It seemed to come down to integrity versus practicality. And integrity lost.<\/p>\n
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\u2019s 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\u2019s current SUP not be renewed or extended past its November 1 expiration date.<\/p>\n
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\u2019s H-POWER waste-to-energy plant may continue to be landfilled until the gulch reaches capacity.<\/p>\n
\tThe 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\u2019s conditions. And so were those who sought to close the landfill.<\/p>\n
\u201cThe worst thing about it is\u2026irrespective of what\u2019s put there, ash or otherwise, it\u2019s a dumping ground,\u201d 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.<\/p>\n
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, \u201cIt 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\u2019t want to close this landfill [by revoking the permit]. I asked myself the question, I said, \u2018Would you, Kerry, really be willing to close Waimanalo Gulch?\u2019 and the answer is no.\u201d<\/p>\n
Background<\/i><\/b><\/p>\n
The city\u2019s Waimanalo Gulch Sanitary Landfill has been accepting O`ahu\u2019s 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\u2019s SUP to May 1, 2008. Despite attempts by the city during Mayor Jeremy Harris\u2019 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.<\/p>\n
Last March, in response to the city\u2019s 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.<\/p>\n
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, \u201cTo 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\u2019s 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.\u201d During the hearing, city representatives said that the city would begin seeking and developing a supplemental landfill site next year.<\/p>\n
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.<\/p>\n
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\u2019s 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.<\/p>\n
\u201cThe city is dumping on the Wai`anae Coast is the sentiment of many of the community leaders,\u201d the motion states.<\/p>\n
Needed or Not?<\/i><\/b><\/p>\n
At the commission\u2019s September 24 meeting, city councilmember Todd Apo, who represents the Leeward coast, agreed with Hanabusa\u2019s arguments against the landfill, although he did support a two-year permit extension.<\/p>\n
\tApo 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\u2019s ash. He said that by 2011, H-POWER will have expanded to accept 400,000 tons of waste a year. After that, Apo said, \u201cWe don\u2019t need a landfill anymore\u2026[except for] an emergency site.\u201d 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.<\/p>\n
\t\u201cCan you deny this petition without causing havoc for the city? Yes you can,\u201d 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\u2019s PVT construction and demolition landfill in Nanakuli, Apo said he didn\u2019t think that would happen since PVT is not lined or permitted by the state Department of Health to accept MSW.<\/p>\n
\tIn direct contrast to Apo\u2019s testimony, Gary Takeuchi, counsel for the city\u2019s Department of Environmental Services, argued that there will always be a need for a landfill on O`ahu.<\/p>\n
\u201cThere are always things that can\u2019t be used, recycled, combusted or shipped,\u201d 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.<\/p>\n
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\u2019s 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\u2019s 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.<\/p>\n
Takeuchi also disputed Apo\u2019s claims that H-POWER and Hawaiian Waste Systems could together make Waimanalo Gulch obsolete, stating that closing Waimanalo Gulch actually \u201craises the spectre\u201d 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\u2019s ash goes to Waimanalo Gulch.<\/p>\n
Despite Takeuchi\u2019s 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.<\/p>\n
\t\u201cIt\u2019s some curiosity we\u2019re sitting where we are now,\u201d he said and asked Takeuchi how the city reconciled last year\u2019s D&O with the city\u2019s application for a new permit.<\/p>\n
\tTakeuchi 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. \u201cSo I hope it\u2019s not a complete surprise,\u201d he said.<\/p>\n
\tCommissioner Reuben Wong asked Takeuchi, \u201cIs there ever a time when\u2026 municipal waste will not be placed in Waimanalo Gulch?\u201d<\/p>\n
\tTakeuchi responded, \u201cthat day is not here now\u201d and in any case, the city must have the option to landfill waste if it needs to.<\/p>\n
\tWhen 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\u2019 intention to divert 80 percent of MSW from the landfill.<\/p>\n
\tTo this, Hanabusa argued, \u201cBefore, it was, \u2018It will close. We won\u2019t need a landfill.\u2019 Now, the city\u2019s 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.\u201d<\/p>\n
OP\u2019s Stance<\/i><\/b><\/p>\n
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\u2019s 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 \u201cinclusive, transparent, public site-selection process,\u201d within 18 months of the LUC\u2019s 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\u2019s conditions and the site-selection deadline be included.<\/p>\n
\t\u201cAlternatively, the OP recommends that the [LUC] should remand the entire docket back to the City and County of Honolulu Planning Commission,\u201d he wrote.<\/p>\n
\tMayer argued that during the Planning Commission\u2019s 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\u2019s actions, he claimed, required the LUC to remand the issue back to the Planning Commission.<\/p>\n
\tMayer also contended that the city\u2019s 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\u2019s 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.<\/p>\n
\tMayer also disputed planning commissioner Komatsubara\u2019s reasoning behind abandoning a permit deadline.<\/p>\n
\t\u201cCommissioner 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\u2019s] 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,\u201d he wrote.<\/p>\n
\tAt the LUC\u2019s meeting, Mayer added that he felt the city\u2019s proposal was \u201cextremely troubling\u201d and agreed with Hanabusa that \u201cat a certain point, enough is enough\u2026. Responsibility should be shifted back to [the city].\u201d<\/p>\n
\t\u201cOn the other hand, I would like to be able to bring them into the fold and clean the record,\u201d he said as a way of explaining his recommendation that the commission extend the city\u2019s 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, \u201csweep under the rug the history of this entitlement process.\u201d<\/p>\n
\tLezy 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.<\/p>\n
\t\u201cIn my mind, you\u2019re advocating again that the city create a self-fulfilling prophecy,\u201d Lezy said, referring to the city\u2019s apparent position that \u201cwe have to have a landfill because we have not done what we need to do to not have one and we\u2019ve done that intentionally.\u201d<\/p>\n
\tMayer explained that his office had supported the city\u2019s use of Waimanalo Gulch as a landfill in 2003. While he supported closure now, \u201cI\u2019m trying to take responsibility for my office\u2019s statements in the past,\u201d he said.<\/p>\n
A Motion<\/i><\/b><\/p>\n
In the end, no one got what they asked for.<\/p>\n
\tCommissioner Reuben Wong made a motion to grant the city a new special use permit with several conditions, including the following:<\/p>\n
\u2022\tAll conditions in the 1986 SUP shall be incorporated into the new permit;<\/p>\n
\u2022\tMunicipal solid waste will be allowed in Waimanalo Gulch until July 31, 2012;<\/p>\n
\u2022\tA third stability berm will be built in 2011;<\/p>\n
\u2022\tAfter July 31, 2012, only ash and residue will be allowed;<\/p>\n
\u2022\tThe city administration and council will report to the LUC every three months on operations at Waimanalo Gulch, including financial arrangements under consideration;<\/p>\n
\u2022\tThe city will hold public hearings every three months on the status of waste management activities.<\/p>\n
\tLezy said he could not in good conscience support the motion and that had he been \u201cquicker on the draw,\u201d 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\u2019s 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.<\/p>\n
Lezy didn\u2019t seem to think the city would meet Wong\u2019s MSW deadline, either.<\/p>\n
\u201cThree years from now, we will be back exactly where we are today\u2026I can\u2019t support yet another broken promise, another blow to the integrity of this [commission],\u201d he said.<\/p>\n
Commissioner Thomas Contrades, on the other hand, said he did not remember the LUC\u2019s 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 \u201ctotally pleased\u201d with what Wong had proposed, Contrades said, \u201cWe have to do something. It\u2019s reprehensible that we would consider the solution to be putting our trash in someone else\u2019s backyard.\u201d<\/p>\n
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.<\/p>\n
\tWith regard to the city\u2019s \u201cbroken promises\u201d, Contrades said, \u201cEveryone has the right to ask for a change,\u201d including a new city administration.<\/p>\n
Contrades said he didn\u2019t know what the perfect solution was, but he didn\u2019t think Hawaiian Waste Systems would be ready to start taking all of the city\u2019s waste by November 1.<\/p>\n
Commissioner Chock sided with Lezy, stating, \u201cWe\u2019ve been kicking this can down the road for generations of administrations and commissions,\u201d and it was time to put an end to the \u201cenvironmental injustice\u201d that has been inflicted on Leeward residents.<\/p>\n
In defense of his motion, Wong explained that while he would love to say that the Waimanalo Gulch should be closed, \u201cWhat is the solution? At what point do you continue to hold to decisions of previous councils, administrations, et cetera?\u201d 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.<\/p>\n
\tWhen it came time to vote, Lezy, Chock, and commissioner Lisa Judge opposed Wong\u2019s motion, which passed 5-3.<\/p>\n
What now?<\/i><\/b><\/p>\n
After the LUC\u2019s 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.<\/p>\n
\tJoe Whalen of Waste Management added that the commission will most likely have to revisit the issue to address treatment of special wastes \u2013 sludge, asbestos, etc. \u2013 that can\u2019t be shipped, recycled or burned. He added that the commission\u2019s 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.<\/p>\n
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\u2019s permit application is for the total 200 acres owned by the city. Hanabusa and Apo argued the EIS wasn\u2019t adequate for this reason. \u201cAt what point [in the EIS] were we told the total 200 acres was for perpetual use? Nowhere,\u201d Hanabusa said.<\/p>\n
Takeuchi noted that EIS does address the entire area, and what\u2019s 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.<\/p>\n
For Further Reading<\/b><\/p>\n
Other articles published by Environment Hawai`i<\/i> are available online:<\/p>\n
\u2022\t\u201cAsh: A Resource Beyond Recovery\u201d (October 1990);<\/p>\n
\u2022\t\u201cResolution of Waimanalo Gulch Violation Case Pushes Limits of DOH Rules, Permit Deadlines\u201d (July 2007);<\/p>\n
\u2022\t\u201cCity, Waste Management Struggle to Renew Waimanalo Gulch Permit\u201d (February 2009) ;<\/p>\n
\u2022\t\u201cAuto Scrap Lawsuit Draws Concern Over Metals in Waimanalo Gulch\u201d (February 2009).<\/p>\n
\u2022\t\u201cHearing Begins on Honolulu\u2019s Petition to Change Landfill\u2019s District to Urban\u201d (June 2009)<\/p>\n
— Teresa Dawson<\/p>\n
Volume 20, Number 5 November 2009<\/p>\n","protected":false},"excerpt":{"rendered":"
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