It seemed to come down to integrity versus practicality. And integrity lost.
On September 24, the state Land Use Commission heard hours of testimony and debate about whether or not it should grant the City and County of Honolulu a new special use permit (SUP) for the continued use of about 200 acres agricultural land in Kapolei’s Waimanalo Gulch as a landfill. And in the end, arguments that the city should be held to its repeated promises to close the landfill were pushed aside as commissioners were confronted with the strong possibility that most of the waste that now goes to Waimanalo Gulch, amounting to nearly a hundred tons of waste a day, would have nowhere to go should the city’s current SUP not be renewed or extended past its November 1 expiration date.
The commission voted 5-3 to approve a new SUP to the city on the condition that Waimanalo Gulch stop receiving municipal solid waste (MSW) on July 31, 2012. Ash and residue from the city’s H-POWER waste-to-energy plant may continue to be landfilled until the gulch reaches capacity.
The permit allows the city to pursue its planned 92-acre expansion of the landfill, but representatives from the city and landfill operator Waste Management Hawai`i, Inc., were clearly unhappy with the permit’s conditions. And so were those who sought to close the landfill.
“The worst thing about it is…irrespective of what’s put there, ash or otherwise, it’s a dumping ground,” state Sen. Colleen Hanabusa said after the vote. Hanabusa, state Rep. Maile Shimabukuro, and the Ko Olina Community Association, all of which represent people living near Waimanalo Gulch, filed petitions with the LUC asking it to deny the city a new permit.
By all accounts, the city will be back before the LUC in three years, or sooner, to seek an extension and perhaps other amendments to the SUP. If the discussions during the September LUC hearing and the July county Planning Commission meeting are any indication of what the LUC will ultimately decide, the city will probably receive another extension. As planning commissioner Kerry Komatsubara said during the July 31 meeting where the commission recommended LUC approval of the SUP, “It becomes incumbent on us as to whether we enforce that commitment or not. It is kind of a game of chicken, however, because at the same time we really don’t want to close this landfill [by revoking the permit]. I asked myself the question, I said, ‘Would you, Kerry, really be willing to close Waimanalo Gulch?’ and the answer is no.”
Background
The city’s Waimanalo Gulch Sanitary Landfill has been accepting O`ahu’s garbage for about 20 years and today receives about 300,000 tons of MSW and nearly 100,000 tons of ash from H-POWER a year. The landfill was originally set to close in 2002, but, in March 2003, to allow for a 15-acre expansion, the LUC extended the expiration date of the city’s SUP to May 1, 2008. Despite attempts by the city during Mayor Jeremy Harris’ administration to find a new landfill site before the expiration date, his successor, Mufi Hannemann, indicated in early 2006 that he preferred to keep Waimanalo Gulch open. The city then proposed a 92.5-acre expansion of the gulch, which would add an estimated 15 years of capacity.
Last March, in response to the city’s request for more time to complete the environmental impact statement for the expansion, the LUC extended the expiration date yet again, to November 1, 2009 or when the landfill reached capacity, whichever came sooner. Before the year was out, however, the city filed a petition with the LUC for a new SUP to cover the expansion and replace the existing SUP. As a backup should that permit be denied, it also filed a petition for a boundary amendment to place Waimanalo Gulch in the Urban District, where rules for permitting landfills are less strict than in the Agriculture District, the current zoning for the area.
The LUC held a single hearing on the boundary amendment in May, which drew a lot of testimony from Nanakuli residents worried that a closure would force the city to start dumping waste at the PVT landfill, which is located in Nanakuli and accepts only construction and demolition waste. Two months later, the county Planning Commission voted to recommend that the LUC grant the city a new SUP without a closure deadline. As commissioner Komatsubara explained, “To me, clearly simply having a specified end date certain on the previous SUPs has not resulted in the closure of Waimanalo Gulch. We have been down this road many times. I think it’s been extended three or four times. In my opinion, simply putting on a new closure date to this new SUP will not lead to the closure of Waimanalo Gulch Sanitary Landfill. I believe that the focus should not be on picking a date. The focus should be on: How do we get the city to select a new site because you are not going to close this landfill until you find another site.” During the hearing, city representatives said that the city would begin seeking and developing a supplemental landfill site next year.
In September, Hanabusa (D-Ko Olina, Kahe Point, Nanakuli, Ma`ili, Wai`anae, Makaha, Makua, Ka`ena Point), Shimabukuro (D-Wai`anae, Makaha, Makua), and the Ko Olina Community Association filed a motion to intervene in the LUC docket and a motion to deny the permit.
The motion to deny, which Hanabusa filed on behalf of all three parties, cited the various health and safety issues the state Department of Health has found at the landfill, including excessive temperatures and improper storm water management, among other things. It also chronicled the various instances where city representatives told Leeward coast residents that landfill would close. The petition cited testimony from Hawaiian cultural experts about how the city’s plan to blast out the back of the gulch, which will destroy the locations of three large stone fishing ground markers, will cause irreparable harm to the Hawaiian culture.
“The city is dumping on the Wai`anae Coast is the sentiment of many of the community leaders,” the motion states.
Needed or Not?
At the commission’s September 24 meeting, city councilmember Todd Apo, who represents the Leeward coast, agreed with Hanabusa’s arguments against the landfill, although he did support a two-year permit extension.
Apo did his best to convince the commission that very soon, O`ahu would no longer need Waimanalo Gulch. He testified that the Seattle-based company Hawaiian Waste Systems, LLC, which has a contract with the city to ship waste to Washington, can also take H-POWER’s ash. He said that by 2011, H-POWER will have expanded to accept 400,000 tons of waste a year. After that, Apo said, “We don’t need a landfill anymore…[except for] an emergency site.” He added that while the council needs to appropriate a little more funding to complete the expansion, the contractor building the new boiler has already started ordering the equipment.
“Can you deny this petition without causing havoc for the city? Yes you can,” he said, adding that a two-year extension of the existing permit was reasonable. In response to a question from commissioner Kyle Chock about whether a November closure of Waimanalo Gulch would result in waste being rerouted to the state’s PVT construction and demolition landfill in Nanakuli, Apo said he didn’t think that would happen since PVT is not lined or permitted by the state Department of Health to accept MSW.
In direct contrast to Apo’s testimony, Gary Takeuchi, counsel for the city’s Department of Environmental Services, argued that there will always be a need for a landfill on O`ahu.
“There are always things that can’t be used, recycled, combusted or shipped,” he told the LUC, referring to things like the sludge leftover from food establishments, which makes up a considerable percentage of the total waste landfilled at Waimanalo Gulch every year.
Takeuchi added that the city has not been relying solely on the landfill: It has repurchased H-POWER and is planning to construct the third boiler, referenced by Apo, that would roughly double the facility’s capacity. (Apo pointed out during his testimony, however, that it was the City Council, not the administration, that had pushed for and funded the expansion.) Takeuchi also referred to the city’s recent contract with Hawaiian Waste Systems to ship 100,000 to 150,000 tons of waste a year as an interim solution until the H-POWER expansion goes on line. Takeuchi added that the city is also looking at whether pellets from H-POWER can be used as soil amendments, which would lessen the amount of ash and residue sent to Waimanalo Gulch.
Takeuchi also disputed Apo’s claims that H-POWER and Hawaiian Waste Systems could together make Waimanalo Gulch obsolete, stating that closing Waimanalo Gulch actually “raises the spectre” of closing H-POWER, since there needs to be a home for the ash should shipping cease being an option. Currently, all of H-POWER’s ash goes to Waimanalo Gulch.
Despite Takeuchi’s arguments, commissioner Normand Lezy was not swayed and countered that when the LUC granted the city an extension on its SUP last year, its Decision and Order was very clear that the city was to close the landfill by November 1, 2009 at the latest.
“It’s some curiosity we’re sitting where we are now,” he said and asked Takeuchi how the city reconciled last year’s D&O with the city’s application for a new permit.
Takeuchi said the record clearly shows that the commission granted the 18-month extension last year to give the city more time to complete its EIS for the expansion. “So I hope it’s not a complete surprise,” he said.
Commissioner Reuben Wong asked Takeuchi, “Is there ever a time when… municipal waste will not be placed in Waimanalo Gulch?”
Takeuchi responded, “that day is not here now” and in any case, the city must have the option to landfill waste if it needs to.
When Wong asked Takeuchi what kinds of assurances the city could give to the commission that waste management alternatives will be funded, Takeuchi said he could not speak for the City Council or the administration, but said it is the Department of Environmental Services’ intention to divert 80 percent of MSW from the landfill.
To this, Hanabusa argued, “Before, it was, ‘It will close. We won’t need a landfill.’ Now, the city’s main argument is there will always be a need for a landfill. There comes a point in time when people have to be held to their word.”
OP’s Stance
Although not a party to the docket, the state Office of Planning weighed in on the application in a 14-page letter dated September 22 to LUC chair Ransom Piltz. In it, OP director Abbey Seth Mayer recommended that the LUC deny the permit application as well as the city’s request to withdraw the existing special use permit. Instead, the OP proposed extending the existing permit for three years and allowing for the expansion of one cell for ash and two for municipal solid waste. Mayer also recommended that the city be required to select a new site, via an “inclusive, transparent, public site-selection process,” within 18 months of the LUC’s Decision and Order, with an automatic expiration of the permit if the city fails to meet that deadline. If the LUC chose to issue a new permit, Mayer recommended that all of the previous permit’s conditions and the site-selection deadline be included.
“Alternatively, the OP recommends that the [LUC] should remand the entire docket back to the City and County of Honolulu Planning Commission,” he wrote.
Mayer argued that during the Planning Commission’s July meeting, when Planning Commission chair Karen Holma prevented fellow commissioner Beadie Dawson from proposing an amendment to a motion to approve a draft Decision and Order, Holma violated the rules of order and abused her discretion. Holma’s actions, he claimed, required the LUC to remand the issue back to the Planning Commission.
Mayer also contended that the city’s Land Use Ordinance prevents the LUC from approving a new permit for Waimanalo Gulch, citing a section of the LUO that prevents waste disposal and processing facilities from being located 1,500 feet (500 feet if environmental impacts can be mitigated) of any zoning lot in a residential or apartment district. Because the adjacent Makaiwa Hills low-density apartment zoning (rezoned in September 2008) lies 100 to 150 feet from existing landfill cells, a new SUP would violate the LUO, Mayer argued. At the LUC hearing, however, Robert Bannister of the city’s Department of Planning and Permitting testified that the section of the LUO Mayer cited does not apply to the Waimanalo Gulch landfill and does not affect its operation.
Mayer also disputed planning commissioner Komatsubara’s reasoning behind abandoning a permit deadline.
“Commissioner Komatsubara…is wrong. He tries to solve the problem of enforcing the time deadline by eliminating the time deadline. But this merely surrenders the [Planning Commission’s] obligation to impose appropriate conditions. The solution actually lies in setting clear requirements with clear deadlines, and an automatic expiration if these requirements are not met. It is then up to the City and County of Honolulu to follow through. If the [city] wants to avoid the early expiration of the SUP, it will be forced to conduct a site selection process, make a selection, and come back to the Planning Commission and the LUC with that decision and information about the alternatives considered,” he wrote.
At the LUC’s meeting, Mayer added that he felt the city’s proposal was “extremely troubling” and agreed with Hanabusa that “at a certain point, enough is enough…. Responsibility should be shifted back to [the city].”
“On the other hand, I would like to be able to bring them into the fold and clean the record,” he said as a way of explaining his recommendation that the commission extend the city’s permit to operate Waimanalo Gulch three more years, with an automatic expiration at the end of that time. An extension of the existing permit would not allow the city to, as Mayer put it, “sweep under the rug the history of this entitlement process.”
Lezy said he agreed with everything Mayer said, but did not follow him to the conclusion that the permit should be extended for three years, with automatic termination. Lezy contended that the November 1, 2009, deadline the LUC set last year was itself an automatic termination date.
“In my mind, you’re advocating again that the city create a self-fulfilling prophecy,” Lezy said, referring to the city’s apparent position that “we have to have a landfill because we have not done what we need to do to not have one and we’ve done that intentionally.”
Mayer explained that his office had supported the city’s use of Waimanalo Gulch as a landfill in 2003. While he supported closure now, “I’m trying to take responsibility for my office’s statements in the past,” he said.
A Motion
In the end, no one got what they asked for.
Commissioner Reuben Wong made a motion to grant the city a new special use permit with several conditions, including the following:
• All conditions in the 1986 SUP shall be incorporated into the new permit;
• Municipal solid waste will be allowed in Waimanalo Gulch until July 31, 2012;
• A third stability berm will be built in 2011;
• After July 31, 2012, only ash and residue will be allowed;
• The city administration and council will report to the LUC every three months on operations at Waimanalo Gulch, including financial arrangements under consideration;
• The city will hold public hearings every three months on the status of waste management activities.
Lezy said he could not in good conscience support the motion and that had he been “quicker on the draw,” he would have made a motion to deny the permit. He noted that the last few dockets before the LUC have centered around the integrity of the commission’s decisions. In this case, he said, November 1 was a self-executing deadline and by issuing a new permit now, the commission would be breaking a promise.
Lezy didn’t seem to think the city would meet Wong’s MSW deadline, either.
“Three years from now, we will be back exactly where we are today…I can’t support yet another broken promise, another blow to the integrity of this [commission],” he said.
Commissioner Thomas Contrades, on the other hand, said he did not remember the LUC’s 2008 decision the same way Lezy did. Contrades said he expected the city to return for an extension to allow for the expansion. Although he was not “totally pleased” with what Wong had proposed, Contrades said, “We have to do something. It’s reprehensible that we would consider the solution to be putting our trash in someone else’s backyard.”
He added that he felt sorry for Leeward coast residents — he has family there — but said he knew 18 months was not going to be enough time for the city to find alternatives to Waimanalo Gulch.
With regard to the city’s “broken promises”, Contrades said, “Everyone has the right to ask for a change,” including a new city administration.
Contrades said he didn’t know what the perfect solution was, but he didn’t think Hawaiian Waste Systems would be ready to start taking all of the city’s waste by November 1.
Commissioner Chock sided with Lezy, stating, “We’ve been kicking this can down the road for generations of administrations and commissions,” and it was time to put an end to the “environmental injustice” that has been inflicted on Leeward residents.
In defense of his motion, Wong explained that while he would love to say that the Waimanalo Gulch should be closed, “What is the solution? At what point do you continue to hold to decisions of previous councils, administrations, et cetera?” Although the city is making progress with regard to recycling and constructing a new burner for H-POWER, Wong said he was not confident that, three years from now, the city will do what they promised, which is why he recommended regular public hearings.
When it came time to vote, Lezy, Chock, and commissioner Lisa Judge opposed Wong’s motion, which passed 5-3.
What now?
After the LUC’s decision, all of the parties at the table walked away looking displeased. City officials said that the city would not be able to meet the terms of the new permit and would likely return in three years for an extension or modification.
Joe Whalen of Waste Management added that the commission will most likely have to revisit the issue to address treatment of special wastes – sludge, asbestos, etc. – that can’t be shipped, recycled or burned. He added that the commission’s decision to accept only ash and residue after July 2012 does not mean that the landfill will have to be re-engineered. Since ash and residue will be allowed in perpetuity, the city will stick to its plans to excavate the whole gulch, and simply re-designate some of the cells for municipal solid waste as ash cells, he said.
During the LUC hearing, the parties debated whether the 2008 EIS covering the 92-acre expansion is adequate in light of the fact that the city’s permit application is for the total 200 acres owned by the city. Hanabusa and Apo argued the EIS wasn’t adequate for this reason. “At what point [in the EIS] were we told the total 200 acres was for perpetual use? Nowhere,” Hanabusa said.
Takeuchi noted that EIS does address the entire area, and what’s more, the LUC does not have the jurisdiction to rule whether or not the EIS was adequate. He also noted that Hanabusa was already challenging the EIS in circuit court. However, should the court find in her favor, Takeuchi said the LUC may have to revisit its decision.
For Further Reading
Other articles published by Environment Hawai`i are available online:
• “Ash: A Resource Beyond Recovery” (October 1990);
• “Resolution of Waimanalo Gulch Violation Case Pushes Limits of DOH Rules, Permit Deadlines” (July 2007);
• “City, Waste Management Struggle to Renew Waimanalo Gulch Permit” (February 2009) ;
• “Auto Scrap Lawsuit Draws Concern Over Metals in Waimanalo Gulch” (February 2009).
• “Hearing Begins on Honolulu’s Petition to Change Landfill’s District to Urban” (June 2009)
— Teresa Dawson
Volume 20, Number 5 November 2009
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