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HomeMy WebLinkAbout2018-05-03 Hearing Transcript - Hu Honua Bioenergy SMA 221WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MAY 3, 2018 A regularly advertised hearing for the Intermediate Court of Appeal's Order of partial remand regarding HU HONDA BIOENERGY LLC (SMA 221) was called to order at 10:55 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Joseph Clarkson presiding. COMMISSIONERS PRESENT: Gilbert Aguinaldo, Joe Clarkson, Donald Ikeda, Myles Miyasato, Thomas Raffipiy, John Replogle. ABSENT & EXCUSED: Donn Dela Cruz. ALSO PRESENT: Michael Yee (Planning Director), Malia Ho Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Christian Kay (Planner), Shancy Watanabe (Planner) (to 11:13 a.m.), Melissa Dacayanan (Planning Commission Support Technician), and Sarah Hata-Finley (Commission Secretary). And 37 members from the public in attendance. APPLICANT: HU HONDA BIOENERGY LLC (SMA 221) Consideration and Adoption of Proposed Second Supplemental Findings of Fact, Conclusions of Law and Decision and Order of the Commission to reflect that Outfall 001 will not be replaced or repaired, and therefore will not affect the public shoreline. The Proposed Second Supplemental Findings of Fact, Conclusions of Law and Decision and Order of the Commission are being considered in response to the Intermediate Court of Appeal's Order of Partial Remand filed January 22, 2018 of the Final Judgment of the Third Circuit Court's Order filed on March 10, 2014, to the County of Hawaii Windward Planning Commission, for the narrow purpose of the Windward Planning Commission to address the impacts on the public shoreline with regard to repairing or replacing Outfall 001. Special Management Area Use Permit No. 221 was originally approved to allow the establishment of a coal storage area and a coal burning energy plant and related improvements. The permit was amended in 2011 to allow 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`ekeo Power Plant, Makahanaloa, South Hilo, Hawaii, TMK: (3) 2-8-8:104 (formerly 2-8-7: Portion of 53). CLARKSON: The next item on the agenda is Item No. 3. This is an adoption by the Commission in furtherance of the action that we took at our last meeting. Consideration and adoption of a Proposed Second Supplemental Findings of Fact, Conclusions of Law and Decision and Order of the Commission regarding an Outfall that the Intermediate Court of Appeals asked us to reconsider the effect of repair or replacement of that structure, and at the last meeting, it was determined that there would be no repair or replacement of it. EXHIBIT C So, at this meeting, the Commission will adopt a Supplemental Finding, and Commissioners, there will be no presentation. People who want to testify on this issue should already be signed up with staff So far, we have four signed up to testify. And, at this time, I would like to read the script so I get it right. I'd like to call up at this time Hu Honua, representatives from Hu Honua and any Intervenors, if any, that were from the—considered during the remand at the ICA. So, if you would please come up. The Intervenors were Hilo Project, Robert and Patricia Ferrazi, Susan Munro, Kerry Glass, Marcus Spallek, and Elaine Munro. If any of you are here, you're also welcome to come up at this time. If not, we will, I'll swear in the representatives from Hu Honua. Do you swear or affirm to tell the truth on this matter before the Commission today? LEE/W. YAMAMOTO: Yes. CLARKSON: Thank you. Please proceed with your reaction to the Proposed Supplement Findings. W. YAMAMOTO: Good morning. My name is Wil Yamamoto. I'm counsel for Hu Honua Bioenergy, LLC, and with me on my right is president of Hu Honua, Warren Lee. Hu Honua has reviewed the Proposed Second Supplemental Findings of Fact, Conclusions of Law and Decision and Order, and we have no changes. We don't object to the form of the Order. CLARKSON: Okay. Does any Commissioner have any questions for these gentlemen? If not, thank you. LEE: Thank you. W. YAMAMOTO: Thank you. CLARKSON: And, we will proceed with public testimony. We have four people to my knowledge that have signed up already. Would Dwight Vicente, Cory Harden, George Martin, and Claudia Rohr please come forward to be, for three of you to be sworn in? Ms. Rohr has already been sworn in today. Would you three please raise your right hands? Do you swear or affirm to tell the truth on this matter before the Commission today? HARDEN/MARTIN: Yes. VICENTE: I had a question on that. CLARKSON: Oh. VICENTE: Because each and every one of you took an oath that EXHIBIT C 2 HALL: Speak into the microphone. It's on. CLARKSON: It's on. VICENTE: Can you hear me now? Because each and every one of you, I believe, took an oath to the U.S. Constitution, it's questionable whether you have any authority to issue a sworn statement, have anybody issue a sworn statement. CLARKSON: We'll take that under advisement, sir. Let the record show that two of the three parcels [sic], participants so affirmed, and one did not. And, your name, again, sir? VICENTE: Dwight Vicente. CLARKSON: Dwight Vicente did not. Let's start with George Martin, and please speak into the microphone and introduce yourself. MARTIN: Good morning, Mr. Chair. George Martin. I'm speaking in favor of the Findings, and I think that I spoke the last time I was here, and in regards to it, again, if there's something that Hu Honua would need to do and the committee or members of could give them advice per se in making sure they meet whatever regulations and rules that are in place, please do so. But, again, there is nothing that they're doing that is per se illegal, wrong, or otherwise frowned upon. And, again, I would like to think that the council would vote accordingly and allow them to proceed. VICENTE: Good morning, Dwight Vicente. I'm representing the Hawaiian Kingdom. The Hawaiian Kingdom has longstanding questions of law between or based on the Reciprocity Treaty of 1875 with the United States. That Treaty is based on the Northwest Ordinance of 1787, which is limited to Article 5 which is the Ohio River Valley only. So, the land speculation that's being done on what—these lands are Crown lands that's in question right now. You would need a lease for 25 years from the Crown. So, that question needs to be raised, and let me first start off with the jurisdiction. This is the Hawaiian Kingdom still. There is no State of Hawaii amended into the U.S. Constitution or even citing in Article 1, Section 2, Clause 3 of the U.S. Constitution. So, anybody saying that they are in the Hawaiian Kingdom [sic], they must be on Fantasy Island because that's not one and the same. It's the Hawaiian Kingdom. So, it's based on land speculation which the Hawaiian Kingdom does not do because it'll lease the land, and all lands are subject to native tenant rights. So, when those leases ended in 1920, early 1920's, the plantation claimed it owned the land, which is false. So, the question is always in play. The question of who owns the land or whether they have a valid lease. The claim as to they own the land is false so that could be settled right there. So, with that, I'll end with the reservation of the Kingdom, Kingdom's rights, under the Queen's protest of January 17, 1893, against U.S. Minister Stevens. [Inaudible] to make its way to the U.S. Supreme Court, Article 3, Section 2, Clause 2, and the other one is the application, the EXHIBIT C 3 illegal application of the Northwest Ordinance of 1787 to his Kingdom by way of the Reciprocity Treaty of 1875, which was continued in 1898 by a joint resolution where Congress continued the Treaty so they can stay here and do, continue the business and occupy. Thank you. HARDEN: Good morning, Commissioners. I want to thank you for your volunteer service. Cory Harden from Sierra Club. I'm hoping—there are some questions I hope you will address in your discussion. I have them in my written testimony. Number one, Hu Honua says they're not going to repair or replace the collapsed portion of the Outfall, and they say, therefore, the Commission doesn't need to do anything. But, two things have changed. Water is now running unimpeded down the cliff base. I have a picture which I'll ask staff to pass around that I got from Claudia showing how the water used to go the Outfall and now it's running right down the cliff base. CLARKSON: We all have a copy of those photos. HARDEN: Oh, Claudia's been ahead of me. Okay. So, the water is running down the cliff base and injection wells are planned, so these are two changes. Are these things actually replacements for the Outfall, and that would mean the Commission would have to address the impacts. Second question, has anyone evaluated whether water from the injection wells will migrate to the shoreline or the ocean. Three, we all know if you change something upstream, things may change in 20 ways downstream, and will Hu Honua construction or operation change the speed, direction, or effects of water that's flowing over the property. Four, will the Outfall discharge storm water? That would require a State easement, maybe some other permits. Five, and who determines if the Outfall will discharge storm water? Do you just takes Hu Honua's determination on that or someone else? Six, who determines if the surface run-off going down what's left of the Outfall is behaving the same as before Hu Honua construction? Seven, what are the impacts on the cliff, beach, ocean, and ocean floor from suddenly having no flume? Eight, is the building still considered an existing structure? There's been a lot of alterations. Nine, are any of these things required? A State easement? A shoreline survey? A shoreline setback variance or an environmental assessment? And, ten, does the method of wastewater disposal require a permit or an environmental assessment? And, lastly, do the injection wells and the fourth cooling well require a major Special Management Area Permit? Or, did they require an updated environmental report to evaluate impacts to the aquifer? So, I hope you folks will discuss these questions. Thank you. CLARKSON: You may proceed, Ms. Rohr. ROHR: I'm Claudia Rohr. Adoption of the Finding of Fact which operation, which by operation informally approves construction and use of underground injection wells to dispose of over 21 million gallons a day of wastewater, treated wastewater, and construction of a new 8,000 million gallon a day cooling water well in the SMA area and Hakalau aquifer without an advertised public meeting on the matter clearly violates the Sunshine Law. Adoption, adopting Finding of Fact and Conclusion of Law, which by operation informally approves continuation of illegal non -conforming use of the remnants of the Old Mill House for the power plant's storm EXHIBIT C 4 water drainage system, which would perpetuate, continue, and exasperate use of a storm water drainage system for a power plant that has no permits or approvals required by law, without an advertised public meeting on the matter clearly violates the Sunshine Law. HRS 92-7. I consulted with the OIP on this, and they encouraged me to go to court. You just got this thick document. Attachment 8 is an email from the Public Works Department saying that their engineer did not approve the 111.5 cubic feet per second of storm water going through the Old Mill foundation and out the Outfall pipe. Attachment 9 is an answer to a formal request for information where the Public Works Department states that they have no drainage studies for this property. Therefore, this not only breaks the Sunshine Law, but there's a lot of people out there who might have been interested in discussing removing water and injecting water in the Hakalau aquifer, and they, what wasn't consideredI'm sorry, she rattles me by holding up that sign—this remand was a narrow purpose. The broadest description of which was to be considered on remand is whether Hu Honua can make an affirmative showing that any work done or not done to repair or replace the collapsed Outfall structure will not conflict with the principles and purposes of the Public Trust Doctrine. This might include impacts in the form of beach deflation and land where migration of the erosion scarp, sedimentation of submerged lands habitat resulting in imbalance in the ecology of coral and fish populations and catastrophic failure of the sea cliff In other words, there's been no engineer that has stated that that Old Mill foundation and the Outfall pipe can sustain a hundred and eleven cubic yards of water per second without it destroying the land underneath it, the pall face, the beaches, cause clean water violations. I attached to my testimony the report by the Clean Water Department showing that they violated their NPDS Permit, that there's sediment in the Outfall pipe, that to this date, there's no proof that that structure worked for the purpose that they're claiming it's going to be used for. CLARKSON: Please summarize. ROHR: Okay. CLARKSON: And finish up. ROHR: Every time the Clean Water Department has come for inspection since 19—since 2,000, they have found them in violation of not settling out the sediment and the ash. And, that Old Mill foundation is not functioning, and it's dilapidated, and the walls around it are almost vertical 40 -foot walls and they're starting to collapse. So, when, since in this permit, the last version in '95, that's when you should have done a shoreline variance, and it should have triggered an EA. CLARKSON: Please wrap it up, Ms. Rohr. ROHR: Well, to say it's existing and there's no new uses is disingenuous. Thank you. EXHIBIT C 5 CLARKSON: Okay, are there any questions from the Commission for any of these people testifying? If not, I'll have a motion that we close—Chair would entertain a motion that we close public testimony. Is there any other—make sure that there are no further testifiers? IKEDA: Okay, I move to close public testimony. RAFFIPIY: I second. CLARKSON: All those in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Motion carries. Public testimony is closed. Thank you for your presentations. Do we have any questions for Corp. Counsel or discussion before we entertain a motion for action on this matter? I would just like to say one thing in response to the testimony. The remand from the Intermediate Court of Appeals was very narrow, and in their record, all of the issues that were testified about today were discussed, and I'd just like to reassure everybody that even in this supplemental finding as in the original permit, it requires Hu Honua to comply with Department of Health, all other County, State, and Federal requirements regarding water discharge for the subject property. So, the public health is covered, and the Intermediate Court of Appeals knew that and made that part of their remand document. So, if there's no further discussion, I'd like to have a motion for action on this matter. RAFFIPIY: Mr. Chairman, I'd like to make a motion. I move to adopt the Proposed Second Supplemental Findings of Fact, Conclusions of Law, and Decision and Order for Special Management Area Permit No. 221. IKEDA: Second. CLARKSON: Proceed with the roll call vote. It's been moved and seconded. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. JACKSON: Commissioner Aguinaldo? AGUINALDO: Aye. JACKSON: Commissioner Replogle? EXHIBIT C 6 REPLOGLE: Aye. JACKSON: And Chair Clarkson. CLARKSON: Aye. JACKSON: Okay, the motion carries five, zero. The discussion ended at 11:15 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission VA EXHIBIT C