Although the more important point right now would be going over the list of citations (that is completed) from Act 2 that creates a "closed class of one," I feel I first have to point out a significant and telling mistake that has been made regarding the reporting requirements under Act 2 Section 4.
Following reading and re-reading Act 2 line-by-line, the Governor's enabling EO 07-10, and the PUC's decision on this of Dec. 30, 2004, I decided to review the last few OTF reports.
In the OTF meeting of October 9, 2008, showing up in the OTF Document Report of October 31, 2008, on pages 7-10, OTF Kauai Member Lynn McCrory brings up a number of questions based on the code of Act 2 and the Governor's EO. In posing one question to the Committee, Member McCrory read from Act 2 Section 4(c),
"The governor shall also review and determine the efficacy and appropriateness of all conditions or protocols established pursuant to this section and report to the legislature at the end of each fiscal quarter of the State on the efficacy and appropriateness of all conditions or protocols established pursuant to this section and the costs incurred by the State in establishing and maintaining the enforcement activities required under this section."
Quoting further from the OTF Report, "Member McCrory asked if the Governor prepares a quarterly report on the efficacy and appropriateness of the conditions and protocols, as well as costs incurred. Member Formby said he would check but he believed the [Rapid Risk Assessment] RRA and [OTF] legislative reports meet that specific requirement. Member Formby also noted that...DOT continues to compile additional cost data." The cumulative cost data that Member Formby referred to was presented a month later in the next OTF Report of November on page 45 of that document.
Ms. McCrory continued a line of questioning regarding the efficacy of the conditions and protocols in protecting natural resources which over the summer had become an issue on the outer islands.
To clarify, the OTF Reports are a seperate requirement under Act 2, Section 13. The OTF Reports DO NOT fulfill the requirements of Act 2, Section 4. Furthermore, regarding the 'Rapid Risk Assessment' as it was fashioned, it DID NOT fulfill all of the requirements of Act 2, Section 4 either.
Act 2 Section 4(c) calls on the Governor to, "review and determine the efficacy and appropriateness of all conditions or protocols [EO] established pursuant to this section and report to the legislature at the end of each fiscal quarter of the State on the efficacy and appropriateness of all conditions or protocols established pursuant to this section and the costs incurred."
Act 2 Section 4 is referring to the efficacy and appropriateness of the Governor's EO conditions and protocols, NOT merely whether the company and it's passengers were in compliance with the EO's limited conditions as they exist. Furthermore, the RRA was based only on limited observations in the first half of the year when ridership was not high and conditions were different from the next quarter, and the RRA was submitted as one document not as quarterly reports to the Legislature. Furthermore, the RRA did not include information on costs incurred to the state. But, most importantly, the RRA content dealt mostly with determining compliance with the Governor's EO, and not in evaluating the efficacy and appropriateness of the conditions and protocols themselves. Lastly, the point of Act 2 Section 4 was to enable the Governor to amend the EO and improve it throughout the year. There have been no official amendments by the Governor to EO 07-10.
How Belt Collins lost the intent of Act 2 Section 4(c) can be seen partly in the following quote from the RRA Appendix p.15:
"The purpose of the Rapid Risk Assessment (RRA) is to provide early and independent assessment of: 1) observed environmental risks associated with the Hawaii Superferry operation, if any, and 2) operational compliance with mitigation measures enumerated in section 4(a) of Act 2, Executive Order (EO) 07-10 and the Agreement between Hawaii Superferry, Inc. and the State of Hawaii..."
"The RRA shall commence on contract award. The RRA shall be completed within three (3) months of commencement of field investigations. At the end of the three (3) month period, a written report shall be delivered by the RRA contractor to the Governor, Director of DOT, Chairperson of DLNR, and Chairperson of DOA."
The quarterly reports were suppose to be from the Governor (or her designee) to the Legislature in addition to the monthly and annual reports from the OTF to the Legislature.
How badly Belt Collins missed the intent of Act 2 Section 4, especially by mostly focusing in the RRA on evaluating compliance with the EO rather than recommendations on improved EO conditions and protocols, has to make one wonder if their staff and consultants working on this have all actually read and understand all of Act 2 much less whether they have the capability and initiative of carrying it out fully and properly under the new 'EIS' by creating real solutions as with original and thorough mitigation measures.
Mahalo to Lynn McCrory for caring enough about natural resources to ask the right questions, even if she was not given the right answers,