A Brief History
Since it first opened nearly 18 years ago, the Waimanalo Gulch Municipal Solid Waste Landfill has become the landfill on the island, accepting each year some 300,000 tons of municipal solid waste and between 85,000 and 95,000 tons of ash from H-POWER, O`ahu’s waste-to-energy facility.
The long, narrow property, owned by the city, encompasses 200 acres, with the landfill occupying about half that. In 1999, then-Mayor Jeremy Harris signed an agreement with Waste Management to continue operations for another 15 years, despite the fact that the city and Waste Management’s DOH permit to operate the landfill was set to expire in 2002.
Instead of closing the landfill that year, in December 2002, the city completed a final environmental impact statement for a 14.9-acre expansion, which would allow the landfill to operate five more years. Because the landfill lies within the state Agriculture District, the city needs a special use permit from the state Land Use Commission in addition to its DOH solid waste permit. On March 27, 2003, the LUC approved a special use permit allowing for the expansion, but requiring the landfill to cease accepting municipal solid waste and be closed on May 1, 2008. On May 15, the DOH renewed the city’s and Waste Management’s permit, which was set to expire the previous day, April 30.
The new deadlines prompted the city to search for a new landfill site. Harris formed a 15-member “Blue Ribbon” committee to come up with a new site and give its recommendations to the County Council by the end of 2003. Disagreements over whether an expanded Waimanalo Gulch site could be considered led to the rejection of other sites – quarries in Kapa`a and Ma`ili, and Makaiwa Gulch, among others. In late 2004, the County Council voted to continue operating Waimanalo Gulch, which was said to have more than 15 years of capacity remaining.
A year later, though, the council had changed its mind, passing a bill calling for the closure of the landfill by May 2008. But the new mayor, Mufi Hannemann vetoed the bill, stating that closing Waimanalo Gulch so soon would “cripple” the county.
“[G]iven the indisputable facts that (1) the City cannot have a new landfill in operation by May 1, 2008, and (2) for the foreseeable future, the City needs a landfill on island, the Bill’s requirement that the Waimanalo Gulch landfill be closed after that date exposes the city to an untenable choice in 2008 between (1) continued illegal operation of the landfill, thereby subjecting the city to possible regulatory fines, injunctions, and other lawsuits, or (2) the cessation of any landfill activity, which will mean no collection of municipal solid waste, island-wide. Neither alternative is acceptable to me, not to you and your constitutents,” Hannemann wrote in his Mayor’s Message No. 037.
He added that even if a new site was selected that year, the city could not plan, permit, and construct it in time. “Other alternatives such as shipping off-island or new technologies have many issues…which will not be resolved before May 1, 2008,” he wrote.
Violations
Before Hannemann’s veto, when the landfill’s closure in 2008 seemed inevitable, complaints about its operation – windblown litter, uncovered waste, and excessive mud and odors – spiked. Some have suggested that Waste Management stopped spending the money needed to manage the landfill properly. Alternatively, nearby residents may have become more vocal in their complaints after the landfill’s permits were extended past 2003. Whatever the reason, the state Department of Health noted an increase in the frequency of complaints.
In January 2004, DOH deputy director for environmental health Laurence Lau informed the city and Waste Management that his staff had determined that the landfill had been violating its permit for “an undetermined period of time.” Lau noted that the grades in the ash monofill, which receives H-POWER’s waste, were steeper than those prescribed in the landfill’s master plan, that annual reports had not been submitted or were incomplete, and that neither the city nor its operator had notified the DOH of the non-compliance.
Throughout 2005, DOH ramped up inspections, visiting the site about 20 times (an unprecedented frequency for one year). On nearly every visit, DOH staff found apparent violations. On January 31, 2006, the DOH issued a Notice and Finding of Violation and Order, proposing to fine the city and Waste Management $2.8 million for 18 categories of violations of their solid waste permit. The fine is the largest the DOH has yet proposed.
Among the violations were: exceeding permitted grades in both the ash monofill and in municipal solid waste cells; failure to submit annual reports on time; failure to place daily cover on the active face of the landfill; failure to place intermediate cover on the ash monofill; excessive leachate; failure to measure and maintain records on leachate levels; failure to notify the DOH of noncompliance; unauthorized storage of rocks and dirt in the ash monofill; failure to manage and ban the acceptance of special waste (specifically, tires); failure to maintain records and record the location of asbestos disposal at the landfill; failure to cover a dead animal; failure to submit an annual surface water management plan; failure to control dust generation from vehicles; failure to minimize litter; and failure to monitor explosive gases and maintain monitoring records.
The order required more than a dozen corrective actions, including the immediate implementation of a full-time spotter to screen hazardous waste and the submittal of regular monitoring reports. The order, which also required the submission of a plan and time schedule for waste management after May 1, 2008, stated that should the city decide to continue operations at Waimanalo Gulch or anywhere else, a complete solid waste management permit application would need to be submitted at least one year in advance of the expiration date of the current permit.
Shut Out
Instead of accepting the order’s requirements and the finding of violation, on February 13, 2006, Waste Management and the city requested a contested case hearing, which is a public, court-like proceeding used by state agencies to settle disputes. That same day, state Sen. Colleen Hanabusa, who represents the Wai`anae district and has pushed to shut down the landfill, formally asked to intervene in the contested case.
Despite the request for a contested case hearing, the DOH attempted to negotiate a settlement behind closed doors. Failing that, the contested case was scheduled to be held from October 2 through November 9, 2006. But according to a 2007 report to the Legislature, the hearing was rescheduled to begin on January 2, “to allow for continuing settlement negotiations.”
In the meantime, two critics of the landfill were cut out of the picture. After a December 4, 2006, hearing on Hanabusa’s motion to intervene, hearing officer Thomas Peck ruled that she would not be allowed to participate in the contested case.
“Everyone objected to me intervening – Waste Management, the state and the city,” she told Environment Hawai`i.
Later that month, during settlement negotiations, Gary Siu, who is one of just two solid-waste engineers with the DOH, was booted from the enforcement case after Waste Management raised allegations that one of its former employees, Joseph Hernandez, paid for golf and dinner for one or more DOH employees, including Siu. According to Siu, who had accompanied DOH landfill inspector José Ruiz on many of the site visits that led to the violations, these allegations eventually led to him being banned from working on anything involving Waste Management, which also runs the Kekaha landfill on Kaua`i and the Waikoloa landfill on the island of Hawai`i.
The state’s investigation of these allegations has not yet been closed, but Siu rejects the any suggestion that Hernandez had any influence on his actions as a DOH employee, noting that he and Ruiz documented violations in Hernandez’s presence.
“My job is to support José Ruiz. I’m a permit person. He’s an enforcement person. I can’t interfere. That’s how it’s set up,” Siu says, adding that he believes Waste Management raised the charges precisely to sideline him from participating in the enforcement case. Siu has been working with landfills since 1989 and has been closely involved in permit oversight as the Waimanalo Gulch landfill has developed over the years.
Concerned over where the ongoing private negotiations between DOH, the city, and Waste Management might lead, Siu, Hernandez, the non-profit group Envirowatch, and its executive director, Carroll Cox, filed a complaint in U.S. District Court on January 12 against the DOH and its director, Chiyome Fukino, for failing to include the public in the enforcement case. In the past, the DOH’s confidential negotiations with violators have whittled large proposed penalties down to minimal amounts. Michael Ostendorp, the attorney representing the parties, says that there had been talk of reducing the Waimanalo Gulch fine to $1.1 million, but that figure was rejected as too low. The complaint argues that even the proposed fine of $2.8 million represented a deal for the landfill operators, encouraging further non-compliance with permit conditions.
“The benefit [of not complying] is to the tune of $5 million,” Ostendorp claims.
The federal complaint also argues that the federal Clean Water Act and the Resource Conservation and Recovery Act require state agencies to provide for public participation in the enforcement process. Under these laws, Cox, Siu, and Hernandez argue, they have a right to participate in the settlement discussions.
In addition to the issue of public participation, the complaint says that the landfill continues to be operated in violation of permit conditions. Siu believes the landfill is “in an unpredictable state based upon the abnormal gas and temperature conditions and he believes that people’s safety and health is at risk because of those unstable conditions, which are creating the characteristics of regulated hazardous waste, such as ignitability, reactivity, toxicity and corrosiveness,” the complaint states, adding that the landfill still has no full-time spotter to screen for hazardous waste. It also states, “As a result of joining this lawsuit as a plaintiff, Siu has been prohibited from working on any matter related to Waste Management of Hawai`i…”
U.S. District Judge Susan Oki Mollway dismissed the case without prejudice in late February, saying they did not have standing. She cited a February 6 declaration by Lau that there were no settlement negotiations at the time and that disposition of the case had been assigned to a hearing officer.
Yet questions persist over whether any documents have been filed in that case. The DOH’s 2007 report to the Legislature states that after the city and Waste Management requested a contested case hearing, “the parties exchanged numerous documents.” However, DOH inspector Ruiz, on the basis of information given him by deputy attorney general Kathleen Ho, told Environment Hawai`i that “there are no documents in the file regarding the contested case.”
On March 19, Ostendorp filed an amended complaint in U.S. District Court, this time with a better explanation as to why his clients have standing. The complaint seeks a declaration that the DOH’s failure to encourage and provide public participation as required under the Clean Water Act and RCRA is unlawful. It also asks for a permanent injunction ordering the DOH to immediately comply with those federal requirements. The state again filed a motion to dismiss. A hearing on this motion was to have been held on June 26.
Upgrades
Paul Burns, vice president and general manager of Waste Management Hawai`i, says he can’t comment on the circumstances behind the notice of violation. But by all accounts, Waste Management has made strides in bringing the Waimanalo Gulch landfill into compliance. In the summer of 2005, Waste Management created a new, full-time environmental compliance specialist position. Burns, who is part of a new management team that came on board in mid-2005, says that 16 of the 18 violations cited in January 2006 had been addressed to the DOH’s satisfaction before the violation was even issued.
DOH solid waste branch chief Steven Chang, however, is tight-lipped on the matter. “I can’t comment… They can say they’re in compliance. I’ll just leave it at that,” he said.
Since mid-2005, Waste Management has installed a gas collection system, which helps eliminate odor, added more litter fences, and upgraded its drainage system. The company has plans to expand the gas collection system, which could eventually generate enough power to supply nearly 1,000 homes, Burns says.
The remaining two violations are exceeding the permitted slopes in the ash monofill and operating with a broken leachate pumping system. These are being addressed, Chang and Burns say, although it could be months before they can be fully resolved.
Since 2004, the slopes in the monofill have been steeper than what’s allowed in the permit. In February 2006, to remedy this violation, Waste Management submitted an application to change the permitted grades of both the ash monofill and the municipal solid waste landfill. This modification, if approved, will extend the life of the monofill for a few more years. The DOH initially responded that the application was incomplete. Although Waste Management supplied additional information on October 2, no amendment has been approved. (In the past, Siu would have been tasked with reviewing the soundness of any plans to increase grades, but he is now unable to review any Waste Management permit.)
Chang says that while he doesn’t know how long it will take to approve the amendment, it can be done within 180 days. The DOH still needs to draft a modified permit, which must then be made available for public review. If comments indicate that there is a significant public interest, a hearing will be held. In cases where the DOH knows there will be public interest, the DOH might skip the comment period and go straight to a public hearing to cut down the processing time, he says.
While the DOH is reviewing the modification request, ash continues to be placed in the monofill, a situation that worries Siu.
“Why did we cite for overfill?” he asks. “The problem is stability. If you fill more than what’s safe, it might actually slide out of that valley…the factor of safety has been changed.”
Chang, on the other hand, is not worried. “The construction [in 2005] of a berm in front of the ash monofill addresses that issue,” he says.
Burns notes that although the monofill’s permitted capacity has been exceeded, the current level of ash is less that what was allowed under a previous permit. The monofill’s capacity in the 2003 permit was reduced as a result of concerns over stability, he says.
As for the broken leachate sump, Burns says his company plans to install a new one this month.
A Settlement?
According to Chang and Burns, no settlement talks are occurring. Burns says the last talks were held last year. “I would like to restart them, if possible,” he says. Until the violations are settled, “we’re in limbo,” he says.
Whether negotiations fell apart or have been suspended pending the outcome of the federal court case is unknown. But Ostendorp, the plaintiffs’ attorney in that case, says that the city’s and Waste Management’s failure to submit a new permit application by now suggests that “they truly settled the case.”
While no permits have been sought from either the LUC or the DOH for the time extension or expansion, Chang says that the Health Department’s administrative rules require a permit application to be completed roughly six months before the expiration of the existing permit.
Burns admits, “we’re running short on time, and says he doesn’t know when a draft EIS for the expansion will be completed. The city is taking the lead on that, he says. Eric Takamura, head of the city’s Department of Environmental Services, had not responded to questions by press time. However, news reports last month stated that the DEIS may be held up by the discovery of upright stones that may be culturally significant. The reports also stated that the city plans to seek permit extensions to December 2009. In the meantime, the County Council has been moving forward with plans to ship trash to the mainland.
“Normally, we ask them for a year to help expedite the processing. Rules say they need a complete application 180 days prior to the expiration date. There have been discussions [about a new permit], but I have not seen any final document,” Chang says.
He adds that even if violations remain unresolved when a current permit expires, a new one can be issued if the violations are minor or if corrective actions are being taken. “It’s possible, but it would be a decision by the [DOH] director… It depends on the nature of violations,” he says.
Because the violations are in a contested case mode, Burns says, the DOH’s order has been suspended. If, in the end, the hearing officer finds in the DOH’s favor, Burns says the deadlines set forth in the order would have to be modified, given that many of them have already passed.
Still, “We think we have a good case to make it go the other way,” Burns says.
Last month, local television and newspaper reports stated that the city filed a complaint with the Honolulu Police Department against Waste Management’s landfill manager for Waimanalo Gulch, David Fuiava. The city reportedly accused Fuiava of taking kickbacks from haulers bringing materials to the landfill. When asked whether the DOH is looking into this as a potential violation case, Chang only says that he has been following the issue in the news like most people, and that it is “interesting information.”
— Teresa Dawson
Volume 18, Number 1 July 2007
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