Loading...
HomeMy WebLinkAbout 02/18/2015 Public Safety Committee minutes MINUTES PUBLIC SAFETY COMMITTEE February 18, 2015 A meeting of the Public Safety Committee of the County of Kaua`i, State of Hawai`i, was called to order by Gary L. Hooser, Chair, at the Council Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kauai, on Wednesday, February 18, 2015, at 9:16 a.m., after which the following members answered the call of the roll: Honorable Mason K. Chock Honorable Ross Kagawa Honorable KipuKai Kuali`i Honorable JoAnn A. Yukimura Honorable Gary L. Hooser Honorable Arryl Kaneshiro, Ex-Officio Member Excused: Honorable Mel Rapozo, Ex-Officio Member Minutes of the February 4, 2015 Special Public Safety Committee Meeting. Upon motion duly made by Councilmember Kuali`i, seconded by Councilmember Kagawa, and unanimously carried, the Minutes of the February 4, 2015 Special Public Safety Committee Meeting was approved. The Committee proceeded on its agenda item, as follows: Bill No. 2573 A BILL FOR AN ORDINANCE TO ESTABLISH A NEW ARTICLE UNDER CHAPTER 22, KAUA`I COUNTY CODE 1987, AS AMENDED, RELATING TO DECLARING A PUBLIC NUISANCE (This item was Deferred.) Committee Chair Hooser: The plan for this item is to have the Department of Health give a brief presentation and have some questions and answers on it. Then there are significant amendments that will be proposed. To get the process moving, can we get a motion to approve to put it on the table? Councilmember Kagawa moved to approve Bill No. 2573, seconded by Councilmember Yukimura. Committee Chair Hooser: I will suspend the rules and we will ask the representatives from the Department of Health, Mr. Hirai and Mr. Kastner, to please come forward. Good morning, gentlemen. Thank you for being here this morning. The amendments that are going to come forward are intended from my amendments to narrow this to fireplace burning within residences and smoke. Just so you know, there has been a lot of talk about food and other things like outdoor cooking, but the intent is to narrow it. May either one of you give an overview of your understanding of the situation, and then we could do some question and answer possibly? There being no objections, the rules were suspended. PS COMMITTEE MEETING 2 FEBRUARY 18, 2015 NOLAN HIRAI, Manager, Clear Air Branch, Hawaii Department of Health: Sure. Good morning. I am Nolan Hirai. I am the Manager of the Clean Air Branch from the Department of Health. Just to give you a background of what our office does is that we implement both the State and Federal Air Pollution Control Requirements for the State of Hawaii. We do this mainly by permitting stationary sources. These are power plants, boilers, diesel engines, and rock crushers. We have about three hundred fifty (350) to four hundred (400) sources that we have active permits, so these are the ones that we regulate on a routine basis. We also issue agriculture burn permits for bonafide agricultural operations. This is to burn the green waste. We issue about one hundred (100) to one hundred fifty (150) of these permits a year. We also maintain Hawaii's Ambient Air Quality Monitoring Network. We have about fifteen (15) fixed stations throughout the State that continuously monitors air quality. This is to ensure compliance with the Federal National Ambient Air Quality Standards (NAAQS) for...I think there are six (6) different pollutants. We do have one (1) station out on Kaua`i in Niumalu that is monitoring these pollutants. We also respond to a lot of complaints. Over the course of the year, we will probably respond to five hundred (500) or so of dust complaints. This is statewide by the way. We also received about the same amount of cane burning complaints on Maui and vice versa. Finally, we have enforcement capability to enforce both the Federal and State regulations. When it comes to fireplaces, it is exempt from our regulations. We have fixed resources and funding, so our efforts have always been towards the bigger sources. With fireplaces, we do not view it as a widespread concern. Outside of the situation on Mob Street, we really have not received too many complaints statewide over fireplaces. Currently, it is exempt and it is basically not regulated. The assumption to that exemption is that the fireplace needs to operate as a fireplace, so it should be burning only clean wood. With that, I am happy to answer any questions. Committee Chair Hooser: Thank you very much. Councilmember Kagawa. Councilmember Kagawa: Thank you for your testimony, Nolan. Fireplaces should only be burning clean wood and I think there are some allegations that perhaps one of the problems may be that the resident is burning other things besides wood. Is there any way for your office to prove that or verify that? Mr. Hirai: Right. I think in the past... this may be a couple of years ago, but we have investigated the homeowner. We are kind of at the whim of the homeowner. We do not actually have the authority to enter a private residence. If we are not invited into the home, we would not have access. But in this particular case, I think the inspector was invited and he did check out the premises and I think he found wood on the side of the house and what looks like wood that was burning in the fireplace. I think his conclusion was that the homeowner was burning wood. Councilmember Kagawa: Okay. Rod Yama went out there numerous times. In my own talks to him, he said physically forty (40), but what was he looking for? Did he have any tools in his bag to cure this problem where there is perhaps excessive burning going on and maybe it is to the point where you are burning just to irritate the neighbor, which now Logan is in that position. Do you have any tools for Logan to try to get the neighbors to get a little closer to some harmony? PS COMMITTEE MEETING 3 FEBRUARY 18, 2015 Mr. Hirai: Right. There is no magic tool. I think what Logan or what previously Rod did was try to be responsive to the complainant. He would go out, take a visual, and if it looks normal, then so be it. There is only so much we can do. Our role is really to implement the requirements. Because fireplaces are exempt, there is really nothing to implement. I think we try to be responsive and try to work with the two (2) neighbors to see if both sides can compromise, which sometimes it cannot. Councilmember Kagawa: Thank you. From the Department of Health Clean Air Branch, are there no suggestions or new technology like putting in a filter or some kind of extension that does not cost too much that possibly could get the smoke to go over the neighbor's house? Is there anything new out there that maybe we can— again, have more tools to try to help resolve the problem, other than trying to pass this kind of bill? Mr. Hirai: Right. We do not have tools per se, but obviously, there are other potential options, but we do not have the authority to require these options like burning gas instead of wood and things of that nature. Councilmember Kagawa: So there are no suggestions for putting a filter over the chimney? I have heard that over some suggestions in E-mails like, "Why do you not get an extension?" Does that exist? Mr. Hirai: I am not aware of that. There may be, but I have not really investigated. Councilmember Kagawa: Thank you for your answers. Committee.Chair Hooser: Councilmember Chock. Councilmember Chock: Thank you for being here. Do you have a little more information on the amount of complaints that we are having on the island? I was wondering if you could shed more light and share how many we have on average per year. The other question that I will throw out there now is what is the process? Does the Kaua`i Police Department (KPD) respond as well immediately? How does that get activated? LOGAN KASTNER, Environmental Health Specialist, Clean Air Branch, Hawaii Department of Health: Well, as far as for me for investigations, they always have the option to call KPD. If they do, I will actually try to get the reports from them and stuff like that. At this point, KPD will not really respond to any of these. I actually feel like I am more responsive than they are on issues that there are no rules for. If I did get a fireplace complaint, even though we do not regulate it, I do go out there and I do document it. A lot of times, when KPD is given, "Hey, there is a fireplace," a lot of times, they will not go out because they know there is nothing they can do. As far as my role, I try to do the best I can just to go out and document it at least, at minimum. If I find something that I feel is a problem, then it goes back to Oahu and we discuss it. If there is anything we can do, we talk about it. This does not just go for fireplaces; this goes for any issue. I get odor complaints. We do not do anything for odors, but if I get odor complaint, I go out there to try to find the source, and if I can, I send it to another department. If it turns out to be something that another department will handle, I will pass it along to them. PS COMMITTEE MEETING 4 FEBRUARY 18, 2015 Councilmember Chock: So how many complaints for this particular issue are we experiencing on this island by month or by year? Mr. Kastner: Since I have been here, I have only had two (2) fireplace complaints. Councilmember Chock: Two (2) fireplace complaints? Mr. Kastner: On this island, yes. Councilmember Chock: Okay. Have you found that whenever we have these complaints, they are in a specific area? Is it just one incident? I am trying to get a scope of what we are dealing with. Mr. Kastner: I think for me, I think what Rod went through, my predecessor, I think it kind of calmed down because of all the work he did for it. I do not think that the issue stopped, but I think I get less calls because of the work that Rod did on it and the results that came out of that. Councilmember Chock: What did he do? Mr. Kastner: Going out there as many times that he did... Councilmember Chock: And investigating? Mr. Kastner: Yes. Councilmember Chock: Okay. Mr. Kastner: I do not know if it is just because they are not aware of my presence on the island or not, but when I moved over here for this position, I expected to get thrown into this and I have actually have not had to deal with it too much. Councilmember Chock: Okay. So in your opinion, it is not isolated? There are different areas on the island? Mr. Kastner: No, it is isolated. Councilmember Chock: Okay. Kind of what Councilmember Kagawa was talking about, are there possibilities of looking at specifications like the height of the chimney that we might be able to consider that might alleviate some of these issues? Mr. Hirai: Obviously, the height of the chimney plays a role of where the plume goes. The higher it goes, the more widespread, but obviously, you are spreading it out further, so you may be causing another problem. Normally, the higher the better. It causes more dispersion, meaning it is more diluted as well. Councilmember Chock: What is the height now? Mr. Hirai: I do not know. PS COMMITTEE MEETING 5 FEBRUARY 18, 2015 Mr. Kastner: I am sure that it has to do with the Building Code. I am sure it is the Planning Department that requires the height. Councilmember Chock: Thank you. Committee Chair Hooser: Councilmember Yukimura. Councilmember Yukimura: Thank you very much for being here. Mr. Hirai, thank you for your very succinct and clear description of your scope of work of your agency. Does the State of Hawai`i have an air pollution control officer? Mr. Hirai: Not by that title. Councilmember Yukimura: Not by what? Mr. Hirai: I mean no. Councilmember Yukimura: No, you do not? Mr. Hirai: I would be the equivalent to that air pollution control officer. I think some of the other counties in California have that title. Councilmember Yukimura: I see. By function under the Federal Clean Air law, you would be the de facto air pollution control officer or the person who has the responsibility for implementing the Federal Clean Air Act. Mr. Hirai: Right. Councilmember Yukimura: Okay. Mr. Hirai: Obviously, I have bosses that... Councilmember Yukimura: Right. The purpose of your "no burn" days, is that per federal law? Mr. Hirai: That is a State law. Councilmember Yukimura: Okay. The State law in essence says what? Mr. Hirai: We do call "no burn" days when there is a widespread haze. There is a definition in our regulations that is something like five (5) miles, the visibility is impaired. I think each county does it a little different, but basically, it is mainly related to the vog. If there is widespread haze, we would go ahead and call a "no burn." Basically, what that means is that all the agricultural burning operations that we issue permits to would not be allowed to burn their green waste during this "no burn" period. Councilmember Yukimura: The whole reason for this is some relationship to public health, right? Mr. Hirai: Right, it is indirectly, so it is not tied to our air quality monitoring stations. PS COMMITTEE MEETING 6 FEBRUARY 18, 2015 Councilmember Yukimura: So it is not tied to the eight (8) pollutants you said or however many you said that your stations measure? Mr. Hirai: It is an indirect indication of basically particles in the air...the haze. It is a visibility assessment. We are just indirectly observing that the pollution level is not ideal and we do not want to... Councilmember Yukimura: Worsen it? Mr. Hirai: Yes;worsen it. Councilmember Yukimura: The reason why it is even on the radar screen and you do not want to worsen it is because those days affect public health. Mr. Hirai: Potentially. Councilmember Yukimura: I have a father-in-law from Chicago who is visiting and the vog days really...he is ninety (90) or ninety (91) years old and the vog days really appear to bother him. I think there are people throughout the community that are bothered by it. It is not a theoretical thing, right? I am sure the hospital records show that more people come in on those days. Mr. Hirai: I presume so. I am pretty sure, but technically that is not something that we would look at. Councilmember Yukimura: The reason for this law and this whole infrastructure of declaring "no burn" days is for a public health reason. Is it not? Mr. Hirai: Right. I guess the point I am making is that we are not looking at the fifteen (15) stations that we look at where the pollution level goes this high that we would call a "no burn" day, so that would be a direct indication of potential health problems. This is just visible. It is a cruder method; like I say, it is an indirect method of protecting public health. I am not sure if I am just playing with terminology here, but I think... Councilmember Yukimura: Indirect method of protecting public health? Mr. Hirai: Right. Councilmember Yukimura: Okay. I am going to make sure my cell phone is off too. Can everybody make sure their cell phones are off too? If things are generally bad for public health on "no burn" days, which is the whole reason why you would even restrict something as important as agriculture from burning on those days, would it be a problem to say "no fireplace burning on `no burn' days?" Mr. Hirai: Fireplaces are widespread and probably on a smaller source. I know in certain counties in the mainland, the fireplaces are subject to "no burn" conditions, but these are in areas where... they are actually in, I believe, nonattainment areas meaning... Councilmember Yukimura: Non what? Mr. Hirai: "Nonattainment," meaning they are exceeding the National Ambient Air Quality Standards. Basically, when they PS COMMITTEE MEETING 7 FEBRUARY 18, 2015 exceed the National Ambient Air Quality Standards, they actually have to reduce emissions to come into compliance or they cannot contribute to the exceedance. In Hawaii, based on our monitoring stations, we are in attainment. We are well-below the federal health-based standards. Councilmember Yukimura: Okay. So the issue of fireplace in residential areas is a micro environmental issue? It is not a community-wide, macro issue. Mr. Hirai: In general, yes. I would say so. Councilmember Yukimura: But you still say that somebody in a neighborhood cannot burn openly in a little pile of leaves on a "no burn" day? Mr. Hirai: Right, backyard burning is no longer allowed, so the only thing that is subject to the "no burn" day basically is the agricultural burning operations, which can be a larger scale operation. Councilmember Yukimura: Why is backyard burning not allowed? Mr. Hirai: Well, I think this goes kind of back a couple of years, but I think our conclusion was that there are alternatives to backyard burning like composting and recycling, so there is green technology out there; as well as we had issues of trying to regulate backyard burning. The agricultural burners would have to contact the fire dispatch before they light the field. For backyard burning, they just burn at any time. They could be burning trash or they could be burning anything, so it was really hard to regulate. That was the premise of why we put a ban to it. Councilmember Yukimura: So all of those premises seem to apply to fireplaces in residential area, too: hard to enforce and they could be burning trash, too. Why could you not include them in your regulations? Mr. Hirai: You mean ban fireplaces? Councilmember Yukimura: Well, possibly. Or just ban those that are not certified by the Environmental Protection Agency (EPA) standards. Mr. Hirai: We could, obviously. Like I said earlier, I do not think currently we view fireplaces in general to be a widespread issue. We rarely receive complaints from fireplaces statewide, with the exception of this one scenario. Councilmember Yukimura: Well, the police say that they had two hundred (200) complaints about smoke nuisance. I think I averaged it out to about— thank you— two hundred fifty (250) a year average complaints. I know of at least two (2). I visited one site; I have not visited the other regarding fireplace complaints. If they fit the same parameters of backyard burning, why could you not include them in the category? Mr. Hirai: Right. I guess we have to draw a line somewhere. You could bring in barbequing and a host of other things that we could regulate as well. I am not sure if we have concluded that that is the position where the State should go. PS COMMITTEE MEETING 8 FEBRUARY 18, 2015 Councilmember Yukimura: Right. Is there something in your rules where people can petition to amend your regulations? Mr. Hirai: There is nothing specific in the regulations, but anyone can go ahead and petition for a rule change. Councilmember Yukimura: If, in fact, there are examples of fireplace causing health problems, you are saying that it is feasible to amend the rules to include fireplaces. Mr. Hirai: I am saying that it is possible for us to... Councilmember Yukimura: Yes, that is all I am asking. Mr. Hirai: But with the recognition that our rules is going to apply statewide, so it is going to affect all fireplaces throughout the State. Councilmember Yukimura: But you could limit it to just densely populated residential areas. Could you not? I think everybody on this island agrees that for example, fireplaces in Koke`e, because of the spread-out conditions, are okay, but not where people are living fifty (50) yards apart. Mr. Hirai: Possibly. I am not sure. Normally, our regulations do not involve zoning issues. Without talking to our Deputy Attorney General, I think we may have the authority. I am not sure. Councilmember Yukimura: Okay. You said that this would apply statewide, which is something for all of us to think about. Are you saying that you have had no other fireplace issues statewide? Mr. Hirai: I am saying that we have very little. Councilmember Yukimura: Do you have a record of how many you have actually had? Mr. Hirai: Yes. I think we provided Councilmember Chock with some numbers. Councilmember Yukimura: Statewide? Did we see that? Mr. Hirai: I think we are missing Oahu because we could not crunch the numbers. Councilmember Yukimura: I am sorry? Mr. Hirai: No, with the exception of Oahu, we provided some numbers. Councilmember Yukimura: So you do not have numbers for O`ahu where there are one million (1,000,000) people? Mr. Hirai: Right, but with my conversations to my group, my monitoring section group, was that we do not receive too many fireplace complaints. PS COMMITTEE MEETING 9 FEBRUARY 18, 2015 Councilmember Yukimura: How many fireplaces are there on O`ahu I wonder? Mr. Hirai: I do not know. Again, fireplaces are exempt, so we do not know how many is out there. But we would respond to complaints if we received them. Councilmember Yukimura: Okay. Thank you. Committee Chair Hooser: Councilmember Chock, did you have a follow-up? Councilmember Chock: Yes. During the conversation on the "no burn" days, you mentioned that we do not fall into the same jurisdiction as some of the mainland neighborhoods or is it a question of attainment. On those days that we are experiencing high vog or haze, what triggers where we would fall into that where we could consider the possibility of no chimney smoke on those days? Mr. Hirai: Well, when it comes to whether we are meeting the National Ambient Air Quality Standards, the entire State is considered attainment. So even with the voggy days, we are meeting the National Ambient Air Quality Standards. There are some exceptions on Hawaii Island, the ones that are close to the volcanic activities, but all the other islands are well under the standards. Councilmember Chock: So even on our worse day, we still do not meet the requirements. Mr. Hirai: Right. Councilmember Chock: Okay. Committee Chair Hooser: Any other Councilmembers? Councilmember Kuali`i. Councilmember Kuali`i: I just wanted to thank both of you for being here for all the information shared. Councilmember Yukimura asked a few of my questions, so I got a lot of that information. When I look at some of the information provided by KPD, it is just lumped together, and like she was saying, it is a two hundred fifty (250) per year average of smoke nuisance complaints. But it is not that helpful unless it is broken down. You mentioned five hundred (500) or so dust complaints, but that was statewide, and you did not necessarily give a number, but you said it was minimal. Was that all smoke complaints? That would include smoke complaints, perhaps like the one you referred to with the chimney, and then other smoke complaints with the outdoor barbeque pits, smokehouses, wood burning stoves, wood burning hot water setup that people might have, and imu, or do you not even really track that? Mr. Hirai: Let me just read off what we got. I will go back to 2012 because I think that was the spike year. We had ninety-eight (98) complaints on Kauai: three (3) were for open burning; eight (8) were for agriculture burning; seven (7) were from cooking; seventy-three (73) were from fireplaces, which seventy-two (72) being the one from Molo Street; and seven (7) on water heaters. If PS COMMITTEE MEETING 10 FEBRUARY 18, 2015 I go all the way back to last year, I think all of the numbers have decreased somewhat. Councilmember Kuali`i: Have increased? Mr. Hirai: Decreased. Councilmember Kuali`i: Okay. Mr. Kastner: I can give you the last year since I have been here. I had four (4) cooking complaints as far as smoke goes from cooking operations and thirteen (13) that had to do with somebody either open burning illegally or one of my permit holders. Councilmember Kuali`i: Just seventeen (17) complaints total? Mr. Kastner: Yes, out of sixty-eight (68) complaints that I responded to. So thirty-seven (37) of them were for dust and the others were mist, odors, and cruise ships. Councilmember Kuali`i: But seventeen (17) for smoke. That is over what period? Mr. Kastner: That was all of last year. Councilmember Kuali`i: All of 2014? Mr. Kastner: Yes. Councilmember Kuali`i: Thank you. That is helpful. Committee Chair Hooser: Councilmember Kaneshiro. Councilmember Kaneshiro: I know you guys mentioned that you do not regulate chimneys, but say you did go out there because you had a complaint, the guy let you on the property, and you saw rubbish next to the chimney or rubbish in his chimney; what would the next step be? Mr. Hirai: Well, I think we would definitely stop that activity. It will probably be referred to our enforcement section and the outcome of that could be anywhere from a "slap on the wrist" to monetary penalties. I think the whole premise of fireplaces being exempt is that the fireplace has to operate as a fireplace. If it is burning rubbish, then I think that exemption no longer applies and the homeowner would be in violation. Councilmember Kaneshiro: Do you know of any other solution as far as... of course we are getting a lot of complaints from a particular chimney. The smoke is bothering the neighbors. Is there any way for them to resolve it, say in court like civil court besides having you guys? It is not something you guys regulate either. Mr. Hirai: Right. I assume that going to court is always an option. There is mediation. I do not know. I think in this business, and Logan can attest to this, is that we run into a lot of neighboring feuds and a lot of times, a lot of cases can be resolved and in some cases it cannot. It gets really PS COMMITTEE MEETING 11 FEBRUARY 18, 2015 difficult. The only thing we can do is make sure that everybody is following the regulations as they exist. That would be what Logan's role would be in this particular scenario. Unfortunately again, fireplaces are exempt. The only caveat to that is that it has to be operated as a fireplace. Even then, like I said earlier, we do not have the legal authority to enter a private residence, so it does make the job a little bit more difficult. Councilmember Kaneshiro: Thanks. You kind of answered my question and I should have worded it better, but since you have been around and you have probably seen neighbors fighting and things, have you seen any other solutions that have come out of it as far as what direction they have taken like mediation? Mr. Hirai: No. I think in most cases, it is unfortunate, but over time it just slowly disappears. They could just be giving up or someone moved away. It is kind of unfortunate, but it is a tough situation. I sympathize with the affected parties. I do not know what the solution is. Councilmember Kaneshiro: Thanks. Committee Chair Hooser: Councilmember Kagawa. Councilmember Kagawa: I guess this question is for you, Logan. I am just trying to reiterate what I heard. In 2014, there were seventy-three (73) chimney related complaints and seventy-two (72) came from... Mr. Kastner: That was 2012. Councilmember Kagawa: Okay, we are talking about 2012. So going back to 2012, you had seventy-three (73) complaints and seventy-two (72) came from the same place. Mr. Kastner: Yes. I did not, it was Rod Yama. Councilmember Kagawa: Where did the other one come from? General area like Kilauea? Same area? Mr. Kastner: I would have to check. I do not know. Councilmember Kagawa: So maybe two (2) complaints in 2012 or maybe only one. That year in 2012, you had four (4) cooking complaints? Mr. Kastner: No. The stuff that I read you was from last year. Councilmember Kagawa: Last year how much... Mr. Kastner: Last year, I had two (2) complaints from the chimney. Councilmember Kagawa: From the same place? Mr. Kastner: One was from the known place and the other one was from the same area and it was from an anonymous complainant. I drove around the area to investigate it and I could not locate the source. PS COMMITTEE MEETING 12 FEBRUARY 18, 2015 Councilmember Kagawa: Okay. What about cooking? How much did you have last year for cooking? Mr. Kastner: Four (4). Councilmember Kagawa: You had four (4) complaints for cooking. Were they all from the same area? Mr. Kastner: A couple of them were from the same individual. One of them was from another individual that was operating a smoker. That one was resolved. I passed it to the sanitation department and it actually got resolved based on sanitation rules. Councilmember Kagawa: So you said two (2) were from the same area and the other two (2) were separate. Mr. Kastner: Yes. One was an imu I believe. Councilmember Kagawa: We are not going there. So you had two (2) from one area, one from another area, and another one from another area, so we had three (3) different instances. Mr. Kastner: Yes. Councilmember Kagawa: So we are getting more complaints about smoke from cooking then chimney, basically, not if we are going by quantity, but if we are going by different instances, right? Mr: Kastner: Yes, I mean I would imagine that there are nuisance from more than what I investigated from cooking, but a neighbor to neighbor probably understands what they are doing and they do not call me. Councilmember Kagawa: As far as if you go back to the old data, the number of frequencies of the same neighbor being really irritated or affected by the smoke is a lot more than the cooking ones. I am just worried that these cooking ones are going to get dragged in if you do any kind of legislation. I do not know if you guys have a response to that. You kind of touched upon that whether we even want to go there, but we do not want go there with the cooking of the imu and barbeques. Mr. Hirai: We do not want to either. Councilmember Kagawa: Yes. Thank you, Chair. Committee Chair Hooser: Councilmember Yukimura, and then I have some questions, too. Councilmember Yukimura: Yes, thank you. Could you submit those numbers that you gave us verbally to our Staff? Thank you. I would just like to suggest that the two (2) complaints that you got over last year regarding smoke from fireplaces would say a lot because there has been such a perceived lack of responsiveness from the Department of Health that people have kind of given up making complaints. That is one thing to consider in looking at the statistics. My PS COMMITTEE MEETING 13 FEBRUARY 18, 2015 question is how can you stop the burning of rubbish in a fireplace if fireplaces are exempt from your regulations? Mr. Hirai: We cannot really. On the practical purposes, we cannot, just like we cannot ensure that everybody is not burning rubbish in their barbeque. There are some things that... Councilmember Yukimura: Arguably, you should rewrite your regulations to say that fireplaces are not exempt unless they are burning wood, but then my next question is what if they are burning wet wood, which has a terrible impact in terms of smoke? Mr. Hirai: I agree. You are correct. We could clarify that in our rules. We could also do some outreach as well. There are different avenues. Councilmember Yukimura: Well, outreach does not work if you do not have any enforcement powers. Why should they listen to you? Mr. Hirai: Right. So even if we put it in the rules, again, we do not... Councilmember Yukimura: We have just learned from having barking dog rules that if you have rules, there is some sense in educating and enforcing— there is some sense in educating because you can enforce. Mr. Hirai: Right. Councilmember Yukimura: Again, if you say that you exempt fireplaces only if they operate as fireplaces, how do you ensure proper construction and maintenance of a fireplace? Mr. Hirai: We do not do any of that. Councilmember Yukimura: Okay. You do not have legal authority to enter a home. Could you not put it in your rules that you could enter a home with a search warrant? Mr. Hirai: We do have the ability or authority to acquire a search warrant. Obviously, there has to be some cause for it. I assume that we cannot just get a search warrant on a routine basis. Councilmember Yukimura: If people have gone to the hospital and say that they feel it is related to smoke and that maybe burning rubbish or has a chemical smell or something, you cannot get a search warrant? Mr. Hirai: I am not sure. I am not aware of doing that. Councilmember Yukimura: Okay. Thank you. Committee Chair Hooser: If there are no other questions, I am going to ask just a few. Most of them have been asked. Again, thank you for coming here. I know that you have lots of work to do, you are under resourced, and lots of people around the State need your help. I appreciate the time you are spending with the PS COMMITTEE MEETING 14 FEBRUARY 18, 2015 Council, both of you. The purpose of "no burn" days, just to restate, is a health purpose, right? "We have a lot of haze, so stop burning because it affects people's breathing," and stuff like that. That is why we have "no burn" days. Mr. Hirai: Right. Committee Chair Hooser: The reason similarly to why we do not let people burn outside; similarly it is health. Mr. Hirai: Right. Committee Chair Hooser: I just want to be clear on that. With regards to the number of complaints that we talked about the different numbers, what about the severity of complaints? The complaints we are dealing with now about fireplace burning is one where the individuals show letters from doctors that it impacts their health apparently or very seriously. Were there other complaints that you get that severe in nature on Kaua`i? Mr. Kastner: For me, it is mostly dust. I do get complaints about health issues that are related to dust. Most of the time, it is when you are next to a long-term construction project. In that case, in our rules, I have taken action. Committee Chair Hooser: How many years does the fireplace issue that we are discussing go back? You quoted 2012. Was it 2010 or 2011? Do you know when the complaints started? Mr. Kastner: I only went back to 2012 because I sat there and read through all of the complaints; all of them, not just fireplace; just to • familiarize myself before coming out here. I went back to 2012. Committee Chair Hooser: Okay, so that is three (3) years or so at least, if not longer. Just to be clear on the law, if my house is inundated with smoke on a daily basis that makes me and my children ill, and I go to the doctor, and this is day-after-day, year round; is there no legal remedy from the State of Hawai`i that I can go seek? The Clean Air Branch cannot help me at all? Is that what you are saying? Mr. Hirai: I would not say "cannot help you at all." Obviously, our normal role is to ensure proper implementation of the existing rules. Normally when we have health complaints, we would go back to the source and make sure that the source is operating in compliance with whatever the regulations are. The Clean Air Branch would not necessarily try to address the health complaints. The Department of Health does have other capability with medical doctors, toxicologists, and whatnot. There are other ways to potentially look into claims about health impacts and concerns, not necessarily from the Clean Air Branch, but it may be through the Clear Air Branch we can refer some of the cases. Again, what we do is try to make sure that whatever the complaint is on is operating in conformance. Committee Chair Hooser: In this particular situation now, there have been years in complaints and notification to the Department of Health and the Department of Health has not been able to stop the smoke from coming into these folks homes on a daily basis. Councilmember Yukimura suggested the option of PS COMMITTEE MEETING 15 FEBRUARY 18, 2015 petitioning the rule change and one of the persons affected did petition and did ask the Department of Health to change the rules. Correct? Mr. Hirai: I am not sure. Committee Chair Hooser: I have a copy of the letter here. It was in May. The Department basically said, "We will see what we can do. The County can do this." Just for the record, they have in writing asked the Department of Health to amend the rules just because that issue came out. A big part of this is for the public record. It is clear that the Department of Health does not have the legal authority, in my opinion, at this particular point in time, to deal with this issue in terms of legal authority. Like you said, fireplaces are not regulated and you do not have the power to go into somebody's house to see what they are burning. So there is no legal option for fireplaces in this particular situation, I think, is the point that I would like to make. If you could differ with me on that, you are welcomed to do so. Mr. Hirai: No, I think that is a good assessment of where we stand currently. Obviously, I do not recall the petition for a rule change, but we can go ahead and look at if the petition had recommendations or even if the Council has recommendations, we will definitely consider it. We are actually looking at doing some rule change in the relatively near future. It could be opportune time and I am not promising anything. Again, our rules— the concern that in general that we would have is that our rules basically applies statewide. It is hard to address a single situation with statewide rules. We are open to suggestions. Committee Chair Hooser: Again, this came about... we were trying to solve this issue for some time now and that County Attorney suggested to me, "Why do we not petition for a rule change?" So I worked with one of the persons affected and said, "Let us do this," but it was a dead end. But I appreciate you being open to possibly something in the future. How long do rule changes take? Mr. Hirai: At least one (1) year, more like two (2) or more. Committee Chair Hooser: More like two (2) or more, I would say, is my experience. That is all the questions that I have. Councilmember Yukimura. Councilmember Yukimura: Since you said you were open to suggestions from the County, I would like to suggest that at minimum, you just say that fireplace burning is not allowed on "no burn" days. Based on your records, it looks like over the last two (2) years, it has been an average of thirty (30) days. It might be more depending on Pele, but it is not much relief, but it still is thirty (30) days of relief during the year. It is such a minimal effort, but at least— because I do not see any difference between fireplace burning, yard burning, or anything else like that. If the conditions are not good atmospherically, then we should not allow any burning. To me, that is a very simple rule change. Mr. Kastner: The only thing that I would like to clarify is that for the agricultural burning, I think you are underestimating the size of it a lot of times. I am not saying that we should not do this or anything, but you keep on saying like small piles, but a lot of permit holders that I go to... we are talking pile size of cars or bigger... PS COMMITTEE MEETING 16 FEBRUARY 18, 2015 Councilmember Yukimura: I understand, but I am talking about backyard burning. That is comparable to fireplace burning and you have banned that. Mr. Kastner: I think a lot of it has to do with the rubbish... Councilmember Yukimura: Because it is caused cumulative impact. A lot of small fires will create the same effect of one big fire. To me, it is not a complete solution for the families, but it is so aligned with your policies and it is a little bit of help to these families. Mr. Hirai, do you have a response? Mr. Hirai: Well, I do not have a response. Like I said earlier, we will consider whatever suggestions. My only comment is that fireplaces would be a lot more difficult to enforce and apply to "no burn" because the current practice is, at least for the agricultural burning facilities that have permits, they are required to call the Fire Department before they light the fire. That way, they can get information on whether it is a "no burn" or not. For a homeowner, I guess we could... Councilmember Yukimura: Do you not have a posting somewhere that people can go to see whether it is a "no burn" day or not? Mr. Hirai: I guess we could. Right. Councilmember Yukimura: You are telling everybody on this island that you cannot burn in backyards. How do you enforce that? They do not call in for permits every time they do a backyard burning, right? If I want to burn in my backyard—you ban it totally? Mr. Hirai: Yes. Councilmember Yukimura: Excuse me. Still, if you post it, all of you have to do is go and look to see if there is stuff coming out of the chimney. If it is burning, it is a violation. It is so easy to enforce. Mr. Hirai: Right. It may drive our... Councilmember Yukimura: Thank you. Committee Chair Hooser: We are going to move on right now. Thank you gentlemen for coming. I realize the difficult job that you have and I appreciate you bringing some clarity to the limits to the purview of the Department of Health Clean Air Branch. You are welcomed to sit in the audience and observe or to depart. It is totally your choice. Thank you again for coming. I know some Councilmembers had some other questions for other possible resource people, but what I would like to do is entertain amendments first. That way, if the Prosecutor, Fire Department, and others want to comment, they can comment on the amended version. Thank you very much. I will call the meeting back to order and ask for a motion to amend for an amendment that I have prepared. There being no objections, the meeting was called back to order, and proceeded as follows: PS COMMITTEE MEETING 17 FEBRUARY 18, 2015 Councilmember Yukimura moved to amend Bill No. 2573 as circulated, as shown in the Floor Amendment which is attached hereto as Attachment 1, seconded by Councilmember Chock. Committee Chair Hooser: This amendment is going to be circulated, and then I will describe the amendment for the public. Then as we go forward and finalize, then we will further explain it and we can comment, hopefully on the amended version because that is the one that we will now be talking about. Councilmember Yukimura: Mr. Chair? Committee Chair Hooser: Yes? Councilmember Yukimura: I just want to say that I have an amendment also, which actually incorporates— first of all, let me just explain that the amendment that I just moved is a courtesy to the Chair. It is really his substantive amendment, but as the Chair, he cannot propose an amendment, so I am proposing it for him, which I am happy to do. I have another amendment that is quite different, but incorporates some of the parts of your amendment. If the Committee feels that they want to pass your amendment, I am fine with it. I would like to just circulate my amendment, so people can see what I am proposing. It is more along the lines of what in law they call "strict liability." Committee Chair Hooser: If I may, we have been down this path a couple of times before on other bills, so what is the pleasure of the Committee? We could entertain one amendment at a time, pass it, and then put the other amendment on top of it. We can float both amendments at the same time, maybe take a little break, and come back or we could just move forward. What is the pleasure of this Committee? Do you want to put both amendments on the floor? Councilmember Kagawa. Councilmember Kagawa: I think both of your amendments basically seek to do the same thing as far as what I am hearing, which is to just try to restrict it only to fireplace burning within residence. I think we can decide what amendment we want better at a later point, but still, we need to hear some answers on the main objective of how effective it would be to only restrict it to fireplace burning, and I would like to hear answers from Justin. Committee Chair Hooser: Okay. Why do we not do this? Why do we not discuss the amendment that we have on the floor right now because I think it tends to accomplish what we all want to accomplish, or many of us do anyway, so let us discuss that amendment and get comment from the Prosecutor or whoever on this. I just described it briefly. It is up there, so thank you, Staff. You can see in the yellow... I will start at the top. I will just read it out loud, "It is declared to be a public nuisance and unlawful for any person, firm, or corporation in the County of Kaua`i," then we add in "within or upon any property residentially zoned R-4 or higher density." So R-4 or higher means quarter acre or smaller in general. That is the County rule. It does not affect any agricultural land, Koke`e, or half acre lots, R-4 or higher density. It is intended to be for houses that are close together. I will read on, "to intentionally, knowingly, or recklessly cause, permit, or allow to escape into the open air, smoke, soot, or poisonous gases." We are deleting dirt, dust, or debris. We are trying to narrow this down to really what the issue is, which is smoke and soot. The intention is to delete dirt, dust, or debris. "Of any kind from any smokestack, chimney, or flue." We are deleting "or incinerator, or any opening PS COMMITTEE MEETING 18 FEBRUARY 18, 2015 of any building, or from any smoldering or open fires." This is strictly within the house; smoke and soot within chimney, smokestack, or flue. Then we add in to be very clear, "originating within the residence," so it is not in a carport and not in the back porch; it is within the residence. "Under the person's, firm's, or corporation's charge or control, in such a manner or in such a place as to cause injury to the health..." We are deleting "damage to property." We are making this strictly a health issue, and then we say, "Prior to issuance"— this is an important addition— "Prior to issuance of any citation, the complaining witness must first provide an affidavit detailing the incident at issue and identifying the source property located within the area and must be accompanied by an affidavit from the person's physician detailing negative impact to the person's health..." This means that the person who is filing the complaint who is calling the police has to have something in writing from their doctor stating if there is harm to their health. So it is not frivolous complaints just because somebody is in a bad mood. This is a physician. Lastly, to be absolutely clear on the imu issue, "This Article shall apply only 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, or preparation of `smoke meat'; agricultural operations; religious activities, including but not limited to the burning on incense." I know that the burning of incense was an important issue for some people. "Or any activity that has been explicitly allowed by the State of Hawai`i Department of Health," etcetera. In the penalties section down below, the fine was reduced to two hundred dollars ($200) and it is now a violation, instead of a petty misdemeanor. This lowers the threshold in terms of the criminality of the whole thing, but it is still intended to be... if you have a two hundred dollar ($200) fine, that is meaningful enough in my opinion, to make somebody rethink their actions. That is the amendment that is being proposed by me with the courtesy of Councilmember Yukimura. Before we ask, are there any questions from the members about it before we bring in a resource person? Councilmember Kagawa. Councilmember Kagawa: Thank you, Chair. Your explanation and amendment is crystal clear for me of what you are intending to do. I guess my question is for Councilmember Yukimura's amendment, what is the major difference in a nutshell compared to Councilmember Hooser's amendment, and then we can move forward I guess. Committee Chair Hooser: That sounds good. Thank you. Councilmember Yukimura. Councilmember Yukimura: Let me explain before I pass it out. Most of the provisions that are in Councilmember Hooser's amendment are also in mine like the exclusion of imu, etcetera, and the limitation to dense residential areas. I was trying to address the issue of proof and my amendment does not require a proof of damage to health. It just says that a fireplace cannot be operated unless it is certified by EPA or burns pellets. There is another provision that we took from the Yolo-Solano Air Quality District rules that just says that you have to have a fireplace that is properly certified. That is all. Councilmember Kagawa: I have a question for Councilmember Yukimura. Committee Chair Hooser: Sure. PS COMMITTEE MEETING 19 FEBRUARY 18, 2015 Councilmember Kagawa: So you took that from a municipality in Solano? Councilmember Yukimura: It is an air quality district, so it is a district in California that is designed to manage air quality. Councilmember Kagawa: So you used that language? Councilmember Yukimura: Yes. It is mainly a regulation of the fireplace and it is going into another area that we have not really explored. I am remembering some of the testimony about enforceability and I thought it might be simpler to enforce. Councilmember Kagawa: Thank you. Councilmember Yukimura: But I am more than happy to just have us focus on Councilmember Hooser's amendment right now and hear the testimony. Committee Chair Hooser: Thank you. I appreciate the work that Councilmember Yukimura has put into this, first of all. My intent is to narrow it as much as we possibly can because there are lots of fireplaces and are for areas that are not bothering people. My intent is not to regulate all of those fireplaces; only the fireplaces that hurt someone's health. I think that is one of the biggest differences. I agree that down the road as our community grows and more and more of these things happen, we have to look at maybe what is being burned in the fireplaces themselves. But I think in this point in time, my intent is to narrow it to fireplaces that are hurting people's health in situations. Councilmember Kagawa: If I could make a suggestion, we need a caption break in ten (10) minutes. Can we have the Police, Fire, and Prosecuting Attorney review it for maybe ten (10) minutes? We can take a caption break now and start at 10:30 a.m. Committee Chair Hooser: That is a good suggestion. If no one objects, let us do that. Let us call a recess for ten (10) minutes. There being no objections, the meeting recessed at 10:19 a.m. The meeting reconvened at 10:31 a.m., and proceeded as follows: Committee Chair Hooser: I am going to be calling the meeting back to order. We have the initial proposed amendment on the floor and we had some preliminary discussion on that. Councilmember Yukimura also proposed her ideas. What we are going to do now is hear from some resource people. We have Dr. Weiner here, a physician, to speak. We have the Prosecutor, Fire Department, and Police. Let us bring them up one at a time. Dr. Weiner, may you please come forward? After that, we will have public testimony, and then we will go back and further discuss the amendment. Dr. Weiner, I appreciate you being available today. Can you introduce yourself? The floor is yours. There being no objections, the rules were suspended. ROBERT S. WEINER, M.D.: Dr. Robert Weiner. I have practiced medicine here on Kaua`i since 1976. I have spoken to this Council before about PS COMMITTEE MEETING 20 FEBRUARY 18, 2015 smoke. At that time, it was about secondhand smoke from cigarettes. I think here, we are talking about a possibly much more dangerous issue because you can produce a whole lot more smoke from a fireplace than you can from a cigarette. The County Council that I see here looks very different than the groups.I spoke to in the 70s and early 80s. I only see one (1) young lady that I recognize and that is probably because she is a nonsmoker and I believe quite a few other Councilmembers have died of smoke related illnesses over this same period of time. As I mentioned, I think a fireplace could produce a tremendous amount of smoke if it is not done properly. I am a little fearful about a physician's testimony to lung disease being the end point of enforceability because the average patient who comes in with a complaint about his breathing has often lost fifty percent (50%) of his breathing capacity already at that point and he is often on target for it to continue getting worse. Even if the smoke were stopped at that point, he may continue to deteriorate and probably will not have any improvement. Other cases where it is causing some coughing or maybe an exacerbation of asthma where they get asthma attacks. That may not be the case, but a lot of the patients would already have irreversible disease. We just came back from Bhutan, where not too long ago like other third world countries, cooking was done indoors with dry wood and the smoke stayed in the house. The average life expectancy in those countries was around fifty (50). Now, they are rapidly installing stoves with chimneys in these countries and the average life expectancy has now rapidly gone up in those countries to seventy (70). Smoke from a fireplace could potentially be very dangerous. I think it should be limited temporarily, so that people do not burn the fireplace all day long. They could be allowed to burn it four (4) or six (6) hours a day. The wood should definitely be dried, aged, and kept dry until it is burned. These inserts may possibly work. I do not know much about that; EPA type inserts and what they would cost. I think there is a lot of potential for harm, especially when the air is not moving on "no burn" days. Absolutely, I do not think people should be burning their fireplace. Are there any questions? Committee Chair Hooser: Thank you. Councilmember Yukimura. Councilmember Yukimura: Dr. Weiner, thank you for being here. In the amendment that is before us that Councilmember Hooser has created, it just requires an affidavit detailing any negative impact to the person's health that is occurring from the smoke, soot, or poisonous gasses. Do you, as a physician, see that as being a problem in terms of delivering such an affidavit? Mr. Weiner: No, I would deliver it and it would not be a problem. The only problem is that when people present when they realize that they have a problem with their breathing, they have usually lost about fifty percent (50%) of their breathing capacity at that point and they are not going to get it back. In fact, it may continue to get worse. If people always had an early warning system in their lungs, it would be great, but they do not. They do not realize that their lungs are being affected until they have lost quite a bit of their breathing capacity. Councilmember Yukimura: So your suggestion is that maybe in lieu of or in addition to requiring a showing of impact on health, we should limit the time that a fireplace can burn to several hours a day. Is that what I heard? Mr. Weiner: Yes. That was one thing that occurred to me. Most people do not need to burn all day long because it is actually not effective in heating a home. It actually cools a home unless you have a specially constructed fireplace that has an air intake below the fireplace and an air exit above the PS COMMITTEE MEETING 21 FEBRUARY 18, 2015 fireplace, so that hot air can circulate back into the room. Most of the time, a tremendous amount of heat and air goes up that chimney creating a vacuum in the home and pulling in fresh cold air from outside the home. So most commonly the way a fireplace is used, it cools the home. The only place where you can be warm is if you are sitting right in front of the fireplace, and you can do that by putting on extra clothing, too. Councilmember Yukimura: Thank you. Mr. Weiner: Sure. Committee Chair Hooser: Councilmember Chock. Councilmember Chock: Dr. Weiner, thank you for being here. Have you seen a lot of incidences from the community on this issue with the possibility of them being affected by chimney smoke? Mr. Weiner: I cannot really say where it is from because I have seen a lot of people with lung disease secondary to smoke. Most of the time, we assume it is from cigarettes, but to what percent it is environmental, from chimneys, or from their workplace, or their cigarettes; it is almost impossible to say in any particular case. Councilmember Chock: So when a patient comes in— can you help us walk through the process of how you would get to the affidavit? A patient comes in and they are complaining because they cannot breathe and they think it has something to do with the chimney smoke. Is that enough to get the affidavit or what kind of evidence do you need as a doctor to ensure that there is a direct correlation? Mr. Weiner: Well, I do not know what I am signing here in terms of an affidavit. I could give an affidavit saying that the person has, in fact, lung disease. But for me to give an affidavit that said it came from any particular source is another issue. I am assuming that your amendment had to do with just the fact that the person suffering from some sort of lung disease, but how would I know as a physician what the source of that would be for sure? Committee Chair Hooser: No. It is intended to be saying that there is a negative impact to the person's health that is occurring due to the smoke, so it could be exacerbating lung disease. I will read the words: "Which must be accompanied by an affidavit from the person's physician," essentially a statement signed by the physician "detailing any negative impact to the person's health that is occurring due to the smoke, soot, or poisonous gas." Mr. Weiner: We could say that a person who has lung disease—that is it— should not be subjected to smoke. That does not mean that we have a forensic ability to say exactly how their lung disease occurred. Just that they have lung disease, we can tell that quite objectively and we can say that those persons should no longer be subjected to any smoke that could possibly be protected from. Councilmember Chock: Thank you. PS COMMITTEE MEETING 22 FEBRUARY 18, 2015 Committee Chair Hooser: Any other questions? Councilmember Kagawa. Councilmember Kagawa: Thank you. Dr. Weiner, it has been about forty (40) years when you used to be my physician at `Ele`ele Dispensary way back in the 70s. I guess along the lines of Councilmember Chock, I think what the Prosecutor probably is going to say is that they need some proof that the smoke is affecting the residents' health negatively, and as a physician, can you provide that kind of document that will hold up in court that says that the smoke is negatively affecting the health? Mr. Weiner: Well, I do not know. We will just have to test it. If it is all going to be adjudicated in courts, we would have to have people who say they saw visible smoke, certainly if you are living in an environment that is grossly smoky. If there is smoke across the room, obviously, that is not healthy. If this person has lung disease, you have to assume that the smoke obviously has something to do with it because it is all cumulative. Also, if the person also smokes a couple packs of cigarettes a day, then that kind of cuts down their ability to say it was due to a chimney next door because they are a smoker. Obviously some of their disease is probably from smoking cigarettes, so it is going to be different in every case. Councilmember Kagawa: Thank you, Doctor. Committee Chair Hooser: Councilmember Kuali`i. Councilmember Kuali`i: Thank you, Dr. Weiner. So in this amendment, it specifically says, "An affidavit detailing any negative impact to the person's health that is occurring due to the smoke, soot, or poisonous gasses." So it is a "cause and effect." You would be signing an affidavit that says the health is this situation and it is caused by smoke, soot, or poisonous gasses. Do you have a way of determining whether it was any of those three? Mr. Weiner: Like I say, that would be problematical for me to say exactly what the person's lung disease is due to it, but I could say without question that some of these patients have lung disease and that exposure to any further smoke would be detrimental to those patients. Councilmember Kuali`i: That is what you meant. Now I understand that not that it is a cause and effect thing, but now that you determined they have lung disease, for their future health, they should avoid smoke. Mr. Weiner: Correct. Councilmember Kuali`i: Of any kind. Mr. Weiner: Yes. Councilmember Kuali`i: Thank you. Committee Chair Hooser: Councilmember Kagawa. Councilmember Kagawa: Thank you, Chair. How many different patients over...we had sugar plantation burning a lot in the 70s, but roughly, how PS COMMITTEE MEETING 23 FEBRUARY 18, 2015 many different patients per year would relate or tell you that they feel like their health is deteriorating and their breathing or what have you because of smoke; whether it would be a fireplace, imu, sugarcane, or what have you? Are there a lot that comes in? Mr. Weiner: It is very seldom. Back when they burned the cane fields, they would only burn each cane field every eighteen (18) months and when the smoke got close to your house, you got out of your house, and then in a couple hours it would have burned, and then you go back in the house. You can smell something, but there would not be smoke around it anymore. They did not burn when there was no wind. They did not burn when there was high wind. They only burned when there were certain winds in the right direction. It was never a problem. I never heard of anybody complaining about the smoke being a problem, except maybe an asthmatic here and there who would say that their asthma was worse today because they burned near their house, but that was usually quickly reversible. I do not recall anybody who developed really bad lung disease, except for the smokers. It would have to be pretty rare, but can I foresee that that would happen from fireplaces? Yes, because you can burn a tremendous amount of nasty stuff in a fireplace, especially in these zoned neighborhoods where houses are close together. It could potentially be a big problem. Councilmember Kagawa: Thank you for your answers. Committee Chair Hooser: I have a question or two. I believe when we started out the conversation, you started out saying essentially that smoke is bad and unhealthy, and now we are transitioning to demonstrating that it is unhealthy to the individuals impacted by the smoke. If I am living in a neighborhood and my home is inundated with smoke on a regular basis, and I am coughing and my children are coughing, and my son has asthma, and then I go to the doctor; could you write me statement saying that based on my description of the smoke that this is exacerbating or causing health issues, or does it have to be lung disease? Mr. Weiner: No. I think if you have pulmonary type symptoms and there was a lot of smoke around your house, I could say that that is not good for your symptoms. The wording is critical. Committee Chair Hooser: So in that situation, you might be able to write me a letter attesting to negative health impacts? Mr. Weiner: Correct. Committee Chair Hooser: Okay. Thank you. Other questions? Thank you, Dr. Weiner, for taking time out of your schedule. Mr. Weiner: Thank you. Committee Chair Hooser: Can we get the Prosecutor from the Prosecutor's Office up here? Thank you very much for taking time out of your busy day and I take it that you are familiar with the proposed amendment, somewhat. JUSTIN F. KOLLAR, Prosecuting Attorney: Yes. For the record, Justin Kollar, Prosecuting Attorney. I did have the opportunity to look over the amendment that Councilmember Yukimura introduced for you, and then Councilmember Yukimura's own proposed amendment. Yes. PS COMMITTEE MEETING 24 FEBRUARY 18, 2015 Committee Chair Hooser: Why do you not give us your "elevator speech" on your thoughts about the amendment? Mr. Kollar: My first impressions would be that first of all, they are well intentions and we are all here because we recognize that it is a bad situation that the families on Molo Road are in and we are all compassionate towards that situation. We want to see a good resolution to that situation. These amendments do narrow the scope of what the bill is, but it does not really address the concerns that our office highlighted in the written testimony that we submitted back in the first reading, I think it was. We still have a situation where we need to go into court and prove beyond a reasonable doubt all the elements of this offense. All the affidavits in the world do not relieve us of that burden. Committee Chair Hooser: Can you hold on for one second? I need to be clear. This is a violation. Is that beyond a reasonable doubt or is that substantial evidence? Mr. Kollar: We would approach this as beyond a reasonable doubt. Committee Chair Hooser: Even though it is a violation and not a petty misdemeanor. Mr. Kollar: Even though it is currently as drafted just provides for a fine, yes. Committee Chair Hooser: Right. • Mr. Kollar: We would look at that as something we need to prove beyond a reasonable doubt when we go to court, unless the court tells us otherwise. In this situation, we could get an affidavit and we still have to bring the doctor to court, even if this is was just by a preponderance of the evidence, we would have to bring the doctor into court. You are looking at a day in District Court to do the trial. Who knows if things get continued— that often does happen in the courts, so you are still looking at "eating up" a tremendous amount of a doctor's time. That is a concern. We are still looking at the same issues of expert testimony. We still have to pay the doctor for his time to come to court. Now it is something that is a violation; we are going to get a two hundred dollar ($200) fine as the penalty for the offense, and here we have expended possibly thousands of dollars or at least hundreds of dollars to bring the doctor to court, have the doctor testify on the witness stand, and go through the entire process. We still have the same issues of this being a rather uncomfortable fit for District Court, for the criminal justice system. To me, this still seems like an issue that is very narrow to a particular situation and might be better addressed through the civil litigation process where there are different standards, different rules that apply, and a lot more flexibility in terms of dealing with unique situations that may not apply across the community or across the island. That is my initial read on it. I have some questions, but Councilmember Kagawa, you may have the floor. Councilmember Kagawa: Thank you, Chair. So you are saying that basically under the premise that the accused could say, "I am not guilty. Can they prove that their health is being impacted by my chimney smoke," and that is where you say the problems... PS COMMITTEE MEETING 25 FEBRUARY 18, 2015 Mr. Kollar: Well, that would be our job. We would have to come in and prove that, yes, they were suffering the adverse health effect and they were suffering it as a result of that smoke. If the defendant takes the stand and testifies, "I see someone in the house smoking cigarettes or I see one of the family members smoking cigarettes, or there is this other source of air pollution that comes in," then the burden is going to come back onto us to disprove that beyond a reasonable doubt and put on testimony that shows, "No, it was the smoke from this fireplace that is causing this adverse health effect." That is a daunting prospect. It is not impossible, but there are costs involved, time involved, and a lot of energy and effort involved for what appears to be a very limited arena of cases. Councilmember Kagawa: I guess a lot of talk has been made about the Maui law. I have been trying to get my good friend's number, Richard Minatoya, who works in the Prosecutor's Office in Maui, and I have not been able to... actually, I forgot about trying to call him, but has Maui gotten any success trying to prove what you are saying is so hard to prove? Mr. Kollar: I have reached out to the Maui Prosecutor's Office and asked the head Prosecutor, "Is this something you have seen?" The response back from the office was, "No. We have never been called upon to prosecute under this section." I am sure that the Maui Police Department gets no shortage of complaints about smoke. I know they still burn cane over there and given their demographics of their population, I am sure they get a lot of complaints because of the way their residential area is in proximity to the cane fields. I have not heard of any cases going to court and being prosecuted by the Prosecutor's Office using the section that has been referred to. Councilmember Kagawa: So no word on any success cases at least in recent years? Mr. Kollar: Correct. Councilmember Kagawa: Thank you, Chair. Committee Chair Hooser: Councilmember Kuali`i. Councilmember Kuali`i: Just one quick question— with regards to the affidavit from a physician, would you be able to use an affidavit if it actually stated cause and effect from any physician or would it have to be from a respiratory specialist? Mr. Kollar: That is an issue that we probably have to litigate, whether it would be somebody we would have to qualify as an expert in this field of medicine or whether it could be the primary care physician. That is something that would certainly be subject to cross-examination, which is the knowledge and expertise of the doctor as it pertains to perhaps pulmonary illnesses or respiratory illnesses, and probably to testify as to causation, they are going to need an elevated level of qualification, potentially as an expert witness in that particular field of medicine. That is something we would probably have to litigate. Councilmember Kuali`i: Thank you. Committee Chair Hooser: Councilmember Chock. PS COMMITTEE MEETING 26 FEBRUARY 18, 2015 Councilmember Chock: Dr. Weiner talked about if someone has an underlying condition or has lung cancer issues. In that case, which is a little bit different from what we are talking about in terms of cause and effect, would that have a bearing in terms of enforceability? Mr. Kollar: That would certainly bear on our ability to carry the burden of proof in the case if the person has an underlying illness that is of respiratory or pulmonary in nature, that is something that is going to weigh into our considerations as to whether we take the case or not. It is a little bit different in Civil Court. They have different rules that they work by over there, but for our purposes, that is a challenge. Councilmember Chock: So it would be harder to try if they came in with something already? Mr. Kollar: Correct. Committee Chair Hooser: Councilmember Kaneshiro. Councilmember Kaneshiro: Earlier, you mentioned an alternative solution or another means to resolve the situation, which was civil litigation. Do you have a little more detail on that process? Mr. Kollar: Yes. In short of providing legal advice, certainly, this situation would seem to be more appropriate for this civil litigation process. It is something that appears to be a very somewhat unique situation or a discreet situation, certainly. Tort remedy— you have neighbor to neighbor where one neighbor is doing something that is alleged to be causing harm to another neighbor. It is not widespread affecting the community in general, but it is limited to these two (2) folks. This would seem to be more of a "private nuisance" type of situation than what we would consider a "public nuisance." A public nuisance would really be something that speaks to the wider community in our view. Councilmember Kaneshiro: If we do not come up with a good bill or law, there is a solution as far as them moving towards civil litigation or going for a private nuisance. Mr. Kollar: Well, if this was my neighbor, I probably would have sued him five (5) years ago, but I cannot give legal advice to folks like that. I can only talk about what I would view as the most appropriate way to get relief under the situation. If I really want the situation to stop, I am going to go to court, file for a restraining order, file for an injunction against harassment, and file a tort claim that says, "Hey, you are damaging my property and my health. You are causing me these kinds of financial physical health difficulties," rather than go the other route, which even if we do successfully prosecute this person and they are found liable or convicted, they pay their two hundred dollar ($200) fine, but they could still go out the next day and burn again, and we are right back in this. Really, if there is really that level of enmity between the neighbors, we cannot say that is not going to happen. Councilmember Kaneshiro: I do not want to ask for legal advice or anything, but as far as like the civil litigation process or private nuisance lawsuit, it would be similar to what the process that they have kind of been going through with PS COMMITTEE MEETING 27 FEBRUARY 18, 2015 us, right? They have to show that they are having health concerns. Is there an easier process as far as... Mr. Kollar: The burden of proof is certainly a different burden of proof. You are talking about a civil burden of proof, which is different. I am not an expert on tort law here in Hawai`i or at least in this District Court kind of jurisdiction, but it is a different set of rules of procedure. It is a little bit easier to bring in affidavits. You can file motions for summary judgment and attach documents to them, and let the judge make the decision. If the judge says, "Yes, this is good enough," then great. If the judge says that we have to have a trial, then people come in and have a trial, and hash it out and resolve it. Councilmember Kaneshiro: Thank you. Committee Chair Hooser: Councilmember Yukimura. Councilmember Yukimura: Thank you, Justin, for being here. The way that the amendment is written now, it seems to indicate that an affidavit would come from one person, the physician, who details the incident and also then gives a professional opinion that a person's health problem is due to the smoke. Mr. Kollar: Correct. Councilmember Yukimura: Could we separate the two and have the person being affected or the family being affected providing an affidavit detailing the incident, and then an affidavit from the person's physician providing a professional opinion that smoke, soot, or poisonous gasses is likely to be detrimental to a person's health? Mr. Kollar: In my view, that would not really affect anything because we still cannot do anything with the affidavits. Councilmember Yukimura: Okay, because the cause is not proven or... Mr. Kollar: Well, because we still have to bring the live witnesses to court. We cannot just introduce an affidavit and say, "Judge, look at this." Councilmember Yukimura: I see. Mr. Kollar: It is one of the frustrations of the criminal justice system where you can go in and say, "This is obvious, Judge," and the Judge says, "You might be right; prove it." Councilmember Yukimura: Right. Committee Chair Hooser: I have a brief clarification follow-up. The intent of the amendment is to have two sentences like you described where the complainant does an affidavit, and then the physician does one. That is the intent. The intent is, "This is to justify the ticket," not a conviction, so to speak, but before the police go out and you have a frivolous kind of thing. This is a prelude to the police giving a ticket. PS COMMITTEE MEETING 28 FEBRUARY 18, 2015 Councilmember Yukimura: So it is like an establishment of probable cause or something or is that not even appropriate? But it is to establish a threshold... Mr. Kollar: It is a threshold. You are talking about it as a threshold. Yes, the affidavits might lead a prosecutor to determine that, "Okay, I have probable cause to go forward with the case." It might convince a civil attorney that, "Yes, this looks like a good case to me. It looks like we can prove it." Again, if we go to court and we have a trial, we have to bring in live witnesses. Councilmember Yukimura: At trial, do you have to show that detriment was caused or that detriment will be caused because now you are almost getting into a restraining order or an injunction? Mr. Kollar: Well, that kind of gets to the heart of the matter because what we want to do here is resolve the situation and we are talking about a criminal offense and what we need to obtain a conviction, but we want to tie that up with resolving the situation. That, I think, is one of the problems. Councilmember Yukimura: So you are actually trying to influence a future behavior. You want the behavior to stop. Mr. Kollar: Sure. Councilmember Yukimura: One way is to cite them every day and hope that the citations, if you can prove it, will be enough to stop the behavior, or you are saying in a civil case, you could actually get a permanent injunction to stop the behavior. Mr. Kollar: It would be faster, more efficient, and more effective I think. Councilmember Yukimura: Okay. Thank you. Committee Chair Hooser: I just have a brief follow-up. It is my understanding that violation is not a criminal offense; it is not a crime. That is what the Hawai`i Revised Statutes (HRS) says. Mr. Kollar: There are certain rules that are applicable to decriminalized traffic infractions where we could go to court and prove those by a preponderance of the evidence. After a judge makes their initial determination, yay, nay, or if they want to have a trial; we treat everything that we take into court and we take in with a live Deputy Prosecutor as something that we need to prove beyond a reasonable doubt because as you folks probably know, our judges take their duties very seriously and they do have high standards of proof. Committee Chair Hooser: I appreciate the diligence that the Prosecutor's Office would take on these cases, but I just want to be clear that the violation is not a criminal offense. It does not constitute a crime; therefore, I think a preponderance of evidence is the legal threshold, even though you might want it proved beyond a reasonable doubt. Mr. Kollar: That is not clear to me. PS COMMITTEE MEETING 29 FEBRUARY 18, 2015 Committee Chair Hooser: Okay. HRS Section 701-107 says that a violation does not constitute a crime. Mr. Kollar: Correct. Committee Chair Hooser: Our intent was to make it easier for you. How many violations does the Prosecutor's Office prosecute to trial right now per year? Mr. Kollar: There are relatively few offenses that come under our purview that are violations. Some would be maybe a disorderly conduct... Committee Chair Hooser: So of all the violations... Mr. Kollar: Certainly no insurance violations, but we also have to prove those beyond a reasonable doubt because of the future penalties that accrue for subsequent violations, so a couple of dozen that go to trial. Committee Chair Hooser: The intent here and the research I have done I thought supported this, but the police do not get called unless you have someone who has a real issue, documented it, and got a physician, so you have a real complainant with real value. The police come and if they so decide to, they issue a ticket, then a ticket goes to court and before the judge. The person can either pay his ticket or he can request a trial, and he or she could have counsel if they want. But it is relatively easy compared to a misdemeanor or a greater felony. That is my understanding. You are the Prosecutor, so I am obviously not the... Mr. Kollar: Right. It may seem like an easier process to you, but we still have to jump through the same hoops. At the end of the day, whether the judge applies one standard or another standard, we still have to go through the entire process of bringing everyone to court because it does not sound like in this one specific situation, which is why we are here passing a law that the person is just going to pay the ticket and say, "Okay, I am done. I am not going to do this anymore." It sounds like a situation where there is likely to be litigation, trials, appeals, and things of that nature. We want to be prepared for that in the eventuality that that is what comes to pass. We do appreciate the diligence that has gone into trying to make this something that works and something that is provable, but it does not alleviate our office's concerns that this is not an appropriate subject for the criminal justice system. Committee Chair Hooser: Other questions? Councilmember Chock: I have a follow-up to Councilmember Kaneshiro's because based on your answer, it seems like you are suggesting that the civil suit process or direction would probably be more...I know you are not an expert, but the better route to go to address this specific situation. Mr. Kollar: More suited, yes. Councilmember Chock: Thank you. PS COMMITTEE MEETING 30 FEBRUARY 18, 2015 Committee Chair Hooser: Just for the public's perception of understanding, "civil" means the homeowner would sue the other homeowner in court. Mr. Kollar: Correct. Committee Chair Hooser: Thank you. Any other questions? If not, thank you, Prosecutor. Did someone want to talk to Police or Fire? Councilmember Kagawa: Yes, I have a brief question for both of them. Committee Chair Hooser: Can I have Mr. Asher from the Police Department come forward? Good morning. Please introduce yourself for the record. We have some questions for you. ROY ASHER, Assistant Chief: Assistant Chief Roy Asher from the Kaua`i Police Department. Councilmember Kagawa: Thank you, Roy, for coming during the first reading and now. Even for the public hearing, I saw you outside. You may not have a long answer and I do not expect a long answer if you do not have one, but you have seen the amendment. It tries to get out imu, hibachi, and everything, and it specifically tries to get those out. I just want to know your feeling on the amended bill as proposed and if it changes your stance from the first reading. Mr. Asher: It still does not change much for us as far as enforcement. I am still not sure what is going to be expected of us as far as the evidence gathering. I understand the doctor's affidavit, but now the content of the fireplace— is that going to be in question of what was being burned? Is that going to fall on us? How do we get into the house? Would there need to be a search warrant for us to use that kind of resources and time for a violation? That is not time well spent for our officers. In respect to giving a citation, that just gives the respondent six (6) weeks to come to court. We would likely probably just do a complaint that summons through the Prosecutor's Office, so that they can evaluate if they are going to prosecute the case or not, rather than issue a citation and giving them a court date. For us, nothing has changed from the amendments because it is just a matter of documenting the case for us. It is how do we prove what is in the fireplace? Councilmember Kagawa: Thank you. Committee Chair Hooser: I have a brief follow-up. I think the way it is written, it does not matter what is in the fireplace. It is just smoke. It does not matter if it is wood, paper, or junk, so I believe the police could either take witnesses' words for it and/or observe the smoke. So I do not believe a search warrant or any testing of the smoke would be warranted, but you can think about that. That was the intent of the language, which is it does not really matter what is being burned. I am not a prosecutor or a police officer, but I imagine that you do not always witness the act that often times you take into consideration of other people who have witnessed it or circumstantial evidence to issue a ticket or other things like that, and then it goes further. Mr. Asher: It is like...if I could equate it to the leash law, a lot of times, people complain about the neighbor's dog being in their yard, and PS COMMITTEE MEETING 31 FEBRUARY 18, 2015 when the officer arrives, the dog is sitting on their own porch and the officer, unless the complainant is willing to step forth, will write the report that the complainant is the one that is going to have to testify about the dog being in the yard. It takes the burden off of the police officer. Basically here, it goes to the complainant if they are willing to testify and a doctor. For us, if it is just a matter of issuing the citation based on the affidavit, then fine. Committee Chair Hooser: Right. That is what is our intent is, which is to take off as much burden off as possible. With the leash law, if the complainant said, "Yes, it was off," and other neighbors in the area said, "Yes, the dog was running through my yard," then that would be sufficient to cite the person, right? Mr. Asher: I would have to check with the Prosecutor. Committee Chair Hooser: Okay. Mr. Asher: These are all unchartered waters for us. Committee Chair Hooser: I am talking about the leash law. Mr. Asher: With the leash law, yes. Committee Chair Hooser: Yes, so if there is a dog running around and messing up my yard, and I call the police, and then the police come and the dog is now back in his neighbor's yard and I attest to it and my other neighbors who saw attest to it, you can issue a citation based on that. Mr. Asher: We can issue a citation, sure. Committee Chair Hooser: Okay. I am just trying to... the intent is certainly to make it as easy to implement as possible. Councilmember Kagawa. Councilmember Kagawa: When Roy was answering my general question, I think Justin raised his hand, so I am curious to see what he wanted to add in response, I guess as Roy was trying to answer their responsibilities to a call. Committee Chair Hooser: Sure. Councilmember Kagawa: Justin, can you say what you wanted to say? Thank you. Mr. Kollar: Thank you. I just wanted to clarify the point that you were trying to make, Councilmember Hooser, about the level of the offense. The section that I was searching for in my mind that Peter Morimoto was kind enough to locate for me was Section 701-114, "Proof Beyond a Reasonable Doubt." That stands for the provision that, "Except as otherwise provided in Section 701-115, no person may be convicted of an offense," and the violation, even though not a crime, is still an offense. It must be proved beyond a reasonable doubt. That is the statute that provides for the provision that these offenses do need to be proven beyond a reasonable doubt. There are certain traffic offenses like I mentioned that by court rule, the Supreme Court promulgated special rules that we only need to prove by preponderance, but even disorderly conducts and no insurance violations do need to be proved beyond a reasonable doubt. That is the section number that sets that forth. Were you going to comment on what... PS COMMITTEE MEETING 32 FEBRUARY 18, 2015 Councilmember Kagawa: Well, if I can follow-up, I think Roy was kind of being told that they did not need to go look for that evidence and proof, and I guess what Justin is saying is that even if it is not a crime, we still need to gather enough evidence of proof, so that we can prove it. I guess that is where the conflict is. The police are not sure perhaps what their duty is in this Bill. Mr. Kollar: Yes, so when we talked to them about these cases, we let them know that it needs to be more than just, "Oh I saw this or I heard this." It is something that we do need to come to court and have a trial. Leash law cases are some of our most colorful and vibrant trials that we have in the District Court and they do need to be proven to that level. Committee Chair Hooser: If I can just do a follow-up on the leash law because that seems to be a pretty good example. We were just told that if the police show up and they see a dog running around or somebody complains, they can take the totality of the situation and cite them, even if the dog is back in the yard. Then what happens? Do they go to court and trial and you have to prove beyond a reasonable doubt that the dog was loose? Mr. Kollar: Yes, they get a court date, they have to come to court, and they can admit to the offense, which is probably eight (8) times out of ten (10) what happens, and then the two (2) times out of ten (10) where it is some neighbors that really do not like each other and we have lengthy and protracted litigation, yes. Committee Chair Hooser: Right. Mr. Asher: . May I clarify something? Committee Chair Hooser: Sure. Mr. Asher: Most complainants do not want to be that person of being the witness and going to court. They expect us to do that, but we cannot if we have not witnessed a dog on the street itself. Committee Chair Hooser: I understand and that is kind of the path we are trying to head down to take that burden away from the police. We would hope that these cases would be like the leash law cases where eight (8) out of ten (10) of them would pay the fine and after a couple of fines, they would put their dogs on the leash again, in theory. It is a deterrent, not a way to put people in jail. Are there other questions from the members? Councilmember Chock. Councilmember Chock: Mr. Asher, thank you for being here. I did ask for some figures and they really differed from the State Department of Health in terms of response. I know this one is broad, "Smoke Nuisance Complaints." On average, I think that Councilmember Yukimura said it was about two hundred fifty (250) per year. I just wanted to see if you could shed a little more light on the specifics of these kinds of complaints or if you know how many of them are a result of chimney smoke or not. Mr. Asher: I have no idea to be honest. Councilmember Chock: Okay. Thank you. PS COMMITTEE MEETING 33 FEBRUARY 18, 2015 Committee Chair Hooser: Anymore questions for the Police Department? If not, thank you, Mr. Asher. Do we have other questions for the Fire Department right now? Chief, can you come forward? Good morning. Thank you for your patience. If you could introduce yourself for the record, I think Councilmember Kagawa has some questions for you. ROBERT F. WESTERMAN, Fire Chief: Good morning. Robert Westerman, Kaua`i Fire Chief. Councilmember Kagawa: Chief, my first question— we brought up the "no burning' ban law. What is the reason why we had that "no burning' ban law because my understanding is that it was not purely because of the smoke and the effect of heath; it was because of the posed reckless danger to spreading unnecessary fires in neighborhoods and what have you. I do not know if you could give us some feedback on the history of that law. Mr. Westerman: Yes, that was one of the many reasons that they had for the "no burning' ban. They would have them not just because of the weather via (inaudible) of winds, but we could have a "no burn" day because of the temperature, humidity, and all of that, so it is kind of a "fire no burn" day, so we do not want anybody burning because it is the temperature and the humidity in the winds and it could actually spread to other places. That affects not just backyard burning at the time, it affected even agricultural burning. All of those, when they had declared a "no burn" day, even if you had a permit, you cannot do a burn. You are supposed to not burn on a "no burn" day, regardless. Councilmember Kagawa: My second question is since you have seen the amendment, what is the feedback from the Fire Department? Mr. Westerman: A couple of things— I still want to stick to my original that I really think this should be... it is a health issue and it should be in the Department of Health's rules. It is almost to a point that it could probably fit in there very well. As you heard from them, they are talking about them not having the people and the staff to do that. Well, you just put the burden on the County to do that. Is it really a State issue or is it a County issue and who do you want to be responsible for it? The other thing is that I like the amendments in the fact that... when I talked earlier, I said there are unintended consequences. The way the law is written without the amendments— there are a lot of things that I do that intentionally burn and put smoke and hazardous chemicals into the air. When I have a house fire, if I decide to let the house burn to protect the exposures, I am violating the law. I am a corporation that has decided to allow letting that burn emanating from the house or burning to allow those gasses to escape, and they are very hazardous gasses. Anything around the house of a house fire has very hazardous gasses. The other thing to me, and I do not think that anybody is going to sue the County and the Fire Department because we allow things to burn, is brushfires. We intentionally allow parts of a brushfire to burn and it puts a lot of smoke, hazardous chemicals, and everything into the air, but we allow them to burn and let them come to us to help reduce the fire danger in the future, but it does create hazardous gasses and hazardous smoke. You go around to any of the fields out here and there are cars, tires, and everything, so it is more than just the grass burning. That really takes us out of that. By making these amendments, it takes us totally out of that, so the only thing we are talking about really is a chimney fire from a house. Again, it is less issues for me. I do not see in this case that I would PS COMMITTEE MEETING 34 FEBRUARY 18, 2015 be responding because out of the two hundred fifty (250) or so burning fires, about half of them we responded to because they will dispatch us too because it is a burning fire. The police wants us there and we want police there, so that we can make the determination of whether it was an illegal burn or if somebody just did not know the law because the law has only been in effect for about two (2) years for the backyard "no burning," so it has kind of reduced those amount of calls. We both went. Sometimes we had to put the fire out, depending on what it was. It is a reduction for us. With this, I see less instances of this with them calling for the Fire Department; not that they are a nuisance for us... they are not a nuisance for us, but we would be running on less calls, so that is a plus I guess in this factor. Committee Chair Hooser: Thank you, Chief. Mr. Westerman: You bet. Committee Chair Hooser: We are going to move to public testimony right now. The public has heard the description of the amendment. Do we have any registered members of the public? CODIE K. YAMAUCHI, Council Services Assistant I: Yes, we do have registered speakers. Committee Chair Hooser: Can you call the first speaker, please? Ms. Yamauchi: The first registered speaker is Annie Leighton, followed by Arthur Brun. Committee Chair Hooser: Please come forward and introduce yourself for the record and focus your comments, if you would, on the amended version; the proposed amendment. ANNIE LEIGHTON: Good morning, Councilmembers. Annie Leighton, Wailua Homesteads. I was born here on Kauai. I just have a question: Do I have a right to clean air in my home? That is all. Committee Chair Hooser: Thank you for your question. It is a very good question. Next speaker, please. Ms. Yamauchi: Arthur Brun, followed by Ben Kuhaulua. ARTHUR BRUN: Good morning, Council. Arthur Brun. I guess it has been known that I went to see the Gonsalves on Saturday, which is something that I think you should have done as a Council before introducing something like this and really research what really goes on and what really is happening, not just take a word for it. They invited me into their house. It is a nice place. They are real clean people. I can almost guarantee you that they are not burning rubbish. We sat in the parlor where the fireplace is. It is five (5) feet away from their bed, so if there are poisonous gasses from burning rubbish, it will affect them before it will affect anybody else. Maybe some of the issues with the smoke— it could be... as brought up earlier from green wood. That can cause a lot of smoke. Maybe not cleaning the chimney, so that could be a problem. Maybe something, and I talked to Mason about this last night, is looking at what is the Building Code for the height of the chimney and make it higher, so it will pass over to the houses that are right next. The houses are close because I looked right out their door and PS COMMITTEE MEETING 35 FEBRUARY 18, 2015 the next door neighbor is right there. The houses are really close. They have dogs and animals— they are really clean people. I could not smell the dog. They have a pig and I could not smell the pig. They were really, really clean people and there is a lot more to this situation and I wish you would go and look at the whole, broad picture of what is going on. We kind of wasted money during these last couple of weeks and probably got nowhere. I think that money should have been spent to force these guys to go to litigation and make it a court order, so they can figure it out between neighbors, and if we cannot get this done, then it affects a lot of more people. But to just bring everybody into this and generalize the whole thing was just kind of a waste because it does not seem like we are going to get anywhere with this. I would not mind paying my tax dollars to go and pay for the litigation. I would not mind that at all; bringing settlement to both sides instead of us trying to do it here when nothing is really going to happen. You heard the Prosecutor and the Doctor. How is he going to prove that they got sick from that smoke? What if that person was smoking cigarettes for twenty (20) years or drinking alcohol? That could have been the cause of their lung disease, not smoke from the fireplace. There is a lot more to it. Please, just shut this down and do a better one. Let us go to litigation first and see if they can work it out. Thank you. Committee Chair Hooser: Next speaker, please. Ms. Yukimura: The next speaker is Ben Kuhaulua, followed by Tina Sakamoto. BEN KUHAULUA: Aloha. My name is Ben Kuhaulua for the record. I heard you, Mr. Hooser, just saying to talk about what is on the amendment. On that article about the cooking and stuff should not be touched and you guys know from the last time I was here when I was talking about our cooking. But hearing the people who gave their opinion who are from the Department of • Health and hearing you saying that things can be amended and changed is still concerning me about the cooking. Under the Department of Health, they have a ruling in here that I was happy seeing saying that open burning fires for cooking is allowed under the statutes and all of that like the rules and regulation, but hearing that if somebody comes and asks for an amendment, and tries to change the bill, it can happen, too. It is like this is nothing, as well as what you are writing over here for our cooking. The thing is still there for me. I understand what the people are going through. I think like what the last speaker Arthur said, they should pursue it in a different way or take them to court. I am still not protected because it can be changed and I am looking for protection as being a Hawaiian, our culture, and everything else. For me, it is real hard just understanding that there are rules set in place, but can be changed. I am happy that I am getting educated within these two (2) times that I came and watching the County Council now, and not being mad, but trying to understand what my rights are and how I can go through them. Maybe I have to try and make a proposed amendment that— I know in life, there are no guarantees. This is not a guarantee. What you guys say is not guaranteed and what I say is not guaranteed, but we have to get something that can protect that, as well as protect everybody's health. I do not know where I am going from here, but maybe we have to exhaust other avenues and ways, but maybe the people of Kauai who do cook and do those practices have to step up and maybe you can hear us, hear them, and pass something. That is all I have to say. Thank you. Committee Chair Hooser: Thank you very much for your testimony. Are there any questions? I apologize. Councilmember Chock had earlier expressed PS COMMITTEE MEETING 36 FEBRUARY 18, 2015 an interest to say something. Do you want to say it later? Yes, okay. I had forgotten. Next speaker, please. Ms. Yamauchi: Tina Sakamoto, followed by Robert Westerman. TINA SAKAMOTO: Good day, Councilmembers. My name is Tina Sakamoto and I would like to speak on this amendment, introduced by JoAnn on behalf of Gary Hooser. The first heading says it is an "open air public nuisance." Well, let us let the facts speak the truth. The testimony today was, "In a spike year 2012, possibly one (1) or two (2) of the complaints were related to the chimney. In 2014, there were two (2) chimney complaints." I do not think this constitutes a public nuisance, but a private nuisance, which should be litigated in the civil courts. When we get down to "Section (a)" about the affidavit from the physician, this again is unclear. Much of the physicians will base their diagnosis on what the patient has to tell them. They could say, "Every time I eat chocolate; every time a neighbor burns, it affects my health." The physician is not there. He could say that there could be a link, but forensically, it would not be established that there is a problematic cause and effect. This would be a challenge again for enforcement. I think that this is a cumulative effect, perhaps on the person's health, but directly linking the air quality to poor health, again, is an important issue. Most importantly again is the enforcement. This is unclear. The enforcement is problematic and I think it is a poor amendment. Thank you. Committee Chair Hooser: Next speaker, please. SCOTT K. SATO, Council Services Review Officer: Chief Westerman left. The last registered speaker is Lori Abbey-MacDonald. Committee Chair Hooser: Okay. I think the Chief has already come and gone. Next speaker? Mr. Sato: Lori Abbey-MacDonald. LORI ABBEY-MACDONALD: Hi, my name is Lori Abbey-MacDonald. I have been listening to some of the testimony and we have tried temporary restraining orders (TROs) twice against the fireplace. The reason why we have not complained to the Department of Health since Rod Yama left is because what happens? Then the reason why we have not complained to the Police is because a policeman told me that I would get arrested if I called again, and this was years ago. It has gotten to the point where Neil now is going to see a Pulmonologist on March 11th. He has been sick since before Christmas. I am sick now. We were sick in the past. I was taken by ambulance twice to the emergency room. I went two (2) other times. Neil has been three (3) times. He is an asthmatic, but he has not had it in the thirty-four (34) years we have been married, except for just recently. The TROs do not work. The judge just threw it out and denied. I just paid for nothing. The Department of Health is only open Monday through Friday from 8:00 a.m. to 5:00 p.m., so what do you do when he burns on the weekend or at night? That one police officer told me not to call the police again about the fireplace because they said it was not their thing, so it is just not useful complaining. That is why I have not complained to anybody... I have complained a few times in the past year, even though it has bothered me throughout the year. It just seemed like it was getting me nowhere. To go to court, I think, is absolutely ridiculous. I just think wood burning fireplaces in neighborhoods should be banned. I am not talking about the PS COMMITTEE MEETING 37 FEBRUARY 18, 2015 Hawaiian culture. I have nothing against the Hawaiian culture or else I would not live here. I think people should be able to barbeque outside and all that stuff, it is just the wood burning fireplace because it is a constant breathing in the air, even though your windows, air purifiers, and fans are on. Your windows and doors are shut. It affects us. The Gonsalves place— I was only in there once when we used to be friends, but after she sent me that threatening letter, I do not speak to them anymore. Their house was very clean. They do have plenty of dogs. They do have a pig. Contrary to what the other guy said, in our bedroom, we do smell the dogs because their pen is right next to our bedroom window. The pig is up on the hill and sometimes you can smell her, but I happen to like her. I held her as a baby and we have never complained about that. This is not just our problem. There are plenty of people on Kauai that cannot take the timeout or are afraid because they get belittled by people writing stuff... Committee Chair Hooser: That was your three (3) minutes. Ms. Abbey-MacDonald: That is all I have to say. Committee Chair Hooser: You have some questions here. Councilmember Yukimura. Councilmember Yukimura: Thank you, Lori. It sounds like you feel you have already tried the private court action by seeking a temporary restraining order. Ms. Abbey-MacDonald: Yes, twice. Councilmember Yukimura: But you could go for a more restrictive decision, I think, for example damages■and injunction. Is that anything that you considered? Ms. Abbey-MacDonald: How do you prove that? We have notes from my doctor and from one of my grandson's doctor that said smoke is harming our health, but how do you prove it? I know it is harming me, but I cannot prove it. I know it is harming my husband, but I cannot prove it. Councilmember Yukimura: Theoretically, the civil standard is supposed to be lower than the criminal one, so if proof of that is hard in civil, it might be really hard in criminal. That is one of the things that we are grappling with. Ms. Abbey-MacDonald: I just believe that it should be banning wood burning fireplaces in neighborhoods only. I am not talking about Koke`e or down at the beach if you want to cookout. Our houses are like ten (10) feet apart and the smoke comes right into our house. Councilmember Yukimura: Okay. Well, I have a personal question and I guess you could refuse to answer it, but does anybody in your family smoke? Ms. Abbey-MacDonald: No. Councilmember Yukimura: Okay. Thank you. Committee Chair Hooser: Councilmember Kaneshiro. PS COMMITTEE MEETING 38 FEBRUARY 18, 2015 Councilmember Kaneshiro: I think this is a little more specific question that I guess Councilmember Yukimura brought up, but have you guys pursued a public nuisance lawsuit as Justin mentioned earlier? Ms. Abbey-MacDonald: No, we just tried the restraining order against it. Plus, we are not rich. We just got through sending our kids through college. We cannot really afford attorneys. I would like for the County to step up and help us with this problem because the State...he just fluffed me off...not the new Director, but Gary Gill. He wrote a really mean thing per letter to the editor saying that they were called eighty (80) something times, referring to me, and maybe I did, but I believe it was more. Rod Yama used to just drive by and not when the smoke was going. You call the police line...we have called the Fire Department and the police. One time, our carbon monoxide detector went off and they just came and said, "Get out of the house and open all of your windows." This is not...I do not care how clean they are, their fire is not clean. Councilmember Kaneshiro: Thanks. Committee Chair Hooser: I just have a quick question. You have been here a few times and you have answered these questions before, but in the context of today's conversation, are there other people in your neighborhood who are bothered or who have complained? Ms. Abbey-MacDonald: Yes, and I brought a petition last time and that was just one trip around the block with my dogs when I was walking them for people to sign that are bothered by the smoke. Committee Chair Hooser: Okay. I just wanted to point out that even though your family seems to be the most impacted that there are other people in the neighborhood who are also impacted as well. Thank you. Other questions? Councilmember Kuali`i. Councilmember Kuali`i: Thank you again for your testimony. You stated that it is not about the smoke from barbeques, smokehouses, imu, and the sort. Is that because there are not people doing those types of activities extensively next door to your house? Ms. Abbey-MacDonald: I do not know. Councilmember Kuali`i: Would you not know if there was smoke? Ms. Abbey-MacDonald: Yes, I would know. I know when my neighbors are barbequing. Councilmember Kuali`i: So there have been others that have testified of the fear of a "slippery slope" to create a law that designates smoke and just that it is smoke that it is a nuisance and now it is a problem for the community whether because they are living close to each other or not, that to create such a law, how do you distinguish? It sounds to me like if someone was doing it next door and if they were burning the same dry, clean wood outside in their barbeque or in their water heater or whatever means they were doing and it could be big enough that it was making that smoke, without a stack to send it up higher and disseminate in the environment, would that smoke not get into your house in a more serious way and PS COMMITTEE MEETING 39 FEBRUARY 18, 2015 would you not be opposed to that then, even though you say now that you are not opposed? Ms. Abbey-MacDonald: I do not care if they barbeque next door because they have got one of those big things that barbeque, but it only lasts for a couple of hours. I know that from what I smell, it smells like they are burning crap first, and then they cook their meat. I have not complained about that ever. Councilmember Kuali`i: So the chimney concern is that you believe there is rubbish being burned, not just clean, dry wood because of the smell? Ms. Abbey-MacDonald: Yes. Councilmember Kuali`i: Then also because it is all the time and not just for cooking or whatever... Ms. Abbey-MacDonald: The chimney has gotten to the point that I am so affected by it and watching my husband's health go downhill and watching my friend die that something needs to be done. Councilmember Kuali`i: But by "something needs to be done," you chose not to do a lawsuit in Civil Court. Ms. Abbey-MacDonald: No, we could not afford it. We went to a lawyer once and we had to go to Oahu, and if that happens, we plan to sue the State, the County, and the neighbors, and it is going to be...what do you call it when a bunch of people get into the lawsuit? Councilmember Kuali`i: Yes, class action. Ms. Abbey-MacDonald: This is ridiculous. I do not care if people roast marshmallows, hibachi, or anything, but to contaminate us with wood smoke all the time, constantly, is absolutely ridiculous, and it is not just me. People think it is just the MacDonalds that complain. My son does not live with us and has never lived...well, he lived with us when he was a kid, but has never lived with us and has the same problem in his neighborhood. It is not just the MacDonald family. Councilmember Kuali`i: Thank you. Committee Chair Hooser: Thank you very much, Ms. MacDonald. Is there anyone else signed up to speak? Ms. Yamauchi: There are no other registered speakers. Committee Chair Hooser: If anyone who has not yet spoken and would like to speak, please come forward. Please introduce yourself and you will have three (3) minutes as well, and please let us try to focus in on the issue as much as possible. GARY PIERCE: Thank you. My name is Gary Pierce for the record. Everybody is saying how to quantify this. There is many underlying lung disease. We have pulmonary hypertension, chronic pulmonary disease, asthma, and emphysema, and as we get older, our pulmonary functions decrease, just as a geriatric cause. Everybody is saying that we cannot quantify, though it is very easy PS COMMITTEE MEETING 40 FEBRUARY 18, 2015 to quantify. You can take an arterial blood gas (ABG) that will measure your carbon dioxide (CO2) in your bloodstream at the time. You have to do a baseline, the chimney is burning, she said she is having problems, they do another arterial blood gas, and it will actually quantify the deterioration in carbon dioxide and carbon monoxide at that time. Also, that is very expensive to do. Baselines, and then when it is burning to come back and do another blood draw. Also, if she believes there are toxins in the air, you can do a mass spectrometry on that blood sample at that time or gas chromatograph to determine if there are toxins that have been inhaled by that person. Again, is that the County's responsibility? I do not know. It is something that has to be figured out. But there is a way to do this. You cannot say the doctor's affidavit. The doctor does not see it immediately. This has to be done at the time. It cannot wait. You cannot wait thirty (30) minutes or fifteen (15) minutes because you are inhaling at that time and that is when the blood gases must be drawn. Anyway, that is just my testimony. It can be quantified. There are things you can do to document this. If it went to a lawsuit and you had an attorney that knew pulmonary medicine, they would say, "Okay, this is what we are going to do. We can document it. We can prove it. Here is the test. Here is everything else you have to deal with on the way." Thank you. That is all I have to say. Committee Chair Hooser: Thank you, Mr. Pierce. Questions? Anyone else? Mr. Mickens. GLENN MICKENS: Thank you. For the record, Glenn Mickens. I thank Gary for his concern about this issue the public's involvement, but for me, this whole issue, including the amendment is about enforcement and priority. The cost, as Justin said, will probably be prohibitive compared to the fine, even if the case can be proven. Dr. Weiner, our Fire Chief, and Policeman have all said that enforcement will be near impossible. Our police and fire people have enough problems with doing this job now without adding more. Just like with the dog barking law or the cat licensing— these are good things to bring up, but are they really going to be that necessary? Where is the enforcement going to come from? You cannot expect our police to be there whereas the lady was saying about the problems she has got. This is an individual case. I do not think we have to pass a law where two (2) chimneys were of issue for a whole year or something. Are we going to pass a law trying to do this? I do not think it is possible. Again, for me, I think the enforcement issue is the biggest thing that you have to bring up and the priority. These people only have a certain budget and with that budget, the police have to go after drugs and whatever they can find. That is top priority on our island. Anyway, I appreciate and have sympathy with these people that have a specific concern, but as this lady has just said, I think it is a case that she is going to have to bring before the courts, an individual case, but I do not think that we have to pass a law for everybody and paint the whole issue with one brush. I do not think that is possible. Thank you. Committee Chair Hooser: Thank you, Mr. Mickens. Anyone else? Mr. Rosa. JOE ROSA: Good morning. For the record, Joe Rosa. Again, I have been hearing all of these things about respiratory problems and this and that. It seems that we have to establish the village of Kalaupapa. A lot of people, when they move to the islands here, should be put on quarantine like they do on Ellis Island. It is getting to be that point because they might be coming here with all kinds of ailments like respiratory diseases. Then one little thing, they do PS COMMITTEE MEETING 41 FEBRUARY 18, 2015 not know what it is. They are going to blame it on smoking or this or that. I have been living here all my life and I have seen the seasonal things where flowers bloom, trees blossom, and etcetera. I do not think a lot of these doctors are aware of it unless they have been practicing here long enough. I say this because I have seen cousins of mine that have lived up on German Hill where the Isenberg family used to live and along with the Lutheran Church and all of those areas with big Monkey Pod trees, etcetera. When they bloom, when my cousin have to walk up from along that way, when they reach LIhu`e Grammar School where the Department of Water is, they all came down with sniffles and watery eyes and the teachers would send them home. Why? The Monkey Pod was in bloom and all of those pollen flowers released pollen. Also, another family I knew had an Oleander hedge and when their Oleander blooms, they had the same respiratory thing like sniffles, watery eyes, and everything. Mock Orange hedge— it happened to a doctor's son and it was a simple thing; it was a Mock Orange hedge. The scent of the Mock Orange hedge causes a lot of respiratory things like illnesses and stuff. I go to the dispensary at times for my own physicals that I take quarterly and I see these kids sniffling around and I look, "Oh, spring is in the air." All respiratory things... a lot of it have a big difference other than also smoke and whatever it is. You have to look at the season. It can be flowering. It is not only the smoke. To send out a police car to look for a smoky chimney at night, how do you see smoke in the dark? I like to smell the smell of a hibachi burning. It makes me hungry; it is not where I cannot breathe. I said, "Wow, somebody is going to have nice barbequed dinner tonight." Committee Chair Hooser: Thank you very much, Mr. Rosa. Mr. Rosa: Those are the things. To enact a law just because of a chimney thing— it should not be penalizing everybody. That is all. I thank you. Committee Chair Hooser: Mr. Kupo, you may come up if you want to testify. "BIG BOY" KUPO: Thank you, Council. My name is "Big Boy" Kupo. This article is very interesting. I watched it last week and I saw a lot of people giving their concerns. My concern, sticking to smoke, is that our culture and our tradition should never change. Our government should not even think about making amendments of how to change our life style. The government changed our Hawaiian people how many years and until today, there is this smoke issue now. It will hurt a lot of people. Sorry for those whose immune system is not up to par when there is smoke in the air, but this is Hawai`i now. Sure, we can have a pollution law, but this is Hawaii. Mostly everybody has open fire. As far as this chimney burning, these two (2) people that are having the problems should just work it out and solve it among themselves in court and not hurt everybody on this island, especially Kauai. I am pretty sure there are issues like this in the State of Hawaii, but here, a lot of our people is concerned about Kauai. I would like to say that of all the people who voted, they voted so that you, as our Council, make good decisions. I hope whatever you decide will be the right now. Thank you. Committee Chair Hooser: Thank you very much. Any questions? No questions. Would anyone else like to come forward to speak? Introduce yourself for the record and you will have three (3) minutes. MATTHEW BERNABE: Matthew Bernabe. I would just like to say that when I was young, they would say what is best for all. My question is how PS COMMITTEE MEETING 42 FEBRUARY 18, 2015 many chimneys are impacting the entirety of our society on Kauai? That would be a logical question. Is this rampant or is it like the gentleman said, "Is this one street?" The other thing I would like to say is do we have a mechanism to test what the offending chimney is actually burning? If it is wood and something else that is normal in a chimney, I have a bigger problem with it. Is this guy burning plastics? What is he actually burning in his chimney? I am asthmatic and what the gentleman earlier left out is that there is a lot of mold on this island, too. But I know that is the not the issue here. I am not going to say a thing about that, but what is he really burning in a chimney? That is all I want to ask. Thank you. Committee Chair Hooser: Thank you for your testimony. Would anyone else like to speak? Please introduce yourself for the record. KANANI ORNELLAS: My name is Kanani Ornellas and I testified last week, so I wanted to reiterate that although there have been amendments, just to make it well known that I am opposed to anything that would affect cultural practices and rights. The one thing that I wanted to add was... and I actually want to submit is a letter that I received from my son's school where he has... like I said, he is a brittle asthmatic. He has exceeded his absences of school because of his asthma. I am in jeopardy of him not being promoted to the next grade. He is also maybe unenrolled and a court petition can be filed with family court because of his countless number of absences. I just wanted to add this official letter from his school regarding that. There is, by law, if your child needs to use their inhaler at school, they will be allowed to use it; however, the child will get sent home immediately thereafter. They are not allowed to continue. I guess it is for liability purposes and whatnot. Therefore, I choose to keep my child home when he is having asthma because if he goes to school and uses his inhaler, I have to pick him up. As I had mentioned before, I am not certain that this is the right course of action, but I am very, very happy that there is dialogue and I do feel— it is unfortunate that this one area is being lumped...it is just affecting one, but I just want to clarify that these are separate neighborhoods. There are multiple neighborhoods where chimneys are affecting people, so hopefully that will help clarify it for a lot of people who keep saying that it is only affecting this one area and therefore pretty much, "Too bad for them," type of mentality. That is pretty much all I wanted to say, which is just about the effects it has on my child's attendance in school. The other thing I would like to point out is that imu, smokehouses, and that type of thing does not happen on a daily occurrence. What is happening in this neighborhood is happening daily, and there lies the difference. Thank you. Committee Chair Hooser: Thank you. You have a question. Councilmember Yukimura. Councilmember Yukimura: Kanani, people are saying that only one (1) family is affected, but in fact, you are a separate family that is affected in this case, right? You live next to the MacDonalds? Ms. Ornellas: Yes. I live on the same street. Councilmember Yukimura: One house away from the home with fireplace that is in your perspective, causing the problem? Ms. Ornellas: Absolutely. Someone had previously mentioned that it is subjective, but it is not. It is a cause and effect kind of thing PS COMMITTEE MEETING 43 FEBRUARY 18, 2015 and there is a correlation. Studies have well proven. Even Dr. Weiner, who testified earlier, said, "Yes, there is an absolute correlation. When people have underlying respiratory issues, there are these things that affect them significantly." Councilmember Yukimura: As I understand it, you have a two-story house and your bedrooms are on the second story and the chimney height pretty much sends it straight into your second story. Ms. Ornellas: Yes. Believe it or not, it does go straight into the second story, but the air sweeps up and down and a lot of times, my first floor is significantly worse than my second story. Councilmember Yukimura: You were the one who said that when you were pregnant... I think Gary Pierce mentioned that arterial blood gas test. Ms. Ornellas: He is absolutely correct. You can do ABGs and determine those types of things, but I specifically was ordered carbon monoxide tests because of the symptoms that I had and they were special tests that I had to pay because they immediately had to get them sent to O`ahu for readings. Councilmember Yukimura: The remedy was that you should move out of your house, which you did because you went to live with your parents while you were pregnant. Ms. Ornellas: I stayed there as much as I could, yes. Councilmember Yukimura: Did that make things better? Ms. Ornellas: Yes, my tests became normalized. Councilmember Yukimura: So it does relate a possible place related problem? Ms. Ornellas: Absolutely. Councilmember Yukimura: You also mentioned that there are other fireplaces in other neighborhoods. I know of one and that is where Ms. MacDonald's son lives. I do not remember the street address, but that is a neighborhood that is far away from where your neighborhood is, Molo Street. Ms. Ornellas: Yes. Councilmember Yukimura: Are there any others that you are aware of? Ms. Ornellas: Yes. I think the difference is that— actually, in my mom's subdivision, there are two (2) homes. They are friends and they have fireplaces. Councilmember Yukimura: That is in Kalaheo? Ms. Ornellas: This is also in Wailua. Councilmember Yukimura: It is in Wailua? PS COMMITTEE MEETING 44 FEBRUARY 18, 2015 Ms. Ornellas: Yes. Councilmember Yukimura: Okay. Ms. Ornellas: Like this past winter, they burned their fireplaces like twice. To shut down your house two (2) days out of the year is quite different from shutting your house down every single day of the year, but it still affects them. Councilmember Yukimura: So you are saying that there are fireplaces that affect them, but the frequency is not as great? Ms. Ornellas: Yes. Councilmember Yukimura: So you have three (3) neighborhoods that you know of: Molo Street, the MacDonald's son, and your mom's, where people are affected by fireplaces, but the frequency is not to the extent that really causes problems. Ms. Ornellas: I am not sure about his and the frequency because I think it is quite often, but I know like in my parent's subdivision, it is like I said, twice this year. Councilmember Yukimura: Okay. Thank you very much. Ms. Ornellas: You are welcome. Committee Chair Hooser: Councilmember Kuali`i. Councilmember Kuali`i: Thank you for testifying. I have the same question basically because the first thing that you said was that you wanted to reconfirm that you support imu, smokehouses, and all of that, and that this law should not affect any cultural rights; yet some have expressed concern of the "slippery slope" because when you are talking about smoke, I understand the difference between clean, dry wood being burned, and then the trash being burned. You also mentioned the frequency. If your neighbor, instead of having a chimney, was a business person that sold kalua pig and they had a lot of family parties, and they actually did it a lot, and they was burning the same clean, dry wood that would make the same smoke, would you be opposed to that and say, "Now this smoke is coming into my home and affecting my health as well." It is the same smoke, is it not, if you are burning clean, dry wood? Ms. Ornellas: Well, there lies the difference, "clean dry wood." Councilmember Kuali`i: So your problem is not that the chimney is burning because if it was burning clean, dry wood, then you are fine with that? It is just when they burn trash and chemicals you said, I think. Ms. Ornellas: Well, unfortunately, that is what we experience, which is the comingling of good stuff and bad stuff and... Councilmember Kuali`i: But do you see how this law is and the way it is written is just talking about smoke, even from clean, dry wood. PS COMMITTEE MEETING 45 FEBRUARY 18, 2015 Ms. Ornellas: My understanding is that the amendments are specifically with wood burning fireplaces. Councilmember Kuali`i: Yes, wood burning fireplaces, but it then goes on to say "impact to person's health occurring due to smoke, soot, or poisonous gasses." It does not say smoke from trash or chemicals being burnt in a fireplace. It is just smoke, so to me, is it not the same smoke? Even though we are making allowances, you have both come forward and said, "Of course we do not want to mess with cultural practices like the imu and all of that, but if that imu is burning the same dry, clean wood that would be burnt in a chimney and if they did it to the extent because who is to regulate who much you can cook in an imu? "You can only do it once a month or you can only do it every three (3) months when you have a luau," right? Somebody might do it a lot. I think Mr. Kuhaulua testified that in the old days, they did it every weekend or every day. I do not remember what he said, but you do still support that cultural activity, even though it might be creating the same smoke that could harm you in the same way. Ms. Ornellas: We can speculate, but who does an imu every single day? When you do an imu, there is only a couple of hours where it is actively burning, but this is like hours on end, so the exposure time is a lot longer. Councilmember Kuali`i: Just like the guy who came before us and said, "Oh well, I do not have a chimney, so it does not affect me." So for you, you do not have any neighbors that are doing imu, smokehouses, barbeques, or any of those things on an extensive basis that is creating the same type of smoke that could be from clean, dry wood. Ms. Ornellas: I do not know anywhere that that does occur. Councilmember Kuali`i: Okay. Thank you. Committee Chair Hooser: Any other questions? If I remember correctly, you are a nurse. Ms. Ornellas: Yes I am. Committee Chair Hooser: Okay. How long have you lived around the smoke now? Ms. Ornellas: Well, it kind of broke up, but the last consecutive has been four (4) years. Committee Chair Hooser: Okay. I think that is all the questions that I have. Thank you so much for coming forward. Anyone else who has not yet testified? Please come forward. We are assuming anyone who is burning, cooking anything day after day for a business is permitted, licensed, and has a commercial kitchen and is doing this in a residential area, I would think. Please introduce yourself for the record. DUSTIN MACDONALD: My name is Dustin MacDonald. I have been on Kaua`i all my life; been in Wailua all my life. I grew up next to a neighbor that has had imu, smoke meat, and pretty much hunted as much as he could— nothing. I endured sugarcane burning. Nothing has really affected me like this and the PS COMMITTEE MEETING 46 FEBRUARY 18, 2015 reason why is because when people are smoking meat and doing barbeques, they are not doing it at 2:00 a.m. when your body is trying to rejuvenate itself. This kind of stuff happens during the daytime mostly. Imu— I have seen during Christmas, graduations, weddings, first birthdays; not just because it is Tuesday at 5:00 p.m. that we want to make an imu. The frequency of that happening is not as often as this. I want to bring up too that the Department of Health "no burn" days have never heard them say for the island of Kauai. They only say for the island of O`ahu. I have never really heard them say anything else. The reason why chimneys work in the mainland is because the temperature fluctuation is so different that all the particles go straight up into the air. There is not enough temperature difference where we live to have the particles go off into the air like they do in the mainland, where people say, "It is just a chimney. It is just wood. What is the problem?" Over here, it is not cold enough for the smoke particles to go safety into atmosphere. They just ride along the ground. We are in a different category over here with this weather. The last thing I want to mention is the craziest thing I keep hearing— if you can find the substance on this planet that is acceptable to light on fire and for somebody to sit there and breathe constantly, please bring it to me. I would love to see it because it does not exist. If that does exist, go get it, light a fire right here in this room, and let us all continue this meeting with that fire going. I guarantee you that everybody is going to run out that door. The argument of saying that there is some type of wood that is clean and aged is ridiculous. You have to put this picture in your head. Imagine a four (4) year old smoking cigarettes all night in his bed. Is that okay? I understand the cultural fight. I did not mean for all of this to happen. I am sorry to the whole island of Kauai. I am sorry for all of this that happened. This has created such a tidal wave of horror that if I would have seen this coming, I probably would have killed myself a long time ago because this has blown out into this thing where I cannot believe this. I am fighting for life and everybody is condemning me that I am taking away their heritage, their culture. Have you ever seen a haole boy play slack key? Give me guitar, I will show you. The Hawaiian culture is all I know. This is where I am from. I would never take away anything from my friends and the family that I grew up, but this is a haole tradition from the mainland. Just like the old timer said— he never had chimneys when was he a kid. That is it. The main thing that I wanted to say is I am sorry to the island. I did not mean for this to steamroller into this. I am truly from my heart sorry. Committee Chair Hooser: Thank you. For what it is worth, I do not believe you have anything to be sorry about. I really do not. It is unfortunate that this situation has developed this way, but it is not your fault and not your family's fault. This is just what is going on. Thank you for your testimony. Is there anyone else who would like to testify for the first time who has not testified yet? Second time? Mr. Rosa. We are closing in on lunch time here, but everyone will get another opportunity. Mr. Rosa: For the record, Joe Rosa. I heard the lady mention something about her son coming down with asthma. Asthma in Hawaii, from what I have experienced during my years, is something that has to do with the seasons. They say during the school year; was it during the spring time or in the fall? When I was going to Lihu`e Grammar School where the Department of Water is, Kukui Grove was all in cane field and when the cane tassels used to grow, a lot of the children used to come up with asthmatic conditions. That was one incident. When they planted corn in the cornfield at the time they had agriculture in Lihu`e Grammar School, when the tassel would come out on the corn, the school kids had asthmatic attacks. There are various things now that contribute to respiratory PS COMMITTEE MEETING 47 FEBRUARY 18, 2015 kinds of things here. It is not only the smoke. In the olden days in the plantation camp, all the ladies used to borrow their clothes and they all had firewood delivered by the plantations, so they could boil their clothes. In the morning, there is a lot of smoke around the place. Now, I hear people talking about the area where they live and if you live in a lowland area up in Wailua Houselots in the so-called valley areas, there is a low settlement of the morning air and stuff like that there, but if you live in a flat open plain, you do not get that. I was driving the other night, coming home from Kukui Grove and all of a sudden, there was a fog by Haleko Road in the mill area there. It just came down under the clear, blue sky. The weather conditions change around here rapidly. You have no control. The lady should see what is causing her son's asthmatic attacks. It could be the flower season. There is no cane now, but there are other things that cause these respiratory things. I think they should have it documented to their doctors and look around their houses and what is in bloom there. I know a tour driver that used to drive tours up Koke`e, but when the lehua flower is in bloom, she got asthma, so she had to kind of take off from work. Those are the kinds of things that contribute to these respiratory things around here. It is not only the smoke. I lived through the plantation days, plantation camps. In the plantations, it was always nice to say, "We are going to burn the cane today." Then they would burn it during the day, not at night. All these kinds of things worked out. Like the gentleman said, "I listened to the Kauai radio stations and they would always say it in the morning, "It is a `no burn' day again today," so you had to listen to the radio stations. Those are the kinds of things I hear. It is not all true things. It is hearsay. I thank you. Committee Chair Hooser: Thank you. Would anyone else like to testify again? Please come forward. Mr. Bernabe: Matthew Bernabe. I would just like to go on record to ask the Councilmembers to look into if chimneys went higher, if they introduced smoke to a different layer of atmosphere where it might take off and get out of their view, out of their area. The other thing I would like to say is I would like to ask you on record to look into enforcing the "no burn" days when we do have vog. The third thing I would like to say is that when you are considering this decision, remember that somebody has endorsed a plant that is burning trees south of us that will correlate when the south winds push the vog back on us. If an industry can burn, then why should the individuals' freedoms be challenged? I am not saying that I am against or pro, but I just want you to really think when you are sitting down you and coming up with what is going to go on for everybody. It is very unfortunate. I am an asthmatic myself. Clean, burning wood—we evolved in caves as a human species and we are one of the few species that can stay by fire. You do not see animals staying by the fire. I am not saying that it is not carcinogenic, but I am saying that we are of the species on the planet better suited for clean wood. But if you are throwing your mail in there with the plastic and all that, that should be an automatic felony and you should have a residual kit to go in there and swab his fireplace. That is just some food for thought. Thank you. Committee Chair Hooser: Thank you very much. Would anyone else like to testify? Please come forward. Ms. Abbey-MacDonald: My name is Lori Abbey-MacDonald. At one time, my mother-in-law told me that we should ask the Department of Health to go in and swab the neighbor's fireplace to see what he is actually burning and the Department of Health said that they could not do it. That is just what I wanted to say. PS COMMITTEE MEETING 48 FEBRUARY 18, 2015 Committee Chair Hooser: Thank you. Is there anyone else before we close this portion of public testimony? Would you like to come forward? Please come forward. Ms. Sakamoto: Again, my name is Tina Sakamoto. I do want to remind you that there were five hundred (500) testimonial signatures opposed to this Bill, so I do want to remind you again that it seems to be a private nuisance rather than a public. The restriction on wood burning appliances, a fireplace, will directly affect probably the poorest of our island who use the wood burning mechanism for heating their water, warming their house, and cooking their food. So this, I think, is a great impact on our island that should be considered and again in opposition to both of the amendments and Bill No. 2573. Thank you. Committee Chair Hooser: Thank you. Would anyone else like to testify? If not, I will call the meeting back to order and see what the pleasure of the Committee is if they want to go to lunch or keep working. Keep working? Okay. Councilmember Chock. There being no objections, the meeting was called back to order, and proceeded as follows: Councilmember Chock: Thank you, Chair. Maybe we can go to 12:30 p.m., but there are still people here, I think we can get as much as we can get done. I did want to take the opportunity if you can let me read this section here because I know that a lot of the concerns are about customary rights and so forth. In the Hawai`i Constitution, Article 7, Section 7, "The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778." I wanted to mention that there is protection for us there, as well as in the Hawai`i Administrative Rules (HAR), as Mr. Kuhaulua mentioned earlier. Open burning fires for the cooking of food is allowed: Section 11-60.1-52, the new rules require that the fire be attended; cooking includes "grilling, making (inaudible) for pigs, and using an imu or a smokehouse." I think that along with your amendments, I think we are covered from the State aspect, as well as the amendments that you are putting forward. I think that if we can get through that portion already and put that behind, I would like to talk about the more pressing issue, such as enforcement on this specific issue that we are dealing with that I think is isolated. Thank you. Committee Chair Hooser: Thank you. Councilmember Yukimura. Councilmember Yukimura: I think we should pass this amendment today because I think it addresses the main concern of the five hundred (500) or so who oppose the Bill. I want to thank all the people who came out to speak for their lifestyle and culture. As you can see from the amendment that is on the table, we have heard you. I want to especially acknowledge and thank the students from Ni`ihau who spoke so passionately for their culture. I was especially impressed to see them practicing aloha by seeking to understand before they sought to be understood. Even while they were making their plea for their culture, they acknowledge the positive intention of the introducer of the Bill and the affected families who want the Bill. They said, "We know you want clean air. We know you want to protect the health of the community." To me, the students demonstrated for all of us grace, empathy, and aloha, and it was very powerful, even as they spoke PS COMMITTEE MEETING 49 FEBRUARY 18, 2015 out for their lifestyle. I think we are trying to address both issues here. I think by passing this amendment, it will be very clear that we do not want to affect and do not have to affect the cultural practices of our people. Hopefully, we will still be able to address this problem of the families. Anyway, to me the amendment makes it clear, so I am in favor of it. Committee Chair Hooser: Thank you very much. Councilmember Kagawa. Councilmember Kagawa: I will be supporting the amendment. It vastly improves the original Bill and the clarity; however, again, on the main Bill, I remain strongly opposed based on the Prosecuting Attorney, Police, and Fire Department, who we are relying on to support this amended Bill or ordinance. They are the ones we are relying on to enforce it and they are telling us do not do it. I think it would be a huge mistake to pass something that we are relying on people to enforce and they are telling us it is a bad idea. I think the way to really solve this problem is to have the neighbors work it out. Perhaps if the relationship between the MacDonalds and the neighbors is not a good one, then I think maybe we can other neighbors who may try and start a relationship that can perhaps greatly limit the days that they are using the fireplace. I think that is the solution, which is to reduce the number of days. If they are burning every day, maybe at least break it down to maybe they burning only fifty (50) days or one hundred (100) days. Some kind of improvement in that area is I think where the solution is. Thank you, Chair. Committee Chair Hooser: Thank you, Councilmember Kagawa. I appreciate your remarks and willingness to move this forward. I would be my desire to move this out of Committee to the full Council, as amended. I know not just myself, but other Councilmembers will during that time look at ways that we might be able to further satisfy the Prosecutor and improve this measure. Rather than drag this process out, I would hope that we could move it to the full Council. Other Councilmembers? Councilmember Kuali`i. Councilmember Kuali`i: Thank you, Chair Hooser. I, too, will support this amendment; however, it does not address some of my concerns that I still have, like Councilmember Chock, with regards to enforcement. We have heard from several within the Administration. The other piece, I think, where it says "cause injury to health" and that it is difficult, if not impossible, to link the cause and have the proof. The third most significant piece to me is that unlike Councilmember Yukimura, I do not agree that it addresses the concerns of the five hundred (500) or so folks that have spoken in opposition because their opposition and standing for all of these activities; our cultural rights, cooking rights, and religious rights— I think it is still under threat from the "slippery slope" as long as we do not define what type of smoke we are talking about. If a chimney law prohibits clean, dry wood from burning in a chimney, what is the difference between clean, dry wood burning outside? Even though it does not happen as much and it is maybe not creating as much smoke, if it is the same kind of smoke, eventually others will be able to use this law to say, "No, you cannot burn clean, dry wood outside when that smoke is created in such a volume that it is now coming into my house and is now causing harm to my health." The amendment says "smoke, soot, or poisonous gasses," but smoke is such a broad term. Unless you are talking about poisonous smoke that is burned by trash, plastic, or things that you are not supposed to be burning because what is a chimney for if it is not to burn clean, dry wood? Is the limit then on PS COMMITTEE MEETING 50 FEBRUARY 18, 2015 frequency? I do not know. The amendment does improve the original Bill, but it is still a long way to go. Thank you. Committee Chair Hooser: Any further comments? Councilmember Chock. Councilmember Chock: This is my second time speaking. I am supportive of the amendment. Chair, I know you want to move it to Council, but I feel like from my perspective, there is a lot more work that can be done and looking at some rule changes in the State from looking at these blood tests and getting more information about that and also the question about if it answers the situation where people talk about warming houses, I think makes it in the verbiage that you have created here, but still want to be able to have the opportunity to continue to work on it. That would be a call for a deferral to work on it further after the amendments; however, if it pleases the body to move forward to Council, I am okay with that. Thank you. Committee Chair Hooser: Any further comments? Before I call the vote on the amendment, I will just say briefly that I thank everyone for testifying today. It is good to feel everybody's heart and their suggestions. This is a difficult issue and it is not limited to just this one situation, as you have heard. There are challenges. There are good ideas like raising the chimneys. We can address that for the future, but it is hard to go back and make people do it now. It is very challenging to test the smoke. It is very expensive to go inside someone's home to actually investigate. So we are looking for a way to address real harm to the community and to make sure that the traditional cultural practices in cooking are not impacted. I would like to pass the amendment, move it to the Council, and then work on amendments there. We could keep it there and amend it further. One possible amendment might be a sunset date that would say, "This measure is in effect for two (2) years or three (3) years," so you kind of test it. That might be one option. We have already reduced it from a criminal act to a violation. You heard some discussion on the leash law. To me, that is a real similar example where if you get a fine once or twice for letting your dog run loose, then you will start tying it up, and you do not go to jail; it is not that big of a deal. That is the objection here, which is to stop behavior that harms people. I think if we keep moving in this direction and I think that if good people, as they are gathered here today, who want to resolve the issue— there is a lot of brainpower here between us and the community. I am hopeful that we can find a solution that satisfies this body. The motion to amend Bill No. 2573 as circulated, as shown in the Floor Amendment which is attached hereto as Attachment 1 was then put, and unanimously carried. Committee Chair Hooser: Now we are back to the main motion. Any further discussion? Councilmember Kagawa. Councilmember Kagawa: Thank you, Chair. I just wanted to inform the Committee that should we go to the next Council Meeting, we will only have four (4) members present due to the National Association of Counties (NACo) being held next week. We have three (3) members attending NACo, which would leave Councilmember Hooser, Councilmember Yukimura, Councilmember Chock, and myself here next week. I do not think, as I just do my rough count, that we have four (4) votes to pass any bill, as amended, on that day. Therefore, the next Council Meeting where we have all members back would be on March 11th, so I would say PS COMMITTEE MEETING 51 FEBRUARY 18, 2015 that if we move it to Council, it probably will be deferred to the next Council Meeting on March 11th. So that is where the status is. As far as my vote, again, I am strongly opposed to passing any bill, as amended, at this time. Therefore, I will be voting "no" on the approval. Thank you, Chair. Committee Chair Hooser: Councilmember Yukimura. Councilmember Yukimura: I agree that we should not have a bill like this voted on when we only have four (4) people at a Council Meeting, so I think that Councilmember Chock's suggestion that we defer it for another Committee would make sense if we are going to aim for the following Council Meeting. That would give us more chance to work on some of the issues. Committee Chair Hooser: Councilmember Chock. Councilmember Chock: Also, we did not get to hear or see all amendments, so will you not be introducing an amendment in addition to this one? Councilmember Yukimura: I think the enforcement issue is still an issue, even with the amendment that we passed. My amendment does address the enforcement issue, so I would like to have it discussed, but I also would like more time to do research on my amendment. For example, Tina suggested that we would have to carefully define "fireplace," so we are not covering other kinds of stoves that might be considered fireplaces, so there is work to do on this. That is just another reason to me for a deferral. Committee Chair Hooser: I would support a motion to defer. Any other comments? Councilmember Yukimura moved to defer Bill No. 2573, as amended to Bill No. 2573, Draft 1, seconded by Councilmember Chock, and carried by a vote of 4:1 (Councilmember Kagawa voting no). Committee Chair Hooser: Let the record reflect that there was one (1) "no" and the motion to defer to the next Committee Meeting carried. I believe that concludes the business of this Committee. There being no further business, the meeting was adjourned at 12:31 p.m. Respectfully submitted, odie K. Yam.uchi Council Services Assistant I APPROVED at the Committee Meeting held on March 18, 2015: GARY /HOOSER Chair/ublic Safety Committee ATTACHMENT 1 (February 18, 2015) FLOOR AMENDMENT Bill No. 2573, Relating to Declaring a Public Nuisance Introduced by: JOANNA. YUKIMURA (By Request) 1. Amend Bill No. 2573 by amending SECTION 2 as follows: "SECTION 2. Chapter 22, Kaua`i County Code 1987, as amended, is hereby amended by establishing a new Article to be appropriately designated and to read as follows: "ARTICLE —. OPEN AIR PUBLIC NUISANCE Article _ Open Air Public Nuisance Sec. 22-_1 Prohibited Acts—Nuisance Sec. 22-_.2 Violation—Penalty Sec. 22- .1 Prohibited Acts—Nuisance. (a) It is declared to be a public nuisance and unlawful for any person, firm, or corporation in the County of Kauai, within or upon any property residentially zoned R-4 or higher density, to intentionally, knowingly, or recklessly cause, permit, or allow to escape into the open air, smoke, soot, or poisonous gases[, dirt, dust, or debris] of any kind from any smokestack, chimney, or flue, [or incinerator, or any opening of any building, or from any smoldering or open fires] originating from within the residence, under the person's, firm's, or corporation's charge or control, in such a manner or in such a place as to cause injury to the health of [persons or damage to property] any person. Prior to issuance of any citation, the complaining witness must first provide an affidavit detailing the incident at issue and identifying the source property located within the designated area, which must be accompanied by an 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. (b) This Article shall apply only to fireplace burning within residences, and shall not apply to other: cooking activities and other traditional and customary practices, including but not limited to use of imu, hibachi, or preparation of"smoke meat": agricultural operations; religious activities, including but not limited to the burning of incense; or any activity that has been explicitly allowed by the State of Hawai`i Department of Health, State of Hawai`i Department of Agriculture, or other applicable State or Federal entity. Sec. 22-_.2 Violation—Penalty. Any person, firm, or corporation violating the provisions of this Article shall, upon conviction, be punished by a fine not exceeding [one thousand dollars ($1,000.00), sentenced to imprisonment for a term not to exceed thirty (30) days, or both.] two hundred dollars ($200.00). The continuance of any such violation shall be deemed to be a new offense for each day of such continuance. In addition to the [penalties] penalty hereinabove set forth, the County may bring an appropriate action to enjoin the continuance of any such nuisance described in this Article." (Material to be deleted is bracketed. New material to be added is underscored.) V:\AMENDMENTS\2015\02-18.2015 Bill No. 2573 Amendment (GH#1)JA_cy.docx