HomeMy WebLinkAboutCOM 0030.000 2006-2008LINDA LINGLE
GOVERNOR OF HAWAII
STATE OF HAWAII
DEPARTMENT OF HEALTH
PO, BOX 3378
HONOLULU, HAWAII 96801-3378
November 28, 2006
CERTIFIED MAIL 70051160 0001 8381 4168
RETURN RECEIPT REQUESTED
Mr. Peter J.K. Dahlberg
Civil Engineer
77-6238 C Mamalahola Highway
Holualoa, Hawaii 96725
Dear Mr. Dahlberg:
CHIYOME LEINAALA FUKINO, M.D.
DIRECTOR OF HEALTH
Hgleply, please refer to:
1=. File:
227 .NAL DEC CL
M Wb61238
Subject: Variance Application NO. WW 227 Docket No. 06-VWW-16
The Blue Dolphin Bar & Restaurant, (Owner: Touching the Earth, LLC)
Use of Individual Wastewater Systems on lot less than 10,000 sf
61-3616 Kawaihae Road, Kawaihae, Hawaii
TMK: (3) 6-1-002: 064 3,597 square feet
Please find enclosed the Department of Health's Decision and Order regarding the above
mentioned application for variance request which was GRANTED on
November 21, 2006 for five (5) years. 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 our direct
toll free phone number 974-4000 ext. 64294, fax (808) 586-4300.
Sincere y,
THOMAS E. ARIZUMI, HIEF
Environmental Management Division
Enclosures: Final Decision and Order
Findings of Fact and Conclusions of Law
c: Clean Water Branch
Environmental Planning Office
Safe Drinking Water Branch
Wastewater Branch - Kona Staff Engineer
✓f)epartment of Water Supply - County of Hawaii
District Health Office - Hilo
Mr. Bennett Dorrance, Jr. O
Comm. No.
Ref. TO- �wAC
Ref. Dote �l r I I LulJu
-
Subject: Variance Application NO. WW 227 Docket No. 06-VWW-16
The Blue Dolphin Bar & Restaurant, (Owner: Touching the Earth, LLC)
Use of Individual Wastewater Systems on lot less than 10,000 sf
61-3616 Kawaihae Road, Kawaihae, Hawaii
TMK: (3) 6-1-002: 064 3,597 square feet
Please find enclosed the Department of Health's Decision and Order regarding the above
mentioned application for variance request which was GRANTED on
November 21, 2006 for five (5) years. 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 our direct
toll free phone number 974-4000 ext. 64294, fax (808) 586-4300.
Sincere y,
THOMAS E. ARIZUMI, HIEF
Environmental Management Division
Enclosures: Final Decision and Order
Findings of Fact and Conclusions of Law
c: Clean Water Branch
Environmental Planning Office
Safe Drinking Water Branch
Wastewater Branch - Kona Staff Engineer
✓f)epartment of Water Supply - County of Hawaii
District Health Office - Hilo
Mr. Bennett Dorrance, Jr. O
Comm. No.
Ref. TO- �wAC
Ref. Dote �l r I I LulJu
STATE OF HAWAII
DEPARTMENT OF HEALTH
In the Matter of the Application ) Docket No. 06-VWW-16
Variance Application No. WW 227 )
for Individual Wastewater System )
The Blue Dolphin Bar & Restaurant )
Owner: Touching the Earth, LLC )
Use of Individual Wastewater Systems )
on Lot Loss than 10,000 square feet )
61-3616 Kawaihae Road )
Kawaihae, Hawaii )
TMK: (3) 6-1-002: 064 )
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, Section 11-62-
31.1(a)(2)(A) and Section 11-62-31.1(a)(2)(D) is hereby GRANTED for five (5) years
with the following provisions:
Plans for each treatment IWS shall be submitted to the Wastewater
Branch for review and approval before any construction begins. In
addition, the treatment IWS shall be approved in writing before being
placed into service.
2. If a septic tank used, it shall be fitted with an effluent filter.
3. Pretreatment of all food waste wastewater shall be provided prior to
entering the septic system. Pretreatment shall meet the requirements of
Chapter 11-62.
4. No building modifications, alterations or additions will be allowed that will
increase wastewater flows over the existing design flow of 1,400 gallons
per day. The owners shall execute and file a covenant on the property
stating that no increase in the wastewater flow is allowed without the
written consent of the Department of Health. The covenant shall run with
the title to the property and shall be binding upon parties and their
respective heirs, successors, and assigns.
Touching the Earth LLC Variance Application WW 227, Docket No. 06-VWW-16, Decision & Order, Page 1
5. The covenant or warranty deed shall be recorded with the State of Hawaii
Bureau of Conveyance. A copy of the covenant shall be provided to the
Department of Health.
6. If a soil absorption bed /leach lines are used for effluent disposal, the
existing cesspools shall be abandoned per the requirements of the
Underground Injection Control program of the Safe Drinking Water
Branch. If the existing cesspool(s) is used as a seepage pit(s) for the
wastewater system, the seepage pit(s) shall be properly permitted by the
Underground Injection Control program.
7. The project shall connect to the County sewer service system should it
become available to the area.
DATED: Honolulu, Hawaii, November 21. 2006
�/��' 14k�l-`—
THOMAS E. ARIZUMI, . ., CHIEF
Environmental Management Division
Touching the Earth LLC Variance Application WW 227, Docket No. 06 -VW W-16, Decision & Order, Page 2
STATE OF HAWAII
DEPARTMENT OF HEALTH
In the Matter of the Application
Variance Application No. WW 227
for Individual Wastewater System
The Blue Dolphin Bar & Restaurant
Owner: Touching the Earth, LLC
Use of Individual Wastewater Systems
on Lot Loss than 10,000 square feet
61-3616 Kawaihae Road
Kawaihae, Hawaii
TMK: (3) 6-1-002: 064
Docket No. 06-VWW-16
FINDINGS OF FACT AND CONCLUSIONS OF LAW
An application from the Touching the Earth, LLC, c/o Bennett Dorrance Jr. of Hawi,
Hawaii, for a five (5) year variance from Hawaii Administrative Rules, Chapter 62 of Title 11,
Section 11-62-03, Section 11-62-31.1(a)(2)(A) and Section 11-62-31.1(a)(2)(D) was reviewed
by the Department of Health staff. A public notice of the application was printed in the
September 9, 2006 issue of the Honolulu Star Bulletin and the September 13, 2006 issue of the
West Hawaii Today publications. Three (3) comments pertaining to the application were
received during the 30 days following the publication of the public notice.
Findings of Fact
The individual authorized to act for the applicant, Mr. Peter Dahlberg, Civil Engineer of
Holualoa, Hawaii, has applied for a five (5) year variance from the Hawaii Administrative Rules
(HAR), Section 11-62-03 Definitions which states "Individual wastewater system means a facility
which is designed to receive and dispose of no more than 1000 gallons per day of domestic
wastewater. Individual wastewater systems may involve treatment processes and include, but
are not limited to, septic tanks and household aerobic units with disposal system and cesspools.
Each individual wastewater system shall be an independent system and shall have all of its
plumbing, treatment (if any), and disposal components separate from any other wastewater
system.", Section 11-62-31.1(a)(2)(A) which states "Developments involving buildings other
than dwellings. The wastewater flow generated shall not exceed 1000 gallons per day per
10,000 square feet of usable land area which shall not include the area under the buildings."
and Section 11-62-31.1(a)(2)(D) which states "The total wastewater flow into each individual
wastewater system shall not exceed 1,000 gallons per day."
Touching the Earth LLC Variance Application WW 227, Docket No, 06 -VW W-16
Findings of Fact and Conclusions of Law, Page 1
The applicant is requesting the use of an individual wastewater system on a property of
3,597 square feet, with estimated flow of 1,400 gallons per day from the Blue Dolphin Bar &
Restaurant (Owners: Touching the Earth, LLC), an existing bar/restaurant located at 61-3616
Kawaihae Road, Kawaihae, Hawaii, TMK: (3) 6-1-002: 064.
The applicant has submitted the following comments:
1. The area of the lot is 3,597 square feet. This is insufficient to meet the minimum
land area requirements for IWS utilization which is one IWS per 10,000 square
feet of lot area.
2. The septic system proposed to serve the facility would not comply with HAIR
Section 11-62-03 because the IWS would receive more than 1,000 gallons per
day of wastewater. The estimated flow into the system would be 1,400 gallons
per day.
3. The existing large capacity cesspool(s) must be closed and replaced with a new
treatment individual wastewater system by April 5, 2005 in order to comply with
federal requirements.
4. 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.
5. The facility has been in operation for 20+ years in this location using the existing
cesspool. The installation of a wastewater treatment plant in lieu of a septic
system will not be possible due to space restrictions and may force the owner to
abandon the business operation.
6. The applicant believes this variance request is in the public interest because the
LCC will be upgraded to an IWS (aerobic 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 minimizes impact to the environment.
The existing LCC will by upgraded to an IWS (aerobic system). The IWS
(aerobic system) will provide a better treatment system prior to effluent disposal.
The IWS will be designed and constructed to meet the Department of Health
standards. The impact to the environment will be minimized compared to the
current wastewater disposal.
8. The proposed treatment individual wastewater systems will provide greater
protection than the large capacity cesspools. The proposed IWS is an
improvement to the existing cesspool in terms of wastewater treatment. The
aerobic tank will provide pretreatment and sludge removal prior to effluent
disposal.
Touching the Earth LLC Variance Application WW 227, Docket No. 06 -VW W-16
Findings of Fact and Conclusions of Law, Page 2
9. The existing location of the facility is severely restrictive. There is simply no
space to construct a wastewater treatment plant.
10. The variance is requested for the maximum of five (5) years.
The following agencies submitted the following comments:
The Clean Water Branch submitted the following comment:
Has no objection to the granting of this variance application,
The Safe Drinking Water Branch submitted the following comments:
A. Review item No. 7 of the public notice for accuracy; clarify and correct
use of the term septic versus aerobic;
B. The property is situated "makai" or below the Underground Injection
Control (UIC) line. Land areas below the UIC line, in general, overlie
aquifers that are not an underground source of drinking water for injection
well regulatory purposes;
C. UIC permitting is applicable to any injection - well cesspool being retained
as injection -well seepage pit that receives over 1,000 gallons of
wastewater per day, on any given day. Operating any such injection -well
seepage pit without a UIC permit is a violation of Chapter 11-23 and is
subject to applicable penalties and corrective action. The ownerloperator
of the injection -well seepage pit must contact the UIC program at
(808)586-4258 for a UIC permit application;
D. Because the variance is being driven by the federal ban on large -capacity
cesspools, we have no objection to granting the variance; and
E. If a variance is granted, appropriate conditions should be imposed to
insure proper operation and maintenance of the aerobic system.
Please contact Jamie Rimando at telephone (808)586-4258 if you have any
questions.
3. The Wastewater Branch states that there is no existing sewer service system
available for connection and therefore recommends the granting of this variance
application with the following conditions:
A. Plans for each treatment individual wastewater system (IWS) - aerobic
system - shall be submitted to the Wastewater Branch for review and
approval before any construction begins. In addition, the treatment IWS
shall be approved in writing before being placed into service.
Touching the Earth LLC Variance Application WW 227, Docket No. 06 -VW W-16
Findings of Fact and Conclusions of Law, Page 3
B. If a soil absorption bed or trenches are used for effluent disposal, the
existing cesspools shall be abandoned per the requirements of the
Underground Injection Control program of the Safe Drinking Water
Branch.
C. The project shall connect to the County sewer service system should it
become available to the area.
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 for five (5) years with the following
conditions:
Plans for the treatment IWS shall be submitted to the Wastewater Branch for
review and approval before any construction begins. In addition, the treatment
IWS shall be approved in writing before being placed into service.
2. If a septic tank used, it shall be fitted with an effluent filter.
3. Pretreatment of all food waste wastewater shall be provided prior to entering the
septic system. Pretreatment shall meet the requirements of Chapter 11-62.
4. No building modifications, alterations or additions will be allowed that will
increase wastewater flows over the existing design flow of 1,400 gallons per day.
The owners shall execute and file a covenant on the property stating that no
increase in the wastewater flow is allowed without the written consent of the
Touching the Earth LLC Variance Application WW 227, Docket No. 06 -VW W-16
Findings of Fact and Conclusions of Law, Page 4
Department of Health. The covenant shall run with the title to the property and
shall be binding upon parties and their respective heirs, successors, and assigns.
5. The covenant or warranty deed shall be recorded with the State of Hawaii
Bureau of Conveyance. A copy of the covenant shall be provided to the
Department of Health.
6. If a soil absorption bed /leach lines are used for effluent disposal, the existing
cesspools shall be abandoned per the requirements of the Underground Injection
Control program of the Safe Drinking Water Branch. If the existing cesspool is
used as a seepage pit for the wastewater system, the seepage pit(s) shall be
properly permitted by the Underground Injection Control program.
7. The project shall connect to the County sewer service system should it become
available to the area.
DATED: Honolulu, Hawaii, November 21. 2006
� � l
THOMAS E. ARIZUMI, R ., CHIEF
Environmental Management Division
The foregoing findings of fact and conclusions of law are hereby adopted.
Touching the Earth LLC Variance Application WW 227, Docket No. 06-V W W-16
Findings of Fad and Conclusions of Law, Page 5
Transmittal Date: i
Wastewater Branch Variancq Application Docket o. - VWW - APP a WW
Name/Title: Q
Subject: Final Signed Decistorkover Letter, Signed Decision 8r Order & Findings of Fact 8r Conclusions of Law
malawkimbl.l
I I
un e/'T1nm RROi1LRFD-
Here is the FINAL SIGNED Decision & Order and Findings of Fact 8r Conclusions of Law,
X The attached is for your information to file or discard at your discretion. No action is required.
Thank you for your assistance in the variance
From: Mr. Harold Yee, Chief, Wastewater Branch
919 Ala Moana Blvd. Room 309
Honolulu, Hawaii 96814-4920
phone (809) 586-4294 fax (SOS) 586-4300
2006 variance route slip - final decision.doc as of 06/15/2006 vww
Director of Health - Chiyome Leinaala Fukino
Deputy Director for Environmental Health Administration - Laurence Lau
Chief, EMD - Thomas & Arizumi
Attorney General's Office, AG Mark Bennet, Deputy Mark McConneL D Bill Cooper
Clean Water Branch - Denis Lau •
Environmental Planning Office - Kelvin Sunada
Safe Drinking Water Branch - Stuart Yamada .
Sanitation Branch - Commercial Properties Only
Wastewater Branch Staff Personnel
Kona - Dane 14iromasa (TMKs 5, 6, 7, S, 9)
[ 1 Hilo -Jerry Nunogawa (TMKs 1, 2, 3, 4)
I 1 Kauai -
[ ] Maui - Roland Tejano
[ ] Oahu - Johnng Ong
Water Departments
J[
I Board of Water Supply - Clifford Lum
[;j,Countg of Hawaii Dept of Water Supply - Milton Pavao
[ ] County of Maui Dept of Water Supply - George Y. Tengan
[ 1 Kauai County De artment`of Water - Edward Tachupp
[ ] District Health Office - Maui - Herbert Matsubayashi, Chief Sanitarian
[ 1 District Health Office - Kauai - Clyde Takekuma, Chief Sanitarian
C>QDistrict Health Office - Hilo - Aaron Ueno, Chief Sanitarian
City 8r Count of Honolulu, Department of Planning $ Permitting
County of 1 I Council
Oahu Neighborhood Board A
I I
un e/'T1nm RROi1LRFD-
Here is the FINAL SIGNED Decision & Order and Findings of Fact 8r Conclusions of Law,
X The attached is for your information to file or discard at your discretion. No action is required.
Thank you for your assistance in the variance
From: Mr. Harold Yee, Chief, Wastewater Branch
919 Ala Moana Blvd. Room 309
Honolulu, Hawaii 96814-4920
phone (809) 586-4294 fax (SOS) 586-4300
2006 variance route slip - final decision.doc as of 06/15/2006 vww