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Pollution bill amended amid uproar

LIHUE — A controversial proposal to declare certain types of health-harming air pollution a public nuisance was amended Wednesday by a Kauai County Council committee following nearly a month of public outcry.

“I understand the cultural fight, you know, I didn’t mean for all of this to happen — I’m sorry to the whole island of Kauai,” said Wailua Homesteads resident Dustin MacDonald, who along with several other residents has asked the seven-member board to regulate wood-burning fireplaces that, he claims, are affecting his family’s health in two separate neighborhoods.

“This has created such a tidal wave of horror,” MacDonald continued. “It has blown out into this thing where I can’t believe this. I’m fighting for life and everyone is condemning me because I’m taking away their culture and heritage. The Hawaiian culture is all I know — this is where I’m from and I would never take away anything from my friends and the family that I grew up with.”

The five-member Public Safety Committee, comprised of Councilmembers Ross Kagawa, JoAnn Yukimura, Gary Hooser, Mason Chock Sr. and KipuKai Kualii, unanimously approved amendments to Bill 2573 that clarified several key areas of concern, including which properties are affected by the law, what uses are excluded, and the supporting evidence required to file a complaint.

“I think, by having this amendment, it will be very clear that we don’t want to affect, and don’t have to affect, the cultural practices of our people, so hopefully we’ll still be able to address this problem,” said Yukimura, who introduced the amendments on Hooser’s behalf.

The County Council will take up Bill 2573 during its March 4 meeting in the Historic County Building, Council Chambers.

Councilman Arryl Kaneshiro attended the meeting but is a non-voting committee member. County Council Chair Mel Rapozo, another non-voting member, was absent.

Under the amended proposal, it would be illegal and a public nuisance for “any person, firm, or corporation in the County of Kauai within or upon any property residentially zoned R-4 (quarter-acre lots or smaller) or higher density to intentionally, knowingly, or recklessly cause, permit, or allow to escape into the open air smoke, soot, or poisonous gases” that injures the health of any person.

The pollutants covered under the bill must come from “any kind of smokestack, chimney or flue originating from within the residence, under the person’s, firm’s, or corporation’s charge or control.”

Violators of the proposed law would face a maximum $200 fine.

Before any citations are issued, however, the amended proposal requires that complainants provide “an affidavit detailing the incident at issue and identifying the source property located within the designated area” along with another affidavit from the person’s physician “detailing any negative impact to the person’s health that is occurring due to the smoke, soot, or poisonous gases.”

The proposed law, according to the amended bill, “shall only apply to fireplace burning within residences and shall not apply to other cooking activities and other traditional and customary practices, including but not limited to the use of imu, hibachi, preparation of ‘smoke meat,’ agricultural operations, or religious activities.”

“My intent is to narrow it as much as we possibly can because there are lots of fireplaces in (residential) areas, so my intent is not to regulate all of those fireplaces — only the fireplaces that hurt someone’s health,” said Hooser, who introduced the bill last month. 

Some residents and county officials say they still have concerns about enforcement and potential costs associated with implementing the proposed law.

Nolan Hirai, manager of the state Department of Health’s Clean Air Branch, said his department received 98 smoke complaints on Kauai in 2012 — three for open burning, eight for agricultural burning, seven for cooking, seven for water heaters, and 73 for fireplaces.

All but one of the complaints for fireplaces, he said, came from one specific neighborhood in Wailua Homesteads.

“We have fixed resources and funding, so our efforts have always been geared toward bigger sources,” Hirai said when asked why stricter regulations can’t be applied to fireplaces. “We don’t view fireplaces as a widespread concern outside of the situation in (Wailua Homesteads).”

Dr. Robert Weiner, a retired general surgeon on Kauai, said various types of smoke, including those from wood-burning fireplaces, can contribute to severe medical conditions, or exacerbate existing medical conditions like asthma or lung diseases. But creating a cause-and-effect relationship between the two, he said, can be difficult.

“That would be problematic for me to say exactly what the person’s lung disease is caused by, but I could say that some of these patients have lung disease and that exposure to any further smoke would be detrimental to those patients,” Weiner said.

County Prosecuting Attorney Justin Kollar said proving an alleged violation in court beyond a reasonable doubt, even with the signed affidavits, could be time consuming and cost prohibitive for witnesses and county staff.

“We still have the same issues of it being a rather uncomfortable fit for the district court, for the criminal justice system,” Kollar said. “To me, this still seems like an issue that is very narrow to a particular situation and likely better addressed through the civil litigation process, where there’s different standards and rules that apply and more flexibility in terms of dealing with unique situations that may not apply across the community or across the island.”


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