Challenging Environmental Planning Commission Proceedings
The case involves a complex environmental planning commission process with various filings, orders, and motions spanning several years. Key issues revolve around landfill site selection, waste diversion efforts, and operational considerations. The community association and senator are actively involved in advocating for their interests.
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In re ENV, Docket No. SP09-403, Planning Commission File No. 2008/SUP-2 Rebuttal Ko Olina Community Association and Senator Maile Shimabukuro
Procedural History 2008: SUP Application filed. ENV also filed for boundary amendment which may be withdrawn if the Application is granted. PC FOF paragraph 7. 5/12/12: ENV files a notification of supreme court decision or to stay. 5/22/12: LUC urges Planning Commission to stay pending remand from LUC. 10/8/12: LUC remands to Planning Commission 2008 application proceeding for consolidation with 2011 application proceeding and issuance of single decision. 4/28/17: Planning Commission issues FF/CL/D&O. 6/6/17: LUC issues remand order with directions. 6/10/19: Planning Commission issues FF/CL/D&O.
Remand Order LUC Remand 6/6/17 Order KOCA s 11/22/17 Motion to Reopen (2) clarify the basis of the Planning Commission s proposed additional Condition No. 3, which specifies a December 31, 2022, date within which the Applicant is to identify an alternative site that will be used upon the WGSL reaching its capacity and the implications it has on the closure date of the WGSL to use and the subsequent commencement of operations at the alternative landfill site; (3) clarify whether the record needs to include updated information on the operation of the WGSL, the landfill site selection process, and the waste diversion efforts of the City and County of Honolulu . . . . (1) The ENV s progress toward selecting and developing a new landfill site; (2) The amount of waste that is currently being landfilled at, and the amount of waste that is currently being diverted from, [WGSL]; (3) Based on the current and anticipated landfill and diversion rates, the time until the WGSL is filled to capacity; (4) The currentoperation of the WGSL . . . .
Remand Order ENV s 12/2/17 Opposition at 2: The motion should be denied because the evidentiary record is complete, and the information Intervenor KOCA seeks to add to the evidentiary record is not relevant to the contested case hearing. Further, the unwarranted reopening of this contested case hearing will unduly delay the proceedings, which is contrary to the LUC's direction and will prejudice Applicant.
DOH Permit The facility may accept MSW and ash for disposal until the date specified in the associated Special Use Permit or until the landfill/monofill reaches its permitted capacity, whichever comes first. o Ex. A-4 at 1 (Solid Waste Permit).
Use Deadline [Commissioner Komatsubara] tries to resolve the problem of enforcing the time deadline by eliminating the time deadline. But this merely surrenders the CPC 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. o 9/22/09 OP Letter to LUC at 12.
Use Deadline OP Today Capacity is a sufficient deadline. OP 2009 The CPC s decision to grant an SUP without any time limit may cross the line between an SUP and a district boundary amendment. 9/22/09 OP Letter to LUC at 7. The issuance of an SUP with an unlimited term identically resembles the intended outcome of the district boundary amendment petition . . . filed by the ENV . . . . Id. at 8. The OP believes the CPC has overstepped the bounds of its authority in issuing a SUP without a firm time limit for operations. Id. at 8. [T]he OP recommends that the LUC correct the entitlement record for the WGSL by limiting the term of the SUP . . . . Id. at 10.
Public Trust in Government OP Today Keep sending this proceeding back to the Planning Commission. the meaning and integrity of our land use entitlement processes, and with it, the public trust in government. 9/22/09 OP Letter to LUC at 10. The issues of public trust in government are magnified in this case, because the Applicant is itself a government agency. Id. Holding government agencies to their commitments and enforcing the law and previously imposed conditions on other government agencies is of primary importance in this case. Id. OP 2009 The practice of allowing [the City] to simply amend or eliminate conditions when they become too onerous to comply with risks undermining
Public Trust in Government We have witnessed throughout history that when governments fail to abide by their own laws or when governments fail to enforce their own laws upon themselves to varying degrees civilizations tend to deteriorate. At the very least, in this case, the OP recommends that the LUC correct the entitlement record for the WGSL by limiting the term of the SUPand re-imposing the applicable requirements that have been violated for so long, and in so doing, help to rebuild public trust in Hawaii s land use entitlement process. o 9/22/09 OP Letter to LUC at 10.
Social Injustice OP Today Social injustice towards Waianae community is not a consideration in deciding on a specific project. Waimanalo Gulch Sanitary Landfill. OP acknowledged the simple but compelling truth that petitioners should be keep their word, and conditions on permits run with the land, regardless of the owner, lessee, developer. OP 2009 OP wrote an entire section on Keeping One s Word. OP said this was a Policy Issue. In 2003,the ENV committed unequivocally to selecting a new landfill site and to closing the
Conditions Imposed on Private Corporation All resource extraction, related aggregate processing and concrete and asphalt production activities, including recycling activities shall cease by December 31, 2032. o Grace Pacific SUP Condition 3 The Applicant shall close the processing site on Parcel 4 by relocating all uses on the site into the quarry pit or Campbell Industrial Park by December 31, 2012, and Parcel 4 shall be returned to landscaped open space use within six (6) years of the date of the Land Use Commission's Decision and Order. o Grace Pacific SUP Condition 4
Conditions Imposed on Private Corporation As may be required by the State Department of Health, the Applicant shall place in service additional dust control measures to control dust generation at the project such that no visible fugitive dust shall cross the combined property boundaries . . . . o Grace Pacific SUP Condition 7 On each anniversary date of the [LUC s] Decision and Order, the Applicant or its successor shall file with [DPP] and the [LUC] a report and supporting documentation demonstrating the status of compliance with each of the conditions of the [SUP] approval. o Grace Pacific SUP Condition 9
Conditions Imposed on Private Corporation The Applicant shall be responsible for insuring that the final plans for the project approved under this permit comply with all applicable provisions of the Land Use Ordinance and other governmental agencies provisions and requirements. o Grace Pacific SUP Condition 11 The Applicant shall, for the life of the Special Use Permit, establish and disclose to the community, a telephone number dedicated to receiving and recording complaints relating to quarry and recycling operations. A continuous volume of complaints shall warrant reconsideration of the Special Use Permit by the Planning Commission. o Grace Pacific SUP Condition 14
ENV vs. Private Corporation ENV Private Corporation No date certain to end special use. recycling activities shall cease by December 31, 2032. GP condition 3. Nophased closure. Parcel 4 by relocating all uses on the site into the quarry pit or Campbell Industrial Park by December 31, 2012, and Parcel 4 shall be returned to landscaped open space use within six (6) years of the date of the Land Use Commission's Decision and Order. GP condition 4 Nodust control measures required. project such that no visible fugitive dust shall cross the combined property boundaries . . . . GP condition 7 All resource extraction, related aggregate processing and concrete and asphalt production activities, including The Applicant shall close the processing site on As may be required by the State Department of Health, the Applicant shall place in service additional dust control measures to control dust generation at the
ENV vs. Private Corporation ENV Private Corporation Not required to report on compliance. and the [LUC] a report and supporting documentation demonstrating the status of compliance with each of the conditions of the [SUP] approval. GP condition 9 Not required to comply with other governmental agency requirements Not required to facilitate community complaints. complaints relating to quarry and recycling operations. A continuous volume of complaints shall warrant reconsideration of the Special Use Permit by the Planning Commission. GP condition 14 On each anniversary date of the [LUC s] Decision and Order, the Applicant or its successor shall file with [DPP] The Applicant shall be responsible for insuring that the final plans for the project approved under this permit comply with all applicable provisions of the Land Use Ordinance and other governmental agencies provisions and requirements. GP condition 11 The Applicant shall, for the life of the Special Use Permit, establish and disclose to the community, a telephone number dedicated to receiving and recording
ENV vs. Private Corporation ENV Private Corporation Not required to facilitate community complaints. recording complaints relating to quarry and recycling operations. A continuous volume of complaints shall warrant reconsideration of the Special Use Permit by the Planning Commission. GP condition 14 The Applicant shall, for the life of the Special Use Permit, establish and disclose to the community, a telephone number dedicated to receiving and
Operations - Reg. Compliance KOCA Condition 2.c: The operations of the Landfill shall be in compliance with the requirements of Revised Ordinances of Honolulu 21-5.680, to the extent applicable, and all applicable statutes, rules and regulations of the State Department of Health, the United States Environmental Protection Agency and any other federal or state agency and the Solid Waste Management Permit for the Landfill. A violation of any applicable statute, rule or regulation or any violation of a condition of the Solid Waste Management Permit for the Landfill shall be a violation of this Order. Patterned after Incorporated PC Condition 7: The operations of the WGSL under 2008/SUP-2 shall be in compliance with the requirements of Section 21-5.680 of the Revised Ordinances of the City and County of Honolulu 1990, to the extent applicable, and any and all applicable rules and regulations of the State Department of Health.
Operations Agency Approvals KOCA Condition 2.d: The ENV shall obtain all necessary approvals from the United States Environmental Protection Agency, the State Department of Health, the State Department of Transportation, the State Commission on Water Resource Management, the City and County of Honolulu Board of Water Supply and any other federal, state or municipal agency prior to commencing any onsite or off-site improvements or activities. Patterned after Incorporated LUC Condition 1: The Applicant shall obtain all necessary approvals from the State Department of Health, Department of Transportation, Commission on Water Resource Management, and Board of Water Supply for all onsite and offsite improvements involving access, storm drainage, leachate control water, well construction, and wastewater disposal.
Time to Capacity ENV s 2011 Application: Based upon typical rates of disposal at WGSL, that remaining capacity is estimated to be approximately fifteen years. Ex. K161 (6/28/11 letter from ENV Director Steinberger at 12).
