Musings: Private Nuisance

State Department of Health officials told the Kauai County Council yesterday that the agency doesn't regulate fireplaces because it receives so few complaints about the smoke they generate.

The numbers tell the story: In 2012 — considered a “spike year” because it was so high— there were 98 smoke complaints on Kauai. Three were for open burning, eight were for agriculture, seven were for cooking, seven were for water heaters and 73 were for fireplaces — 72 of them on Molo Street.

And last year, DOH-Kauai got just 19 smoke complaints. Two were for fireplaces — both on Molo Street — four were for cooking fires and 13 were for open burning, both permitted and non-permitted. The rest of its air quality complaints were for odors, mist and dust.

In fact, the only places on the mainland that regulate fireplaces are those that aren't meeting federal clean air standards, and Hawaii air standards are “well below federal health-based standards,” said Nolan Hirai, director of the state Clean Air Branch. “It's not a widespread issue. We rarely receive complaints.”

So why, pray tell, is the Council still wasting time on Councilman Gary Hooser's Bill 2573, which is clearly not needed, and intended to address the concerns of a few people on one street?  Yes, that stupid bill is still alive, kicked down the road to the next committee meeting.

Because there's nothing more important for the Council to do, right?

In previous Council sessions, both Gary and Chair Mel Rapozo bashed the state for not doing its job. But as Hirai noted, there's nothing to enforce because fireplaces are exempt from DOH rules. And yes, he said, DOH could amend its rules to ban fireplaces — and BBQs and a number of other things — “but I'm not sure we've concluded that's the position where the state should go.”

The state, with its trained personnel, banned backyard burning because it was so hard to regulate, Hirai said. Yet some Councilmembers seem to think that KPD will be able to regulate fireplaces — and determine that the smoke is harming someone's health.

Gary, continuing his mad backpedal, watered down the bill to address only smoke, soot and poisonous gases coming from a flue, chimney or smokestack originating within a residence, in neighborhoods zoned R-4 (quarter-acre lots or smaller). It specifically excludes cooking fires and incense, and changes it from a petty misdemeanor to a violation punishable by a wrist slap $200 fine.

Councilwoman JoAnn Yukimura introduced an amendment saying fireplaces cannot be operated unless they're certified by the EPA or burn pellets. She based it on an area in Sedona, Ariz., that doesn't meet federal clean air standards.

But Councilman KipuKai Kualii said he thought the law, even amended, could be used by others to prevent wood fires used for cooking.

Prosecutor Justin Kollar again spoke of the difficulties his deputies would face in trying to prove that a person's alleged health problems were caused by the smoke from a specific fireplace, especially if they have an underlying illness. 

“That is a daunting prospect,” he said. It can be done, but there's cost and time involved “for a very limited arena of cases.” And though the law was modeled after a Maui ordinance, his cohorts there said they'd never been called upon to prosecute anyone under it.

“If this was my neighbor, I probably would've sued them fire years ago,” Justin said. “If I really want the situation to stop, I'm gonna go to court, I'm gonna file for a restraining order, I'm going to file for an injunction against harassment, I'm going to file a tort claim that says hey, you're damaging my property, you're damaging my health.”

So there is a already a process in place to resolve this “private nuisance” — a civil remedy that would likely be far more satisfying and meaningful than a new county law. But for some inexplicable reason, the affected citizens aren't going there, and Gary and JoAnn Yukimura just can't let go of their desire to pass some sort of new law.

Meanwhile, the anti-dairy contingent will have a chance to beat on the Hawaii Dairy Farm folks at an open meeting tonight. To prime the pump, the Friends of Mahaulepu/Enemies of Agriculture continue their drumbeat of fear and suspicion in a guest editorial today. 

The group repeatedly refers to the dairy as “industrial,” by which is meant what, exactly? That they plan to use automated milking machines? Computer chips that continually monitor the animals' health? Automated sprinklers to spread the liquid effluent? 

They also gripe about HDF calling its dairy “grass-raised,” when they plan to — gasp — give the cows grain while they're being milked. 

After bitching that HDF changed its plans in response to concerns raised by citizens and DOH — mmm, isn't that the purpose of a project review? — Bridget Hammerquist and Steve Lauryn write:

Kauai has a cherished history of small, sustainable businesses. It should be no different with agriculture. Sustainable, environmentally sound, akamai — these are the hallmarks to which we aspire, whether it be in energy, tourism, development or ag.

Really?  What could be less sustainable and environmentally sound than a steady influx of tourists and mainland transplants who do nothing but consume imported food, fuel and goods, and produce trash that is buried at Kekaha?

I've got an idea. Give these “Friends” exactly what they want. Ditch the dairy, forget that dirty agriculture on ag land and build a “small, sustainable business” — say, another hotel like the 600-room Grand Hyatt that's already out there — at Mahaulepu instead.