June 5, 2009
Craig Foltz, Ph.D
ATST Program Manager
National Science Foundation
Division of Astronomical Sciences
4201 Wilson Boulevard, Room 1045
Arlington VA, 22230
Office of Environmental Quality Control
235 S. Beretania St. #702
Honolulu HI 96813
University of Hawai`i Institute for Astronomy
34 Ohia Ku St.
Pukalani HI 96748
Charlie Fein, Ph.D.
KC Environmental Inc.
P.O. Box 1208
Makawao HI 96768
RE: SDEIS FOR ATST
Thank you for the opportunity to comment on the National Science Foundation’s Supplemental Draft Environmental Impact Statement for the proposed Advanced Technology Solar Telescope at Haleakala. These comments are submitted on behalf of Kilakila `O Haleakala. Kilakila `O Haleakala requests a hard copy of the Final Environmental Impact Statement as well as a CD version when it is completed.
1. The adverse impact on Native Hawaiian traditional and customary practices is thedefining environmental justice issue for this project. Curiously, the applicant completely ignores this issue in discussing the topic of environmental justice (pages 3-67 and section 4.12). The United States Environmental Protection Agency definesenvironmental justice as the “fair treatment for people of all races, cultures, and incomes, regarding the development of environmental laws, regulations, and policies.” This is premised on the belief that particular segments of society, such as Native Hawaiians, may sometimes bear a disproportionate amount of risk associated with environmental degradation. According to EPA’s “Final Guidance For Incorporating Environmental Justice Concerns in EPA’s NEPA Compliance Analyses” (April 1998):
In the case of activities potentially affecting Native Americans, potential impacts, both direct and indirect, can occur to sacred sites and/or other natural resources used for cultural purposes. For example, the loss of a sacred site, or other impacts to larger areas of religious and spiritual importance may be so absolute that religious use of the site abruptly ceases–a direct impact.
Native Hawaiians – a native people who are a minority in their own land – depend on the preservation of natural resources in order to perpetuate their culture. The SDEIS discloses that the area “is a very sacred place for the Kanaka Maoli (Native Hawaiian), past and present.” (p.3-7). The desecration of sacred sites interferes with cultural practices and unfairly targets the Native Hawaiian community. The ATST would, therefore, disproportionately affect – adversely – the Native Hawaiian population. This part of the EIS must be revised to highlight the environmental injustice of ATST.
Magnitude of impact
2. The SDEIS identifies four levels of effects (major, moderate, minor and negligible), but fails to clearly explain the severity of the impact of the project on cultural resources. It breaks up different elements of the project, sometimes defining the impact, sometimes avoiding a description (or relying upon qualifying phrases), and sometimes referring to mitigation to some (but not all) the elements.
3. On the one hand, the SDEIS states on pages ES-33 and 4-10 that “the overwhelmingevidence from a cultural and traditional standpoint points toward a major, adverse and long-term effect on some Native Hawaiian traditional cultural practices and beliefs.” See also, page 4-14. Similarly, on page 4-131, the SDEIS states, “the cumulative effects on cultural and historic resources of the proposed ATST Project combined with past, present and reasonably foreseeable future actions is considered major, adverse, and long-term. On the other hand, it also states that “the cumulative effects on cultural and historic resources of the proposed ATST Project combined with past, present and reasonably foreseeable future actions is considered moderate, adverse and long-term” (page ES-47); see also page 4-179. Clearly page ES-47 is in error. Cumulative impactsinclude the direct impacts and so could not possibly be less than “major.” Similarly, the impact on cultural practices is called “minor” on page ES-33.
4. The FEIS should fully and clearly disclose whether the following elements of the project would have a “major” or “moderate” adverse impact on cultural resources and activities:
- the construction activities associated with building the ATST (including excavation, noise and visual);
- the existence of a 143-foot structure at Kolekole (visual);
- the noise generated from the operation of the ATST and associated activities; and
- the operation of the ATST, including maintenance, repairs and personnel turn-over.
5. The SDEIS clearly states that the repairs and turnover in operations “would have amajor, adverse, and long-term effect on cultural resources” (p. 4-9). It fails, however, to clearly state that the construction activities, the existence of the massive structure, and the noise generated by the operations would have a major adverse and long term adverse effect on cultural resources. This analysis is critical because, while the applicant alleges that “implementation of mitigation measures would reduce the effect intensity to a moderate adverse, long-term level for these types of adverse impacts to cultural resources,” these mitigation measures have absolutely nothing to do with the impact caused by, for example, the ATST’s massive presence.
6. The SDEIS on the one hand states that “the amount of noise and construction-related activities associated with the proposed ATST Project would have a major, adverse and short-term effect,” but then concludes, without any real discussion, that certain restrictions reduce the impacts to “minor” (p. 4-10). What analysis allows the applicant to reach this conclusion? Curiously, on page 4-10, the SDEIS suggests that noise-generating activities such as construction would be restricted from 30 minutes prior to sunset and 30 minutes after sunrise. On page 4-78, however, the SDEIS reveals thatonly those construction activities exceeding 83 dBA noise levels would be restricted. Thus, Native Hawaiians engaged in traditional and customary activities near the ATST would be subjected to noise levels of up to 82 dBA at sunrise and sunset. How does that change a major effect into a minor one?
7. How does providing “sense of place” training mitigate the pain and loss suffered by Native Hawaiian traditional and customary practitioners in any way, shape or form?
8. How does such training mitigate the visual impact? the noise? How is the cultural specialist going to make the project quieter, or make the buildings more invisible?
9. The Final Environmental Impact Statement must include a clear explanation as to how providing “sense of place” training to personnel could possibly mitigate damage to a sacred site.
10. It is entirely unclear how the mitigation measures actually will reduce the impact on traditional and cultural practices to minor effects rather than major (p. 4-14) – particularly when the mitigation measures do not mitigate the massive structure or the damage done to a sacred site.
11. Pursuant to federal law “mitigation” is defined as
(a) Avoiding the impact altogether by not taking a certain action or parts of an action.
(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.
(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
(e) Compensating for the impact by replacing or providing substitute resources or environments.
40 CFR § 1508.20. State law uses the term in the same manner. HAR § 11-200-17( M). It appears, however, that the NSF has adopted a bizarre new definition of the term “mitigation”. The NSF fails to discuss how it could avoid these impacts, minimize the impacts, rectify the impacts (by restoring the affected environment), reduce the impacts, or compensate by providing substitute resources. Instead, NSF proposes spending money on items that have nothing to do with the cultural harm whatsoever. These educational “public benefits” do not qualify as mitigation.
Who Should Compromise?
12. On November 8, 2007, NSF Assistant General Counsel Caroline Blanco wrote in a letter to the Advisory Counsel [sic] for Historic Preservation that “there can be no minimization of the adverse effects that result from the location of the proposed ATST project.” She also wrote, “NSF takes the position that the anticipated adverse effects expressed by the Native Hawaiian community cannot be minimized.” In discussing alternative sites, the SDEIS makes it clear that certain scientific objectives cannot be compromised. Substantial and irrevocable reductions in scientific output are unacceptable. In fact, there are no elements in the actual ATST project that the NSF is willing to compromise on, including size, color, location, etc. Not one. Why then are substantial and irrevocable impacts to existing cultural practices of a native people acceptable? Why is it unacceptable for the NSF to compromise its objective – and yet acceptable to insist that Native Hawaiians compromise their practices and values and accept further desecration of their sacred religious sites in order to accommodate NSF’s demands to build a new facility on Maui?
13. How does the NSF define arrogance?
14. The suggestion that there “are no noise-sensitive human receptors at HO, such as . . . land uses where people generally expect and need a quiet environment” (pages ES-26 and 3-59) is absurd. Native Hawaiians who exercise traditional and customary practices at Haleakala are, to use the bureaucratic term, “noise-sensitive human receptors.” Given the sanctity of Haleakala, all new noise sources will adversely affect the natural soundscape and are inappropriate.
15. The assumption that only noise levels changes of above 20 dBA are “major” has absolutely no support in the scientific literature regarding noise. There must be some basis for using 20 dBA as a criterion (p. 4-99) – although it appears that the applicant has arbitrarily decided that the number 20 is a magic number (see the use of the magic number 20 in the discussion of visual effects on page 4-30).
16. In a natural setting like Haleakala National Park, any industrial or mechanical noise is an unnatural intrusion and has a major adverse affect. The noise analysis ignores frequency, unnaturalness, intensity and duration of noise generation.
17. To say that the sound attenuation of industrial noises at 35 dBA is “the equivalent of leaves rustling or wind blowing through the grass” (p. 4-100) is insulting.
18. The discussion regarding the noise impacts of the operation of the ATST and its related facilities is inadequate. Simply because the noise levels would be below levels for Class A zoning districts does not mean that the facility would not generate new noise. How much noise will the buildings, the fans, the air conditioners, rotational tracking, generator etc. generate?
19. Noise should be anticipated during construction anddecommissioning/deconstruction.
20. The real question that the FEIS must address is: how far away would a person have to be from the ATST facility to be sure that the person did not hear any (a) construction noise and (b) operational noise. This is the most important question for the FEIS to address regarding noise because, given the location, any such new noise source will have a major adverse effect.
21. The quantitative methodology is ridiculous. Unless one is very, very close to a structure, according to this methodology, the structure will only impact a small percentage of a view plane. To claim that a major scenic impact can only be from a structure that affects more than 20% of a viewplane renders virtually all construction impacts from any real distance non-major. Thus, a large crane on top of Mount Rushmore would not have a major scenic adverse impact. A house on the rim of the Grand Canyon would not have a major adverse scenic impact. Adding just one brush-stroke of fluorescent purple paint to the Mona Lisa would not have a major adverse impact. The reality is, a large man-made object that intrudes upon a natural landscape in the massive scale proposed by ATST cannot help but have a major adverse impact on views.
22. The applicant should instead employ the methodology articulated by the State of Hawai`i Department of Land and Natural Resources in its decision In re: HECO’s CDUA to Construct a 138-kV Transmission Line at Wa`ahila Ridge, DLNR File No. OA-2801. The transmission towers at issue in that case did not occupy anywhere close to 20% of the viewshed, yet their impact was significant enough to warrant rejecting a conservation district use application.
23. The visual simulations do not fairly depict the visual blight that the structure will be on Haleakala. Just as photographs of the observatories on Mauna Kea do not accurately show the pimples that blight the mountain top, figures 4-5 – 4-16 do not capture what can be seen and what will be seen.
24. Even the IFA’s Long Range Development Plan does a better job of acknowledging the impact. It states:
The ATST will be a large facility compared to the current Mees Solar Observatory. The top of the telescope enclosure may be as much as 142 feet or more above ground level. If sited at either the present MSO location (Figure 8-9) or Reber Circle (Figure 8-7), the white telescope enclosure would be quite visible from the Red Hill Overlook and on cloud-free days it could be visible from South Maui and the Central Valley, although it would be blocked in some directions by the AEOS facility.
25. The ATST would impede the view plane from mountain to ocean, ruin the character of the natural surrounding and ruin essential vistas.
26. Tall cranes will be required during construction anddecommissioning/deconstruction.
27. When the SDEIS states that the ATST “would not be fully visible” (p. 4-62) does that mean that the entire structure is not visible, or that it is not visible along the entire roadway? In either case, what difference does it make if it is not “fully visible”? If it is only a part of it is visible, or if it is only seen part of the drive, it still detracts from the quality of the area and is out of characte
r of the natural surrounding.
SECTION 4.1 ON “LAND USE” MAKES NO SENSE.
28. Section 4.1 of the SDEIS is bizarre. It appears to analyze the ATST’s impact on “land use.” Grammatically and logically it is hard to understand how a project impacts “land use.” Projects impact people, the environment, infrastructure etc. They also change the use of land. The applicant has created a strawman by arguing that the ATST has no effect on land use. The application of the regulatory definition of “land use” in HAR § 13-5 further muddies the applicant’s “analysis.” The real questions for this section of the SDEIS should be: is the ATST compatible with existing land use designations, and will it affect existing land uses and existing activities? Section 4.1 utterly fails to engage in this analysis, however.
29. Curiously, the applicant ignores the BLNR’s criteria (except for a select two) for evaluating a CDUP found in HAR § 13-5-30. There is no doubt that the applicant’s proposal fails to satisfy these criteria and that it will not be able to obtain a CDUP.
30. The discussion in the two paragraphs above section 2.3.3 (page 2-7) is clearly inaccurate. The discussion dismisses the alternative of building a space-based telescope with a series of non-sequitors and misleading statements. First, it is contradicted on page 1-11 where the SDEIS states that it is cost that precludes this possibility – not technological obstacles. Second, objectives 1, 2 and 3 – ostensibly the reason for rejecting sites at La Palma and Big Bear – could certainly be achieved by a space-based telescope. Third, scientific advances have already achieved the predictive power for coronal mass ejections that could jeopardize global communication. Fourth, the role of this telescope in reducing the “risk for human civilization” is ridiculous hyperbole. Finally, given that “the most highly variable parts of the Sun’s spectrum are found in the UV and X-ray region” (page 1-17) and given the fact that study of UV and X-ray wavelengths from a land-based station would be ineffective (given the atmosphere), would not a space-based telescope make more sense?
31. Is cost the reason that a space-based telescope was rejected, or are technological limits the reason it was not chosen?
32. Could a space-based telescope achieve all the scientific objectives?
33. If so, how much more would it cost?
34. The SDEIS presents evidence that locating the telescope at Haleakala would be better than elsewhere (from the perspective of efficiency). The SDEIS can, in fairness, argue that Haleakala offers more “seeing” hours than other sites. Or it could argue that it “represents the best combination of [astronomical] factors” (Appendix J p. 1) But it cannot credibly argue that Haleakala is the “only” place where such a telescope can be located. It is absurd for the applicant to proclaim that there is a bright-line below which any other site would utterly fail to meet the “scientific objectives” of the project. The applicant is free to argue that Haleakala offers more sunshine or more seeing hours. But the applicant cannot credibly claim that other sites would completely fail to achieve the scientific objectives. The applicant subjectively developed what it terms “unacceptable levels of hours for high quality observations” (p. 2-16). There is no objective reason why the telescope must have 480 annual hours of sky brightness less than 25 millionths of the brightness of the solar disk – and not one minute less. There is no objective reason why the telescope must have 200 annual hours of excellent seeing.
35. Since March 2008 emissions from Kilauea on Hawai`i Island have increased dramatically. Combined with the numerous periods of no tradewinds, atmospheric conditions on Maui are no longer what they used to be. According to the USGS, since this latest eruption phase, Kilauea is currently producing up to 4,000 tons/day of SO2, — far more than the 150 tons per day it used to produce. During its journey through the air, the SO2 reacts with oxygen, sunlight, and water to form vog, a mixture of gas and tiny sulfuric acid aerosol droplets. This aerosol mixture appears as a dense haze that obscures Hawaiian scenery and ocean views. Has the applicant re-examined its data to see if Haleakala still meets all the criteria it needs for solar observation?
WASTEWATER & HAZARDOUS WASTE
36. The FEIS should disclose what impacts –if any – the current cesspool has on groundwater. If the FEIS is going to claim that replacement of it will provide minor – not negligible – benefits, it should fully disclose what the impacts of the current operation are.
37. If the aquifer is vulnerable to contamination from wastewater (as mentioned on page ES-23), then the threat posed by the existing cesspool operated by IFA should be fully described.
38. If wastewater is a threat, the FEIS should disclose why the ATST does not propose an even higher level of treatment prior to disposal.
39. Simply because a wastewater system meets State of Hawai`i Department of Health regulatory standards does not mean that it will have no impact – especially when the aquifer is “highly vulnerable to contamination” (p. ES-23). The FEIS should fully discuss the impacts of existing and increased wastewater discharge.
40. The FEIS should more fully discuss the potential impacts of hazardous waste being disposed through the wastewater system or on the ground, including all the chemicals described on page 2-36. Given the September 11, 1999 spill incident (page ES-24), such accidents are entirely foreseeable. The FEIS should disclose the likely impacts from another accident. The fact that a response to a spill may meet legal requirements does not explain the impacts to the aquifer or the larger ecosystem.
41. At La Palma, excavation of 9,000 cubic yards was deemed “considerable” (p. 2-10). Is the removal of 4,650 cubic yards of soil and rock on Haleakala a considerable amount?
42. How deep and wide would the pit be that would have to be created?
43. Why are MECO’s existing rate-payers paying to study ways to reduce the peak proposed ATST Project electrical load (economizing strategies) and not NSF (pages ES-13 & ES-41)?
44. Who will pay for the upgrading of the new 2500 kVA substation: MECO ratepayers or ATST (page ES-40)?
THE CONSERVATION DISTRICT
The applicant makes a series of misleading statements regarding the conservation district.
45. On pages ES-15, 1-29 and 3-2, the applicant puts two facts together to create a misleading impression. It may in fact be true that the parcel of land at issue was set aside for astronomical research. It is true that the Haleakala High Altitude Observatories are in the conservation district. It is not accurate, however, to imply that (1) the purpose of the conservation district, or this part of the conservation district, is for astronomy or (2) this area has been designated for astronomical research pursuant to Act 187 or the conservation district rules. The executive order setting land aside hasnothing to do with the regulatory restrictions on uses in the conservation district.
46. Similarly, on page 3-1, the applicant states: “During the past few years, the DLNR’s Office of Conservation and Coastal Lands (OCCL) has administered Conservation District Use Applications (CDUAs) for: open ocean aquaculture projects, telescopes on top of Haleakala and Mauna Kea, major powerline projects on scenic ridges, telecommunication facility projects, single family residences, Parks; and Commercial Forest projects.” The applicant uses the vague term “administered.” Yes, OCCL has received applications for various projects. But the Board of Land and Natural Resources, in fact, rejected the application (the only application) for a major powerline project on a scenic ridge. It rejected the koa logging project proposed on Hawai`i Island. And the court overturned the BLNR’s approval of a CDUP for a telescope on Mauna Kea. The SDEIS, therefore, misleads by suggesting that in “administering” these applications, approval is routine.
47. The applicant’s explanation for how this project satisfies the objectives of the general subzone (p. 3-2) makes absolutely no sense.
48. Curiously, the applicant ignores the BLNR’s criteria (except for a select two) for evaluating a CDUP found in HAR § 13-5-30. There is no doubt that the applicant’s proposal fails to satisfy these criteria (let alone state constitutional mandates) and that it will not be able to obtain a CDUP.
49. The applicant failed to discuss other EAs and EISes for projects in the area. These documents can demonstrate whether: (a) the applicant and other users of the area accurately predicted impacts; (b) the applicant and other users of the area followed through on prior promises; and (c) proposed mitigation was effective. This analysis is necessary to perform a credible analysis of the cumulative impacts of this project.
50. For example, in 1994, the IFA stated:
The proposed facility, approximately 120 feet above grade, would be the largest structure on the upper portions of Haleakala. However, it would be generally consistent with the existing structures, and it would not greatly alter the general appearance of the complex as seen from a distance. The proposed facilities would be clearly visible from the Pakaoao Visitor Center and Red Hill Overlook, where the height and mass of the proposed telescope dome enclosure would make it strong visual element under certain conditions. The visual impact of the telescope dome would be mitigated by its reflective surface. This type of surface tends to take on the color of the sky, and does not stand out strongly, In addition, its proximity to the existing observatory structures that are readily recognizable as telescope housings would indicate the scientific purpose of the entire complex.
Despite IFA’s assurances, the Air Force’s large AECOS facility (a) is not consistent with the existing structures; (b) greatly altered the appearance of the complex; (c) was not mitigated by its reflective surface; and (d) stands out strongly.
51. There is no question that the cumulative visual impact of the ATST and past projects is major.
52. The March 1994 Final EA for the AECOS telescope notes that “at some later date, the 8-meter telescope and dome enclosure will be installed to replace the 3.67-meter telescope.” Has this been done? If not, has this cumulative impact been assessed?
53. In March 1994, the IFA noted that the enormous AECOS facility would be built to address the Air Force’s “requirements into the 21st century.” An upgrade to a larger telescope is needed to retain MSSS’s usefulness. The need for a better telescope is the same justification for this project a decade later. Given the IFA’s constant refrain that it needs to keep up with the latest technology, when does it all end? When will what is built ever be enough to satisfy the IFA?
54. Why is there no discussion in the cumulative impacts section regarding the previous damage to cultural resources caused by development in the Haleakala High Altitude Observatory Site? The Air Force development removed rocks from the summit and destroyed an area that was used for worship.
55. If the ATST project will adversely affect the FAA RCAG facilities, as suggested on page 4-5, and if addressing “any potential issue involving a degradation of signal” will require other construction, then the FEIS must fully disclose this construction and the impacts. Could resolution of the issue include building bigger unsightly towers? Failure to thoroughly discuss this issue is a failure to properly disclose the cumulative impact (i.e., reasonably foreseeable future actions). The applicant may not segment this disclosure through a separate NEPA compliance document as it suggests that it will do on page 4-6.
56. How much money is this project slated to cost?
57. What projects are the NSF not funding (and what scientific questions are not being answered) by funding this project? Identify the projects that NSF could potentially (or would) fund if it decided to forego this project.
58. Clearly the money spent on this project would be an irreversible and irretrievable commitment of a resource that should be discussed in section 4.16.2.
59. Is NSF committing to decommissioning/deconstruction – or just to considering it?
60. What authority would the “cultural specialist” have? Will s/he merely be able to provide advice that does not have to be followed?
61. If the `ua`u are present from February through October, why does the mitigation not include all those months? Is there any mitigation from noise when the `ua`u return to their nests in the evening (when apparently construction activities may continue) in February, March, August and September?
62. The table summarizing the effects from the proposed ATST Project, which is promised on page ES-45, does not exist. Moreover, the four-sentence discussion in section 4.15 (Summary of Potential Effects of the Proposed ATST Project) of the SDEIS is incomplete and inadequate.
63. A map that shows the Crater Historic District, listed both on the State Inventory of Historic Places (SIHP 50-50-11-12-1739) as well as the National Register of Historic Places should be included in the FEIS.
64. How will the facility handle all the energy from the sun that is concentrated through the 4 meter array?
65. How much bicycle traffic is there at the project site (BMP 7 on p. 2-33)?
66. At various places, the DSEIS mentions that BMPs will be implemented. (see, e.g., pages ES-11, p. ES-54). The specific BMPs should be identified in detail in the mitigation section.
67. The conclusions of the ATST Survey are obviously flawed. By only asking whether participants “cared” if there was another telescope without directly asking how it would affect their experience, the survey provides no meaningful data.
68. The FEIS needs to address the impact that may be caused by the increasing number of tourists (as asserted by the applicant) who will want to tour the ATST facility on the tranquility of the area and on Native Hawaiian traditional and customary practices.
All these issues should be thoroughly addressed in the FEIS.
David Kimo Frankel
Camille K. Kalama
cc: Laura Thielen
Senator Daniel Akaka
Congressman Neil Abercrombie
Congresswoman Mazie Hirono
Haleakala National Park Service Superintendent