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HomeMy WebLinkAbout2011-05-04 Windward Planning Commission Hearing Transcript SMA 221 WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT MAY 4, 2010 HU HONUA BIOENERGY LLC (SMA 221) A regularly advertised hearing on the application of was called to order at 11:36 a.m. in the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Chairman Zendo Kern presiding. COMMISSIONERS PRESENT: Zendo Kern, Dean Au, Taka Domingo, and Stephen Ono STAFF PRESENT: Julie Mecklenburg (Deputy Corporation Counsel), BJ Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Phyllis Fujimoto (Staff Planner), Maija Cottle (Staff Planner), and Jeff Darrow (Staff Planner). And approximately 23 people from the public in attendance. RECUSED: Wallace Ishibashi APPLICANT: HU HONUA BIOENERGY LLC (SMA 221) Discussion and action on the Hearings Officer’s report and recommendation on amendment to Special Management Area Use Permit No. 221 which originally allowed the establishment of a coal storage area and a coal burning energy plant and related improvements. The amendment request is to allow a change in fuel source from coal to biomass, to upgrade the existing facility and to construct support facilities and infrastructure at the former Pepe‘ekeō Power Plant, Makahanaloa, South Hilo, Hawai‘i, TMK: 2-8- 8:104 (formerly 2-8-7: Portion of 53). KERN: Okay, now the next item on the agenda, unfinished business, Applicant: Hu Honua Bioenergy LLC, SMA 221, discussion and action on Hearings Officer’s report and recommendation on amendment to Special Management Area Use Permit No. 221. Just give me one moment to get organized. We’ll start out with the staff’s presentation just to bring us up to speed on anything that has occurred since our last hearing. So this would be pretty short and sweet, I take it. So, Jeff? DARROW: Thank you Mr. Chairman. Good morning, Mr. Chairman and Members of the Planning Commission. COMMISSIONERS: Morning. DARROW: This is a continued hearing for HU HONUA SMA amendment application. Our last hearing was on April 7, 2011. Since our last hearing there have been four pieces of correspondence that have been submitted to the Planning Department and also forwarded to the Commission. These involve the, a submittal from the law offices of Steven Strauss, this is Sixteen Intervenors’ Motion to Disqualify Planning Commissioner Ishibashi; additionally we have received two e-mails from Bridget Rapoza; and lastly a submittal from Hu Honua Bioenergy, and the Planning Director’s Joint Statement of the 1 EXHIBIT C Position in Response to the Sixteen Intervenors’ Motion to Disqualify Planning Commissioner Ishibashi. With that, that concludes our presentation. Are there any questions? KERN: Any questions for staff? Seeing none, is there, well, we received a letter earlier from Commissioner Ishibashi, and that letter states that basically he is recusing himself from this vote. Is that correct, Commissioner Ishibashi? ISHIBASHI: If I could read the letter? KERN: Yes, please do. ISHIBASHI: Okay, just for the record. I am Wallace A. Ishibashi Jr. I live at 27-469 Old Māmalahoa Highway, Pāpa‘ikou, Hawai‘i. I am aware that the County Code of Ethics requires officers to demonstrate the highest standards of ethical conduct in order to maintain the public's trust and confidence. It has been noted by the Intervenors that I was observed wearing a Hu Honua t-shirt at an event. I would like to state for the record that this event was an informational meeting held by Department of Health for the community input. It was open to the public and, as a resident of the area and an interested member of the community, I attended with several members of my family. At that meeting, Hu Honua gave away free t-shirts to everyone in attendance who wanted them. I did take a t-shirt and put it on during the meeting. I did not speak in support or in opposition of the project. Though I do not believe that my actions were in any way incompatible with the proper discharge of my duties on this Commission and I do not believe that my ability to act in a fair and impartial manner in this case has been impaired in any way, it has become evident that some members of the public believe that my actions make it appear that I may in some way be improperly biased. I have had no personal financial gain from Hu Honua. My interest is to learn about current technology and about alternative energy to get off our dependence of fossil fuel. Geothermal, wind, solar, NH3, biomass, are topics I find interesting for the future of our island home. Therefore, although it is not required by law, in an abundance of caution, I am requesting to be excused from participating further or voting on this matter. Mahalo, Wallace. KERN: Thank you. Commissioner Au? AU: I myself would like to make a statement. I believe it is public knowledge that I am the Big Island Field Representative for the Hawaii Carpenters Union Local 745. Although I don’t believe it is required or necessary, in order to err on the side of caution, I would like to disclose for the record that the Carpenters Union has an agreement with Hu Honua. I do not know the details of the agreement, nor was I involved in any way in its negotiation or execution. I have not had a conversation with the Applicant or any of its employees or representatives outside of the hearings before the Planning 2 EXHIBIT C Commission. Although the agreement is certainly a benefit for the union since it creates jobs for our members, there’s no direct or indirect financial benefit to me or members of my immediate family. Furthermore, the agreement with the union does not affect my ability to be impartial. We’ve all known all along that the proposed project, like any other proposed project of this size, would create jobs. Although I am pleased that some of these jobs would go to union construction workers, I understand that in every application that comes before us there are numerous considerations that are relevant and that the benefit of job creation has to be properly weighed against all other issues. I will be guided in this matter by the criteria set forth in the law, just as I am in order in any other matter before the Commission. I am confident that I can uphold the oath I took upon my appointment on this Commission and perform my official duties in a fair and impartial manner. KERN: Thank you, Commissioner Au. Give me one second, Julie. We will be hearing public testimony today. We are keeping it to three minutes. Some of you who are going to testify may have already testified, so if you can keep it concise, keep it considerate, keep it direct. If it starts getting too irrelevant then we’ll have to cut it off. So that’s the, I just want to make sure that we’re staying consistent and concise on the subject matter here at hand. With that being said, I’m going to ask Corporation Counsel Julie Mecklenburg to speak. Thank you. MECKLENBURG: Yeah, I just wanted to follow up to the statements that were made by Commissioner Ishibashi and Commissioner Au. I want to place on the record that although we still have quorum today even with the recusal of Commissioner Ishibashi, there is what is known as the Rule of Necessity that is recognized in Hawai‘i. Because this Commission is the only Commission that can make the decision that’s currently before us, if we were going to lose quorum and therefore be unable to act due to the recusal or disqualification of one of our members, the Rule of Necessity permits that Commissioner to participate and vote on the matter despite any appearance, bias, or conflict. So we believe this rule would have applied in past meetings when Commissioner Ishibashi participated. So his recusal today would not be considered to be effective retroactively where his participation would have been saved by the Rule of Necessity. However if the Commission would like to take a “belt and suspenders” kind of approach, it would be advisable to ratify the past actions taken by the Commission on this matter. KERN: Very good. Thank you, Julie. ONO: Mr. Chairman? KERN: Commissioner Ono. ONO: I'm finding it personally hurtful that someone on the Commission that takes a pledge to uphold the responsibility of a Commissioner to be challenged in this manner. STRAUSS: Laughter. 3 EXHIBIT C ONO: I think that's unnecessary, sir. STRAUSS: I think that you are out of order. ONO: It’s my opinion. KERN: Let’s show respect. We have a Commission, we can express as Commissioners. Please. ONO: And I think that laughter is really cocky on your part. At any rate, if I may, I just feel that as a person who took a pledge to uphold the responsibility as a Commissioner, to be challenged by a conflict on this matter in having Mr. Ishibashi recuse himself -. I think that if every time someone is challenged we've got to do this, it places, makes me very uncomfortable with sitting on a public Commission like this. I've got to watch my every action? You know, I can't even express myself in public just by my presence? I find that very, very small on the part of the complainants. Thank you. KERN: Thank you, Commissioner Ono. Okay, so the next thing that we need to do is to ratify our past decisions that we’ve made to make sure that the whole Commission that sits here today is in agreement with that due to the recusal of Commissioner Ishibashi. With that being said Jeff is going to list -. MECKLENBURG: You’ll need a motion to ratify. KERN: Okay, before we can do that we need a motion to ratify the past decisions that have been made. So if I could get a motion from somebody -. DOMINGO: Mr. Chairman, I just, I would like to know what actions were taken and what ratifications do we need to make on any subject. MECKLENBURG: It’s okay, if you want to hear the motions, or hear the past votes prior to making the motion, that’s fine. KERN: Okay, let’s do that then. Why don’t you read off the motions, how they transpired, and then we will see how a motion transpires from there. Thank you. DARROW: Thank you, Mr. Chairman. Our first motions that were made for the Hu Honua application were made on May 7, 2010. There were 21 motions made to grant standing in a contested case, which were all granted standing to 21 Intervenors. Additionally there was a motion made to hire a Hearings Officer to hear the contested case hearing, this was approved four to zero. And lastly, there was a motion made to continue the hearing until the Hearings Officer’s report comes back to the Planning Commission, again, this was approved four to zero. 4 EXHIBIT C On August 12, 2010, there was a motion made to deny granting standing in a contested case to Claudia Rohr which was approved five to zero. And, lastly, on April 7, 2011, there were, there was a motion made to not allow oral arguments by Mr. Strauss, approved by voice vote four to zero, none opposed. Lastly, there was a motion made to continue the hearing until May 4, and May 5, 2011, which was approved four to zero. DOMINGO: Okay, -. KERN: Commissioner Domingo, give me one moment. So now we’ve heard the motions that were made, how that has gone down. We can either vote for it to ratify all at once; or if there is a particular issue with one of those motions the Commissioner has, you can vote no on that and -. DOMINGO: Could I ask for a minute recess, Mr. Chairman, one minute? KERN: Yeah, one minute recess. Thank you. RECESSED – The Chair called for a short recess at 11:48 a.m. RECONVENED – The Chair reconvened the meeting at 11:49 a.m. KERN: Okay. I just want to make sure that the Commissioners that are here that are voting, I know myself I am knowledgeable of all the stuff, that you have knowledge of these actions that we’re taking, that were taken and that, you know, you’ve reviewed the record, and your understanding of what it is we are potentially ratifying here. And so, again, we have a potential to ratify all of the said motions and decisions at one time or we, if there’s a Commissioner that has any particular opposition with one of those, you know, you can vote against it; and we can take that one up individually. So with that, anyone willing to entertain a motion? Basically the motion needs to sound something like, you know, willing to ratify the past decisions that the, or the past votes taken on the SMA application, something in those types of words. DOMINGO: Mr. Chairman? KERN: Commissioner Domingo. DOMINGO: Just for the point of clarification, those ratifications are asked for because Commissioner Ishibashi was a part of those proceedings and that is why there is a need to ratify actions of the meetings? KERN: Yes. And with that I'm going to let our Corporation Counsel speak to that. MECKLENBURG: Yeah, again, as I said, I believe that due to the Rule of Necessity where there were four Commissioners present and we would have lost quorum had we not acted, it is probably not necessary. But to be very cautious with this matter and to move ahead, the idea is for the 5 EXHIBIT C Commissioners who are still hearing this matter today to go back and just ratify all of the actions that have occurred before so that the record will show that everyone who is going to vote on the matter today understands everything that has occurred and confirms that that is essentially the way it would have turned out anyway. DOMINGO: Okay. Mr. Chairman? KERN: Yes, Commissioner Domingo. DOMINGO: I move for the ratification of all those actions taken with regards to, that which pertains to the Hu Honua application. KERN: Is there a second? ONO: Second. KERN: Okay, motion has been moved and seconded. Any discussion? Seeing none, Jeff. DARROW: Thank you, Mr. Chairman. For clarification purposes just so I can document the motion clearly, this motion would be to ratify previous votes that were made regarding this SMA amendment application, is this correct? DOMINGO: Yes, that’s the intent. DARROW: Thank you. Could we confirm that with Commissioner Ono? ONO: Yes. DARROW: Thank you. The motion before us is to ratify all previous votes in regards to this SMA amendment application. With that I will take the roll. KERN: One second before you do take that roll. Since Commissioner Ishibashi has recused himself I’m going to ask Commissioner Ishibashi to look at us from the other direction, watch us. So thank you very much. Jeff, sorry, thank you. DARROW: No problem. Thank you. Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ono? ONO: Aye. DARROW: Commissioner Au? 6 EXHIBIT C AU: Aye. DARROW: And Mr. Chairman? KERN: Aye. DARROW: The motion passes four to zero. KERN: So thank you very much. So the past votes have been ratified. Now I'd like move to the public testimony portion of this. After that we're going to, I'm going to hear from both the Applicant and the Intervenor for closing statements from them and we’ll carry on from there. So I’m going to call, people were very respectful, thank you. We only have three testifiers. So we have Robert Ferrazi, Scott Watson, and Steven Strauss representing himself, it looks like on this one. And you all three may come up. Again, we’re limiting testimony to three minutes. Once the three minutes are up, pau. Thank you very much. Mr. Strauss, have a seat. We’ll swear you in. Raise your right hand. Right hands, please. Do you swear to tell the truth today before the Windward Planning Commission? TESTIFIERS: Yes. KERN: Okay, very good. Before you begin, name and your district you represent; and we’ll start with Robert Ferrazi. FERRAZI: Robert Ferrazi, Member of the Pepe‘ekeō Point Gardens Association. KERN: Would you hold the mike a little bit closer? FERRAZI: Robert Ferrazi. KERN: Thank you. FERRAZI: Member of the Pepe‘ekeō Point Gardens Association and myself as one of the Intervenors. Just kind of quickly, I have three topics I’d like to quickly discuss. I noticed the other day that magically we got a nice road survey from Hu Honua. It was based on one day’s data. To me that’s just ridiculous. And that kind of sums up my feeling about Hu Honua in general, there’s a lot of data but most of it is make-believe. The other issue is I got a nice document in the mail the other day, and basically one of the things it says is that the County Planning Department rejects everything that the Intervenors said as basic points of law; and I just can’t believe that that’s conceivable. To even state that is ridiculous, because why have a contested case hearing if you’re not going to look at any of the evidence. And then another issue, I just put in a big photovoltaic system, HECO will pay me 21cents a kilowatt for every bit of power I produce. They in turn would charge me 38 cents for what I buy from them. And I would hope that you could look in the records and find out that maybe Hu Honua is only getting 7 EXHIBIT C 21 cents, because their claim to fame is that this is cheap power. I have a feeling it is heavily subsidized power and won’t really help the people of the Hawaiian Islands. And so my basic conclusion is I hope that you guys got a chance to read some of the materials from the contested case hearing so that our points are heard; and that’s basically my concern. I feel like through the Commission and the whole law thing we’ve been cut out. Thank you. KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Scott Watson? WATSON: Good afternoon, Scott Watson. I reside at 27102 Lali Street in Hilo. I’m the owner of Lot 23 in Pepe‘ekeō Point, which is right next door to the power plant. The objective for me here is to stop the plant. You’ve heard testimony from experts about the emissions from this plant as being poisonous, but everybody is sweeping it under the table here. Nobody wants to discuss that anymore. We have this subdivision that was approved by the Planning Commission years ago to create all these residential lots down there. This is to benefit the owner of the property. The Planning Commission created this and now there are all these residents down there and you are about to approve the power plant to pollute the whole area and poison everybody down there. Now your job is to protect the citizens here. None of Hu Honua are citizens here. I am going to live right next door to that thing. And I don’t believe there are more than a few of them that even live in the Pepe‘ekeō area. It is a matter of greed. They are going to come in here and make money off of the power plant. They got stuck there before there was any people anywhere near that place. We’ve created a situation now where there are people; and everybody invested in this with the understanding that there would not be a power plant any more in that area. So to agree with their application here is to let them run with this thing. The Health Department is not going to stop them from polluting anybody. The green issue, what is so green about burning trees? There is nothing green about it. You're going to create pollution. They are going to dump dirty hot water right in the bay in front of my house where I am going to swim with my kids and my surfer friends. You can’t dump anything in the ocean anywhere from, as a builder I am not allowed to allow let any water runoff, anything go into the ocean. Why would we allow them to start polluting our bay? The last thing is jobs. They keep talking about jobs. What I do? I build custom homes. My project at Pepe‘ekeō Point will have more jobs in the first three years there than they will ever have there at their power plant. And if I continue to build there and the rest of the residents can go ahead with their plans to develop their property they bought, there are more jobs in this situation than there would ever be from this power plant.Again, I think this is, here is your chance to save our coastline that’s so beautiful. There’s nothing there now. There is no pollution. We have the chance to make such a beautiful situation down there. It is underway, please stop the power plant from happening. We don’t need the power, HELCO has said that. The jobs, like I said, I’m going to put more jobs on the table than they are going to put on the table with one house. So please take the time to consider this. This is a bad move. There is nothing to benefit any of our residents with this. Thank you very much. KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Steven Strauss? 8 EXHIBIT C STRAUSS: Thank you, Mr. Chair. My name is Steven Strauss. I reside in Wailea, Hakalau area, and I have for about 20-21 years. Thank you, Mr. Au, for your disclosure. I think that jobs would be provided also by the continuing construction that Mr. Watson talks about. I don't see that you have any conflict, or the union has any conflict here. Mr. Ishibashi is another matter. He should have recused himself last time. And because he didn't, the decisions that you made, including the continuance, was improper and unlawful. And you can't ratify that today. And your item is not even properly on the agenda today because it was a motion –. KERN: I -. STRAUSS: This is my public testimony. KERN: Okay, well, keep it to -. STRAUSS: And I object to three minutes but I’m going to keep it to three minutes. That’s an arbitrary rule that is contrary to the rights of citizens. KERN: Then keep it as a citizen and not as an attorney. STRAUSS: I am. KERN: Okay, thank you. STRAUSS: This is my statement. I would not be proud to have my daughter here and listen to Mr. Ono abuse the messenger when the messenger talks about -. KERN: Let’s -. STRAUSS: I’m going to make my record, Mr. Kern. KERN: That’s fine make your record. But let’s do it with the tonality of respect, please. STRAUSS: I respect the person but I do not respect the abuse of office. To consider that bringing issues of ethics to a government body is a sin is ridiculous. And I am offended as a citizen. ONO: Works both ways. STRAUSS: I am offended. ONO: So am I. KERN: Let’s keep out of an argument back and forth, please. 9 EXHIBIT C STRAUSS: Mr. Ishibashi wore a t-shirt of a party, he expressed allegiance. He is entitled to do that, but not to serve on the Commission at the same time. What I learned in this case, as a part of this case, is the Department of Health cannot be counted on to protect the public health of the citizens and the people that are going to be affected by this. The Department of Health doesn't regulate some of the most serious toxins that are going to be generated. There is uncontested information from Dr. Michaud in the record that presents that very public health issue. I object as a citizen to Hu Honua submitting a traffic plan after the hearing had already closed, wanting you to consider that with no opportunity to contest it. I object to that. That shows the way that they have dealt all along with this contested case and with their application, by providing sketchy and inadequate and incomplete information, getting the County to go along, and then presenting it to a Hearings Officer, so he can just, just approve it, which is what he did. He didn’t even deal with any objections or exceptions to the findings of fact and conclusions of law, ignored all countervailing evidence. I ask you not to do it. These are your neighbors, your fellow Hawai‘i County citizens that you would be voting to poison. Once those emissions leave that chemical smokestack, chemistry continues and it gets worse. And none of this is addressed anywhere in the air health permit or anywhere in their application. This is a public health emergency that you are creating. Thank you. KERN: Thank you. Are there any questions for the testifier? Seeing none, you all may have a seat. At this point in time, I’m going to give the Applicant five minutes for a closing statement. And then we’ll give the Intervenors five minutes for their closing statement. If you would, please do not turn this into oral argument. This is just simply a closing statement of information. STRAUSS: I think I object. You can’t have -. NOMURA: Excuse me -. STRAUSS: You can’t have a closing statement. That’s our argument -. NOMURA: Microphone. STRAUSS: I object. I think that when you voted, when you voted, this is a point of order, when you voted to eliminate oral argument you prevent you from now taking closing statements. They’re nothing but argument. KERN: Okay. Then no closing statements. STRAUSS: Right. KERN: Keep that real simple. Is the Applicant on that side okay with no closing statements? YAMAMOTO: We are. 10 EXHIBIT C KERN: Okay, so that sounds agreeable on both sides then. Great. So with that, moving on to the next element of this, we have before us a motion on behalf of the Intervenors to disqualify Commissioner Wallace Ishibashi. We also received a joint statement of position of Hu Honua and the County Planning Department on the motion to disqualify. The joint statement of position does not require the Commission’s actions; and I believe the motion by the Intervenors may be moot. But I think we should act on the Intervenor’s motion nonetheless. So I’m willing to entertain a motion. And the motion is basically either to deny the disqualification of Commissioner Ishibashi or to approve that. It is now somewhat of a moot point since Commissioner Ishibashi has recused himself. MECKLENBURG: Yeah. KERN: Julie. MECKLENBURG: Technically the motion is still before the Commission. KERN: Yes. MECKLENBURG: So the motion would be to deny -. KERN: Or accept. MECKLENBURG: I’m sorry, the Commission’s motion would be to deny the motion for disqualification as moot, presumably, unless any of the Commissioners feel that any portion of that motion should survive. KERN: So with that I’m willing to entertain a motion. DOMINGO: Mr. Chairman? KERN: Yes. DOMINGO: I move that we declare that the Intervenor’s motion is moot because we’ve had a letter, a statement made by Mr. Ishibashi with regards to his recusing himself from discussions and participation. KERN: So, clarification -. The motion or the, yes, the motion that we have before us, you’re looking to deny that, is that correct, the disqualification? DOMINGO: Yes. KERN: Okay, is there a second? Is there a second on that motion? If there is no second, then the motion will fail. And let me check with my Corporation Counsel real quick -. (The Chair had a short discussion with the Commission’s attorney.) 11 EXHIBIT C And so then on the flip side we could see if there is a motion from somebody else to approve the disqualification of Commissioner Ishibashi. So right now we have a motion before us to deny the disqualification of Commissioner Ishibashi, allowing him, he has recused himself. So we have a motion. And is there a second? DOMINGO: Second. KERN: You made the motion. DOMINGO: Did someone make the motion to -? KERN: No, you still have your motion. And I was trying to elaborate on that a little bit and -. DOMINGO: Okay, I’m sorry, I’m sorry. Well, Mr. Chairman, just for clarification , I move to deny the Intervenor’s request for disqualification because their motion is no longer moot -. Mr. Ishibashi had submitted a letter, formal letter, recusing himself from participation. KERN: So as a Commission we basically need to act on this because it is in front of us. Even though it has somewhat been taken care of we need to act on it, either one way, to either deny it or approve it. ONO: Question. KERN: Commissioner Ono. ONO: With the letter from Commissioner Ishibashi, does that mean that -? What overrides the other, I guess, is what I’m looking at. KERN Okay. ONO: The denial or his letter of recusal. KERN: Well, the letter is the letter; and that is what he has chosen to do for himself, to recuse it. ONO: Okay. KERN: Now we still have a motion in our hands from the Intervenors that we have to take action on. So we can either approve that, in which it disqualifies him to the effect of what they have written in their motion, or we can move to deny the disqualification. And basically we’re right back to where we are now, the motion is gone and Commissioner Ishibashi is still recused. But, it’s slightly complicated. But it’s basically -. ONO: Well, I guess I’m assuming here that if Commissioner Ishibashi had written the letter that his request is, overrides this petition. No? It does? KERN: It does not, not to my knowledge, or doesn’t. 12 EXHIBIT C MECKLENBURG: If, I guess I’ll try to address this on the record, unless you feel you need to go into executive session to do it further. But the motion is still before the Commission. There are several, I guess, allegations and suggestions for action that are contained in here which have not been addressed completely by this Commission. But the underlying point of the recusal of Commissioner Ishibashi has been addressed so that is why we presume that it’s moot at this point. KERN: And basically to close that out we would still need to have a motion to deny, in moving that direction, or you have a motion to approve which takes it to another level of disqualification. MECKLENBURG: Correct, at this point Commissioner Ishibashi has recused himself. So if this Commission wishes to take action also on your own behalf to disqualify him, then you would want to hear this motion and vote in the affirmative. KERN: Shall we do an executive session? DOMINGO: Yeah. ONO: Yeah. KERN: All right, let’s move to an executive session. All those in favor of an executive session aye? COMMISSIONERS: Aye. KERN: All opposed? Seeing none, executive session. If you could all please step outside for a minute. EXECUTIVE SESSION – The Commission went into executive session at 12:10 p.m. and came out at 12:24 p.m. by a motion made by Commissioner Domingo, seconded by Commissioner Au, and unanimously carried by a voice vote. KERN: The Commission, regarding the matter of Hu Honu, is out of executive session, back into regular session. So what we’d like to do is to get a clarification on the motion that has been made right now that’s still on the floor. Julie? MECKLENBURG: Okay. So I think the motion that’s on the floor is to deny the Intervenor’s motion for disqualification of Commissioner Ishibashi as moot based on the recusal of the Commissioner earlier this morning. And we have not yet received a second on that motion. KERN: And that is the motion you had there, Taka, right? DOMINGO: Yes. KERN: Okay. Is there a second? AU: I second that. 13 EXHIBIT C KERN: Okay, motion has been made and seconded. Any discussion? Seeing none, Daryn? ARAI: Okay. On the motion, Commissioner Domingo? DOMINGO: Aye. ARAI: Commissioner Au? AU: Aye. ARAI: Commissioner Ono? ONO: Aye. ARAI: Mr. Chairman? KERN: Aye. ARAI: Mr. Chairman, you have four aye votes. Motion carried. KERN: Thank you. So, Commissioners, I know you’re all aware of this but I’d like to remind you all that the rules require us to review and examine all the evidence before we render our decision. Therefore, I’d like to confirm that each of you has taken the time to review the record that we received from the Hearings Officer, which includes not only the report but all of the exhibits and all of the other information and attachments that we’ve gotten over this course of time, and there is a lot of it. And I also, so has everybody reviewed that? DOMINGO: Yes. AU: Yes. KERN: Commissioner Ono? ONO: Yes. KERN: And, yes, I have as well. So, to summarize, we have before us an application for Hu Honua LLC to amend the Applicant’s original SMA Use Permit No. 221 which was originally approved on April 9, 1985 and allowed the establishment of a coal storage area, a coal burning energy plant and related improvements. The current amendment request is to allow the Applicant to do the following under the existing SMA Permit, convert the facility’s fuel source from coal to wood biomass, upgrade the boiler and boiler building, upgrade the facility’s air pollution control equipment and construct a 13,430-square foot chipping storage building, construct a 8400-square foot chip processing building 14 EXHIBIT C and 110-foot long wood chip transport conveyors, and install a concrete pad and step up transformer and a switchgear to improve interconnection with the HELCO grid. So the documents that are under consideration today are (1) the Hearings Officer’s recommendation and findings of fact, conclusions of law and decision and Order; (2) the Intervenor’s Exceptions of the Hearings Officer’s Recommendation; (3) Hu Honua’s and the County’s Statement in Support of the Hearings Officer’s Recommendation. Furthermore, our rules provide that if any party to the proceeding has filed proposed findings of fact, we must incorporate a ruling on each such proposal in our decision. Accordingly we must also consider the proposed findings of facts submitted by Hu Honua and the County jointly, as well as those submitted by the Intervenors. So Planning Commission Rule 1-5(e) permits us to hold a meeting closed to the public upon 2/3 vote of the members present today for the purposes of consulting with our attorney and for other purposes realized by law, such as conducting adjunct judiciary functions, including our deliberations on matters before us as permitted by Section 92- 6(a)(2) of the Hawaii Revised Statutes. So with that being said we basically have to go over the decisions, conclusions of facts, and all the exceptions, and either integrate those or basically work through that to come up with which findings of fact and conclusions of law that we are going to go with. But we can now close the public portion of the hearing and have the discussion with us, but we need 2/3 vote for that. So if there is a motion to close the public hearing portion of the meeting, we’ll entertain it. DOMINGO: Mr. Chairman? KERN: Commissioner Domingo. DOMINGO: I move that we close the public hearing portion of this meeting. KERN: Is there a second? MECKLENBURG: To clarify the motion is to move into an executive session, if you will, that it will be closed to the public. DOMINGO: Yes. KERN: Is there a second? AU: Second. KERN: Okay, any discussion on that? Seeing none, Jeff. DARROW: Thank you, Mr. Chairman. Just to clarify the motion, again, the motion is to close the hearing and to go into executive session, or no? It’s just to close the public hearing on this matter? KERN: To close the public portion of the hearing. MECKLENBURG: To move into executive session, essentially -. 15 EXHIBIT C DARROW: Okay. MECKLENBURG: A closed hearing. DARROW: A closed hearing. KERN: A closed hearing, which we are permitted by law to do. DARROW: Okay, with that I’ll take the roll call. Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Au? AU: Aye. DARROW: Commissioner Ono? ONO: Aye. DARROW: And Mr. Chairman? KERN: Aye. DARROW: The motion passes four to zero. KERN: With that being said, you all may leave the room. Thanks. PUBLIC: When do we come back in here? STRAUSS: Can you make another motion for the amount of time that you’re going to do it so we know whether to come back today or tomorrow? KERN: I don’t know how long this is going to take honestly, there’s quite a bit of stuff to go through. STRAUSS: We’ll check with staff. Maybe they can call us. KERN: Yeah, yeah, yeah, definitely. STRAUSS: Okay. LEITHEAD TODD: I was going to say to leave your phone numbers. KERM: Okay. 16 EXHIBIT C STRAUSS: Thanks. EXECUTIVE SESSION – The Commission went into executive session at 12:30 p.m. and came out of executive session at 4:21 p.m. by a motion made by Commissioner Ono, seconded by Commissioner Au, and unanimously carried by a voice vote of all Commissioners in attendance. RECESSED The Chair recessed the meeting at 4:21 p.m. RECONVENED The Chair reconvened the meeting at 4:30 p.m. th KERN: Calling the May 4 Windward Planning Commission meeting back to order with the agenda item number four, Hu Honua. We spent time here in our executive session reviewing all of the findings of fact, conclusions of law and exceptions by the Intervenors and doing our work in that way to do that. So that is what we have been doing here for the last couple of hours and we have gone over those one by one. So at this point in time I am willing to entertain a motion. Commissioner Au? AU: I move that we adopt the Hearings Officer's recommended findings of fact, conclusions of law, decision and order, deny, with respect to this topic, and deny Intervenor’s propose findings of fact as inconsistent with the Hearings Officer's recommendations. DOMINGO: Second. KERN: Okay, motion has been made and seconded. And any discussion? Discussion or anything else anybody wants to add to it? DOMINGO: Yeah, I have two items I'd like to take care of. And one is that this statement be entered into the record as a statement of fact with regards to what was submitted to us and which is, they should be included in accordance with Hawai‘i Revised Statutes Section 91-10(5), “Hu Honua has demonstrated by a preponderance of the evidence that its amendment application meets the criteria articulated in Hawai‘i Revised Statutes Chapter 205A and Planning Commission Rule 9. KERN: Just to clarify, you want to add that to the findings of facts -? DOMINGO: Yes. KERN: And conclusions of law DOMINGO: Yes. KERN: Okay, Julie? MECKLENBURG: Okay, so what we’ll do -, We have a primary motion and then under that I think you're making a motion to amend the findings of fact. So we’ll leave the first motion open, which is to 17 EXHIBIT C approve the findings of fact, and we’ll consider then the proposed amendment, and then go back to the primary motion. KERN: Can I have a second on the amendment? ONO: Second. KERN: Motion has been made. MECKLENBURG: Okay just to clarify, the motion that’s now on the table is to amend the Hearings Officer's recommended findings of fact, conclusions of law, and decision and order to include an additional finding of fact which Commissioner Domingo read. KERN: Okay, so we’ll vote on that one first, and then if there is any other that we want to add on we’ll take that as a separate one. DOMINGO: Sure. KERN: So any discussion on that one? Seeing none, Daryn? ARAI: Okay, Mr. Chairman the motion is to amend Hearings Officer's recommendation, recommended findings of fact, conclusions of law and decision and order. Commissioner Domingo? DOMINGO: Aye. ARAI: Commissioner Ono? ONO: Aye. ARAI: Commissioner Au? AU: Yes. ARAI: Mr. Chairman? KERN: Aye. ARAI: Mr. Chairman, motion carries with four aye votes. KERN: Okay, very good. So we still have the original motion opened. Commissioner Domingo. DOMINGO: Yes I’d like to add to that requirement. And it should read, I think, read as follows -. And if there should be any corrections to it, perhaps the staff can help me make that correction. And it is in regards to traffic on Highway 19, that junction where you turn down into the mill road. And I'd like to have it such that it be read as: “Access to the state highway facility shall be a fully channelized 18 EXHIBIT C intersection with left turn and deceleration and acceleration lanes. Lanes shall be 12 feet wide and return radii sufficient to accommodate the largest vehicle that will make regular use of the access.” KERN: Is there a second? ONO: Second. KERN: Okay. MECKLENBURG: Okay. Again, to clarify, I think that, what is being proposed is an amendment to the order insofar as it contains the conditions under which the amendment would be approved. Did you also want to amend any of the findings of fact related to that? DOMINGO: That would mean that, that if we amend the finding of fact that it should reflect this condition word for word? MECKLENBURG: So finding of fact that that is necessary? DOMINGO: If it is not necessary, rather than clouding up the issue, perhaps we can just amend the conditions as set forth in the SMA Permit. KERN: You would be amending the conditions? DOMINGO: To add that as another condition. KERN: That would actually be added to the recommendation, decision and order of those conditions because that's what we are adopting, Commissioner Domingo? DOMINGO: Yes. KERN: So that will be added to that, correct? DOMINGO: Yea. KERN: Okay. Discussion? DOMINGO: Mr. Chairman, I’d just like to add to it. And it hasn't been sitting well in my mind because I’ve been driving into Hilo for quite a number of years, every day, to come to work. And as each year goes by there is an increase in the number of traffic. And I know the traffic study that was prepared and submitted reflects the volume of traffic that travels along the highway. I'm concerned about not so much the volume but when you consider trucks hauling timber down to the plant for the bagasse, then it imposes, to me, a potential for an accident, and it can result in a serious accident. Because what happens then, I noticed that coming up, if you visualize in your mind, if you visualize in your mind, the road going down to the mill road is just, is a point, you know, that impacts from the South and the North coming up like that. And the road going to the mill road is right at the very impact of that thing, 19 EXHIBIT C of the highway. And I feel that some safety measures should be included so that, you know, in the event that, when people speed or are negligent that any serious accident might not result from that. It's a safety measure that I strongly believe in. KERN: Any other discussion? I would possibly like if we could give a timeframe on that, maybe a year or two, to be able to accomplish that, because that is working with State Highways. I’d like to get the staff’s input as well. So, Daryn? ARAI: Well, I took a quick read of the proposed condition and since it seems to be associated with traffic generated by the proposed use, that it may be reasonable to require it prior to establishment or the commencement of operations, I guess. I‘m not sure, something along those lines. KERN: That would be one option, or we could give a little bit of a longer timeframe possibly to meet that criteria. ARAI: At the discretion, right. If you're going to provide a timeframe then it could be like within one year from the effective date of this permit, or two years from the effective date of this permit. KERN: I think with the reality of the State Highways and stuff, you know, in working through that and giving the benefit, you know, a year or two would be appropriate. But that's your call, Commission Domingo, to add that. DOMINGO: I would say two years, but no later than the time when they start to put the plan into operation. It should be put into place before they start any operations. KERN: Okay, well that’s slightly contrary to my opinion, but I see what you’re saying there, too, though, that you would like to have it in place prior to commencement of the plant being operational; and I can totally understand that. And at the same time I would say give them a little bit more time to allow them to start potentially operating and generating some money, and dealing with the state, and then making that have to happen here within, you know, a period of time from that. DOMINGO: I can go with that, Mr. Chairman. KERN: That would be –. So you want two years from commencement or from the issuance of the permit? DOMINGO: I would feel more comfortable if this requirement would be met before they start operations. Because as soon as they start operations, then you would be presenting a situation that can be hazardous, a potential hazardous situation. And to put it in two years after they start, you know, it does not sit right with me because there are prone to be accidents even before then. MECKLENBURG: If I could interject, I want to bring the Commissioner’s attention to the findings of fact 54 and 55 which relate to traffic, and just make sure that we are being consistent with those findings of fact in our consideration of this amendment. And so the findings were that: The traffic impacts alone are not proper issues for consideration and the approval of an amendment to an SMA 20 EXHIBIT C permit, and we discussed that previously in our session prior to this. And then in 55, that Hu Honua engaged SSFM to conduct a traffic assessment and SSFM orally informed Hu Honua that no action will be required with respect to traffic as existing roads are adequate to handle anticipated traffic. So I just want to clarify that this, what you are suggesting is for safety? You feel it is for safety issues as supposed to traffic flow? DOMINGO: Safety, safety issue. MECKLENBURG: Okay. I think that we had discussed the Topliss case previously and the issues with traffic and whether it is appropriate to consider that in accordance with an SMA permit. And the guidelines that we have from the Court state that the Commission needs to determine whether traffic generated by the development will or will not have a substantial adverse environmental or ecological effect on the coastal zone. If the Commission finds that the traffic will not have such a substantial adverse effect then the Commission should approve the permit petition without conditions relating to traffic. So I think what we need to concern ourselves with in particular is with respect to the coastal zone. So for looking at safety, well, if it’s related to traffic then it’s not proper for consideration within the SMA zone. If we’re looking at safety, then again we need look at safety within the SMA zone. So possibly, if you’re talking about safety, in terms of traffic on the main road, that may not be appropriate for our consideration with an SMA permit. DOMINGO: Well, as I look at it the use that has been presented here is a use away from the highway. But in order for that particular use to be proper and well recognized as such, and to be successful, then they need to use the highway for that. If it, what I am saying is it is related. If you don't put the plant there, there is no need for bagasse, then there will be no need for use of trucks. So, you know, as I look at it, it is related and it is important. KERN: Is it technically out of our jurisdiction though? I mean, I agree, I think, you know, traffic is always, is a concern. And if we cannot, then we cannot? We kind of need a little bit of guidance, I think, on whether we really can or we cannot. We’ll take a five-minute recess, oh, if I could I’d like to get a motion to move into executive session. AU: I make a motion to go into executive session? KERN: All those in favor? COMMISSIONERS: Aye. KERN: Oh, do we have a second on that? ONO: Second. KERN: Okay, motion has been moved and seconded. All those in favor aye? COMMISSIONERS: Aye. 21 EXHIBIT C KERN: Seeing none, we’re in executive session. You may all leave the room again. ARAI: But stay close by. KERN: Yeah, staff close, this will be pretty fast. EXECUTIVE SESSION –The Commission went into executive session at 4:53 p.m. to discuss with its counsel the issue of requirement intersection improvements on the State Highway 19. The Commission came out of executive session at 5:19 p.m. by a motion made by Commissioner Au, seconded by Commissioner Ono, and unanimously carried by a voice vote of all Commissioners in attendance. KERN: Okay, so as it stands now we have two open motions, both seconded. And, Commissioner Domingo, do you want to -? DOMINGO: Yes, Mr. Chairman, thank you. After discussion with our counsel I have been advised that I should withdraw the motion with regards to improvement on the Highway. Therefore, I withdraw my motion. KERN: And I need to get the second? Who seconded to withdraw? MECKLENBURG: It’s withdrawn. KERN: Withdraw the second, no? MECKLENBURG: No. KERN: Okay, that’s fine. Julie? MECKLENBURG: Yeah, I just wanted to state that the advice was based upon the criteria for granting an SMA Permit. KERN: Okay, with that being said -. ARAI: And, Mr. Chairman, I did note that Mr. Ono did second that original motion so -. ONO: I withdraw the second. KERN: Okay. Very good, so we are still with the open motion pending to adopt the findings of fact, conclusions of law of the Hearings Officer with the amendment that we are ready voted on. And so we are in the process of discussion now. Is there any discussion? Seeing none, looks like we’re going for a vote. Daryn? ARAI: So we’re voting on the main motion? KERN: Voting on the main motion yeah. 22 EXHIBIT C ARAI: Okay, thank you. Commissioner Au? AU: Yes. ARAI: Commissioner Domingo? DOMINGO: Aye. ARAI: Commissioner Ono? ONO: Aye. ARAI: And Mr. Chairman? KERN: Aye. ARAI: Mr. Chairman, motion carries with four aye votes. KERN: You’ll be notified in writing. The discussion ended at 5:27 p.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 23 EXHIBIT C