KUKULU KE EA A KANALOA
KAHO'OLAWE ISLAND RESERVE COMMISSION
    811Kolu Street, Suite 201
Wailuku, Hawai'i 96793
Telephone: (808) 243-5020
Fax (808) 243-5885
Neighbor Island Toll Free 1-800-468-4644

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Key Legal Documents
Pertaining to the Kaho'olawe Island Reserve
(This file is fairly large so be sure to wait until it all loads before going further)

KIRC - Navy Memorandum of Understanding (MOU)

KIRC - Navy Regulatory Framework

SECTION 10001. CONVEYANCE OF KAHO'OLAWE ISLAND, HAWAI'I, TO THE STATE OF HAWAI'I

(a) PURPOSE.

It is timely and in the interest of the United States to recognize and fulfill the commitments made on behalf of the United States to the people of Hawai'i and to return to the State of Hawai'i the Island of Kaho'olawe. Kaho'olawe Island is among Hawai'i's historic lands and has a long, documented history of cultural and natural significance to the people of Hawai'i reflected, in part, in the Island's inclusion on the National Register of Historic Places and in the longstanding interest in the return of the Island to State sovereignty, public access and use. Congress finds that control, disposition, use and management of Kaho'olawe is affected with a federal interest. It also is in the national interest and an obligation undertaken by Congress and the United States under this and other Acts, and in furtherance of the purposes of Executive Order 10436 (1953), to recognize the cultural and humanitarian value of assuring meaningful, safe use of the Island for appropriate cultural, historical, archaeological and educational purposes as determined by the State of Hawai'i and to provide for the clearance or removal of unexploded ordnance and for the environmental restoration of the Island for such purposes. Congress also finds it is in the national interest and an essential element in the federal government's relationship with the State of Hawai'i to ensure that the conveyance, clearance or removal of unexploded ordnance, environmental restoration, control of access to the Island and future use of the Island be undertaken in a manner consistent with the enhancement of that relationship, the Department of Defense's military mission, the federal interest, and applicable provisions of law.

(b) CONVEYANCE.

Subject to Section 10001(e) of this Act, the United States, through the Secretary of the Navy (also, hereinafter, "the Secretary"), shall, notwithstanding Section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9620(h)) convey and return, without consideration and without conditions other than those set forth in or required by the Act to the State of Hawai'i all right, title and interest of the United States, except that interest set forth in Section 10001(d)(2) and Section 10001(e) of this Act, in and to that parcel of property consisting of approximately 28,776 acres of land known as Kaho'olawe Island, Hawai'i and its surrounding waters. Such conveyance of title shall occur no later that 180 days from the date of enactment of this Act and the appropriation of funds for such purposes described in this Act.

(c) DESCRIPTION OF PROPERTY.

The exact acreage and legal description of the parcel of property to be conveyed under Section 10001(b) shall be determined by a survey that is deemed satisfactory by the State of Hawai'i in consultation with the Secretary. The cost of the survey shall be borne by the Secretary, making use of funds provided pursuant to this Act.

(d) IMPLEMENTATION.

(1) The Secretary shall carry out the requirements of this Act following consultation with the State of Hawai'i as required by Section 10002 of this Act and with the technical and logistical support, as needed, of the United States Army Corps of Engineers and other federal agencies.

(2) Notwithstanding any other provision of this Act, the Secretary shall retain the control of access to the Island, in consultation with the State of Hawai'i and prior to and following the entering into force the Memorandum of Understanding contained in Section 10002 of this Act, until either clearance and restoration are completed or within no more than 10 years after the date of enactment of this Act, whichever comes first, and control of access is transferred to the State of Hawai'i, pursuant to such conditions.

(e) INDEMNIFICATION AND CONTROL OF ACCESS.

(1) The Navy shall retain control of the access to the Island during the time period set forth in Section 10001(d)(2) of this Act that it is undertaking unexploded ordnance removal and hazardous materials removal activities required in this Act.
(2) During the time period the United States retains control of access to the island, the United States shall hold harmless, defend and indemnify the State of Hawai'i or its political subdivisions from and against all claims, demands, losses, damages, liens, liabilities, injuries, deaths, penalties, fines, lawsuits, and other proceedings, judgements, awards and reasonable costs and expenses arising out of, or in any manner predicated upon, the presence, release or threatened release of any munitions, exploded or unexploded ordnance, solid waste associated with such ordnance or hazardous substance, pollutant or contaminant resulting from the activities of the Department of Defense, including the activities of the Department of the Navy and the Department of the Army and any agent, employee, lessee, licensee, independent contractor or other person on the property during such time that the property was and remains under the control of the Department of Defense, Navy, Army or other agencies of the United States Government. Notwithstanding this subsection or any other provision of law, response action contractors shall not be held harmless, defended or indemnified for activities under this title and activities of the response action contractors are not included as activities of the Department of Defense under this subsection.

The term "response action contractor" has the meaning given such term in Section 119(e)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9619(e)(2)), except that such term includes a person who enters into, and is carrying out, a contract to provide at a facility (including a facility not listed on the National Priorities List) a response action with respect to any release or threatened release from the facility of a hazardous substance or pollutant or contaminant, or a similar action with respect to petroleum or its derivatives.

(3) Nothing in this Act is intended to alter or affect the federal or state requirements of law governing liability following the transfer of control of access to the State of Hawai'i, except that the United States shall remain liable for and retain responsibility for any environmental restoration, remediation, or corrective action required at the property conveyed in paragraph (b).

SECTION 10002. COOPERATION OF FEDERAL DEPARTMENTS AND THE STATE OF HAWAI'I AND TRANSFER OF CONTROL OF ACCESS

(a) (1) Upon the request of the Secretary or the State of Hawai'i, and in accordance with existing laws and requirements, any department or agency of the Federal Government may provide assistance to the Secretary or the State of Hawai'i, as the case may be, in carrying out their respective duties under this Act.

(2) Within 180 days following the passage of this Act, and notwithstanding any other provision of law, the Secretary shall consult with and enter into a Memorandum of Understanding with the State of Hawai'i governing the terms and conditions of:

(i) access to the Island for those purposes set forth in Sections 10001 and 10002 of this Act and any other cultural, archaeological, educational and planning purposes provided for in this title, giving due regard to the risk of harm to public health and the environment and safety involved in providing such access and the need to avoid interference with or disruption of the Navy's clearance, removal and remediation activities;

(ii) the timing, planning, methodology and implementation of ordnance clearance or removal and hazardous substance clearance and other waste removal and the protection of historical, cultural and religious sites and artifacts, provided that all reasonable effort should be made to avoid harm to such sites and artifacts from the detonation of unexploded ordnance, clearance or removal of ordnance, and hazardous substance clearance;

(iii) the establishment of a two-tiered standard of restoration and ordnance clearance, removal, restoration and safety, taking into account the purpose for which any geographic area will be used and the nature and purpose of human access to such area, but assuring the protection of human health and the environment;

(iv) the means for protecting historical, cultural and religious sites and artifacts from intentional destruction, harm and vandalism;

(v) public participation, as appropriate, including the opportunity for public comments and hearing; and

(vi) the means for regular interval clean-ups and removal of newly discovered previously undetected ordnance by the Navy.

Under any such terms and conditions, the Secretary shall be assured full and necessary access to carry out the obligations of the Secretary arising out of the responsibilities and liabilities of this title. Such terms and conditions shall remain in existence until the completion of the restoration and remediation activities required by Section 10002 of this Act and be revised periodically by mutual consent and giving due regard to the importance of access to the Island as the level of clean-up, restoration and remediation moves towards attainment. Nothing in this title is intended to diminish or alter the rights and responsibilities of the Navy to allow access to the Island that existed prior to the enactment of this title.

(3) The United States, through the Secretary of the Navy, shall transfer the control of access to the State of Hawai'i within no more than 10 years from the date of enactment of this Act or when the activities required by this Act, including ordnance clearance or removal activities and environmental remediation activities are completed, whichever comes first.

(4) Notwithstanding the duties and obligations set forth in this title and notwithstanding the conveyance required under Section 10001, the State of Hawai'i shall not be liable or responsible for the conduct of any clean-up and response actions arising from and relating to the use, environmental clean-up and ordnance removal and remediation of Kaho'olawe Island and its adjacent waters.
 

SECTION 10003. KAHO'OLAWE ISLAND CONVEYANCE, REMEDIATION, AND ENVIRONMENTAL RESTORATION TRUST FUND

(a) There is established on the books of the Treasury of the United States a fund to be known as the "Kaho'olawe Island Conveyance, Remediation, and Environmental Restoration Trust Fund" (hereinafter in this subsection referred to as the "Fund"). The Fund shall be administered by the Secretary of the Treasury. The Fund shall be used for the accumulation of funds in order to pay the obligations incurred by the Secretary of the Navy or the Department of Defense in carrying out the purposes of this Act and for properly allocable costs of the Federal Government in the administration of the Fund.

(b) There shall be deposited in the Fund the following, which shall constitute the assets of the Fund:

(1) Amounts paid into the Fund from any source.

(2) Any amount appropriated to the Fund.

(3) Any return on investment of the assets of the Fund.

(c) To the extent provided in the appropriation Acts, the assets of the Fund shall be available for obligation by the Secretary of the Navy to carry out the purposes of this Act.

(d) There is authorized to be appropriated into the Fund $400,000,000, which may be appropriated as a lump sum or in annual increments. Of the amounts deposited into the Fund, not less than eleven percent shall be made available to the State of Hawai'i to carry out the provisions of Section 10002 of this Act.

(e) Amounts appropriated to the Fund shall remain available until obligated or until the Fund is terminated.

(f) Upon payment of all incremental costs associated with the purposes for which the Fund is established, the Fund shall be terminated.

(g) Subject to the provisions of this Section, the Secretary is authorized to provide $45,000,000 to the State of Hawai'i for the purpose of long term planning and implementation by the State of:

(i) such long term planning;

(ii) environmental restoration activities; and

(iii) the terms and conditions set forth in the Memorandum of Understanding required by Section 10002 of this Act, concerning Kaho'olawe Island and its adjacent waters.

Such funds as are provided by the Secretary for the purpose of carrying out this Section shall be made available to the State by the Secretary from funds made available pursuant to this Act and shall be provided to the State of Hawai'i.

(h) Funds in addition to those provided pursuant to Section 10003(g) may be provided to the State of Hawai'i upon the submission of an acceptable plan containing elements identified in 10003(g) of this Act and demonstrating, to the satisfaction of the Secretary, that such funds are necessary to the proper fulfillment of such elements and the purposes of this Act. The Secretary shall have sole discretion to award such additional funds, however, the award of such funds shall not be unreasonably withheld.
 

SECTION 10004. ANNUAL REPORT TO CONGRESS AND RELATED DISPUTE RESOLUTION

(a) The Secretary shall submit annually a Report, in detail, describing compliance with the provisions of this Act. Such Report shall include the comments of the State of Hawai'i and be submitted to the Defense Committee of Congress.

(b) Federal Courts shall have jurisdiction to enforce the terms, conditions and provisions of this Act, regarding the activities, duties, and responsibilities of the United States, its departments, agencies and instrumentalities set forth in this Act and occurring on the Island of Kaho'olawe and in its adjacent waters. In any judicial review under this Act, the United States or the State, or both, if not a party may intervene as a matter of right. The United States, its departments, agencies and instrumentalities shall be subject to only such injunctive relief as may be imposed by the court to enforce compliance with the terms of this Act and Memorandum of Understanding. Such compliance shall be enforced giving due regard to the need for expeditious clean-up under the terms and conditions of this Act.

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MEMORANDUM OF UNDERSTANDINGBETWEEN THE UNITED STATES DEPARTMENT OF THE NAVY AND THE STATE OF HAWAII CONCERNING THE ISLAND OF KAHO'OLAWE, HAWAII

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I. APPLICABLE LAWS AND STATEMENT OF FACTS

B. Kaho'olawe is a portion of the public lands, formerly government lands of the Kingdom of Hawaii, which were ceded and transferred to the United States of America by the Republic of Hawaii under the Joint Resolution Of Annexation of July 7, 1898, 30 Stat. 750, and pursuant to the Hawaii Organic Act of April 30, 1900, 31 Stat. 141. Under Hawaii's Admission Act, Public Law 86-3, 73 Stat. 4, and Public Law 88-233, 77 Stat. 472, public lands that are determined to be surplus are to be conveyed to the State of Hawaii.

C. The Navy and the Protect Kaho'olawe Ohana entered into a Consent Decree in 1980, entered as a final judgment in Noa Emmett Aluli, et al. v. Harold Brown, et al., United States District Court for the District of Hawaii, Civil Action No. 76-0380, which
provided for military training activities on the island; access to the island by the Protect Kaho'olawe Ohana; limited surface clearance of ordnance and other waste; and soil conservation, goat control, and an archaeological survey of the island.

D. On March 18, 1981, the entire island of Kaho'olawe was placed on the National Register of Historic Places and designated as the Kaho'olawe Archaeological District.

E. On October 22, 1990, President George Bush issued a Memorandum to Secretary of Defense Richard Cheney directing the Secretary to discontinue use of Kaho'olawe as a weapons range effective immediately.

F. Title X of the Fiscal Year 1994 Department of Defense Appropriations Act, Public Law 103-139, 107 Stat. 1418 (hereinafter referred to as Title X) was enacted into law on November 11, 1993. Sections 10001(a) and (b) provide that the United States of America, through the Secretary of the Navy, shall convey and return the island of Kaho'olawe to the State of Hawaii.

G. Section 10002(a)(2) of Title X directs the Secretary of the Navy to consult with and enter into a Memorandum of Understanding (hereinafter referred to as the MOU) with the State of Hawaii governing the terms and conditions of six issues
concerning the island of Kaho'olawe. This Memorandum of Understanding is made pursuant to Title X and implements Title X.

H. Section 10001(a) of Title X states that it is in the national interest and an obligation undertaken by Congress and the United States to recognize the cultural and humanitarian value of assuring meaningful, safe use of the island of Kaho'olawe for appropriate cultural, historical, archaeological and educational purposes as determined by the State of Hawaii, and to provide for the clearance or removal of unexploded ordnance and for the environmental restoration of the island for such purposes. Section 10001(a) of Title X states that the island of Kaho'olawe is among Hawaii's historic lands and has a long, documented history of cultural and natural significance to the people of Hawaii.

I. Section 10001(a) of Title X states that it is in the national interest and an essential element in the Federal Government's relationship with the State of Hawaii to ensure that the clearance or removal of unexploded ordnance, environmental restoration, control of access to the island and future use of the island be undertaken in a manner consistent with the enhancement of the Federal Government's relationship with the State of Hawaii, the Department of Defense's military mission, the Federal interest and applicable provisions of law.

J. Section 10002(a)(4) of Title X states that the State of Hawaii shall not be liable or responsible for the conduct of any cleanup and response actions arising from and relating to the use, environmental cleanup and ordnance removal and remediation of Kaho'olawe Island and its adjacent waters.

K. Section 10001(d)(2) of Title X provides that, notwithstanding any other provision of Title X, the Navy shall retain control of access to the island, in consultation with the State of Hawaii, and prior to and following the entering into force of this MOU, until either clearance and restoration are completed or ten years after the date of enactment, whichever comes first, and control of access is transferred to the State of Hawaii, pursuant to such conditions.

L. Section 10002(a)(2) of Title X provides that the Navy shall be assured full and necessary access to the island and its surrounding waters to carry out any obligations of the Secretary arising out of any responsibilities and liabilities under
Title X.

M. Section 10003 of Title X established on the books of the Treasury of the United States the Kaho'olawe Island Conveyance, Remediation, and Environmental Restoration Fund and authorized to be appropriated into this fund $400,000,000, which may be appropriated as a lump sum or in annual increments.
N. Act 340 of the Session Laws of Hawaii, 1993, established Chapter 6K of the Hawaii Revised Statutes and created the Kaho'olawe Island Reserve, which includes the island of Kaho'olawe and the submerged lands and waters extending seaward two miles from the shoreline, and the Kaho'olawe Island Reserve Commission (hereafter referred to as KIRC), to oversee the departments and agencies of the State with respect to the management of the Reserve. In Act 340, the State of Hawaii declared that the Protect Kaho'olawe Ohana has a stewardship role.

O. Chapter 6K, Hawaii Revised Statutes, provides that the Kaho'olawe Island Reserve shall be used solely and exclusively and reserved in perpetuity for the preservation and practice of all rights customarily and traditionally exercised by native Hawaiians for cultural, spiritual, and subsistence purposes; for the preservation and protection of the Reserve's archaeological, historical, and environmental resources, rehabilitation, revegetation, habitat restoration and preservation; and for education. Commercial uses are strictly prohibited in the Reserve.

II. PURPOSE

Consistent with and in furtherance of Title X, the following is an agreed statement of understanding reached between the
Secretary of the Navy and the State of Hawaii.

III. PARTIES

The parties to this MOU are the United States Department of the Navy and the State of Hawaii.

A. "Navy," as referred to herein, means the United States Department of the Navy.

B. "State," as referred to herein, means the State of Hawaii.

C. "KIRC," as referred to herein, means "KIRC, on behalf of the State."

IV. CHOICE OF LAW

This MOU, and any document, protocol, or written agreement prepared pursuant to this MOU, and all performance hereunder, shall be governed by, and interpreted and construed under, applicable Federal law of the United States. The laws of the State of Hawaii shall have applicability in the following subject areas: law enforcement; transportation; access to the Reserve; transfer and recording of real estate; protection of historical and cultural sites; and any subject area mutually agreed to by
the Navy and the State in the development of agreements or protocols required under this MOU. Federal law shall prevail in the event of a conflict of laws.

V. CONVEYANCE

A. Conveyance to the State: In accordance with Title X, the island of Kaho'olawe shall be returned to the State of Hawaii without conditions except for the following:

(1) The Navy shall retain control of access to the island until either clearance and restoration are completed in accordance with and pursuant to this agreement or within no more than ten years after November 11, 1993.

(2) During the time period when the Navy retains control of access to the island, the United States shall hold harmless, defend and indemnify the State or its political subdivisions from and against all claims, demands, losses, damages, liens, liabilities, injuries, deaths, penalties, fines, lawsuits and other proceedings, judgments, awards and reasonable costs and expenses arising out of, or in any manner predicated upon, the presence, release or threatened release of any munitions, exploded or unexploded ordnance, solid waste associated with such ordnance or hazardous substance, pollutant or contaminant resulting from the activities of the Department of Defense,
including the activities of the Department of the Navy and the Department of the Army and any agent, employee, lessee, licensee, independent contractor or other person on the property during such time that the property was and remains under the control of the Department of Defense, Navy, Army or other agencies of the United States government.

(3) The State shall not be liable or responsible for the conduct of any cleanup and response actions arising from and relating to the use, environmental cleanup and ordnance removal and remediation of Kaho'olawe.

B. In the event that the United States defends or indemnifies the State or its political subdivisions, the United States Government shall be subrogated, in such lawsuits or other proceedings, to all rights, powers, privileges, defenses, and remedies of the State. The State shall do nothing to prejudice the rights of the United States in any such action or in any recovery action against a third party, and, upon request, the State shall furnish all reasonable assistance and cooperation to the United States in defending the action and in pursuing recovery against a third party.

C. Section 10001(c) of Title X requires that a survey to determine the legal description of Kaho'olawe be conducted prior
to conveyance. The Navy and the State agree that such a survey is not necessary.

D. The Navy and the State agree that during the time period when the Navy retains control of access to the island, the Navy may continue its control of the use of all facilities and structures constructed by the Navy before the conveyance of the island to the State. Until such time as the control of use of those structures and facilities is given to the State, the Navy shall have such use without charge, but shall be responsible to maintain such structures and facilities. The Navy's use of these structures and facilities may be continued beyond the stated time period by mutual agreement.

E. Conveyance to other parties: It is understood that the State does not intend to convey the island, or any part thereof, to other parties before completion of the cleanup as described in Section VI (with the exception of the clearance or removal of newly discovered, but previously undetected, ordnance under Section XI of this MOU). The State shall not convey any interest in the island to any other party unless and until: (1) that party agrees to be bound by this MOU and any agreements or protocols established pursuant to this MOU, except to the extent otherwise provided through the written consent of the Navy and the State; or (2) the Navy, the State, and the party mutually agree to the terms of such conveyance. The State shall include in any deed or
other document for the conveyance, transfer, or use of all or any part of the island such conditions as are necessary to ensure that all uses of the island remain consistent with the uses considered by the Navy reasonably safe to be conducted on the island.

VI. CLEANUP

A. The use plan: The KIRC shall submit a detailed use plan to the Navy for the entire island of Kaho'olawe, which specifically identifies the uses to which each site or area on the island will be put.

(1) Particular sites or areas, totalling in aggregate no more than 25 per cent of the surface of the island, may be specifically identified to be cleaned up to the Tier Two standard described in Section VI.C., in order to accomplish the cultural, historical, and archaeological purposes set forth in Title X. An additional 5 per cent of the surface of the island may be designated by mutual agreement between the Navy and the KIRC for trails or roads necessary to provide access between sites or areas. As part of its use plan submitted to the Navy, the KIRC shall select sites or areas and identify for the Navy the priority of those sites or areas that are to be cleaned up to the Tier Two standard.

(2) The identification or priority of sites or areas to be cleaned up to the Tier Two standard may be modified by mutual agreement between the Navy and the KIRC, subject to the overall 25 per cent limitation of total area described in VI.A.(1).

(3) The Navy shall cooperate with the KIRC to provide any reasonable technical and historical information necessary to develop a use plan.

(4) Prior to submitting its use plan to the Navy, the KIRC and the Navy shall consult with each other concerning the likelihood of successful cleanup of the selected sites and the identification of priority of those sites.

(5) The KIRC's use plan shall be considered a feasibility study for purposes of Chapter 343-5, Hawaii Revised Statutes.

B. The cleanup plan: After the KIRC submits its use plan to the Navy, the Navy, in consultation with the KIRC, shall develop a cleanup plan for ordnance clearance or removal and environmental restoration. The Navy's cleanup plan shall provide for the removal or clearance of all unexploded ordnance from the surface of the island in accordance with the Tier One standard described in Section VI.C.(1); will be designed to allow the reasonably safe use of Tier Two areas for the purposes listed in Section VI.C.(2), in accordance with the KIRC's use plan; and shall accommodate, to the extent practicable, the KIRC's selection and priorities of areas to be cleaned up.

(1) The Navy, in consultation with the KIRC, shall develop cleanup standards applicable to each of the Tier Two uses listed in subparagraphs VI.C.(2)(a) through (f) sufficient to allow the reasonably safe use of Tier Two areas, taking into the account the nature and purpose of human access and the protection of human health and the environment. The Navy shall design its cleanup plan to satisfy those cleanup standards for Tier Two areas.

(2) The Navy, in consultation with the KIRC, shall conduct a survey of the island before completion of the cleanup plan to ascertain metes and bounds (or suitable substitutes) descriptions of the sites identified in the use plan. Upon completion, the survey shall be recorded by the State.

(3) The KIRC shall have the formal opportunity to review, comment upon, and request modifications to the Navy's cleanup plan prior to its adoption.

(4) The Navy shall submit monthly status reports to the KIRC concerning the development of the cleanup plan until it is adopted.

C. The Navy's cleanup plan shall consist of a two-tiered standard of ordnance clearance or removal and environmental restoration. The two standards applicable to the Navy's cleanup are defined as follows:

(1) TIER ONE: removal or clearance of all unexploded ordnance from the surface of the island. Upon completion of such removal or clearance for each Tier One site or area, the Navy shall certify, in accordance with Section VI.K, the reasonably safe uses, if any, for each site or area, including whether such site or area is reasonably safe for human access.

(2) TIER TWO: cleanup or environmental restoration to a condition which allows the reasonably safe use of the site or area for one of the purposes listed below:

(a) grassland or other vegetation; or
(b) trail or road; or
(c) historical, cultural, or archaeological site; or
(d) reservoir; or
(e) heliport; or
(f) suitable for human habitation.

E. Other elements: The cleanup plan shall further provide for: (1) independent monitoring by the KIRC; (2) reporting of any incidents harmful to human health, historical, cultural or religious sites, or the environment; (3) temporary cessation of clearance activities during certain scheduled cultural ceremonies, upon reasonable advance notice by the KIRC to the Navy; and (4) coordination between the Navy and the KIRC to efficiently conduct environmental restoration.

F. Submerged lands and waters: The KIRC may propose submerged lands and waters surrounding Kaho'olawe in its use plan as priority areas for mitigation of ordnance or hazardous substances, consistent with uses of the island specified under Title X and Act 340 of the Session Laws of Hawaii, 1993. These priority areas may be candidate sites for inclusion in the cleanup plan.

G. Implementation: The Navy shall be wholly responsible for implementation of the cleanup plan. It is understood that the Navy may seek the assistance of other Federal agencies and departments and engage such contractors as are necessary to implement the cleanup plan. The cleanup plan may be implemented in phases. The Navy or its contractors shall consult with the KIRC prior to implementing each phase.

H. After the KIRC submits its use plan to the Navy, the KIRC shall develop a restoration plan and coordinate it with the Navy's development of its cleanup plan. To the extent practicable, the Navy shall coordinate implementation of its cleanup plan with the KIRC's restoration activities.

I. Amendments to the KIRC's use plan and the Navy's cleanup plan may be made if mutually agreed upon by the KIRC and the Navy.

J. Environmental restoration and other activities related to the Navy's cleanup may begin before completion of the development of the cleanup plan, subject to agreement between the Navy and the KIRC.

K. The Navy shall provide certification to the State that the ordnance clearance or removal or environmental restoration performed pursuant to this MOU and Title X has been completed with respect to each particular area or site. This certification may be provided in one or more documents. The certification(s) shall describe the actions taken to implement the Navy's cleanup plan; the particular action performed in each area; and the uses which are considered reasonably safe to be conducted in those areas as a result of the actions taken by the Navy. The State shall record the certification documents with the State Bureau of Conveyances and transmit and notice such certification to any successors or assigns of the State, including any lessees.

L. If the Navy is unable to complete all ordnance clearance or removal or environmental restoration under the cleanup plan described in Section VI, specific portions of the island may remain hazardous to public safety. The Navy shall be responsible for providing, by November 11, 2004, specific notice to the State to that effect. The Navy's notice shall be recorded by the State with the State Bureau of Conveyances. The notice shall describe the actions taken, if any, to implement the cleanup plan; the specific ordnance clearance or removal or environmental restoration activity, if any, performed in each area; and the uses which are considered reasonably safe to be conducted in that area. If further clearance, removal or environmental restoration occurs in an area that had been previously designated in a notice as remaining hazardous to public safety, then there shall be certification that additional actions have been taken in that area and that certain uses, if any, are now considered reasonably safe to be conducted in that area.

M. The Navy and the State agree that if the cleanup plan as described by this MOU is satisfactorily implemented (as that term is defined below) for any site or area, then the State shall make no demands upon the United States to undertake at such site or area any further clearance, removal, remediation, restoration or corrective actions to conform to other standards.

By "satisfactorily implemented", the Navy and the State mean:

(1) that the cleanup plan has been implemented in accordance with the standards described in Section VI of this MOU;

(2) that the cleanup plan for such site or area has incorporated any amendments that have been jointly agreed to;

(3) that the cleanup plan has been implemented in accordance with the priorities established by the process described in Section VI.A of this MOU; and

(4) that the Navy has provided certification of completion of ordnance clearance or removal or environmental restoration as described in Section VI.K of this MOU.

N. Any requirement for the payment or obligation of funds pursuant to this MOU shall be subject to the availability for obligation by the Secretary of the Navy of funds deposited in the Kaho'olawe Island Conveyance, Remediation, and Environmental Restoration Fund established by Title X, or the availability for obligation of such other funds as may be appropriated by Congress specifically for the clearance or removal of ordnance on, or environmental restoration of, the island of Kaho'olawe.

O. The parties recognize that nothing in this MOU prevents the State from exercising its right to petition Congress for additional funds for further ordnance clearance, removal, or environmental restoration on the island of Kaho'olawe or in its surrounding waters. However, nothing in this MOU shall be interpreted or construed as the Navy's endorsement of, or support for, any such petition by the State.

VII. PROTECTION OF HISTORICAL, CULTURAL AND RELIGIOUS SITES AND ARTIFACTS

Protocol: The KIRC and the Navy shall enter into a protocol establishing the procedures for protecting historical, cultural, and religious sites and artifacts from destruction, harm or vandalism; sanctions; monitoring by the KIRC of environmental restoration activities at or in the vicinity of such sites; and the role of the KIRC in determining the protection and treatment of all such sites. This protocol shall be applicable to all
persons permitted access to Kaho'olawe and shall be referenced in all Navy contracts which provide access to Kaho'olawe.

VIII. ACCESS

A. Title X provides that:

(1) The Navy shall retain control of access to the island of Kaho'olawe until November 11, 2003, or until the cleanup under Title X and this MOU is complete, whichever comes first. At the end of this period, control of access to the island shall be transferred to the State.

(2) During the time period when the Navy controls access to the island of Kaho'olawe, the Navy shall permit limited access to the island for meaningful, safe use of the island for appropriate cultural, historical, archaeological, educational and restoration purposes as determined by the KIRC, giving due regard to: (i) the risk involved in permitting such access; and (ii) the need to avoid interference with or disruption of the Navy's ordnance clearance or removal or environmental restoration.

(3) After the Navy transfers control of access to Kaho'olawe to the State, the Navy shall be provided full and necessary access to the island and its surrounding waters to

carry out any remaining responsibilities and liabilities under Title X.

B. To implement the requirements of subparagraph VIII.A.(1) of this MOU, the Secretary of the Navy and the State of Hawaii agree that:

(1) Control of access to the island after transfer to the State is subject to the conditions stated in Section V of this MOU.

(2) If the Navy is unable to complete all ordnance clearance or removal or environmental restoration under the cleanup plan described in Section VI, certain areas of the island will remain hazardous to public safety. The Navy shall provide, by November 11, 2004, specific notice to the State identifying those areas that remain hazardous. The State shall record the Navy's notice with the State Bureau of Conveyances.

(3) After control of access to the island passes to the State, the State shall be responsible for controlling access to all areas of the island for the purposes of protecting human health and public safety.

(4) Prior to November 11, 2003, the Navy may transfer to the State control of access to any site that the Navy has certified pursuant to Section VI.K. of this MOU.

C. To implement the requirements of subparagraph VIII.A.(2) of this MOU, the Navy and the State agree that:

(1) The Commander, Naval Base, Pearl Harbor, as the agent of the Secretary of the Navy, shall be responsible for control of officially authorized access to the island until November 11, 2003, or until the Secretary and the State agree that the cleanup is complete, whichever occurs first.

(2) The Commander, Naval Base, Pearl Harbor, shall exercise final authority over all requests for access to the island during the time period when the Navy retains control of access to the island.

(3) The Navy shall have full access to the island for the purposes of implementing Title X in accordance with the guidelines established in this MOU, the cleanup plan, and any other applicable agreements between the Navy and the State.

(4) Any individual, organization or contractor allowed access to the island shall have only that access necessary to carry out the purposes for which such access was granted.
(5) The Navy and the KIRC shall apply the following operational protocol when providing access to the island under the terms of this MOU:

(a) Requests for access related to the Navy's cleanup of the island may be submitted directly to the Commander, Naval Base, Pearl Harbor, without first applying to the KIRC. The KIRC shall be reasonably advised of requests granted. Upon request by the KIRC, the Navy will endeavor to provide to the KIRC a list of all persons present on the island.

(b) The access to Kaho'olawe that was afforded under the 1980 Consent Decree, described at Section I.C., remains in effect so long as that Consent Decree remains in effect.

(c) All other requests for access to the island submitted to the Navy, including those from Federal agencies, shall be forwarded to and reviewed by the KIRC prior to consideration by the Navy. The Navy shall approve only those requests approved and forwarded to the Navy by the KIRC. No access will be granted for purposes other than those set forth in Title X, this MOU, and Chapter 6K of the Hawaii Revised Statutes.

(d) The Navy and the State will permit the United States Coast Guard to have access to its lighthouse for maintenance and any other appropriate purposes.
(e) The Navy may deny any request for access submitted by the KIRC if the requested access: (i) creates an unreasonable risk of harm to human health or public safety or the environment; or (ii) may interfere with or disrupt the Navy's clearance, removal, or environmental restoration activities. The Navy shall provide its reasons for denying access.

(f) Pursuant to Section V of this MOU, the Navy shall transfer control of access to Kaho'olawe to the State not later than November 11, 2003. The Navy and the State may agree to transfer control of access to Kaho'olawe earlier than November 11, 2003, if the cleanup under the terms of this MOU is completed earlier. Prior to such transfer, the Navy and the State shall agree upon a procedure for providing full and necessary access to the Navy to conduct any subsequent responsive cleanup required by Title X, as described in Section XI of this MOU, and to undertake any other remaining responsibilities or liabilities under Title X.

(g) Any individual or organization that requests access to the island shall be responsible for arranging transportation to and from the island. A description of the proposed means of transportation must accompany all request(s) for access. No vessel, aircraft or person shall be permitted to land upon the island without the specific prior approval of the Navy.
(h) The KIRC, in consultation with the Navy, may designate certain areas as off-limits, or for limited access only, for the protection of historical, cultural and religious sites and artifacts. The Navy, in consultation with the KIRC, may designate any area as off-limits, or for limited access only, for safety purposes or to prevent interference with or disruption of the Navy's clearance, removal, or environmental restoration activities. No area shall be considered off-limits except for these reasons.

(i) The KIRC shall be the State's single point of contact regarding access to the island. The KIRC shall promulgate State rules concerning access to the island and the waters surrounding the island. The KIRC shall consult with the Navy in the development of such access rules.

(j) There shall be a procedural and communications protocol for application in emergencies.

(k) The State's law enforcement officers shall be afforded full access to all areas of the island in order to carry out their responsibilities.

(6) Security is necessary in order to enforce the control of access to and on Kaho'olawe and the lawful behavior of persons on the island. Both the Navy and the State have an interest in the enforcement of laws and rules on the island and in its surrounding waters. Upon conveyance of Kaho'olawe to the State, the island becomes State property. The Navy and the State agree that during the period when the Navy controls access to the island, the costs of providing security services will be appropriately shared by the Navy and the State. An agreement providing for security services and payment for such security services shall be developed by the Navy and the State.

IX. REGULATORY FRAMEWORK

A. Title X contemplates that a cleanup of Kaho'olawe will be completed within 10 years, to an extent sufficient to provide for public safety and protect human health and the environment based upon the State's planned uses of the island and available specific Congressional appropriations. The Navy and the State agree that, by implementing the cleanup plan pursuant to Title X, the Navy and the State intend to satisfy any Federal, State or local substantive requirement to which the United States or the State of Hawaii would otherwise, in these circumstances, be subject. The parties intend that the actions taken by the Navy pursuant to this MOU and Title X shall satisfy removal, remediation, or corrective action obligations that the Navy may have under Federal and State environmental laws. To these ends, the Navy and the State agree mutually to develop an efficient and reasonable Federal, State and local regulatory framework.
B. The regulatory framework shall identify the respective roles of the Navy and the KIRC and shall include or waive such Federal, State or local substantive requirements as the Navy and the KIRC agree are applicable or relevant and appropriate to the cleanup and its implementation, as contemplated by Title X and this MOU. Such Federal, State, and local requirements shall be limited to those which are of general application, were adopted by formal means, are risk based, and have as their purpose the protection of human health and the environment, including the protection of historical, cultural and religious sites and artifacts. The KIRC shall identify State and local substantive requirements for consideration as applicable or relevant and appropriate requirements, and the KIRC shall be the Navy's single point of contact in this regard.

X. PUBLIC PARTICIPATION

The Navy and the KIRC, on behalf of the State, shall develop an agreement regarding public participation, as appropriate, in all actions undertaken pursuant to this MOU, including the opportunity for public comment and hearing. Unless otherwise provided for in this public participation agreement, the KIRC shall be the primary vehicle for public participation.

XI. MEANS FOR REGULAR INTERVAL CLEANUPS AND REMOVAL BY THE NAVY OF NEWLY DISCOVERED PREVIOUSLY UNDETECTED ORDNANCE

The Navy and the KIRC, on behalf of the State, shall develop an agreement by May 9, 1998, regarding procedures by which the Navy may conduct regular interval clearance and removal of newly discovered, previously undetected ordnance.

XII. BUDGET

The Navy and the State have a mutual interest in ensuring that any funds appropriated to implement Title X are spent in an efficient and effective manner. The Navy and the KIRC shall confer with each other when developing any proposed budgets for Kaho'olawe actions.

XIII. DISAGREEMENTS

Should there be any disagreement regarding any issue arising out of this MOU that cannot be resolved between the Navy and the KIRC, the Navy and the State agree to participate in good faith in an appropriate mediation process.

XIV. EFFECT OF AGREEMENTS AND AMENDMENTS

A. Any of the agreements or protocols established pursuant to any provision of this MOU shall remain in effect until completion of the cleanup, removal, or environmental restoration activities and may be revised periodically by mutual consent, giving due regard to the importance of access to the island as the level of cleanup, removal, or environmental restoration approaches completion.

B. This MOU may be amended by mutual agreement. This MOU, any amendments to this MOU, and any of the agreements and protocols established pursuant to this MOU, are binding upon the parties and any successors or assigns, unless there is a mutual agreement to the contrary. Any amendments to the MOU shall be recorded by the State in the State Bureau of Conveyances.

XV. MEETINGS

The Navy and the KIRC shall meet at least monthly for regular and formal communications and updates concerning the progress of implementation of Title X and this MOU, until such time as the parties mutually agree to have less frequent formal meetings.

XVI. NO PRIVATE CAUSE OF ACTION

Neither this MOU, nor any provision in this MOU, nor any agreements, plans, or protocols required by or called for in this MOU shall create or give rise to, nor are they intended to create or give rise to, any private cause of action by any person or entity of any kind other than the Navy and the State or any successor or assign.

XVII. ENFORCEABILITY

A. This MOU, and any document, protocol or written agreement prepared pursuant to this MOU and the terms, conditions and provisions of Title X, regarding the activities, duties and responsibilities of the United States and the State of Hawaii, and their departments, agencies, and instrumentalities, as set forth in Title X, and occurring on the island of Kaho'olawe and in its adjacent waters shall be judicially enforceable by both the Navy and the State in the Federal courts. In any judicial review under Title X, the United States or the State, or both, if not a party, may intervene as a matter of right. The United States, its departments, agencies and instrumentalities shall be subject only to such injunctive relief as may be imposed by the Federal court to order any performance required under the terms of Title X and this Memorandum of Understanding. Such compliance
shall be enforced giving due regard to the need for expeditious cleanup under the MOU and the terms and conditions of Title X.

B. It is the intent of the parties that this MOU and the provisions contained herein remain in force notwithstanding any subsequent transfer of title by deed from the United States to the State of Hawaii or from the State of Hawaii to any other entity.

UNITED STATES DEPARTMENT OF THE NAVY

FOR THE SECRETARY OF THE NAVY, JOHN H. DALTON
 

_/S/______________________________________May 6, 1994
WILLIAM J. CASSIDY, JR.
Deputy Assistant Secretary of the Navy

_/S/_____________________________________May 6, 1994
WILLIAM A. RETZ
Rear Admiral, U.S. Navy
Commander, Naval Base, Pearl Harbor
 

STATE OF HAWAII

_/S/_________________________________________May 6, 1994
JOHN WAIHEE
Governor

_/S/_______________________________________May 6, 1994
NOA EMMETT ALULI, M.D.
Chair, Kaho'olawe Island Reserve Commission

I. INTRODUCTION AND PARTIES

A. The parties to this agreement are the United States Department of the Navy and the State of Hawai'i.

1. "The Navy," as referred to herein, means the United States Department of the Navy.

2. "The State," as referred to herein, means the State of Hawai'i.

3. "The KIRC," as referred to herein, means the Kaho'olawe Island Reserve Commission, on behalf of the State.

C. Section IX of the Memorandum of Understanding Between the United States Department of the Navy and the State of Hawai'i Concerning the Island of Kaho'olawe, Hawai'i, as recorded with the State of Hawai'i Bureau of Conveyances as Doc. No. 94-075038 on May 6, 1994, (referred to herein as "the MOU") states:

Title X contemplates that a cleanup of Kaho'olawe will be completed within 10 years, to an extent sufficient to provide for public safety and protect human health and the environment based upon the State's planned uses of the island and available specific Congressional appropriations. The Navy and the State agree that, by implementing the cleanup plan pursuant to Title X, the Navy and the State intend to satisfy any Federal, State or local substantive requirement to which the United States or the State of Hawai'i would otherwise, in these circumstances, be subject. The parties intend that the actions taken by the Navy pursuant to this MOU and Title X shall satisfy removal, remediation, or corrective action obligations that the Navy may have under Federal and State environmental laws. To these ends, the Navy and the State agree mutually to develop an efficient and reasonable Federal, State and local regulatory framework.

The regulatory framework shall identify the respective roles of the Navy and the KIRC, and shall include or waive such Federal, State or local substantive requirements as the Navy and the KIRC agree are applicable or relevant and appropriate to the cleanup and its implementation, as contemplated by Title X and this MOU. Such Federal, State, and local requirements shall be limited to those which are of general application, were adopted by formal means, are risk based, and have as their purpose the protection of human health and the environment, including the protection of historical, cultural and religious sites and artifacts. The KIRC shall identify State and local substantive requirements for consideration as applicable or relevant and appropriate requirements, and the KIRC shall be the Navy's single point of contact in this regard.

D. The parties agree that this document, including its appendices, is the Regulatory Framework described in the MOU (herein referred to as "the RFW"). The terms defined and used in the RFW are considered to be consistent throughout the entirety of the RFW.

E. In the MOU, the parties agreed jointly to develop 6 post- MOU agreements: a regulatory framework, a site protection agreement, a public participation agreement, a security agreement, an emergency communication agreement, and an agreement for regular interval clearance and removal of newly discovered, previously undetected ordnance.

1. The regulatory framework, the site protection agreement, and the public participation agreement comprise this RFW.

2. The security agreement, the emergency communication agreement, and the agreement for regular interval clearance and removal of newly discovered, previously undetected ordnance will be negotiated at a later date.

A. The Title X clearance or removal of unexploded ordnance (herein referred to as "UXO") from and environmental restoration of Kaho'olawe, to assure the meaningful, safe use of the Island for appropriate cultural, historical, archaeological, and educational purposes as determined by the State of Hawai'i, as described in the MOU, shall be referred to herein as "the Cleanup." This term also includes related activities such as, but not limited to, transportation, construction of supporting infrastructure, and provision of on-island support services.

B. Regulatory Process: In accordance with the MOU, the Navy shall proceed with the Cleanup, in consultation with the KIRC, in a manner consistent with the Comprehensive Environmental Response, Compensation and Liability Act, Public Law 96-510, 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986, Public Law 99-499 (referred to herein as "CERCLA") and any subsequent amendments thereto, and the National Oil and Hazardous Substances Pollution Contingency Plan, 40 CFR Section 300 et seq. (referred to herein as "the NCP") and any subsequent amendments thereto.

The Navy, utilizing its lead agency authority for the Cleanup, pursuant to Section 2(d) of Executive Order 12580 (59 FR 2923) of January 23, 1987, and CERCLA, 42 U.S.C. § 9615, shall execute the Cleanup, in consultation with the KIRC.

1. With respect to the Cleanup, the parties will follow the response action process outlined in the NCP which applies to response actions with a planning period of at least six months, known as CERCLA non-time critical removal actions.

2. The parties will utilize, where appropriate, Environmental Protection Agency documents, such as the "Guidance on Conducting Non-Time Critical Removal Actions Under CERCLA," (EPA/540-R-93-057, Publication 9360.0-32, PB93-963402, August 1993); and the final version of the Department of Defense rule for appropriate response actions for closed, transferred, or transferring ranges, known as the DOD Range Rule, and its implementing guidances.

1. The Cleanup is undertaken pursuant to Title X of the Fiscal Year 1994 Department of Defense Appropriations Act, Public Law 103-139, 107 Stat. 1418;

2. Title X contemplates that the Cleanup will be completed within a ten-year period commencing on November 11, 1993;

3. The Cleanup is funded by specific Congressional appropriations;

4. The allocation of liability has been defined by specific legislation;

5. In accordance with Title X, the title to Kaho'olawe Island was conveyed to the State of Hawai'i prior to the Cleanup;

6. In accordance with Title X, the parties have entered into the MOU;

7. In accordance with Title X, a percentage of the specific Congressional appropriations is provided to the State to plan for long term use of the Island, implement the provisions of the MOU, and implement environmental restoration activities.

8. The Cleanup will be based upon specified land uses and will be implemented in consultation with the KIRC, on behalf of the State of Hawai'i;

9. The Navy, in consultation with the KIRC, shall develop a Cleanup Plan that meets the requirements of Section VI of the MOU.

10. The Island is designated as the Kaho'olawe Archaeological District on the National Register of Historic Places and its cultural significance has been recognized; and,

11. The Island was used by the United States of America and its allies as a weapons range and military training area for fifty years.

Therefore, the parties acknowledge that the State has a vested interest in the Cleanup of Kaho'olawe. As such, the Navy shall diligently consult with the KIRC in all aspects of planning and executing the Cleanup. Furthermore, the Navy shall endeavor to execute the Cleanup in a manner that is supportive of the State's long term interests and responsibilities.

III. RESPECTIVE ROLES OF THE PARTIES

A. The Navy:

1. The Navy shall serve as the lead agency for the Cleanup.

2. In accordance with Section VI of the MOU, the Navy, in consultation with the KIRC, shall develop a Cleanup Plan which will include and describe, among other items, the timing, planning, methodology, use of technologies, implementation of ordnance clearance or removal and environmental restoration. The Cleanup Plan will be a comprehensive document written in a manner that will facilitate KIRC and public understanding of the entire Cleanup process.

3. The Navy shall be wholly responsible for implementation of the Cleanup Plan.

4. To the extent practicable, the Navy shall coordinate implementation of its Cleanup Plan with the KIRC's Restoration Plan.

1. The KIRC shall be the Navy's single point of contact with the State and will be consulted by the Navy for the review of, and input into, all aspects of planning and executing the Cleanup.

2. The KIRC, in consultation with the Navy, shall submit a detailed Use Plan to the Navy for the entire island of Kaho'olawe, which specifically identifies the uses to which each site or area on the Island will be put. As part of this Use Plan, the KIRC shall select sites or areas and identify the priority of those sites or areas that are to be cleaned to the Tier Two standard.

3. The KIRC, in consultation with the Navy, shall develop a Restoration Plan and coordinate it with the Navy's development of the Cleanup Plan.

4. The KIRC, in consultation with the Navy, may designate certain areas as off-limits, or for limited access only, for the protection of historical, cultural and religious sites and artifacts.

A. The parties have compiled a list of potential Federal, State, and local requirements which are intended to be met unless waived pursuant to the NCP or otherwise provided for in the RFW. These general requirements are set forth in Appendix A.

B. The parties recognize that development of the specific requirements which will apply to each activity of the Cleanup will be an ongoing, iterative process, and that it is not possible or appropriate to determine all of the specific applicable or relevant and appropriate requirements at this time. The parties also recognize that, as more information is developed about the Cleanup, it may be appropriate or otherwise necessary to add or waive some of the requirements identified in this document. Accordingly, to the extent practicable considering the exigencies of the situation, the parties have agreed to follow the applicable requirements and also to follow a set of criteria and procedures which are consistent with CERCLA and the NCP to determine whether a waiver should be invoked, except as otherwise provided in the RFW.

C. The Site Protection Agreement, incorporated as Appendix B of the RFW, is a mandatory requirement unless mutually waived by the Navy and the KIRC.

D. The parties recognize that, while Kaho'olawe is severely eroded, certain activities of the Cleanup may further contribute to soil erosion. Therefore, erosion and runoff control standards for the Cleanup will be cooperatively developed by the Navy and the KIRC and will be derived from Federal, State, and local requirements identified in Appendix A and will be consistent to the maximum extent practicable with the KIRC Restoration Plan. These standards will be mandatory requirements unless mutually waived by the Navy and the KIRC.

E. The parties shall cooperatively plan any Navy infrastructure improvements for the Cleanup.

V. DISPUTE RESOLUTION

A. Invocation of Dispute Resolution

1. The parties agree to work cooperatively to avoid disputes in the implementation of the MOU and in all phases of the Cleanup.

2. However, pursuant to Section XIII of the MOU, for any disputes, the parties agree to follow the dispute resolution procedures set forth herein. If these procedures are invoked, the parties agree that they will be used in lieu of any dispute resolution that might otherwise be available under Section XIII of the MOU.

3. Either party may invoke these dispute procedures for the following activities:

a. Within 10 working days after: (1) receipt by either party of a draft document; (2) receipt by either party of comments from either party on a document; or

b. Recognition of any circumstance that endangers or threatens to endanger human health, safety or the environment, including historical, cultural or religious sites or artifacts.

1. The disputing party shall engage the other party's designated counterpart in dispute resolution prior to elevating the dispute to the Dispute Resolution Committee. Written notice of any delegation of authority from a party's designated representative shall be provided to the other party.

2. For disputes arising:

a. On the Island, during the execution of the Cleanup, there shall be a designated KIRC On-Island Representative (KOR) and a designated Navy Technical Representative (NTR) available for the resolution of disputes. Activities at a particular site or area shall be suspended for such a period of time as is required to resolve the dispute. Work may proceed in other areas unaffected by the dispute.

b. From other activities resulting in the invocation of the dispute resolution procedures herein, technical staff for the KIRC and the Navy will be the first level for the resolution of disputes.

3. If the parties' technical staffs or the KOR and the NTR disagree, then the KIRC technical staff or the KOR shall elevate the concern to the Kaho'olawe Remediation Coordinator (KRC) and the Navy technical staff or the NTR shall elevate the concern to the Navy's designated Project Manager (PM) at the Pacific Division, Naval Facilities Engineering Command (PACNAVFACENGCOM). The KRC and the PM shall have 24 hours to resolve the dispute.

4. If the KRC and the PM disagree, the KRC shall elevate the concern to the KIRC's Executive Director (ED), and the PM shall elevate the concern to the Navy's designated Kaho'olawe Project Officer (KPO). The ED and the KPO shall have 36 hours to resolve the dispute.

5. If the ED and the KPO fail to resolve the dispute, then the issue shall be submitted to the Dispute Resolution Committee (DRC) for resolution.

a. The State's designated representatives are the Chair, KIRC and the Chair, Board of Land and Natural Resources, and the Navy's designated representatives are the Vice Commander, PACNAVFACENGCOM and the Commander, Naval Base, Pearl Harbor.

b. The disputing party shall submit to the DRC a written statement of dispute setting forth the nature of the dispute, the disputing party's position with respect to the dispute, and the technical, legal or factual information the disputing party is relying upon to support its position.

c. The DRC shall have 10 working days to resolve the dispute and issue a written decision. The DRC may utilize the State of Hawai'i's Center for Alternative Dispute Resolution or a third party neutral mediator or facilitator who is mutually acceptable to both parties to assist in resolution of the dispute. The parties shall each pay half of any costs for such assistance.

1. Nothing in these sections, except as stated above, limits either party's rights under Section XVII of the MOU to seek judicial review. However, the parties agree to exhaust their rights under the sections above before exercising any rights to judicial review.

The RFW fulfills the requirements of Section IX of the MOU.

VII. MOU PROVISIONS

Nothing in the RFW is intended to modify any provision of the MOU. Reference is specifically made to Section V. Conveyance, Section XVI. No Private Cause of Action, and Section XVII. Enforceability.

VIII.MODIFICATION OF THE RFW

Any provision of the RFW may be modified, expanded, or deleted upon mutual written agreement between the parties, as provided in Section XIV.B. of the MOU.

IX. SIGNATURES IN AGREEMENT
 

UNITED STATES DEPARTMENT OF THE NAVY
FOR THE SECRETARY OF THE NAVY, JOHN H. DALTON
 

''''''''''''''''''''''''''''''''' ''''''''''''
GORDON S. HOLDER Date
Rear Admiral, U.S. Navy
Commander, Naval Base, Pearl Harbor
 

STATE OF HAWAI'I
 

''''''''''''''''''''''''''''''''' ''''''''''''
BENJAMIN J. CAYETANO Date
Governor
 

''''''''''''''''''''''''''''''''' ''''''''''''
NOA EMMETT ALULI, M.D. Date
Chair, Kaho'olawe Island Reserve Commission

I. INTRODUCTION

This listing of Applicable Requirements is incorporated as Appendix A of the Regulatory Framework.

II. FEDERAL REQUIREMENTS

A. Historical, Cultural and Religious Sites and Artifacts.

1. National Historic Preservation Act, 16 U.S.C. § 470 et seq.

- 36 CFR Part 800.

1. Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.

- 40 CFR Part 300.

2. Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.

- 40 CFR Parts 260-270.

1. Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.

- 50 CFR Parts 81, 225, 402, 450-453.

2. Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq.

3. Marine Mammal Protection Act, 16 U.S.C. § 1361 et seq.

4. Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. § 1401 et seq., § 103 (c).

- 40 CFR Parts 225, 227, 228.

5. Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.

1. Coastal Zone Management Act of 1972, 16 U.S.C. § 1451 et seq.

- 15 CFR Part 930; §§ 930.30 and 930.34.

2. Rivers and Harbors Act, 33 U.S.C. § 403 et seq.

- 33 CFR Parts 320-329.

- 40 CFR Parts 122, 123, 125, 131, 230, 231, 233, 400-469.

1. Occupational Health Safety Act of 1970, 29 U.S.C. § 651 et seq.

- 29 CFR §§ 1910, 1910.120, 1915, 1918, 1926.

1. Clean Air Act, 42 U.S.C. § 7401 et seq.

- 40 CFR Part 61.

- 40 CFR § 52.21(j).

- 40 CFR § 52.21(b)(1)(i)(a).

- 40 CFR § 60.52.

1. Clean Water Act, 33 U.S.C. § 1251 et seq.
§§ 301-304, 306, 307, 402, 403, 404(b)(1).

- 40 CFR Parts 6, 112, 122, 123, 125, 131, 220- 225, 227, 228, 230, 231, 233, 400-469.

- 33 CFR Parts 153, 154, 320-330.

2. Safe Drinking Water Act, 42 U.S.C. § 300(f) et seq.

- 40 CFR 141 - 147.

1. Hazardous Materials Transportation Act, 49 U.S.C. § 1803, 1804, 1808.

- 49 CFR Parts 107, 171, 172.

A. Historical, Cultural, and Religious Sites and Artifacts.

1. Hawai'i Revised Statutes (HRS), Chapter 6E, Historic Preservation.

- HAR, Chapter 13-6-146.

2. Maui County Code (MCC), Chapter 19.48-19.54, County of Maui Historic District.

1. HRS, Chapter 174C, State Water Code.

2. HRS, Chapter 179, Flood Control and Flood Water Conservation.

3. HRS, Chapter 179D, Dams and Reservoirs.

4. HRS, Chapter 180C, Soil Erosion and Sediment Control.

5. HRS, Chapter 183, Forest Reserves, Water Development and Zoning.

6. HRS, Chapter 183D, Wildlife.

7. HRS, Chapter 185, Land Fire Protection Law.

8. HRS, Chapter 187A, Aquatic Resources.

9. HRS, Chapter 188, Fishing Rights and Regulations.

10. HRS, Chapter 190, Marine Life Conservation Program.

11. HRS, Chapter 195D, Conservation of Aquatic Life, Wildlife, and Land Plants.

- HAR Chapters 13-121 or 122, 13-124, 13-125.

12. HRS, Chapter 197, General Provisions Relating to Aquatic Resources and Wildlife.

13. HRS, Chapter 199, Conservation and Resources Enforcement Program.
14. HRS, Chapter 200, Ocean Recreation and Coastal Areas Programs.

15. MCC, Chapter 20.08, Soil Erosion and Sedimentation Control.

16. Revised Ordinance of Honolulu (ROH), Soil Erosion Standards and Guidelines, November 1975.

17. ROH, Supplement I: Soil Erosion Standards and Guidelines, December 1992.

1. HRS, Chapter 6K, Kaho'olawe Island Reserve.

- HAR, Chapter 13-260.

2. HRS, Chapter 205, Land Use Commission.

3. HRS, Chapter 205A, Coastal Zone Management.

- HAR, Chapter 13-222.

4. Maui County Ordinance No. 1052, Maui County General Plan.

5. Maui County Ordinance No. 1233, Kaho'olawe Community Plan.

1. HRS, Chapter 128D, Hawai'i Environmental Response Law.

- HAR, Chapter 11-451.

2. HRS, Chapter 128E, Hawai'i Emergency Planning and Community Right-To-Know Act.

3. HRS, Chapter 342J, Hazardous Waste Management Act.

- HAR, Chapter 11-260-266, 268, 269, 270, 271, 280.

4. HRS, Chapter 342H, Integrated Solid Waste Management.

- HAR, Chapter 11-58.1.

1. HRS, Chapter 342B, Air Pollution Control.

- HAR Chapters 11-59, 11-60.1.

1. HRS, Chapter 342D, Water Pollution Control.

- HAR Chapters 11-54, 11-55, 11-62.
2. HRS, Chapter 340E, Drinking Water Quality.

- HAR Chapters 11-19, 11-20, 11-21, 11-95.

1. HRS, Chapter 396, Occupational Safety and Health Standards.

- HAR Parts 2, 3, and 8.

1. HAR Chapter 19-11, Airport Site Approval, Airport Licensing, and Airport License Renewal.

I. INTRODUCTION AND PARTIES

A. This Site Protection Agreement (referred to herein as "the SPA") is Appendix B to the Regulatory Framework (referred to herein as "the RFW"), and is incorporated in the RFW.

B. The parties to the SPA are the United States Department of the Navy, the Kaho'olawe Island Reserve Commission on behalf of the State of Hawai'i, and the State Historic Preservation Officer.

1. "The Navy," as referred to herein, means the United States Department of the Navy.

2. "The KIRC," as referred to herein, means the Kaho'olawe Island Reserve Commission, on behalf of the State of Hawai'i.

3. "The SHPO," as referred to herein, means the Hawai'i State Historic Preservation Officer.

A. Section 10001(a) of Title X states that it is in the national interest and an obligation undertaken by Congress and the United States to recognize the cultural and humanitarian value of assuring meaningful, safe use of the island of Kaho'olawe for appropriate cultural, historical, archaeological and educational purposes as determined by the State of Hawai'i, and to provide for the clearance or removal of unexploded ordnance and for the environmental restoration of the Island for such purposes. Section 10001(a) also states that the island of Kaho'olawe is among Hawai'i's historic lands and has a long, documented history of cultural and natural significance to the people of Hawai'i.

B. Section 10001(b) of Title X directed that the United States of America, through the Secretary of the Navy, shall convey and return the island of Kaho'olawe to the State of Hawai'i. Section 10002(a)(2) directed the Secretary of the Navy to consult with and enter into a Memorandum of Understanding (hereinafter referred to as "MOU") with the State of Hawai'i, governing the terms and conditions of six issues relating to the cleanup of the island of Kaho'olawe, including the means for protecting historical, cultural, and religious sites and artifacts from intentional destruction, harm and vandalism. The Navy and the KIRC entered into the MOU on May 6, 1994. The conveyance of the Island to the State of Hawai'i was recorded with the Bureau of Conveyances on May 9, 1994.

C. Pursuant to Chapter 6K, Hawai'i Revised Statutes (HRS), the KIRC is comprised of 7 members appointed by the Governor of the State of Hawai'i: 1 member of the Protect Kaho'olawe 'Ohana (PKO); 2 members from a list provided by the PKO; 1 trustee or representative from the Office of Hawaiian Affairs; 1 Maui County official; the Chair of the State Board of Land and Natural Resources; and 1 member from a list provided by native Hawaiian organizations.

D. Chapter 6K, HRS created the Kaho'olawe Island Reserve, which includes the island of Kaho'olawe and the submerged lands and waters extending seaward two miles from the shoreline, and the KIRC to oversee the departments and agencies of the State with respect to control and management of the Reserve.

E. Chapter 6K, HRS, provides that the Kaho'olawe Island Reserve shall be used solely and exclusively and reserved in perpetuity for the preservation and practice of all rights customarily and traditionally exercised by native Hawaiians for cultural, spiritual, and subsistence purposes; for the preservation and protection of the Reserve's archaeological, historical, and environmental resources, rehabilitation, revegetation, habitat restoration and preservation; and for education. Commercial uses are strictly prohibited in the Reserve.

F. Sections VI.D and E of the MOU state in pertinent part:

"... the Navy's cleanup plan shall include and describe [the] protection of historical, cultural, and religious sites and artifacts from the detonation of unexploded ordnance, clearance or removal of ordnance, and cleanup of hazardous waste.... The cleanup plan shall further provide for:... reporting of any incidents harmful to human health, historical, cultural or religious sites, or the environment; [and] temporary cessation of clearance activities during certain scheduled cultural ceremonies, upon reasonable advance notice by the KIRC to the Navy...."

G. Section VI.G of the MOU provides that the Navy shall be wholly responsible for implementation of the Cleanup Plan.

H. Section VII of the MOU states:

Protocol: The KIRC and the Navy shall enter into a protocol establishing the procedures for protecting historical, cultural, and religious sites and artifacts from destruction, harm or vandalism; sanctions; monitoring by the KIRC of environmental restoration activities at or in the vicinity of such sites; and the role of the KIRC in determining the protection and treatment of all such sites. This protocol shall be applicable to all persons permitted access to Kaho'olawe and shall be referenced in all Navy contracts which provide access to Kaho'olawe.

I. Section IX of the MOU states:

Title X contemplates that a cleanup of Kaho'olawe will be completed within 10 years, to an extent sufficient to provide for public safety and protect human health and the environment based upon the State's planned uses of the Island and available specific Congressional appropriations. The Navy and the State agree that, by implementing the cleanup plan pursuant to Title X, the Navy and the State intend to satisfy any Federal, State or local substantive requirement to which the United States or the State of Hawai'i would otherwise, in these circumstances, be subject. The parties intend that the actions taken by the Navy pursuant to this MOU and Title X shall satisfy removal, remediation, or corrective action obligations that the Navy may have under Federal and State environmental laws. To these ends, the Navy and the State agree mutually to develop an efficient and reasonable Federal, State and local regulatory framework.

The regulatory framework shall identify the respective roles of the Navy and the KIRC and shall include or waive such Federal, State or local substantive requirements as the Navy and the KIRC agree are applicable or relevant and appropriate to the cleanup and its implementation, as contemplated by Title X and this MOU. Such Federal, State, and local requirements shall be limited to those which are of general application, were adopted by formal means, are risk based, and have as their purpose the protection of human health and the environment, including the protection of historical, cultural and religious sites and artifacts. The KIRC shall identify State and local substantive requirements for consideration as applicable or relevant and appropriate requirements, and the KIRC shall be the Navy's single point of contact in this regard.

J. Pursuant to Title X and the MOU, the parties agree that the SPA will be a mandatory requirement unless mutually waived by the Navy and the KIRC.

K. The parties intend that this agreement meets the substantive requirements of the National Historic Preservation Act (NHPA) and Chapter 6E, HRS.

L. The term "HCR site," as referenced herein, is the equivalent of an:

1. "historical, cultural and religious site or artifact" as referenced in Title X and the MOU; and

2. "historic property" which includes "properties of traditional religious and cultural importance" and other terms of law describing those properties included on, or which may be eligible for inclusion on, the National Register of Historic Places.

III. KAHO'OLAWE HISTORICAL, CULTURAL AND RELIGIOUS SITES

A. On March 18, 1981, the entire island of Kaho'olawe was placed on the National Register of Historic Places and designated as the Kaho'olawe Archaeological District. The Kaho'olawe Archaeological District contains over 2,000 recorded archaeological features as well as unrecorded features associated with traditional and historic Hawaiian land use, ranching, and military activities.

B. The parties respect the views of those who believe that land has a spiritual aspect, that the spirits of ancestors reside in the land, and that these ancestral spirits are to be respected and heeded. The parties respect the belief that appropriate ceremonies and rituals are prerequisites to entering and working in certain areas.

C. The parties concur that historical records demonstrate that only burials of native Hawaiian ancestry are known to exist on Kaho'olawe, and that all such burials occurred more than 50 years ago. Therefore, any human remains encountered will be presumed to be Hawaiian.

D. There are no recorded HCR sites in the coastal waters of Kaho'olawe; however, there is a potential for encountering HCR sites such as Hawaiian structures, fishing shrines and shipwrecks from various eras in the shallow, near-shore waters of Kaho'olawe.

IV. SITE PROTECTION PRINCIPLES

A. Consistent with Sections VI.B and C of the MOU, HCR sites shall be included in the Cleanup in order to allow for the reasonably safe use of such sites for cultural, historical, archaeological and educational purposes as determined by the KIRC.

B. During the execution of the Cleanup, the Navy shall, in consultation with the KIRC, conduct ordnance clearance or removal and environmental restoration of HCR sites, recognizing that such actions may pose adverse effects and require some form of mitigation.

C. The purpose of any archaeological or historic preservation work is to support the efficient execution of the Cleanup by facilitating the avoidance or mitigation of any adverse effects on HCR sites.

D. If avoidance of adverse effects cannot be accomplished at an HCR site during the Cleanup, then mitigation is required.

1. Mitigation of adverse effects is specific to each type of Cleanup activity and should be commensurate with the type of HCR site and the expected nature of the impact.

2. Mitigation of adverse effects shall emphasize site protection through planning, education (e.g. providing site protection briefings to personnel on the Island), and monitoring HCR sites and project activities to prevent inadvertent damage or vandalism.

3. In the case of deflated HCR sites located on the hardpan, mitigation through temporary removal and replacement of potentially affected archaeological materials should be considered. Archaeological materials removed under these conditions should be replaced in their approximate pre-Cleanup location to maintain the educational value of their pre-Cleanup location and distribution.

4. Mitigation tasks should be designed to minimize the amount of archaeological material collected and analyzed to acquire the necessary data. Field recording of in-situ HCR sites, for example, should be thoroughly considered before more intrusive forms of data recovery, such as surface collection or excavation, are recommended.

V. SITE PROTECTION PROCEDURES

A. The Navy will provide for the protection of HCR sites, including properties of traditional religious and cultural importance, from destruction, harm or vandalism in accordance with the SPA.

B. The Navy will consult with the KIRC, in order to identify properties of traditional religious and cultural importance, and assess any action related to the Cleanup that may affect any such property. The KIRC, in providing recommendations to the Navy, will coordinate with other native Hawaiian organizations that may attach traditional religious and cultural significance to these properties.

C. In the case of potential adverse effects to HCR sites, the KIRC will be consulted on site treatment including any proposed data recovery and curation. If the consultation does not result in concurrence regarding the proposed site treatment, the issue may be resolved pursuant to the dispute resolution provisions contained in Section IX of the SPA.

D. The Navy will provide historic property protection briefings to all personnel who will be working on the Island.

E. In addition to other briefings provided by the Navy, the KIRC will provide cultural and historical orientation regarding Kaho'olawe to all personnel. Completion of this orientation shall be a mandatory requirement for all personnel working on the Island. All personnel shall complete the orientation before accessing the Island for the first time, unless the KIRC and the Navy mutually waive the requirement. Personnel initially waived from attending orientation shall complete the orientation at the earliest opportunity thereafter unless the KIRC and Navy mutually agree that orientation is not necessary.

F. The KIRC will provide for ceremonies on Kaho'olawe, prior to the start of the Cleanup. The parties agree that additional ceremonies could be performed during the Cleanup. The KIRC shall conduct these ceremonies. Participation is voluntary; the KIRC encourages participation of all personnel on the Island.

G. The KIRC and the Navy shall jointly establish Island Rules, applicable to all personnel on the Island, to protect Kaho'olawe's natural and cultural resources during the Cleanup.

H. A Research Design, consistent with the SPA, will be prepared by the Navy in which all categories of HCR sites and the appropriate treatment for them are described. Upon completion of the Research Design, the parties will endeavor to expedite the following review and concurrence process:

1. The KIRC, in consultation with the SHPO, will be provided 30 days to review and concur with the Research Design.

2. In the event that the KIRC does not concur with the document, the parties will agree to an amended schedule for consultation, review and concurrence or may enter into dispute resolution procedures as provided in this document.

1. The KIRC, in consultation with the SHPO, will be provided 30 days to review and concur with the Historic Preservation Implementation Plan.

2. In the event that the KIRC does not concur with the document, the parties will agree to an amended schedule for consultation, review and concurrence or may enter into dispute resolution procedures as provided in this document.

K. In order to ensure that historic preservation concerns are addressed throughout the Cleanup, the Navy will prepare and submit, on a quarterly basis during the first year, written field reports for review and concurrence by the parties. At the time of the first annual review, the quarterly reporting schedule may be revised upon mutual agreement of the parties.

L. Human remains exposed or recognized under any conditions during the Cleanup, including archaeological or historic preservation work, will be protected from imminent harm and left in place. Protective measures may include covering human burials with appropriate material to shield them from further deterioration. The Navy shall report, as soon as possible, the discovery of any remains to the KIRC, who shall then inform the SHPO and the Maui County Police Department. The KIRC, in consultation with the SHPO, will be responsible for the disposition of any human remains. The Navy may provide assistance to the KIRC, if requested, to accomplish the disinterment and reinterment.

M. During the Cleanup, the Navy will provide temporary curation of archaeological materials, as needed.

N. The SHPO will provide technical assistance and support to the KIRC on an as-needed basis.

O. The KIRC may request the assistance of the Navy and the SHPO in the development of a long term site management plan.

P. As provided in Section VIII.C.(5)(h) of the MOU, the KIRC, in consultation with the Navy, has the authority to designate certain areas as off-limits, or for limited access only, for the protection of HCR sites. As part of this consultation, the parties will enter into an agreement regarding the designation, establishment, and maintenance of any such areas.

Q. In the event submerged lands are selected for inclusion into the Cleanup, the parties shall develop procedures for the identification and protection of any submerged HCR sites.

VI. SANCTIONS

A. Any person who, not acting in accordance with the SPA, takes, appropriates, excavates, injures, destroys or alters any HCR site may be subject to prosecution and fines and penalties under State or Federal law.

B. The KIRC and the Navy will include a provision in any contract that involves work on Kaho'olawe to the effect that any person who, while performing work on Kaho'olawe, not acting in accordance with the SPA, violates these procedures or Island Rules or State or Federal law or Hawai'i Administrative Rules related to the protection of HCR sites may be subject to immediate removal from Kaho'olawe for the period of the Cleanup.

C. The KIRC and the Navy shall cooperate fully in any investigation regarding any allegation of a violation on Kaho'olawe of the SPA or of State or Federal law related to the protection of HCR sites.

D. Protection of HCR sites in accordance with the SPA is an important component of the work performed by the Navy during the Cleanup. The Navy will specifically evaluate the contractor's performance in implementing the SPA to determine the degree to which the contractor is deemed successful in executing the contract. The Navy will consider this evaluation during the determination of the contractor's award fee.

E. The KIRC will have the opportunity to participate in the process to evaluate the contractor's performance in the determination of the award fee.

VII. MONITORING

A. The Navy shall monitor compliance with this agreement by means of quality assurance (QA) and quality control (QC).

B. Authorized KIRC representatives shall be afforded full access, with proper escort to be provided by the Navy, to all areas of the Island in order to monitor the Navy's compliance with this agreement as well as any QA and QC procedures.

C. The Navy will provide transportation on the Island for KIRC representatives, on a space available basis, in the same manner as its personnel for QA purposes.

VIII.ROLE OF THE KIRC

A. Pursuant to HRS Chapter 6K and the MOU, the KIRC is the Navy's single point of contact with the State regarding all issues which may arise out of the MOU, including issues arising from the SPA.

B. The KIRC:

1. Will provide recommendations to the Navy for the identification of properties of traditional religious and cultural importance, and the assessment of any Cleanup action that may affect any such property; and will coordinate with other native Hawaiian organizations in this regard (as specified in Section V.B of the SPA);

2. Will be consulted on site treatment, including data recovery and curation, in the case of potential adverse impacts to HCR sites (as specified in Section V.C of the SPA);

3. Will provide cultural and historical orientation (as specified in Section V.E of the SPA);

4. Will conduct protocol and ceremonies (as specified in Section V.F of the SPA);

5. Will review and concur with the Research Design, Historic Preservation Implementation Plan, and field reports in consultation with the SHPO (as specified in Sections V.H, V.I, and V.K of the SPA);

6. Will be responsible for the disposition of any human remains, in consultation with SHPO (as specified in Section V.L of the SPA);

7. Has the authority to designate certain areas as off-limits, or for limited access only, for the protection of HCR sites (as specified in Section V.P of the SPA);

8. May participate in the contract performance evaluation process (as specified in Section VI.E of the SPA); and

9. May monitor the Navy's compliance with this agreement (as specified in Section VII.B of the SPA);

A. Disputes between the KIRC and the Navy or the SHPO and the Navy arising out of the SPA shall be resolved pursuant to Section V of the Regulatory Framework.

B. Disputes between the KIRC and the SHPO arising out of the SPA shall be resolved administratively between the two respective parties.

X. MOU IMPLEMENTATION

The SPA fulfills the requirements of Section VII of the MOU.

XI. MOU PROVISIONS

Nothing in the SPA is intended to modify any provision of the MOU. Reference is specifically made to Section V. Conveyance, Section XVI. No Private Cause of Action, and Section XVII. Enforceability.

XII. SIGNATURES IN AGREEMENT

UNITED STATES DEPARTMENT OF THE NAVY
FOR THE SECRETARY OF THE NAVY, JOHN H. DALTON
 

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GORDON S. HOLDER Date
Rear Admiral, U.S. Navy
Commander, Naval Base, Pearl Harbor
 

STATE OF HAWAI'I
 

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BENJAMIN J. CAYETANO Date
Governor
 

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NOA EMMETT ALULI, M.D. Date
Chair, Kaho'olawe Island Reserve Commission
 

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MICHAEL D. WILSON Date
State Historic Preservation Officer

I. INTRODUCTION AND PARTIES

A. This Public Participation Agreement (referred to herein as "the PPA") is Appendix C to the Regulatory Framework (referred to herein as "the RFW"), and is incorporated in the RFW.

B. The parties to the PPA are the United States Department of the Navy and the Kaho'olawe Island Reserve Commission, on behalf of the State of Hawai'i.

1. "The Navy," as referred to herein, means the United States Department of the Navy.

2. "The State," as referred to herein, means the State of Hawai'i.

3. "The KIRC," as referred to herein, means the Kaho'olawe Island Reserve Commission, on behalf of the State.

The Navy and the KIRC (Kaho'olawe Island Reserve Commission), on behalf of the State, shall develop an agreement regarding public participation, as appropriate, in all actions undertaken pursuant to this MOU, including the opportunity for public comments and hearing. Unless otherwise provided for in this public participation agreement, the KIRC shall be the primary vehicle for public participation.

D. The parties affirm that public participation is an important component of the actions to be undertaken pursuant to the MOU. Through implementation of the PPA, the parties will promote the involvement of the community and assure effective communication with the community by providing information in a timely manner, soliciting public comments, and considering those comments in the decision-making process.

E. The Navy, utilizing its lead agency authority pursuant to Section 2(d) of Executive Order 12580 (59 FR 2923) of January 23, 1987, and the NCP will, in consultation with the KIRC, proceed with the Cleanup in a manner consistent with CERCLA.

II. PUBLIC PARTICIPATION

A. The KIRC is a State administrative agency subject to the State of Hawai'i's administrative procedures and laws regarding public agency meetings and records, including Chapter 92, Hawai'i Revised Statutes.

B. At the KIRC's public meetings, the KIRC will afford the Navy, by way of a published agenda item entitled "Navy Report," an opportunity to: (1) provide the public with updated information concerning the Cleanup; (2) receive public comments; and (3) respond to all significant public inquiries raised regarding the Cleanup.

C. Consistent with the NCP, the Navy will establish an administrative record file and publish a notice of its availability for public inspection and comment in a major local newspaper.

D. In accordance with the MOU and as described in Section III.A.2 of the RFW, the Navy, in consultation with the KIRC, will develop a Cleanup Plan. The Navy shall make the Cleanup Plan readily available to the public for a review and comment period of not less than 30 calendar days from the time it is made available.

1. During the comment period, the KIRC will assist the Navy to present the Cleanup Plan in public meetings which will be held on O'ahu, Maui, Moloka'i, Lana'i, Hawai'i, and Kaua'i.

2. The KIRC will sponsor and provide notice of the meetings in consultation with the Navy. The Navy may provide additional notice in consultation with the KIRC.

3. The Navy will solicit public comments and prepare written responses to significant comments.

4. The Cleanup Plan, public comments, and written responses will be included in the administrative record file.

F. The parties may determine that, in certain circumstances, additional public meetings may be appropriate.

G. Nothing in the PPA is intended to preclude the public from submitting directly to the Navy comments and concerns regarding any Navy action related to the Cleanup.

H. The PPA serves as the community relations plan for the Cleanup.

III. MOU IMPLEMENTATION

The PPA fulfills the requirements of Section X of the MOU.

IV. MOU PROVISIONS

Nothing in the PPA is intended to modify any provision of the MOU. Reference is specifically made to Section V. Conveyance, Section XVI. No Private Cause of Action, and Section XVII. Enforceability.

V. SIGNATURES IN AGREEMENT

UNITED STATES DEPARTMENT OF THE NAVY
FOR THE SECRETARY OF THE NAVY, JOHN H. DALTON

/S/
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GORDON S. HOLDER Date
Rear Admiral, U.S. Navy
Commander, Naval Base, Pearl Harbor
 

STATE OF HAWAI'I

/S/
''''''''''''''''''''''''''''''''' ''''''''''''
BENJAMIN J. CAYETANO Date
Governor

/S/
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NOA EMMETT ALULI, M.D. Date
Chair, Kaho'olawe Island Reserve Commission

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