State Clarifies Orders to County

Department of Health says county must prepare emergency response plan as hearings continue.

By Zalina Alvi

Hearings on the ongoing West End water situation were held last week in Honolulu, with the state Department of Health (DOH) clarifying that the county is not being asked to take over water and wastewater services at the end of August.

The clarification came after the DOH issued orders to Molokai Properties Limited (MPL) to continue providing water and wastewater services to 1,200 customers for at least 90 days beyond their proposed walkout date of Aug. 31. At the same time, the DOH also gave orders to the county to begin preparations if the company does not comply.

The county responded by asking the state to cancel the orders because it did not have the legal authority to force them to take over the utilities.

Last week, however, a press release issued by the mayor clarified that county attorneys had been not been asked to take over, but to “present an emergency response plan” that would take effect if and when MPL shuts down services due to suffering “substantial losses.”
 
Clarification on State’s Order
“We were told to have a short-term emergency plan in place in case the utilities are shut off,” said Jane E. Lovell, deputy corporation counsel for the county in a press release.

The Hawaii Attorney General’s Office clarified in its own press release that “Hawaii law requires the county to provide drinking water and wastewater services to its residents in an emergency.”

For at least the next 90 days, the county is being asked to assess what is needed to run the utilities and to provide adequate drinking water and wastewater services to all customers, and to, according to DOH, “demonstrate to the satisfaction of the Director of Health that another equity is qualified, willing, and able to provide safe drinking water and wastewater services.”

Beyond the 90 days, the DOH reserves the right to review the status of the emergency and determine what steps the county should take at that point.

The state Attorney General Office also noted that the “DOH has legal authority to order the county to take action in preparation for the possible cessation of the services.”

In the event that MPL walks out on Aug. 31, the county would be able to call on Governor Linda Lingle’s office to declare a state of emergency, and to ask the state to reimburse the county for any costs incurred to maintain the systems temporarily.

The county chose to reiterate during the hearings that an order to the county to take over the water and wastewater services would be “impossible to perform from both a legal and a practical stand point.”

It was also noted during the hearings that the county had previously identified parties who indicated an interest in purchasing and/or operating both the water and wastewater systems.

An Emergency Response Plan
County officials assured DOH Hearings Officer Thomas Rack during last Thursday’s hearing that steps were being taken to ensure the health and welfare of Molokai residents long before the orders were given by the DOH.

“Like any other disaster and public crisis of this magnitude, we would be prepared to take action. That, for us was never in doubt,” said Mayor Charmaine Tavares in a press release.

“The people of Molokai have overwhelmingly encouraged my administration to continue to hold the company accountable. More so because the company continues to hold on to its ownership of approximately 70,000 acres of valuable land and survives under the financial umbrella of a wealthy parent company.”

Coordination of the efforts involved with the emergency response plan is expected to remain within the DOH in conjunction with state and county Civil Defense Agencies.

In response to questions pertaining to whether or not the county has taken into account the potential severe impact of the services being terminated, county officials testified that for the past three months significant efforts have been made to reach out for assistance to state agencies and officials.
  
The Attorney General's office requested a continuance for the following week to allow them more time to call additional witnesses. The hearing was continued on Aug. 6.