Removing Unexploded Munitions in Hawaii

Updated: September 21, 2011

Summary

• There are unexploded munitions on state lands throughout Hawaii. Munitions – ranging from grenades, mortar rounds to missiles and more – have been found on or within range of residential areas, schools, colleges, public beaches, parks, shopping areas, and industrial areas.
• Public safety and security are paramount. When an explosive is found on public land, we have an emergency situation that needs to be defused as soon as possible.
• On June 14, 2011, Governor Abercrombie signed an “emergency proclamation,” allowing the Army Corps of Engineers to enter state lands and remove and dispose of unexploded munitions without delay.
• Under a federal program, the U.S. Army Corps of Engineers seeks to clear munitions and explosives from 128,790 acres in Hawaii, which includes 37,000 acres of state lands, at a federal cost of more than $100 million.
• The Army Corps of Engineers was charged to remove unexploded munitions, but state laws were holding up their ability to enter state land to search for and dispose of munitions. If a solution wasn’t found, Hawaii was at risk of losing millions of federal dollars designated for the clean-up and the work would not be completed.

• The Abercrombie Administration sought a solution that was within the law and that got the job done with the necessary expediency. An emergency proclamation was the best solution.

• The question before the Abercrombie Administration was whether to maintain the status quo approach that was about to end this munitions clean-up effort on state land, or to find a lawful solution that would secure the public's safety.
• A recent example of the effectiveness of the state’s action occurred at Hapuna Beach State Recreation Area. On Sept. 6, 2011, the Army Corps of Engineers began a sweep at Hapuna Beach. Since then, they found and disposed of two hand grenades and high explosive mortar. These munitions were safely destroyed in place. Without the emergency proclamation, it is likely that the grenade would still be on the beach today.

Frequently Asked Questions:

Why did the state choose to declare an “emergency proclamation”? Aren’t emergency proclamations usually used for natural disasters?

The Governor’s emergency powers are not reserved only for natural disasters. Under the Hawaii Revised Statutes section 127-10 and chapter 128, the Governor has emergency powers to deal with natural and man-made disasters or emergencies; to maintain the strength, resources, and economic life of the community; and to protect the public health, safety and welfare. This particular situation called for an uncommon but necessary use of the Governor’s emergency powers.

The state needed to give the Army Corps of Engineers permission to enter state land to look for and dispose of munitions found on the land.  This is a unique situation where neither the Army Corps nor the state could know where munitions would be found prior to the Army Corps entering the property. The state considered the risk to public health, safety and welfare to be too great to require the Army Corps to delay further before looking for and disposing of any munitions found on state land.

The best option after careful consideration by the Attorney General's Office and the Department of Land and Natural Resources was to use an emergency proclamation.

Why did the state need to suspend various environmental laws?

Some of the environmental laws, like Hawaii Revised Statutes Chapter 343, are designed to provide information regarding environmental impacts prior to agencies making decisions on projects or actions that would affect state lands. Because the nature and located of unexploded munitions are not known until they are actually found, it was not possible to provide information regarding environmental impacts ahead of time.

Other environmental laws, like those relating to air pollution, water pollution, and noise pollution, are designed to protect against the release of contaminants into the environment without first obtaining a permit.  As explained above, the state could not predict what munitions would be found and the effects of disposing of the munitions.  Compliance with the environmental pollution laws might require the Army Corps to stop its work to obtain all necessary approvals.  That process could also take several months to complete.  Because the Army Corps is also required to comply with federal environmental laws in conducting the remediation, the risk of unnecessary harm to the environment was low.

Couldn’t the state have given the Army Corps of Engineers a blanket exemption for disposing munitions?

No. A blanket exemption was not available at that time. The Army Corps must still follow federal environmental laws that also include consideration of environmental and cultural resources.

What does this emergency proclamation do for the removal of unexploded munitions?

The Army Corps of Engineers is allowed to enter state lands to look for and dispose of unexploded munitions safely once they’re discovered. The emergency proclamation is valid for five years and is only intended for these instances where the Army Corps finds munitions that must be disposed of immediately.

What is the Abercrombie Administration doing to notify the public of similar actions in the future?

This particular emergency proclamation is different from other emergency proclamations issued in the past, such as after tsunamis or hurricanes. The focus was on giving the Army Corps the ability to go on to state lands to locate and immediately dispose of munitions.

This was an uncommon but necessary use of the Governor’s emergency powers. Nevertheless, it is important that the public be informed in a timely manner. In the future, the Governor’s Office will issue public releases of all emergency proclamations.