HomeMy WebLinkAboutCOM 0821.006 2002-2004
COUNTY OF HAWAII - PLANNING DEPARTMENT
COMPLAINT FORM
COMPLAINANT
ADDRESS: Z)(P~ N d-~ I p' Z'D
TELEPHONE (BUS _l -Tj
COMPLAINT: (
64,411 c1
VIOLATOR: ql IO COA4 0UJ(/ (A~ADDRESS: I VI/~ i 11 ~2 ~P2 p P n } l~
LAND OWNER: (0 ~ W Li + I F~ (FADDRESS: T • b. ~W ~'~VaU ~cL~at 3(o 0'
TAX MAP KEY: V) ' I J ~ ZONING: State-ALl_County
~ C7
PERMITTEDUSE: COUNTY Yes_No_ STATE Yes_No_
Within SMAYes No
NOTE: May be a permitted use, but no Plan Approval or other administrative approval has been issued
Construction of any structure without a building permit is a Building Code Violation and should be referre
to the Department of Public Works, Building Division, except when the structure is within the Special
Management Area or Shoreline Setback Area.
RECEIVED BY _ DATE:
REMARKS:
ZAA
Comm. No. D
Ref. To: "Tbl 6
Ref. Ua`e
Claudia Rohr
Hilo, Hawaii 96720
res.(808) 934-8040
home fax: 935-0940
August 5, 2004
VIA Fax 961-8742
Planning Department
101 Pauahi, Suite 3
Hilo, Hawaii 96720
To Whom It May Concern:
I am writing a formal complaint which may be summarized as follows:
1) The Hilo Coast Power Company's coal ash pile requires County authorized land use
permits.
2) Hilo Coast Power Company's coal ash pile violates local land use laws and regulations.
3) The Planning Department failed to enforce the laws and follow the Administrative
Rules.
4) The laws and Administrative Rules do not provide the Planning Director with the
authority or discretionary power to certify compliance with local land use laws and
regulations with a letter of "temporary clearance" when no compliance exists and bi-pass
or delay the public process.
Background of complaint: The Hilo Coast Power Company (HCPC) received SMA approval
(SMA 221) for its coal burning operations on TMK 3-2-8-7-53 (zoned MG-5a) in 1985 and
revised the permit in 1995 when it abandoned sugar production, raised its stacks, and began
burning coal full time to produce power. Coal ash is a combustion by-product and is considered a
special waste regulated by DOH Department of Solid Waste. As argument for approval of its
SMA permit and revised SMA permit HCPC stated it would recycle 100% of the coal ash it
produced. The requirements of the revised permit includes the original requirements to report
annually to the Planning Department.
Sometime after 1985 HCPC began its "temporary" stockpile of coal ash next door on TMK
3-2-8-7-1 (zoned Ag-20) in the former land containment area that had been used for settling out
soil from the wash water in processing sugar cane at the former Hilo Coast Processing Company.
When HCPC began its stockpile of coal ash at this site it failed to revise SMA 221 or apply for a
Special permit for the coal ash handling facility. During this period HCPC's annual reports to the
1
Planning Department stated that the coal ash had been properly disposed of in a landfill facility or
land containment area.
HCPC attempted to legitimize its coal ash handling facility when it applied and received a solid
waste permit from the Department of Health for the temporary stockpiling and recycling of coal
ash in 1997, and a NPDES permit for its outfall #2 in 2001. The coal ash has been tested and
approved for beneficial reuse as road bed material, fill material, equestrian trails, land fill cover,
and agricultural soil amendment for non food crops under certain terms. None the less, at least
95% of the approximately 90,000 tons of bottom and fly ash produced remands stored and
unrecycled and more is added to the pile weekly.
According to HCPC's solid waste management application the facility's drainage features consist
of a system of swales, berms, settling ponds and an outfall. The drainage features are permitted
by an NPDES permit (DOH Clean Water) and are considered part of the solid waste facility:
HAR §11-58.1-03 Definitions: "Facility" means all contiguous land including buffer zones
and structures, other appurtenances, and improvements on the land used for the handling
of solid waste.
The drainage features settle out coal ash from storm water run-off from the coal ash pile and are
located in a Special Management Area and affect the pali, an erosion-prone area, as well as
coastal waters. Coal ash is required by clean water statutes to be settled out of any storm water
and is not allowed to be discharged into the ocean.
Coal ash from the pile has washed over the pah and into the ocean's waters. (See page 3 and 5 of
the Dec. 2000 Clean Water inspection report. Request through Leanne @ Honolulu office or find
in Planning Dept.'s SMA 221 file). HCPC's coal ash handling facility has had compliance
problems (see Solid Waste Department's Dec. 2000 proposed consent agreement in SMA 221
file, and the Solid Waste Department's current letter stating violations, attached).
Hawaii Administrative Rules addresses Hawaii State Department of Health permit procedures and
requires a clearance form certifying compliance with local zoning and land use law:
HAR§11-58.1-04 Permit systems. (c) Application for permit.
(1) Application for a permit shall be completed on forms
furnished by the director and shall be accompanied by
the following for approval:
(A) Detailed plans and specifications for the facility.
(B) Certification of compliance with local ordinances
and zoning requirements including the recording of
its disposal facility with the bureau of conveyances.
2
On its clearance form and first application submitted in 1997 HCPC erroneous identified the coal
ash pile as being located on TMK 3-2-8-7-53, zoned MG-5a, and permitted under SMA 221. The
clearance form was re-submitted as part of the Hilo Coast Power Company's solid waste
management permit renewal application in 2002 and the Office of Solid Waste caught the mistake
concerning the location of the facility and required a clearance form for TMK 3-2-8-7-1 in Spring
of 2003. Around this time the Planning Department issued certain letters of concern. (See
Planning Department's SMA 221 file).
Sometime in the early Spring an additional clearance form for TMK 3-2-8-7-1 was incorrectly
completed by referencing MG zoning and permit SMA 221 and signed off by Planning
Department personnel and filed with the State. This was brought to the attention of the Planning
Department in a written complaint on the appropriate form. The records show that the Planning
Department violations officer (Jeff Darrow at that time) called the State Department of Health
and notified them that the clearance form for TMK 3-2-8-7-1 may have been in error. The
Planning Director issued a July 13, 2003 letter (see SMA 221 file) to the Office of Solid Waste
referencing SMA 221 and stating:
"I have met with representatives of HCPC regarding this activity and have come to an
informal agreement to allow the stockpiling and removal of coal ash pending an
application for a Special permit to legitimize this operation. We are requesting that you
consider this letter as a temporary zoning clearance for the solid waste management permit
application submitted by BEI, LLC and Continental Pacific, LLC."
Over a year has passed since the issuance of the above "temporary zoning clearance" and HCPC
has not submitted an application for SMA permit and Special Permit to legitimize the stockpiling
of coal ash that they produced. The Planning department appears to be allowing the stockpiling
of coal ash, a regulated residual waste from an industrial process, on Agricultural land to continue
in spite of HCPC's lack of performance. It should be noted that this coal ash has not been
approved as a soil substitute and has been disapproved for a proposed nursery operation.
Stockpiled coal ash, even if approved for beneficial reuse, is still a pile of unrecycled waste until it
is put into service and requires a Solid Waste permit from DOH.
Currently, the Planning Department has approved the subdivision of TMK 3-2-8-7-1 and the
parceling out of the coal ash pile despite public objection. Since 1995 HCPC has dispersed
company profits from the generation of electric power but has failed to dispose of or subsidize the
recycling of its coal ash. Both disposal and recycling coal ash has a cost to a power producer but
HCPC deferred this operating expense and now the electric plant will be closing since HELCO
will not renew its contract with HCPC.
Statement of position or contention:
A) Permits and public hearings for permits; It has long been my position that the Hilo Coast
Power Company's Coal Ash Recycling Facility requires an amendment to SMA 221, a Special
permit, and possibly other County permits; and that applications and public hearings would be
required by Planning Commission rule 6 and 9.
3
The coal ash pile and its required system of ditches, swales, settling ponds, and outfall #2 were
not rezoned for industrial use nor covered by a revision to SMA 221. I contend that this is the
same owner as cited in SMA 221 because the property was sold to Continental Pacific, LLC
subject to a long term lease covering the operation of the coal ash pile. This is the same operator
despite numerous name changes, the same waste from the same industrial process, and is an
expansion of the operations approved by SMA 221. There should be an amendment to the major
permit SMA 221, which has been continuously referenced in HCPC's applications as the permit
under which the coal ash facility has operated, rather then this activity being treated as a separate
action and possibly handled as a minor permit or exemption, which I feel would be discretionary
abuse.
As legal reference I cite the following:
HCC Section 25-2-2. Issuance of permits or licenses in conformance with chapter.
All departments, officials, and public employees authorized to issue permits or licenses
shall conform to the provisions of this chapter and no permit or license for any use,
building, or other purpose shall be issued where the license or permit would be in conflict
with the provisions of this chapter. Any permit or license, if issued in conflict with the
provisions of this chapter, shall be void.
Planning Commission Rule 6-2 Standing to Submit a Petition for a Special Permit.
Any person who desires to use its land within a State Land Use agricultural or rural
district other than for an agricultural or rural use may petition the Planning Commission
for permission to use its land in the manner desired.
Planning Commission Rule 9-8 Permits Required for Development.
A. No development shall be allowed within the Special Management Area without
obtaining a permit in accordance with these Rules and Regulations.
B. No State or County Agency authorized to issue permits within the Special
Management Area shall authorize any development unless approval is first received
in accordance with these Rules and Regulations.
Planning Commission Rule 9-1 Definitions.
(10) "Development" means any of the following uses, activities, or operations on
land or in or under water within the Special Management Area:
A. "Development" includes the following:
(i) Placement or erection of any solid material or any gaseous,
liquid, solid, or thermal waste;
(ii) Grading, removing, dredging, mining, or extraction of any
materials;
(iii) Change in the density or intensity of use of land, including but
not limited to the division or subdivision of land;
(iv) Change in the intensity of use of water, ecology related thereto,
or of access thereto; and
(v) Construction, reconstruction, or alteration of the size of any
structure.
4
HCC Section 10-9. Required.
(a) Except as excluded in section 10-3:
(1) No grading work shall be commenced or performed without a grading permit.
(2) No grubbing work shall be commenced or performed without a grubbing
permit except where grubbing concerns land for which a grading permit has been
issued.
(3) No stockpiling work shall be commenced or performed without a stockpiling
permit.
(b) No grading, grubbing, or stockpiling permit shall be issued without the director of
public works' review of the applicant's compliance with the County general plan or with
chapters [6E]*, 205 and 343, Hawaii Revised Statutes.
B) Planning Department has failed to equally administer the laws and regulations; I
contend that the Planning Director's July 11, 2003 letter represents unequal administration of
HRS Chapter 205, HCC 25, Planning Commission Rules 6 and 9, and Planning Department rule
9. I contend that the Planning Director has no authority or discretionary power to a) allow the
stockpiling of coal ash on agriculture zoned land without the review and approval of a Special
permit or rezoning; and, where no permit applications or permits exist, b) certify "temporary
clearance," of local land use laws where noncompliance exists. I contend that the Director failed
to follow the prescribed procedure for complaint and violation of the zoning code described in
Planning Department Rule 9, and failed to enforce Planning Commission Rule 9: Special
Management Area. As legal reference I cite the following:
HCC 1-4. Definitions.
(a) For the purposes of this Code, the following terms, phrases, words, and their
derivations shall have the meaning given in this section, unless it is apparent from the
context that a different meaning was intended:
(16) "May" is permissive and discretionary.
(29) "Shall" and "must" are mandatory.
Planning Commission Rule 9-8 Permits Required for Development.
A. No development shall be allowed within the Special Management Area without
obtaining a permit in accordance with these Rules and Regulations.
B. No State or County Agency authorized to issue permits within the Special
Management Area shall authorize any development unless approval is first received
in accordance with these Rules and Regulations.
HRS§205-12 Enforcement. The appropriate officer or agency charged with the
administration of county zoning laws shall enforce within each county the use
classification districts adopted by the land use commission and the restriction on use and
the condition relating to agricultural districts under section 205-4.5 and shall report to the
5
commission all violations. [L 1963, c 205, pt of §2; Supp, §981-1-12; HRS §205-12;
am L 1976, c 199,§2]
HRS§205A-5 Compliance. (a) All agencies shall ensure that their rules comply with the
objectives and policies of this chapter and any guidelines enacted by the legislature. (b) All
agencies shall enforce the objectives and policies of this chapter and any rules adopted
pursuant to this chapter. [L 1977, c 188, pt of §3; am L 1979, c 200, §4; am L 1989, c
356, §7; am L 1993, c 258, §3]
HCC Section 25-2-1. Duties of county officers. (b) The director shall enforce all other
provisions of this chapter pertaining to land use.
HCC Section 25-2-2. Issuance of permits or licenses in conformance with chapter.
All departments, officials, and public employees authorized to issue permits or licenses
shall conform to the provisions of this chapter and no permit or license for any use,
building, or other purpose shall be issued where the license or permit would be in conflict
with the provisions of this chapter. Any permit or license, if issued in conflict with the
provisions of this chapter, shall be void.
Planning Department Rule 9-2 Complaint and Investigative Procedures.
(c)The Zoning Inspector and/or other Planning Department personnel assigned
shall conduct an initial investigation report shall be recorded on a form prepared by
the Planning Department.
(d) Should the investigation reveal that no violation exists on the property, the
Director shall notify the complainant of the determination.
(e) If a violation has occurred, the Director shall issue a Notice of Violation and
Order to the violator
Thank you for your time and effort in reviewing this complaint.
Sincerely,
Claudia J. Rohr
cc: Planning Commission
6
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DEPARTMENT OF HEALTH
R 0. Box 3378 ow V,
HONOLULU, MWMI 9BA mwa UNION"
July 27, 2004 S0732JF
Mi. Kai-it Luclon, Vice Pfoakieni
BEI, LLC (for Hilo Coast Power Company)
311 Pacific Street
Hnnniulu, Hem.-il 96817
Mr- Jare Henderson, General Manager
Continental Pacific. LLC
36 Poko Place
Hilo, Ha:Maii 9672w
Dear Messrs. Lucian and Henderson:
SUBJECT: Solid Waste Management Permit No. RY-0053-o2
Benatk:iai ;reuse of Coal Ash
Hilo Coast Power Company and Continental Pacific, LLC
Located at 1 Mill Road, Pepeekso, Hawaii 98783
TiutK 3-2-8.007:001 and 0063
Tha DepEaYli,en a of Houiih (DOi-f), Solid ante Hazardous Waste Branch received your
quarterly monitoring report on June 2: 2004 and r.»tresporidence w „h r isk asse=mOnt or,
June 8, 2004. We would like to offer the following responses:
June 2, 2004 Report
The department has reviewed your submicgion_ We hava n-_ _-ommsnts at This Brno.
June 8, 2VOUM
t7eneral
According to your letter, HCPC will only produce power until December 31, 2004. The
depa u nant vo uld like to take this Opponuniiy to remind you of closure notification, action,
and reporting requirements. Standard Condition No. 19 of your perrnit requires that yt
notify the department at least ninety (90) days prior to facllity closure. In addition, the pro-
Closura plan -submitted in your p e ;lit 3^^fi^nta< 'Indicates t,lai, "tile Iinai closure plan with
the current site assessment and possible remedial actions will be submitted 180 calendar
uay5 prior Iu fire ajAuai facility or site closure
Your plan also indicates that the soil beneath the ash pile will be sampled and anaWed to
ill se ~efrntg ~ha »^..na :.~~'n ^r the _a! , underlying
ve , a:nmaitiie stockpile. While the risk assessment
calculates anticipated effects, actual sampling and analytlcal data is still required for
'Caure.
h" rk t'n a Buse PI
As stated In our previous correspondence. the department did not, oppose the general
concept of agricultural davek~ment, t{cwever, we also stated that additional details about
C, 7C7 r,G n ,i :.2 C) 1 F1C .'00"1 ~ . r.4
f
Mr. Kent Lucien
Mr. Jere Henderson
1 1., z7 °0~
V4Yf
Page 2
your proposal were required for us to complete our assessment and make a final
wo.ormSnaticn. Although this initial inadko ing and Reuse Tian was submitted in a timely
manner, the department found that the plan lacked Information required to make a
determination about your proposal. We requested specific details about your proposal In
meetings Atilt conversations with your representatkes as wet} ass In our ;.anua^, 2fs and
March 12, 200400 letters. However, details about your plan were rot provided until this recant
sukalussNNi re4eived June 6, 2004. it should also be noted that this submission continues
to exclude items previously requested by the department.
Tha rienartment han rawlaum i v'-ur MurPatin snrl ta,n..o Plan ft-d,-
_y v.., g +m w , vvw4 . ,sa. I to Idorsta ,da at ifl
diwrNnwdlw s{....
fallawirtg:
1. The growing area will consist of an 18-Inch thick subbase of ashlsoif blend, coverI
an area of approximately 20 acres.
2. The ground underlying this 18-Inch thick growing area will consist of compacted coal
asn to brio the area to proper grade, or soil harvested from the surrounding
oroporty N insufficient ash is nresant.
'v A grading plans gas rV% bale's consplated.
4. The growing area will be covered 6-12 inches of top soil. Soil will be excavated from
surinundIng AreAr to serve as tors sell-
- . I he plait iso ititi9w pii>pi/ k rousing the site in sections, but proposes to regrade,
the entire area at once.
61 The growing are„aa will utilize alt Of Lhe .:;;h currently at the site, whin Is
apprximatly 500,000 cubic yards (coat ash and soil),
7. The plan continues to exclude the use of test clots; as nrininnliv aara_arf In
conversations with your staff.
Based on our review of your plan, your proposal does not meet the definition of recycling-
I no plan indicates that compacteq coal ash and soil will be used as fill below the growing
subbase. Based on the assumntinn that alt Ann Mxt tY iihic yards of ash and soil will be .u3-1
for the growing area, the department estimates that an average depth of 14 feet of coal ash
N d.w: 'll L... ..I...,....J.....1..-ai... i t_..~. w.'f-tom ` p.a_
a+iu o0,; w;„ uo pj. a u, nm, c, ro r 8-n n:n subbase. T, ni2i average ils itt i8 expected t0 be
greater as it assumes that no soil will be added to the 1 e-inch subbase.
$Inrw n nrartinn nfan hgc not hasp prepared, " yo.v v s+ur..d. are Nan ONe to „ timato and i.,na w. a6
t.,o
,yny
need for fill for your proposed activtty.. Therefore, the ash does not appear to serve a
utwefty" puipuse. in addition, the its-inch thick oubba86%top soil cover appears to
function as a cap to the buried coal ash. As Presented, vour oro~-SAl in r_.nncirlargri a
special waste landfill and an associated solid waste management permit will be required.
n ~Nv ja e^s c.'vfv° ic:rdfiii 1;vrii % appi'si.8tiajn iw if Uov IV) yvuf Ube.
f'tiox a ssessment
The department perfonned a cursory review of your risk assessment. The department
uVes IIV% IntGt id lv W 1z3i rcjn the I6aOthietu liiiiit8 in tVM currOiit PWMR.
.ju?GGr~niiir 1.!!^F Tn •~'3 i.-r'ju Gi i,- ni G':)i 1~ .:.~l1 r..1~
Mr. cant Lucien
Mr. Jere Henderson
July 27, 2004
Gags v
Permit Requirements
°poui l C,.^.ndit o u^. 9.2.tat°. that:
the coal asrtisadfinent reuse stocirpde capac1lY is 20, tons. ine permoreas
shall ramove a minimum of SQ;OW tons of coal ashlsadiment each year Aram July f
to June 30) until the stockpile is In combdance with the 20, l)DO tan capacfty!lmlt. +por
years in whleh the Faun}, Is no, asu''re our 12 months Ux., the year that the permit f3
issued and the year that the pennit expires), the minimum quantity that shall be
removed Is Z SW tons for each Ault month that the permit is In affect
a. The permittess shall meet the capacity and removal requirements by.
I_ Oanefi(iFIIHY ust fold astrs;&&ndrFt in auvoidace wilt Spaulat
CondlBorta, Section D, or
u Disposing of asld/s/edlment at a permitted solid waste
MAr1fTe/rtAr11 frt:itV or
N. Submfitir?g a com-ete application to establish a solid waste
disposal faciiif~yy r nB appucadori sluff be received by me
deoarhnent IJ/iRr to excesafance of the 20,000-ton capacity limit
orpdar to June 3O dt a year when the perrnfttees do not
w..~fpats;.,eotfr•^ the m;:f,;,u.:. r~rr~.nf,~ufre,wrert of 30,^.tw
tons per year. The complete appdcallon shad include all
necessary zoning and land-use approvais.
The permit was Issued on July 24, 2003 and was in effect for 11 full months (August 2003
to June 2004) for th a rvrnGra, parlod..,s such, you were, required to remove at feast
27,500 tons of coal ash during this removal period. Based on Reuse Notification Forms
submitted to the department, only 244.0 tons of astVaediment were reused and no
gg /ggriiment was d_ia nagd of at g mean---- - gnliri waatg manar~gmgat fa lity rl~rrinn this
period. The department did not receive a complete application to establish a solid waste
i176~idyuiilrnlt iiy uy Jurw 30, 2004.
You are in violation of Special Condition No. B.2. The department may issue a format
Notice of Vielationl4rder which would arty' monetary nanalty of L,rn, to 41A ^„n for each
separate offense, for each separate day oirthe offense, in accordance with Hawaii Revised
Statutes 342H-8.
Should you have any questions regarding this letter, please contact Ms. Janice Fujimoto of
our 0-144 irfa Jte ;mot;-n at igno; coi2-13nOa,
3inc6reiy,
STEVEN Y.K., NG, .E
Solid and Hazardous Waste Btanefr`
Enclosure
c: Mr. Gordon Inouye, Hawaiian Rainbows
Ms. Kathy Ho, Deputy Attorney General
Ccu ; o, Hawaii, planning Departmor;
(Y OFH
4 L~, . ~lye~
Christopher J. Yuen
Harry Kim
Mayor Direclm
J9rE aF HPJ'
Roy R. Takemoto
Deputy Director
Count of eNaluaii
PLANNING DEPARTMENT
101 Pauahi Street, Suite 3 P Hilo, Hawaii 96720-3043
(808) 961-8288 P Fax(808)961-8742
CERTIFIED MAIL
7002 1000 0004 8650 0081
September 17, 2004
Continental Pacific, LLC
Attention: Mr. Jere Henderson, General Manager
36 Poko Place
Hilo, HI 96720
Dear Mr. Henderson:
SUBJECT: Alleged Zoning Violation (ZCV 04-083)
Alleged State Land Use Violation
Stockpiling (Coal Ash) in an Agricultural District
Subject: Warning Letter Allowing Sixty (60) Days to Comply
Tax Map Key: 2-8-008: 095, Kapehu, Kaupakuea, Kahua &
Makahanaloa South Hilo, III
Stockpiling of coal ash within an agricultural district is prohibited. This stockpiling
operation at the Hilo Coast Processing Pepeekeo Sugar Mill and power plant was
considered a permitted use under the State Land Use Law and Zoning Code when the
coal ash was burned with bagasse, a by-product of sugar cane cultivation. However, with
the cessation of sugar cane cultivation operations, the stockpiling of coal ash is no longer
permitted. In July 2003, this office gave Brewer Environmental Industries, LLC and
Continental Pacific, LLC a temporary clearance for the stockpiling and removal of coal
ash pending an application for a Special Permit to legitimize this coal ash stockpile
operation. To date, we have not received this application. Further investigation has
revealed the following:
1. The property is situated within the State Land Use Agricultural_ district
and the County's Agric ultural (A-20a) zoned district.
lfawai'i County is are equal opportunirv provider and employer
~t.
SEP 17
Allt[ie
Continental Pacific, LLC
Page 2
September 17, 2004
2. The property is located south of TMK: 2-8-008: 104, the location of the
Hilo Coast Power Company Plant, and west of TMK: 2-8-008: 100. The
previous TMK for this area was 2-8-007: 053. This is in the South Hilo
District of Hawaii. The Tax Map Key is 2-8-008: 095 and the lot size are
365.25 acres. The listed owner of the property is Continental Pacific,
LLC.
3. According to Section 25-4-4 (Uses Prohibited) of Chapter 25 (Zoning
Code), Hawaii County Code, any use not listed among the permitted
uses in a zoning district is a prohibited use within that district, except as
otherwise provided in this chapter. Section 25-5-72 (Permitted Uses
within Ag Districts) does not list "s tockpiling" or storage of industrial
waste products as a permitted use in the A district. Section 205-4.5 of
the Hawaii Revised Statutes also does not list "stockpiling" or storage of
industrial waste, as permitted uses in the Agricultural District.
Based on all of the above, the Planning Director finds you in violation of Section
205-4.5 of the Hawaii Revised Statutes and subject to enforcement action pursuant to
Section 205-13 of the Hawaii Revised Statutes.
The Planning Director also finds you in violation of Section 25-4-4 of Chapter 25 of the
Hawaii County Code and subject to enforcement action pursuant to section 25-2-35 of
Chapter 25 of the Hawaii County Code.
Section 205-13, Hawaii Revised Statutes, states:
"Any person who violates any provision under section 205-4.5 or any
regulation established relating thereto, shall be fined not more than $5,000, and any
person who violates any other provision of this chapter, or any regulation established
relating thereto, shall be fined not more than $1000.
If any person cited for a violation under this chapter fails to remove such
violation within six months of such citation and the violation continues to exist, such
person shall be subject to a citation for a new and separate violation. There shall be a
fine of not more than $5,000 for any additional violation.
Prior to the issuance of any citation for a violation, the appropriate enforcement
officer or agency shall notify the violator and the mortgagee, if any, of such violation,
and the violator or the mortgagee, if any, shall have not more than sixty days to cure
the violation before citation for a violation is Issued."
Continental Pacific, LLC
Page 3
September 17, 2004
This letter serves as notification and you have sixty (60) days to comply with the
corrective action listed below. Corrective action consists of:
1) Cease and desist operation of stockpiling coal ash on the subject property
immediately, and
2) Apply for a Special Permit (enclosed) to allow for the future operation of
stockpiling coal ash.
If corrective action is not completed by November 17, 2004, we will issue a Notice of
Violation and Order, which will carry a fine of not more than $5,000 for each offense
in accordance with HRS Section 205-13 and a civil fine not to exceed $500 in
accordance with HCC Section 25-2-35(c)(3). If the violation persists, there will be a
daily fine of not more than $500 in accordance with HCC Section 25-2-35(c)(4).
Pursuant to HCC Section 25-2-35(i) fines assessed under this Section shall constitute a
lien upon the subject property upon filing of said lien with the Bureau of Conveyances.
This matter may be referred to the Office of Corporation Counsel for civil remedy
and/or the Prosecuting Attorney's Office for criminal prosecution.
Upon completion of corrective action, you are responsible for contacting Zoning
Inspector Robert Usagawa by telephone and in writing to the Planning Director to
verify the completion of corrective action.
Please mail your response within sixty (60) days of your receipt of this letter to:
The Planning Department
Attn: Robert Usagawa
101 Pauahi Street, Room 3
Hilo, 111 96720
COUNTY OF HAWAII
PLANNING DEPARTMENT
RULES OF PRACTICE AND PROCEDURE
RULE 9. ENFORCEMENT OF ZONING CODE AND PROVISIONS FOR ENFORCE-
MENT
9-1 Purpose and Authority.
The purpose of this rule is to establish a procedure for the enforcement of zoning code and
provisions for enforcement as provided for in Subsection 46-1.5 of the Hawaii Revised
Statutes, and Section 25-15, 25-16 and 25-16.1, Division 2, Article 1, Chapter 25 (Zoning
Code), Hawaii County Code, as amended.
9-2 Complaint and Investigative Procedures.
(a) Complaints shall be recorded on a complaint form prepared by the Planning
Department. The complaint form shall include, but not be limited to, the following
information:
(1) Name and address of complainant. All information and records acquired
by the Planning Department under this part shall be confidential. The
information shall be available only to authorized persons in the Department
and, such other persons or agencies as the Corporation Counsel shall autho-
rize, under such restrictions as the Corporation Counsel shall prescribe, or
by court order;
(2) Nature of complaint;
(3) Name and address of alleged violater;
(4) Tax Map Key of alleged violation;
(5) Date of complaint; and
(6) Any other information deemed necessary by the Planning Department.
(b) All complaints shall be given to the zoning inspector. Anonymous complaints will
not be investigated by the zoning inspector and/or other Planning Department per-
sonnel assigned.
(c) The Zoning Inspector and/or other Planning Department personnel assigned shall
conduct an initial investigation report shall be recorded on a form prepared by the
Planning Department.
(d) Should the investigation reveal that no violation exists on the property, the Direc-
tor shall notify the complainant of the determination.
Planning 0epariment Rules of Practice & Poocer@ue 9-1
Rule 9. ENFORCEMENT OP ZONING CODF. AND PROVISIONS FOR ENFORCEMENT §9-3
(e) If a violation has occurred, the Director shall issue a Notice of Violation and Order
to the violator.
9-3 Issuance of Order.
(a) The Director shall have the Notice of Violation and Order served by personal ser-
vice on the violator, and all affected parties, which may include the fee owner,
leaseholder, sub-leaseholder or other assignee, tenant, contractor, mortgage holder,
and other persons responsible for the violation or with an interest in the property.
The Notice of Violation and Order shall include the following information:
(1) Date of notice;
(2) Name and address of the person(s) noticed;
(3) Section number of the provision of Chapter 25, Hawaii County Code, as
amended, or permit which has been violated;
(4) Nature and description of the violation;
(5) Location of the property on which the violation occurred, including tax
map key identification;
(6) Date and time of the documented violation;
(7) Fine assessed for the violation;
(8) Fine due date and method of payment;
(9) All remedies associated with the violation;
(10) Remedial action required within a maximum of sixty calendar days from
the date of receipt of the Notice of Violation and Order to avoid daily fines;
and
(11) Amount of the daily fines for non-compliance.
(b) The Notice of Violation and Order shall state separately each violation, the fine
assessed for each violation, the date and method of payment of the fine, and all
potential remedies associated with each violation. The Notice of Violation and
Order shall also state what corrective action is necessary, the date by which such
action must be completed to avoid daily fines, and the amount of the daily fines for
non-compliance.
(c) The violator shall be advised that the Notice of Violation and Order shall become
final thirty days after the date of personal service, unless the Directors action is
Planning Depnrloient Rides oJPracticc X Procedure 9-2
Rule 9 ENFORCEMENT OF ZONING CODE AND PROVISIONS FOR ENFORCEMENT 1394
appealed to the Board of Appeals.
(d) Within thirty days after the delivery of the Notice of Violation and Order, any per-
son adversely affected by the Notice of Violation and Order may appeal the Notice
of Violation and Order to the board of appeals as provided by Section 5-6.3 of the
County Charter and Sections 25-7 and 25-8 of Chapter 25, Hawaii County Code,
as amended. An appeal to the board of appeals shall stay the provisions of the
order pending the final decision of the Board of Appeals.
9-4 Time Period for Compliance.
(a) When specifying the corrective action to be taken, the director may allow the vio-
lator up to sixty calendar days in which to correct the violation.
(b) The deadline set for the correction of the violation may be modified in consider-
ation of the following:
(1) The type and degree of the violation, whether it is a recurrent violation, and
the number of violations cited in the order.
(2) Potential threat to human health and safety.
(3) The complexity of the corrective action required.
(4) Any other circumstances beyond the control of the violator.
9-5 Administrative Fines.
(a) Resolution of a violation includes correction of the violation and payment of civil
fines not to exceed $500. In specifying the amount of the fine, the director shall
consider the following:
(1) The nature and degree of the violation.
(2) Whether the violation involves a threat to public health and safety.
(3) Whether there are multiple violations.
(4) Whether it is a repeated violation.
(b) Daily fines not to exceed $500 per day shall be assessed for each day in which the
violation remains uncorrected in accordance with the following schedule:
(1) Initial violation: $100 per day
(2) First repeated violation: $200 per day
(3) Second repeated violation: $300 per day
Planning Department Rules of Practice & Procedure 9-3
Rule 9. ENFORCEMENT OF' ZONING CODE AND PROVISIONS FOR ENFORCEMENT §9-6
(4) Third repeated violation: $400 per day
(5) Fourth and subsequent repeated violation: $500 per day
(c) The fine assessed by the order is payable whether or not the correction of the viola-
tion is completed before or after the order becomes final.
(d) When a violation is not corected by the deadline set by the order, the Director may
assess additional fines to a maximum of $500 for each day that the violation
remains uncorrected in accordance with the following schedule:
DAILY FINES FIRST AFTER AFTER AFTER
FOR VIOLATION 3 MOS. 3RD MO. 6TH MO. 9TH MO.
Initial violation $100 $200 $300 $500
First Recurrence $200 $300 $400 $500
Second Recurrence $300 $400 $500
Third Recurrence $400 $500
Fourth and subsequent recurrences will be assessed $500 per day of additional
daily fines from the date that the violation was to cease as set forth in the order.
9-6 Civil Action.
The director may institute a civil action in any court of competent jurisdiction for the
enforcement of any Notice of Violation and Order issued. Where the civil action has been
instituted to enforce the assessed fines imposed by said Order, the director need only show
that the Notice of Violation and Order were served, than an assessed fine was imposed, the
amount of the assessed fine imposed and that the fine imposed has not been paid.
9-7 Property Liens.
(a) Annually, on September 1, the director shall file with the State of Hawaii, Bureau
of Conveyances, liens on all properties which have been the subject of fines levied
which remained unpaid for one year or more after final adjudication and the expi-
ration of the time for any further appeal.
(b) Fines assessed shall constitute a lien upon the property upon the filing of said lien
with the Bureau of Conveyances. This lien shall be considered, for purposes of
priority, to be the equivalent of liens which arise pursuant to the provisions of
Chapter 19 of the Hawaii County Code.
9-8 Other Leeal Remedies.
The Director may refer violations to the prosecutor's office for criminal prosecution or
pursue any other legal means to correct violation.
SEVERABILITY
Planning, Department Rules of Practice & Procedure 9-4
Rule 9. ENFORCE.'MENT OF ZONING CODE AND PROVISIONS FOR ENFORCEMENT §9-8
In the event any portion of these rules is declared invalid, such invalidity shall not affect
other parts of these rules.
Cross-reference:
Article 2. Division 3, Violations. Penalties. Enforcement- Zoning Code
Planning Department Rules of Practice & Procedure 9-5