The Long History Behind Gov. Abercrombie’s Latest Disaster Decree

BY JIM DOOLEY – The latest disaster declaration signed by Gov. Neil Abercrombie was a long time in the making, state records and interviews show.

The governor used his executive powers September 2 to declare that an unstable section of highway on Kauai is a disaster area, exempting $1.8 million in construction work from normal permitting, procurement and environmental regulations.

Officials have been aware of the Kauai roadway problem for at least a dozen years and have been planning repairs there since at least 2004, according to records and interviews.

Despite the years of lead-time, the plans couldn’t be completed by the time the situation became so pressing that it required direct intervention from the governor’s office, according to the state.

It’s the third time in recent months the governor has used his emergency powers to address problems that are not yet full-blown disasters.

One proclamation, issued in April, expedites the removal of some 400 Hawaiian nene geese from the vicinity of Lihue airport on Kauai.

The other speeds up the ability of the U.S. Army Corps. of Engineers to locate and remove unexploded military ordnance on state property.

Some legislators and public interest groups have been sharply critical of Abercrombie’s recent declarations, saying he has acted prematurely and without appropriate notice to the public.

“The pattern and frequency with which this authority has been used is troubling,” said Robert Harris, head of the Sierra Club’s Hawaii chapter.

The Kauai disaster declaration concerns a quarter-mile section of Kuhio Highway between the North Shore communities of Hanalei and Wainiha. The area has been prone to rockslides and shoulder deterioration.

The state awarded a $447,000 consulting contract in 2004 to the engineering firm Nishimura Katayama & Oki to plan road repairs.  By the middle of this year that work still hadn’t been completed, according to Dan Meisenzahl, spokesman for the Department of Transportation.

Asked why the work has taken so long, Meisenzahl said the contract “required a design change due to the heavy rains in March of 2006.  The project also had many permits to clear as well as right-of-entry agreements with (landowner) Kamehameha Schools Bishop Estate.”

The design work is now expected to cost $700,000. The work has gone on so long, Meisenzahl said, that the consulting firm is in the process of closure because its principals are retiring. Subconsultants are completing the job, he said.

Nihsimura Katayama & Oki did not respond to a request for comment on this story.

In 2009, the state awarded a $450,000 consulting contract to another firm, Mitsunaga & Associates, to plan a bypass road that would skirt the failing section of the highway altogether.

Engineer Nick Swords of Mitsunaga & Associates said the state told the firm to begin the work in May of this year.

As recently as three weeks before the state-of-disaster was declared, the Department of Transportation was still trying to decide whether to use the highway repair or bypass road solution to the problem, according to records and interviews.

In mid-August the state held a public meeting in Hanalei to discuss which solution to follow.

“Alternatives to be discussed will include construction of a new bypass road and the installation of a slope anchor and tieback system on a portion of the highway,” said the announcement of the August 11 meeting.

At the meeting, “It was kind of decided that they would repair the existing road instead of constructing a new bypass, which is what we were tasked to look at,” said Swords.

Less than three weeks later, the governor declared that Kuhio Highway was a disaster-in-the-making.

“Due to the recent increase in ground movement, there has arisen an immediate threat of collapse,” the governor declared.

Closure of the highway would isolate the Wainiha and Haena communities and “endanger the health, safety and welfare of the people and of the economy of the state,” the declaration said.

The state could have used emergency procurement laws already on the books that expedite contract awards in the face of imminent emergencies – without resorting to a disaster declaration from the governor.

Agencies can use emergency procurement in the face of serious threats to “irreplaceable public property or the health and safety of any person,” the law says.

Meisenzahl said emergency procurement would have taken too long to fix the Kauai highway because the state would still have been required to obtain formal work permits.

Chief Procurement Officer Aaron Fujioka confirmed that permitting requirements must be met under the state’s emergency contracting laws.

Fujioka has been strict in his oversight of emergency procurement, disapproving such contracting when he judged that it was being used to fix long-term problems caused by inattentive or sloppy management.

Abercrombie’s disaster declaration removed the Kauai contracts from Fujioka’s oversight.

The DOT “determined that the work needed to proceed at an accelerated pace,” said Meisenzahl.

”If we had gone through our normal permitting, design, advertising, and bidding, the process would have taken more than one year,” he said.

The bypass road would have taken four years to complete, he said.

The repair job, which will involve periodic lane closures, will be performed over six months under a $1.84 million contract awarded directly to Earthworks Pacific, said Meisenzahl.

The company has performed similar work on another section of Kuhio Highway, Meisenzahl said.

The project will involve removal of tons of rock on the inland side of the road. Rock walls will be graded and reinforced with 30-foot “soil nails” so that highway lanes can be moved as much as 30 feet inland.

Meisenzahl said the soil nails take approximately 5 weeks to be shipped here, “so their design needed to be expedited so that we can order them.”

On the makai side of the road, a “sub-surface concrete erosion control wall” and support pilings will be sunk to prevent further loss of pavement.

As for the by-pass road plan, Mitsunaga will complete its design work and call it quits, said Swords.

“We’re just going to take it up to a preliminary design and then terminate it,” said Swords.

“From there we’re just going to submit the documents and call it finished,” he said.

Dennis Mitsunaga, head of the company and a close political supporter of Abercrombie, declined to discuss questions about why the design work was dormant for two years and then taken up in May.

“I don’t know anything about that contract,” he said, referring questions to company official Terri Otani, who did not respond to emailed questions.

Mitsunaga’s company gave the largest single donation – $30,000 – to Abercrombie’s inauguration committee late last year and Otani helped organize the week-long inaugural festivities.

Mitsunaga, his employees and relatives also gave $54,000 to Abercrombie’s gubernatorial campaign.

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