Environmental Regulation
Price of Paradise · Hawaii Public Radio · aired 1996-03-03
Guests: Paul Achitoff (attorney, Sierra Club Legal Defense Fund); Cheryl Okuma-Sepe (Director of Wastewater, City and County of Honolulu); Lisa Munger (environmental attorney)
Duration: 1:04:45
Note: music outro 56 s

[0:00:00] Randall Roth: Good morning. This is Randy Roth, host of the Price of Paradise radio show. We call it Pop Radio for short. We're broadcast live each Sunday morning at 8:00 on KHPR and KKUA, and then rebroadcast Sunday evenings at 8:00 on KIFO. We're a bunch of volunteers with a goal of generating lively and informed public dialogue. Our sponsor is the Hawaii Community Foundation, an organization that encourages grassroots efforts to improve the quality of life in Hawaii and that administers charitable funds with efficiency and compassion. Today's topic is environmental regulation, or overregulation, depending on your point of view. With me in the studio are Lisa Wood-Munger, Paul Achitoff, and Cheryl Okuma-Sepe.

[0:00:44] Randall Roth: Lisa is, let's see, an environmental lawyer. She has been practicing law here in Hawaii since 1978. She helps businesses understand the environmental laws and obtain needed permits. She also defends businesses in enforcement actions brought by the EPA, the Department of Health, and the Sierra Club Legal Defense Fund. Lisa is the editor of the Hawaii Environmental Law Handbook. This handbook is designed to provide a guide to Hawaii's environmental laws that affect the private sector, including businesses and real property owners. She has an undergraduate degree in political science from UCLA and a law degree from Harvard Law School. She's a partner in the law firm of Goodsill Anderson Quinn and Stifel.

[0:01:26] Randall Roth: Paul Achitoff is a staff attorney with the Honolulu office of the Sierra Club Legal Defense Fund, the country's leading nonprofit public interest environmental law firm, which has represented dozens of environmental, community, and native Hawaiian organizations in Hawaii over the last eight years. The Sierra Club Legal Defense Fund has successfully litigated cases to protect water resources, endangered species and their habitats, and traditional Hawaiian rights. Mr. Achitoff, a graduate of Harvard College and Columbia Law School, was a partner in a Honolulu law firm before turning to public interest litigation. He also teaches he also teaches environmental litigation as an adjunct professor at the William S. Richardson School of Law.

[0:02:08] Randall Roth: Cheryl Okuma-Sepe is, uh, currently the deputy director in the Honolulu Department of Wastewater Management. Uh, she's been there for one year. Uh, this puts her in the environmental area, and during that time she has successfully negotiated from $250 million to no penalties, the first federal lawsuit filed in Hawaii alleging environmental violations.

[0:02:33] Randall Roth: Also in a related suit, she defended the city, uh, again, um, a suit asking for $250 million, this time settled for less than a million dollars, and then finally was successful in obtaining environmental permits saving the city over $500 million in construction and operating costs of wastewater treatment plants. She has an undergraduate degree in political science from the University of Hawaii and a law degree from Cal Western. Well, good morning, Lisa, Paul, and Cheryl.

[0:03:03] Lisa Munger: Good morning, Randy.

[0:03:04] Randall Roth: Um, I thought we'd start by, uh, asking you, Lisa, about a a book that I see you brought with you. And it's a book that I read a while back. I thought it was interesting. It's called The Death of Common Sense, and I noticed in your article in this morning's advertiser that you mentioned common sense and you also got into the notion of of trusting one another. Uh, what are what are your thoughts generally about this topic of environmental regulation in Hawaii?

[0:03:11] Lisa Munger: I really liked the book The Death of Common Sense by Philip Howard. He talks a lot about how regulations have become more and more and more detailed, and seem to make less and less and less sense as a result. When regulations are written by a bureaucrat in the basement of a building in Washington, and yet are applied all over the nation in very, very different circumstances, it's hard to imagine how that person can write regulations that will work. And yet we find, not only in the environmental area, but in other areas, that our lives are dictated by those regulations. And my thought, uh, having read the book and having practice in this area, is that we need to trust our local officials to exercise some discretion, to apply the rules in a way that makes sense.

[0:04:20] Randall Roth: So what I'm hearing is, uh, rather than make the laws in Washington, DC, and administer them from there, that we really ought to be taking a hard look at what's most important to us here in Hawaii and administering them here in Hawaii.

[0:04:33] Lisa Munger: Absolutely. I don't I think that the federal government certainly sets our objectives, clean water, clean air, but I think that the best way to achieve those objectives needs to take local circumstances into account.

[0:04:45] Randall Roth: And as I understand it a related concern of yours is that by making laws that are tens of thousands of pages long called regulations, and, uh, making them highly technical, big businesses perhaps can comply because they can hire scientists and attorneys to deal with all of that. But anything but a big business is is in trouble.

[0:05:05] Lisa Munger: Yes. I think that smaller businesses do have a disadvantage in keeping up with all of those regulations. Certainly there are resources available to them, trade associations and the like that can keep them up with regulations affecting their industry. But that's hard. That takes work, and often times businesses don't have the scientific knowledge in house to make the best use of the regulations.

[0:05:28] Randall Roth: Okay. Well, Paul Achitoff and and I think this is, uh, the ultimate compliment to the articles that appeared in the paper this morning, and if if listeners haven't seen their morning newspaper in the focus section of the advertiser, there are three articles by our three guests. Uh, when my wife read the articles this morning, she said, "Gee, each one is good. I don't know what to believe." And I thought, well, that's really good because that makes it clear that there's some real tough issues here. You've got a different perspective on all of this than than what Lisa has just described.

[0:05:58] Paul Achitoff: Yes, Randy, it's true. I do have a different perspective, and the way I look at this issue, I I I guess I look at it from a somewhat broader perspective of here we are, uh, on an island in the middle of the ocean, one of the most spectacularly beautiful places on earth, and also one of the most, uh, sensitive and vulnerable environments anywhere. Uh, we have species of plants and animals that are found nowhere else on earth, and many of which are now endangered. We are, a very becoming a very densely populated area. Right now there are more people on Oahu alone than in the entire state of Montana, for example, or, uh, twice as many people as in the entire state of Wyoming. And I, I look at this situation. I look at what's going on around, and and I also look at the, uh, regulation and enforcement that we have on a local level, on a state level, which, in my view, uh, relative to the enforcement that we have in other states in the United States, uh, is quite lax.

[0:07:13] Paul Achitoff: And when I look at the the sensitivity of the environment that we have, the beauty of that environment, the extent to which we are all dependent on that environment, being out here on an island, being dependent on our water resources, uh, we're in a situation where there's no other place, there's nowhere to go, you know. And then I hear talk about, gee, we ought to, uh, look at these regulations. We're being too burdened by these regulations. If there's any place on earth where we need strong environmental regulations, it's here in Hawaii.

[0:07:48] Randall Roth: So, as I I listen to you and and after having read your article in the paper this morning, what I'm getting are are a couple of things. One is that you feel that politics have really gotten into the, uh, environmental regulation field here in Hawaii, and as a result, um, it's not done as well locally as what from the EPA, the federal government, uh, it it can and and is being regulated. Am I right so far? Because I'm trying to put into little boxes what I'm getting from your your comments.

[0:08:17] Paul Achitoff: Well, in terms of it being done well, I think certainly, uh, people locally can have a lot of, uh, can contribute to the debate on on on regulation. There's no question that there is local knowledge, local resources that should be used. People here do know what's going on, and if asked they, and they should be asked, uh, before regulations are imposed. On the other hand, there is so much political pressure to allow, uh, polluters to pollute, and to allow developers to develop, that you cannot simply trust local regulators to safeguard our resources and the proof is all around us.

[0:09:03] Randall Roth: Okay, and and I think another message that I'm getting is that when people talk about, uh, more common sense and and less technical regulations, I get the impression that you see that as as kind of code for saying, let's not work quite as hard to protect our environment.

[0:09:20] Paul Achitoff: I think that's basically true. My what is common sense for one person is not common sense for another, and, uh, that's one thing. But I think, and if you're we have to distinguish here between sort of a national debate that is going on about regulation on a large level, which is basically fueled by large corporate interests who do not want to be prevented from polluting as much as they might like because it if it they they feel that their bottom line would be enhanced by being allowed to pollute more, uh, from a question about any particular regulation and whether that particular regulation might should be fine-tuned. In the latter situation, I'm as open as anyone to discussing whether a particular regulation is appropriate. But the larger debate, I think, is one that is really a smokescreen.

[0:10:15] Randall Roth: Okay. Cheryl, you've been listening to Lisa and to Paul. Uh, what are your thoughts?

[0:10:21] Cheryl Okuma-Sepe: Well, um, from the city and county's perspective, we have to implement those requirements. And I think part of the problem is that the laws, the regulations are, uh, uh, uh, uh, debated and actually promulgated in Washington, DC. The perspective in terms of what may uh, happen and occur on, uh, on a nationwide basis may be different compared to what we have to experience here in Honolulu.

[0:10:52] Randall Roth: For for example, wastewater. As I understand it, your primary argument on the wastewater lawsuit was that the rules that envision wastewater going into a lake or or a river, uh, don't necessarily fit a situation where it goes into the ocean?

[0:11:07] Cheryl Okuma-Sepe: That's correct. And just as an example, um, in terms of the Clean Water Act, back in the early 70s, there was a uniform standard that was applied nationwide. That was a requirement that all treatment facilities um, utilize secondary treatment, which is a particular type of treatment level higher than what we referred to as primary treatment. So the water gets cleaner, but it costs a lot more.

[0:11:28] Randall Roth: The water gets cleaner, but it costs a lot more.

[0:11:30] Cheryl Okuma-Sepe: It costs a lot more. Um, Congress, however, back in the early 70s, recognized that perhaps it didn't make sense to require all publicly owned treatment facilities to apply secondary treatment, because when that standard was, um, initiated, there was no thought in terms of whether it made any economic sense, whether there was any scientific basis for forcing all cities to, um, apply that kind of a standard. And so what they did was implemented a waiver program. And the thing of it is, is the waiver program was a one-time opportunity for cities to apply. If they didn't apply by 1982, they're simply out of luck.

[0:12:13] Randall Roth: Okay. And and you're getting back to the specifics of of Hawaii's situation, Honolulu's situation, and that was the lawsuit that's since been resolved, and as I understand it, it's been resolved. How?

[0:12:24] Cheryl Okuma-Sepe: Okay, the lawsuits were resolved. The first one involved the Sand Island treatment plant, that was, um, settled amongst the parties, and that resulted in a $9 million study. That's referred to as a Mamala Bay study. The second lawsuit, and I think, at least your perspective, and we're going to get Paul's thoughts on this later, but you feel that the study vindicated the position of the city. Yes, that's correct because the uh conclusion of that study, and and it's still being finalized, but at least in its draft form, has concluded that, um, secondary treatment is not required.

[0:12:58] Randall Roth: Okay. All right. Well, you're listening to The Price of Paradise Radio Show. My name is Randy Roth. Our guests in the studio are Cheryl Okuma-Sepe, who's the Deputy Director of the Honolulu Department of Wastewater Management, Paul Achitoff, who's in a who's a staff attorney with Sierra Club Legal Defense Fund, and Lisa Munger, who's a partner in the law firm of Goodsill, Anderson, Quinn and Stifel. We're talking about environmental regulation. And if you'd like to ask a question or make a brief comment, just call us at 955-8821. For neighbor islanders, the number is 1-800-955-8821. Well, we're going to take a couple calls and then I want to come back to our guests and give them an opportunity to respond to what they've heard from each other. Let's go to David on the Big Island. Good morning, David.

[0:13:42] David: Yeah, good morning, Randy. You know, the the title of your program uh addresses this perfectly, the the price of paradise. Uh, the the price of keeping our environment clean is what we have to pay, or we're we're going to lose paradise. Every dollar that we save from not cleaning up the environment, we're going to lose dozens of dollars from tourists.

[0:14:06] Randall Roth: David, stay on the stay on the line.

[0:14:09] David: It's a clean up option, I don't think. You know we clean up, so we use common sense, not really clean up all the way.

[0:14:13] Randall Roth: David, let me come back to you.

[0:14:18] Lisa Munger: Lisa, I get the impression that at least from I can hear you, David. Jeff, we've got a Lisa, I think what what David is saying is that uh people who want to change environmental regulation the way it's done right now, evidently don't value, uh, paradise as much as people who like the way the environment is regulated right now. And from your article in the paper, I get the impression that that you don't think that's the way to frame this issue at all.

[0:14:47] Lisa Munger: Not at all. David, I don't think it's a matter of feeling that we need to pay more and more and more to keep our environment clean. The issue is what do we spend the money on? Uh, and how can we spend our money most cost-effectively? There are regulations that cost businesses a great deal of money that don't benefit the environment. There are other things that businesses could do which don't cost a great deal of money, which could benefit the environment more. So the issue is not that our environment isn't important, that it's not worth spending a great deal of money on. It is. And businesses do spend a great deal of money on the environment. The issue is, how can we use those dollars wisely? Uh, not only businesses, but certainly the city and county and the state of as well, have limited resources.

[0:15:36] Randall Roth: Okay. Paul, I'm I'm curious, do you feel, you're you're an environmental lawyer with Sierra Club Legal Defense Fund, do you feel that that while maybe simplistic that there's a lot of accuracy in saying that uh the folks who are calling for a different form of environmental regulation, uh just don't care as much about the environment as do those folks who like the way it's done right now?

[0:16:00] Paul Achitoff: I I would say there's a lot of truth in that. Uh I'm certainly open to the possibility that any particular regulatory scheme could be modified, in theory, to be more efficient. I'm certainly open to talking about it, but I think if you look at the people who are advocating these changes, their agenda is very clear. They want to save money for the bottom line, for the corporations that they operate. They're not the least bit concerned about the environment. And so you have to take into account motivation when people start saying, well, let's tinker with this, you know, we think we can do it better. I say, you know, if if it's not broke, don't fix it. And personally, I think that it isn't broken. I think that uh the regulations work well, the way they the way they are.

[0:16:50] Randall Roth: Okay. David, you hear that?

[0:16:53] David: Yeah, I'm I'm still here. I don't know where you heard me or not.

[0:16:55] Randall Roth: We had we had a phone problem, but I think we've got it all worked out, and I'm assuming that uh Paul's comments are are pretty much in line with your own thinking.

[0:17:03] David: Yes. Yes. And uh as I point I don't know where you heard me or not, though. I I said the the name of your program, the Price of Paradise.

[0:17:08] Randall Roth: Right. We did hear you. Okay. One other comment I would would like to make is as far as regulation, um, we are very lax in in keeping um, pollution from developments, like we don't require silk fences, sediment basins and things like that that most states do require, uh we just let developers go in, rip up the ground and then the the the uh soil washes into the ocean. Okay, David. David, let me get a reaction to that one. I appreciate uh your raising the issue. Let's go to Cheryl Okuma-Sepe.

[0:17:42] Cheryl Okuma-Sepe: Yes, um, that's not entirely true. Um, because of the uh federal laws and the state laws that we have and the recognition that there is a problem in terms of sediments running off into the ocean. Um, construction activities, those who are involved in that have to go to the Department of Health and get permission in order to undertake certain construction. Um, in terms of that issue that you raised, Dave, it's it's not only one that concerns the private industry, but certainly one that the city and county uh is involved in as well. And in fact, it's one of the added requirements, an additional burden in in terms of our department and the responsibilities with respect to uh stormwater runoff, which I think is the issue that you're talking about. Um, and in in terms of what we were our discussion is this morning, um, the federal mandates that come down, the additional burdens that it places on the municipalities. This is certainly an area that has added cost in terms of the running of our program.

[0:18:42] Randall Roth: Okay. Paul Achitoff.

[0:18:43] Paul Achitoff: Well, I think that what David says is quite true, and and also what Cheryl says, but the the the way to put them together is the laws are on the books that do require the kind of mitigation measures that David is talking about. The problem is they are not always implemented, and when

[0:19:00] Randall Roth: they are not implemented, our local uh authorities uh tend to be very slow to enforce the laws that are on the books. So in fact, we have laws, but they're not necessarily followed.

[0:19:14] Speaker 2: And that goes back to what you were saying before. You feel that that people on a local level have some pressures on them that the EPA, for example, in Washington DC, don't feel.

[0:19:24] Randall Roth: Yes.

[0:19:24] Speaker 2: Okay.

[0:19:25] Randall Roth: Well, David, thank you for your call. We're going to have to move on, all of our lines are are full. Thanks again, David. Let's go to Linda in Honolulu. Good morning, Linda.

[0:19:32] Linda: Good morning. I'm a small business person and I represent a coalition of 75 small businesses in Campbell Industrial Park with over 1,300 employees. We'd like to support Paul Atchatoff and disagree with A Lisa Munger's statement and ask her a question about why she feels we should trust our local officials. Our experience has been that the city and county has approved in this particular case a very shoddy environmental assessment to put a sludge treatment plant in Campbell Industrial Park.

[0:20:01] Linda: It will endanger small businesses, our employees, our health and our property taxes, and we feel our only recourse is to go to the federal level and try and get some relief. And uh we're confused as to why Lisa Munger would think we can trust our local officials when we as small business people have found that these environmental protection laws have been the only thing we have to rely on at the federal level.

[0:20:22] Randall Roth: Okay. Lisa.

[0:20:23] Lisa Munger: Well, Linda, I believe that you should trust the local department health for this reason. Uh, our state statutes and regulations provide for the preparation of environmental impact statements for various projects and also provide in the course of permitting for other projects that environmental assessments be prepared. Environmental assessments are prepared to look at the impacts of projects uh on the environment and on uh people in the area. It is then put to public hearings when everyone in the community has the opportunity to give their input, and you and the members of the uh the community are given the opportunity to voice your views.

[0:21:07] Lisa Munger: That's a very important part of the process. And then the Department of Health is charged with weighing those concerns. They're charged with weighing a number of factors set forth in the statutes. Now, it may very well be that you disagree with how they have weighed those factors. And that if if that's the case and if a permit should be issued for that project, then you have the opportunity to appeal, to ask a court to consider whether the Department of Health properly considered all of those factors. Uh and and that process is what gives all of us input into environmental regulation.

[0:21:47] Lisa Munger: But I think that it is not appropriate to say that because you and the Department of Health disagree over this project that that process is inadequate. The process is obviously doing what it's supposed to do to do which is to have the public debate. And if we don't trust the Department of Health to make those decisions, I know I don't feel comfortable having someone uh on the mainland make that decision rather than the Department of Health. Now, of course, the Environmental Protection Agency is all like everyone else, uh comments on projects, and I think the Department of Health is quite mindful of their comments. But for myself, I think that the process works.

[0:22:24] Randall Roth: Let me get some thoughts from uh Cheryl Akuma safe. Thank you. I know which um specific project it is that Linda is referring to here. Um, and in this particular project, there was an environmental assessment that was done and the opportunity for public comment at that point.

[0:22:39] Cheryl Okuma-Sepe: As I understand it, this issue, particularly in terms of the permit that this facility is going to need is with the Department of Health. So as Lisa mentioned, that public debate will occur because they will have a public hearing. Um, in addition, I believe that they've also uh kept um the EPA informed as well. And I understand that they're currently reviewing that permit as well, too. So, so there is that opportunity for public input and the opportunity to express any disagreements there may be with with some of the issues.

[0:23:09] Randall Roth: Paul, as I sit here and and I listen to a description of the process, it it sounds to me like like a good process and and if somebody's going to decide it, uh I think I would rather have somebody here rather than than in Washington. What's the flaw in my thinking?

[0:23:23] Paul Achitoff: I think, Randy, the the problem is, first of all, uh the assumption is that when you have uh a process that allows for public hearings, as Lisa points out we have, you assume that the public will be notified in a manner that really allows full public input. Frequently, that does not happen. Uh these projects apply for permits and there are notices printed in places that the public simply does not find out about until it's too late. Second, even if there is a public hearing and people show up because they managed to find out about it in a timely way, uh their voice is not necessarily uh given a lot of weight.

[0:24:06] Paul Achitoff: And the problem is when the Department of Health is the only uh agency that is is making the is making the weighing uh is doing the weighing in this, far too often, in fact, almost all the time, the Department of of Health will issue the permit regardless of what the public says.

[0:24:26] Paul Achitoff: And what you wind up with is is permits being issued and the public just feeling as if they have gone through some kind of uh uh ritual of going to public hearings and commenting and then having the folks at the Department of Health issue the permit anyway. And and they were going and and you always know that that they were going to do it anyway, no matter what the public says. It happens with incinerators, it happens with the sludge plants, it happens with uh developments and the public begins to it is pretty tired of it, frankly.

[0:24:58] Randall Roth: Okay. Linda.

[0:24:59] Linda: Uh, just a follow-up comment. Unfortunately, Paul Atchatoff is right. Uh none of our 75 businesses ever received any direct notification. And first of all, we believe there's a conflict of interest here because the city wants this plant, and they were the ones who had to approve it. So again, we feel the only recourse we have is at the federal level.

[0:25:15] Randall Roth: Okay.

[0:25:16] Linda: And we appreciate the opportunity to comment.

[0:25:17] Randall Roth: Thank you, Linda. We go to Bob in Honolulu. Good morning, Bob.

[0:25:21] Bob: Good morning. I'd like to say that uh Atchatoff's right. Uh what they've been using is an insider process for a long time. Chapter 373, and they've been ignoring the other law that provides for public notice. So the two people that said that the public notices go out, try to find the notice on the convention center, for example, in the Honolulu newspaper. It was never there.

[0:25:44] Randall Roth: Let's let's get a reaction to that.

[0:25:45] Lisa Munger: Lisa, and and I I guess on the convention center, I suppose one could say, well, if you're reading the newspaper, you know that something's going on. But there are other things that are less high profile. If notices aren't going out, doesn't the process um break down? Yes, but notices are required to be published in the paper. I I must confess I didn't look for the one on the convention center.

[0:26:08] Bob: They're not required. They're using 373 and trying to get around uh Chapter 91.

[0:26:13] Cheryl Okuma-Sepe: Okay, from from the perspective of the I don't know about the convention center specifically, but and this is Cheryl talking. Yes, hi. Um, but in terms of the facility that Linda was referring to, um the public notice requirement is to go to OEQC, which is a state Office of Environmental Quality, and that's the insider process. Well, that that is legally what the statute requires. And from there, they notify all of the uh neighborhood boards, and that process did occur. Um.

[0:26:43] Bob: That's an insider process.

[0:26:44] Randall Roth: Well, let's let's go to Paul Atchatoff.

[0:26:46] Paul Achitoff: I would just ask our listeners how many of you read the OEQC bulletin where these notifications are are made. Uh I would venture to say that uh very few of the people listening to this show even know what that bulletin is, let alone know where to get it, let alone actually read it, so that they find out about these things before they happen instead of after.

[0:27:10] Randall Roth: And you know, Paul, what you're saying uh really has an impact on me, but I'm I'm wondering, okay, if a problem is we're not getting notice, and and I'm not sure that is happening, but if that that's happening, um why would we be any better off if the decisions were being made in Washington DC, where I think we have even less of an opportunity to to testify and to have an impact?

[0:27:31] Paul Achitoff: Well, I think you you have to look at it from uh we started out with Lisa saying that we have a process and if that process works, then uh you know, if we follow that process, then we'll have good decisions. But the process itself is not working. So we can't even get to the question of whether, you know, what happens if we follow the process.

[0:27:52] Paul Achitoff: But if you take that further, I think even if you have a process that works where people do get notice, you do have public hearings, then the question is, is the Department of Health or whoever is issuing the permit uh can they be counted upon counted on to actually uh give environmental issues, public health issues uh the weight that they are due. In my view, the answer is far too frequently, no.

[0:28:20] Randall Roth: Okay. Bob, thank you for your call.

[0:28:22] Bob: One more thing. One more thing. I took a uh the health department to court over an issue involving drinking water, and it was uh the contaminants that could be allowed in drinking water. They held the meeting in a room that holds three people. The Hawaii Supreme Court decision. And incidentally, the the notice read Bob, you're going to have to make this quickly. Yeah, the notice read that uh basically you think they were doing something good for the water when it was exactly the opposite. Hawaii Supreme Court essentially said they could say anything and they could hold the meeting in a phone booth if they wanted to.

[0:28:53] Randall Roth: Okay. Bob, thank you for your comments. We go to Dave on Oahu. Good morning, Dave.

[0:28:58] Dave: Yeah, I just uh like to follow up on the the point on trusting local officials. Uh I think it has a lot to do with process and I was wondering if Linda might be a little more specific about which local officials might be trusted. And and I'm directed more at the issue of uh the the current debate on uh home rule between the counties and the and the state. Uh is she suggesting that all these rules be revised and considered at the county level or at the state level? Uh I'd like some clarification on that point.

[0:29:30] Randall Roth: Okay, and it's Lisa Munger and I think we're tripping up on that word trust. Uh, Lisa, can you comment on Dave's question?

[0:29:38] Lisa Munger: Um Dave, I'm I guess I'm of the view that with regard to environmental regulations, particularly, that that should be at the state level, while land use, probably at the local level is is my personal view. Uh the reason that I think that perhaps the environmental regulations ought to be at the state level, and by this, I mean technical standards uh for various pollutants uh because it requires a some amount of expertise and I think probably it's more efficient to have that in one place at the Department of Health, rather than to duplicate that on each of the islands.

[0:30:15] Lisa Munger: is on matters that perhaps that would be something that at the local level would involve uh considerations that maybe ought not be made in Honolulu.

[0:30:27] Randall Roth: Okay.

[0:30:28] Paul Achitoff: I might follow up then. Uh one of the big concerns that Paul uh Atchatoff has pointed out is the matter of enforcement. And I think that the uh issue of public trust uh goes hand-in-hand with the uh visibility of enforcement efforts. Uh would you have any suggestions as to how yourself or other uh clients, say the the larger clients you have uh might be able to encourage enforcement, increase public trust uh through the process of seeing these laws enforced?

[0:31:02] Lisa Munger: I think part of the reason that people believe that the Department of Health doesn't enforce the laws as uh strictly as EPA does is that there's a difference in their style. The Department of Health uh when they take enforcement actions, don't publicize them. EPA issues a press release every time it issues a notice of violation. So there's a greater sense and awareness of EPA enforcement actions than there is of Department of Health enforcement actions.

[0:31:26] Lisa Munger: I think the department is is interested in compliance, uh and not interested in press and not interested in embarrassing a company. And I can tell you from my practice, which is defending enforcement actions, that there are a lot of Department of Health enforcement actions.

[0:31:42] Randall Roth: Okay. Paul Atchatoff.

[0:31:43] Paul Achitoff: I think there's a there is definitely a uh place for embarrassing uh violators. Uh and I think there's a place for publicizing what you're doing. Uh it's part of accountability. And I think it's quite true that uh well the Department of Health does bring enforcement actions, they tend to be uh slaps on the wrist, they tend to be uh settlements of notices of violations that allow the violator to pay some relatively small sum of money to basically do some project that the violator was doing anyway.

[0:32:23] Paul Achitoff: And then everybody's happy, the violator is off the hook, it's not publicized, they're not embarrassed. Uh the the uh AG can say that there's been some kind of enforcement action taken and it's it's this uh it's really not enforcement in any meaningful way.

[0:32:43] Randall Roth: Okay. Brief comment from Lisa, and then I've got a question to ask Cheryl.

[0:32:46] Lisa Munger: All right. I think my perspective is that EPA takes the completely opposite extreme. A number of years ago, when the asbestos rules were changed, EPA brought a whole rash of enforcement actions here in Hawaii, and they did it in a way that was designed to let the public know that these regulations were out there through enforcement rather than education. So they decided to bring an enforcement action against a young woman who is a medical social worker at Queens who had a small one bedroom condominium who had had asbestos removed when her ceiling had water damage. And they fined this uh woman $22,000.

[0:33:22] Lisa Munger: And their sole purpose was making the front page of the advertiser. Uh and I just don't think that that's an import an appropriate enforcement response for a new regulation.

[0:33:32] Randall Roth: Cheryl, I get the impression from your article that you feel that that maybe the EPA is especially strict, and that maybe sounds good in the abstract because everyone wants as clean an environment as possible, but the impression I have is that you think they've in effect torn a hole in our pockets, the taxpayers' pockets, and that um we live in a world of limited resources and so we we have to approach this thing differently. Is that what you're saying?

[0:33:58] Cheryl Okuma-Sepe: That's correct. Many, many of

[0:38:00] Speaker 1: requirements are technically driven on from the federal, from the federal perspective, and that means money for the city, and that may also mean that it simply doesn't make any sense. For example, we have one particular protocol that we use um, from the technical standpoint, we have to use this particular protocol to make sure that we're not causing any kind of harm to our ocean environment, um and it it's a use of a sea urchin.

[0:38:25] Speaker 1: Um, the problem is with the sea urchin, um, this is going to get a little bit detailed here, but Okay. um we can only collect it eight months out of the year, and yet it's something that we have to do on a monthly basis. Not only that, um, it may not necessarily um make any sense because it's such a sensitive creature. But yet the federal requirement has been that we utilize

[0:38:46] Speaker 2: So you're going to violation or spending an ordinate amounts of money not going into violation and it doesn't add to

[0:38:51] Speaker 1: That's right.

[0:38:52] Speaker 2: The situation. Okay. Uh Paul I'm going to come back to you in a moment, but I want to remind listeners that this is pop radio. If you'd like to ask a question or make a comment, our number is 955-8821. Our topic is environmental regulation and with me in the studio are Cheryl Okupe, who is the direct deputy director of the Honolulu Department of Wastewater Management, Paul Atov who staff attorney with Sierra Club Legal Defense Fund and Lisa Hunger, a partner in the law firm of Goodso Anderson, Quinn and Stifel, and the editor of the Hawaii Environmental Law Handbook. The number again is 955-8821 neighbor Islanders just at a 1-800 in front of that.

[0:39:28] Speaker 2: Our lines are full and we're down to the last 24 minutes. I'm going to try to start moving very, very quickly, but I promise our guests in the studio I'll I'll give you a little bit of time to to uh sum things up or respond to things that you've been listening to uh a little bit later on in the show. So very quickly, let's see, are we finished with Dave on Oahu? Very quickly.

[0:39:46] Speaker 3: I'm still on. Oh, you're still there. I wondered why your name was still in front of me.

[0:39:50] Speaker 2: Uh, very quickly, Dave. and I wonder if Lisa might address this. Uh David, well, make it quick.

[0:39:55] Speaker 3: I'm I'm kind of concerned about the enforcement uh, you know, she mentioned the EIS process. One of the big gaps in that process is the enforcement or protection of uh native Hawaiian rights. That's a debate that's going on right at this moment, where some seeing some of these big issues floating around. and I just wonder if uh she really believes this this process uh having gone through many efforts of commenting as Paul mentioned and being ignored. If this does really, real and realistically address the concerns that uh are real within the Hawaiian community.

[0:40:32] Speaker 2: Okay.

[0:40:33] Speaker 1: I'm not sure whether I can answer whether it addresses the concerns within the Hawaiian community. I guess I can only share my experience that on projects that I've worked on that the project has changed uh and permit conditions have changed as a result of public comment.

[0:40:47] Speaker 2: Dave, thank you for your call. We need to move on. Let's go to Bill and Pelolo. Good morning, Bill.

[0:40:51] Speaker 4: Hey, good morning. Uh this thing about trusting the local officials, I'd like to I'd really like to thank Paul for being there this morning. Uh there's a house bill in the uh in the house now, finance committee uh 12:47 Paul, you might want to take a look at that. Uh it went to Jim Shone's committee, it's a truth and drinking water bill. It went to Jim Shone's committee, And Bill he has your facts that you sent in this morning. He's got all the details if you could just kind of get to the bottom line, we'd appreciate it. We got a bunch of people waiting.

[0:41:23] Speaker 4: Well, I know your your scenario. Uh there's a $30 million lab that that was built by the Health Department. Uh it might have it probably costs a lot more than that. This bill would require that brand new lab to to uh go back to good sensitive test the Department of Health adopted sensitive weak test. The Department of Health and the Board of Water Supply, now get this, the Department of Health and the Board of Water Supply showed up at Jim Shone's committee and testified against it. They showed up at uh Calvin Se's finance committee and testified against it. How can we trust local officials?

[0:42:00] Speaker 2: Okay. Paul at Paul Atov.

[0:42:03] Speaker 5: Uh as as Randy points out, I do have a copy of the bill in front of me and I'd have to study it to really have a uh a point of view on on the the bill itself. But I do think uh Bill has done us a a service here by pointing out an issue that many of our listeners may not be aware of, which is that our groundwater is very vulnerable and has, in fact, uh uh in in many instances been contaminated with chemicals uh uh pesticides, in particular our drinking water wells.

[0:42:34] Speaker 5: And I I don't know that many people out there are are aware of this. And I think it goes to this whole issue of local regulation and trust. Uh how did it get that way? How did these chemicals get into our drinking water? And why is it that so few people are even aware that that that this problem exists? It's happened because uh people have been allowed to use pesticides that they should not have been allowed to use.

[0:43:00] Speaker 5: And they have been allowed to have practices that should not have been allowed. And I think that uh, you know, if if uh this this underscores the vulnerability of our resources here and, you know, we only have so much drinking water. And I think another thing that people don't realize is we're running out of it.

[0:43:18] Speaker 2: Okay. Bill, thank you for your call. We go to Dave and Makiki. Dave, can you make your question or comment as brief as possible, please?

[0:43:24] Speaker 6: Well, let me just direct uh one series of questions to Paul and ask Lisa to comment on something. Uh one question, Paul, how did you get to the studio this morning? Ie, did it involve using gasoline? Uh where do you live and do you use your electrical outlets there? And where do you shop? And and in grocery shop?

[0:43:48] Speaker 2: So in other words, Paul is a polluter.

[0:43:50] Speaker 6: Well, you know, to see how you can condemn polluters when in fact we are all consuming uh those goods and services which the polluters produce for us.

[0:43:59] Speaker 2: It's it's an interesting comment. Let's let's get Paul's reaction to that.

[0:44:02] Speaker 5: Oh, I we all pollute, it's the nature of of life on earth and I'm not suggesting I think any more than anyone else that uh that anyone who pollutes to any extent is should be condemned. That's not the issue at all. The fact is recognizing that life on earth uh entails a certain amount of pollution, we have to be particularly vigilant about how we handle that so that we don't foul our nest, because of the fact that we are in a place where we have uh so limited we have such limited resources in Hawaii and we're we're already as crowded as we are.

[0:44:40] Speaker 5: We need uh to be sure we that we don't uh pollute anymore than than we when then necessary. That's why we need regulations. Well, uh Randy, I would then suggest you that this whole debate today is a subset of the of the debate over the carrying capacity of the state.

[0:44:58] Speaker 5: Um, but for Lisa Munger, let me ask very quickly, uh whether she has any thoughts on the uh on the idea that the local environmental enforcement program uh seriously lacks expertise, that the program cannot hire the best possible people because of state bureaucratic regulations, that they are parochial in their viewpoint and that they in fact don't understand the broad issues of uh the the various development needs of the state.

[0:45:26] Speaker 2: Okay. Lisa, quick uh quick answer to a real good question.

[0:45:30] Speaker 1: And a real good compound question. I guess my view is that the Department of Health, I would certainly agree that the Department of Health doesn't have all the resources that it needs in terms of people, that it's difficult for the Department of Health to hire people quickly, that it's difficult for the Department of Health even to get the money to which it's entitled uh uh from the fees paid by those in the regulated community.

[0:45:55] Speaker 1: And that I do believe that if the department did have, for example, the money from its clean air fund which it should have, that it would be more effective in its air program or that it would make better decisions in its programs.

[0:46:06] Speaker 2: So you're not saying allocate fewer resources to protecting the environment, you're saying just do differently with the resources that are there and if you do it differently, it's going to be done better?

[0:46:14] Speaker 1: Yes, and I think the department does need does need to have its hands on the resources that should be available to them.

[0:46:20] Speaker 2: Okay. Dave, thank you for your call. Uh Cheryl, did you have a comment? Maybe if I can just comment on that, um in in terms of what the city needs, um we look to this Department of Health to to issue us the permits that we need.

[0:46:32] Speaker 1: And the problem is when there are these federal mandates that do come out, um the state needs to have the resources to implement that and I would say that some of the programs, they simply don't have that. What that then means is we cannot, from the city level, get the permits we need to operate our facilities.

[0:46:48] Speaker 2: And I know at least from your article and from talking to you before, you feel that an awful lot of resources were consumed in defending the lawsuit that that Paul's organization brought against the city on wastewater. And so you I think would say, gee if we could have used that money differently, we could have done more with it.

[0:47:05] Speaker 1: That's correct, in terms of not only litigation costs, but in terms of of what we agreed we would do or in terms of what the court has told us we must do, all translates into dollars.

[0:47:16] Speaker 2: Okay. So uh I'm sorry. No, I just going to give Paul an opportunity because I know um Lisa has said that she feels that the city was vindicated on that lawsuit. How do you feel now with 2020 hindsight about that lawsuit?

[0:47:30] Speaker 5: I think the there's been a series of these lawsuits on the Clean Water Act against the City and County of Honolulu, and uh they've involved the the Sand Island plant, the Honolulu plant, the Kaniho plant, the Kailua plant. And I would say there's an old uh saying that uh when three people tell you you're dead, the the least you can do is lie down. And I would say that to the city. In every one of these lawsuits, the city has been found to have violated the Clean Water Act thousands of times.

[0:48:02] Speaker 5: I I I do believe that the City and County of Honolulu holds the record uh for the most violations of the Clean Water Act in the country. And as far as having been vindicated in the instance of the uh the Sand Island suit, I disagree. The Mamala Bay Study Commission, which was set up with funds from the settlement of that lawsuit, did not find that the city was treating its waste appropriately. In fact, the the Mamala Bay Study Commission recommended that treatment be upgraded from primary to advanced primary, which while not being the same as secondary, is frankly closer to secondary than it is to primary.

[0:48:41] Speaker 5: And the reason that they recommended the upgrade was to allow the effluent from that the plants to be disinfected, which was the reason that one of our our primary uh problems with this was that uh was the lack of disinfection and it needs to be upgraded in order for disinfection to be available.

[0:49:00] Speaker 2: So what what I'm hearing and and tell me if I'm wrong, is that you're saying that these lawsuits, while they're they're very expensive on on all sides, that they do good, that they they get the city, for example, in this instance, to pay more attention, to do a better job and they ultimately benefit the people of Hawaii.

[0:49:17] Speaker 5: Oh, absolutely.

[0:49:18] Speaker 1: Cheryl? Okay, let me speak to the issue of the so-called thousands of violations. When you take a look at what those violations were, um it actually ended up to philosophical debate among the parties in terms of how we should operate our treatment facilities. In other words, we were operating at primary treatment level. The plaintiffs argued that or the other side argued that it should be at secondary treatment level. The Department of Health as well as EPA believed that the operations of our plant at the primary treatment level was okay. The problem is with the law and and this is where we get into things in the law that were simply out of sync.

[0:49:56] Speaker 1: The problem is the opposing parties were able to utilize a loophole in the law and it was a technical violation in terms of what was assessed by the courts.

[0:50:06] Speaker 2: Okay. And I've got a feeling this could be a very long conversation. We're going to give Paul a quick response and then we're going to move to our callers.

[0:50:12] Speaker 5: Uh thanks Randy. I I would not call it a philosophical debate or a technical violation when a uh a violator is found to to be dumping raw sewage into the ocean near beaches that that people swim off of. To me that's not a technicality at all. And while I can well believe that the Department of Health didn't think there was anything wrong uh with it, I think there was.

[0:50:35] Speaker 2: Okay. and I guess what you're describing is is still going on because the outcome of the lawsuit was that that wasn't hurting the environment.

[0:50:43] Speaker 1: The outcome of the lawsuit is we continue to operate our plants at their current level which is primary treatment so the lawsuit did not change the operation. And in addition, the court determined that there was no um harmful impact.

[0:50:55] Speaker 2: But what I'm hearing is who won and whether it was money well spent is a matter of opinion and the two of you simply disagree on this one.

[0:51:02] Speaker 1: This is a point that I would say we probably do disagree on.

[0:51:05] Speaker 2: Okay. Well, we're going to make a real effort to get through uh the folks who've been waiting patiently. Let's go to Sharon in Makiki. Good morning, Sharon.

[0:51:13] Speaker 7: Yes, in order to participate in all of this discussion, those of us with low incomes less than $420 a month, um find that newspapers are expensive, that we get most of our news via TV, radio and by midweek. Um could you please tell us where we can get on the mailing list for this OEQC bulletin? And because we can't also get to the libraries that are open not as frequently.

[0:51:38] Speaker 2: Okay. That's a good question. Lisa, do you have an answer?

[0:51:41] Speaker 1: Sure, you can get on the OEQC bulletin by calling the Office of Environmental Quality Control. Uh they're listed in the state section of your uh telephone book and if you happen to have your uh pen and pencil handy, their phone number is, I believe, 586-4185.

[0:52:01] Speaker 2: Okay. Thank you very much. Daniel on Maui. Good morning, Daniel.

[0:52:05] Speaker 8: Yes, well, um I just I heard the one come in from one person about pesticides raised due in in the water and that I I would like to make a comment about that and and I haven't heard it yet, but um where I'm here, surrounded by about 19,000 acres of chemical farming and and not just pesticides, and there is a whole all kind of inorganic residues we have to deal with and they're killing people literally.

[0:52:30] Speaker 8: Just like they kill insects, they kill us just as as fast. They just collect an our um organs. Let Let me get a Let me get a reaction to that, Daniel. Paul, are do you feel that and you've commented that that there is a problem with pesticides. How serious a problem is it? The so-called chemical agriculture I think is the term that Daniel used.

[0:52:49] Speaker 5: Uh well Randy to be honest with you, I can't comment on how serious it is from a health perspective because I don't claim to be an expert on the impact of pesticide residues on health. All I can say is I have seen the data that indicates that many of our drinking water wells have pesticide residues in them. I am familiar with some of the literature on those pesticides enough to know that the pesticides that are in the water at some level have been found to be carcinogenic.

[0:53:20] Speaker 5: At least some of the pests pesticides or cause other health problems. Uh and as to how serious it is, I would defer to an expert in that field, but I would suggest that uh the levels in some of the wells are high enough that people that our own officials have felt that they were not drinkable and and therefore have spent millions of dollars on filtering the water from those wells so that they can be drinkable.

[0:53:46] Speaker 2: Okay. Thank you Daniel, appreciate your call. We go to I think it's Va on Oahu. Hello?

[0:53:54] Speaker 9: Oh, Ua.

[0:53:55] Speaker 2: Yeah, Oa.

[0:53:58] Speaker 9: Yes, good morning. Uh I I'll try to be very brief. Thank you. I believe there are three items that I I want to integrate into uh one statement and uh first of all, uh when I am asked to trust someone or trust an agency, my uh defensive feelers go up immediately. I think trust should be earned. Now the process, as the process, um I don't believe the process does work. I believe the process includes more than just public hearings, but it also includes permitting. Our community was directly impacted by permitting which fell through the cracks and contaminated soil was dumped in our community.

[0:54:40] Speaker 9: Uh Ua can you can you go through your three points rather than than kind of elaborating on each one because we we have to move along. Well, uh the the thing about the process is that the permitting process didn't work. Contaminated soil was dropped in our community. The person who was granted the permit had a very poor track record and enforcement, I don't believe it's a matter of style with the EPA, difference with the EPA uh because enforcement usually occurs only after the citizens complain. Those are my statements.

[0:55:15] Speaker 2: Okay. Thank you. We really appreciate uh your comments this morning. Let's go to Lela in Ia. Good morning, Lela.

[0:55:21] Speaker 10: Good morning. I just wanted to make a comment. Bill's uh house bill 1247 will never go through because if the truth in our drinking water really comes out, uh then the developers will lose money because property values will drop, particularly in Mililani, also in Village Park where there have been reports of people, um mothers and children becoming ill and they believe it is from the water. Now it's alleged that even the testing of our drinking water is not honest here. There's a way to uh paint it so that what comes out it's less parts are shown of the chemicals that are really in the water.

[0:56:07] Speaker 10: So I think citizens need to be up in arms about that. We cannot trust our officials.

[0:56:13] Speaker 2: Lela, thank you for your call. We really appreciate your call. You know, if if our callers this morning are are reflection of of the community as a whole, there isn't a lot of trust out there right now with respect to uh environmental protection. Let's go to David uh in Punchbowl. Good morning, David.

[0:57:00] Cheryl Okuma-Sepe: as public works but let me try to answer that with respect to my own knowledge of it. It's true. There is a federal requirement. Um it falls under the storm water um program and what it requires the city and County of Honolulu to do is is to set up its own um regulations to to make sure that some of these activities are either prohibited or at least being monitored.

[0:57:22] Cheryl Okuma-Sepe: I believe what you're talking about is a restriction um from your from what activities involving car washing from uh townhomes or single-family residences. I didn't think it applied to condomini- condominiums. However, if you'd like to find out more about it, if you call my office I can at least put you in touch with the right person. You can call me at 5276664 and I can put you in touch with the department who can provide you with a little better information on that.

[0:57:50] Randall Roth: Okay. David, thank you for your call. We have to move on to Robert and Palolo. Good morning, Robert.

[0:57:55] Robert: Yeah, good morning. Um let's see. I just wanted to uh to say that the the problem is maybe uh caused by uh inflow and infiltration into the pipes, you know. I for for some reason, I understand that the uh the violations were made during periods of of rain and uh that caused an overflow in the wa- water treatment plant.

[0:58:18] Randall Roth: You're talking about the wastewater lawsuit that I was discussing with Cheryl and and Paul earlier.

[0:58:23] Robert: Yes, that's correct.

[0:58:24] Cheryl Okuma-Sepe: Right. This- this is actually a different action. This is one that was uh initiated by EPA a number of years ago, and what the city is doing currently, it's got a- we've got a rehabilitation program island-wide. It covers our nearly 1,800 miles of collection lines. Um, we are currently undertaking evaluations and assessments to determine what will need to be done. When we do encounter the some of the critical areas, we uh- uh do what we need to do in order to correct that situation, but this program will take us out about the next 20 years, and it's is our next challenge I would say, in terms of how we're going to pay for this cost.

[0:59:01] Randall Roth: Bob, thank you for your call. We- we've got to move on and I apologize to- to everyone else who tried to get through. We're just not going to have time to take any more callers. We're down to the last 3 minutes. I've got 3 guests in the studio, you've each got approximately 1 minute. Lisa, why don't you uh take the first?

[0:59:18] Lisa Munger: Thank you, Randy. Um, I think that the- I would welcome anyone to sit down with EPA's 10,000 pages of regulations and read them cover-to-cover, and to uh tell us that all of that detail is the best way to go.

[0:59:32] Randall Roth: How long would it take them to read that?

[0:59:34] Lisa Munger: I don't know. I've been practicing now for 17 years and I haven't finished. Um, and- and I would say that that detailed regulations are excellent, but it's more important to have regulations that make sense here. And I think that we- that although they're- I'm disturbed to hear the comments today that people don't have confidence in the Department of Health, uh, that I don't- I don't know that I- I disagree with that. I think that you have people who are very committed to the environment here and who are doing their best to balance um all of the concerns of the community, and that environmental regulation needs to be strict, but it needs to make sense. And you need to have uh enforcement that is uh fair, but more importantly, education.

[1:00:21] Randall Roth: Okay. Thank you. Paul.

[1:00:23] Paul Achitoff: Thanks, Randy. Uh, I think that uh you made a comment earlier in the show in which you used the phrase, "We live in a world of limited resources," and I believe that when you use the phrase you were referring to money, funds. And uh, I would agree, but I would say uh we should be more concerned about the fact that we live in a world of limited resources in terms of our natural resources. Uh, we can move funds around. We can apply them in one place, or we can choose to apply them in another place, and I think that's what we need to do when we find that we don't have enough money to to deal with a problem. There's a lot of money out there, we pay a lot of taxes. The question is, how do we use that money? Uh, I think the fact that we live in a world of limited natural resources is something that we all need to be much more sensitive to and uh and remember that uh from this island, there is no place to go. If you are an endangered bird, you can't go anywhere else. Uh, you know, and if you are an endangered plant, if you go extinct, that's it.

[1:01:29] Randall Roth: Okay. Cheryl, you got 30 seconds.

[1:01:31] Cheryl Okuma-Sepe: Thank you. Let me just say that um it's our mission to protect the environment. No one disagrees with that point. The question is how do we get there? The reality is we have to balance protecting the environment with the moneys that we have. The challenge for the- for our department, for the city is how we are going to pay for all these programs.

[1:01:50] Randall Roth: Okay. Well, I want to thank our guest, Cheryl Okuma-Sepe, the Deputy Director of the Honolulu Department of Wastewater Management, Paul Achitoff with the Sierra Club Legal Defense Fund, and Lisa Munger, a lawyer with Goodsill Anderson Quinn and Stifel. Our producer is Susie Roth. Our Director of Operation is Jeff Alardi. We hope you'll listen next week when we're going to talk about punishment. What is it? How do we do it? Why do we do it? Is it working? What are some alternatives that might make sense? We'll get into capital punishment and a number of things. You've been listening to Pop Radio. I'm Randy Roth. Aloha.

[1:03:49] Caller: because of the fall of our rest.