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Lake v. Ohana Military Communities, LLC

United States District Court, D. Hawaii

September 30, 2019

KENNETH LAKE, CRYSTAL LAKE, HAROLD BEAN, MELINDA BEAN, KYLE PAHONA, ESTEL PAHONA, TIMOTHY MOSELEY, ASHLEY MOSELEY, RYAN WILSON, and HEATHER WILSON, Plaintiffs,
v.
OHANA MILITARY COMMUNITIES, LLC, FOREST CITY RESIDENTIAL MANAGEMENT, INC., DOE DEFENDANTS 1-10, Defendants. Neighborhood No. of Units Year of Construction Plaintiffs Neighborhood Period Plaintiffs Amount of Rent

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT NO. 1 AND NO. 2

          Leslie E. Kobayashi, United Siates District Judge.

         On May 22, 2019, Defendants Ohana Military Communities, LLC (“Ohana”) and Forest City Residential Management, LLC (“Forest City” and collectively, “Defendants”) their: Motion for Summary Judgment No. 1 based upon Plaintiffs' Inability to Prove a Required Element of their Claims (“Motion 1”); and Motion for Summary Judgment No. 2 based upon Plaintiffs Inability to Prove Damages (“Motion 2”).[1] [Dkt. nos. 150, 152.] On July 1, 2019, Plaintiffs Kenneth Lake, Crystal Lake, Harold Bean, Melinda Bean, Kyle Pahona, Timothy Moseley, Ashley Moseley, Ryan Wilson, and Heather Wilson (“Plaintiffs”) filed their memorandum in opposition to Motion No. 1 (“Opposition 1”) and their memorandum in opposition to Motion No. 2 (“Opposition 2”). [Dkt. nos. 168, 166.] On July 8, 2019, Defendants filed their reply in support of Motion 1 and their reply in support of Motion 2. [Dkt. nos. 172, 173.]

         Motion 1 and Motion 2 (“Motions”) came on for hearing on July 19, 2019. On August 8, 2019, an entering order was issued informing the parties of the Court's rulings on the Motions. [Dkt. no. 181.] The instant Order supersedes that entering order. Defendants' Motions are hereby granted in part and denied in part for the reasons set forth below. Defendants Motions are granted insofar as summary judgment is granted as to all claims except Plaintiffs Kenneth Lake, Crystal Lake, Kyle Pahona, Ryan Wilson, and Heather Wilson's claims asserting that construction dust, in general and without regard to the contents of the dust, constituted a nuisance.

         BACKGROUND

         Plaintiffs are former residents of housing at Kaneohe Marine Corp Base Hawaii (“MCBH”).[2] [First Amended Complaint, filed 9/20/17 (dkt. no. 75), at ¶¶ 6-10; Answer to Pltfs.' First Amended Complaint [Doc. 75] (“Answer”), filed 6/29/18 (dkt. no. 99), at ¶¶ 6-10 (admitting that they were former residents).] The crux of Plaintiffs' claims is that the soil in at least some of the residential neighborhoods at MCBH is contaminated, and Defendants failed to perform adequate remediation measures and failed to disclose the contamination to Plaintiffs. The claims that remain in this case are: breach of contract against Ohana (“Count I”); breach of the implied warranty of habitability against Ohana (“Count II”); a Haw. Rev. Stat. Chapter 521 claim against Defendants (“Count III”);[3] a negligent failure to warn claim against Defendants (“Count V”); a negligent infliction of emotional distress (“NIED”) claim and an intentional infliction of emotional distress (“IIED”) claim against Defendants (“Count VI”); a fraud claim against Defendants (“Count VII”); a negligent misrepresentation claim against Defendants (“Count VIII”); and a nuisance claim against Defendants (“Count XI”).[4]

         I. Relevant Facts

         A. OCPs in General

         The parties agree that organochlorinated pesticides (“OCPs”) were commonly used in Hawai`i. [Concise statement of facts in supp. of Motion 1 (“Motion 1 CSOF”), filed 5/22/19 (dkt. no. 151) at ¶ 1; concise statement of facts in supp. of Opp. 1 (“Opp. 1 CSOF”), filed 7/1/19 (dkt. no. 169), at ¶ 1 (admitting that portion of Defs.' ¶ 1).] OCPs

were used for termite control in and around wooden buildings and homes from the mid-1940s to the late 1980s. [OCPs] included chlordane, aldrin, dieldrin, heptachlor, and dichlorodiphenyltrichloroethane (DDT). They were used primarily by pest control operations in Hawaii's urban areas, but also by homeowners, the military, the state, and counties to protect buildings against termite damage. In the 1970s and 1980s the U.S. Environmental Protection Agency (EPA) banned all uses of these [OCPs] except for heptachlor, which can be used today only for control of fire ants in underground power transformers. Chlordane was the most widely used [OCP] against termites in Hawai`i. Termiticides were commonly applied directly to soil beneath buildings or beneath slab foundations and around the foundation perimeter for new construction. . . . These pesticides break down slowly in the environment, application rates were relatively high, and applications may have been repeated over time. As a result, these [OCPs] may sometimes still be found in treated soils at concentrations detrimental to human health.

[Motion 1 CSOF, Decl. of Randall C. Whattoff (“Whattoff Decl. 1”), Exh. 43 (“Past Use of Chlordane, Dieldrin, and other Organochlorine Pesticides for Termite Control in Hawai`i: Safe Management Practices Around Treated Foundations or During Building Demolition, ” by the Hawai`i Department of Health (“HDOH”), Hazard Evaluation and Emergency Response Office (“HEER”), dated September 2011) at 1.]

         The United States Department of Health and Human Services (“USDOH”), Public Health Service, Agency for Toxic Substances and Disease Registry, has stated that “[e]veryone in the United States has been exposed to low levels of chlordane” and “the ban on chlordane did not eliminate it from your environment, and some of your opportunities for exposure to chlordane continue.” [Whattoff Decl. 1, Exh. 42 (excerpts of Toxicological Profile for Chlordane, dated May 1994) at 3.]

Today, people receive the highest exposure to chlordane from living in homes that were treated with chlordane for termites. Chlordane may be found in the air in these homes for many years after treatment. Houses in the deep south and southwest were most commonly treated. However, chlordane use extended from the lower New England States south and west to California. Houses built since 1988 have not been treated with chlordane for termite control. . . .
Over 50 million persons have lived in chlordane-treated homes. . . .

[Id. at 3-4 (emphasis added).] In Hawai`i,

[Chlordane and dieldrin] were both heavily used in Honolulu, before being banned, for ground treatment of termites and were sold to the public through home and harden [sic] outlets up until approximately 1984. Based on research of records at the State Department of Agriculture, hundreds of thousands of gallons of these chemicals were applied for termite control in addition to that imported for agricultural purposes. Personal communication with exterminator for domestic termite control, indicate copious quantities were applied (e.g., saturating the soil) as the standard practice. It is, therefore, hypothesized that the source of chlordane and dieldrin in the [Sand Island Wastewater Treatment Plant (“SIWWTP)”] wastewater (influent and effluent) is from chemicals applied from 1950 to 1988 leaching from the soil and entering the sewer system as a component of infiltration and inflow (I/I). Since these were essentially the only chemicals in use for ground control of termites during much of this period, all areas of the City were probably affected. Due to the methods of construction and to application trends, residential areas were more heavily treated than commercial or industrial areas. . . . Also, during this period, homes (their yards) were required to be treated for termites before they could receive federal loan guarantees. This practice led to almost universal contamination of residential areas by these pesticides.

[Whattoff Decl. 1, Exh. 39 (App'x D to the City and County of Honolulu's Application for Variance Related to Sand Island Wastewater Treatment Plant) at D-1 to D-2.]

         HDOH uses a two-tiered system to analyze the presence of OCPs at a site. [Motion 1 CSOF at ¶ 2; Opp. 1 CSOF at ¶ 2 (admitting that portion of Defs.' ¶ 2).]

Environmental Action Levels (EALs) [are used] to quickly screen soil, soil gas and groundwater data for potential environmental hazards. As reviewed below, individual action levels were developed to address each of the environmental hazards described in Section 1.2 for each contaminant listed in the lookup tables . . . . The lowest action level represents the concentration of the contaminant in the respective media where the threat to human health or the environment is considered to be insignificant under any site condition. This is selected as that contaminants Tier 1 EAL. . . .
The presence or absence of potential environmental hazards at a contaminated site is determined by the direct comparison of soil, groundwater and/or soil gas data to Tier 1 EALs for targeted contaminants of concern. Exceeding the Tier 1 EAL for a specific chemical does not necessarily indicate that the contamination poses a significant threat to human health or the environment, only that additional evaluation is warranted. The level of detail required for the additional evaluation will vary. In some cases it may be more cost-beneficial to simply remediate the site to the Tier 1 EALs than to conduct an advanced evaluation. A more detailed evaluation of specific environmental hazards is generally warranted in cases where significant cleanup costs may be incurred, where public sensitivity of the site is high or where long-term, in-situ management of the contamination is being considered.

[Whattoff Decl. 1, Exh. 44 (Evaluation of Envtl. Hazards at Sites with Contaminated Soil & Groundwater, Vol. 1: User's Guide, Hawai`i Ed., by HDOH Envtl. Mgmt. Div., dated Fall 2011, revised January 2012) at pg. 2-1 (emphasis added).] Where a more detailed evaluation is necessary, the specific site should be discussed with HDOH. [Id. at pg. 1-10.] A site-specific evaluation is done, and Tier 2 EALs are created. [Id. at pgs. 3-1 to 3-12.]

         B. MCBH Housing

         MCBH includes housing for more than 2, 000 families of Marines. MCBH currently has thirteen residential neighborhoods. [Motion 1 CSOF, Decl. of Dennis Poma (“Poma Decl.”) at ¶¶ 10-11.[5] They are:

Neighborhood
No. of Units
Year of Construction

Hana Like

276

1992

Hawaii Loa

237

1999

Heleloa

not provided

1940 (renovated 2009)

Kaluapuni

32

1963 (redeveloped 2006)

Kapoho

10

1957 and 1976 (redeveloped 2007 and 2008)

Mokapu Court

14

1957 (redeveloped 2007)

Mololani

765

1960 (redeveloped 2008-12)

Nani Ulupau

40

1992 (redevelopmentscheduled in 2019)

Pa Honua I

54

1965 (redeveloped 1999)

Pa Honua II

184

1966 (redeveloped 2002)

Pa Honua III

212

1966 (redeveloped 2005)

Ulupau

218

1976 (redeveloped 2011-14)

Waikulu

not provided

1941-1976 (redeveloped before Poma worked on MCBH)

[Id. at ¶¶ 11.a-m.] Pa Honua II was demolished and rebuilt as part of the military construction (“MILCON”) program. [Id. at

         ¶ 20.] Hana Like, Hawaii Loa, Kaluapuni, Mokapu Court, Nani Ulupau, and Pa Honua I were also part of the MILCON program. [Motion 1 CSOF, Decl. of Chris Waldron (“Waldron Decl.”) at ¶ 12(a).[6] The other neighborhoods were redeveloped by Ohana through a Public-Private Venture (“PPV”). [Waldron Decl., Exh. 30 (Marine Corps Base Hawaii: MILCON Housing Projects Pesticide Soil Management Fact Sheet, dated May 2014) at 1.]

         Ohana leases real property at MCBH, and Forest City manages the property on Ohana's behalf. [First Amended Complaint at ¶ 13; Answer at ¶ 13 (admitting those portions of Pltfs.' ¶ 13).]

         Plaintiffs lived in the following MCBH neighborhoods:

Plaintiffs
Neighborhood
Period

Lakes

Mololani

6/4/12-12/23/15

Beans

Pa Honua II Hawaii Loa

8/24/08-1/27/10 after 1/27/10

Kyle Pahona

Ulupau

11/13/13-11/30/16

Moseleys

Mololani Waikulu Pa Honua II

before 9/1/09 9/1/09-3/1/12 March 2012

Wilsons

Hawaii Loa

not stated

         [Poma Decl. at ¶¶ 16, 20, 22, 23, 26, 27, 30, 32.] According to the First Amended Complaint: Harold Bean and Melinda Bean (“the Beans”) lived in the Hawaii Loa neighborhood from January 2010 to January 2012; [First Amended Complaint at ¶ 7;] Timothy Moseley and Ashley Moseley (“the Moseleys”) lived in the Mololani neighborhood from July 2008 to June 2009; [id. at ¶ 9.a;] the Moseleys lived in the Pa Honua II neighborhood from March 2012 to November 2012; [id. at ¶ 9.c;] and Ryan Wilson and Heather Wilson (“the Wilsons”) lived in the Hawaii Loa neighborhood from 2006 to 2015, [id. at ¶ 10]. Defendants admitted these allegations from Plaintiffs' paragraphs 7, 9.a, and 10, [Answer at ¶¶ 7, 9, 10, ] but denied the allegation from Plaintiffs' paragraph 9.c because Defendants were “without knowledge or information sufficient to form a belief as to [its] truth, ” [Answer at ¶ 9].

         Forest City's Community Handbook - Marine Corps Neighborhoods (“Community Handbook”) states:

Chlordane was one of the most common pesticides applied to the soil around homes and businesses throughout the United States for protection against termites from 1948 to 1988. Other pesticides used in and around housing to prevent insect infestation and disease outbreak have also been banned. Although chlordane and other pesticides are no longer used, they may be found in soils under and around housing constructed in both civilian and military communities. Families can safely work and play in their yards; however, we recommend residents use prudent practices by thoroughly washing their hands after direct soil contact and washing all plants and vegetables grown on-site before consuming.

[Opp. 1 CSOF, Decl. of Kyle Smith (“Smith Decl. 1”), Exh. 8 (Community Handbook) at 12.] The Community Handbook is incorporated as part of Plaintiffs' MCBH leases. [Concise statement of facts in supp. of Motion 2 (“Motion 2 CSOF”), filed 5/22/19 (dkt. no. 146), Decl. of Randall C. Whattoff (“Whattoff Decl. 2”), Exh. T (Kyle Pahona's Lease Agreement for 11/13/13 to 5/31/14 (“Pahona Lease”)) at OHANA-FCRM 016512.[7]

         C. OCPs at MCBH

         1. In General

         An Environmental Baseline Survey for Public Private Venture, dated August 2006, by Environmental Science International for the Department of the Navy, Commander, Pacific Division, Naval Facilities Engineering Command (“EBS”), [8] stated: “Pesticides/Herbicides may be present in the soil in all neighborhoods. These were legal applications and do not require remediation (Category 1); however, future construction that may disturb such soils may require environmental, as well as safety and health, controls.” [Smith Decl. 1, Exh. 1 (excerpts of EBS) at ES-2.]

         Ohana established Tier 2 EALs for MCBH. [Motion 1 CSOF at ¶ 4; Opp. 1 CSOF at ¶ 4 (admitting that portion of Defs.' ¶ 4); Poma Decl., Exh. 23 (Final Pesticide Soils Management Plan, Ohana Military Cmtys., LLC Public-Private Venture Housing-Hawaii, prepared by Parsons, dated Feb. 2007 (“2007 PSMP”)) at 7-20.] The HDOH, HEER Office issued a concurrence letter for the 2007 PSMP. [Poma Decl., Exh. 27 (letter dated 3/23/07, to Michael B. Phelps, P.E., Senior Project Manager, PARSONS, from John Peard, Project Manager, HDOH (“Concurrence Letter”)).]

         Mr. Poma testified that the PSMP applies to all MCBH neighborhoods. [Smith Decl. 1, Exh. 2 (excerpts of trans. of 1/7/19 depo. of Dennis S. Poma, P.E. (“Poma Depo.”)) at 144.] The 2007 PSMP states:

Tier 1 EALs are designed to be protective of human health (i.e., direct-exposure) and other potential environmental concerns (e.g., future soil-to-groundwater impacts and urban ecological impacts). Human health Tier 1 soil EALs for pesticides were derived based on the following common assumptions (refer to HDOH [2005] for details on all other input assumptions): 1) unrestricted (i.e., residential) land use; 2) exposure to COPCs in soil via incidental ingestion, dermal contact, and inhalation of volatiles/particulates; 3) a target cancer risk and noncancer hazard of one-in-one million (i.e., 1E-06) and one, respectively; and 4) exposure for 350 days/yr for 30 years as a child/adult.
Site-specific Tier 2 EALs for the target pesticides were derived from HDOH (2005) human health direct exposure Tier 1 values based on an alternative target cancer risk level of 1E-05 [(i.e., one-in-one-hundred-thousand)] and the potential for cumulative cancer effects from exposure to multiple pesticides. All other Tier 2 residential EAL human health (i.e., direct exposure) exposure assumptions were the same as those used by HDOH for Tier 1 EALs. . . .

[Poma Decl., Exh. 23 (2007 PSMP) at 10 (some brackets in original).] The 2007 PSMP also states:

All housing communities undergoing demolition and construction must either be previously assessed for pesticide-impacted soils . . . or, in the absence of any previous testing, conservatively assumed to contain pesticide-impacted soils beneath all existing foundations and within 3 feet of the foundation. For the purposes of this Pesticide Soils Management Plan, “pesticide-impacted soils” are defined as soils with pesticide concentrations above the Tier 2 EALs . . . .

[Id. at 21.]

         The PSMP was updated in February 2008 (“2008 PSMP”) and July 2013 (“2013 PSMP”). [Poma Decl., Exh. 24 (2008 PSMP), Exh. 25 (2013 PSMP).] The 2007 PSMP and other documents show that there were no Tier 2 exceedances in any common areas of the MCBH neighborhoods. Poma Decl., Exh. 23 (2007 PSMP) at 17 (Table 4);[9] see also Poma Decl. at ¶¶ 47-49 (citing Poma Decl., Exh. 7 (Phase 2 Envtl. Site Assessment, Mololani Marine Corps Base Hawaii Family Housing Area, by Parsons, dated 10/1/07 (“Mololani Phase II ESA”)) at 13; Exh. 10 (Phase 2 Envtl. Site Assessment, Ulupau Central/South Marine Corps Base Hawaii Family Housing Area, by Parsons, dated 10/1/07 (“Ulupau Phase II ESA”)) at 3; Exh. 13 (Phase II Envtl. Site Assessment, Manning Court (Waikulu) Marine Corps Base Hawaii Family Housing Area, by Parsons, dated April 2007 (“Manning Court Phase II ESA”)) at 14; Exh. 14 (Phase II Envtl. Site Assessment, Rainbow (Waikulu) Marine Corps Base Hawaii Family Housing Area, by Parsons, dated February 2007 (“Rainbow Phase II ESA”)) at 16; Exh. 15 (Final Phase II Envtl. Site Assessment, NCO Row (Waikulu) Marine Family Housing Area, by Parsons, dated September 2006 (“NCO Row Phase II ESA”)) at 12)).

         After the MCBH Tier 2 EALs were established in 2007, HDOH revised its Tier 1 EALs. [Poma Decl. at ¶ 11.g.] Thus, while 2007 testing reflected that some of the Mololani homes had OCPs above Tier 2 EALs, all of the results that constituted Tier 2 exceedances in 2007 “are at or below the current Tier 1 Environmental Action Levels.” [Id. at ¶ 11.g & n.8 (citing Poma Decl., Exh. 7 (Mololani Phase II ESA) at Figure 4 (OHANA-FCRM008212); HDOH, Evaluation of Environmental Hazards at Sites with Contaminated Soil and Groundwater Volume 2: Background Documentation for the Development of Tier 1 Environmental Action Levels at Table B-1 (Fall 2017) available at http://eha-web.doh.hawaii.gov/ehacma/documents/dd50f3bf-a630-4705-8edd-f13bb204e559).[10]

         HDOH did not review the 2013 PSMP because of on-going litigation, i.e., Barber v. Ohana Military Communities, LLC, CV 14-00217 HG-KSC. [Poma Decl. at ¶ 68.] “Therefore, the modified Tier 2 EALs in the 2013 PSMP have never been used by [Defendants] to make soil decisions at MCBH.” [Id.]

         2. Previously Undeveloped Neighborhoods

         The homes in the Hana Like, Hawaii Loa, and Nani Ulupau neighborhoods were built on undeveloped land, after the use of OCPs was prohibited. [Id. at ¶¶ 11.a, b, h; Waldron Decl. at ¶¶ 13.a, b, g.] Thus, Defendants argue the soil in those neighborhoods was never treated with OCPs. [Motion 1 CSOF at ¶ 8.] Mr. Poma states:

In 2015, Environet conducted a Phase II Environmental Site Assessment, which did not identify any OCPs over Tier 1 EALs. Ohana thereafter decided to have my company (ACSI) perform additional sampling with more representative decision units across the neighborhood to confirm that the Hana Like soils were not impacted by organo-chlorinated pesticides. This sampling and testing is summarized in a report entitled “Site Investigation Summary Report, Marine Corps Base Hawai`i (MCBH), Waikulu Lot B and Hana Like, ” [(“Waikulu/Hana Like Site Report”)] . . . . I participated in the creation of this report and I oversaw the testing that it summarizes. In Hana Like, no organo-chlorinated pesticides were detected above laboratory reporting limits in any of the samples.

Poma Decl. at ¶ 11.a (footnotes omitted); see also Waldron Decl. at ¶ 16 (stating “the Phase II site investigation confirmed that [OCPs] were not detected above laboratory reporting limits”).

         3. Redeveloped Neighborhoods

         In the Kaluapuni neighborhood, soil tests conducted before the original homes were demolished in 2006 showed that some samples were above the current Tier 1 EAL, and some samples were below it. [Waldron Decl. at ¶¶ 13.c (citing Waldron Decl., Exh. 32 (2003 test results for chlordane), Exh. 33 (2005 test results for chlordane)).] Post-demolition testing later in 2005 revealed significantly lower levels, “confirm[ing] that the natural mixing of soils that occurred during standard demolition activities significantly reduced the Chlordane concentrations.” [Id. (citing Waldron Decl., Exh. 34 (May 2005 testing results), Exh. 35 (August 2005 testing results)).] The Navy/Marine Corps therefore “concluded that the residual concentrations of pesticides were acceptable and did not require further cleanup/remediation prior to construction of the new housing units, ” and Mr. Waldron opines that this conclusion was correct. [Id. at ¶ 13.d.]

         In the Mokapu Court neighborhood, in August 2005, the soil at one of the nine original housing buildings was tested for chlordane prior to redevelopment, and chlordane was not detected. [Id. at ¶ 13.e (citing Waldron Decl., Exh. 35 (August 2005 testing results)).] The Navy/Marine Corps therefore “concluded that residual concentrations of pesticides in soil at Mokapu Court were acceptable (to the extent any in fact existed) and did not require cleanup/remediation prior to construction of the new housing units, ” and Mr. Waldron opinions that this conclusion was correct. [Id. at ¶ 13.f.] Mr. Waldron makes similar statements about the Pa Honua I neighborhood. [Id. at ¶¶ 13.h-i (stating no chlordane found in five composite samples tested in April 1995 (citing Waldron Decl., Exh. 36 (test results))).]

         In the Pa Honua II neighborhood, in January 2000, the soil was tested in areas that had been identified as potentially containing chlordane. Of the twelve samples taken, “only two slightly exceeded the 2002 EPA preliminary remediation goal (‘PRG') of 1.6 parts per million (ppm) (1.9 and 2.0 ppm), ” and “[a]ll of these samples are significantly below the current Tier 1 EALs.” [Id. at ¶ 13.j (citing Waldron Decl., Exh. 37 (testing results))).] In light of the results, and the fact that the chlordane concentrations would be reduced through the mixing of soil during construction, the Navy/Marine Corps concluded remediation was not necessary prior to construction, and Mr. Waldron opines that conclusion was correct. [Id. at ¶ 13.k.]

         In the Pa Honua III neighborhood, in 2005, soil testing confirmed that chlordane was present in amounts exceeding the 2002 EPA PRG. The Navy hired Mr. Waldron to conduct a risk assessment for chlordane and other OCPs. Soil samples were collected from areas that were expected to have the highest concentrations of chlordane, as well as from other areas. [Id. at ¶¶ 13.l-m.]

Chlordane, Heptachlor and Heptachlor Epoxide were found in the soils. Potential health risks from exposure to these pesticides were estimated for residents, construction workers, maintenance workers, and utility workers. The majority of the health risks were well within the EPA's acceptable risk range, but there were a few risks that fell in the acceptable range that nevertheless required further evaluation. After reviewing the planned use of the site and all of the results, certain soil was removed and placed under a concrete basketball court so it could not be disturbed, and thus eliminated risks to Pa Honua III's residents, their guests, and workers. Before these measures were implemented, the Navy provided a site visit, briefings, and documents to the Hawaii Department of Health. . . .

[Id. at ¶ 13.n.] Post-construction soil testing was conducted in 2007 on samples from each of the 106 buildings in the neighborhood. The samples were grouped into ten decision units, and no pesticides were found in excess of the Tier 2 EALs in any of the decision units. [Id. at ¶ 13.o (citing Waldron Decl., Exh. 26 (Phase 2 Envtl. Site Assessment, Pa Honua 3 Marine Corps Base Hawaii Family Housing Area, by Parsons, dated 10/1/07 (“Pa Honua III Phase II ESA”)).] Mr. Poma also states the Pa Honua III Phase II ESA shows that “no pesticide compounds exceeded their respective Tier 2 EALs in any of the decision units. For Aldrin, Dieldrin, and Chlordane, that would mean the detected concentrations are below today's Tier 1 EAL levels.” [Poma Decl. at ¶ 11.k.]

         In the Kapoho neighborhood, a Phase I ESA and a Phase II ESA were conducted, and Mr. Poma reviewed these and other materials in the course of his work with Ohana. [Id. at ¶ 11.e.] “[A]ll pesticide compounds were below their respective Tier 1 and Tier 2 environmental action levels (‘EALs') in all samples.” [Id. (footnotes omitted).]

         A Phase II ESA was also conducted for the Mololani neighborhood before the prior residences were demolished. [Id. at ¶ 11.g; Poma Decl., Exh. 7 (Mololani Phase II ESA).] Some homes in Mololani “tested positive for [OCPs, in particular aldrin, dieldrin, and chlordane, ] above Tier 2 EALs, but many had no Tier exceedances.” [Poma Decl. at ¶ 11.g & n.8.] However, all of those results were at levels which are now at or below the current Tier 1 EALs. [Id. at ¶ 11.g.]

[A]s part of the redevelopment process for Mololani, the soil beneath and within two feet of the slabs of every pre-existing home was excavated to a depth of two feet below ground surface and was replaced with clean fill (or, in a few cases, left in place and covered with at least two feet of clean fill). The excavated soil was then buried on-site in carefully tracked pits and was covered with at least two feet of clean soil. . . . The soil removal and replacement process was carefully tracked in a soil closure report[.]

[Id.]

         For the Ulupau neighborhood, a Phase II ESA was also conducted prior to demolition of the existing residences. [Id. at ¶ 11.l; Poma Decl., Exh. 10 (Ulupau Phase II ESA).] Another Phase II ESA was conducted by Integral Consulting in November 2011. [Poma Decl. at ¶ 11.1.] “[T]he majority of the homes and carports tested positive for [OCPs] above Tier 2 EALs (usually aldrin or dieldrin), but one had no Tier 2 exceedances.” [Id.] Mr. Poma points out that “many” of these results would now be under the current Tier 1 EALs. [Id.]

[A]s part of the redevelopment process for Ulupau, the soil beneath and within two feet of the slabs of every pre-existing home and carport was excavated to a depth of four feet below ground surface, and clean fill was used to replace the soil removed from beneath and around the slabs. In some instances, soil was left in place and covered with a minimum of two feet of clean soil. The excavated soil was then buried on-site in carefully tracked pits, and was covered with at least two feet of clean soil. . . . The soil removal and replacement process was carefully tracked in a soil closure report[.]

[Id. (emphasis in original).]

         For the Waikulu neighborhood, before demolition, a Phase II ESA was conducted in each of the three prior neighborhoods that comprise what is now Waikulu. [Id. at ¶ 11.m; Poma Decl., Exh. 13 (Manning Court Phase II ESA), Exh. 14 (Rainbow Phase II ESA), Exh. 15 (NCO Row Phase II ESA).] Manning Court had no results above the Tier 1 EALs. [Poma Decl. at ¶ 11.m.] “In Rainbow Court and NCO Row, some of the homes tested positive for [OCPs] above Tier 2 environmental action levels, but some homes had no Tier 2 exceedances.” [Id.] Mr. Poma Mr. Poma points out that “many” of these results would now be under the current Tier 1 EALs. [Id.]

[A]s part of the redevelopment process for Waikulu, the soil beneath and within two feet of the slabs of every pre-existing home in Rainbow Court and NCO Row was excavated to a depth of two feet below ground surface. Clean fill was used to replace the soil removed from beneath and around the slabs. The excavated soil was then buried on-site in carefully tracked pits, and was covered with at least two feet of clean soil. The soil removal and replacement process was carefully tracked in a soil closure report[.]

[Id. (emphasis in original).]

         The Heleloa neighborhood “is the only remaining historic family housing neighborhood on MCBH.” [Id. at ¶ 11.c.] When it was renovated in 2009, “a very careful historic preservation process was used.” [Id.] Mr. Poma opines generally that:

The results of th[e OCP] testing were consistent with the conceptual site model of historic use of organo-chlorinated pesticides to control termites, using procedures consisting of applying the termiticides to the ground surface prior to slab construction and then subsequently around the immediate edge of the foundation. To the extent that residual pesticides were found, the maximum pesticide concentrations were found under ...

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