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LINDA LINGLE i CHIYOME LEINAALA FUKINO, M.D.
GOVERNOR OF HAWAII W DIRECTOR OF HEALTH
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STATE OF HAWAII
DEPARTMENT OF HEALTH
P.O. BOX 3378 . In reply, please refer to:
HONOLULU, HAWAII 96801. EMD / WB
WW 308 FINAL DEC CL
Kona Seaspray Apartment ID#5
October 1, 2009
CERTIFIED MAIL 7004 0750 0001 8544 3954
RETURN RECEIPT REQUESTED d
Mr. Stephen J. Herbert, P.E.
Kona Wai Engineering, LLCi
P.O. Box 4481 ril.Ml
Kailua-Kona, Hawaii 96745.:.`
Dear Mr. Herbert: '
Subject: Variance Application No. WW 308 Docket No. 09-VWW-11 ID#5
Application for Variance - Primarily Concerning Large Capacity Cesspools
Kona Seaspray Apartments, Robert A. Johnson, Manager
78-6671 Alii Drive, Kailua-Kona, Hawaii TMK (3) 7-8-014: 016
Requested Variance from: The Area of the Subject Lot is 9,279 square feet,
One (1) Cesspool Serves Three (3) Units
Please find enclosed the Department of Health's Decision and Order regarding the above
mentioned application for variance request which was GRANTED on Tuesday
September 29, 2009 for five (5) years. We are enclosing for your information the Findings of
Fact & Conclusions of Law.
Please note the variance conditions. If there are any questions relating to the variance, please
contact Mr. Tomas See, Chief of the Wastewater Branch at our direct toll free phone number
974-4000 ext. 64294, fax (808) 586-4300.
Sincerely,
THOMAS E. ARIZUMI, P.E., CHIEF
Environmental Management Division
Enclosures: Final Decision and Order
Findings of Fact and Conclusions of Law
C: Applicant - Mr. Robert A. Johnson
Clean Water Branch
Safe Drinking Water Branch
Wastewater Branch - Kona Staff Engineer
Department of Water Supply - County of Hawaii
District Health Office - Hilo
e Hawaii County Council
FYI - Environmental Planning Office Comm. 1~40•~_ _ _
Ref. To:
Ref. Date OCT 0 5 20Il4__._
STATE OF HAWAII
DEPARTMENT OF HEALTH
In the Matter of the Application ) Docket No. 09-VWW-11
Variance Application No. WW 308 )
for Individual Wastewater System )
Concerning Large Capacity Cesspools )
Kona Seaspray Apartments, )
Robert A. Johnson, Manager, One (1) Cesspool )
Serves Three (3) Units, Lot is 9,279 sf )
78-6671 Alii Drive, Kailua-Kona, Hawaii )
TMK (3) 7-8-014: -016 )
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)(D) is hereby GRANTED for five (5) years with the
following provisions:
1. If a cesspool receives more than 1,000 gallons per day of sanitary wastes, on any given
day, it is considered an injection well. Injection well backfilling and abandonment are
strictly regulated by the Underground Injection Control (UIC) program. An UIC
abandonment application form must be submitted by the owner to the UIC program to
obtain written backfilling instructions.
For backfilling a non-injection well cesspool, the UIC program may provide backfilling
guidelines upon request.
2. Plans for each 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.
3. The septic tank shall be enlarged to a minimum of 1,500 gallons.
4. Standby power or other provisions shall be provided for proposed lift station to prevent
unauthorized discharges of wastewater during a primary power outage.
5. The project shall connect to the County sewer service system should it become available to
the area.
6. There is no automatic renewal. Should applicant wish to renew his variance application,
applicant must submit an Application for Variance for renewal. Please contact the
Wastewater Branch's Planning & Design Section at (808) 586-4294 for technical
information regarding treatment individual wastewater systems.
DATED: Honolulu, Hawaii, September 29 2009
7
OMAS E. AR UMI, P.E., CH F
Environmental Management Division
STATE OF HAWAII
DEPARTMENT OF HEALTH
In the Matter of the Application ) Docket No. 09-VWW-11
Variance Application No. WW 308 )
for Individual Wastewater System )
Concerning Large Capacity Cesspools )
Kona Seaspray Apartments, )
Robert A. Johnson, Manager, One (1) Cesspool )
Serves Three (3) Units, Lot is 9,279 sf )
78-6671 Alii Drive, Kailua-Kona, Hawaii )
TMK (3) 7-8-014: 016 )
FINDINGS OF FACT AND CONCLUSIONS OF LAW
An application from Mr. Robert A. Johnson, of the Kahaluu Reef Association of Home Owners,
78-6665 Alii Drive, Kailua-Kona, Hawaii 96740 for a five (5) year variance from Hawaii Administrative
Rules, Chapter 62 of Title 11, Section 11-62-31.1(a)(1)(D) was reviewed by the Department of Health
staff. A public notice of the application was printed in the July 15, 2009 issue of the Honolulu Star Bulletin
and the July 17, 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.
Findings of Fact
The individual authorized to.act for the applicant, Mr. Stephen J. Herbert of Kona Wai Engineering,
LLC, P.O. Boc 4481, Kailua-Kona, Hawaii 96745, has applied for a five-year variance from the Hawaii
Administrative Rules (HAR), Section 11-62-31.1(a)(1)(D) - the area of the subject lot is 9,279 square feet
and one (1) cesspool serves three (3) units. The location of the Kona Seaspray Apartments is 78-6671 Alii
Drive, Kailua-Kona, Hawaii 96740 TMK (3) 7-8-014: 016.
The applicant has made the following statements.
1. The area of the lot is 9,279 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. The
estimated flow into the system would be 1,000 gallons per day.
2. The current State requirement of a wastewater treatment plant would significantly add to
the construction cost as well as require a much greater outgoing maintenance cost.
3. The facility has been in operation for 14 years in this location using the existing cesspool.
The installation of a wastewater treatment plant is lieu of a septic system will not be
possible due to space restrictions and may force the owner to abandon the business
operation.
Kona Seaspray Apartments - Variance Application WW 308, Docket No. 09-VWW-11
Findings of Fact and Conclusions of Law Page 1
4. 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, impact to the
environment will be minimized.
5. Prevent loss of jobs. The LCC serving my 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. I (owner)
may be forced to close my existing business and lay off my employees.
6. 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 septic tank will provide pretreatment and
sludge removal prior to effluent disposal.
7. The residents of the apartment are essentially economically depressed.
8. The owner of the facility simply cannot afford to build and operate wastewater systems
meeting all the requirements of HAIR Chapter 11-62 such as small aerobic wastewater
treatment plants.
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.
Variance application attachments including but not limited to location map, vicinity map, site plan,
ground floor plan, 2"d floor plan, site photos, and preliminary IWS plan have been attached to this
application for variance but can not be shown here.
The following agencies submitted the following comments.
1. The Clean Water Branch will defer to the Wastewater Branch's final decision.
2. The Safe Drinking Water Branch submitted the following comments:
A. When a cesspool receives more than 1000 gallons per day of sanitary wastes, on
any given day, it is considered an injection well. Injection well backfilling and
abandonment are strictly regulated by the Underground Injection Control (UIC)
program. A UIC abandonment application form-must be submitted by the owner to
the UIC program to obtain written backfilling instruction.
For backfilling a non-injection well cesspool, the UIC program can provides
backfilling guidelines upon request; and
B. Because the proposed upgrade of the cesspool to septic system tank / absorption
bed is being driven by the Federal ban on large-capacity cesspools; we have no
objection to granting the variance.
Please contact Mr. Jamie Rimando at (808)586-4258 if you have any questions.
Kona Seaspray Apartments - Variance Application WW 308, Docket No. 09-VWW-11
Findings of Fact and Conclusions of Law Page 2
3. The Wastewater Branch submitted the following comments:
A. After researching the property, it has been concluded that there is no existing sewer
service system available for connection. The property is located in the Critical
Wastewater Disposal Area (CWDA) as determined by the Hawaii County
Wastewater Advisory Committee.
B. Plans for each 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.
C. The septic tank shall be.enlarged to a minimum of 1,500 gallons.
D. Standby power or other provisions shall be provided for proposed lift station to
prevent unauthorized discharges of wastewater during a primary power outage.
E. The project shall connect to the County sewer service system should it become
available to the area.
F. Therefore, upon the agreement of the conditions stated, we recommend the
granting 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 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:
1. If a cesspool receives more than 1,000 gallons per day of sanitary wastes, on any given
day, it is considered an injection well. Injection well backfilling and abandonment are
strictly regulated by the Underground Injection Control (UIC) program. An UIC
Kona Seaspray Apartments - Variance Application WW 308, Docket No. 09-VWW-11
Findings of Fact and Conclusions of Law Page 3
abandonment application form must be submitted by the owner to the UIC program to
obtain written backfilling instructions.
For backfilling a non-injection well cesspool, the UIC program may provide backfilling
guidelines upon request.
2. Plans for each 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.
3. The septic tank shall be enlarged to a minimum of 1,500 gallons.
4. Standby power or other provisions shall be provided for proposed lift station to prevent
unauthorized discharges of wastewater during a primary power outage.
5. The project shall connect to the County sewer service system should it become available to
the area.
6. There is no automatic renewal. Should applicant wish to renew his variance application,
applicant must submit an Application for Variance for renewal. Please contact the
Wastewater Branch's Planning & Design Section at (808) 586-4294 for technical
information regarding treatment individual wastewater systems.
DATED: Honolulu, Hawaii, September 29, 2009
i
THOMAS E. A UMI, P.E., C F
Environmental Management Division
The foregoing findings of fact and conclusions of law are hereby adopted.
Kona Seaspray Apartments - Variance Application WW 308, Docket No. 09-VWW-11
Findings of Fact and Conclusions of Law Page 4
,a 'W[ IX UVI
Transmittal Date:
Wastewater Branch Variance Application Docket No. - VWW - 11 APP # WW
Name/Title: KON ' .S"~I~ i, ~ ~i 4~n. ~ . ~ -
Subject: Final Signed Decision over-1 Ater, igned Decision & Order & Findings of Fact & Conclusions of Law
ROUTE TO:
Applicant: ,S(;
Agent:
Director of Health - C iyome Leinaala Fukino
Deputy Director for Environmental Health Administration - Laurence Lau
Chief, EMD - Thomas E. Arizumi
Attorney General's Office - Deputy Attorney Edward "Ted" Bohlen
Clean Water Branch - Alec Wong - FOR YOU TO KEEP OR DISCARD
Environmental Planning Office - ,11110 606141 - FOR YOUR INFORMATION
Safe Drinking Water Branch - Stuart Yamada
Sanitation Branch - Commercial Properties Only
Wastewater Branch Staff Personnel
[ ]Hilo - Jerry Nunogawa (TMKs 1,-2, 3,4)
(-C] Kona - Dane Hiromasa (TMKs 5, 6, 7, 8, 9)
[ ] Kauai - Lori Vetter
[ ] Maui - Roland Tejano
[ X1 Oahu - Johnny On CLW
Water Dpartments
[ 1130: d of Water Supply - Wayne M. Hashiro
[ X] County of Hawaii Dept of Water Supply - Milton Pavao
[ ] County of Maui Dept of Water Supply,- Jeffrey Eng `t
[ ] Kauai Count Department of Water - Edward Tschu
[ ] Maui DHO - (I_ _V-1f District Environmental Health Program Chief
( ] Kauai DHO -'Gerald Takamura, District Environmental Health Program Chief
[ X Hilo DHO - Newton Inouye, Actin District Environmental Health Program Chief
City & County of Honolulu, Department of Planning & Permitting
[ ] County of ` ; V\X1 I I Council ] Honolulu City & County Council
Oahu Neighborhood Board #
NO ACTION REQUIRED:
X Here is the FINAL SIGNED Decision & Order and Findings of Fact & Conclusions of Law. .
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 application process.
From: Department of Health - Wastewater Branch
919 Ala Moana Blvd. Room 309
Honolulu, Hawaii 96814-4920
phone (808) 586-4294 fax (808) 586-4300
my documents\c temp\wwb - 2009 variance route slip - final decision.doc as of 04/13/2009