(BIVN) – A group of Puna residents and one environmental group are appealing the denial of their request for a contested case hearing over a Puna Geothermal Venture permit renewal.
The non-profit Malama O Puna and four Puna residents – Robert Petricci, David Kisor, Sara Steiner and Shana Ritsema, all represented by attorney Gary Zamber, filed their appeal on March 22 in the Third Circuit Court.
The set of events that led to the latest round of litigation has been years in the making, and was thrown into further disarray by the 2018 eruption of Kīlauea Volcano on the lower East Rift Zone.
According to the appellants’ filing and a recent order from a Hawaiʻi Health Department hearing officer, here is the timeline:
On October 6, 2014, Puna Geothermal Venture applied to the Hawaiʻi Department of Health Clean Air Branch in order to renew its Non-Covered Source Permit (No. 0008-02-N dated Dec. 15, 2009 set to expire on Dec. 14, 2014).
The Clean Air Branch drafted a proposed conditional renewal of PGV’s permit, and held a public hearing at Pāhoa High and Intermediate School on September 15, 2015. At the hearing, some of which was recorded and appears in the archival video above, several testifiers requested a contested case hearing.
Two years later, on September 29, 2017, the health department Hearings Officer Steven Jacobson “issued an order granting several requests for a contested case, including the requests of Appellants [Malama O Puna], Shana Ritsema and Sara Steiner, and denying other requests, including Appellants Robert Petricci and Dave Kisor (but allowing additional time for those denied to submit furthre material supporting their requests),” attorney Zamber stated.
On May 3, 2018, Kīlauea Volcano began erupting on the lower East Rift Zone. Puna Geothermal Venture was forced to shut down, and later, part of the facility was inundated by lava.
On May 9, Governor David Ige issued a Supplemental Proclamation that suspended operation of HRS Chapter 432B (Air Pollution Control).
“In compliance with the Governor’s Supplemental Proclamation” in response to the volcanic disaster, Hearing Officer Jacobson stated, he “entered an Order on May 25, 2018, staying all activity re the contested case review requests made herein.”
Still, on October 22, 2018, the Hearing Officer noted, the Clean Air Branch issued a Notice of Violation and Order to PGV for a prior incident.
The Hearing Officer also noted the November 30 and December 29 supplemental proclamations by Governor Ige, the latter of which was issued for “the limited purpose of providing additional time for Puna Geothermal Venture to re-establish, or begin to re-establish, the regulatory framework under which it is required to operate.”
On February 27, Ormat Technologies, Inc., the parent company of Puna Geothermal Venture, reported that it is “working rapidly to resume operation of our Puna power plant” following the Kilauea eruption.
The next day, on February 28, the Hearing Officer vacated the May 25 Stay Order, and issued an order dismissing all requests for a contested case hearing on the PGV permit renewal.
According to the Hearing Officer, the subchapter 4 of HAR Chapter 11-60.1, dealing with Noncovered Source permitting, “does not create any right for any kind (upon initial issuance, upon renewal, or upon modification) of contested case or EPA review of Noncovered Source permits.”
The Hearing Officer noted that the law states that the health department may still schedule a contested case “when required by law based upon a complaint,” and that “questions of the constitutionality of statutes and rules are for the courts to decide.”
On March 22, hours after the appellants filed in court, a community meeting was hosted by PGV in Pāhoa. Company executives gave an update on the recovery of their facility and offered to help lava-locked residents regain access to their properties.
Attorney Zamber said in his March 22 appeal that the “denial of the contested case requests deprives the parties of constitutionally protected rights to present evidence” relating to the PGV permit.
Zamber is asking the court to reverse the Hearing Officer’ decision and remand the matter back to conduct a contested case hearing, and to suspend Puna Geothermal Venture operations “purportedly authorized by any invalid permit.”