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HomeMy WebLinkAbout2013-10-03 Windward Transcript - Hu Honua WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT OCTOBER 3, 2013 HU A discussion on the Third Circuit Court’s Order to clarify Condition Nos. 11 and 12 of HONUA BIOENERGY LLC’S SMA USE PERMIT was called to order at 11:32 a.m. in the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Vice-Chairman Ronald Gonzales presiding. COMMISSIONERS PRESENT: Ronald Gonzales, Charles Heaukulani, Gregory Henkel, Myles Miyasato, and Raylene Moses, STAFF PRESENT: Margaret Masunaga (Deputy Corporation Counsel), Duane Kanuha (Planning Director), Daryn Arai (Planning Program Manager), Phyllis Fujimoto (Staff Planner), Maija Cottle (Staff Planner), Jeff Darrow (Staff Planner), and Sharon Nomura (Secretary) ABSENT AND EXCUSED: Stephen Ono RECUSED: Wallace Ishibashi And 8 people from the public in attendance APPLICANT: HU HONUA BIOENERGY LLC (SMA 221) Discussion and action on the Third Circuit Court’s Order of Partial Remand to County of Hawai‘i Windward Planning Commission for Supplemental Proceedings filed August 27, 2013, for the narrow purpose of the Windward Planning Commission clarifying Condition Nos. 11 and 12 of its June 7, 2011 Decision and Order approving an amendment to Special Management Area Use Permit No. 221, which originally allowed the establishment of a coal storage area and a coal burning energy plant and related improvements. The approved amendment request allowed a change in fuel source from coal to biomass, to upgrade the existing facility and to construct support facilities and infrastructure at the former Pepe‘ekeō Power Plant, Makahanaloa, South Hilo, Hawai‘i, TMK: 2-8-8:104 (formerly 2-8-7: Portion of 53). GONZALES: All right, good morning. As Vice-Chair I will assume the role as Chair for Agenda Item No. 7, Hu Honua Bioenergy LLC, Amendment to Special Management Area Use Permit No. 221. Mr. Darrow. DARROW: Thank you, Mr. Chairman. We do have a brief presentation regarding this matter. If I can direct your attention to our presentation. Our Applicant is Hu Honua Bioenergy LLC. Today’s hearing is regarding discussion and action on the Third Circuit Court’s Order of Partial Remand to the County of Hawai‘i Windward Planning Commission for Supplemental 1 EXHIBIT B Proceedings filed August 27, 2013, for the narrow purpose of the Windward Planning Commission clarifying Condition Nos. 11 and 12 of its June 7, 2011 Decision and Order approving an amendment to Special Management Area Use Permit No. 221. This is a location of this subject property. This is, just for reference we’re looking at Pepe‘ekeō in the lower portion of the map. We have Honomū in the upper portion of the map. Hawai‘i Belt road would be running in a north-south direction. The subject property is identified with a black outline and is colored in a light purple and dark green. Access to the property is through what we call Sugar Mill Road. This is a closer view of the subject area. Again, we have Hawai‘i Belt Road running in a north-south direction, Pepe‘ekeō in the lower portion of the map. Access to the subject property is through Sugar Mill Road. And the zoning of the property is identified as General Industrial 5 acres which is the purple, and Agricultural 20 acres which is the darker green. This is an aerial photo. This was taken some time ago, so at that time it just showed the remnants of the old coal burning plant. Just for reference again, you have Sugar Mill Road. For, just for a little bit of background summary, SMA 221 or Special Management Area Use Permit No. 221 was approved on April 9, 1985 by the Planning Commission for Hilo Coast Processing Company to allow the establishment of a coal storage area and a coal burning energy plant and related improvements at the bagasse and fuel oil burning facilities at Pepe‘ekeō. On March 3, 2010 the Planning Department accepted an amendment request for Special Management Area Use Permit No. 221 from Hu Honua Bioenergy LLC to convert the former Hilo Coast Processing Company or HCPC coal burning electric generating power plant into a renewable electrical power generation facility fueled by locally grown sustainable biomass and to allow several upgrades and addition, additions to existing structures and the construction of support facilities and infrastructure within the Special Management Area. On May 7, 2010, the Windward Planning Commission at its duly public hearing granted the request of 21 petitioners who requested standing to participate in a contested case procedure regarding the request by Hu Honua Bioenergy LLC for an amendment to SMA Use Permit No. 221. The reason was because the petitioners’ proximity to the property may result in the project causing of actual or threatened injury. The Commission continued the public hearing so that a hearings officer may be hired in accordance with the County of Hawai‘i Planning Department’s procurement procedures. The contested case for Hu Honua Bioenergy LLC was held on October 18, through October 27, 2010 and concluded on October 27, 2010. The contested case hearing was conducted by Robert J. Crudele who was the Hearings Officer. On May 4, 2011 the Windward Planning Commission voted to approve the Hearings Officer’s proposed Findings of Fact, Conclusions of Law, and Decision and Order with an amendment to include an additional Findings of Fact, and to deny the Intervenors’ proposed Findings of Fact. 2 EXHIBIT B On June 7, 2011Chairman Zendo Kern signed the Findings of Fact, Conclusions of Law, and Decision and Order. On July 6, 2011 a Notice of Appeal was filed by Attorney Steven D. Strauss in the Circuit Count, I’m sorry, that should be Court, of the Third Circuit on behalf of Appellants Bridget Rapoza, The Hilo Project, LLC, Stefan Hagen, Robert and Patricia Ferazzi, Susan Munro and Kerry Glass, Marcus G. Spallek, Raquel Dow, Elaine Munro, and Rosemary Sylvester Gonzalez. The Honorable Greg K. Nakamura, Judge in the Third Circuit Court, of the Third Circuit ordered and adjudged and decreed the following: A - The Special Management Area Use Permit 221 is remanded to the County of Hawai‘i Windward Planning Commission for the narrow purpose of the Planning Commission clarifying Conditions 11 and 12 of its June 7, 2011 Decision and Order, and if necessary to so clarify, conducting further hearings and receiving additional evidence for this narrow purpose. In particular, the Court orders that the Planning Commission expressly determine and issue a supplemental decision in, and order as to whether the Applicant must follow the September 9, 2010, Preliminary Archaeological Inventory Survey by PCSI, which is Appendix “2” to the County’s Answering Brief or a later final AIS accepted and approved by the State Historic Preservation Division of the Department of Land and Natural Resources. And B - The Appellants shall submit their supplemental opening brief on the supplemental decision and order fourteen (14) days after the Planning Commission issues its supplemental decision and order; Appellants (sic) shall respond with their supplemental answering briefs fourteen (14) days after service of the supplemental opening brief. And C - The Court will hold oral argument on the points by the supplemental opening and answering briefs on Thursday, October 31, 2013 at 9 a.m. STRAUSS: Jeff, that should read Appellees for B. DARROW: B. STRAUSS: You have Appellants twice. B is Appelles respond. DARROW: I’m sorry. Thank you for that clarification, if you folks caught that. This concludes the presentation but I did want to bring to your attention that the Applicant has submitted and it has been passed out to the Planning Commission and to the other parties, a supplemental, a proposed Supplemental Findings of Fact, Conclusions of Law, Decision and Order and Certificate of Service. So that’s with each of the parties at this time. With that, that concludes our presentation. Thank you. GONZALES: Thank you, Mr. Darrow. Commissioners, any questions for staff? Thank you. At this point, Commissioners I’d like to ask for a motion to go into executive session, pursuant to Hawai‘i Revised Statutes Section, 92-5(a)(4) to consult with the Corporation Counsel, Deputy Corporation Counsel on questions and issues pertaining to the Commission’s powers, duties, privileges, immunities and liabilities. So, anybody? Motion please. MOSES: I make a motion to go into executive session. 3 EXHIBIT B GONZALES: Is there a second? HENKEL: Second. GONZALES: All in favor say aye (unanimous). COMMISSIONERS: Aye. GONZALES: Motion passed. Members of the public, please give us a few minutes. Thank you very much. EXECUTIVE SESSION – The Commission went into executive session at 11:42 a.m. The Commission came out of executive session at 12:05 p.m. by a motion made by Commissioner Moses, seconded by Commissioner Miyasato, and unanimously carried by a voice vote. RECESSED: The Chair called a recess at 12:05 p.m. RECONVENED: The meeting reconvened at 12:10 p.m. GONZALES: Ladies and gentlemen, welcome back. We are back in general session of the Windward Planning Commission. Agenda No. 7, Hu Honua BioEnergy LLC, SMA 221. After a few housekeeping matters are concluded, we’re going to begin taking public testimony if anyone is signed up to testify. I have one right now. But if anybody else would like to testify, please see Sharon. Just so we’re all on the same page, remember that this is to address the Third Circuit Court order from Judge Nakamura filed Aug. 27, 2013, for Supplemental Proceedings to this Commission for the narrow purpose of clarifying Conditions 11 and 12 of its June 7, 2011 Decision which states, clarification to Conditions 11 and 12. All Commissioners present participating have reviewed the record, files, transcripts on this matter, including Planning Department Exhibits 1 through 11 and made a part of this record. Commissioners, any objections to that? HEAUKULANI: None. GONZALES: Okay, with that said I’d like to call the Applicant up, please. Will you raise your right hand. Do you swear to tell the truth before the Windward Planning Commission today? APPLICANT: Yes, I do. GONZALES: All right. State your name, please, and then begin. GRIMMER: Gary Grimmer is my name. I’m an attorney representing Hu Honua in the Third Circuit matter from which the, Judge Nakamura’s order issued. Good afternoon, Mr. Chairman and Commissioners. The issue before you is a simple one. It’s somewhat substantive but actually more procedural 4 EXHIBIT B than substantive. What specifically the Judge wants to know from the Commissioners by way of a Supplemental Order is whether you want to include Exhibit 9 of your packet, or as the archaeological report that goes into paragraphs 11 and 12 of your Order, or whether you want to have that Order set forth, that it is exhibit 10 and 11 of your packet. I have talked to Mr. Strauss who is the opposing attorney, the attorney for the Appellants in that case. I know that as he did in the Third Circuit Court he would like you to review much more than that and go broader than that. But I would like to point out to you that even Judge Nakamura, who would be the proper person to consider that issue, has already ruled that he’s only going to consider the issue concerning the SHPD report in his own court. So I don’t think you should get distracted with issues beyond that. I think it would be outside the remand from the Court which really has the jurisdiction at this point. And I will reserve any other comments for, after Mr. Strauss speaks, if that becomes necessary. GONZALES: Any questions from the Commissioners? Thank you, sir. GRIMMER: You’re welcome. GONZALES: Mr. Strauss? STRAUSS: Thank you. GONZALES: Please raise your right. Do you swear to tell the truth before the Windward Planning Commission today? STRAUSS: I do. GONZALES: Thank you. You may begin. STRAUSS: Thank you. Mr. Chairman, or Acting Chairman, and Commissioners, thank you. I represent Hilo Project LLC, Stefan Hagen, Robert and Patricia Ferazzi, Susan Munro, Kerry Glass, Marcus Spallek and Elaine Munro. There were other contested case participants that I no longer represent. They dropped out of the case. I just want to make that clear. I did represent them both at the Planning Commission and I do represent them in Third Circuit Court. And as a good at arguments that Mr. Grimmer often makes I prefer to make my own than having him make mine for me. First of all, well, let me outline the actions, I think, that you should take, consistent with the Court’s order, which I characterize differently than Mr. Grimmer. First, I think that you need to move to supplement the record. I think that you need to have a complete background report from the Planning Department, to make them do a fuller job. They should include the status of the current EPA actions that are challenging the Department of Health permits. And you should also conduct further hearings and receive additional evidence and have public testimony in order to make any change, unless you’re just going to adopt or make no change to the original order which was adopted before. Although, the Court is inviting you to treat your, the permit that you 5 EXHIBIT B granted or the amendment that you granted as if it, you had considered the SHPD approval at that time, the fact is that there was no SHPD approval when the Planning Commission adopted the amended permit. And there’s a, in addition to the issue of SHPD approval, that also raises other issues because you’re required to deal with the cumulative effects of the project. You also have to look at now whether the SHPD approval, a new SHPD approval that was not considered by the Planning Commission affects the project as a whole. So you really do have to look at the project as a whole. Because, in effect, what the Court is inviting you to do is to reconsider your permit that was, the amendment to the permit that was issued. I think that you should also request the Planning Director to initiate revocation proceedings so you can complete a full record, that you can have a full record, and have the public to fully participate and not cut them out of the process, which Mr. Grimmer’s narrow view of the proceedings would result in. The Circuit Court’s order for remand is really an order for reconsideration and consideration of new evidence. And although the Court issued a narrow order and in order to comply with that order you only need to do certain things, that doesn’t prevent you from doing other things. Under the Statute, under 205A, you always have the opportunity to examine the permit in front of you to determine that it complies with the law. The Judge’s order was a signal that the SMA permit needs to be fixed, in at least this respect. So what that tells you is that the Planning Commission’s adoption of the Order that granted the amendment was wrong. It also tells you that the Hearings Officer’s recommendation that you adopt the Order was wrong. It also tells you that the Planning Department’s recommendation that you adopt the Findings of Fact and Conclusions of Law was wrong. And if they’re wrong in that respect, then there’s equally the opportunity that they’re wrong in other respects. And this Planning Commission needs to force the Planning Department to do a better job. Because they really rely on what the Planning Director recommends in many cases and what his assessment is of the law. And there are lawyers involved, and you have your own lawyers. But in this case if you, if you read between the lines and the Court’s order, there is no other reason that he would send it back unless it was wrong. The Planning Commission should not simply determine that the Applicant must comply with the SHPD approved final archaeological inventory survey without specifically noticing a public hearing and giving the public an opportunity to present evidence to comment on the SHPD approval. Otherwise, your attempted fix is going to be defective if you, if you choose to adopt that course and approve this permit as if you had the SHPD approval in place when you issued it. It’s going to be defective because the public will not have an opportunity to comment on that because it wasn’t part of the record. It’s not part of the record now, so that’s why I say you have to move to, my motion to supplement the record and take additional evidence. Because the cumulative impacts of the project must always be considered. When a portion of the project is re- examined the entire project should be re-examined. And this is particularly true in this case, where this Commission’s prior order allowed operation of an unneeded wood burning power plant with serious health risks that were of record that were not rebutted by anything the Applicant or that the County presented in evidence. The only evidence on the health effects of this power, proposed operation of the power plant burning wood is that they were adverse, toxic. The only person who offered any health evidence was the University of Hawai‘i toxicologist and chemistry professor J. T. Michaud. His testimony is in the record. You can go review it. And he tells you it’s dangerous. 6 EXHIBIT B This Commission has a duty to protect the health and safety of its citizens, and not just rely on the Department of Health. And this Court, I’m sorry, this Commission should ask the Director, the Planning Director of the Planning Department, to supplement its background report so it tells you what’s going on with the EPA challenges to the Department of Health’s permit. And it should also tell you how that Department of Health’s permit is going to be evaluated in light of new regulations that are coming from the DPA, or enforcement of regulations that are coming from the EPA. This power plant had, in order to be a minor source permit it had to produce less than 250 tons of carbon dioxide a year; and it produces more than that. And the Department of Health, they tweak the numbers, allowed the Applicant to tweak the numbers. But the evidence is to the contrary. Let me just conclude that although the, and let me put some words in Mr. Grimmer’s mouth, although Mr. Grimmer and the Applicant may argue that you have a very narrow issue here, there are other mechanisms to re-examine the project as a whole and the amendment that was granted, including revocation, including the reconsideration. Thank you. GONZALES: Any questions from Commissioners? Thank you, Mr. Strauss. HEAUKULANI: Steven, can I ask a question, please? STRAUSS: Sure. HEAUKULANI: I don’t necessarily disagree with some of your positions. But isn’t what you’re asking us to do already in somebody else’s court? If there’s a problem, this is going to be a decision that Judge Nakamura is going to make. And if there’s a problem then someone else is going to make the call on that. But what came back to us was fairly simple, that there are two conditions that Judge Nakamura wanted clarified. So, again, I don’t necessarily disagree with you. I’m just thinking that procedurally, given the procedural posture of where this case is right now, I, you’re asking us to do some things that may be beyond the scope of our jurisdiction given its procedural status. STRAUSS: May I respond? HEAUKULANI: Please. I’m looking to be educated. I want to know how, how that can happen. STRAUSS: I anticipated -. NOMURA: Microphone. 7 EXHIBIT B STRAUSS: I’m sorry. I anticipated such an argument regarding jurisdiction. And certainly the Court has jurisdiction to order you to do certain things because an appeal was taken and in remand he can certainly give a partial remand. But what he can’t prevent you from doing is that, having the Director initiate revocation proceedings, having the Department create a better record so you can look at the cumulative effects. He can’t prevent you from doing that because you can reconsider this permit at any time. Now the Applicant may later argue that we have vested interest because you granted the permit. The case laws are kind of split on that. But particularly when something on appeal, it’s very difficult to answer that there’s a vest, there’s a vested interest there. And, in addition, my understanding is, at least until recent times, maybe there’s some minor activity going on now, because the operations to construct the necessary facilities at the power plant to retrofit it stopped. And so there really is no harm in now if you take the time to fully educate yourselves, have the Planning Department do what it should have done in the first place. And, again, the argument comes from – look at where we’re at? You have a Judge sending you back part of the case. We’re going to appeal all, all of his decisions if we have to. And although Mr. Grimmer is correct, he has taken a very narrow view of what’s on appeal, I don’t think the appellate courts are going to do the same. But you have the opportunity to not just fix this portion of it but to re-examine your reliance on Planning Director’s and Hearings Officer’s determinations which are now proved to be incorrect. So should you just look at what the Court has identified as incorrect or should you as public servants dealing with a power plant that’s going to be poisoning your fellow citizen and neighbors, unrebutted evidence, should you look at it as a whole? And you can do that in the context, I submit you can do that in the context of a revocation of the permit, even as this case goes on and it’s appellate frozen in time view. And really this, this order from the Court shows how flexible time is. He is basically inviting you to fix what was wrong. And it’s up to you to decide whether you can just take that alone and whether you have to have, as I submit, opportunities for citizens to testify and know what’s going on. Your agenda today doesn’t really, doesn’t really present that, and I don’t think that people had public notice of what really is at issue here. Or you can just simply sign off and say, oh, yeah, we’ll treat it as if we really had to shift the approval at the time that we gave the permit, we’re going to affirm the permit. So you have the opportunity to take another look. And I submit that the demonstrated errors of the Hearings Officer, of the Planning Director, and of the Planning Commission are all wrong under the law. If you look at the Judge’s decision it should give you an indication that there may be other problems. Finally, Charlie, if you look at the decision, at the Order, it asks you to clarify whether you need to conduct further hearings and receive additional evidence just for this narrow purpose. It’s at page 2 of the Order under part 1. So I think they’re rubberstamping. What Mr. Grimmer has prepared for you would be an in appropriate course of action. HEAUKULANI: Thank you. 8 EXHIBIT B GONZALES: Thank you, Mr. Strauss. Mr. Grimmer, you were signed up for public testimony. Did you want to testify at all? GRIMMER: No. No, I just wanted to let the staff know -. But I did want to address the issue, I’d like to respond very briefly. NOMURA: Microphone. GRIMMER: No, I’m not going to do any public testimony. I’m simply here as the attorney for Hu Honua, the Applicant; and I withdraw that. I just wanted the staff to note I was here. The word narrow is not Hu Honua’s word. That’s the Judge’s word. That’s what is in his Order. He used the word “narrow” for a particular purpose, that’s the purpose I outlined earlier. You’re not supposed to read between the lines of his Order. He hasn’t made a decision yet even. He has only made an Order remanding for this narrow question. So for Mr. Strauss to sit here and try to raise all the things that he tried to raise with the Judge, which the Judge rejected -. And let me just call your attention to Exhibit 7 of your packet where the Judge said, yeah, your opening brief can be used in this Court but I will not address, and he listed the things he will not address, the arguments raised only in the Statement of Case, including its Statement of Points of Error and Exhibits A and B attached to and filed in conjunction with Appellant’s Notice of Appeal and (b) the points or issues raised in the last full paragraph on page 8. So the Judge has already issued one Order saying we’re not going to consider all these other things that Mr. Strauss is now asking you to consider, and followed that Order up with the word “narrow” of remanding on the very issue that I addressed in my opening remarks. The procedure, the law or the Administrative rules do not give the Appellants and those that object to this project unlimited bites at the apple. They had a bite with the Hearings Officer, they had a bite with this Planning Commission; and they have their bite continuing with the Court. And you are tasked only with the very narrow participation in that remaining bite that they’re taking. As for the SHPD process, they had every opportunity if that’s what they wanted to do, to file written objections with SHPD concerning the report that SHPD finally adopted, or even the prior reports that SHPD was considering. They didn’t do that. There’s no evidence they did that. And for you folks to reopen this at this point without some due process notice which the Appellants failed to follow, they’re not getting any -. You know, if they have a complaint about what’s going on at the project where millions of dollars are being invested in the ground out there, they should file a complaint with the Planning Department and see if there’s anything going on out there that doesn’t comply with the permit that is in place and is valid and that we are able to proceed under. So they had an opportunity to participate in the SHPD process, there’s no evidence that they did. You can’t reopen anything today, sua esponte. They need to file their complaints with the Planning Department if that’s what they think should be done. So thank you again for your attention and we look forward to a ruling. 9 EXHIBIT B STRAUSS: Mr. Chair, may I just add one point -? GONZALES: Okay. STRAUSS: Please. Thank you. Well, because my -. NOMURA: Microphone. STRAUSS: Sure. Because my brief was cited, if you, if you actually read it and if you go to page 7, it’s pretty, pretty easy to read, pages 7, 8 and 9. Part of what the Judge says he’s going to consider is only what’s in this part of the brief. The brief raises the Public Trust Doctrine which directly affects the ocean waters of the Hamakua coastline, the air quality of air that Big Island residents are breathing, and the energy policy of the State of Hawai‘i. It’s not as narrow as Mr. Grimmer would have you believe. It’s very, very broad. The Public Trust Doctrine is very hey’re of broad, and there are specific examples cited. Trecord in the remainder of page 8 under item numbers 14, 15, 28, 29, 30, 31 and 32. And I’d like, again, I’m not suggesting that you ignore the Court’s Order. I’m suggesting that you have the power and the jurisdiction through another mechanism to directing the Director to revoke this permit or to reconsider this permit based on more background report, more evidence that was not presented to this Planning Commission at the time. All you got were some recommendations and they proved, at least this respect, to be wrong. And that should give you some pause. GONZALES: At this time I’d like to entertain a motion. HEAUKULANI: Mr. Chair. GONZALES: Yes, sir. HEAUKULANI: I am troubled by some of the issues that Mr. Strauss has raised. I have some concerns that I shared, but at the same time I feel that procedurally we are limited in what we can do here today by Judge Nakamura’s remand order. I feel like many of the issues -. Well, these issues are going to be resolved. They’re just not going to be resolved here. And given what has come back to us from Judge Nakamura, I feel that we are very limited to the two issues that he sent back to us. And for that purpose, and I have been provide with a draft Supplemental Findings of Fact, Conclusions of Law, and Decision and Order. And my motion would be to adopt the recommended Supplemental Findings of Fact, Conclusions of Law, and Decision and Order for purposes of resolving the issues before us today. GONZALES: Would anybody like to second that? MIYASATO: Second. GONZALES: Discussion? Mr. Darrow? 10 EXHIBIT B DARROW: Thank you, Mr. Chair. The motion before us is to adopt the proposed Supplemental Findings of Fact, Conclusions of Law, and Decision and Order. With that, we’ll take the roll call. Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: Commissioner Miyasato? MIYASATO: Aye. DARROW: Commissioner Henkel? HENKEL: Aye. DARROW: Commissioner Moses? MOSES: Aye. DARROW: And Mr. Chairman? GONZALES: Aye. DARROW: The motion passes five to zero. GONZALES: Thank you. The discussion ended at 12:31 p.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 11 EXHIBIT B