Once again, the City and County of Honolulu is in a pickle over the continued operation of the Waimanalo Gulch Sanitary Landfill, O`ahu’s only municipal solid waste facility.
The city’s special use permit from the state Land Use Commission, which allows it to deposit solid waste in the agriculture-zoned landfill, expires on November 1. A planned 92.5-acre expansion would add some 15 years of capacity. But without amendments to the special use permit allowing for that additional capacity, the state Department of Health appears to be unable to approve a new solid waste management permit for the facility – or even deem the city’s permit renewal application complete.
And because the city and landfill manager Waste Management Hawai`i (WMH) are currently accepting waste without a solid waste permit, if they falter even just a little in complying with past permit conditions, operations could come to a screeching halt.
Permit Troubles
Last March, the LUC extended the permit’s term, from May 1, 2008 to November 1, 2009, or until the landfill reaches its permitted capacity, whichever comes first. Although an extension of that deadline is not guaranteed, correspondence with the DOH suggests that both the city and WMH seem to expect that it will be, and they have been working to secure approval of a new solid waste management permit.
Their last permit expired on April 30, 2008. While the LUC was able to approve the special permit extension rather quickly, the DOH has yet to receive a complete solid waste permit application from WMH and the city, despite urgings from the department more than a year and a half ago that it should do so quickly.
In a July 27, 2007, letter to the city and WMH, Laurence Lau, DOH deputy director for Environmental Health, asked them to submit a renewal application as soon as possible, since his department typically requires landfill facilities to submit complete applications at least one year before their permits expire. Given the ongoing controversy, driven mostly by residents of the adjacent Ko Olina development, over whether the landfill should continue operating, Lau said the DOH would need four months to allow for public comments and responses, in addition to the time his staff would need to review the application.
Lau also stated that solid waste regulations require the city and WMH to obtain certification of compliance with local ordinances, including zoning requirements.
“As such, we need assurances that the City and Waste Management have obtained necessary land use approvals that will allow continued operations at the site, for us to deem a solid waste application complete and develop a preliminary decision on an application,” he wrote.
Although the DOH received a renewal application from the city and WMH about two months later, the department quickly deemed it incomplete because none of its major supporting documents – the engineering report, the operating plan, the groundwater monitoring plan, and the closure and post-closure plan – were current. While the city and WMH supplied additional information through December 2007, the DOH did not renew the application before the existing permit expired at the end of April 2008.
Instead, on April 16, the DOH notified the city and WMH that they could continue to operate the landfill while a renewal application is pending. As justification, the DOH cited Hawai`i Revised Statutes Chapter 342H, subsection 4(e), which states that an applicant is not in violation of state laws if it operates while an application is pending so long as it acts in accordance with the permit previously granted, the application, and all information included in the application.
Because the city had not accepted the final environmental impact statement for the landfill expansion until October 2008, the September 2007 application did not include reference to the proposed 92.5-acre expansion in any of its documents. Once the environmental review process was complete, however, the city and WMH submitted a revised application in December, which includes a long discussion and description of the proposed expansion. But again, the DOH found the application to be incomplete because many of the major supporting documents were “either missing or obsolete” since they did not reflect the changes that would need to be made to accommodate the expansion.
According to an April 25 letter to the DOH regarding planned drainage improvements, WMH expects the state to approve the expansion by the end of September 2009. But even if the city and WMH manage to supply the DOH with a complete application before the November 1 expiration of the LUC special permit, it is unclear whether the department can deem it complete until the LUC modifies the special permit to include in the landfill boundaries the area of planned expansion – and extends the duration of the special permit as well.
A challenge filed last October in First Circuit Court by state Sen. Colleen Hanabusa to the city’s acceptance of the final environmental impact statement for the expansion could also complicate matters, since the application is incomplete without a final, unchallenged EIS for the expansion.
In her filings, Hanabusa states that the FEIS “lacks any discussion as to under what authority the expansion is sought when there are existing orders which mandate its closure. [In addition to requiring closure of the landfill by November 1 at the latest, the LUC’s March decision required the city to report to the commission every six months on actions taken to alleviate further use of the landfill.] The FEIS, in this regard, is not compiled in good faith, is procedurally defective, and does not set forth sufficient information to enable a decision-maker to consider fully the environmental factors involved.”
Violations
As the city and WMH struggle with the solid waste permit application, they also seem to be having trouble complying with the default conditions of operation while the application is pending approval. On September 5, the city and WMH received a warning letter/request for information from the DOH about potential violations at the landfill that had been identified during site inspections in May. While WMH has attempted to remedy or justify all of the potential violations cited in the DOH letter, it’s clear from correspondence between the two parties that some violations did, in fact, occur.
Over the course of three site visits, DOH inspectors found a variety of possible violations at the landfill:
In its September letter, the DOH’s Environmental Management Division chief, Thomas Arizumi, pointed out that his department had fined WMH in 2006 for similar unauthorized storage and crushing activities and that illegal stockpiling had resulted in inadequate storm water management and had generated excessive leachate. (On December 7, 2007, the DOH, the city and WMH reached a $1.5 million settlement agreement resolving most of the 18 alleged violations included in a January 2006 Notice and Finding of Violation and Order. The remaining violations, regarding overfilling, were resolved by a permit modification to increase the landfill’s grades, which not only brought the excessive grades into compliance but also increased the capacity of the landfill by about two years. That modification was approved on February 20, 2008.)
With regard to the alleged stockpiling of excavated material, WMH general manager Joseph Whelan said it was due to a simple misunderstanding. Because the material had been there since before the DOH modified the company’s permit in February 2008, “staff assumed that DOH had acknowledged the material and would allow for its gradual use and removal over time,” he wrote in his September 30 response. As for the asphalt/concrete/soil mixture, Whelan wrote that he didn’t believe permit conditions required DOH approval since the piles are used up within a few days of being delivered.
He went on to say that the overfilled areas were now below permitted grades, that he had requested permission for a screener, and that elevation control points have been in place since 2007. He did admit that his company failed to notify the DOH about excessive methane readings.
On December 11, the DOH Solid and Hazardous Waste Branch chief Steven Chang acknowledged that some of the violations had been remedied, but disagreed with Whelan’s positions on stockpiling.
“Waste Management of Hawai`i was aware of the permit conditions for some time and the condition on material storage is not something new,” Chang wrote, adding that piling up concrete slabs and asphalt to be used as wet weather material for the ash monofill (which receives ash from the H-POWER incinerator) is considered storage, even if it’s only for a few days, and is a permit violation.
“Our concern over the temporary storage of material on the landfill for use has to do with WMH’s use of contaminated soil and/or ash as daily cover. We are concerned that the materials could be moved from the delivery area, and in the process, contaminate other areas within or outside the facility. The short duration of storage will not alleviate this concern,” Chang wrote.
There is no correspondence in DOH files indicating that WMH has resolved the stockpiling problem. Should the DOH bring an enforcement case against WMH and the city, it’s unclear how the landfill could continue to operate, given the restrictions placed on facilities operating without a permit.
By press time, the Department of Health had not responded to questions about the potential violations’ effect on the landfill’s ability to operate and about the requirement that necessary land use approvals be in place before a solid waste application is deemed complete.
— Teresa Dawson
Volume 19, Number 8 February 2009
Leave a Reply