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LINDA LINGLE ! CHIYOME LEINAALA FUKINO, M. D.
60VERNOR OF HAWAII E,F ~ 1r~? DIRECTOR OF HEALTH
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STATE OF HAWAII
DEPARTMENT OF HEALTH
P.O, BO% 3378 In reply, please refer to:
HONOLULU, HAWAl19fi801-3378 File'.
July 27, 2005
WW l7lA Final Dec CL
D:CI wb050636
CER"TIFIED MAIL 7002 3150 0001 6551 0255
RETURN RECEIPT REQUESTED
Mr. Garrett Leong
Brown & Caldwell
1 ] 9 Merchant Street Suite 200
Honolulu, Hawaii J6813
Dear Mr. Leong:
Subject: Variance Application No. WW 171B
Docket No. OS-V WW-OSB
Transcontinental Development Company /Waikoloa Development Company
Use of Large Septic Tank at Waikoloa Development's King's Grille
150 Waikoloa Beach Drive
Waikoloa, Hawaii
TMK: (3) 6-9-008: 012
Please find enclosed the Department ofHealth's Decision and Order regarding the above mentioned
application for variance request which was GRANTED on JUL 2 5 2005 We are
enclosing for your information the Findings of Fact and Conclusions of Law.
Please note the variance conditions and if there are any questions relative to the variance, please do
not hesitate to contact Mr. Harold Yee, Chief of the Wastewater Branch at 586-4294, fax 586-4300;
or, if calling from the Big Island, at direct toll free telephone number 974-4000, ext. 64294.
Sincerel ,
THOMAS E. ARIZUM[,CHIEF
Environmental Management Division
Enclosures: Final Decision and Order
Findings of Fact and Conclusions of Law
Clean Water Branch
District Health Office -Hilo Cornet. ~'`l0._ ,~?~~!,1.._
Environmental Planning Office Rc3f. TO: ""~'°n""
Safe llrinking Water Branch ~
t~t~. L~ar~ ,~i,!_G ~
Department of Water -County of Hawaii ~ ~
yi`fawaii County Council
Wastewater i3ranch -Hilo Staff Engineer
STATE OF HAWAII
DEPARTMENT OF HEALTH
In the Matter of the Application ) Docket No. OS-VWW-OSB
Variance Application No. WW 171B )
for Individual Wastewater System )
Transcontinental Development Company / )
Waikoloa Development Company )
Use of Large Septic Tank )
at Waikoloa Development's King's Grille )
I50 Waikoloa Beach Drive )
Waikoloa, Hawaii )
TMK: {3) 6-9-008; 011 )
DECISION AND ORDER
Pursuant to Chapter 342D, Hawaii Revised Statutes, and Chapter 62 of Title 11,
Administrative Rules and based upon the application and staff review, the Variance Request
from the provisions of Chapter 11-62, Section 11-62-03 pertaining to the definition of an
individual wastewater system is hereby GRANTED with the following provisions:
1. Plans for each IWS shall be submitted to the Wastewater Branch for review and
approval before any construction begins. In addition, the IWS shall be approved
in writing before being placed into service.
2. Each septic tank shall be fitted with an effluent filter(s).
3. All food wastes from commercial kitchens shall be pretreated following
applicable county codes before it enters the proposed septic system.
4. The project shall connect to the Waikoloa sewer system when it become available
to the area.
5. The proposed seepage pits shall be properly registered/pennitted by the
Department's Underground Injection Control program.
DATED: Honolulu, Hawaii, ~ 5
Thomas E. Arizumi, P.E.
Chief, Environmental Management Division
STATE OF
DEPARTMENT OF HEALTH
in the Matter of the Application ) Docket No. 05-V WW-OSB
Variance Application No. WW 171B )
for Individual Wastewater System )
Transcontinental Development Company / )
Waikoloa Development Company )
Use of Large Septic Tank at )
Waikoloa Development's King's Grille )
150 Waikoloa Beach Drive )
Waikoloa, Hawaii ~
TMK: (3) 6-9-008: 011
FINDINGS OF FACT AND CONCLUSIONS OF LAW
An application from Brown & Caldwell, of 119 Merchant Street, Suite 200, Honolulu,
Oahu, Hawaii, representing Transcontinental Development Company/Waikoloa Development
Company, for afive-year variance from Hawaii Administrative Rules, Chapter 62 of Title 11,
Section 11-62-03 pertaining to the definition of an individual wastewater system was reviewed
by the Department of Health staff, and a public notice of the application was printed in the April
27, 2005 issue of the Honolulu Star Bulletin and in the May 1, 2005 issue of the West Hawaii
Today publications. Four (4) Department of Health agency comments and one (1) public
comment pertaining to the application were received during the 30 days following the
publication of the public notice.
Findin sQ of Fact
The applicant, Transcontinental Development Company /Waikoloa Company located at
150 Waikoloa Beach Drive, Waikoloa, Hawaii has applied for afive-year variance from
the Hawaii Administrative Rules (HAR), Section 11-62-03 pertaining to the definition of
an individual wastewater system for the Waikoloa King's Grille Maintenance Building.
Transcontinental Development Company /Waikoloa Company is requesting the variance
from Section 11-62-03, as the wastewater flows from the Waikoloa King's Grille exceeds
the 1,000 gallons per day maximum flow that can be treated by an individual wastewater
system (IWS). The maximum flow from the facility is estimated at 1,940 gallons per
Waikola King's Grille -Variance Application WW 171 B, Docket No. OS-V W W-0SB,
Findings of Fact and Conclusions of law, Page I
day. The applicant is requesting the use of a large septic tank to receive and treat the
wastewater flows from the King's Grille restaurant establishment at the Waikoloa Golf
Course.
The applicant has made the following statements.
1. Requested variance is for HAR Section 11-62-03: The projected flow exceeds
1,000 gallons per day. The projected maximum flow is estimated at 1,940 gallons
per day.
2. The existing large capacity cesspool(s) needed to be closed and replaced with a
new treatment individual wastewater system on or before April 5, 2005 in order to
comply with federal requirements.
3. The current State requirement of a wastewater treatment plant would significantly
add to the construction cost as well as require a much greater ongoing
maintenance cost.
4. The facility has been in operation for 14 years in this location using the existing
cesspool. The existing cesspool is located below grade between the golf
clubhouse and the 18`h green of the golf course. The installation of a wastewater
treatment plant would have to located above grade and in view of resort golfers.
This resort golf course depends heavily on providing an aesthetically pleasing
facility and there is no location on site that would be out of view of golfers.
Customers to the golf course would likely be reduced.
5. The applicant believes this variance request is in the public interest because the
LCC will be upgraded to an IWS (septic system). The IWS plans will be
designed by an engineer and will be submitted to DOH for review and approval.
The new IWS will provide a better wastewater treatment system compared to the
existing LCC. Therefore minimize impact to the environment.
6. The LCC serving this facility has been in operation for 14 years. The current
State requirements of a wastewater treatment plant would significantly add to the
construction cost, as well as require a much greater ongoing maintenance cost.
The owner maybe forced to close my existing business and lay off my
employees.
7. The existing LCC will be upgraded to an IWS (septic system). The IWS (septic
system) will provide a better treatment system prior to effluent disposal. The
IWS will he designed and constructed to meet the Department of Health
standards. The impact to the environment will be minimized compared to the
current wastewater disposal.
Waikola Kmg's Grille -Variance Application W W I71 B, Docket No. OS-V W'W-OSH,
Findings o(Fact and Conclusions of law, Page 2
8. The owner of the facility simply cannot afford to build and operate wastewater
systems meeting all the requirements ofHAR Chapter I1-62 such as small
aerobic wastewater treatment plants.
9. Although the location of the facility is not physically restrictive, the potential
locations for an aesthetically acceptable facility is severely restrictive. This resort
golf course depends heavily on providing an aesthetically pleasing facility, and
there is no location on site that would be out of view of golfers. Customers to the
golf course would likely be reduced.
0. The variance is requested for the maximum of five (5) years.
1 1. A photo (King's Grille and Pro Shop sites) has been attached but cannot be
displayed here.
The following Department of Health agencies submitted the following comments:
A. The Clean Water Branch recommends to deny this variance application stating
that the subject project should connect to the regional sewer system.
B. The District Health Office -Hilo recommends the granting of this variance
application.
C. The Safe Drinking Water Branch submitted the following comments:
1. The site is located below the Underground Injection Control (UIC) line.
There are no program-recorded drinking water wells within 1/4 mile of the
facility.
2. Because the proposed improvement is being driven by the federal ban on
large-capacity cesspools, we have no objection to granting the variance;
and
3. The public notice should have explicitly stated that the cesspools are
going to be used as seepage pits. A UIC permit application has been
submitted to register the cesspools as seepage pits.
Please contact Norris Uehara at telephone (808)586-4258 if you have any
questions.
D. 'The Wastewater Branch submitted the following comments:
1. Plans for each IWS shall be submitted to the Wastewater Branch for
review and approval before any construction begins. In addition, the
R'm kola King's Gri Ile -Variance Application W W 171 B, Docket No. OS-V W W-OSB,
Findings of Fact and Conclusions of Caw, Page 3
treatment IWS shall be approved in writing before being placed into
service.
2. Each septic tank shall be fitted with an effluent filter(s).
3. Al] food wastes from commercial kitchens shall be pretreated following
applicable county codes before it enters the proposed septic system.
4. The project shall connect to the Waikoloa sewer system when it become
available to the area.
E. One public comment was received from Mr. David Kimo Frankel, P.O. Box 1185,
Volcano, Hawaii 96785, dated May 3, 2005 regarding Variance Application Nos.
WW 171 A, 171B and 1761 C, Docket Nos. OS-VWW-056A, B and C.
I am writing to urge that you deny the three wastewater variance applications
submitted to you by the Waikoloa Development Company (as published in the
May 1, 2005 West Hawaii Today) for the clubhouse/restroom facilities of the
Waikoloa Golf Course, the King's Grill Restaurant at the Waikoloa Golf Course,
and the Grounds Maintenance building at the Waikoloa Golf Course.
To begin, let me urge you to consider the three applications together. They have
been submitted by the same applicant for the same location for the same project:
the Waikoloa Golf Course. It is a fundamental tenant of environmental law, that
projects should not be segmented to avoid proper analysis.
When several proposals that will have a cumulative or synergistic
environmental impact upon a region are pending concurrently before an
agency, their environmental consequences must be considered together.
Only through comprehensive consideration of pending proposal can the
agency evaluate different courses of action.
Kleppe v. Sierra Club, 427 U. S. 390 (1976)
When these applications are viewed together - or even if they are looked
at piecemeal -you will find that they do not meet the criteria laid out in
H.R.S. §342D-7. The law provides:
No variances shall be granted by the department unless the
application and the supporting information clearly show that:
(1) The continuation of the function or operation involved
in the discharge of waste occurring or proposed to occur by
the granting of the variance is in the public interest as
defined in section 342D-6;
Wafkola Kings Grille-Variance Application W W 1716, Docket No. OS-VWW-05B,
Findings o(Fact and Conclusions ur Caw, Page 4
(2) The discharge occurring or proposed to occur does not
substantially endanger human health or safety; and
(3) Compliance with the rules or standards from which
variance is sought would produce serious hardship without
equal or greater benefits to the public.
In determining the "public interest,"
the director shall consider the environmental impact of the
proposed action, any adverse environmental effects which cannot
be avoided should the action be implemented, the alternatives to
the proposed action, the relationship between local short-term uses
of the environment and the maintenance and enhancement of long-
term productivity, any irreversible and ittetrievable commitments
of resources which would be involved in the proposed action
should it be implemented, and any other factors which the director,
by rule, may prescribe; provided that any determination of public
interest shall promote the optimum balance between economic
development and environmental quality.
It is hard for me to understand how variances from the public's
wastewater rules aze in the public interest; or how the discharge of
wastewater into an individual septic system instead of a real wastewater
facility benefits the environment of the public.
We know that lava in the area is porous and will allow sewage to seep into
coastal waters. The Land Use Commission hearing o the TSA
reclassification petition revealed the great threat posed by wastewater to
coastal waters.
Please consider the benefits of requiring a wastewater facility. A well-
designed facility would not only reduce the pollution flowing into our
water table and coastal waters, but it would also provide water that could
be used to irrigate the golf course. A wastewater facility designed as a
"living machine" would provide aesthetic amenities as well.
Please ask the Waikoloa Development Company to provide you a detailed
financial disclosure. The company is not anon-profit, or aloes-income
retiree. This is a major company with the financial ability to protect the
public's water from its pollution. I'm not sure how this company, which
has made huge profits from its development activities, can honestly
declare that it cannot afford to build and operate a wastewater system.
Waikola King's Grille-Variance Applicafion W W 171 B, Docket No. OS-V W W-OSI3,
Findings of Facl and Conclusions o(law, 1'agc 5
Finally, please consider the alternative of having the Waikoloa Golf
Course hook up to the very nearby wastewater system.
Sincerely,
David Kimo Frankel
Conclusions of Law
Chapter 342D, Hawaii Revised Statutes, Section 342D-7(c), states that no
variance shall be granted by the Department unless the application and supporting
information clearly show that:
1. The granting of the variance is in the public interest as defined in the Hawaii
Revised Statutes, Section 342D-6(c)(4).
2. The granting of this variance will not substantially endanger human health or
safety.
3. Compliance with the rules, regulations or standards from which the
variance is sought would produce serious hardship without equal or greater
benefits to the public.
Based upon the foregoing findings of fact, it is concluded that the above requirements
have been met.
Comment and Recommendation
Based upon the foregoing findings of fact and conclusions of law, it is my
recommendation that the variance request be GRANTED with the following conditions:
1. flans for each IWS shall be submitted to the Wastewater Branch for review and
approval before any construction begins. In addition, the IWS shall be approved
in writing before being placed into service.
2. Esach septic tank shall befitted with an effluent filter(s).
3. All food wastes from commercial kitchens shall be pretreated following
applicable county codes before it enters the proposed septic system.
4. The project shall connect to the Waikoloa sewer system when it become available
to the area.
W a~kola Kfng's Grille -Variance Application W W 171 B, Docket No. OS-V W W-OSB,
Findings of Fact and Conclusions of law, Paga 6
5. The proposed seepage pits shall be properly registered/permitted by the
Department's Underground Injection Control program.
DATED: Honohdu, Hawaii, JUL 2 5 2005
/
Thomas E. Arizumi, P.F.
Chief, Environmental Management Division
The foregoing findings of fact and conclusions of law are hereby adopted.
W afkola King's (inlle -V anance Application W W 171 B, Docket No. OS-V W W-058,
Findings oC Fact and Conclusions of law, Paf;e 7
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