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HomeMy WebLinkAbout2018-04-05 Hearing Transcript - Hu Honua Bioenergy SMA 221 (Dec Ruling)WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT APRIL 5, 2018 A regularly advertised hearing on the Petition for a Declaratory Ruling for HU HONDA BIOENERGY LLC (SMA 221) was called to order at 1:35 p.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Joseph Clarkson presiding. COMMISSIONERS PRESENT: Gilbert Aguinaldo, Joe Clarkson, Donn Dela Cruz, Donald Ikeda, Thomas Raffipiy, and John Replogle. ALSO PRESENT: Michael Yee (Planning Director), Malia Ho Hall (Deputy Corporation Counsel for the Windward Planning Commission), Ronald Kim (Deputy Corporation Counsel for the Planning Director), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Christian Kay (Planner), Shancy Watanabe (Planner), Melissa Dacayanan (Planning Commission Support Technician), and Sarah Hata-Finley (Commission Secretary). And 33 members from the public in attendance. PETITIONER: HU HONDA BIOENERGY LLC (SMA 221) Petition for a Declaratory Ruling on Condition No. 5 of 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, and which was amended to allow a change in fuel source from coal to biomass, to upgrade the existing facility and to construct support facilities and infrastructure. Condition No. 5 reads in part "Sound levels shall follow Department of Health rules for residential areas (55 dBA daytime), HAR, Title 11, Chapter 46 (Community Noise Control), and noise at the site property boundary shall be limited to 55 dBA at all times. " The property is located at the former Pepe`ekeo Power Plant, Makahanaloa, South Hilo, Hawaii, TMK: (3) 2-8-8:104 (formerly 2-8-7: Portion of 53). CLARKSON: The next item on the agenda is Item No. 4. There is a petition from Hu Honua Bioenergy LLC for a declaratory ruling. One of the things the Commission has to do is decide which of three options to take with regard to this petition at this time. Our rules state that we can either decline the petition, accept the petition and prepare a declaratory ruling, or hold a hearing on the petition. And, in deference to the request of the Petitioner to hold a hearing, and in deference to the fact that you all have wanted to be here for a hearing, I'm going to ask for a motion that we hold a hearing on this matter right now today. If someone would kindly make such a motion, the Chair would appreciate it. You guys understand where we are at? For the benefit of the Commission, I'll read Rule 3-1(c): "Within sixty days after the submission of a petition for declaratory ruling, the Commission shall either deny the petition in writing, stating the reasons for such denial or issue a declaratory order on the matters contained in the petition, or set the matter for a public hearing ...." And, I've been informed that the legal notices required for a public hearing have been met, and that of those three options the public hearing one is 10V1111.11 11 possible. If the Commissioners have other preferences, please let me know. But, I think we should have a hearing. RAFFIPIY: Mr. Chairman, if we do meet the requirement, or meet the requirement for a public hearing, I move that we conduct a public hearing right now. REPLOGLE: Second. CLARKSON: Okay, it's been moved and seconded that we convene a public hearing on this petition for a declaratory ruling. Do we need a roll call? All in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Okay, motion carries. We will commence with a hearing on the petition, and to start this off and briefly summarize, Jeff Darrow from Planning Commission staff will make a presentation. DARROW: Thank you, Mr. Chairman. Good morning, Members of the Planning Commission, or I guess I should say good afternoon. Usually, we don't make it this long. If I can direct your attention to our presentation. This is Item No. 4. As mentioned, the applicant is Hu Honua Bioenergy LLC. This is having to do with the amendment for Special Management Area Use Permit No. 221. The Applicants have requested a petition for a declaratory ruling on Condition No. 5 of Special Management Area Use Permit No. 221, which originally allowed to establish, allowed the establishment of a coal storage area and a coal burning energy plant and related improvements, and which was amended to allow a change in fuel source from coal to biomass, to upgrade the existing facility and to construct support facilities and infrastructure. Condition No. 5 reads in part, "Sound levels shall follow Department of Health rules for residential areas (55 dBA daytime), HAR, Title 11, Chapter 46 (Community Noise Control), and noise at the site property boundary shall be limited to 55 dBA at all times." Just for reference, in case you may not know, this is located within the South Hilo District of Hawaii. More specifically, we are looking in the area of Pepe`ekeo, which is in this general area. The actual property is identified with the black outline, and you'll see the different colors on the map, which represent the County zoning. The purple is General Industrial — 5 acre, as well as a portion of dark green, which is Agricultural - 20 acres. There is some residential lots that are just to the north of the subject property, and there are smaller agricultural lots but all are zoned Agricultural - 20 acres. This is a little further zoomed -in map again showing the zoning of the area. The purple represents General Industrial - 5 acres, the dark green represents Agricultural 20 - acre, and you have several different types of Single -Family Residential zoning. You also have another industrial lot that's just to the west of the subject property. EXHIBIT D 2 This is an aerial. The actualoh, sorry about that—the subject property is in this general area. This, we wanted to show you this photo, it's not current but it's pretty current. I think it may be a year or two old, but you'll be able to see the different dwellings that have been, being constructed in the general area around the mill at this time. So the Petitioner, Hu Honua Bioenergy, LLC, has submitted a petition for a declaratory ruling as to the applicability of Condition 5 of SMA Use Permit No. 221 set forth in the Planning Commission's Findings of Fact, Conclusions of Law, and Decision and Order issued on June 7, 2011. Condition 5 of SMA Use Permit 221 states the following: "Sound levels shall follow Department of Health rules for residential areas (55 dBA daytime), HAR, Title 11, Chapter 46 (Community Noise Control), and noise at the property boundary shall be limited to 50 [sic] dBA at all times. Fuel truck deliveries shall be permitted only between the hours of 6:00 a.m. to 6:00 p.m. The use of `fake brakes' shall be prohibited on Sugar Mill Road." The Petitioner is requesting a declaratory ruling from the Windward Planning Commission that, number one, that Condition Number 5, which limits sound levels and noise, only applies to noise during plant operations, and not during the construction of the plant itself, i.e., not during pre- operation construction; and number two, the sound limitations in Condition 5 apply to normal plant operations only, and not during emergency or other non -normal situations. The applicant's representative submitted a letter dated May [sic] 2nd, and we've already addressed this, so I'll move on for this, as this was the letter that was requesting the Commission to allow a public hearing. So with that, if you have any questions regarding material that's been submitted to the Commission—we apologize for the, the voluminous amount of material, but we felt it was necessary for the Commission to be able to see within the record all the areas regarding noise that was addressed through the application, through the eleven hearings that we had had, and through other material that had been part of the record. So, if there are any questions, I can try to answer those as well. Thank you. CLARKSON: And, Mr. Darrow, you are able to project any part of this voluminous record on the screen in case we all need to look at it in public? DARROW: We, we couldn't do that. What we did do was get the noise rules that you had asked for to be placed on there. So, we do have that. But what we can do with the other parts is just reference them and then be able to go through that. CLARKSON: Thank you very much. DARROW: Thank you. CLARKSON: At this time, I'd like to call the Petitioner or the Petitioner's representative to come forward and state their reasons for requesting this petition and what they believe our declaratory ruling should say. You've all been sworn in previously; you are still under oath. And, but please, for the record that our staff is keeping, please introduce yourselves when you start speaking. EXHIBIT D 3 LEE: Thank you. Good afternoon, Chair Clarkson, Commissioners, Commission staff As I mentioned earlier, I'm still Warren Lee, the president of Hu Honua Bioenergy LLC. Our petition for a declaratory ruling seeks to confirm our understanding that, one, the Condition No. 5, which limits sound levels and noise, only applies to noise during plant operations, and not during construction of the plant itself, and secondly, the sound limitations in Condition No. 5 apply to normal plant operations only, and not during emergency or other non -normal situations. Condition No. 5 states, "Sound levels shall follow Department of Health rules for residential areas (55 dBA daytime), HAR, Title 11, Chapter 46 (Community Noise Control), and noise at the site property boundary shall be limited to 55 dBA at all times. Fuel truck deliveries shall be permitted only between the hours of 6:00 a.m. to 6:00 p.m. The use of `fake brakes' shall be prohibited on Sugar Mill Road." Regarding the 55 dBA limitation during operations only, Condition 5 talks about noise at the site property boundary be limited to 55 dBA at all times, and also says that fuel deliveries, which will only happen during the hours of operations by the way, are only permitted between 6:00 a.m. to 6:00 p.m. But nothing in the condition specifically addresses sound levels or noise during pre - operations or construction of the plant. Our understanding has always been that at all times means at all times during normal plant operations—excuse me [for coughing]. On December 27, 2017, the Planning Department issued a letter informing Hu Honua that it "cannot conclude that there is a clear enough distinction between operational noise and construction noise in relation to Condition Number 5, which states `at all times."' So the Planning Department instructed us to request clarification by the Planning Commission to specify whether Condition No. 5 allows for flexibility during construction activities. So, although Hu Honua believes SMA Permit 221, Condition No. 5 is clear, when read together with the entire June 7, 2011, Findings of Fact, Conclusions of Law, and Decision and Order, that the 55 dBA noise level was intended to apply to normal operational noise only, and not pre- operation construction noise, Hu Honua has filed the instant petition to seek clarification on the applicability of Condition No. 5. Findings of Fact, 49, 50, and 51 either specifically state or imply that the noise limitation applies to operational noise, such as during plant operations. We discussed this in detail in our petition filed on February 27. None of these three Findings of Fact provisions nor any other provision in the Decision and Order specifically places a limitation on noise during construction. Condition No. 4 states that the operation of the biomass facility shall comply with all applicable County, State and Federal requirements related to air quality, water quality and discharge, and noise. We understood this to mean that the default County, State, and Federal requirements relating to noise would apply during construction. In addition, during the contested case hearing in 2010 testimony and evidence was offered on the issue of noise during plant operations and its mitigation. Specifically, the following testimony and evidence were presented: The intervenors have raised the issue of noise related to plant operations and the delivery of biomass; Hu Honua is zoned as an industrial site, and has voluntarily agreed to a permit condition that limits the noise at the site property boundary to 55 EXHIBIT D 4 dBA at all times; upon cross-examination regarding sound mitigation, then -president of Hu Honua, Richard McQuain, testified that Hu Honua would come up with mitigation measures that are necessary so that Hu Honua can operate at no more than 55 dBA at the property boundary. Additionally, four of the five contested case hearing excerpts listed in the Planning Department's background report, support our proposition that the 55 dBA limit relates to plant operations. The last excerpt is neutral on the issue. As a practical matter, it'll be very nearly impossible for Hu Honua, or anyone else, to construct an industrial power plant of this size and magnitude on an Industrial zoned property, requiring the use of heavy construction equipment without going above the 55 dBA. Hu Honua agreed to implement mitigation measures so that it could operate the plant at no more than 55 dBA, such as acoustic paneling in the buildings, landscaping noise buffers, and other sound reduction methods. It did not voluntarily agree to mitigate noise levels down to 55 dBA during construction, as this would have been a very near impossibility. Sound levels and noise related to construction activity are already regulated by the Department of Health, and Hu Honua is committed to complying with DOH regulations during construction. Therefore, Hu Honua respectfully requests that the Windward Planning Commission clarify the applicability of Condition No. 5 and confirm that such condition does not apply during pre- operation construction activity. On our second request on the petition, the 55 dBA limitation for normal plant operations only, when Hu Honua voluntarily agreed to a permit condition that limits noise at the site property boundary to 55 dBA at all times during plant operations, it intended this to mean during normal operations. The plant is designed to operate 24 hours a day, seven days a week, but as with most energy plants, there are certain emergency or non -normal situations that may require limited durations of above normal noise. Such non -normal noise situations will account for less, significantly less than one percent of the total duration of plant operations. For example, and I'll just list a few based on, you know, my experience, should the Hawaii Electric Light Company experience a grid problem, they may necessit may necessitate Hu Honua cutting off electricity load rapidly or shutting down the plant. Now, this is a plant that operates at high pressure, the boiler, it creates steam to turn a turbine. So, anytime you have an emergency situation, the steam turbine or the boiler has to protect itself, and there are safety measures. So, this possibly could lead, this will lead to an exceedance of the 55 dBA. HELLO, Hawaii Electric Light Company, who controls the grid, needing to open Hu Honua's breaker, electrical breaker, power breaker, which will trip the turbine and require a restart. Unexpected turbine trips could also happen above, which would result in perhaps above -normal noise resulting from lifting of safety valves on the boiler to protect the boiler. Maintenance causing startup of the turbine and hogging jet. This unit, although it's designated to run 24/7, 24 hours a day, seven days a week, needs maintenance. So at some time, there is a normal maintenance period once a year, usually for one week or two weeks depending on the cycle, that unit needs to be shut down, and then the unit needs to be restarted from cold after a EXHIBIT D 5 one- to two-week shutdown. So, there possibly could be exceedances of the noise of the 55 dBA at this time. Therefore, Hu Honua respectfully requests a declaratory order clarifying that Condition No. 5 was intended for normal plant operations only and does not include emergency or other non- normal plant operations noise related to the startup or shutting down of plant equipment and other such non -normal plant operations activity, which may emit above -normal operational noise for a limited duration of time. Any such emergency or other non -normal activity to the extent such noise exceeds 55 dBA would be subject to the default DOH rules for Industrial zoned property or other permit variance issued by the Department of Health. At this time, Chairman Clarkson, Members of the Commission, we are available for questions. CLARKSON: I'll defer to other Commissioners. Does anyone have any questions for Mr. Lee? RAFFIPIY: Mr. Lee, I have a question. You know, for situation where it's planned situation where the noise is going to be exceeding 55 dBA, for example, like you're going to do maintenance, regular maintenance, and stuff you were talking about, will you be notifying the neighbors when that time comes so that they know that, you know, you're going to have like an abnormal operation because you're going to be, you know, doing something that will be going to, you just plan for, plan the abnormal, or non -normal, operations. LEE: I think we can certainly inform our neighbors within a certain reasonable distance of plant outages and plant startups within plus or minus. It can't be to the exact minute or exact, sometimes not even the exact day depending on how the maintenance goes, but certainly, that is something we can look at. RAFFIPIY: Thank you. Thank you, sir. REPLOGLE: Mr. Lee, when you say the noise level will go above 55 dBA, and I don't know what that is, but, how much higher? LEE: Certainly, if based on my experience with power plants, if the unit trips, let's say the boiler is operating at 500 pounds per square inch, and then all of a sudden the HELCO grid, there is a system disturbance, so they say we don't need your power, we're going to shut, automatically shut you down—it's not something that's equipment -operated, but it's something just triggered electronically—the boiler will, to save itself from exploding, it will release steam through a safety valve just like your water heater in the case you get a high temperature. So, that noise will certainly exceed 55, it will certainly exceed 70, it depends on what type of, what time of the day and what pressure the boiler is at. So, I cannot give you an exact numerical number as to what the dBA would be. But, based on my experience, the duration for the safety valve to lift and get back to normal plant operations, could be 30 seconds, 40 seconds. It's not like it would be running like that for an hour. By that time, the steam would be, probably be depleted after maybe a minute or two. REPLOGLE: Okay, thank you. EXHIBIT D 6 CLARKSON: Mr. Lee, I'd like to, if I can ask a question here—excuse my voice. I'd like to zero in on what you consider to be normal operations. It would be my belief, and correct me if I'm wrong, that this plant would be subject to dispatch by HELLO, that they would be able to specify the load at which you operate and when and how long you operate. Is that correct? LEE: Yes, we will be under the energy management system dispatch from the Hawaii Electric Light Company. CLARKSON: And, wouldn't you consider that to be normal operation to be operating under dispatch? LEE: That is normal operations, yes. CLARKSON: Well, then, I, I don't understand why a planned shutdown and planned startup for maintenance would not be considered normal operations. I can, I can easily see how a plant trip a turbine trip, a grid disruption would result in an emergency and the abnormal operation, but in my understanding, a planned shutdown and a planned startup, I would think one would consider that to be normal operation. LEE: Normal routine maintenance shutdowns are planned, so it could be considered a normal operation, but not, let's say, it doesn't, if it's a turbine outage, turbine planned maintenance outage, or a steam boiler outage, there are durations that could vary. So, and, mostly in the terms that we use "normal" would be in the sense of operations 24/7, yeah, that's the context we've been using it in. Although, from a plant maintenance standpoint, having normal maintenance is normal, and you have different degrees or different levels of maintenance. So, it could be that a turbine maintenance outage is not going to occur every year; it's going to occur maybe every six years or, and so on. A boiler maintenance outage, depending on the boiler, how it operates and how it's dispatched, based on the readings we get, there may have to be boiler maintenance outages maybe once a year or maybe twice a year, but you know, the variate, the time in which the unit is down for maintenance depends on what needs to be done, you know. CLARKSON: One more question for me, and I'll turn it over to the rest of the Commission. Does the, I assume the plant is going to have a black start diesel generator available? LEE: Yes, the unit will have a black start biodiesel generator. CALRKSON: Okay, biodiesel generator, and this would be used only under conditions when the grid was not available. I understand that that's what black start means is when you have a dead grid and you have to start up the plant without it. Will not that diesel exceed 55 dBA when it's in operation? LEE: Our plan is that whatever the noise source emitters are, we plan to mitigate that with our noise mitigation plan, either through insulation, landscaping, different methods. We are spending quite a few dollars in the design phase and the construction to, the plan is to mitigate to EXHIBIT D 7 55 dBA at the property line. That's what we are moving forward with in the construction, in the design and construction of this plant for normal operations. CLARKSON: Thank you. Any other questions from any Commissioners on this matter? Do you have—okay. YAMAMOTO, W.: Just a quick clarification. So, Mr. Lee briefly mentioned when he was speaking regarding the lifting of the safety valve whenever you have a turbine startup for example or release of the steam, that at the source you could have 55, above 55 dBA or above 70 dBA at the source of the sound. Now, given that the source of the sound is at the main plant building, which is centrally located within the entire property, and given that it's hundreds of feet away or perhaps over a thousand feet away from the property boundary, we don't exactly know what the dBA level is going to be at the property boundary, but we know at the source it's going to be above 55 or 70 that may translate to you less than 55 or potentially above 55. We are just not sure at this time because it's never been operated yet. But, we wanted to account ahead of time for those instances, and they are going to be very limited in duration. DELA CRUZ: Warren, you know your guys' noise abatement system, is it the same thing that you guys did in Keahole? Same type? LEE: You mean Keahole? IKEDA: Yeah, the Keahole power plant. LEE: Basically, to explain, Keahole power plant is a little different. It has DELA CRUZ: But the noise abatement is pretty amazing out there, I mean, you can walk through that whole plant, and it sounds exactly like this room right now. LEE: Well, if you walls at the property line. DELA CRUZ: Yeah. LEE: Once you open the door, you might DELA CRUZ: Yeah, if you open the door, it's another story, but LEE: —find it pretty noisy. Yes, we did do a significant amount of sound studies, we insulated the plant, it has a cooling tower, and we, well HELLO, installed low -speed [inaudible] fans to move the circulating air, and also insulated so to [inaudible] less noise and insulated the structures. And, this is a same concept that we are employing for sound mitigation for the Hu Honua plant. DELA CRUZ: Thank you. LEE: You're welcome. Thank you. I0V1111.11 11 CLARKSON: If there are no further questions from Commissioners, we thank you for your presentation, and we'll start with public testimony at this time. So far, we have 17 people who have signed up to testify on this matter. If18as with the previous agenda item we are going to take testimony, we'll ask six people at a time to come up. Please let me know if you have not been sworn in today, and if so, I will swear you in. And, we'll start with the first six, which will be Claudia Rohr, Stephen Mahoney, Joan Ellis, Max Newberg, Koohan Paik, and Lisa Andrew. PAIK (from audience): Lisa is not here. CLARKSON: Then we will go with, Colleen Lawrence? PAIK: Colleen is not here. CLARKSON: Christopher Dean? AUDIENCE MEMBER: Not here. CLARKSON: Rosemary Gonzalez? AUDIENCE MEMBER: Did Max leave? AUDIENCE MEMBER: Yeah [inaudible]. CLARKSON: And, Keha Guss is not here. Steve Johnson? Please raise your right hand. Do you swear or affirm that you will tell the truth on this matter before the Commission today? TESTIFIERS: I do. CLARKSON: Thank you. We'll start with this gentleman, and proceed down the line. MAHONEY: Thank you. My name is Stephen Mahoney. I live right on Sugar Mill Road, I'm halfway between the highway and the power plant about exactly one-half mile above the power plant. And, I just want to testify that you can hear the noise right now. So, I don't know, I know it's construction time, I don't know if they are supposed be under 55 or not, but all day 6:30 in the morning jake brakes going down, the construction trucks, they are not the field trucks, I understand, but they rattle the windows. I can speak on behalf of my neighbor. They've got a nine-month old baby; that wakes up the baby at 6:30 in the morning. My brother-in-law is the property owner, the landlord, he has his in-laws living with them. They are both 94. They hear it. They hear the noise. It's more than just the jake brakes, though. This morning you could hear a truck backing up out there, the reverse signal, all the traffic, I can hear every one of those reverse signals on the trucks on the construction site a half -mile away coming up. I can hear the trucks unloading, the clanging of the different machines, the jackhammers. And, you know, for the first two years I lived there, it was peace and tranquility, and right now I look forward to the sun going down and Sundays because you can just hear the noise all the time. EXHIBIT D 9 So, the gentleman said, you know, people are two miles away or whatever, you can hear it at a half -mile away. I know you look down right on and you can see the cranes. But, you know, like I said, you've got, it's more than just cows. Right in the part of the map that's green, there's houses out there. There's people living out there; there's elderlies; there's babies. Some of my neighbors can't make it today because they have animals; they have the babies. My wife is not here today. She's helping a neighbor corral some bulls and cows that are loose on Sugar Mill Road right now. But, I just know the impact has changed our lives. The jake brakes are the worst, so I hope they don't try to amend those rules down the road. They keep changing the rules. I'm a former member of two unions. I've been in two bargaining teams, and that's why you have contracts. We have agreements. You can see what they are doing to us under the agreements. So watch your contracts. Just be wary of what they try to pull on you guys `cause they're pulling it on us, so. Thank you very much. ROHR: My name is Claudia Rohr. I agree, it's very noisy. They can turn down those signals on the trucks, the ones where they back up. Once people complained about them, they adjusted them, they turned them down to a lower volume. If you give them permission in advance to violate this condition that was agreed upon by a different Planning Commission, they have no motivation for turning things down, staying under the sound limit. "At all times," Merriam - Webster dictionary definition of "at all times": without stopping or changing, at all times, always, continuously without interruption, at all times. Interpreting, re -interpreting "at all times" at this late date is basically saying you have no respect for the process that was went through. There was days and days and days of testimony, and the intervenors got certain conditions in that permit. And, to say that that can be reinterpreted now, "at all times," continuously without interruption, can now be reinterpreted by a declaratory ruling? I don't think so. If they want to change the condition of their permits, they have to come back with a new application and ask for it. Thank you. JOHNSON: Hi again. Steve Johnson, Pepe`ekeo Point. I'm one of those fortunate people that live in such a beautiful place. I moved here for peace and quiet comfort. I might not look like it, but I've got a morphine pump in me, so I live in a lot of chronic pain, rather very close to the power plant. I was in construction my whole life, and I owned a lot of big equipment that backed up and made noise. But, I live in a neighborhood, even on Sundays they are out there sometimes, but I cannot go out in my yard without listening to banging, clanging, beep -beep - beep -beep, seven days a week constantly. We've had equipment out there, this stuff is rattling like 70 dBA at my neighbor's yard, which is right next to mine. I mean it's just, they are not trying now to work with us as neighbors. They're doing whatever they want. You know, I was in construction. I lived in a forest before I moved here, and the forest service used to do chipping. I know this is stepping out a little further, but next door to me about a year ago, they brought in some chippers to chip some trees, and I drove around the other side of the power plant and, to listen to how loud those chippers were, and they were screaming loud. I don't know how they are going to sit out there and chip a bunch of wood, and all these pieces of equipment backing up in their—in the grounds there, their Lift -Alis and their dump trucks and everything, I don't know how they're going to do all that inside of a building. That noise radiates all over our community. Depends on which way the winds blow, and it can be worse. They could turn down those, all that noise -making equipment, because I had it on my own equipment. I worked in neighborhoods. There were high-end custom homes and buildings and hospitals, and we turned EXHIBIT D 10 it down. I mean it doesn't need to be roaring through the whole community, but they show no concern for us now, and then now you want to give them ability to make more noise or have less, we have no control over what they do? And, then we had them come out, one time I filed a complaint for them to come out and check the sound. Well, it's just really funny how when these guys flew over from Oahu, three of them. They showed up to check the sound one day, and there's no equipment running that day. Hmm, I wonder why. That's the only day I've never heard any equipment running out there. It was the day they were there to test it. And, even with the small little things they were doing like paintbrushes and stuff, it was still like at 40 - something. It constantly is in the 60 to 70 range in our neighborhood with what they're doing right now. And, they want to, they want more, they just, let's make all the noise we want. It's ridiculous. It's very annoying. I didn't spend a bunch of money and built a beautiful home here to listen to this. This is ongoing, non-stop. You know, what are they going to do when they haul all these chips in there? All these trees in there, they are going to constantly be making a bunch of racket. Thank you. GONZALEZ: Good afternoon. My name is Rosemary Gonzalez. I live 350 feet from the power plant. I purchased my lot back in 2004, and I developed my orchard and built my home, and then Hu Honua came to town in about 2008 when they first started discussions with the community. And, they had a previous construction period back in 2013. And, you know what? As part of what Mr. DeMotta attested to earlier, the local culture kind of doesn't complain about stuff And, back in 2013 all this construction was going on, not one complaint, I don't think they could say, one complaint from us. I would get up at 6:30 to go work in my orchard, and they're started up already. And, then at night, they would work until 11 p.m. at an adjacent lot with pipes and tools banging around and lights shining into my bedroom. Not one complaint from me. Anybody else around and not one complaint. We were all patient, trying to give them the time they needed to do the construction and then things they had issues. Okay, so now, here it is today. And, you know what? I am kind of tired of not saying anything anymore. They made commitments. This SMA amendment happened in 2011. They've had all these years to figure out mitigation. They've stated, the record shows all the mitigation measures they were going to take, their strategies and all of that. I need to read this only because the terminology gets so convoluted with this non -normal activities. The exceptions that they're citing as non -normal are all normal activities of a power plant, should not be considered non -normal. The noises coming from boilers, turbines, water pumps, well pumps, they are the power plant's major components. The noises from these components are normal noises whether they are maintenance or whatever. They're not non -normal. All of these should be mitigated. That's what power plants do; they mitigate for noise. There was never any discussion in the previous hearing about non -normal noise. It was never discussed at any time. I feel like you guys need to help us as residents. Now, it is an Industrial zone. There are residential properties right there. There is no buffer between the two. I'm not asking for anything more. I'm asking that they follow the commitments that were laid forward before and move forward with that, nothing more, just do what they say what they were going to do and follow the law. "At all times" means at all times. To anybody else it means all times. Why is this any different? Thank you. ELLIS: Good afternoon, Chairman and Commission. Thank you in advance for your time. My name is Dr. Joan Ellis. I'm a resident of Pepe`ekeo, and I am a neighbor to the Hu Honua power plant. EXHIBIT D 11 I want to begin by telling you that I completely support the creation of alternative forms of fuel. I completely support that. I also completely support the creation of jobs and the revitalization of the Pepe`ekeo and Hamakua Coast. That goes without question. But, it has to be done legally, and it has to be done responsibly. Specifically, Hu Honua must operate their power plant within what they are permitted to do. That is without question. They agreed to conditions in SMA 221 and made promises. They said what needed to be said to get their permit and their PPA from the PUC. And, it all went just fine. Per Condition No. 5, as you know, they agreed to operate at all times at a dB[A] level of 55 or below. Now that the rubber's hit the road, they're having issues. They can't stay within that condition, and now they want you guys to give `em new rules. How many other conditions are they going to be unable to meet? When does this stop? They are at the very least disruptive of our everyday lives. They state the zoning is Industrial allowing for 70 dB [A], this is true, that's the law. But, they are on a postage -stamp size piece of property compared to the hundreds of acres of residents that live around them, and the Department of Health states that should be at 55 dB[A]. So you give their postage stamp 70, that means the rest of us have to live with 70 and that's outside of the Department of Health recommendation and the law. I urge this Commission to declare Condition No. 5 to be kept at 55 dB[A] at all times, including construction, as it presently states. Thank you for your time. PAIK: Aloha, it's Koohan Paik again, and, well, this reminds me of this one time I hired a guy to the my bathroom and he told me it was going to be $1,500, and half way through he said, oh, you know what, I didn't expect this, that, and the other, so it's going to be $3,000, and I didn't have $3,000, so I had to take him to court and win. Well, I just don't think it's fair that the law gets to be changed for some people and not changed for other people. Like, for example, Claudia Rohr was denied standing because she missed the deadline for seven days back in 2011, so she couldn't get a contested court hearing, but it seems to me that this is seven or eight years delay, and now after this SMA permit spells out very clearly what is the rules, now they have to come back and change the rules. I just, it's so unfair when there's two sets of laws for two groups of people. The residents versus the big money, and the insiders that they hire who happen to be the former head of HELCO and the former head of the Department of Public Works. To me, sounds like a conflict of interest that works against the interest of the public, the shoreline, the `aina, the water, and democracy. So, I find it very troubling. I don't live near Pepe`ekeo. I don't get paid to be here like the people who get paid by Hu Honua indirectly or directly. I just care about our island and about our government. And, I want to thank you all for volunteering, because I'm volunteering here today to be here and testify. So, another troubling aspect about this issue is that in the letter that Mr. Lee wrote to Mr. Clarkson, February 27, 2018, he cites the need to expedite this process so that Honua Ola can meet a Federal tax deadline. Now, I, there is nothing wrong at all with qualifying for tax benefit, but there is something terribly wrong when the rush to meet this deadline interferes with serving the public interest. In fact, this company has been behaving all along as if meeting this deadline is all that matters to them. That's why they deceived the PUC when they claimed that they were going to be trucking all of the waste to the West Hawaii landfill, and that's why they are now applying for a variance on this noise ordinance as they themselves admit in the letter so they can expedite construction, working anytime, exceeding DOH limits, causing enormous trouble and suffering, as you can hear in the voices of the people here today. I've spoken with EXHIBIT D 12 them over the past few weeks, and to hear the tears and the heartache, to me it's unconscionable. So, again, I ask you Commissioners to, please, protect the interest of the people, protect the interest of the residents, and not the interest of large corporations based in San Francisco, California, who don't have an energy facility near their house over there, bioenergy. Thanks very much. CLARKSON: Thank you all. Are there any questions from any Commissioner for these testifiers? If not, we'll call a new group up. And, might I remind the audience that we are going to ask for quiet consideration of their testimony. Who did I end? So, the next testifiers will be Francine Roby, Gilbert DeMotta, Cory Harden, Linda Lincoln—how many have I got there George Martin and David, I think it's this gentleman here. Apparently, George Martin is not here— DELA CRUZ: He's right there. AUDIENCE MEMBER: Gilbert is not here. IKEDA: Gilbert. CLARKSON: Oh, Gilbert. Matt Trask, there is a seat for you at the table. And, who among you have not been sworn in earlier? Okay. Do you swear or affirm to tell the truth on this matter before the Commission today? TESTIFIERS: Yes. CLARKSON: Thank you. This time we'll begin with the, you, sir. ORDENSTEIN: Earlier I was blessed to hear a conversation between Commissioner HALL: Sorry, sir, could you just restate your name for the record? Thank you. ORDENSTEIN: David Ordenstein. HALL: Thank you. ORDENSTEIN: I'm sorry. HALL: No worries. ORDENSTEIN: But earlier I was blessed to hear a conversation spoken in front of all of us by Commissioner Ikeda and the 96 -year old gentleman that had testified earlier. They were reminiscing about the viable and vibrant community of Pepe`ekeo at one time or another. I have returned to my roots. My ancestor is Ah Chuck Ching. He was the first Chinese immigrant to own their own plantation by Akaka Falls, you know, Fong, his partner. So, I've returned to my roots on my father side. And, you know what, I found that there is still a very vibrant community there, not the same as it once was under the plantation where it was our husbands and EXHIBIT D 13 wives or children out there making the noise during the day, all living under their management of the plantation and under their rule. This changed quite differently, but there is still a very vibrant community. And, I pray that one day that it can become vibrant as the days that you had discussed. But, in order for that to happen, I believe there needs to be pono. There needs to, they need to make it right. If there is to be a power plant in the middle of a vibrant community, there should be some rules and regulations that they must follow; otherwise, you will kill a community. And, I haven't been here as long as the others, but I do know that I live amongst a community that's very, very loving of this island. They are contributors to our economy, they have beautified areas that are just, they've taken, they've taken things and they've turned it around, and it's beautiful. I just, I live probably the second closest to the plant other than Gonzalez, and I hear them constantly. I'm concerned that it's not specific, daylight hours. So when, so the people get there before the day begins, they make their noise and get ready, and then when the daylight finishes, then they leave. That's kind of not very specific. That's a lot of hours. That's more than half a day I would assume. But, the noises there, I don't know what the dBAs are because I don't have a meter, but I know I hear it every day. It wakes me up. I know that it's annoying. I know that it ruins the serenity of the area, and I also know that if we are to have a vibrant community once again in Pepe`ekeo, we need to be pono with that. People are not going to move there or stay there with this kind of noise. Thank you. TRASK: Thank you, Commissioners. Matt Trask again, a resident of Pepe`ekeo. I wish I could say I was born and raised here because it is just the most beautiful place I've ever been to. I am a sound and vibration analysis technician and environmental scientist. I got my training in the U.S. Navy. My father was in the military as well, so neither one of us had that luxury of living in the same place our whole lives. But, I feel that I need to defend this place as well, as any place I've ever been. With that, I want to lighten it up right now a little bit. I really do appreciate your folks' effort here, and I really do appreciate how Commissioners, and especially probably the staff, are constantly in the middle of these kind of conflicts, and we've always said that you know you're doing your job right when everybody is mad at you, right? So, and one other thing about the one percent, well, we've always joked in the noise industry that you could fire a gun off outside your window at night while you were sleeping, and you're not going to pass the one percent, but you're not going to sleep very well, either. I just want to comment on, I have worked with many power plant projects, and none of them had less restrictive noise operations as what you have proposed here. And, that's in many states and many countries. Even in Africa where I worked, they didn't allow noise, what, what's being proposed here. And, what I would suggest, just from my experience, is to require a noise model, or noise monitoring, a simple stationary noise monitor at the property line just to give real analysis showing what the noise level is. If they, if you have an exceedance, and there is an emergency, you know, that's all information, that would be good for you to, you know, determine what if anything to do in the future. And, that's the other part of it, almost every power plant project I've worked on, you have a formal noise complaint process where if somebody files a complaint, somebody must address that complaint within a certain amount of time, and that you also have a process for again looking at these issues. If it turns out that we're having these non -normal power plant operations all the time, something needs to be done. I've specifically worked on a project like that in the Geysers geothermal area in California. Those safety relief valves are lifting all the time, many times a night, and those things going off like a EXHIBIT D 14 grenade, louder than a shotgun, and you can be quite ways away and they will wake you up. I guarantee you. What they did there eventually was tie the steam systems of several plants together, and that absorbed a lot of shock, and they didn't get these, this release. But, there is a lot of other mitigation you can do on those steam relief valves to make them a lot quieter, and there is a lot of things you can do to make sure that they don't happen as often. So with that, thank you very much, and I'll pass the mic. LINCOLN: Aloha. Thank you for letting me speak today. My name is Linda Lincoln, and I live in Pepe`ekeo. I'm new to the area. We actually just moved back here. We were on Maui for 35 years, and decided to come back to the Big Island. We lived in Kona before, but chose Pepe`ekeo because it was special, was quiet. I asked about the power plant when we bought our property, and was told it was dead in the water. I didn't think I'd be here today. But, it's not dead, and you know, I'd like you guys to think if this was in your backyard, if you had to listen to two chippers all night long in your backyard. I mean, maybe when they first applied for permits, it wasn't surrounded by houses. It is now. You guys are putting a power plant in the middle of a neighborhood. And I just, I really don't get it, and. Thank you again. HARDEN: I'm Cory Harden again for Sierra Club, Moku Loa Group. Questions I hope you folks will ask, as this woman just eloquently asked, are louder sound levels fair to people who invested in homes in a residential area? As others have said, the agreement was to limit noise at all times. Also, it's been about five years since the initial permit was approved, and how come suddenly at the last minute we're talking, oh, the noises might go over that, and we want quick approval because we've got to get our tax break and we've got to get this and that, and putting pressure on you guys to make a quick decision. And, why is it happening this way? There is going to be louder sounds not only during construction but off and on for 30 years, from startup of the boiler after annual maintenance, startup of a boiler feedwater pump, startup of the brackish water well pumps, and steam release from the safety valve whenever power goes out, and we all know how HELCO is, so that happens more often than we want. There is also going to be logging trucks going in and out. I haven't heard how often exactly these louder sounds will occur and how long they will last. That could be better specified. I also wonder, is this still the same project that you approved way back when? With the accumulative impacts of the noise and the other changes, also the injection wells instead of the outfall, a new water and wastewater treatment building, they increased the power output, and it was going to be 20 years the plant would last, now it's going to last 30 years. Is this still the same project that you folks approved? Also, have they breached their agreement on noise? From listening to people, it sounds like they have. And, if so, what kind of consequences will you folks imposed? Thank you. ROBY: My name is Francine Roby and I live up on the Hamakua Coast, and I will probably be back at some future point because I'm really more concerned about the forest management and the damage to the roads from some of the larger trucks and all that's going to be happening. But, I come from a labor background, and I come from civilian law enforcement and labor laws, and these give me some lessons that I thought I wanted to contribute to this conversation today in hearing my fellow islanders. Sometimes there are conflicts between business purposes and human purposes, you know. They may be irreconcilable, they may be able to resolve, and we create laws and we create regulations so that we can kind of work around these things and say here's a compromise we can live with. But, I think the things you are hearing today are letting EXHIBIT D 15 us know that what we have working so far, or what we haven't placed so far, are not succeeding as compromises, and that there is one side of the equation that's losing, that the human interests are being subsumed to the business interest. There is not a conflict between what the community wants and what organized labor wants. We all want a quality of life to improve; we want our natural resources to be sustained; we want our energy sources to be green; we want jobs to thrive. Jobs are thriving here. But, we also recognize that we can be fooled by complexities and by intricacies of contracts and reports and by things that look like their offers to appeal to our better interest, and they may not be. When I had to enforce safety and health laws in the Labor Department about safe working conditions, one thing I learned was that when standards are derived that we apply to business practices, these standards are what got through the political process, you know, after the different lobbying groups all got their opinion on what should be the standard for how our safe work places should be. That means that's not ideal for human beings long term, and we see the consequences of workers who wind up at the end of their careers with serious illnesses and death and damage from standards that were met in the businesses that they worked in. So, we are all in the same canoe together. You guys may be helping us to steer where we're going. But, I think what you are hearing today is the community saying, you know, we see rocks ahead, we hear concerns, we hear the sounds out there that are making us know that we are not on the right path. And, I hope that you will listen to the community and respect this democratic process to try to change some of the positions that have been taken so far so that the community's interest can be upheld above the business interest. Mahalo. MARTIN: Good afternoon, ladies and gentlemen of the committee, Chairman Clarkson. Thanks for the opportunity. George Martin. I live in Laupahoe [Laupahoehoe]. Unfortunately, not quite Hamakua. It's North Hilo. Several concerns with regards to turning down reverse alarms. I'm a mechanic by trade. I work for Yamada & Sons, and we have regulations by MSHA not OSHA, and if I turned down one of those alarms, I'm gonna get gigged, and Mr. Yamada, God rest his soul, would have me wringed, if I did something like that. So, if you guys are doing that on the job site, please stop, because it's a safety issue, okay? And, my brothers and sisters out there working need to be safe. I heard somebody indicate that a power plant is being built in a neighborhood; unfortunately, people, your houses are being built next to a power plant that was there some 50 years before you got here. You're welcome to come, appreciate you being here, congratulations for getting your opportunity to be here, but you are on Ag land, it is a house. I understand it; I live on the same thing. We have family property. Coqui frogs. The decibels on coqui frogs is about 68 decibels, if they are outside your window TRASK: Constant. MARTIN: Constant TRASK: Not periodic. You can sleep with a constant. You can't sleep with the periodic. HO HALL: You had your time to speak. Please don't interrupt the testifier. MARTIN: Thank you, ma'am. I keep hearing under all conditions or at all times. I think I understood what was said. I didn't read the document. I'm not a lawyer. But, it says while or when the plant is running. The plant is not running. This is a construction phase. You all built EXHIBIT D 16 your houses out there. You had nail guns going off You dropped a two-by-four on a flat piece of cement. The decibels went way over 65 when you did that. You had trucks bringing in your equipment, your material, down that same road. Again, I understand the situation. I would think that the Commission does, too. When the plant is up and running, I believe I heard in some of the meetings prior to this that they will put onsite instruments to maintain and regulate and monitor noise. So, when it's up and running, I believe they will maintain what they promised to do. I would think that you guys should vote this thing in whatever direction is to kill it. Thank you. CLARKSON: Do any of the Commissioners have any questions for any of these testifiers? IKEDA: Chair, I have a question. CLARKSON: Okay. IKEDA: Mr. Martin? MARTIN: Yes, sir. IKEDA: Do you think that, you know, they agreed to not put on the Jake brakes, you know, it's how easy that—can they stop that? I know a jake brake slow your car down because used to own a business and we used jake brakes. MARTIN: There's actually new techniques that trucks have. There is no sound. Jacob brakes are not obsolete yet. They're still one of the better ways. What it does is it puts exhaust pressure back in the cylinder, make an engine turn slow IKEDA: I know MARTIN: Yeah, okay, so IKEDA: I used to own tractors, so I know, and the drivers like it because it makes a bup-bup- bup sound. MARTIN: Exactly. And there are ways of mitigating that also. IKEDA: Right, so this is one of the things that they can get by downshifting which, you know, I also know that can happen. MARTIN: Yeah, I think there's different techniques of driving. IKEDA: That's right. MARTIN: Different implementations on different types of equipment that would mitigate that sound. EXHIBIT D 17 IKEDA: Right, so, you know, they would get rid of some of the problem. I think it's just MARTIN: Sure IKEDA: consideration of the people that do it. MARTIN: Again, if that's a requirement that H Honua puts in place for the trucks that, you know, deliver the materials, that's fine, because, again, those trucks will not be per se Hu Honua. IKEDA: Yes, no, right MARTIN: They'll be contracted, too. IKEDA: Yeah, but, you know, I think that's part of the agreement that they have right now. MARTIN: Yes. IKEDA: So, you know, can they just have it done a little earlier so the gentleman can sleep or whatever it is? MARTIN: Well, as I understand it, and, again, I can talk to the other companies, the other unions that are represented out there right now, and have that definitely looked into. Not a problem. IKEDA: Yeah. CLARKSON: Any other questions for these testifiers. If not, thank you for your testimony. Please be seated. Is there anyone else who wishes to testify? These are all the people I have on my list. If not, I'll ask for a motion that public testimony be closed at this time. DELA CRUZ: So moved for public closing testimony. CLARKSON: Is there a second? REPLOGLE: Second. CLARKSON: It's been moved and seconded that public testimony be closed. Allthose in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Motion carried. Public testimony is closed. At this time, we have to have a discussion about a motion for action. Is there any questions from the Commission for the Applicant, the Petitioner, for this declaratory ruling? EXHIBIT D 18 IKEDA: Yes, I'd like to ask a question? Mr. Lee, can I ask you a question? It'sI'm not sure if I'm right, but I thought at one time, we discussed this with the other development. During your construction stages, isn't there any way to put some kind of noise mitigation? You know, like netting or something, because I think we did it at one time where we, you know, certain development that was going on, that they had some kind of noise regulation. LEE: During construction, we have some noise mitigation measures in place, and for more specifics, I'm going to turn it over to our general manager of operations, Kevin Owen, who needs to be sworn in by the way. So, he can give you more specifics. CLARKSON: Would you raise your right hand? Do you swear or affirm to tell the truth on these matters before the Commission today? OWEN: I do. CLARKSON: Would you please identify yourself and then proceed. OWEN: Kevin Owen. I'm the general manager at the site. Right now, we do have or are installing noise mitigation such as at the property boundary. We have also put up noise mitigation netting around the buildings and throughout other portions of the project. IKEDA: Well, you know, I knew there was noise mitigation devices, and I was just hoping that it was, you guys gonna put something up to help the neighbors, you know, and I hope it does help, them but I do understand it's going to make a lot of noise because I had some construction done, and it's quite noisy. OWEN: Yeah, it is in the process right now as we speak. CLARKSON: I was interested in the fact that even though you're not going to be allowed to use jake brakes coming down the Sugar Mill Road during operation, you are indeed allowing those to be used now during construction. Is there any overriding reason why you can't prohibit the drivers from using jake brakes right now? OWEN: I can say this. Yesterday, I was driving down the road. I heard the truck in front of me using jake brakes. I was going to talk to him about it, but he went straight down to the end of the road and turned in to the neighborhood, and CLARKSON: Wasn't your truck? OWEN: —Yes, it was not our truck, and I see that quite often. CLARKSON: So, have you instructed your truck drivers OWEN: —Yes. CLARKSON: not to use them? EXHIBIT D 19 OWEN: Yes, we have. CLARKSON: Any other questions before we entertain a motion? If not, thank you. At this time, we're going to have some discussion, but before we do that, I would like, I would like to explain a little bit about my understanding of what's going on here. Of course, I was not involved, none of us were involved in the original hearings for this project, but I do want to have Jeff display something here that shows to why in my mind, why it's not necessarily so cut and dry what "at all times" means. If you could show Findings of Fact 49 and 50 in the SMA 221? It might take you a while to find it. DARROW: Maija, it's going to be Exhibit 6. JACKSON: [Inaudible.] CLARKSON: Forty nine and fifty. Oh, one more page. HALL: Use the arrows, yeah. There you go. CLARKSON: There we go. So, you'll notice that in both of these Findings of Fact, and particularly in No. 50 which refers to the amended Condition No. 5 that everybody is talking about, it says Hu Honua will mitigate any noise related to the plant operations. So, right away, this Finding of Fact is tied directly to Condition No. 5, which is the one that has "at all times" in it. Then, one other thing that I saw when I was reading this voluminous Background Report was the Department of Health Rules, HAR 11-46 which is also referred to here, actually in Condition 5. Could you display Table 1 of the. DARROW: [Inaudible.] CLARKSON: Yeah. HALL: No. CLARKSON: No, there. There you go. So, Class A districts are residential districts, and this table in Class C are Industrial, which is the 70 dBA, and you'll notice that in Class A districts, or at least I noticed, in Class A districts, the daytime level the maximum permitted was 55, and the nighttime was 45. Now, it made sense to me that by saying "at all times," the SMA permit was requiring both daytime and nighttime to meet the 55 dBA level. They were actually giving a little bit of extra noise to the operation at night, because 45 dBA is barely above a whisper if you're close to it. EXHIBIT D 20 So, anyway, that was what struck me. There's one other thing I would like Jeff to show that I think is relevant here for me, and maybe for the other Commissioners, is in the same regulation, on the next page I believe or a couple of pages later, there are a number of things that are exempt from the noise regulations, and a lot of these are the things that people are complaining about. Backup alarms, emergency generators, construction in remedial activities. This refers to an emergency repair. So, it appears that an emergency repair doesn't even need a permit. It's exempt. You can go out there and try and put it back together if it was caused by a, damaged by a hurricane or some other storm. And, of course, you can have crowds cheering at football games, and those are exempt from noise regulations. If any—that's all I have to bring to the discussion. Does any other Commissioner have any persuasive points they would like to make about this issue? Any questions? If not, I would like a motion for some form of action on this petition. AUDIENCE MEMBER: Does it die with no motion? CLARKSON: We'll see. HALL: No, a ruling must be made according to the rules. CLARKSON: This would be Agenda Item 4 DELA CRUZ: Okay, Chair, I'd like to make a motion. I move that Condition 5 only applies to noise during the plant operation and does not include the noise procedure during the construction of the plant itself. IKEDA: I second. CLARKSON: It's been moved by Commissioner Dela Cruz and seconded by Commissioner Ikeda that a declaratory ruling to that effect be issued. Is there any further discussion? REPLOGLE: I would say I tend to agree with that, but on the other hand, you need to have good neighbors and to just go about it as hey, we can do it, make all the noise you want, if this passes, I sure hope you have a different—and to those people, I'm truly sorry, but, to make an omelet, you have to break eggs, and this got an approval to be put in to begin with. I, we're kind of—it would be great if Hu Honua could do everything in its capability to keep the noise down or something, because you can see they are suffering, and it may not be your fault or theirs or ours, but here we are. The best we can do I think is do the best we can by each other. That's all. CLARKSON: As part of this discussion, I mean, Commissioner Replogle, I believe, let me ask the Hu Honua people, you do now have a noise permit for construction from the DOH I assume. You do? [Wil Yamamoto/Warren Lee/Jodi Yamamoto/Kevin Owen nodded yes.] HALL: Let the record reflect that they're nodding in agreement. EXHIBIT D 21 CLARKSON: So, I'd just like to reassure Commissioner Replogle that they can't make all the noise they want. They're limited by their construction permit. REPLOGLE: I understand that. That was a poor selection of words. My main intent is that you're neighbors. That'sanyway, thank you. CLARKSON: And, I would like to reiterate that and hope that you take to heart the fact that you need to mitigate as much as possible construction noise, and even during normal operations. In my opinion, not try to include things that most people would consider normal operating circumstances as exceptional or emergency type operations. That's what I was trying to get at with the normal start-up and shut -down after outages. But, at this time, it's been moved by Commissioner Dela Cruz and seconded by Commissioner Ikeda. If there's no further discussion, any other questions or discussion on this? AGUINALDO: No, I'd just like to say I hear both sides, yeah, and maybe many of you have been quiet. Why? Cause I listen. I've been born and raised in Hawaii for 46 years. I grew up in the plantation area like that man right there putting on his glasses. [Referring to David Ordenstein in the audience.] My dad was a retired cane operator. Came from the Asian continent. I don't know what ship it was. What made Hawaii? Agriculture, plantation. What made the towns is our plantation. Everybody was born and raised in agriculture. So, I do hear both sides of the fence. I see this Hawaiian man over here. Came back to his grass roots. Only asking both parties have transparency to make things greater or better. Go exceedingly and abundantly. Sometimes we cannot please everybody to make everybody happy, but when we all go home at night, we can all assure ourselves, we did over and abundantly and exceeding. And, again, we cannot make everybody happy, but we find one happy medium. And, all day I hear concerns and I take it in. I absorb. Why? Not only you folks this is your home. I live here, and I will die here. So, the judgment call our panel will make, you know, and for you folks, always remember, you gotta love your neighbor `cause they're always going be there as well. You know, and as far as this jake brakes, I seen it myself in Waimea. They put placards. They go over—you no hear `em. You go down Kailua, you gotta turn `em off Why? You going down residential area. There are mitigations like Mr. Martin said, and I'm sure there's laws in place that is already in place, but if these gentlemen here putting up a power plant that going go over and beyond, eh, I happy for that. Why? Because, like this man said, it's pono. We not here for only our own interest. We here for have one good healthy environment that we live on. So, that's what I get to share today. That you know we gotta hold—we gotta hold to what we say `cause if not, going get more people like that going come on this table, right? I just wanted to share that. You know, gotta get peace, yeah? Gotta get peace. CLARKSON: Please call the roll. EXHIBIT D 22 DARROW: Thank you, Mr. Chairman. Before we call the roll, can I just ask for a clarification? The motion before us is that the noise, the 55 dBA limit that's referenced in Condition No. 5 is, applies only to plant operations and not to the construction of the plant, correct? So, it would help the Planning Department to, that the Applicant notify the Planning Department when construction of the plant is complete and so we are fully aware of when that time period starts, where we would begin to apply plant operation noise level. CLARKSON: Isn't there— DARROW: —And, again, this doesn't change the motion. It's just a request. CLARKSON: Isn't there going to be a permit to operate or someI don't think you get to start up a power plant any old time. Would you—the Planning Department is asking Hu Honua to notify the Planning Department when construction has ended and when normal operations begin. LEE: We certainly can, Warren Lee. We certainly can do that. There's many permits that, to be satisfied, we need to inform the person that issued it, yeah. So, we can do that. We can put that in as a condition, if you, if that makes it work better. DARROW: Thank you. It would just help us, so we are not always guessing as when that time period starts or ends. With that, we'll take the roll call. Commissioner Dela Cruz? DELA CRUZ: Aye. DARROW: Commissioner Ikeda? IKEDA: Aye. DARROW: Commissioner Aguinaldo? AGUINALDO: Aye. DARROW: Commissioner Raffipiy? RAFFIPIY: Aye. DARROW: Commissioner Replogle? REPLOGLE: Aye. DARROW: And Mr. Chairman? CLARKSON: Aye. DARROW: The motion passes, six to zero. EXHIBIT D 23 AUDIENCE MEMBER: Does this also include the non -normal operations? HALL: No. AUDIENCE MEMBER: We're only talking about construction. HALL: Only construction. AUDIENCE MEMBER: Non -normal operations stay the way it is. [Inaudible.] CLARKSON: Would the staff repeat the motion for the audience as made? DARROW: The motion was specific to that the noise condition referenced in Condition Number 5, referencing 55 dBA, applies only to plant operations and not to the construction of the plant, or during construction period. AUDIENCE MEMBER: So, the non -normal is essentially not approved? HALL: The motion is as it stands. It applies to construction [sic]. CLARKSON: No. Yeah, now, that, let's YAMAMOTO, J.: Hi, excuse me, Chair. If I could CLARKSON: Yes. YAMAMOTO, J.: Jodi Yamamoto. The second part of our petition was to request a clarification that the 55 dBA apply to normal plant operations. So, the first differentiation was between construction versus plant operations, and the second one was with respect to the difference between normal plant operations and other non -normal times. DARROW: If I could chime in on this. As Mr., as Chairman Clarkson had pointed out earlier, there are a number of exemptions within the noise rules, and those exemptions don't apply. I mean they don't apply for us as well. They're exempt. YAMAMOTO, J.: Okay, DARROW: So YAMAMOTO, J.: so, your point is those exemptions apply on the Department of Health side, as well as DARROW: Correct, yes. YAMAMOTO, J.: —for your condition. EXHIBIT D 24 DARROW: All of these noise levels, all of the applicability comes under their rules. The only thing that was referenced in our particular condition was the fact that instead of 70 dBA came down to 55. But, all the exemptions that are listed under DOH still apply. YAMAMOTO, J.: Okay, and will still apply under your Condition 5 as modif DARROW: That would be my understanding, but YAMAMOTO, J.: Okay. DARROW: —the Chairman will need to clarify. AUDIENCE MEMBER: Can we see those exemptions again? DARROW: Sure, we can put those up. Christian, I think it's going to go to 46-5, yeah, that's them there. CLARKSON: We can make a motion anytime we want until we adjournso, there's been a request by the Petitioner that their petition be clarified with an additional motion clarifying what constitutes, what the operations are that the 55 dBA condition and Condition 5 apply to, and I can see the point of the petitioner. One thing that we can point out is that Finding of Fact 49 requires them to operate within the parameter set by DOH to ensure safe operations and to minimize any potential adverse impacts on noise levels. Corporation Counsel has advised the Chair that all of the record discusses plant operations and does not make any distinction between normal operations, abnormal operations, emergency operations. So, clearly there is a distinction between construction and plant operations. But, I don't know if there is anything in the record that would allow us to declare distinctions in operations. YAMAMOTO, W.: I do, if it's okay, we'd like to make a clarification regarding one of the exemptions. So, Exemption No. 3 refers to activities related to the emergency maintenance and repair of State and County highways, parks and public utilities, including, but not limited to, etcetera, etcetera. Hu Honua is technically not a public utility; however, the plant is operating based on a contract with a public utility and must conform to whatever the public utility directs us to do. So, in other words if the public utility is per contract demanding that we supply them a certain amount of energy, the plant has to be operating to meet that amount of energy. The plant has to start up, for example. It has to, and if maintenance is required by the public utility and they demand that we shut the plant down and restart it up again, we have to do that. We have to comply. So, ultimately, the directions are going to come from the public utility when we do these type of emergency -related startup and shutdown activities, and includingincluding, you know, startup and shutdowns of the turbines, the hogging jet, and the boiler feedwater pumps and the brackish water well pumps. All that has to do with plant operations, and in order to meet the contract to supply energy to Hawaii Electric and Light, which is the public utility, we would have to do EXHIBIT D 25 those things. So, I don't know if Number 3 translates to an exemption for doing those limited types of activities, but I did want to point that out in case it's helpful to the Commission. CLARKSON: I think I can, if I can just say one thing about this, I would understand that an emergency trip, when the grid does down and the safeties blow and the boiler has to be protected, would certainly not be an event that would be considered operating the plant. In other words, this would not be part of plant operations. Now, what dBA level applies to that, I don't know whether the Commission is prepared to say. This may be something that has to be decided by the Department of Health under which this facility has to operate under their rules at all times anyway. We certainly cannot make a condition that violates State regulations, so. YAMAMOTO, J.: So, right, so our concern is with respect to this condition, right, and needing to operate within 55 dBA at all times. And, as you were saying, Chair, if there is an emergency and, you know, it is tripped and there is noise way above the 55, we want to make sure that that's not going to be seen as a violation of the SMA condition of the 55 dBAs, because it's not part of normal operations, like you were saying. Right, but, of course, we're, we're going to comply as we must with all of DOH's rules, and that's one of the conditions in our SMA permit. So, it is all wrapped in that way. CLARKSON: I think all I can say right now is that, is that the, upon advice of Corporation Counsel, the record distinguishes between plant operations and the construction period. But, what the gradations of operations there are is something that the record doesn't allow us to define at this time with any more exactness than that. That's all I can say. YAMAMOTO, J.: Thank you. CLARKSON: I think that concludes the Agenda Item No. 4. The discussion ended at 3:19 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT D 26