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Maui utility may have compromised evidence in deadly fire investigation, lawyers say

LAHAINA, Hawaii – The Hawaii power company believed to have started the deadly Lahaina fire removed damaged power poles and other equipment from a key fire scene, which could affect evidence that is part of an official investigation into how the fire was lit.

Hawaiian Electric, which moved quickly to restore power to the island after Aug. 8, removed downed poles, power lines, transformers, conductors and other equipment from near a substation in Lahaina starting on the 12 of August, the documents show, before investigators from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) arrived at the scene.

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These actions may have violated national guidelines for how evidence should be handled and preserved after a wildfire, and deprive investigators of the opportunity to view downed poles or lines in undisturbed conditions before or after the fire. start of the fire, according to court documents, letters and other records. obtained by The Washington Post.

“If a lot of equipment has already moved or disappeared by the time investigators show up, that’s problematic because you want to look at where the equipment was in relation to the ignition site,” said Michael Wara, who leads the Climate and Energy Policy Program at Stanford. University “Maybe there was a homeless encampment, kids, or a power line on the ground where the ignition happened. But once you move those things around it’s a lot harder to understand what happened.”

In a statement, Hawaiian Electric spokesman Darren Pai said the company has been “in regular communication with ATF and local authorities and is cooperating in providing them, as well as attorneys representing those affected by the fires forestry, inventories and access to retired equipment. which we have carefully photographed, documented and stored”.

ATF usually responds to bombings and shootings. This is only the agency’s third wildfire investigation, a spokesman said. Normally, the US Forest Service performs this role, but because the Maui fires did not occur on any national forest land, the ATF has become the main federal investigative force.

While the cause of the fires in Lahaina, as well as others in Maui’s Upcountry region, is still under investigation, there is growing evidence that Hawaiian Electric’s wind-damaged equipment sent sparks into dry vegetation and covered with vegetation that surrounded its poles.

As The Post first reported, the utility did not cut power ahead of the high winds, though it said it took some other precautionary measures. Now, he faces at least nine lawsuits for his role in allegedly starting Maui’s wildfires, including the one that destroyed Lahaina and killed at least 115 people in the nation’s deadliest blaze in a century.

One of them was filed Thursday by Maui County, which is suing the utility for “inexcusably” failing to shut off power despite being warned of strong winds, and failing to maintain equipment and surrounding vegetation to “adequately ensure that they would not cause a fire”. .”

ATF investigators arrived on the island last week to help “determine the origin and cause of the wildfires.” But by then, utility crews had cleared much of the site near the Lahainaluna Road substation and moved the damaged equipment to storage.

Hawaii, unlike California, doesn’t have a state fire agency like Cal Fire that immediately deploys investigators to shooting scenes to make sure evidence is preserved. According to experts, these investigators help preserve important details at a fire scene, such as flash marks on conductors or aluminum or copper balloons that may have melted and fallen into the brush below.

Beginning Aug. 10, a law firm representing more than two dozen Lahaina families twice asked Hawaiian Electric to preserve evidence, according to correspondence obtained by The Post. The next day, one of the company’s attorneys responded that Hawaiian Electric’s primary focus was the safety of first responders actively fighting fires, displaced residents and power restoration.

The company said it was “taking reasonable steps to preserve its own property.” However, because so many local, state and federal agencies were on the ground fighting the fires and clearing the debris, it was “therefore possible, even probable, that the actions of these third parties, whose actions Hawaiian Electric does not control, could result in the loss of property or other elements related to the cause of the fire.

“Hawaiian Electric will take reasonable steps to preserve the evidence, but cannot make any guarantees due to the rapidly evolving situation on the ground, which is also beyond our control,” the letter said.

In response, attorneys quickly filed for a temporary restraining order to prevent Hawaiian Electric from significantly altering the scene where the first Lahaina fire is believed to have started, court documents show.

On August 18, a judge signed a preliminary discovery order, detailing how he would handle evidence around the “suspected area of ​​origin.”

There is a process for how companies should handle the place where a fire is believed to have started. The National Fire Protection Association states that “the integrity of the fire scene must be preserved…Evidence must not be tampered with or disposed of without documentation” and the scene was cordoned off with ribbon or flags.

The Hawaii Public Utilities Commission, which oversees Hawaiian Electric, has not yet commented on the fires. He also did not respond to multiple requests for comment over the past two weeks on whether the commission, through its investigative arm, is conducting an inquiry into what may have caused them.

“The commission has been completely silent on this whole event, which is terribly frustrating,” said Jennie Potter, a former utilities commissioner who retired nine months ago.

In court documents and letters from a Hawaiian Electric, the company said it removed the equipment because the company “does not own or control the land or public streets beneath its facilities in this area.”

On Aug. 12, the utility had retained Munger Tolles & Olson, the same law firm that represented Pacific Gas & Electric, the beleaguered California utility responsible for starting 2018’s deadly Camp Fire.

To “preserve possible fire-related evidence,” the company said, it hired a California-based “cause and origin expert,” who also assisted PG&E on several Northern California fires, which has busy removing equipment to a warehouse.

Many pundits and financial analysts have been comparing the case of Hawaiian Electric to that of PG&E, California’s largest electric company and one of the largest investor-owned electric companies in the United States. It filed for bankruptcy in 2019, facing billions of dollars in liability claims from the Camp Fire and other deadly wildfires.

California utility officials had also fined PG&E and SoCal Edison for altering or not properly preserving evidence after a fire before investigators arrived.

PG&E isn’t the only utility that has faced legal trouble over removing evidence of a fire. After a series of disastrous fires in Oregon in 2020, a class action lawsuit was filed against PacifiCorp over the fires. The case centered on the company’s destruction of evidence, said Timothy DeJong, an attorney for the plaintiffs. In June, a jury found that the utility had played a role in starting those fires and owed the plaintiffs $73 million.

“The experts had no chance to review the physical evidence,” DeJong said. “As a result, much of the evidence about causation comes from eyewitnesses who saw power lines arcing and causing sparks or fires.”

Hawaiian Electric was familiar with PG&E’s problems, they show. Last summer, he noted that utilities can be held liable when it comes to starting or spreading a wildfire, and cited PG&E’s “$15 billion settlement” with victims as an example. “The risk of a utility system causing a wildfire is significant,” the company wrote.

Neighbors who live near where the fire started say that the electricity company reacted quickly. When Ryan Gazmen returned to his home off Lahainaluna Road on Aug. 11, he said a broken pole near which the top had snapped off had been fixed.

On the afternoon of Aug. 12, a Post reporter visited the area where residents say and videos show the initial fire started. In a dirt alley in front of the Hawaii Power Substation, a damaged pole lay on the ground, the top sitting haphazardly in some nearby trees, with coiled lines and pieces of a pole piled around it. Experts who examined the photo questioned why the footage was left there without labels or taped to the public. About a week later, that team was gone.

By comparison, just hours after the Camp Fire ignited, CalFire fire investigators arrived at the PG&E transmission towers where they suspected the fire had started and assessed the ground, noting the burned path of the fire, according to a Butte County District Attorney’s report. “Looking up, the investigators saw a detached line hanging from the steel superstructure of the high-voltage transmission tower,” the report said. They immediately launched an investigation.

At a news conference last week, Hawaiian Electric CEO Shelee Kimura said 400 of West Maui’s 750 poles were damaged or destroyed by the windstorm and fires, and 300 of 575 transformers were down. visibly damaged. The Lahainaluna Road substation was destroyed.

Data from Whisker Labs, a company that uses an advanced sensor network to monitor U.S. grids, found numerous incidents on the power grid in the afternoon of Aug. 7 that left power out. The data shows that the power came back on at 6:10 a.m. the next morning, then went out again at 6:39 a.m. It was during this time that a grass fire broke out at the Lahainaluna substation, according to residents and the Maui Fire Department.

A spokesman for the Maui Fire Department said crews had contained and “knocked out” the fire around 12:45 p.m. The engines went out at 12:47 p.m., which was “an appropriate time,” he said, and two more fires were burning. on the island asking for your attention.

At 2:55 p.m., several residents recalled smelling smoke and two called 911. The Maui Fire Department confirmed those calls and said an engine in the area was on the scene in five minutes Firefighters had the fire under control at first, but a gust of wind sent the flames down the hill in front of them.

This was the fire that tore through downtown Lahaina and caused the deadliest and most destructive fire in Hawaii.

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