Island Watch

Maui County Builds First, Seeks Permits Later

The Maui Economic Opportunity’s new facility on Moloka’i has office space, a child-care facility a playground and parking lot. What it lacks is an environmental assessment and a Special Management Area permit.

Mayor Linda Lingle said the county building permit was issued for the facility before the environmental review process was completed and the SMA permit was in hand so that state funds appropriated for the MEO facility $675,000 – would not lapse.

Both Lingle and the MEO’s executive director, Gladys Balsa, told The Maui News that by the time the MEO was aware that the appropriation was to the county and not the MEO (which is not a county agency), it was so late in the fiscal year that there just wasn’t time to worry with such things as environmental reviews, SMA permits, and the like.

The funds were encumbered before June 30, 1992, when Maui County issued a contract for the building’s construction. Months passed, however, with no environmental assessment prepared or application made to the Moloka’i Planning Commission for the needed SMA permit. Stephanie Aveiro, director of the county’s Department of Human Concerns, told The Maui News that this resulted from a misunderstanding over who was to apply.

In any case, the county Department of Public Works issued its building permit without insisting on the SMA permit, as would normally be done. Some members of the Moloka’i Planning Commission see this as an usurpation of their powers. The Moloka’i Chamber of Commerce has sued the county for violations of laws regulating activity in the coastal zone and the state’s environmental review law, Chapter 343.

The Lahaina Baseyard

Lingle told The Maui News that the circumvention of due process in the MEO case was not part of a pattern. “It was a very unusual occurrence with a combination of facts I don’t see happening again,” she was quoted as saying.

Evidently she wasn’t looking in the direction of Lahaina. The very same week that the mayor made that statement, her Department of Public Works came under fire at the meeting of the state Board of Land and Natural Resources. At issue was the construction of a baseyard facility on state land, without obtaining approval of the state. According to Mason Young, administrator of the DLNR’s Division of Land Management, his division did not learn about the baseyard until an agent visited the site and found it there.

County involvement with the land dates back to June 1991. At that time, the county Planning Commission approved the Department of Public Works’ request to rezone 6.5-acre parcel of state land for use in connection with wastewater reclamation operations and as a baseyard. As a condition of that approval, the county was required to apply to the BLNR for an executive order by the end of 1991. (The application was received October 29, 1992.)

In October 1991, the county sought a negative declaration for the baseyard, but the environmental review process was never completed. According to the DLM’s submittal to the Land Board, “Concerns submitted by various agencies during this process were never addressed during this period.”

Structures on the site include a 40 x 60 foot metal-concrete building, a 24 x 30 foot wood frame building, a trailer, an office and repair shop, portable toilets, above-ground fuel tanks, and several shacks. The entire baseyard site, consisting of slightly less than one acre, has been paved with asphalt.

The staff recommended to the Land Board that it require, among other things, the county to pay a $500 fine (for using state land without a permit) and to obtain approval of a negative declaration, albeit after-the-fact. Following the wishes of Maui Board member John Arizuini, however, these two recommendations were deleted.

City Is Sued for Clean-up Of Contaminated Land

The federal Resource Conservation and Recovery Act, which regulates solid and hazardous waste, has been invoked as the basis for a lawsuit filed this year in federal court. The plaintiff, Yee Hop Realty, Ld., is suing the former and present owners of a parcel on Middle Street in Honolulu, alleging that they have caused damage to Yee Hop’s neighboring property by allowing a 1,000-gallon underground storage tank to leak fuel oil. The fuel spread underground to the Yee Hop property the lawsuit claims, resulting in the owner being unable to develop it in the manner intended (as a cold-storage facility) without having to incur additional substantial costs.

The former owner of the site is Hawai’i Meat Co., Ltd. The present owner is the City and County of Honolulu.

According to the lawsuit, the owners of the property failed to prevent migration of some 15,000 gallons of fuel oil, in violation of RCRA. The federal lawsuit seeks damages sufficient to cover the cost of clean-up, loss of property value, and “present and future lost income” resulting from the fuel leak. A separate suit has been filed in state court, seeking relief pursuant to Hawai’i state statutes.

Role of PGV Lender Is Clarified

In the [url=/members_archives/archives1992.php]December 1992[/url] edition of Environment Hawai’i, (scroll down on linked page to see article listing) Credit Suisse was identified at one point as a lender to Puna Geothermal Venture and at another point as an investor. Murray Gardner, a vice president of the consulting firm GeothermEx, has noted that it is incorrect to describe Credit Suisse as an investor. As Gardner writes, “Lenders do not profit from project revenues. Lenders are concerned that projects are designed and carried out properly so that they can recover their loaned money.” While GeothermEx is a consultant to Credit Suisse, Gardner writes, it “does not work for PGV or any of its investors.”

We apologize for any confusion generated by the erroneous description of Credit Suisse’s role.

Contaminated Soils, Tainted Treatment

“Oil in Soil Problems?” That was the grabber across the top of an advertisement on page 10 of the Pacific Business News on January 4, 1993. Answering its own question, the ad went on to advise readers to “Contact Stay & Sons, Inc.” Their operation was “the first permitted off-site bioremediation facility,” was “100% environmentally sound: and, among other things, had a 25,000 cubic yard capacity.”

What the ad failed to mention was that the permit for Stay & Sons’ facility, in Punalu’u, had been suspended a month earlier. Contrary to the explicit instructions of the Department of Health, Stay had brought to the site, in late November, 750 cubic yards of diesel-contaminated soil from a downtown construction site. And, also contrary to DOH instructions (and conditions in the permit), Stay had not applied for or received the permits from the City and County of Honolulu needed for his soil treatment facility.

As the ad claimed, Stay’s facility was indeed the first soil treatment facility to be permitted in the state. The Department of Health had made the decision to regulate operations such as Stay’s through its Office of Solid Waste Management. While on-site remedial actions for contaminated soil require no solid-waste facility permit, off-site treatment facilities (such as Stay’s) are required to obtain a permit.

An Instructive Experience

John Harder is the administrator of the DOH’s Office of Solid Waste. He acknowledged that in some respects, Stay’s permit was “not thought out very well.” The permit was issued with no notification or opportunity to comment provided to the surrounding community or other interested parties. Harder said it was the Health Department’s intention that the community concerns be dealt with during the stage when the permittee would go through the process of getting the needed county permits. In short, he envisioned a two step permitting process, with community concerns being addressed only at the second step.

The outcry over Stay’s Punalu’u facility was instructive, Harder said. The Department of Health has already formalized an arrangement with the City and County of Honolulu’s Department of Land Utilization so that permits for soil treatment facilities will be dealt with simultaneously at the county and state levels. Arrangements with other counties will be proposed soon, he said.

The so-called bioremediation of contaminated soil, the process proposed by Stay, is itself not without controversy. To ensure its effectiveness, the treatment process needs to be accompanied by a testing regime so claims of a clean-up can be verified.

Staying Power

In any case, Robert Stay’s history of operations in Hawai’i should certainly give one pause. Before starting his own company, Stay & Sons, Stay was associated with a firm called Aloha Bio, Inc., claiming at one point to be its president. Under his management, Aloha Bio stockpiled contaminated soil at Campbell Industrial Park without city or state permits. The operation was forced to close in 1991.

Following that episode, he was dismissed by Aloha Bio, which, in a letter to the Department of Health dated December 17, 1991, stated that Stay had been dismissed for several reasons, including “insubordination and failure to work under the directives of Aloha Bio policy.” Stay had never been company president, according to the letter’s author, Reynard Burgess, director and operations manager of Aloha Bio. His stockpiling of soil at Campbell Industrial Park was specifically against company directives, Burgess said. Aloha Bio has since been taken on the name of its California-based corporate parent, Pacific Bio, Inc.

Hearing Postponed On Army’s Makua Permit

Citing the need for additional information from the Army, the U.S. Environmental Protection Agency has postponed a public hearing on the Army’s application for a permit to burn waste munitions at Makua Valley.

The hearing was to have been held in late February. No new date has been scheduled. In any event, the EPA does not expect to have any hearing before April at the earliest.

Volume 3, Number 8 February 1993