A small medical-waste incinerator in `Aiea, O`ahu, has been in the news lately. Just how this came to be built is a story worth telling. Whether it will be allowed to remain is a story not yet written.
The incinerator was built on state land, but without any permission from the state Department of Land and Natural Resources. The incinerator operated from January through September 1994, but without the necessary permits from the Solid Waste Branch of the state Department of Health. The operator was informed that the city of Honolulu would require a Special Management Area permit and a Conditional Use Permit. As of mid-October 1994, neither of these permits had been applied for, much less obtained.
How could this happen?
As to the Land
The half-acre or so of land on which the incinerator was built lies just a few yards from Pearl Harbor. To the east, on the mauka side of the lot, is Kamehameha Highway. To the north and west, lying between the lot and the water, is land owned by the United States that is part of the Pearl Harbor Naval Reservation. To the south is an access road and another lot owned by the state.
For decades, the state-owned land has been occupied under a month-to-month revocable permit. In theory, an R.P. gives the tenant little ability to make long-term plans, with the state being allowed to give tenants no more than a 30-day notice to vacate. Rental rates are discounted accordingly. In practice, as this case shows, R.P.’s are frequently regarded — by tenants as well as the state — as assuring virtually unlimited tenure on the land.
Until 1979, the `Aiea parcel was occupied under an R.P. by Maili Meadows, a nursery. In February of that year, a roofing company asked the DLNR’s Division of Land Management if land was available in that area for a long-term lease. A month later, Maili Meadows announced it was vacating the site.
Under state law, the roofing company — or anyone else, for that matter — should have had the chance to use the parcel, with rent to be determined at a public auction. However, in violation of the terms of its revocable permit, months earlier Maili Meadows had allowed a company called United Towing to sublet the land without the consent of the state.
Barely a week after Maili Meadows unilaterally terminated its R.P., the attorney for United Towing informed the DLNR that his client “desires to continue leasing the premises.” On June 22, 1979, the Board of Land and Natural Resources approved United Towing’s request, granting a month-to-month revocable permit in exchange for rent of $350 a month.
History Repeats
Fourteen years later United Towing attempted to do much the same thing. On September 17, 1993, the company’s president, Emmeline Miyashiro, notified Land Board Chairman Keith Ahue that the R.P. “should be changed to reflect the new lessee, United Environmental Services, Inc. UES intends to operate a medical waste processing facility at this location.” (United Environmental Services, of which Miyashiro was one of five owners, was incorporated in November 1992. The purpose listed in its articles of incorporation was “to provide medical waste incineration service.”)
September marked the first time the DLNR was informed of the planned change in use. But by this time, United Towing had moved out and the incinerator building had already gone up.
In late October 1993, Miyashiro and Pamela James, another UES owner and its secretary-treasurer, met with Board Chairman Ahue, Division of Land Management administrator Mason Young, and other DLNR staff. At that meeting, Young informed Miyashiro and James that no new R.P. could be issued until certain conditions were satisfied. UES had to prepare an environmental assessment covering the use of the site for medical-waste incineration. It had to conduct a Level I hazard evaluation to ensure that United Towing had not left hazardous wastes on the site. Further, the permit would be temporary and, in any case, would be issued only if the Division of State Parks indicated it had no interest in the area. (The land has been identified in State Parks’ long-range plans as an area for expansion of the `Aiea Bay State Park.)
Meanwhile, at the DOH
By this time, the planned incinerator was old news at the Department of Health. In February 1993, UES first sought an Authority to Construct the facility from the Clean Air Branch.1 The construction permit was granted in July 1993, but with several conditions — including one that allowed operation of the facility only to the extent needed to conduct emissions tests.
At the same time that the Clean Air Branch was authorizing the facility’s construction, its sister agency, the Solid and Hazardous Waste Branch, was pressing UES to apply for the needed Solid Waste Management Permit. Throughout 1993, repeated requests were made by the DOH of UES, but to no avail.
By December of 1993, the incinerator was up and running. Without ever having asked the Department of Land and Natural Resources for permission to build an incinerator on state land, UES sought from the DLNR a right of entry to conduct stack emissions tests. This was granted to a company called REST, Inc., which UES said would operate the facility under contract, on December 28, 1993.
Testimonials
While UES dodged most of the government agencies attempting to get it to apply for the needed permits, it was soliciting testimonials on its behalf from a number of Honolulu hospitals, all of whom had seen their costs of waste disposal rise since January 1993, when the Queen’s Medical Center in downtown Honolulu shut down its incinerator rather than face expensive upgrades to meet new emission regulations.
In November 1993, Land Board Chairman Ahue was swamped with letters on UES’ behalf from Queen’s, Straub, Kaiser, and other medical waste generators in an effort orchestrated by UES to gain favor with the DLNR. Deputy Health Director Bruce Anderson was asked to join the chorus as well, but he demurred. On December 28, 1993, Anderson wrote Robert Thomas Jr. of REST that while the Department of Health “would be inclined to provide a favorable, supportive letter regarding this matter… discussions with our Office of Solid Waste Management have revealed that despite requests from that office indicating the need for your facility to obtain a solid waste management permit, to date, no permit application has been received.”
Up In Smoke
In January 1994, the incinerator began accepting medical waste. Both the DLNR right of entry and the DOH Authority To Construct covered operation of the incinerator to the extent necessary for testing purposes only. However, by UES’ own admission, it burned a total of 58,941 pounds of medical waste from January 1994 to the end of August 1994. Monthly volumes ranged from a high of 13,079 pounds in February to a low of 933 pounds in January.
Testing of the stack for particulate and hydrochloric acid (HCl) occurred on just two days: May 31 and June 6. (According to the report on the emissions tests, the limit set in the Authority To Construct on particulate emissions was exceeded. The ATC allows particulate emissions of up to two-tenths of a pound for each 100 pounds burned; the average emissions from the three test runs conducted June 6, 1994, was .26 pounds per 100 pounds burned.)
Still, the incinerator continued to operate, with no interference from any state agency. Although the month-to-month revocable permit remained in the name of United Towing Service, United Environmental Service was paying the $584-a-month rent to the DLNR. UES had also provided the liability insurance policy, naming the state as additional insured. (The policy expired on October 11 of this year. No one at the Division of Land Management could say whether it had been renewed.)
From the time the right of entry was issued until September 1994, the DLNR would seem to have forgotten about the irregularities in the R.P. to United Towing Service.
Turning Point
On April 13, 1994, Senate President Norman Mizuguchi wrote both Land Board Chairman Ahue and Department of Health Administrator John Lewin, expressing his concerns that the UES incinerator was incompatible with plans to use the `Aiea site for the expansion of `Aiea Bay State Park or for a veterans’ hall. The DLNR appears to have taken no action as a result of Mizuguchi’s letter. At the DOH, however, Solid Waste Coordinator John Harder followed up with yet a third request to UES — this time sent by certified mail — that it apply for a solid waste permit.
In a belated response, UES submitted the application on August 9. Six days later, inspectors from the Solid and Hazardous Waste Branch visited the site and found the unpermitted facility in full operation.
On August 22, Harder informed UES that the operation was “a direct violation of Chapter 342H Hawai`i Revised Statutes … and is subject to fines of up to $10,000 a day.” Harder notified UES that “the issue regarding the need for an environmental assessment has still not been resolved.” In addition, “as our permit is conditional upon the applicant’s compliance with any and all federal, state and local regulations, any permit issued by this office would not be in effect until all of the necessary approvals are obtained.”
New Management
Samuel L. Gomes responded to Harder’s letter on August 29, 1994. Although his name appears as one of the five co-equal shareholders on the documents incorporating UES, Gomes blamed past problems on “prior administration” of the company. According to Gomes, he became its sole owner “over the last two months.” Robert Thomas of REST, who had been the contractor operating the facility, had “recently accepted the position of general manager of our facility.”
Gomes said he had “voluntarily ordered the facility to cease operations.” Still, he sought relief from the requirement that an environmental assessment be prepared and permits issued before operation resumed. “Your responsibility to protect the public welfare is understood,” he told Harder. “However, waiting until a permit is issued to start operations has certain negative impacts.”
By late August, Robert Thomas had bound together an assortment of letters, DOH permit applications, and stack test results. Calling this an environmental assessment, he got the Division of Land Management to forward this to the Office of Environmental Quality Control in an effort to satisfy environmental review requirements.
Les Segundo, acting manager of the OEQC, acknowledged receipt of the document in a letter to Gomes on September 2, 1994. However, Segundo pointed out a number of deficiencies, including a failure to discuss the timing of the project and the status of all necessary approvals or permits; a failure to describe the advantages and disadvantages that the project will have on the community; a summary description of the affected environment; and a topographic map.
The OEQC Bulletin published the notice of availability of the draft environmental assessment on September 23 and October 8. Although the comment period on draft environmental assessments is to last 30 days from the date of initial notice, by October 13, the DLNR had already received such unfavorable reviews on the document that it decided to withdraw the EA.
What Next?
Donald Clegg, director of Honolulu’s Department of Land Utilization, told Environment Hawai`i on October 13 that United Environmental Service had come in just that day to obtain application forms for the Special Management Area and Conditional Use permits, issued by the county.
Nolan Hirai, of the Department of Health Clean Air Branch, said that by mid-October, his office had not issued any permit that would replace the now-expired Authority To Construct and allow operation of the incinerator.
To resolve the matter of past unpermitted operation, the Office of Solid Waste Management entered into a memorandum of agreement with UES. Under its terms, UES paid a $1,000 fine; agreed to submit the environmental assessment; said it would obtain the Department of Land Utilization permits (“if necessary”) within 90 days; and promised to obtain “written approval from the Department of Land and Natural Resources to operate the facility.”
At the Division of Land Management, staff is awaiting the revision of the environmental assessment before taking any further action.
1 The Authority to Construct was at the time the first step in obtaining the operating permits needed for any facility that would be releasing emissions into the air. Since then, what has been a two-step permit process (the Authority to Construct and the Permit to Operate) has been consolidated into a one-step permitting process.
Volume 5, Number 5 November 1994
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