State, owners criticized for lack of inspections, maintenance

Government and company officials were lax while owner Pflueger failed in maintenance, a report finds

KILAUEA, Kauai » The deaths of seven people could have been prevented if someone had done the right thing at Ka Loko dam over the past several years, according to a report released by a special attorney general who investigated the dam's collapse.

Robert Godbey was hired by the state last summer to do an impartial investigation into the March 14 breach. While he emphasized that his report -- released yesterday -- was not intended to place legal blame on anyone, it was clear from some of its conclusions that Ka Loko's collapse could have been prevented if someone had been paying attention.

County and state inspectors, private landowners and irrigation company owners all had a chance to report problems with the dam and its lack of an adequate safety system, the report concluded.

And even when problems, such as the lack of a spillway, were reported, they were either ignored or completely missed by inspectors, Godbey's report said.

The breach certainly had factors beyond anyone's control, the report states, such as the age of the dam and the rain. But numerous decisions affected the reservoir and led to the breach.

Last year's 42 straight days of rain was certainly unusual, but was only the third wettest period in the last 50 years, according to meteorological experts. And the Ka Loko Reservoir had certainly been full numerous times before last year's rains, according to sugar plantation documents.

The most likely cause of the breach was overtopping, according to Lelio Meija, an engineer hired to analyze the breach. Overtopping, which is the cause of 35 percent of all earthen dam failures, according to federal officials, happens when water flows over the top of a dam, eroding the dam from both sides.

A spillway that was part of the dam structure no longer existed at the time of the breach, and was likely a main factor in the dam's failure, the report states. The spillway acts like a spill basin in a sink, diverting water before it flows over the top.

Godbey's report also said it was likely that Ka Loko's owner, James Pflueger, covered the spillway with the dirt used from grading on the other side of the reservoir -- likely in 1997 or early 1998. Pflueger sheared off the top of a hill to make home sites on the far side of the reservoir.

He was later fined for the grading and forced to do mitigation work as part of a legal settlement.

A facsimile sent to Pflueger from a Kauai resident and used as evidence in the report warned Pflueger that "it looks to me as if the Ka Loko spillway is covered with 8 to 10 feet of new fill" and that "I suggest you consider digging back down to the old concrete spillway."

Pflueger's lawyer and property manager vehemently dispute that Pflueger had anything to do with filling in the spillway.

Pflueger's property manager, Gordon Rosa, said yesterday that state investigators spent weeks digging over a dozen holes to find the concrete spillway, which is seen on a number of old aerial photos and sketches included in the report. No concrete, other than a 3-inch chunk, was ever found, he said.

Pflueger's lawyer, William McCorriston, said in earlier interviews that his client had bought the dam "as is" in 1987, and that the spillway was not intact at that time.

Yesterday, he said experts hired by Pflueger have found the dam "was a time bomb" because it was improperly built on alluvial soil, not bedrock. The spillway issue had nothing to do with the failure, McCorriston said.

But in his report, Godbey said if Pflueger had any idea that the conditions were unsafe, he had a duty to report it. "Even if Mr. Pflueger knew nothing of the alterations to the emergency spillway, that does not avoid his obligation to maintain the dam and therefore to discover and correct any problems with the spillway."

But Pflueger was not the only one who had a chance to fix Ka Loko's problems.

Kilauea Irrigation Co., a former C. Brewer & Co. sugar plantation subsidiary currently owned by Tom Hitch, was also responsible for the maintenance and upkeep of the irrigation system, and, therefore, the dam. He also had the opportunity to shut off the inflow before the breach occurred. Hitch's lawyer, Peter Morimoto, declined to comment yesterday.

Godbey's report said state dam inspectors never went to Ka Loko, despite a legal obligation to inspect all dams in the state every five years. Dam inspectors attempted to contact Pflueger to inspect the area, but they were never able to do so.

However, numerous state employees made trips to the area. A Public Utilities Commission team was asked to inspect the irrigation system, but failed to notice the lack of a spillway. Other state workers repeatedly went to the reservoir after Pflueger was cited for illegal grading, but no one noticed the lack of a spillway.

The county also had a chance to catch the lack of emergency safety measures. It received a report of illegal grading at the reservoir, and, according to a spokesman for C. Brewer, received an anonymous complaint about the filling of the spillway. That complaint was not mentioned in the report.

Following the grading complaint, former Mayor Maryanne Kusaka told county civil engineer John Buist Jr. that following up on anonymous complaints was a waste of taxpayer money, according to a memorandum written by Buist in November, 1997.

The memo said he was told that all actions involving Pflueger were to stop, and that all communications regarding Pflueger were to be passed on to county engineer Cesar Portugal. At the time, Portugal's daughter, Yolanda Portugal-Cabral, was working for Pflueger and was responsible for the grading permits at Ka Loko, according to Buist's memo.

Lawyers for the seven victims said in a release that they hope government officials "move quickly to prevent this tragedy from reoccurring."

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4 parties share possible blame

An independent investigation into the deadly Ka Loko Dam failure on Kauai in March concludes that dam owner James Pflueger, private irrigation company Kilauea Irrigation Co. Inc., and the state and Kauai County governments all have possible culpability.

The report, released yesterday, said the March 14 dam breach that killed seven people occurred after water overtopped the dam following weeks of heavy rains. Authored by special deputy attorney general Robert Carson Godbey, the report stresses that it "does not draw conclusions as to legal blame, civil liability or criminal guilt," partly because of several pending civil lawsuits and other investigations.

But the report concludes that:

» James Pflueger, a former car dealer, "appears" to have filled in the emergency spillway, "an essential safety element of every earthen dam."

"While it seems likely that Ka Loko Dam failed by overtopping, and that the lack of a spillway on Ka Loko Dam caused or contributed to such failure, that is not certain at this time. That will not be clear unless and until the failure mechanism of the dam can be determined definitively by further study and analysis."

He also failed to maintain the dam, the report says.

"Even if Mr. Pflueger knew nothing of the alterations to the emergency spillway, that does not avoid his obligation to maintain the dam and therefore to discover and correct any problems with the spillway."

» The state did not inspect the dam as is required by law.

"If Ka Loko Dam had been inspected by trained dam inspectors, the lack of a spillway would surely have been noted. Any other flaws that might have contributed to its breach could possibly have been identified, too. It may be true that Mr. Pflueger did not cooperate in scheduling a dam safety inspection, but that is not an excuse for the state to ignore its obligation to inspect."

» County officials missed an opportunity to stop unlawful work at the dam in 1997.

"The county sent a notice to stop all work at Ka Loko Dam when it found unlawful grading occurring. This was before the spillway had been filled in. Had this notice to stop work been enforced, the spillway might never have been filled in.

"But the engineer involved was called into the office of the mayor (then-Mayor Maryanne Kusaka), questioned, and told to 'stop all actions involving Mr. Pflueger.'

"This should not have happened. No further enforcement action was taken for the next five years."

» Kilauea Irrigation Co., Inc., failed to maintain the dam and control the waters from Ka Loko ditch.

The company had the obligation to repair and maintain the entire irrigation system, including the dam, the report says.

The report states it "does not attempt to come to conclusions regarding legal blame. It does not shy away from the facts, however, or from conclusions regarding their significance to the consideration of appropriate government action in the future."