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updated 4/28/11

Environment and the Law

By Lee Schaller
What is going on in Hawaii's environmental area that is impacting or will impact development and construction? Here is a sampling of current issues and concerns:

From the Field

"One of the biggest challenges in developing properties has been the discovery of remnant concentrations of chlordane in the soil," says Randy Herold, president of ENPRO Environmental, a Hawaii-based, nationally operating environmental consulting firm. Chlordane was used as a pesticide in the United States from 1948 to 1988 when, due to concerns about damage to the environment and harm to human health, it was banned by the EPA (Environmental Protection Agency). "Chlordane is a very effective pesticide," explains Herold, "and one of its characteristics is persistency in soil. Many of the military developments encounter chlordane and it has become routine to sample and test for its presence. ENPRO has just completed a pilot demonstration project that successfully reduced very high concentrations of chlordane contaminated soil to well below regulatory action levels using a proprietary bioremediation process."

Dan Ford, president of Bureau Veritas North America, another leading company in quality assurance, health and safety areas in Hawaii, agrees that sites with contaminated soil present a major challenge. "You have to be sure that all of your workers are trained in this area," he stresses, "and are aware of the increased enforcement of environmental compliance." Ford emphasizes that "safety requirements are becoming much more stringent." Addressing another area of concern, he says, "Both the state and the EPA are getting stricter with storm water runoff enforcement. There also is more inquiry into vapor intrusion in addition to soil sampling protocols. The DOH (Department of Health) is watching very closely how samples are collected and will continue to monitor this area carefully. The DOH is in the process of updating policy statements and guidelines on soil sampling protocols for multi-increment soil sampling."

Know the Law

In response to our question on current environmental challenges, Ryan H. Engle, a partner with the law firm of Bays Lung Rose and Holma, says, "Congestion — every year there is less open space. No one is building on a clean canvas anymore. We are building on top of things. And because of this, the risks are not always realized at the beginning of a project — environmental problems are not so discernable." Which is why, stresses Engle, it is imperative to "know the law and have all of the protocols in place in advance of when and if a problem arises." Bays Lung Rose and Holma, a law firm with a practice area specializing in construction law, offers free in-house seminars for clients and prospective clients.

Genevieve Salmonson, compliance assistance ombudsman for the DOH, underscores the importance of knowing and complying with the law. She points to a current vital area in this regard. "The DOH Clean Water Branch is working especially with all new construction, focusing on the BMPs (Best Management Practice) for projects. It is working with developers and trying to 'connect' the developers and contractors so that the contractors are aware of the developers' BMPs when they bid on a project. They should then address the developer's BMPs in their bid." As to the consequences of not complying with environmental laws, fines for failing to maintain a site-specific storm water pollution control plan at a construction site, for example, can be assessed at $25,000 per day per violation. "Ignorance of the law is no excuse," says Salmonson. "In some instances, you can be criminally charged."

Green Building Challenges

David Bylund, LEED AP, director of design and sustainability for Architects Hawaii Limited, a member of the board of directors of USGBC (United States Green Building Council) Hawaii chapter and former chair of the sustainable land use committee of the Urban Land Institute (ULI) Hawaii, tells us, "Because, over the last few years there has been a lot of public sector work, most of which comes with a mandated LEED silver performance requirement, many construction professionals have needed to jump into the sustainability realm. The successful ones have committed themselves to being as effective and efficient as possible in fulfilling their part of the LEED certification process. However there still are challenges in the subcontractor market. Achieving sustainability results requires that subcontractors, along with the general contractor, understand specific processes. This is an area where more education and demystification are necessary."

Jason Wanstrath, LEED AP, president of the USGBC Hawaii chapter and senior project manager for Pankow, stresses an increasingly disturbing issue in our islands. "Hawaii is the most petroleum dependant state in the country, including the fact that nearly all of our electricity is produced by oil. Renewable and clean energy reform is one of the biggest issues we will be tackling in coming years." This presents both a challenge and an opportunity for Hawaii's builders, according to Wanstrath. "The current plan for the Hawaii clean energy initiative calls for 70 percent clean energy by 2030, with 40 percent coming from renewable energy sources and another 30 percent from increased energy efficiency. All of which means there must be a fundamental change in the way we have built for decades. We will need more workforce training and education and improved standards and codes for our built environment and products. We will need to retrofit our current buildings to be efficient and healthy. We will need to develop improved financial models matching the life cycles and return period for our sustainable projects and clean technologies. And lastly, the state has initiated a plan (the Hawaii clean energy initiative) to advance our green economy. We need to vocalize that we intend to hold government and business accountable."

The State's Role

"The State Energy Office, in support of the clean energy initiative, is working diligently to establish polices and programs that will reduce our dependency on fossil fuel and promote transformation to a clean energy economy by 2030," says Gail Suzuki-Jones, energy analyst, strategic energies division, Department of Business, Economic Development and Tourism (DBEDT).

"To protect Hawaii's precious natural, cultural and ecological resources," explains Cameron Black, permitting specialist, Hawaii State Energy Office, DBEDT, "a typical utility-scale renewable energy project in Hawaii requires an average of 20 or more county, state and federal permits. Clean energy policies established by all three levels of government have placed a priority on the permitting of renewable energy and energy efficient projects. In addition, DBEDT is working with government agencies to facilitate clean energy permitting. For example, DBEDT and the DOH are developing an online permitting system for all DOH Environment Health Administration (EHA) permits."

Targeted for completion this fall, the e-permitting portal will streamline DOH/EHA procedures, from identifying required permits to submitting, paying for and tracking applications. "The portal also will provide instantaneous DOH/applicant communication and coordination between DOH branches," says Cameron. "The Guide to Renewable Energy Facility Permitting in Hawaii and On-Line Permitting Wizard, identifying all county, state and federal permits potentially required for a renewable energy project and explaining why they are needed, also is expected to be completed this fall." And DBEDT is developing the Renewable Energy Facility Siting Process (REFSP) Hawaii Revised Statute (H.R.S.) 201N, requiring all state and county permits for eligible projects to be issued within 12 months of final H.R.S. chapter 343 acceptance. Cameron says approximately five developers are considering using the REFSP.

OSHA's Presence in Hawaii

Since federal OSHA (Occupational Safety and Health Administration) rulings can extend into environmental legalities affecting development and construction, we asked Jim Newberry, assistant vice president/risk control manager at Island Insurance and a member of the HIOSH (Hawaii Office of Safety and Health) advisory committee, about the impact of OSHA having an area director on-site in Hawaii. "The new area director," he says, "will be working closely with HIOSH to ensure the local agency brings its operations up to a standard being 'at least as effective' as OSHA." (Federal audit results indicated that improvements needed to be made.) "Whether or not you agree with the idea of OSHA (being on location here in Hawaii), it is part of our governmental process, and companies should be prepared when they go through an inspection," points out Newberry, who says OSHA is "getting stronger" nationally. "We are seeing an increase in significant fines, public posting of these on OSHA's website and programs targeting industries, recordkeeping, certain chemicals, and more. Beyond business and moral reasons, there is a legal obligation to provide for the safety of the human resources engaged in an enterprise as well as the life and property of others who may be impacted by the company's actions. I would label this focus as due diligence."

We have touched upon a few of the current environmental challenges to development and construction in Hawaii. There is much more to be aware of and many ways to obtain the information. However, one point was stressed by everyone we spoke with — be sure that ALL of your employees know the law and the risks for non-compliance. That's the bottom line. It very well could affect yours.

Case in Point

Earlier this year it was reported that high levels of arsenic and dioxins had been found in the soil of a Kilauea (Kauai) neighborhood, site of the former Kilauea Sugar Mill. (Sugar cane farmers once mixed arsenic with pesticide to manage crops.) Gary Gill, DOH deputy director for environmental health said, "The risk the toxins impose is low" (since soil in most affected residential yards are covered with grass and clean soil), "but concentration levels are high."

The EPA has tasked the DOH with examining soil near pesticide mixing areas at old mills statewide. Of those tested to date, "This (Kilauea) site is the only one we know of where an old plantation site was knocked down and a subdivision was built on top of it," Gill said. The DOH is using federal funds to conduct testing and research, including subsurface soil testing through its Hazard Evaluation and Emergency Response (HEER) office. All of this reaffirms what environmental experts such as Herold and Ford are saying.

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.... fines for failing to maintain a site-specific storm water pollution control plan at a construction site, for example, can be assessed at $25,000 per day per violation. "Ignorance of the law is no excuse," says Salmonson. page 37 BI May