Three years ago, on the way to the Legislature that aimed to strip the governor of unilateral emergency powers, the Lingle administration complained that it would "turn back the clock 57 years" and handcuff the executive branch from responding to disasters.
Then-Gov. Linda Lingle vetoed the measure, and legislators did not overturn her decision. The emergency power remained on the books — and this past June, Gov. Neil Abercrombie applied it quietly with an emergency proclamation that came to surface last month.
Central to the proclamation was to provide "rights of entry" for the Army Corps of Engineers to look for and remove unexploded munitions, mainly from World War II. In a summary following the belated announcement of the proclamation, state laws were "holding up" the corps’ "ability to enter state land to search for and dispose of munitions," said Abercrombie, who had been a member of the U.S. House Armed Service Committee during his years as congressman. "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 complete," he claimed.
Environmental groups have questioned the legaility of Abercrombie’s use of the emergency powers, contending that such an action must follow an emergency, not precede it.
The law says "disaster relief" can be ordered by the governor "to minimize and repair injury and damage resulting from disasters … caused by enemy attack, sabotage or other hostile action," wrote Robert D. Harris, a lawyer who heads the Sierra Club’s Hawaii Chapter, in a letter to Abercrombie.
"You cannot have a preparation or anticipation that a speculative disastser may occur," Harris wrote.
Last week, Harris told the Star-Advertiser the issue may be construed as "whether or not these munitions are as a result of an enemy attack or this stuff is a result of military training or otherwise. You could exempt anything the military does in anticipation of an enemy attack, or training or preparation of enemy attack, and I don’t think that was intended to be that broad."
At any rate, he said, "The breadth and power of this law is so powerful that I think a logical concusion is that it’s supposed to be narrowly construed, not broadly construed."
A principal recovery area in a program initiated by the corps in 2004 is the Waikoloa Maneuver Area, 137,000 acres on the western side of Hawaii island, acquired by the U.S. Navy from Parker Ranch in 1943 to use as an artillery firing range. The cleanup has turned up grenades, bazooka rounds, artillery and motor rounds, land mines and hedgehog missiles.
The area includes the Hapuna State Recreation Area, which was closed in February after an object suspected of being unexploded ordnance was spotted in waters at the south end of Hapuna Beach.
On Sept. 9, the corps, under contract with the state Department of Land and Natural Resources, said it had conducted surface and subsurface scanning in the recreation area and is expected to complete that phase of the project by mid-January of next year. Later last month, the corps found a Japanese 57 mm mortar and a live Japanese hand grenade in the Hapuna recreation area and proceeded to move and detonate them.
The governor’s proclamation allows the state to assure rights of entry for the corps not only in portions of the Waikoloa area but at other areas designated previously on Oahu, Maui and Hawaii County, among 380 properties in the state. The corps has anticipated federal funding of $16 million or more in each of the funding years through 2016 for cleanup of a total of 504 properties in Hawaii, American Samoa, Guam, the Northern Mariana Islands and other U.S. possessions in the Pacific. At that rate, the corps estimates the program will take 113 years to complete.
The question is whether the rare — and quiet — proclamation was needed to allow the corps to adequately obtain a right given by the state DLNR to enter a specific area to search for and gather munitions left over from the war.
"The corps needs rights of entry to work on land, whether it is private or publicly owned," said Joseph Bonfiglio, public affairs chief for the corps in Hawaii. "Questions of why the governor’s emergency proclamation was issued should be addressed to the state of Hawaii."
"It’s clear that during emergency situations, DLNR can declare an exemption," said Gary Hooser, director of the state Office of Environmental Quality Control, who said he was not contacted about Abercrombie’s decision to invoke the proclamation.
He said in many cases of rights of entry for munitions cleanup, an environmental assessment is not even necessary.
"On virtually any action or project that’s going on," Hooser said, "if the agency looks at the potential impacts and decides that it is not likely to have any significant impact, there’s a path to declaring an exemption … The agency, in this case the DLNR, makes that determination and a lot of people think getting something exempt is a very difficult process, and it’s not a difficult process, if the expected impacts (of the entry) are not going to be significant."
The availability of adequate funding for the work has been an issue since the national munitions program began in 2004. Two years into the program, then-U.S. Rep. Ed Case said, "Basically, what we’re talking about is $640 million to clean up Waikoloa versus a national budget for (the program) of $250-plus-million, so clearly, there’s a problem all across the country."
U.S. Sen. Daniel Akaka said at the time that "current appropriations are not enough for the (Defense Department) to move ahead with cleanup tasks."
Abercrombie spokeswoman Donalyn Dela Cruz said funding was important in listing the corps’ projects "on a risk management ranking approach." The Hapuna Beach work was "at the top of the corps’ project list," she said.
"Even though the current level of funding would allow for the completion of a few of the top projects," Dela Cruz said in an email to the Star-Advertiser, "these are the projects with the highest risk assessment. In other words, even if removing all unexploded munitions from state lands could take a long time, losing the funding would prevent the state from cleaning up those sites with the highest risk to human health, safety or the environment on state lands."
Sites targeted for munitions cleanup
The rights of entry for the following Formerly Used Defense Sites (FUDS) projects were cited in accordance with Gov. Neil Abercrombie’s proclamation: Pali Training Camp, Heeia Combat Training Camp, portions of the Waikoloa Maneuver Area, Maui Airport Military Reservation, Makanalua Bombing Range, Pacific Jungle Combat and Oahu Island Target.
FUDS projects are implemented based on the availability of funding, a risk-based prioritization protocol, and the ability to access properties by obtaining rights of entry, said Joseph Bonfiglio, public affairs chief for the U.S. Army Corps of Engineers, Honolulu District, at Fort Shafter. The governor’s emergency proclamation did not change how the corps selects FUDS projects for implementation, he said.
Here’s a look at the sites, which would be using $16 million annually in federal cleanup funds:
» The Former Heeia Combat Training Area and Former Pali Training Camp are located on Oahu’s Windward side. The Heeia site consists of about 200 acres in Heeia Kea and 2,254 acres in Waihee and Kaalaea Valleys, Kahaluu. This area was used by the U.S. Army during World War II as an encampment for troops, an ammunition storage facility, a firing range, and as a maneuver and artillery impact area for jungle and assault training.
The Former Pali Training Camp covers about 4,400 acres that were used as a regimental combat team training center for jungle and ranger training. The primary area of concern, formerly used as an artillery impact area, is about 1,500 acres at the base of the Pali in Kailua, in portions of Makalii and Maunawili valleys.
» The property once known as the Waikoloa Maneuver Area is located on the western side of the Big Island. In December 1943, the U.S. Navy acquired about 137,000 acres in Waikoloa through a licensing agreement with Richard Smart of Parker Ranch.
Portions were used as an artillery firing range on which live ammunition and other explosives were employed, with the remaining acreage used for troop maneuvers and the largest encampment on the island of Hawaii. In September 1946, the property returned to Parker Ranch.
» The former Maui Airport Military Reservation consists of 1,875 acres located midway to Kihei on Mokulele Highway.
The airport, built from 1936 to 1939 and known as Puunene Naval Air Station, was used by the Navy (1940-46) as a naval air station that also supported Army operations. Radio-controlled drones were used to aid in the development of accuracy among antiaircraft gunners. The site consisted of nine underground fuel storage tanks, a transformer building with a PCB transformer, and a landfill. Current use of the site includes a heliport, crop-dusting airplane runway and a drag strip.
» The Makanalua Bombing Range property is located at Kalaupapa, Molokai, northwest of the airport. Navy records indicate the Department of Defense used the 160-acre site as a naval bombing range.
» The Pacific Jungle Combat Training Center was used in September 1943 and covered 2,267 acres in two valleys: 485 acres in Kahana Valley and 1,782 acres in Punaluu Valley.
» The Oahu Island Target site comprised 12.5 acres and is known as Mokuauia Island (Goat Island); it was used as a bombing site. Located directly off Malaekahana State Recreation Area, the island is a nesting area for migratory birds and is uninhabited.
Also: Two sites — the Makua Training Area and PTA Kulani Boys’ Home — are not FUDS projects but still require rights of entry and are federally financed by the Military Munitions Response Program, which addresses munitions and explosives of concern on U.S. Army active and excess-property installations.
Source: U.S. Army Corps of Engineers, Honolulu District
— Star-Advertiser staff
