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We have three weeks to raise lawyer and court expenses to challenge PGV's ability to operate without a valid state air pollution permit.

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Here’s the story:

We need to appeal a February 28, 2019, Department of Health (DOH) order denying contested case proceedings regarding an air pollution permit for Puna Geothermal Venture (PGV).  The appeal must be filed several days before the end of this month. 

The Constitution of the State of Hawai`i (in Article XI, section 9) guarantees citizens the “right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution ...”

State law defines air pollution as “the presence in the outdoor air of substances in quantities and for durations which may endanger human health or welfare ... [or] unreasonably interfere with the comfortable enjoyment of life and property ...” (HRS § 342B-1). DOH is responsible for regulating air pollution: “any activity which causes air pollution or causes or allows the emission of any regulated air pollutant” requires a DOH permit (HRS § 342B-11).

PGV’s air pollution permit expired in 2014.  DOH recently said “Although the permit shows a 2014 expiration date [our rules] allow a permit to remain valid past the expiration date provided the permittee has submitted a complete renewal application [60 days before] the permit’s expiration date.” 

PGV’s application for renewal of the permit was the subject of numerous community requests for a contested case proceeding during a DOH public hearing in September of 2015.  On February 28, 2019, DOH denied those requests and is now free to issue the air pollution permit, allowing PGV to proceed with its stated intent to restart operations by the end of this year.

Hawai’i County’s 2013 Geothermal Public Health Assessment (the Adler Report) said even an advanced modern geothermal plant “with normally low or even zero emissions, can rapidly change character for the worse” and monitoring hazards like toxic hydrogen sulfide (H2S) “provides crucial data for emergency responders. But citizens in affected communities are often their own ‘first responders’ and therefore need access to up-to-the-minute hazards information”.  The County sponsored Adler Report further said “monitoring to date has been inadequate to protect affected populations”

DOH relies on PGV to report its air pollution instead of actually monitoring and regulating air pollution at the source.  DOH enforces a state H2S air quality standard but for regulatory purposes DOH has only one H2S air sampler. That single sampling device could be useful only if a puff of toxic gas happens upon its location, and it was recently covered with lava.

DOH usually becomes aware of PGV’s air pollution only when it is reported by PGV or community complaints. Indifference on the part of DOH as to PGV’s air pollution led several organizations and numerous individuals to request a contested case with regard to the renewal of PGV’s air pollution permit.  Their concerns are based largely on personal experiences of harm caused by PGV’s air pollution.  

The state constitution and laws intended to prevent unhealthy air pollution should be respected to preserve the right to a clean and healthful environment and the comfortable enjoyment of life and property.  Regulation of PGV air pollution through past DOH permits has proven to be inadequate.  DOH allowed nearly five years to pass after PGV's permit expired while supposedly entertaining public interest in regulatory improvements.  However, shortly after PGV announced its desire to resume operation after it had been shut down by lava, DOH cancelled public participation in the matter. 

The 2013 Adler Report identified regulatory shortcomings and one year later Tropical Storm Iselle demonstrated the reality of those deficiencies when PGV attempted to continue operations as two major hurricanes approached Puna.  The storm knocked PGV into an upset condition that resulted in hundreds of reports of H2S toxic injury from the community.   Emergency personnel could not reach the injured public due to storm damage, leaving the communities to be their own first  responders.  Aside from a Civil Defense warning to evacuate due to PGV’s toxic emissions, the public had no information about the level of toxicity.  DOH has never had an accurate idea of the actual level of Iselle related toxicity.  PGV’s internal monitoring system (the source of pollution data PGV reports to DOH under the permit} stopped functioning during the storm.   

There are many valid reasons why community members want a contested case proceeding to consider evidence of the need for regulatory improvements along the lines of those recommended by the Adler Report in 2013.   Delay was the response of DOH for the past five years, culminating in refusal to allow review of community evidence showing the need for improved air pollution regulation. 

 An appeal to the Hilo Environmental Court must be filed before then end of March to challenge the DOH order that denied all contested case requests.  

Donations to the 501(c)(3) Puna Pono Association are tax deductible.  If you don't want a tax deduction, please contribute to the 501(c)(4) Puna Pono Allianace instead.  Links below can be used for donations.

Mahalo.  

Links:

tax deductible donations

non-deductible contributions  
 

Copyright © 2019 Puna Pono Alliance, All rights reserved.


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