(Scroll down for text of lawsuit and plaintiffs' news release)

MEDIA STATEMENT REGARDING STOP CANE BURNING LAWSUIT

News Release from Rick Volner, HC&S, July 2., 2015

Today, a lawsuit was filed in the newly created 2nd Circuit Environmental Court challenging the Department of Health’s ability to issue open air agricultural burn permits. Although HC&S was not named in the lawsuit, we are directly impacted by this proceeding and will be involved in defending our ability to continue to farm sugar cane on our 36,000 acres. The plaintiffs, Stop Cane Burning, Karen Chun, Brad Edwards and Trinette Furtado seek to end agricultural burning in Hawaii which would be devastating to HC&S and our 750 employees.

HC&S cannot comment on the lawsuit itself, as we have not yet had a chance to give it a thorough review. However, what we can say is that the practice of agricultural burning, as a harvesting method, is not unique to Hawaii or HC&S. Agricultural burning is in fact a common practice throughout the U.S. and around the world, and it is allowed in every state. Sugar cane burning as a harvesting method is practiced throughout the world in most areas where sugarcane is grown, including each of the other U.S. sugarcane producing states of Florida, Louisiana and Texas, as well as Brazil, Australia, India, China, Mexico and 90 other countries where cane is grown. There are significant rules and procedures that HC&S follows when it does an agricultural burn. These are rules issued pursuant to the Clean Air Act and state air pollution control regulations, and are administered by the State Department of Health (DOH).

We would also like to respond to the claim made by the Plaintiffs in their press release that there was a mandate in 1971 to end cane burning. This is simply untrue. While a ban was proposed by the DOH in 1971, based on very limited information, no law or regulation enacting such a ban was ever adopted. Instead, the Legislature requested a study of the issue by the DOH, Department of Agriculture, and Office of Environmental Quality Control. That study concluded “no significant data are available which show either a hazardous or beneficial relationship of sugarcane burning to respiratory diseases”.

Further studies demonstrated that sugarcane burning, even at a time when eighteen sugar plantations were still operating in the state, would not prevent compliance with newly adopted ambient air quality standards. On this basis, in July 1973 DOH concluded that the proposed ban on agricultural burning was not necessary, and instead implemented its first permit program for regulating agricultural burning.

HC&S is continually making changes to its burning practices in an effort to minimize the effects of cane burning. Whereas in 1971 no program for regulating agricultural burning even existed, our current permit is a nearly 100-page document of specific protocols, field by field, that must be followed before a burn is made. Compliance with all conditions of our permit is a top priority for HC&S, and we are working with the DOH to find additional ways to better predict smoke patterns from a burn. HC&S has been practicing cane burning for over 140 years, and today conducts approximately 150 burns per year. There are a few incidents when wind conditions do not turn out as predicted, or change, and we have a burn that impacts the residents in the area, and for that we are very apologetic.

We understand that there are those in our growing community with concerns about the impacts of our sugar operation, and we have tried to respond. HC&S strives each and every day to farm in a manner that minimizes the impacts to the community. Farming, by its very nature, can produce dust, noise, odors, and smoke which can aggravate pre-existing health conditions, like any other kind of smoke. We continue to work hard to improve our practices as we collaborate with the community, our elected officials and the DOH to ensure that impacts to the community are minimized. We all live and work here on Maui, so we take the community’s feedback seriously. We don’t want to be a bad neighbor, so we’re always looking for economically feasible ways to farm better.

HC&S has been searching for many years for an alternative method of harvesting, or an alternative crop to sugar that would enable us to stop the practice of agricultural burning. We thoroughly investigated mechanical harvesting, conducting a sizeable pilot test at HC&S, and investing more than $2 million in new equipment and mill conversion. We have test planted 1,000 acres of one-year cane for four crop cycles, only to find that our yields dropped to one-third of their normal levels, and operating costs increased significantly. This was not sustainable.

HC&S has and continues to evaluate a range of diversified agriculture uses for the land and other uses for the sugarcane plant. Currently, HC&S is testing 100,000 varieties of cane and a dozen varieties of grass, as well as considering over a dozen crops as alternatives to sugar cane. We have established trial plots of a number of the crops researched—those with the greatest potential of sustaining the heavy winds of the Central Maui isthmus and the tropical climate/pests in Hawaii, and the ability to be mass-produced for renewable energy feedstock or to meet consumer demand.

We’ve extensively evaluated biofuels, but the technology advancements necessary to viably convert plant materials into energy on a production scale haven’t been realized yet. At present, there are no commercially viable conversion technologies that have been developed anywhere in the world. For now, our ability to burn remains an important factor in the survival of HC&S and the 750 jobs and other benefits it provides to Maui residents. However, we continue our evaluation of other sugar by-products and biofuel options, while awaiting technology breakthroughs.

HC&S has been a member of the Maui community for over 140 years. Every year, we provide over $50 million in wages and benefits to our 750 employees, over $50 million in purchases to local vendors for services and supplies, and $9 million in taxes to state and county governments. HC&S and our employees also provide contributions of money and time to support community organizations and non-profits. We are hopeful that we can remain a contributing member of this community for many more years to come.

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PHOTO: Anti-Cane burning meeting in Kihei, June 25, 2015

SA: Suit filed over firm’s sugar cane burning on Maui

MN: Suit filed against state over cane burning

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WE FILED THE LAWSUIT!!!

Stop Cane Burning Files Legal Action to Invalidate HC&S Burn Permit

News Release from Stop Cane Burning July 2, 2015

Wailuku, Maui – On July 1 Stop Cane Burning filed suit against the Hawaii Department of Health (DoH) alleging that the regulatory system which allows open air agricultural burning is unconstitutional. Their attorney, Lance D. Collins, is asking for an injunction to immediately stop agricultural burning on Maui. This is the first case on Maui to be filed in the new Environmental Court.

Cane burning in Hawai'i was adopted during the territory period as an industry wide practice after indentured servitude was abolished.

In 1971, the DoH gave sugar plantations three years to end cane burning. Then head of the Air Sanitation Branch (now called Clean Air Branch) Robert S. Nekomoto cited a 1967 study which found a high incidence of asthma among people who breathed cane smoke. In 1973 backyard burning was banned on O'ahu and DoH banned it on all islands in 2012 saying “Open burning creates an unnecessary nuisance and possible health risk due to the smoke and air pollution it produces.”

“Does it make sense that backyard burning is banned as a health risk but HC&S is allowed to burn 36,000 acres six days a week, nine months per year?” asked plaintiff, Karen Chun who heads up Stop Cane Burning.

“HC&S has been dragging their feet and promising the end of cane burning is just around the corner for 44 years,” added plaintiff Brad Edwards. “We don't believe them any more.”

The lawsuit has been filed in the Environmental Court.

The lawsuit asserts five separate counts.

• First, the state Air Pollution Control Act lacks any standards upon which the DoH may lawfully adopt rules and the rules that have been adopted constitute an unlawful delegation of legislative power in violation of Article III, Section 1 of the State Constitution.
• Second, permitting of agricultural burning violates Article XI, Section 9 of the State Constitution's right to a clean and healthful environment.
• Third, permitting of agricultural burning constitutes a breach of the public trust protected under Article XI, Section 1 of the State Constitution.
• Fourth, exempting agricultural burning from the general ban on open air burning is an irrational classification in violation of the equal protection clause of Article I, Section 5 of the State Constitution.
• Fifth, DoH failed to consider the Hawai'i Environmental Policy Act (HRS Ch. 344) when it promulgated the rules for permitting of open air agricultural burning and are invalid.

The plaintiffs are:

Stop Cane Burning:

Stop Cane Burning was founded in 2011 and continues a 40 year fight to clean up the air on Maui and stop the six days per week cane burning for nine or ten months a year. This smoke often drops on schools, homes, businesses and roads, causing acute breathing problems and long term health damage. As the trades have decreased and population downwind has increased, the smoke is affecting the health of more and more people. Stop Cane Burning is working to end this archaic and damaging practice.

Trinette Furtado:

Born and raised on Maui , Trinette Furtado is the product of plantation 'ohana. Three generations of her 'ohana have worked for the sugar mill; her tūtūkane even having worked as a personnel manager, receiving one of the first houses of a housing project off Lāhainaluna Rd on Pauoa St. She graduated from Maui High and UH-Mānoa and currently works as a web designer.

Now a web developer and community activist living in Ha'ikū, Trinette is concerned about the health and well being of her 10-year old daughter who attends Ke Kula Kaiapuni o Pā'ia, a school surrounded by cane fields and inundated by cane smoke on burn days.

She is adamant that “the sugarcane industry is not 'a Hawaiian institution'. It was not KĀNAKA who industrialized it”. She seeks to improve the health of ALL the residents of Maui.

Brad Edwards:

Brad Edwards was born on Oahu. His great grandparents arrived in Hawaii in the late 1800’s from Portugal and worked hard to make a living by opening up a Portuguese bakery on the town side of the island. Brad attended college in California, earning a degree in Environmental Science and Social Work, and he has been working with at-risk children and families for almost 15 years.

In his work with children and families on Maui, Brad says he has become all too familiar with many of the challenges and struggles that families on Maui face and sees firsthand the negative health effects that children, including his hanai son, face when they have no choice but to breathe in smoke from local cane fires.

“I've heard the countless promises made by HC&S over the past 30 years to find alternative harvesting methods and crops, only to be disappointed year after year by their lack of effort to implement necessary changes.” Brad values the employment opportunities that sustainable farming offers here on Maui and looks forward to a time when all of Maui can benefit from clean, healthy, and sustainable farming jobs that keep our air clean and our island green.

Karen Chun:

Karen Chun believed HC&S when they said their smoke was harmless until she got Reactive Airway Disease from a bad burn in 2011. She vowed she'd do everything possible to prevent smoke from ruining anyone else's health and founded Stop Cane Burning that same year. Her kids are descendants of cane workers who came from Japan in the very early 1900s. She has a MS degree in engineering and is an avid outrigger canoe paddler and state medalist. Although lung disease has damaged her competitiveness in the last four years, she still paddles as much as she is able.

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Links:

Complaint: http://Stopcaneburning.org/pdf/scbcomplaint150701.pdf

Honolulu Star Advertiser: State Orders End To Cane Burning on Feb 9,1971

Link: http://tinyurl.com/1971Stop