There are still unanswered questions concerning the governor’s recent emergency proclamations that suspended various state laws for several different purposes. The one involving clearing of unexploded military munitions caught my attention because of the amount of money flowing to private contractors.
Public relations materials distributed by the governor’s office painted a bleak, no-options picture of the situation. Former military use of public lands has left an unknown number of unexploded and potentially dangerous munitions, but requirements to produce environmental impact assessments or even full environmental studies supposedly left the governor no choice other than to declare an emergency and suspend the applicable laws.
The Army Corps of Engineers was charged to remove unexploded munitions, but state laws were holding up their ability to enter state land to search for and dispose of munitions. If a solution wasn’t found, Hawaii was at risk of losing millions of federal dollars designated for the clean-up and the work would not be completed.
The Abercrombie Administration sought a solution that was within the law and that got the job done with the necessary expediency. An emergency proclamation was the best solution.
The question before the Abercrombie Administration was whether to maintain the status quo approach that was about to end this munitions clean-up effort on state land, or to find a lawful solution that would secure the public’s safety.
A recent example of the effectiveness of the state’s action occurred at Hapuna Beach State Recreation Area. On Sept. 6, 2011, the Army Corps of Engineers began a sweep at Hapuna Beach. Since then, they found and disposed of two hand grenades and high explosive mortar. These munitions were safely destroyed in place. Without the emergency proclamation, it is likely that the grenade would still be on the beach today.
But last December, just as Gov. Abercrombie took over from the departing Lingle administration, it appeared the problem had been solved by outgoing DLNR director and land board chair, Laura Thielen.
The Board of Land and Natural Resources was scheduled to vote during its December 9, 2010 meeting on a plan to authorize the chairperson of DLNR to issue right-of-entry permits to the federal government “to conduct environmental investigations, remediation, and response activities” involving unexploded or discarded military munitions.
A background report prepared by DLNR staff explained the background of the issue and details of the recommendation.
According to the staff submittal, the Office of Environmental Quality Control had already agreed that actions responding to and mitigating hazardous conditions from unexploded ordnance are exempt from preparing an environmental assessment “because they will involve operations, repairs or maintenance of existing facilities and topographical features, which include the mitigation of existing hazards, that involve negligible or no expansion or change of use byond that previously existing.”
The state had already been routinely granting right-of-entry for these activites since the late 1990’s, the report noted. Delays in processing permits for these activities had already resulted in a loss of available federal funds in one instance, although those funds were later restored, so the current proposal was to streamline the approval process, no invent a whole new process.
DLNR had been working closely with the Army Corps of Engineers, the Army, the Department of Health, and other agencies to facilitate the explosives removal work.
In an October 10, 2010 memo, Katherine Kealoha, director of the Office of Environmental Quality Control, which administers the requirements for environmental impact statemnets, agreed that activities to mitigate dangers of unexploded munitions fall under authorized exemptions to Chapter 343 requirements for environmental review.
“Furthermore,” Kealoha wrote, “the necessity of these actions clearly rise to the level of health, safety and welfare requirements for the safety and well-being of the general public.”
Kealoha said her decision came after consultations with the Attorney General’s office, “extensive research and further inter-departmental discussions….”
It appeared everything was settled and ready for approval by the land board.
But at the December 9, 2010 meeting, the land board deferred action on the recommendation of incoming land board chairman, Bill Aila, who was attending his first meeting, minutes show. Although Aila said at the time that the matter would be taken up at the next meeting, that didn’t happen. It doesn’t appear to have been considered again by the board before the governor made his emergency declaration.
When the Sierra Club and other environmental organizations wrote to the governor and asked him to withdraw the emergency proclamations, the response came jsut two days later from Attorney General David Louie. I expected Louie’s letter to address the proposed solution presented to the land board in December, and at least explain in detail why it was taken off the table. Instead, it is never mentioned.