PGV Drilling in Violation of County Code § 14-114
In 2012 the drilling of Puna Geothermal Venture (PGV) well KS-15 caused continual disturbances of nearby residents. An outpouring of complaints about noise, vibration, fear of toxic exposure, etc., led the Hawai`i County Council to pass Bill 292 that, when signed by the mayor on December 5, 2012, became Ordinance 12-151. Codified as Hawai`i County Code § 14-114, the law says “Geothermal resources exploration drilling and geothermal production drilling operations being conducted one mile or less from a residence, shall be restricted to the operating hours of 7:00 a.m. – 7:00 p.m.”
In December 2014 PGV announced plans to start drilling a new geothermal well, KS-16, and also opined that "the ban doesn’t apply to PGV since it already had a state permit for drilling" (when the law was passed in 2012.) However, nothing in the law supports such an opinion. Code § 14-114 simply and unambiguously prohibits night drilling, with no exceptions.
Permits authorizing PGV to drill are issued by various government entities such as the State Departments of Health (DOH) and Land and Natural Resources (DLNR), including the most recent prior permits for drilling well KS-15 (before the night time ban was enacted.) It was the drilling of KS-15 in 2012 that led to an outpouring of community concerns that in turn resulted in the enactment of County Code § 14-114.
The State Mining Lease, State Drilling Permit and County Geothermal Resource Permit All Require PGV to Comply with County Code § 14-114
Hawai`i Administrative Rules (HAR) Chapter 13-183, Rules on Leasing and Drilling of Geothermal Resources, regulates geothermal activity in Hawai`i, such as well drilling, for purposes that include “[m]inimizing or preventing degradation of the environment” and “[p]reventing injury to life and property.” HAR § 13-183-1(c)(3) and (4). HAR § 13-183-54(b) says PGV must comply with all county "requirements, laws, rules and regulations ... pertaining to the use of the premises or the conduct of the operation."
PGV's Geothermal Resource Permit (GRP) from the County of Hawai`i provides, in paragraph 43, page 24: “The permittee shall obtain, and comply with the provisions of, permits to drill, modify use or abandon, as appropriate, from the State Board of Land and Natural Resources for each geothermal well approved under this Geothermal Resource Permit.”
HAR § 13-183-65 requires PGV to obtain a DLNR drilling permit before drilling any geothermal well. PGV had a permit to drill well KS-15 before the night drilling ban bill was passed, but that drilling work ended prior to the new law's enactment. PGV has now obtained another DLNR drilling permit, issued on December 16, 2014, for KS-16 and that permit requires PGV to comply with County law.
Paragraph 11 of DLNR's 1981 geothermal mining lease that governs PGV requires compliance with all existing and future County laws and also requires that PGV legally contest any County ordinance it disputes promptly (the applicable county law was enacted more than a year ago.) PGV's prior well drilling permits do not apply to KS-16.
A DOH Noise Variance Warned PGV that Drilling Hours Could Be Limited
One of the prior permits for drilling KS-15 in 2012 was a DOH noise variance that included a provision saying "[i]f the noise level is such that numerous complaints are received by the Department, [PGV] shall cease operations upon receipt of an order and complete the project during hours on weekdays and weekends as directed." That is similar to what happened when continual disturbances of nearby residents led to complaints to the County Council resulting in the law saying geothermal "drilling operations being conducted one mile or less from a residence, shall be restricted to the operating hours of 7:00 a.m. – 7:00 p.m."
During County Council debate about the proposed ban, it was reported that "PGV has taken the position that permits authorizing drilling around the clock have previously been issued to the company by various government entities including the state departments of health and land and natural resources." PGV cannot seriously have expected that the 2012 DOH variance (quoted above as saying drilling hours could be restricted as a result of complaints) granted a permanent right to drill a well at all hours. Interestingly, PGV applied for a DOH noise variance for KS-16,1 but then withdrew the application (was the above-quoted provision in KS-15's 2012 variance so onerous that PGV feared its reappearance in a 2015 variance for KS-16?) The DLNR geothermal mining lease plainly gave binding notice more than 30 years ago that PGV is subject to evolving county laws, such as the night drilling ban. There is no reasonable basis for arguing the night drilling ban does not apply to PGV.
County Code § 14-114 is Consistent With State Law and Regulations
HRS Chapter 342F (governing noise pollution) is the legal basis for DOH noise rules. HRS § 342F-20 says "Any county may adopt ordinances and rules governing any matter relating to excessive noise control as provided in section 46-17, and any conflict between state and county law shall be resolved as provided in section 46-17." HRS § 46-17 says counties "may adopt and provide for the enforcement of ordinances regulating or prohibiting noise, smoke, dust, vibration, or odors which constitute a public nuisance. No such ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or rule of the State; provided that in any case of conflict between a statute or rule and an ordinance, the law affording the most protection to the public shall apply" ... but then there is an exception saying "[a]n ordinance shall not be effective to the extent that it is inconsistent with any noise rule adopted by the department of health under authority of chapter 342F." HAR §11-46-13 (in the DOH noise rules) says "The council of any county may adopt and provide for the enforcement of ordinances regulating any matter relating to excessive noise. No such ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or rule of the State; provided that in any case of conflict between the statute or rule and ordinance, the law which affords the most protection to the public shall apply." State law says counties may make laws that relate to noise that are not inconsistent with a DOH noise rule. The DOH noise rule most relevant to Code § 14-114 says the County law affording more protection to the public is okay.2
PGV's Drilling Permit Should be Revoked Due to Violation of County Law
HAR § 13-183-65(d) provides that after notifying PGV to appear to show cause why the drilling permit should not be suspended or revoked, the Board of Land and Natural Resources (BLNR) may order revocation or suspension of the KS-16 drilling permit if drilling “is not being done in accordance with conditions of the permit or these rules....” PGV’s drilling at night in violation of County Code § 14-114 is not in accord with the permit or with Hawai'i administrative rule § 13-183-54(b), as both require PGV to comply with County law. Puna Pono Alliance asked BLNR to order PGV to show cause why the permit should not be revoked for that reason, and also asked Mayor Kenoi to support the request, but both BLNR and the Mayor declined.
Litigation Challenging PGV's Night Drilling
In February, 2015, Hilo attorney Gary Zamber filed a suit for declaratory and injunctive relief on behalf of the Puna Pono Alliance and two individual plaintiffs against Puna Geothermal Venture and the County of Hawai`i to protect the community's interest in the night drilling ban. The County, after accepting PGV's point of view, attempted some maneuvering on the issue to obtain mitigation measures, but it became necessary to prosecute the suit when PGV began drilling on February 15, 2104.
Defendants' motions to dismiss were heard on April 14, 2015, and denied by Judge Greg Nakamura in Hilo:
First Amended Complaint filed on February 17, 2015
Plaintiffs' Memorandum Opposing Defendant County of Hawai`i’s Motion to Dismiss Complaint filed on April 2, 2105
Puna Geothermal Venture (PGV)
Defendant Puna Geothermal Venture's Motion to Dismiss Complaint, or in the Alternative, Motion for Summary Judgment (15 mb) filed on March 3, 2015
County of Hawai i (COH)
Defendant County of Hawai`i's Motion to Dismiss First Amended Complaint filed on March 5, 2015
At the judge's request, another complaint amendment brought in the State DLNR as a Defendant.
The bill died in a conference committee.
Several motions for summary judgment were heard on July 21, 2016, by Judge Greg Nakamura in Hilo. On October 10, 2016, Judge Nakamura denied the Plaintiffs' motion and granted the Defendants' motions.
Motion for Partial Summary Judgment
Memorandum Opposing PGV's Motion for Summary Judgment
Memorandum Opposing County’s Motion for Summary Judgment
Puna Geothermal Venture (PGV)
PGV's Motion for Summary Judgment
PGV's Memorandum Opposing Plaintiff's Motion for Summary Judgment
State of Hawai`i
Joinder in PGV motion
County of Hawai i (COH)
COH's Motion for Summary Judgment
COH's Memorandum Opposing Plaintiff's Motion for Summary Judgment
 PGV's application for a noise variance for KS-16 included a Tentative Schedule for Drilling describing plans that seem more extensive than what PGV has stated publicly, including the possibility of redrilling KS-15.
 State v. Ewing, 81 Hawai`i 156, 160-63, 914 P.2d 549, 553-56 (App. 1996), held that an ordinance prohibiting the public use of a device to reproduce excessively loud sounds was not preempted by state statute and regulations regarding noise pollution.