HomeMy WebLinkAboutCOM 0423.000 2008-2010LINDA LINGLE
GOVERNOR OF HAWAII
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STATE OF HAWAII
DEPARTMENT OF HEALTH
P O. 60X 3376
HONOLULU, HAWAII 96601
June 2, 2009
Mr. Theodore Baldau
Vice President
RT Engineers, Inc.
P.O.Box 390628
Kailua-Kona, Hawaii 96739
Dear Mr. Baldau:
CHIVOME LEINAALA FUKINO, M.D.
DIRECTOR OF HEALTH
In reply, please refer ro:
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Subject: Variance Application No. WW 302 Docket No. 09-VWW-05
Application for Variance -Regarding Individual Wastewater System
Hawaii Island Community Development Corporation
Kumakua Affordable Housing Project Phase II -Request using Ihdividual
Wastewater Systems (IWSs) on Lots less than 10,000 square feet on
Akoni Pule Highway, Kapaau, Hawaii TMK: (3) 5-5-008: 046
Please find enclosed a draft of the Decision and Order regarding the above mentioned
application for variance request. We are also enclosing for your information the Findings
of Fact and Conclusions of Law.
If you disagree with our proposed decision, please call Mr. Tomas See, Branch Chief of
the Wastewater Branch at our direct toll free phone numner 974-4000 ext. 64294, fax
(808) 586-4300 no later than the close of business on Friday June 26, 2009. If we do not
hear from you by the above date, the draft will be finalized. If you wish to discuss our
decision and add any additional information, please call our office before the above date.
Sincerely,
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THOMAS E. ARIZUMI, P.E., IEF
Environmental Management Division
Enclosures: Draft Decision and Order
Draft Findings of Fact and Conclusions of Law
c: Applicant -Hawaii Island Community Development Corporation
Clean Water Branch
Safe Drinking Water Branch
Wastewater Branch -Kona Staff Engineer
Department of Water Supply -County of Hawaii Comm. No.___._~__
District Health Offce -Hilo Ref. To:
~1-iawaii County Council R@f~ p~}e ~dN 19 ~Q~j-
STATE OF HAWAII
DEPARTMENT OF HEALTH
In the Matter of the Application ) Docket No. 09-VV~1W-05
Variance Application No. WW 302 )
for Individual Wastewater System )
Hawaii Island Community Development )DRAFT -SIGNATURE NOT REQUIRED
Corporation -Kumakua Affordable )
Housing Project Phase II )
For Lots Less Thank 10,000 square feet )
On Akoni Pule Highway, Kapaau, )
Hawaii TMK (3) 5-5-008: 046 )
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 11-62-31.1(a)(1)(A), 11-62-
31.1(a)(1)(C) and 11-62-32 is hereby GRANTED for five (5) years with the following
provisions:
1. Plans for each IWS must be submitted to the Wastewater Branch for
review and approval at the time of building permit application. In addition,
the IWS must be approved in writing before it may be used.
2. The type of wastewater system to be used shall be at the minimum a
septic tank system with a shallow soil absorption disposal system unless
site conditions prevent it use.
3. For properties to be located within the 1000 feet radius of the Hawi
potable water well, the soil absorption disposal system should be located
as far as possible away from the well.
4. Only one (1) individual wastewater system (IWS) will be allowed per lot.
The type of wastewater system to be used shall conform to the provisions
of Hawaii Administrative Rule, Chapter 11-62 in effect at the time of
building permit application.
5. No further subdivision will be allowed within a 1000 feet radius of any
potable water well. Future subdivisions may be allowed with the written
approval of the Director of Health provided that all applicable provisions of
Chapter 11-62, HAR in effect at the time of subdivision application are
met.
Kumakua Affordable Housing Phase II -Variance Application WW 302, Docket No. 09-VWW-05
Decision & Order Page 1
6. The project shall connect to the County sewer service system should it
become available to the area.
7. There is no automatic renewal. Should applicant wish to renew his
variance application, applicant must submit an Application for Variance for
renewal.
DATED: Honolulu, Hawaii,
Draft -Signature NOT required.
THOMAS E. ARIZUMI, P.E., CHIEF,
Environmental Management Division
;; .
Kumakua Affordable Housing Phase II -Variance Application WW 302, Docket No. 09-VWW-O5
Decision & Order Page 2
STATE OF HAWAII
DEPARTMENT OF HEALTH
In the Matter of the Application )
Variance Application No. WW 302 )
for Individual Wastewater System )
Hawaii Island Community Development )
Corporation -Kumakua Affordable )
Housing Project Phase II )
For Lots Less Thank 10,000 square feet )
On Akoni Pule Highway, Kapaau, )
Hawaii TMK (3) 5-5-008: 046 )
Docket No. 09-VW!N-05
DRAFT -SIGNATURE NOT REQUIRED
FINDINGS OF FACT AND CONCLUSIONS OF LAW
An application from Hawaii Island Community Development Corporation, 100 Pauahi
Street #240, Hilo, Hawaii 96720 for a five (5) year variance from Hawaii Administrative Rules,
Chapter 62 of Title 11, Sections 11-62-31.1(a)(1)(A), 11-62-31.1(a)(1)(C)and 11-62-32 was
reviewed by the Department of Health staff. A public notice of the application was printed in the
April 29, 2009 issue of the Honolulu Star Bulletin and the April 29, 2009 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:
Findinos of Fact
The individual authorized to act for the applicant, Mr. Ted Baldau, Vice President of RT
Engineers, Inc., P.O. Box 390628, Kailua-Kona, Hawaii has applied for afive-year variance from
the Hawaii Administrative Rules (HAR), Section 11-62-31.1(a)(1)(A) "There shall be 10,000
square feet of land area for each individual wastewater system;", Section 11-62-31.1(a)(1)(C)
"Area of the lot shall not be less than 10,000 square feet excapt for lots created and recorded
before August 30, 1991." and Section 11-62-32 "No individual wastewater system shall be
located at any point having less than the minimum distances indicated in Table II attached to
this chapter in appendix F, entitled Tables, dated April 15, 1977 and located at the end of this
chapter unless otherwise approved by the director."
The applicant has stated that the Kumakua Affordable Housing Project, Phase II
development will be constructed on an approximate 6.13 acre portion of a parcel of land
currently identified by TMK (3) 5-5-008: 046. The parcel is located on the northern side of Akoni
Pule Highway in the Kapaau area of the Nolth Kohala district located in the Northern part of
Hawaii Island. This proposed project will include 19 residential parcels suitable for single family
self help dwelling units. Of these 19 parcels, 7 are proposed to be less than 10,000 square feet
in size and will vary from 7,822 square feet to 9,872 square feet in size. All dwellings are
proposed to be serviced by individual wastewater systems meeting all other requirements of
Kumukua Affordable Housing Phase II -Variance Application WW302, Docket No. 09-VWW-OS
Findings of Fact and Conclusions of Law Page 1
Chapter 11-62 except for the minimum horizontal distances from property lines and the potable
source identified as Hawi Well #1 per Table II, Appendix F.
The applicant has made the following comments.
The proposed conditions fail to conform to the environmental rules of the State in
the following manners:
a. 7 out of the 19 proposed residential lots will be less than 10,000 square
feet in size.
b. Minimum horizontal distances from property lines may vary from those
values indicated in Table II, Appendix F of Chapter 11-62.
c. Minimum horizontal distance from the potable water source identified as
Hawi Well #1 will be less than 1000 feet as indicated in Table II,
Appendix F of Chapter 11-62 for 17 of the 19 proposed residential lots.
The proposed equipment and operating conditions cannot be altered to bring the
facility into compliance with the environmental rules of the state within a
reasonable amount of time for the following reason:
The proposed development is intended to provide. affordable housing for
residents of Hawaii Island. The construction of the development is
subsidized by the United States Department of Agriculture (USDA), Rural
Development Program. The additional cost of providing a sewage ~ ,
treatmeht plant for the proposed subdivision would increase the
construction cost significantly and could exceed the funds available from ,
USDA for the project. Likewise, requiring 10,000 square foot minimum lots
could decrease the number of affordable housing units. Current waiting
lists for affordable self help housing in West Hawaii exceeds 250 families
and meetings held in North Kohala in November of 2005 regarding the
project was attended by over 300 people interested in obtaining further
information.
3. The granting of this variance is in the public interest as defined in the Hawaii
Revised Statutes, section 342.D-6(c) in that it provides affordable housing for low
income residents of Hawaii Island. The residents of this subdivision will come
from income brackets that would not allow them to otherwise construct and own
homes of their own. The proposed self help housing project will permit these
residents to vastly improve their existing housing situation which is likely to be
sub-standard due to overcrowding or allocating a disproportionate share of their
income towards housing.
4. The granting of this variance will not substantially endanger human health of
safety. The proposed wastewater systems will collect, treat and dispose of the
domestic wastewater in such a manner that no health or safety concerns are
created. Although 17 of the 19 proposed residential lots lie within 1000 feet from
the potable water source identified as Hawi Well #1, the Hawaii County
Department of Water Services has determined that the proposed septic tank
Kumukua Affordable Housing Phase II -Variance Application WW302, Docket No. 09-VWW-OS
Findings of Fact and Conclusions of Law Page 2
systems should have no adverse impact to that source's water quality. The
proposed individual wastewater systems are located at sufficient elevation
(approximately 500 feet above mean sea level) and sufficient horizontal distance
(approximately 1.7 mile) to minimize their potential to contamination of shoreline
waters.
5. Compliance with the rules or standards from which the variance is sought would
produce serious hardship without equal or greater benefits to the public. The
residents of the proposed affordable housing project are essentially economically
depressed or financially disadvantaged. Coupled with unprecedented increases
in housing costs, many of the residents of the proposed facility would not be able
to afford housing without assistance from other State or County agencies.
Requiring compliance to the subject rules addressed by this variance request will
not provide much grater benefits to the environment of the public than the
proposed variance request to these rules would provide.
6. The time period requested for this wastewater variance is five years. This time
period is necessary to allow for the construction and occupation of the proposed
affordable housing project.
The variance is requested for the maximum of five (5) years.
Plot maps and. letters from Department of Water Supply, County of Hawaii have
been attached to this application for variance but can not be shown here.
The following agencies submitted the following comments:
The Clean Water Branch defers to the Wastewater Branch's final decision
The Safe Drinking Water Branch submitted the following comments:
We recommend that the 10,000 square foot lot area requirement for each
individual wastewater system (IWS) be upheld and that the proper
construction of IWSs for those lots found within 1000 feet setback from the
Hawi No. 1 well be closely monitored.
Please contact Mr. 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. We offer the following comments:
A. Plans for each IWS must be submitted to the Wastewater Branch for
review and approval at the time of building permit application. In addition,
the IWS must be approved in writing before it may be used.
B. The type of wastewater system to be used shall be at the minimum a
septic tank system with a shallow soil absorption disposal system unless
site conditions prevent it use.
Kumukua Affordable Housing Phase II -Variance Application WW302, Docket No. 09-VWW-OS
Findings of Fact and Conclusions of Law Page 3
C. For properties to be located within the 1000 feet radius of the Hawi
potable water well, the soil absorption disposal system should be located
as far as possible away from the well.
D. Only one (1) individual wastewater system (IWS) will be allowed per lot.
The type of wastewater system to be used shall conform to the provisions
of Hawaii Administrative Rule, Chapter 11-62 in effect at the time of
building permit application.
E. No further subdivision will be allowed within a 1000 feet radius of any
potable water well. Future subdivisions may be allowed with the written
approval of the Director of Health provided that all applicable provisions of
Chapter 11-62, HAR in effect at the time of subdivision application are
met.
F. The project shall connect to the County sewer service system should it
become available to the area.
G. There is no automatic renewal. Should applicant wish to renew his
variance application, applicant must submit an Application for Variance
for renewal.
H. Therefore, upon the agreement of the conditions stated, we recommend
the rag ntina of this variance application.
Please contact the Planning & Design Section of the Wastewater Branch
at (808)'586-4294 if you have any questions.
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 defired 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.
Kumukua Affordable Housing Phase II -Variance Application WW302, Docket No. 09-VWW-05
Findings of Fact and Conclusions of Law Page 4
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 each IWS must be submitted to the Wastewater Branch for review and
approval at the time of building permit application. In addition, the IWS must be
approved in writing before it may be used.
2. The type of wastewater system to be used shall be at the minimum a septic tank
system with a shallow soil absorption disposal system unless site conditions
prevent it use.
3. For properties to be located within the 1000 feet radius of the Hawi potable water
well, the soil absorption disposal system should be located as far away as
possible from the well.
4. Only one (1) individual wastewater system (IWS) will be allowed per lot. The
type of wastewater system to be used shall conform to the provisions of Hawaii
Administrative Rule, Chapter 11-62 in effect at the time of building permit
application.
5. No further subdivision will be allowed within a 1000 feet radius of any potable
water well. Future subdivisions may be allowed with the written approval of the
Director of Health provided that all applicable provisions of Chapter 11-62, HAR
in effect at the time of subdivision application are met.
6. The project shall connect to the County sewer service system should it become
available to the area.
7. There is no automatic renewal. Should applicant wish to renew his variance
application, applicant must submit an Application for Variance for renewal.
DATED: Honolulu, Hawaii,
Draft -Signature NOT required
THOMAS E. ARIZUMI, P.E., CHIEF
Environmental Management Division
The foregoing findings of fact and conclusions of law are hereby adopted.
Kumukua Affordable Housing Phase II -Variance Application WW302, Docket No. Oy-VWW-O5
Findings of Fact and Conclusions of Law Page 5
/.
_~ „_ _„
Transmittal Date: Suspense Date:
Wastewater Branch Varia ce Application Docket No. - VWW - APP # WW e
Name/Title: (/l(mOl ~ Q
Subject: Draft Decision Letter with D ision & Order and Findi of Fa & Conclusions of Law
ROU I t I u:
Applicant: N(Olll 5 C~ l
.4gent: {~P/
Director of Health - Chiyome Leinaala Fukino
Deputy Director for Environmental Health Administration -Laurence Lau
Chief, EMD -Thomas E. Arizumi
Attorney General's Office - De ut Attorney Edward "Ted" Bohlen
Clean Water Branch -Alec Wong -RETURN ONLY IF YOU HAVE COMMENTS. '
Environmental Plannin Office -Kelvin Sunada
Safe Drinkin Water Branch -Stuart Yamada
Sanitation Branch -Commercial Properties Only
Wastewater Branch Staff Personnel
[ ]Hilo -Jerry Nunogawa (TMKs 1, 2, 3, 41
I~1 Kona -Dane Hiromasa (TMKs 5, 6, 7, 8, 91
[ ]Kauai -Lori Vetter
[ ]Maui -Roland Tejano
[ ]Oahu -Johnny On
Water Departments
[ ]Board of Water Supply -Wayne Hashiro ,
[~G] County of Hawaii Dept of Water Supply -Milton Pavao
[ J County of Maui Dept of Water Supply -Jeffrey Eng
[ ]Kauai Count Department of Water -Edward Tschup
( ]Maui DHO - ,District Environmental Health- Program Chief
[ ]Kauai DHO -Gerald Takamura, District Environmental Health Program Chief
~ ]Hilo DHO -Newton Inouye, Actin District Environmental Health Pro ram Chief
City & Count of Honolulu, Department of Plannin & Permittin
bG] County of In(Dl ll Council / [ ]Honolulu City & County Council '
Oahu Nei hborhood Board #
ACTION REQUESTED:
If you have comments or corrections to the DRAFT Decision & Order, please submit them in writing on a
separate sheet. Otherwise, please file or discard at your discretion. Otherwise, keep for your records or
discard The SIGNED FINAL Decision & Order will be forthcoming.
If there are comments, send to: Department of Health -Wastewater Branch
919 Ala Moana Blvd. Room 309
Honolulu, Hawaii 96814-4920
phone 1808) 586-4294 fax (808) 586-4300.
Recd by WWB _,/ / my documents\c temp\wwb - 2009 variance route slip -Draft Dec.doc 04/13/2009