Maui residents sue health department to stop cane burning

Local News

The battle continues against cane burning on Maui.

Residents filed a lawsuit Wednesday against the Department of Health to invalidate Hawaiian Commercial and Sugar Company’s burn permit and to end all agriculture burning.

The company burns its sugarcane fields before harvesting, but residents say this is causing health problems.

“It’s very frustrating, which is why we filed this lawsuit, because after 44 years, it’s time for a change,” said Karen Chun, one of the plaintiffs. “I’ve disconnected all the smoke alarms in my house because they go off every time there’s a burn near me.”

The lawsuit asserts five separate counts:

  • 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.
  • Permitting of agricultural burning violates Article XI, Section 9 of the State Constitution’s right to a clean and healthful environment.
  • Permitting of agricultural burning constitutes a breach of the public trust protected under Article XI, Section 1 of the State Constitution.
  • 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.
  • DOH failed to consider the Hawaii Environmental Policy Act (HRS Ch. 344) when it promulgated the rules for permitting of open air agricultural burning and are invalid.

HC&S says it cannot comment on the lawsuit yet, but Rick Volner, HC&S plantation general manager, issued the following statement:

“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 approximately150 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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