department of - luc.hawaii.gov

DO NOT CIRCULATECONFIDENTIAL PRE-DECISIONAL DOCUMENT

DOCKET NO. SP09-403DEPARTMENT OF

ENVIRONMENTAL SERVICES,CITY AND C O UNTY OF

HONOLULU

CONTINUED STATUS UPDATE

Staff Report

Meeting

Daniel Orodenker, Executive Officer

Submitted: May 13, 2016

TABLE OF CONTENTS

Tab No.

1. Background (Recent)

2. Attachment (Summary)

Page No.

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1. BACKGROUND (RECENT)

On October 22, 2015, the Land Use Commission ("LUC") received a status

update on the proceedings before the City and County of Honolulu Planning

Commission ("Planning Commission") regarding the existing Waimanalo Gulch

Sanitary Landfill at Waimanalo Gulch, Oahu, Hawaii (for a detailed chronology

of the significant events leading up to the status update, including background

information of the proceedings before the Planning Commission, please refer to

the attached Summary that was prepared by the LUC's deputy attorney general

for the October 22, 2015, status update). Dana Viola, Esq., appeared on behalf of

the City and County of Honolulu Department of Environmental Services

("Applicant"). Cal Chipchase, Esq., appeared on behalf of Intervenors Ko Olina

Community Association ("KOCA') and Maile Shimabukuro. Bryan Yee, Esq.,

appeared on behalf of the Office of Planning. Neither Colleen Hanabusa, the

other intervenor in the proceeding, nor her counsel of record, Richard

Wurdeman, Esq., made an appearance at the meeting.

At the status update, Ms. Viola informed the LUC that given the

accomplishments the City and County had already made in terms of diverting

municipal solid waste from the landfill, including sewage sludge that is now

being directed to the H-Power facility, and its intention to

continue to focus on diversion of waste streams from the landfill, the parties

desired to continue their ongoing negotiations as agreed to by the Planning

Commission to further divert the waste streams and to ultimately come to a joint

resolution on the special use permit application.

As such, Ms. Viola noted that the parties were requesting a continuance of these

negotiations for an additional 18 months so that they could establish andmemorialize the objectives for the continued diversion of waste and the

concomitant reduction in the use of the landfill, and thereby minimize the impactto the surrounding community. The parties would seek approximately two

months to stipulate to the specific objectives that the parties would have in termsof landfill diversion. Within these two months, Mr. Chipchase explained that theparties would agree on a form of a stipulated order that would contain the

parties' stipulated list of continuing diversion objectives for the City and Countyas well as some realistic timeframes that the parties could agree upon. Once

these objectives have been established, the parties would also commit to an every

three-month update in front of the Planning Commission to provide the progress

on those negotiations.

Upon questioning regarding the participation of Ms. Hanabusa and Mr.

Wurdeman in these negotiations, Ms. Viola responded that the extent of their

involvement in the matter was unclear. Mr. Chipchase subsequently clarified

that Mr. Wurdeman's involvement was not very high. Mr. Chipchase further

noted that if the LUC was uncomfortable with Ms. Hanabusa not being a party tothe stipulated decision, the parties could appear before the LUC again to addressthe issue at the conclusion of the two months.

The meeting closed with the LUC leaving intact the requirement that the

Applicant continue to provide written status reports with the LUC on the

proceedings of the Planning Commission with service upon the other parties in

this matter every other month.1 The Applicant's latest written status report, filect

March 31, 2016, noted that the parties were continuing to discuss the terms of a

stipulation to set the objectives for further diversion of waste from the landfill.

By email dated April 11, 2016, Cal Chipchase apprised staff that KOCA, MarieShimabukuro, and the City and County worked out the form of thestipulation to continue. However, he noted that Colleen Hanabusa had not

approved the stipulation at this time.

1 The LUC established this requirement pursuant to Order Requiring Written Status Reports filed on May

28, 2014.

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2. ATTACHMENT (SUMMARY)

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CONFIDENTIAL - ATTORNEY - CLIENT PRIVILEGED

SUMMARY1

SCAP 10-0000157 Dept. of Environmental Services v. Land Use Commission

I. Overview

Because the Waimanalo Gulch landfill (sometimes WGSL) is a use that is "other than

agricultural," a Special Use Pelanit (SUP) is required, in accordance with Hawai'i Revised

Statues (HRS) #205-6. Because the site is greater than 15 acres in size, it is subject to the two-

step process: SUP granted by the Planning Commission of the City and County of Honolulu, and

then approval obtained from the LUC. Pursuant to # 205-6(d), the LUC may impose additional

restrictions as may be necessary or appropriate in granting approval, including adherence to

representations made by the applicant.

In the present case, the LUC approved the most recent SUP for the Waimanalo Gulch

landfill, but added additional restrictions, including the requirement that the landfill cease

accepting municipal solid waste (MSW) on July 31, 2012 (Condition #14). The Honolulu

Department of Environmental Services (ENV) appealed the LUC's imposition of Condition #14,

and on May 4, 2012, the Hawai'i Supreme Court issued its Decision, holding that the imposition

of Condition #14 was not supported by substantial evidence in the record. The Court ordered the

matter to be remanded back to the LUC for further proceedings.

II. History of Prior Permits

The first SUP for the Waimanalo Gulch site was issued in 1987, for 60.5 acres with 26

additional acres for accessory uses. Subsequent amendments and extensions were obtained over

the following years.

1 Updated fi'om Summary originally provided in 2012.

CONFIDENTIAL- ATTORNEY - CLIENT PRIVILEGED1


In 1989, the SUP was amended to expand the landfill by 26 acres, to allow for an

administration building, weighing station, drainage structures, and access roads.

On June 9, 2003, ENV obtained a SUP that added 21 acres to the site, of which 14.9 acres

were to be used for landfill expansion. This SUP required a May 1, 2008, closure date

(Condition #10). The Planning Commission had recommended, but did require, that ENV

submit an alternative site or sites to the City Council by December 31, 2003. The LUC,

however, adopted the May 1, 2008, closure date and also required the City Council to select new

site for a landfill by June 24, 2004/

After receiving an extension from the LUC on the deadline to select a new site, the City

Council selected the Waimanalo Gulch as its future landfill site on December 1, 2004

(Resolution No. 04-348). At oral argument, ENV argued that the selection of Waimanalo Gulch

as the future landfill site satisfied the LUC's requirement that a "new" site be selected because

the Waimanalo Site was to be expanded, and therefore aldn to a new site.

In 2007, ENV sought to amend the deadline to accept MSW under Condition #10 from

May 1, 2008, to May 1, 2010, or until capacity was reached, whichever occun'ed first. On

January 16, 2008, the Planning Commission granted the application to amend Condition #10 to

extend the closure date as requested by ENV to May 1, 2010, or until capacity was reached. On

May 7, 2008, the LUC adopted the Planning Commission's recommendations, but modified the

deadline for accepting MSW to November 1, 2009.

III. The SUP at Issue in the Present Proceeding

On December 3, 2008, ENV sought a new SUP to supersede the existing SUP, to allow

an expansion of the site to its current size of approximately 200 acres and to extend the time to


CONFiDENTiAL - ATTORNEY - CLIENT PRiViLEGED

accept MSW. After a contested case hearing, the Planning Commission recommended approval

of the application, subject to 10 conditions, and also recommended withdrawal of the prior SUP

(SUP File No. 86/SUP-5) upon the new SUP (2008/SUP-2) taldng effect. The Planning

Commission issued its decision on August 4, 2009, and did not impose any expiration date for

the landfill's acceptance of MSW, effectively elimination any previous time limits on the

landfill.

On October 22, 2009, the LUC adopted the Planning Commission's Findings of Fact,

Conclusions of Law, and Decision and Order, with modifications. The application was granted

subject to: (1) the withdrawal of SUP File No. 86/SUP-5, provided that the conditions herein

shall be incolÿorated to the extent they are consistent with and applicable to the LUC's decision;

(2) the conditions imposed by the Plalming Commission as modified as appropriate; and (3) the

following relevant conditions:

14. Municipal solid waste shall be allowed at the WGSL up to July 31, 2012,provided that only ash and residue from H-POWER shall be allowed at theWGSL after July 31, 2012.

15. The Honolulu City Council through the City Administration shall report tothe public every tbxee months on the efforts of the City Council and theCity Administration in regard to the continued use of the WGSL,including any funding arrangements that are being considered by the CityCouncil and the City Administration.

16. The City Council and the City Administration shall have a public hearingevery three months to report on the status of their efforts to either reduceor continue the use of the WGSL.

IV. Proceedings on Appeal

On November 19, 2009, ENV appealed the LUC's decision, specifically Condition #14,

to the first circuit court. On September 21, 2010, the circuit court issued its decision affirming



the LUC's decision, with some modification- namely, Conditions # 15 and # 16 were modified

to delete reference to the City Council and City Administration, and substituted ENV in their

places. Final Judgment was entered on October 19, 2010.

On November 12, 2010, ENV appealed the circuit court's decision to the Intermediate

Coral of Appeals. On July 14, 2011, after briefing was completed, ENV filed an application for

transfer to the Hawai'i Supreme Court, which was granted.

ENV argued that there was not substantial evidence in the record to support the

imposition of Condition #14 in that the LUC wholly adopted the Planning Commission's

findings of fact, including findings that it would take seven years to identify and develop a new

landfill site, and that even with H-POWER there would always be a need for handling

emergency waste or other waste not suitable for H-POWER. The LUC argued that ENV had a

history of failing to meet closure deadlines and failure to fulfill the previous conditions imposed

by the LUC (such as the requirement to identify a "new" landfill site), and that testimony showed

that once H-POWER is complete, which was expected by the end of 2011, the City would not

need a daily operating landfill (testimony of Councilmember Apo), such that Condition #14 was

supported by substantial evidence.

On May 4, 2012, the Hawai'i Supreme Court issued its decision, holding that Condition

#14 was not supported by substantial evidence in the record. The Court found that the Planning

Commission's findings of fact, which the LUC adopted, demonstrate the continuing need to

dispose of MSW at WGSL beyond July 31, 2012.

The Supreme Court further held that the LUC's approval of 2008/SUP-2 was expressly

"subject to" several conditions, including Condition #14 which is a material condition. The



Court ruled that because Condition #14 cannot stand, the LUC's approval of 2008/SUP-2 also

cannot stand because Condition #14 was a material condition. The Court ordered that the matter

be remanded to the LUC for further hearings as the LUC deems appropriate. The Court held that

the relevant question is whether the LUC would have reached the same conclusion (i.e.,

approving 2008/SUP-2) without the imposition of Condition #14; the Court was unable to make

that determination, and thus remanded for fm"cher proceedings.

However, on June 28, 2011, ENV had also filed with the Department of Planning and

Permitting a request to modify Condition #14 of 2008/SUP-2 by deleting the July 31, 2012,

deadline to cease disposal of MSW; ENV sought to use WGSL until it reached its permanent

capacity, as allowed by the Department of Health.2 On May 15, 2012, ENV filed a "Notification

of Supreme Court Decision or in the Alternative Motion for Stay of Contested Case Hearing"

with the Planning Commission, asserting that due to the Hawai'i Supreme Court's decision

overturning the LUC's decision, the Planning Commission lacks jurisdiction over that

proceeding, or in the alternative, that the Planning Commission stay that proceeding pending the

outcome of further proceedings before the LUC regarding 2008/SUP-2 on remand. The Planning

Commission in fact stayed the proceeding and has taken no action since 2012.

With respect to this other proceeding pending before the Planning Commission, the

Hawai'i Supreme Court noted:

We have been informed in pleadings filed by the LUC that on June 28, 2011, DESfiled a "[r]equest for modification of condition 14 of SUP file No. 2008/SUP-2"with the Planning Commission, and that a contested case hearing is ongoing in theproceeding. On remand, we encourage the LUC to consider any new testimonydeveloped before the Planning Commission in that case.

2 A contested case hearing was held in that proceeding on December 7, 2011, January 11, 2012, February 8, 2012,March 7, 2012, April 4, 2012, April 11, 2012, and April 23, 2012



(Decision, p.36 n. 16).

V. Proceedings on Remand

The LUC received the remand for further proceedings consistent with the Hawai'i

Supreme Court's decision. The Court encouraged the LUC to consider any new testimony

developed before the Planning Commission in the case cun'ently pending. The Court did not

specify how that would be accomplished. In 2012, the LUC was advised that the LUC has the

power to take official notice of those proceedings, and one option may be to request the record,

or portions of the record containing new evidence, in that proceeding for the LUC's

consideration of 2008/SUP-2 on remand. The LUC was also advised that it could request that

the parties submit any new evidence introduced before the Planning Commission that is relevant

to the LUC's reconsideration of 2009/SUP2. Alternatively, the LUC was advised, it could

consolidate the two proceedings, provided the Planning Commission makes a determination and

forwards the record to the LUC.3

On May 22, 2012, the LUC Chair sent a letter to the Plamfing Commission urging it to

stay its proceedings on the new request to allow the LUC to remand the proceedings and records

in File No. 2008/SUP-2 to the Planning Commission for consolidation with the new request.

3 Pursuant to HRS §205-6(e), a copy of the Planning Commission's decision, together withthe complete record of the proceeding before the county planning commission on all specialpermit request involving a land are greater than fifteen acres or for lands designated as importantagricultural lands, shall be transmitted to the land use commission within sixty days after thedecision is rendered. Within fort-five days after receipt of the complete record from the countyplanning commission, the land use commission shall act to approve, approve with modification,or deny the petition. Accordingly, the statute does not provide a deadline for reconsideration of2008/SUP-2 on remand; however, there is a 45-day deadline for the LUC to issue a decisiononce the Planning Commission transmits the record of its current proceeding to the LUC.

CONFIDENTIAL- ATTORNEY - CLIENT PR!Vÿ[LEGED6

CONFIDENTIAL - ATTOIÿNEY - CLIENT PRIVILEGED

The Chair of the Planning Commission responded by letter dated May 29, 2012 indicating that

the Planning Commission was not interested in consolidating the proceedings and also informing

the LUC that the record in the new proceeding would be transmitted to the LUC for it to take

official notice of so that it could act on its own in response to the Supreme Court's remand.

The LUC held further hearings and after briefing and argument in September 2012, on

October 8, 2012, issued an Order Remanding County Special Use Permit File No. 2008/SUP-2 to

the City and County of Honolulu Planning Commission. On May 16, 2014, the LUC met to

receive a status report on the proceeding before the Planning Commission relating to File No.

2008/SUP-2. As a result, the LUC issued an Order on May 28, 2014, requiring written status

reports on the proceeding every other month starting fi'om July 2014..Since that time, no

proceedings have been held by the Planning Commission, the parties have purportedly been in

settlement discussions, and the landfill has continued operations.


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