2013-10-03 Windward Transcript - Hu Honua

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granted or the amendment that you granted as if it, you had considered the SHPD approval at that time, the fact is that there was no SHPD approval when the Planning Commission adopted the amended permit. And there’s a, in addition to the issue of SHPD approval, that also raises other issues because you’re required to deal with the cumulative effects of the project. You also have to look at now whether the SHPD approval, a new SHPD approval that was not considered by the Planning Commission affects the project as a whole. So you really do have to look at the project as a whole. Because, in effect, what the Court is inviting you to do is to reconsider your permit that was, the amendment to the permit that was issued. I think that you should also request the Planning Director to initiate revocation proceedings so you can complete a full record, that you can have a full record, and have the public to fully participate and not cut them out of the process, which Mr. Grimmer’s narrow view of the proceedings would result in. The Circuit Court’s order for remand is really an order for reconsideration and consideration of new evidence. And although the Court issued a narrow order and in order to comply with that order you only need to do certain things, that doesn’t prevent you from doing other things. Under the Statute, under 205A, you always have the opportunity to examine the permit in front of you to determine that it complies with the law. The Judge’s order was a signal that the SMA permit needs to be fixed, in at least this respect. So what that tells you is that the Planning Commission’s adoption of the Order that granted the amendment was wrong. It also tells you that the Hearings Officer’s recommendation that you adopt the Order was wrong. It also tells you that the Planning Department’s recommendation that you adopt the Findings of Fact and Conclusions of Law was wrong. And if they’re wrong in that respect, then there’s equally the opportunity that they’re wrong in other respects. And this Planning Commission needs to force the Planning Department to do a better job. Because they really rely on what the Planning Director recommends in many cases and what his assessment is of the law. And there are lawyers involved, and you have your own lawyers. But in this case if you, if you read between the lines and the Court’s order, there is no other reason that he would send it back unless it was wrong. The Planning Commission should not simply determine that the Applicant must comply with the SHPD approved final archaeological inventory survey without specifically noticing a public hearing and giving the public an opportunity to present evidence to comment on the SHPD approval. Otherwise, your attempted fix is going to be defective if you, if you choose to adopt that course and approve this permit as if you had the SHPD approval in place when you issued it. It’s going to be defective because the public will not have an opportunity to comment on that because it wasn’t part of the record. It’s not part of the record now, so that’s why I say you have to move to, my motion to supplement the record and take additional evidence. Because the cumulative impacts of the project must always be considered. When a portion of the project is re- examined the entire project should be re-examined. And this is particularly true in this case, where this Commission’s prior order allowed operation of an unneeded wood burning power plant with serious health risks that were of record that were not rebutted by anything the Applicant or that the County presented in evidence. The only evidence on the health effects of this power, proposed operation of the power plant burning wood is that they were adverse, toxic. The only person who offered any health evidence was the University of Hawai‘i toxicologist and chemistry professor J. T. Michaud. His testimony is in the record. You can go review it. And he tells you it’s dangerous. 6 EXHIBIT B