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HomeMy WebLinkAbout2019-04-24 Meeting Minutes (EMC) ENVIRONMENTAL MANAGEMENT COMMISSION COUNTY OF HAWAIʻI MEETING MINUTES Wednesday, April 24, 2019 9:02 a.m. to 11:46 a.m. West Hawaiʻi Civic Center 74-5044 Ane Keohokalole Highway Building G Kailua-Kona, Hawaiʻi Commissioners present: Richard Bennett, Ph.D., Chair Jon Olson, Vice Chair James Fritz Dee Fulton Rick Gaffney Justin Pequeño Staff present: William Kucharski, Director Mary Fujio, Secretary Also present: Steve Holmes 1. CALL TO ORDER Chair Bennett called the meeting to order at 9:02 a.m. 2. APPROVAL OF MINUTES OF MARCH 27, 2019 Motion and second: Vice Chair Olson moved to approve the minutes and Commissioner Gaffney seconded the motion. Discussion: Commissioner Pequeño asked if the names of others present at the meeting could be added rather than saying “several others,” but the secretary said it is not required that people sign in or provide their names if they are not testifying. Commissioner Pequeño asked for clarification on page 10, where it said “They had a meeting in Pāhala . . .” He wanted it specified who “they” were (the department and consultants from Brown & Caldwell). Commissioner Gaffney wanted a correction on page 11, second paragraph, where it said “water colony.” It should say “water column.” In the same paragraph, Chair Bennett said he wanted the word “elaborates” changed to conveys.” Vote: All commissioners voted aye on accepting the minutes as corrected above. 3. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Steve Holmes was present to testify, but Chair Bennett directed that his testimony be postponed until they got to agenda item 5d. 4. UNFINISHED BUSINESS a. Continued discussion as to what the Commission can do to promote homeowner R-1 water reuse and graywater reuse. Vice Chair Olson wanted to know why water reuse is not being done more and who oversees it. Chair Bennett said a dual system would require a plumbing permit, and a retrofitted system would require an engineer to design and put his stamp on it. It would be very costly. Director Kucharski clarified that the county can approve the plans, but the state has to approve the use. The county does not have authority to say what the quality of the graywater is, and he is not aware of a delegation of that authority from the state. Chair Bennett said Kauaʻi County was able to assume that authority from the state about a year ago. Commissioner Pequeño said that HB 444 regarding water reuse systems is going to conference in the legislature this afternoon with some amendments, and it looks like it will pass. It is likely being used as a bargaining chip. b. Status of the proposed subcommittee, which is to explore efforts to provide sewer services to the non-sewered regions of South Aliʻi Drive and Keauhou Bay. Chair Bennett said that after getting feedback from Corporation Counsel, it looks like a subcommittee is not permitted under the Sunshine Law. However, a community task force is coming together that will be exploring the sewer issues of South Aliʻi Drive and Keauhou. No more than two commissioners may choose to participate in the task force, and he has stepped back so that others can step forward. Commissioner Gaffney said there is not a task force per se yet, but there was a meeting with Roy Takemoto of the Mayor’s office, Cindi Punihaole, Councilmember Villegas, and himself to discuss the issue and various ways it could be resolved. They discussed improvement districts, public-private partnerships, and so forth. Mr. Takemoto left with a series of questions, including bond issues and how long repayment can be stretched. The bottom line is it looks like Councilmember Villegas will grab the issue and run with it, and Mr. Takemoto is fully engaged to make it happen. A task force does not yet exist, but an ultimate goal is to create one. The County Council is the likely source to get the community together on the subject. Chair Bennett asked for updates from time to time. c. Review the Commission’s table of Motions, Policy Recommendations, and Various Requests and discuss follow-up. Commissioner Gaffney thanked the secretary for keeping the table up to date, and he reminded commissioners that it was designed as a tool to keep track of the discussions had and decisions made, and to remind them if follow-through is needed on something. Chair Bennett said if an item on the table has not received sufficient attention, let him know. Commissioner Pequeño asked about the status of the letter from the EMC to the Department of Public Works on adopting the Uniform Plumbing Code. Chair Bennett said Corporation Counsel had sent him a letter informing him that the proposed letter was outside EMC’s scope of responsibility. This is an example of how the scope of the EMC is out of date and not keeping up with the issues of today. He felt the letter to DPW was an opportunity to adopt the newest UPCs and encourage passive devices that use less water. Later on the agenda will be a discussion on changing the EMC’s scope. Commissioner Gaffney said the letter could be revised and sent either to the director, urging him to meet with the DPW director and push the subject, or to Councilmember Richards, suggesting the County Council weigh in on the subject and explaining why. He believes reaching out to the Council would be quicker and carry more weight. The other commissioners agreed they would like to reach out to Councilmember Richards, as he heads the Committee on Agriculture, Water, Energy, and Environmental Management. Motion, second, and vote: Commissioner Gaffney moved that the letter they voted on at the March 27, 2019, meeting be edited and re-directed to Councilmember Richards. Vice Chair Olson seconded the motion, and all commissioners voted aye. 5. NEW BUSINESS a. Discuss the Department of Environmental Management’s responsibilities for the use of R-1 reclaimed water by private entities. Chair Bennett wanted to know who has the obligation to ensure R-1 water is being used appropriately and not constituting a hazard, once DEM has it ready and contracts with a user, such as a golf course. Director Kucharski said the rules state that a provider of R-1 water cannot provide it to someone who does not have an active DOH permit to use the water. Therefore, the user of the water has the responsibility to be permitted by the state DOH; and the county has the obligation to make sure the user is permitted and the permit conditions are being met. It is his understanding that the methodology and use of the water is also the county’s responsibility. He will go back and re-read the rules to be sure and provide a copy to the commissioners for the next meeting. Commissioner Gaffney asked whether contractors for large projects such as the planned regional park will be required to use R-1 water for things like dust control. Director Kucharski said it would be up to the contract, not the contractor. However, he can see no reason why a contractor would use potable water when there is a non-potable water source available. Commissioner Gaffney said contractors will need to know a DOH permit is required so they can include it in their costs. He has observed a phenomenal number of trucks using potable water for dust control on the Queen Kaʻahumanu Highway project, and they surely would have used R-1 water if they had access to it. Brief discussions were held on: - how the cost to bring water to the R-1 standards is passed along - whether the Mauna Lani golf course uses R-1 for irrigation - how the nutrients in human waste that currently go into the sump will need to go elsewhere - how the wetlands will work - how an ultraviolet system will be used to disinfect discharge if it goes to the SAT ponds Chair Bennett expressed concerns about the relocation of the nutrients to locations that sit on near shore waters. The waters are impaired today because of nitrogen, and someone needs to be accountable to ensure that additional nitrogen does not leak into the ponds and ocean. Director Kucharski said impaired waters are a state function, not county. Chair Bennett said the state is not doing its job in this area, and the EMC can make a recommendation about this when the time comes. He is very concerned about the nutrients being moved from the sump to the coast Commissioner Gaffney mentioned that for the Kohanaiki development, discussions were held with the community over a period of years and commitments were made. Councilmember Eoff and former Councilmember Pilago headed those community discussions and may be able to access documents that suggest the county required Kohanaiki to commit to protecting the anchialine ponds. Chair Bennett said all the EMC can do now is keep their index of suspicion elevated and see if an agreement can be found. b. Discuss progress and future efforts to identify and control brackish water infiltration in coastal sewer lines. Chair Bennett said it is clear that seawater infiltration into the sewer lines constitutes a real threat to water reuse. The landscape plants will be at risk because of the chloride level. Though he is a proponent of water reuse, he is also sensitive to the fact that you only have one chance to make a first impression. If the water starts killing plants and grass, it will be hard to undo that reputation. He asked Director Kucharski what the plans are to get the infiltration under control. Director Kucharski said there are two areas where infiltration can occur. One is through the sewer lines DEM maintains and controls, and the other is through the laterals from other users. All the force mains along Aliʻi Drive are in the process of being renewed. Continuing to replace the pipes is a 4- to 5-year program, and it disrupts all of downtown as they move along and replace all the gravity and force mains that are subject to tidal influence. In addition, all of the laterals need testing, and there needs to be a specific program developed to do so. There is recent legislation that allows a county to come onto a property to monitor the lateral and require the owner to repair it if significant infiltration is found. However, DEM does not have the manpower and engineering resources at this time to do so. With the recent sewer rate increase, they will be getting more positions created to have more oversight. They could also contract out the work but would need an engineer to write the specs for the contract. The Wastewater Division currently has four engineers, and two of them are junior. The other two are overworked. The long-term plan is to bring in more engineers. He can only say they are working on the Aliʻi Drive project, but their resources are really limited. Chair Bennett asked questions about the chloride levels and said the department appears to be putting bandages on the system to fix the holes. He asked if it was conceivable to install a vacuum system incrementally. Director Kucharski said it is conceivable but would involve not only tearing up the entire Kona street setup but also cost millions of dollars, if not more. Further discussion was held on a vacuum sewer system and whether it could be achieved. Vice Chair Olson said the sea level is rising, and a lot of money could be thrown into a system to which no one could hook up. Chair Bennett said concerns over the rise in sea level are legitimate, and the City and County of Honolulu has a small staff dealing with it. He has reached out to them and is trying to get Josh Stanbro to give a presentation. The cost of incremental inundation will be in the billions of dollars, and the County Council and Mayor’s Office need to get involved. Director Kucharski said the Planning Department in addition to the Research and Development Department are very involved in the issue. Commissioner Gaffney asked how a homeowner would know whether their sewer line is leaking, and discussion was held on the various camera devices used to check pipes, as well as devices homeowners can install to monitor leaks and measure conductivity. Commissioner Gaffney said there is an opportunity to require new or redeveloping restaurants to obtain a chloride level analysis, and Chair Bennett said they can bring it up to Councilmember Richards. Chair Bennett asked Commissioner Fritz to contact people in the Roto Rooter business to see if they have the ability to check laterals. The commissioners discussed how it would be good to have a business in Kona break the ice on voluntarily having their sewer pipes checked and fixing any leaks, so that others will follow suit. Commissioner Gaffney said the County Council needs to get involved in protecting the shoreline. c. Discuss the options and procedure to update the Commission’s scope in order to be more aligned with the Department’s functions in the foreseeable future. Chair Bennett asked how the scope of the EMC could be changed to be more contemporary, and Director Kucharski said he believed it would require a charter amendment. He said he could check with Corporation Counsel on the process and report back at the next meeting. Vice Chair Olson said he would need to think about whether their scope should be changed, as he did not want them to open a door they cannot close. On the matter of the letter they wanted to send to DPW about the UPC, they could explain the situation to Councilmember Richards and say that further connectivity is needed with other departments in order to accomplish their mandate. Director Kucharski said the EMC’s function is to advise DEM on those issues over which it has jurisdiction, which is wastewater treatment, solid waste, and recycling. The Plumbing Code comes under DPW, and the EMC does not advise DPW. DEM is an operating entity, not a regulatory entity. Chair Bennett said Councilmember Eoff had asked them some time ago what they would recommend in terms of water and wastewater. One of the recommendations was to adopt the new plumbing code, which is outside DEM’s scope. However, it is fundamental and he is sorry departments are so balkanized in terms of interdepartmental cooperation. Commissioner Pequeño said part of the Plumbing Code is related to the functions of DEM and is therefore within the scope of the EMC. Vice Chair Olson said they should see if Councilmember Richards agrees. Commissioner Fulton said they should approach Councilmember Richards with the idea that although the EMC was created by the County Charter, they serve and advise the County Council, and would like to know how the Council feels about receiving input from them on subjects that are gray areas right now. Chair Bennett said they will take the matter of changing their scope to Councilmember Richards. He will contact him to set up a meeting. Commissioner Gaffney suggested Councilmember Villegas be included. d. Discuss a recommendation that the Department of Environmental Management apply for a National Pollution Discharge Elimination System (NPDES) permit for the Soil Aquifer Treatment (SAT) pond operations of the Kealakehe Wastewater Treatment Plant R-1 Upgrade Project. Chair Bennett said he had asked former Honolulu Councilmember Steve Holmes to speak to them on this agenda item, as he has some experience with it. Mr. Holmes said he sat on the Honolulu city council from 1991 to 2003 and was the energy and sustainability coordinator under Mayor Harris. He has dealt with many of the issues the EMC has been talking about. Honolulu has faced massive lawsuits brought by plaintiffs such as The Sierra Club. He said the County of Hawaiʻi has an NPDES legal issue today, in that wastewater is going into the sump, and it has been shown to eventually reach the coast and nearshore waters. An NPDES permit is needed today, and will also be needed for the planned SAT ponds. The county is in violation of the Clean Water Act today, and he wants to make this clear to everyone. Mr. Holmes said the Maui case is potentially going to go to the U.S. Supreme Court. A whole lot of money is being spent in lawsuits rather than in fixing the problem. Honolulu violated NPDES permits thousands of times and faced huge potential fines. Merely having an NPDES permit does not get you off the hook. What gets you off the hook is when you recycle water rather than dumping it into a hole in the ground. The county could avoid having to dump the water into an SAT pond if storage were included as part of the infrastructure of the R-1 project. Regarding the department’s lack of staff, Honolulu had the same problem and had to gear up big time because of lawsuits. Honolulu had the same limitations the county is facing today in terms of civil service hiring. To resolve it, they brought in consulting engineering firms, which allowed them to beef up and quickly meet court mandated deadlines. The county has a lot of legal authority to address these things. Given the challenges, innovative solutions are needed. He urged them to work with the Council, and he said he would volunteer his time to do so, since he is a former councilperson. He would have flexibility the EMC does not have and would be glad to help. Mr. Holmes said another issue is that the county has liability under the Public Trust Doctrine. He spoke about how the former Hilo WWTP was in very bad shape and was not even doing primary treatment. The tanks were impacted to half their height with solid sludge and were non-functional. He filed a lawsuit and the courts saw it his way. The county eventually received federal funds to build the current plant in Hilo. The Public Trust Doctrine is a whole other range of legal exposure the county faces. He said the state Department of Health waves their magic wand and grants administrative waivers. An administrative waiver is no protection under the CWA. The county has ongoing violations, not only for lack of an NPDES permit for the sump being used, but also because the treatment plants are not producing the R-2 water as originally designed. The county is in violation of the CWA every single day, and the DOH cannot protect the county. Commissioner Fritz asked Director Kucharski about the sump. Director Kucharski said they have a state discharge permit, not an NPDES permit, and that the county is meeting all of their discharge standards. The permitting obligations have been delegated to the state, and DEM is complying with all state requirements for permitting. Chair Bennett said he wrote to the previous DEM director years ago and asked if the water going into the sump was disinfected. She wrote back and said they are not required to disinfect it because they had a DOH waiver, which means undisinfected wastewater went into the sump and eventually into the harbor. It taught him vividly that the state DOH cannot be relied upon to do the right thing or even to follow the law. Every impaired water body out there should have the TMDL program. The law requires it. The question on the agenda is whether the EMC is going to recommend to DEM that they get an NPDES permit for the proposed SAT ponds. Director Kucharski said the EPA is mandated to enforce the CWA and is well aware of the county’s discharge. At this point in time, the county’s discharge into a sump does not require an NPDES permit. If the situation changes after the Supreme Court reviews the Maui case, the county will review what it is required to do to be in compliance with the state and federal laws applicable to their operations. Chair Bennett said the Ninth Circuit’s decision is law today, and Director Kucharski said the Ninth Circuit is not the U.S. Supreme Court. Until such time as the legal process is completed, it is a decision under appeal. Until such time as the case is resolved, it is his opinion that it is not the law of the land. Mr. Holmes said the Maui County Council is considering not going forward with their appeals of the case and is reconsidering their legal strategy to continue to fight. They have lost repeatedly and have had to pay. The new mayor has committed that they will only use their injection wells in an absolute emergency. However, it is the law of the land today that an NPDES permit is needed. Chair Bennett asked the commissioners if they were prepared to make a recommendation to DEM that they seek an NPDES permit for the proposed SAT ponds. Commissioner Pequeño said he would need more information on the current permit and how it lines up with the requirements for an NPDES permit. He is not sure how getting an NPDES permit would improve the situation. Chair Bennett said the SAT ponds will be the first in the state and are highly experimental. They will be on a non-soil matrix, meaning lava rock, which is different from SAT ponds elsewhere. He is of the view that the state does not have the technical understanding of SAT ponds to regulate them well. Director Kucharski said there are discharge standards for the operation, and the discharge will be monitored. It will be exceedingly better than what is currently going into the sump. Discussion was held back and forth on discharge monitoring, SAT ponds, and CWA requirements. Commissioner Gaffney said he agreed with Commissioner Pequeño that they don’t have enough information today to recommend that DEM apply for an NPDES permit for the ponds. Given the lack of personnel, funding, and other unknowns, the value was unclear. It might be better to focus their attention on recycling. Requiring DEM to pursue the permit would be tying their hands and taking time away that could be spent on what really needed to be done. He would like Bruce Anderson or someone from the state DOH to explain why the NPDES permit is not required. Chair Bennett said they would table this discussion until such a time as they understand what DOH’s position is. Commissioner Gaffney said at the end of the day, if it is serious enough, the community can force it to happen by bringing a lawsuit. 6. REPORTS/CORRESPONDENCE a. Chair’s report. (1) Keauhou and Aliʻi Drive Sewer Development Citizens Group. Chair Bennett said he has stepped back from this, as his plate is full. Commissioner Fulton volunteered to be a part of it, and Commissioner Gaffney said they are waiting to hear back from Roy Takemoto on a list of questions. (2) Earth Day Conference and presentation. Chair Bennett said the conference was last Saturday at NELHA, and he did a presentation on the R-1 upgrade entitled “The R-1 Upgrade: Good News with Caveats.” He asked the commissioners if they wanted to see the presentation at the next meeting, and they did. b. Director’s Informational Report. (1) Status of the proposed Pāhala and Nāālehu WWTPsʻ. A review pursuant to Section 106 of the National Historic Preservation Act is needed, and the State Historic Preservation Division has informed them it will be approximately a year before they can do the review. The EIS cannot be finalized until the review is done. The EPA has been notified. (2) Status of the polystyrene ordinance on food containers and food service ware. Meetings have been held with industry groups concerning the requirement to replace polystyrene with compostable recyclable products. It is possible there will be modifications to the bill, which is in the hands of the County Council. The concern is not the ban on polystyrene, but on what it is replaced with. Chair Bennett asked whether fines and penalties due to the ban will be appealed to the EMC, and Director Kucharski said yes, the EMC is the venue to appeal to. Chair Bennett said he is not comfortable with the procedures for an appeal or contested case hearing and would need training. Director Kucharski said he will need to check with Corporation Counsel on how to train a whole commission without violating the Sunshine Law, and Vice Chair Olson said most of the commissioners have also not received the training Corporation Counsel used to provide to new board and commission members. (3) Status of the Kealakehe WWTP R-1 Upgrade Project. The EIS is in the process of being reviewed and receiving comments. If it needs a Section 106 review, they won’t be able to proceed until everything is cleared on the cultural side. (4) Status of proposed bill regarding the EMC’s 45-day review period of legislation. Director Kucharski said the EMC did not include the word “final” in the phrase “prior to final council action” in the motion at the last meeting, though they had agreed on the wording. Therefore, he added it to the proposed bill, which has been sent to Corporation Counsel for review. The commissioners agreed they meant to include it. Director Kucharski said they have an applicant being processed for the Deputy Wastewater Chief position. The applicant is the only one who passed screening in the past six months, which shows how difficult it is to fill some of their positions. Chair Bennett asked for an update on the chronology of the R-1 project, and Director Kucharski said it is still scheduled to be available by the end of 2020. However, if the EIS approval is held up by a Section 106 review, the date becomes unknown. Commissioner Pequeño asked Director Kucharski’s opinion on the recycling program put forth by Out of the Sea Media Arts, and Director Kucharski said he had not seen it but would take a look at it. He is not satisfied with the current recycling programs, the limitations imposed, and the responses. The entire system needs to be looked at and changed so that it actually works and does what it is supposed to do. Commissioner Pequeño commented that a friend in the Paʻauilo area asked the police to check on an abandoned vehicle near their home, and the police said it was not for them to take care of. Director Kucharski said unless the vehicle is not on a roadway or is more than 10 feet on someone’s private property, the police are the ones who have to ticket it to get it into the system. He said if Commissioner Pequeño can give him more information on the vehicle, he will provide it to his AV people to check on. Commissioner Gaffney asked if there was any update on what appeared to be a sewage leak off Aliʻi Drive that former Commissioner Fear had pointed out. Director Kucharski said he had not heard back from the DOH on it, but he would check with them again. 7. FUTURE AGENDA ITEMS Nothing was discussed. 8. ANNOUNCEMENTS The next meeting was not announced. 9. ADJOURNMENT Motion, second, and vote: Commissioner Fritz moved to adjourn, Commissioner Pequeño seconded the motion, and all commissioners voted aye. The meeting adjourned at 11:46 a.m. Respectfully submitted: Mary E. Fujio, Secretary (with her signature)