audience): Is that Puna Pono Alliance? FUJIYOSHL (from audience): It's all of us? MOSES: Yes-- PATEL: Or the designated representative. MOSES: ---the representative. PETRICCI (from audience): No, no, every group, all the groups, I don't want, I can't speak for the other groups. Tom, do you want to sit here? Why don't we let Tom sit. FUJIYOSHL One more chair? MOSES: Do you need another chair? FUJIYOSHL Yes. MOSES: Please raise your right hand. Do you swear or affirm to tell the truth on this matter-- FUJIYOSHI: I do. MOSES: I'm just waiting for this gentleman here. FUJIYOSHI: Oh. TRAVIS: I do. MOSES: Now before the Hawaii County Planning Commission. TRAVIS/ALBERTINI/FUJIYOSHI/NAPEAHI/HARDEN: I do. MOSES: Thank you. You may begin your presentation or testimony by first stating your name and place of residence and speaking directly into the microphone starting with—thank you. HARDEN: Cory Harden with Sierra Club Moku Loa Group. I'd like to thank you all for your volunteer service. We appreciate your past support and we hope you will find a way to move this study forward. The geothermal industry in Puna unfortunately is classic environmental injustice. It's low income, and indigenous people suffering the impacts of industry while people 7 EXHIBIT E elsewhere reap the benefits. I was going to ask that you discuss the reconsideration in open session, not executive session, but that's past already, so I'll just again, appreciate your past support and hope it will continue. Thank you. NAPEAHL Aloha Commissioners. My name is Terri Napeahi, representative of Pele Defense Fund. And, my presentation this morning will focus on a health study comparison that would be MOSES: Terri? NAPEAHL Yes. MOSES: Where do you reside? Sorry. NAPEAHL Oh, I'm, I reside in Hilo. MOSES: Hilo? Thank you. NAPEAHL Okay, and the reason for using this comparison because it was done by the University of Hawaii, Dr. Tanabe and the John C. [sic] Burns School of Medicine. And in this comparison, I think is a --something that could be used in your decision making as to how Dr. Tanabe was able to do a comparison on health and the traditional beliefs. And, you know, it was amazing the results, so this morning, I'd like to present this so that you can make a just and rational decision on whether or not to support the health study in regards to the traditional beliefs and how it had an impact with the study. And, so my points will be directed to how important this opportunity will be to the Native Hawaiian community in respect of our traditional belief and value systems and how it is, how it has a direct relationship to the health and wellness of your community. And, there was a health and, health care study done by, done for the Japanese - American immigrant that had left their homes years ago to come to the, to America actually, but it was focused mainly on the immigrants of Hawaii, and basically how they use variables and important components, key components to come up with the reason for this health study in the Japanese -American elders. And, it's amazing the results of this, this study that was done by Dr. Tanabe because of its positive results. They left their homeland so that they could come to, to have a better lifestyle for their people. And I think there's a Japanese term for thatkodomo mi dame mi or is it? Yes, did I say it right? FUJIYOSHL Kodomo no tame ni. NAPEAHL Can you say it again? FUJIYOSHL Kodomo no tame ni. EXHIBIT E NAPEAHL Okay, which means for the sake of the children. And—and basically, the key components to this studies was important for them to have a thorough completion. And it had to do with their traditions and their beliefs and how it directly related to their health. The Japanese community in this study had the highest rate of life expectancy for that group of people that had come here. Also, the lowest rate of heart, heart cardiovascular problems, as well as strokes. And, in this study, that you can read, it was because of their determination to keep their cultural identity by holding onto their beliefs. It was important that this whole group of people maintained something like that. And, and the result of that was a healthy life. And so, that they managed to maintain and acquire. And, which brings me to the component that they used. One of the components, well, two. One was religion and the other was the level of acculturation. And what does that mean? Level of acculturation—it was asorry, I'm sorry—it was the belief of holding onto a traditional belief in a family because it was important. It gave them strength, and it worked. And, and so, which brings me to this idea of, of our Hawaiian community and the direct relationship, I believe, we have with our health and the disparities that have been, and the high percentage of disparities that come to our group of people, in our native group of people, throughout the years, and I think, I believe it has a direct relationship to our continue, continual fight to identify who we are as a culture in our own homeland and our environment. And it, it's—I'll give you an example. Our continual emotions, emotional distress watching a sacred mountain be desecrated; watching our Iwi Kupuna, our ancestors, being dug; and watching the desecration of a deity like Tutu Pele, being drilled by geothermal. And, all of these things have a, you know, have a suppression, be suppressive, an oppressive motive to destroy and to disconnect our group of people from what is empowering them, and that is our traditional beliefs. So, you know, I would hope that, you know, this is tangible. This is something that you can look at. And, I think she was pretty fair with her study at the, the University of Hawaii, and fair to use the religious and the level of acculturation in their perspective, and that it would not be complete without that because of the fact that you—we live, our Hawaiian people live, we're from this land. But, we're not able to be who we are. That, I believe, affects our health, our mind, our style of living, and our will to continue to be who we are as a culture. So, I would hope that as you make this decision, a wise, you know, wise and just decision, do it in the manner of that, the fact that our native community is your community, and to have our family be, our native community be as healthy as the American -Japanese culture has, you know, managed to be in a place that is totally foreign for their families. But, they managed to create a life for the sake of the children, and I think some of you sitting on the Commission are descendants of just that. That you can identify to that and hope that you can hear our native perspective, and our cry to have somebodyI don't think you'll ever find a positive health study done in our native community ever. And, so, that's my, my request today. FUJIYOSHL Aloha Commissioners. My name is Ronald Fujiyoshi, and I live in Hilo. I, this is only the second time I've ever been before the Windward Planning Commission. I came on 9 EXHIBIT E January, I think it was the 8th, and testified, and I'm sorry that two of you were not present at that time. I'm also representing Ohana Ho`opakele, and if Palikapu Dedman, our president, were here, he would be representing Ohana Ho`opakele, but he has business in Oahu today, so I'm sorry that he's not here. I feel a --strongly that something is not right with this process. And, I understand that according to the Sunshine Law, that whatever is discussed before a County Council body like a commission should be given six days notice so that when I heard the Deputy Corporation Counsel speak, I, yeah, I wish I had that in writing six days ahead, because that would give the community and us who did the research to bring forward the Edelstein study time to explain why the merits of the study, which we argued the last time, the last time, is so overwhelming, that you should go continue with the study. He made some reference, and I wish I had it in writing, about because this expert is not on a list of experts that the County has used in the past, you going out for RFP. Now, Edelstein, geothermal has been around a long time. And, if there were anyone better than Edelstein, the name would have popped up long time ago, but it hasn't. And, and, and—and, we questioned that I think in this case the community has more knowledge about what is going on with geothermal than some of the people being hired by the County. Now, so, I'm, I -I think that what is being done here is you're not giving the, the not only the public, but those who have researched the reason for doing Edelstein, to do the six, six-day study to come with more independent, intelligent arguments before you, before you make this decision. Now, the last time, I think you did the right thing. And, now, we have two Commissioners who weren't there at the last meeting, voting on a, on something when they weren't there present to hear the impact of the testimony the last time. I think it's bad. I think the two Commissioners who represent Puna know better about geothermal than the others representing other parts of the County, and the rest of you should follow their example in their argument on what is best for Puna. And, I wish, I just saying, I wish we had more time that we could prepare for this, because I think we would be able to present much better intelligent information for you to make a decision like this that wasn't shared with us. I call the Planning Director, the Planning Department, the phone number was there and the name, and I asked what is the reason for this request or reconsideration? And the answer which was called back on my answering machine is we do not know, we just know that one Commissioner asked for reconsideration, and we will know the same time as you will what the reasons are, and I don't think that's true. Because we heard some things before this meeting that gave us more insight on what we could have prepared better on. So, I'm, I really appeal that you stick with your original decision and not reconsider this. My understanding is the County has done studies in the past without RFP, and if that is true then, that you've done that before, then there's no reason for you at this point to do a RFP. Thank you. TRAVIS: I'm Tom Travis. I'm representing Puna Pono Alliance as its Vice President and also myself. I live in Puna. There have been four studies already authorized from the Geothermal Asset Fund. One of those studies was the $750,000 health study which was awarded or is being awarded by an RFP. 10 EXHIBIT E A second one was a meta -study of hydrogen sulfide studies done by the University of Hawaii. That one was not competitive but as the Corp. Counsel said, it was to the University of Hawaii. A third study was the groundwater study which was done by the United States Geological Survey, and the groundwater study was awarded without an RFP. The final study was a soil sampling study at the old HGP -A site, and as far as I know, that one was done without an RFP to a private contractor, so it would appear to me that on the surface, the County has the flexibility to award this contract without putting it into further procurement. The RFP is bothersome to me, and I'm going to bring up a different issue. The Adler group recommended a health study—this is the $750,000 health study—that recommended broadly how that health study should be done and then recommended how the person that would do that study should be selected. There were three principles that the Adler group used in making that recommendation of how the health study should be selected. Those three principles were that the process would be transparent so that people could see how the health studies were rated and who was chosen, that there were true experts on the evaluation committee, and it provided procedures to find those experts. And, finally, that there would be community input into that selection. When you, the Windward Planning Commission approved that health study, I read the RFP that was submitted at the time. The RFP that was finally sent out for proposals did not include any of the provisions about expertise, transparency or community involvement. So, it is with some angst that I think that another study would go to the RFP where a procurement officer without having any stipulations on how he does his evaluation, would be the person that chooses without input from the community or without input from experts. Finally, I agree with what Ron said about the Sunshine. It would have been very convenient. I asked several people what this hearing was about. I was told that it was a reconsideration by one member but the topic of the reconsideration or the purpose or why that occurred was, was never provided so that the first time we found out today was when the Corporation Counsel made his presentation on procurement rules. Thank you for your time. ALBERTINL Aloha Commissioners. My name's Jim Albertini. I'm a long time Puna resident. I'm the president of Malu `Aina organization in Kurtistown, and our farm was the hub for the Big Island Rainforest Action Group that for 30 years or more worked closely with the Pele Defense Fund and other community organizations on the geothermal issue. So, I'm intimately knowledgeable on the history of concern in Puna. In fact, in 20 days from today, on March 25th, that will mark the 25th anniversary of one of the, if not the largest civil disobedience actions in the history of Hawaii. When we had 2,000 people in Wao Kele o Puna and over a 150 people arrested for a non-violent civil disobedience on a single day. That's 25 years ago, when we were standing with Hawaiians calling for justice. You know, and here we are today, now dealing with this thing that we had no knowledge of until we came here this morning. An RFP. I think it 11 EXHIBIT E really is RFJ, road block for justice. That's what we're facing today. And, I think as lot of people have said, justice delayed is justice denied. And, I ask you to go forward with this Edelstein study today. That how long it's been too long. And, I remember Donald Ikeda at the last meeting when we came, I shook his hand, and I said thank you. And I said we've done the right thing, and you agreed with me. We've done the right thing. Let's not delay that. So, I thank you, and I hope you feel the passion of the people of the need to stand in solidarity for the mistreatment of Native Hawaiians from geothermal development. MOSES: Commissioners, any questions? HENKEL: Ms. Chair? MOSES: Yes, Commissioner Henkel. HENKEL: I'd like, you know, it's not so much a question as a statement. I think there's been a misunderstanding of our purpose here today, isn't to you know deny. We certainly you know delay is possibly on the agenda here but what we're trying to do is to facilitate the release of these funds. It's come to our attention that if we let our previous action stand, that there's a chance that they might not be released. Period. And to me, that would be a travesty. I'm, you know, I, I live in Puna. I live downwind from geothermal. I've lived there, you know, even before the geothermal plant was in existence, and I've been negatively impacted by the plant in the past, and I certainly support everything you guys are doing. And, the other thing, I think there's been a misconception of our executive action and basically what we're doing is meeting to find out a way to facilitate this. I'm, you know, trying to break it down into layman's terms just so I can understand it, you know. There's far more educated people then myself here, and I'm, I'm -I'm kind of at a lost. I don't know what to do, but I'm certainly sympathetic to all your comments and appreciate that you know you coming out there, out here today and talking, so let's, let's see what happens from here. MOSES: Any other questions or comments? Thank you. We will now proceed with public testimony. We do have ten testifiers signed up, and we're gonna start with calling up the first four. Please note that each testimony will have three minutes, and staff will be keeping time of that. So Cory Harden? Oh sorry, thank you, nine, nine testifiers. Cory Harden, Judith Mura, Terri Napeahi, and Ronald Fujiyoshi, if you can please come up to the table in front of the Commission. FUJIYOSHI (from audience): We already did. MOSES: You already did. You don't need too? Okay, all right. Terri and Ronald, so Cory, Judith, Hanalei Fergerstrom, and Moanikeala Akaka. HARDEN (from audience): I already spoke. 12 EXHIBIT E MOSES: You already--? Judith, Cory --Cory, that's right? All right. We have Judith Mura, Hanalei Fergerstrom, Moanikeala Akaka, Thomas Travis, Laura Travis. Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission. MURA/AKAKA/TRAVIS L.: I do. FERGERSTROM: (nodded affirmatively). MOSES: Thank you. You may begin your testimony. Remember that you have three minutes. State your name and place of residence, speaking directly into the microphone. MURA: I guess I'll go first. My name is Judith Mura. I'm a vacation rental owner, and the Puna side, geothermal, is my neighbor. Various reliable, scientific studies have enlightened all of us on the health studies that second hand smoke, driving while under the influence of alcohol, or breathing hydrogen sulfide, pollution, are to children, women, men, and animals. And this is the reason, health hazard, that I'm speaking today. PGV's been a constant source of poison in my community. This poison is far beyond, exceeded far beyond, the need of being regulated or studied. PGV has also countless times proven to my community that they are not able to operate in a safe manner. This is an unfortunate fact for people like me who love their home, love their neighbors, and have the right to clean air, earth, and water. Financially speaking, PGV gives the State of Hawaii a million or so yearly. My community that PGV is helping ruin, tripled that amount in taxes to the State of Hawaii. Please help us keep Hawaii clean and the poison from being released in my community. Mahalo nui. AKAKA: `Ano `ai ke aloha. My name is Moanikeala Akaka. I was one of those, was it 25-30 years ago when we started the whole geothermal issue. My daughter at the time was 14 years old. She's now almost 40. This has been going on for a long time. She, as we were going up to Wao Kele o Puna, she MOSES: Excuse me, Moani AKAKA: Yes. MOSES: Where do you live? AKAKA: I'm sorry. I live in Hilo. MOSES: Thank you. AKAKA: Although we're property owners in Puna as well. She at the time, we were on our way to Wao Kele o Puna and at 14, she said to me, "well, Ma, I want to get arrested, too." And, I said, well, wait a minute, she's 14. And, I said, "well, if anybody asks you," `cause I wouldn't want them to think that her mother pushed her into this situation, I said "well, if anyone asks 13 EXHIBIT E you, what will you say?" She said, "well, Ma, it's, it's our future, too." And, with that answer, it was all right with me that she took a stand on the `aina for the present and future generations. As I said, now she's 40 and a mother of an eight-year old. You know, there's always been concern. At that time, we had a fellow named Marco Notrica who had his masters degree from, from Harvard in toxicology who wrote a study on hydrogen's, the detrimental effects of hydrogen sulfide poisoning. Now, this has been going for over 25-30 years and there's still that concern about hydrogen sulfide poisoning and the, the health of those who are impacted in the area but how about Native Hawaiians whose `aina this is who end up being strangers in our own homeland, and you know this keeps, this whole issue keeps getting swept under the rug. You know, whatever you have to do to fine-tune this issue, you are telling us that it is not that you are against this issue, but that, but that this, this, proposal has to be fine- tuned. Well, you know, you have lawyers, you know, why hasn't this been fine-tuned before now. You know, why does it take a reconsideration of this issue before you do anything about it. You have lawyers working with you. You know, it's your responsibility to get this fine-tuned, body, who are here to represent our best interest and are here to protect the community. My people end up being strangers in their own homeland. There's no question about the impacts of, of geothermal development to the health and safety of , of our Native Hawaiian community and the community at large. So, enough is enough. This has been going on for too long. As a trustee of the Office of Hawaiian Affairs, I was, when they, when this, the, these revenues first came to the Office of Hawaiian Affairs, out of principal, you know, I was not for it. So, you know, the buck stops with this body. So, let's get the lawyers to work on it, fine tune this issue, so that we may go on, and that this, this issue can be taken care of as you, as been said, the expert is Dr. Edelstein. Have him take care of it. We also know that three out of four issues have been no RFPV [sic], RFP's in the past, so that's certainly your discretion. So we are saying and we are asking you, in all humility, let's move on, and get this issue taken care of. Mahalo. FERGERSTROM: Good morning, members. My name is Hanalei Fergerstrom. I'm from the District of Puna. I live in Kurtistown. I am particularly interested in having this move forward as quickly as possible because this is the first time I've ever seen somebody start addressing the impacts on Native Hawaiians because the whole geothermal thing is just a, it's a, it's an assault on our religious backgrounds. And that assault obviously is going to affect our community the -- a way we conduct our culture. The mindset of Hawaiians who grew up understanding the sacredness of Pele, and to, to continually watch this, this—this raping, and I consider it a rape because there was no gift of Pele. It was rape. She was raped. And it continues, and, and—and, there are so many things that, that need to be put on the table so we have a better understanding. We're not, you know, I'm a member of the community but I'm also a Hawaiian who is directly impacted by it. I'm also priest of the temple of Lono, so it has very, very, very profound impacts on me on, and also on how I'm able to project or, or pass onto our younger members of our community. What we deem as sacred in Hawaii and why, and how that all fits together—this study is, is more than, more than overdue. And it's really, as I understand this, it's a, it's to conduct a baseline, just a baseline. We're not talking about the ramifications of the study, yeah, we're not even talking about that part yet. So, I don't think there should be any problem with getting this started now, quite frankly. 14 EXHIBIT E Thank you very much. TRAVIS: My name's Laura Travis, and I live in Puna and have lived there for 4-1/2 years. I was a member of the Mayor's, of the Hawaii geothermal public health assessment working group and in the working group, the other members and I tried to decide how best to determine if there were health effects from geothermal development. We reviewed many studies and examined decades of geothermal development records. Because of this effort, we recommended a study to examine health effects particularly in lower Puna. You recently approved the funding of that study. Many of us on the study group were disappointed in only one aspect of our effort, and that was the studies we recommended did not examine the impact on the Native Hawaiians. Because of concern of this issue, my husband worked, and others, to set it right. They found that Dr. Edelstein had expertise examining such issues, and that he had experienced in Hawaii. My husband and those that worked with him asked Dr. Edelstein to outline a proposal that could be presented to the Windward Planning Commission. I strongly support you, the Commissioners, in funding this effort with Dr. Edelstein. Too often in working groups in our County, and in State government, we ignore the challenges faced by Native Hawaiians, and we deal with them as an afterthought. I ask today that you reverse this and approve the study, again. And I think the study can serve, can serve as a pivot for examining Native Hawaiian issues as they relate to future planning and development on this Island. Thank you. MOSES: Commissioners, any questions? Comments? If none, thank you very much. We have one more testifier, Robert Petricci. If there's one else, is there anyone else? Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? PETRICCL Yes. MOSES: Thank you. You may begin your presentation-- PETRICCL Thank you. MOSES: --testimony by first stating your name and place of residence and speaking directly into the microphone. PETRICCL Thank you. MOSES: Thank you. PETRICCL My name is Robert Petricci. I represent Puna Pono Alliance, and I live in Pohoiki, Pohuna [sic] Puna. Sorry. Aloha, Commissioners, and thank you for the opportunity to address you on this. I hear what Commissioner Henkel is saying, and with great regret I say that it may be better to not release the funds than to have the money go to a study that the community is not 15 EXHIBIT E going to be represented in. Tom Travis touched on the Mayor's health study group report, and the selection process, and you know we came before you guys, and we're really grateful that you funded that study, but now you know as it moves through the process, it's being changed. And the selection—who selects the, you know, the group that will do the study, is important, because we all know that studies can have opposite results. You can have a study done by somebody funded by Monsato will have a different result than a study funded by public safety or groups. So, if you need to make technical changes to the Edelstein study proposal in order for the, the study to go forward with Edelstein, then make the technical changes. So, you know, Edelstein has already been here and done this type of work in Hawaii before. Why don't we just simply put Edelstein on the County list and then he can do the same thing that you did with the University of Hawaii. Thank you. HEAUKULANL I've got a question. MOSES: Commissioner Heaukulani. HEAUKULANL This isn't as simple as putting Dr. Edelstein, Edelstein on this list. It's a little bit more complicated than that, but what we had anticipated is to have the Applicants work with the Department to structure the RFP. I don't think there's anyone in the room that wants this to go forward more than I do, but, and I mean that exactly how I said it. It's not going to do anyone any good to have this proposal get approved by the Commission and sit over at Financing and not get funded. PETRICCL I agree. HEAUKULANL And that's what will happen, you know. And, and you guys can go sue them and try to get it punched out. They've got a legitimate legally cognizable defense and so, you know, 2-1/2 – 3 years from now, we still don't have the study moving forward. PETRICCL I hear you. HEAUKULANL So, the concern is, and you know, you guys know—how do you pronounce his name, Edelstein? PETRICCL I don't want to try. HEAUKULANL I have a problem with yours so, I don't—you know, I, I don't think that there's any, I haven't seen anyone suggest anyone that would be able to do the study better than he, but he's not going to even get that shot if we don't take steps to get this in line with Procurement Code. I agree that the attorneys, one of, should have, we should have known before this. E kalamai no ho`i. But, it is what it is. What—and I also agree that justice delayed is justice denied, but you want to see a delay? Kick this over to Finance and let them sit on it for a couple of years. 16 EXHIBIT E PETRICCL I don't want to see that, you know that. HEAUKULANL Neither do I. PETRICCL Well, I would say that where there's a will, there's a way. I've seen it many times with wanting to help geothermal like PGVspecial laws, special rules, administrative amendmentsI mean, it seems like if you want to help a corporation like PGV, you can find a way to do it. But, if you want to help the Native Hawaiian population, there's a roadblock. There's a problem. You can't get it done. I think you guys can find a way to get it done, and we know, I think we all know, Edelstein's probably the right guy to do the study. HEAUKULANL Well, if that's true then, then the Applicants and the Department can form up the process so that, that he's the likely candidate. PETRICCL We're willing to work on it I guess. I can't speak for everybody withI mean, like you say, we haven't had a chance to discuss this as a group and so I can tell you HEAUKULANL --and this, this was a surprise to me, I'm telling you PETRICCL Yeah— HEAUKULANL --this was a PETRICCL --and we want to get it done, and if that's what it takes to get it done, fine, but I hate to see that be a two-year process. So, you know, whatever ideas you come up with would be greatly appreciated. We want to help with that. And, you know, if it takes the group coming in to sit down with the County, we'll do that I think. MOSES: Yes, Commissioner Henkel. HENKEL: You know, when this came up at our last meeting a month ago, you know all of us were as surprised as anyone that, that we were being asked to reconsider, and I assumed the worse. But, you know, in defers—it's because of the Sunshine Law and transparency that we delayed it till now to open the discussion rather than have it then with none of you guys present, you know, so maybe the best thing to do is to postpone it for another month and allow everybody to kind of prepare. PETRICCL I do not know the answer to that question, Mr. Henkel, I'm sorry. HENKEL: --Well, I'm just throwing it out there. PETRICCL I don't know the answer. MOSES: Any other comments, questions? If not, thank you. Yeah, we're gonna ask Mr. Brilhante if he would like to address the four prior studies. 17 EXHIBIT E BRILHANTE: Again, Madam Chair, fellow Commissioners, William Brilhante, Assistant Corporation Counsel. Yeah, there was a question earlier, posed by Commissioner Heaukulani regarding the four previous awarded or approved claim applications submitted to the Planning Commission, and I just wanted to clarify the record as it relates to each study. And I got confirmation from the Mayor's office that the groundwater study was awarded to the USGS which is a governmental entity. The meta -data study was awarded to the UH Medical School, again another government entity. The air quality monitors was awarded pursuant to our standard procurement equipment list. They are a contractor on our equipment list. That item will not go through RFP `cause the RFP is a request for proposals which is more analogous to some type of study or consultation. And then the final item, the brine pond, was awarded to a prof individual who's on the County's professional services list, and that's how those items were specifically addressed. And, the reason I brought this point up is because the, pursuant to the HRS as I alluded to earlier, Section 103D -102B, Section 2G, specifically states that if a government entity is going to be awarded a contract from the County of Hawaii, then they do not have to go through the competitive bid process. They still have to comply with procurement regulations but they don't have to go through a competitive bid process, and that's the same for individuals who are on the County's professional services list. Again, you know, I just wanted to reiterate the fact that nobody's here --nobody from the County is here, specifically, not me, is here to make representations regarding the validity of the study or the proposed study. We're not here, again, you know, addressing the substantive issues of the study. That's not what we're here to do today. All we're here to do today is to correct potential procedural defects that the Office of the Corporation Counsel became aware of, you know, once this matter was you know approved by the Commission. There's been concern regarding, you know, why more information wasn't provided in the agenda you know based on the reconsideration, and I'm glad that somebody alluded to it. I believe it was you, Commissioner Henkel or correct me if I'm wrong, but you know through, because of Sunshine Law requirements, when the motion to reconsider was first proposed by Commissioner Ikeda, we were precluded from having additional discussions regarding that matter, and if I were to then individually address each of the Commissioners, you know, subsequent to that meeting, I would have been violating the Sunshine Law. So, it's unfortunate that you know the process is you know the way it is but you know just for fairness and equity to all, the item of reconsideration of the application was properly agendized. Anybody in the community who had concern or had a—who wanted to be here today, was afforded that opportunity in a timely manner, and you know, like I said, it is what it is. It's a process, and we're just trying to comply with the requirements of the process, and again, the reason for that is because we don't want it challenged. We don't want the record challenged. Just like we don't want the procurement issues challenged down the road, and because like Commissioner Heaukulani said is, you know, failure to act would be an injustice to all. We don't want this matter stuck in you know the red tape of bureaucracy, so you know, that's again the County's position. Thank you. 18 EXHIBIT E MOSES: Any questions, Commissioners? Thank you. So, can—no further testimony from the public. Can we have a motion to close public hearing? HENKEL: So moved. MOSES: Second? Is there a second? IKEDA: Second. MOSES: It was moved by Commission, Commissioner Henkel and seconded by Commissioner Ikeda. All those in favor? COMMISSIONERS: Aye. MOSES: Any opposed? Okay, Commissioner Ikeda, at the last hearing you moved to reconsider agenda item 6 before us now. Do you affirm or withdraw your motion to reconsider at this time? IKEDA: I affirm. MOSES: Is there a second? HEAUKULANL The last thing in the world I thought I was going to do today is support a reconsideration of our approval of this funding for the study. I came loaded up today to fight on the merits like almost everyone else in this room but I can't, I can't let this go and just float over there into nowhere land and this study never get done. I'll second the motion. MOSES: Upon Commissioner Ikeda's motion to reconsider and second by Commissioner Heaukulani, the motion for reconsideration is now open for discussion. Commissioner Ikeda? IKEDA: Yes, you know, believe it or not, I do support the funding for the study, and this is the only way we can save your money, or have the money, or the study funded, otherwise it'll be stuck in the Finance Department. And, most of the problems are procedure procedural problems. And, I think, I really believe you know like it says, it only identified one vendor create Native Hawaiian Health Study Review Board, and some of the Rule 12 of the geothermal fund. I think all of these things can be worked out if the group get together with the Planning Department. And, so that's the reason for the consideration [sic]. It's not that we against funding the study. We support the study. I think everyone here supports the study. We just want to make sure that you're getting it or do it correctly. Otherwise, it'll never get done, and you guys, you know, like so I'm telling making you feel good, it goes to the Finance, and then nothing gets done. This way, at least it can be moved forward. MOSES: Commissioners, any further discussion? 19 EXHIBIT E HEAUKULANL My strong suggestion, and thank you, Commissioner Ikeda. I appreciate your, your support. My strong suggestion and recommendation is that the Applicants, that we remand this to the Department, have the Applicants meet with the Department, have them structure the RFP, and then, I've been through that process before, you can structure that in a way so that the list of eligible candidates is relatively narrow. So, that's my strong recommendation, that we remand this to the Department, ask the Applicants to meet for purposes of structuring the RFP. PATEL: So, just to clarify, at this stage, though, we need to vote on the motion to reconsider before any other motion for further action is taken, yeah, so, Chair? MOSES: If there is no further discussion, staff, please take roll. KANUHA: Madam Chairman? MOSES: Yes. KANUHA: Can I have a moment here? MOSES: Yes. KANUHA: The awarding of funds from the Geothermal Asset Fund is kind of interesting for our Department because the sole recommendation that comes before the Commission is from the claims adjuster, you know, as you noticed, we don't provide any recommendation. The way the rules are structured, the claim, the claims adjuster is the only recommendation that the Commission has to consider. That being the case, it was, it was clear to us from the last vote, what the intentions and where the Commission wanted to go. When we get that kind of indication from the Commission, we support that decision, you know, hundred percent. In this particular instance, it should have, you know, we should have, made the Commission aware that there were some issues with this, with the action they took, but nevertheless, you know, that action was in response to the claims adjuster's recommendation and not necessarily the Department's. If the Commission goes ahead and remands this award back to the Department for us to work with the Applicants to perfect the, an RFP that will accomplish what they want to do, if I can get a commitment, and I'm pretty sure I can from the Applicants, that if we can work with the designated representative from one of your group, they can get together and do that, 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. Thank you. MOSES: Thank you, Director Kanuha. If there is no further discussion, staff, please take roll. ARAI: Commissioner Ikeda? IKEDA: Aye. 20 EXHIBIT E ARAI: Commissioner Heaukulani? HEAUKULANL Aye. ARAI: Commissioner Henkel? HENKEL: Aye. ARAI: Commissioner Ono? ONO: Aye. ARAI: And Madam Chairwoman. MOSES: Aye. ARAI: Madam Chairwoman, motion for reconsideration carries with five aye votes. MOSES: Thank you. The Commission will now entertain any motions for action. Commissioners? HEAUKULANL Yeah, I'd like to move that we remand this matter to the Department with the request and thanks to the Applicants that they would take the time to sit with the Department to structure the RFP in such a way to as expeditiously as possible, put this project out for bid so we can get this study underway. IKEDA: Second. MOSES: It was moved by Commissioner Heaukulani and seconded by Commissioner Ikeda. Any discussion? If there is no further discussion, staff, please take roll. PATEL: Sorry, I think we just need to make a clarification with the motion because the application doesn't reference the RFP. So, if we could just clarify that that's to remand to the Department for the Applicants to work with the Department to structure an RFP and to restructure the application accordingly. HEAUKULANL That's fair enough. I'll modify my motion as such. MOSES: Second? IKEDA: Second. MOSES: It was moved by Commissioner Heaukulani and seconded by Commissioner Ikeda. Any discussion? If there is no—public testimony is already closed. 21 EXHIBIT E TRAVIS, T. (from audience): It was a question for clarification, that's all. MOSES: Staff, please take roll. ARAI: Commissioner Heaukulani? HEAUKULANL Aye. ARAI: Commissioner Ikeda? IKEDA: Aye. ARAI: Commissioner Henkel? HENKEL: Aye. ARAI: Commissioner Ono? ONO: Aye. ARAI: Madam Chairwoman. MOSES: Aye. ARAI: Madam Chairwoman, motion to remand carries with five aye votes. MOSES: Thank you, the motion passes. Claimants will be notified of the Commission's decision in writing. Thank you. The discussion ended at 12:03 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 22 EXHIBIT E