Like a roly-poly doll, Claudia Rohr takes a punch and springs right back up again. Last December, the woman who owns a bed-and-breakfast operation in the Hilo neighborhood of Keaukaha filed a complaint in 3rd Circuit Court against Hawai‘i County agencies for granting permits to the Hu Honua plant in Pepe‘ekeo, which proposes to burn biomass to generate around 30 megawatts of electricity.
That lawsuit was dismissed in September by Judge Greg Nakamura, who held that the complaint, which sought to force Hu Honua to conduct an environmental assessment for the project, was untimely, given that the challenged action occurred in 2011.
The more recent lawsuit names as defendants the state Departments of Health and Land and Natural Resources, the County of Hawai‘i Windward Planning Commission, Planning Department, and Department of Public Works, and Hu Honua Bioenergy, LLC.
The actions that Rohr is challenging now – arguing that they are subject to review under Hawai‘i’s Environmental Policy Act (Chapter 343) – involve permits issued by the Department of Health under the National Pollutant Discharge Elimination System and for underground injection control (UIC) wells.
Rohr argues that the permits authorize activities that “rise to the level of an ‘action’ which meets three of the categories of action” under Chapter 343 and that they are not exempted under any of the exceptions allowed under the same law.
This time around, Rohr’s challenge to the contested actions does fall within the 120-day time frame for judicial appeal. The NPDES permits she is challenging were issued on June 6 and September 6 by the DOH’s Safe Drinking Water Branch. The DOH’s Safe Drinking Water Branch issued its approval to construct three UIC wells on June 14.
The Department of Land and Natural Resources is properly a defendant, Rohr claims, inasmuch as it is “a necessary party to resolve the issues regarding Hu Honua’s alleged encroachments onto state- owned land; and to resolve the issue of Hu Honua’s use of submerged lands in the conservation zone for thermal wastewater management.”
As background, Rohr notes that in 2011, Hu Honua sought to certify the shoreline in connection with an effort to repair a collapsed flume. Rohr challenged this at the time, and as a result, she says, Hu Honua abandoned its efforts to repair the flume, applying instead for permits for UIC wells.
In March of this year, Rohr says, she complained to the DLNR about Hu Honua’s use of state land without having obtained an easement. Hu Honua then withdrew its request
for the certified shoreline – as noticed in the September 8, 2018 Environmental Notice published by the state Office of Environmental Quality Control. (A certified shoreline is good for no more than one year. That means that even if Hu Honua had not formally withdrawn its 2011 application, there is little chance that it could have been approved in any event.)
By withdrawing the application for a certified shoreline, Rohr says, she was left “with no administrative resolution in sight, and no due process.”
Rohr’s correspondence with the DLNR Land Division, however, undercuts the claim that Hu Honua will be needing an easement. Rohr did complain to the DLNR on March 16 that Hu Honua would be using “the remaining piece of outfall pipe or ‘concrete chute’ that broke at the cliff face for managing industrial storm water discharges from most areas (about 17 acres or more) of their power plant facility.”
In support of her claim, Rohr noted that Hu Honua had told the county of Hawai‘i Planning Department in September 2017 that they are “continuing to use the outfall pipe ‘as is’ for storm water discharges.” In addition, she wrote, Hu Honua’s “Final Plan” shows that the primary drainage basin is linked to the outfall pipe.
The DLNR followed up on the complaint in a letter to Hu Honua dated July 9. In it, Land Division administrator Russell Tsuji informed Hu Honua and Maukaloa Farms, LLC, which owns the property, that if the outfall “is being used to discharge storm water, then the landward property owner must obtain an easement from the state as well as all required permits. Additionally, in seeking an easement from the state, the applicant must comply with Chapter 343.”
On August 28, Hu Honua president Warren Lee responded. “At this time, Hu Honua no longer requests or requires a shoreline certification … because it no longer intends to repair, replace, or use the collapsed outfall structure. Instead, all discharge from plant operations and development-generated storm water runoff will go into underground injection control wells or dry wells, all of which are located on site.”
Accordingly, because Hu Honua no longer requests or requires a shoreline certification, and because Hu Honua will not repair, replace, or use the collapsed outfall structure, there is no need for a determination of whether there is an encroachment and no need for an easement.”
The Hawai‘i County Department of Public Works is named as a defendant by Rohr, inasmuch as it is charged with administering county laws relating to erosion and sedimentation control and floodplain management. Rohr seeks to have it participate in the litigation “to help determine if Hu Honua’s drainage-settling basin, used for concentrating stormwater in the old mill house foundation has any permits or approvals or is certified by a licensed engineer; and whether this is a ‘new structure’ and/or ‘new use’ requiring permits and approvals.”
In addition, Rohr argues that changes in the operating plan of Hu Honua mean that the temperature of water discharged into the ocean will be higher than the temperature stated when initial permits were received – and that the resultant damage to nearshore ecosystems will be increased. — Patricia Tummons
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