Waimanalo Gulch Operators Contest Fine Despite Leniency of DOH

posted in: August 2010 | 0
 The owner and operator of O`ahu’s Waimanalo Gulch Sanitary Landfill are contesting their $424,000 fine, levied May 13 by the state Department of Health (DOH). The fine was imposed for several infractions, including the use of a wrong type of liner under one of its berms, construction of a berm wall that was too high, and the failure to report its violations to the department in a timely manner — two years and eight months late, to be precise.
The DOH has called the violations inexcusable and disturbing. But in news reports, the landfill’s operator, Waste Management Hawai`i, Inc. (WMH), has argued that the fine is excessive and “disproportionate to the alleged violation.”

A review of DOH records suggests that the violations grew out of a persistent lack of attention to detail by WMH to its permit application and prior permit terms for Waimanalo Gulch. And in the case of the most recent violation, the company’s apparent deceit, combined with a rather lenient DOH, allowed the landfill to continue operating for two and a half years when it could have been shut down.

Broken down, the DOH fine averages less than $500 a day over the total period the violations were occurring. The department has the ability to impose fines of up to $10,000 per day per violation. Although the City and County of Honolulu owns the landfill, its operating contract with WMH requires the company to pay all fines.

Thin Ice

Under the state’s law regarding solid waste pollution (Hawai`i Revised Statutes, Chapter 342H), no one can operate or construct a municipal solid waste landfill without a solid waste permit from the DOH. So in the fall of 2007, with their permit set to expire at the end of April 2008, WMH and the city jointly submitted a renewal application for five more years. Although it was common knowledge at the time that the city planned to enlarge the landfill area by 92.5 acres to add some 15 years of capacity, the application contained no information about the proposed expansion.

Over the next several months, the DOH prodded the city and WMH to update some of the major documents that had been submitted as part of the application, which was eventually amended to reflect the proposed expansion. Because the city’s Special Use Permit from the state Land Use Commission — which allows the landfill to operate in the Agriculture District — was also set to expire in the spring of 2008, the DOH could not accept the solid waste permit application as complete until the LUC approved the site for future use as a landfill, which did not happen until late last year.

With the permit about to expire in a couple of weeks, the DOH notified the city and WMH on April 16, 2008 that they would be allowed to continue operating the landfill while their renewal application was pending. Under HRS Chapter 342H-4(e), the DOH wrote, “No application for a modification or renewal of a permit shall be held in violation of this chapter during the pendency of the applicant’s application provided that the applicant acts consistently with the permit previously granted, the application, and all plans, specifications, and other information submitted as a part thereof.”

Within a few months of that letter, however, the city and WMH appear to have committed a violation. In a September 5 warning letter, DOH Solid Waste Branch chief Steven Chang pointed out several potential violations of terms of their expired permit (which continued to govern their operations): specifically, conditions regarding material storage, use of a screener without DOH permission, failure to properly control their leachate system, and failure to notify the DOH about excessive methane gas and monitoring results in a timely manner.

In a response letter, WMH operations manager Joseph Whelan attributed the apparent stockpiling violations to a misunderstanding between the company and DOH. He added that the other violations had already been addressed or were in the process of being resolved. While Chang stated in his response that he disagreed with Whelan’s characterization of the possible stockpiling violations, the DOH chose not to issue an official Notice and Finding of Violation/Order.

Less than a year earlier, the DOH had settled an April 2006 violation case against the city and WMH that originally proposed a $2.8 million fine for 18 violations at Waimanalo Gulch, including overfilling and unauthorized material storage. WMH was eventually allowed to pay $1.5 million in cash or $520,000 in cash plus the completion of $637,500 worth of supplemental environmental projects and the expenditure of at least $342,500 towards the design and construction of a residential community drop-off center at the landfill.

Also in April 2006, the EPA issued Notice and Finding of Violation to the city and WMH for violating the Clean Air Act, “based on alleged failure to submit certain reports and design plans required by the EPA, and the failure to begin and timely complete the installation of a gas collection and control system for the Waimanalo Gulch Sanitary Landfill on O`ahu,” according to an April 2010 filing by WMH with the Securities and Exchange Commission. EPA inspectors found that the gas collection and control system was installed seven years late and did not meet clean-air requirements. The NFOV did not propose a penalty amount and the parties have been in confidential settlement negotiations, the SEC report states, adding that the company has a reasonable belief that sanctions could exceed $100,000. (The EPA has the ability to impose fines of up to $32,500 per violation per day for Clean Air Act violations.)

Whether any more possible violations exist is unknown since the DOH did not make WMH’s 2009 annual operating report (which would detail any overfilling that might have occurred) or any recent inspection reports available to Environment Hawai`i for review.

Filling Gaps

On September 24, 2009, in a 5-3 vote, the LUC approved a new Special Use Permit to the city for Waimanalo Gulch on the condition that it stop receiving municipal solid waste on July 31, 2012. The permit did allow ash and residue (non-combustible material sorted pre-incineration) from the city’s H-Power waste-to-energy plant to be landfilled until the gulch reached capacity. The city, which had been planning to use the landfill for municipal solid waste for much longer than that, appealed the decision in First Circuit Court on November 19, as did landfill opponents state Rep. Maile Shimabukuro, state Sen. Colleen Hanabusa, and the Ko Olina Community Association.

With a land entitlement in place, the city and WMH turned their attention to their solid waste permit application. After a meeting with DOH staff on October 13 to discuss the application, Whelan wrote the DOH on November 3 requesting confirmation that his company was allowed to continue landfill operations while the solid waste permit was pending. He specifically asked the DOH to confirm that the company could use existing municipal solid waste and ash cells, move three culturally significant stone uprights out the expansion area, construct an access road to the stones, and excavate proposed expansion cells and stormwater management improvements. That same day, WMH and the city also submitted a revised permit application.

In a December 2 letter to Whelan and city Department of Environmental Services director Timothy Steinberger, Chang informed them that their application was far from complete.

He wrote, “During our [October] meeting, we noted that your application package has so many design changes and unresolved questions that it has become largely unmanageable, not to mention obsolete and inconsistent. As such, we requested that you resubmit your entire package to reflect the landfill design you intend to pursue, thereby superseding all previous submissions.”

He continued that their November 2 submission did not address all of the DOH’s concerns and “is not considered a new application as discussed in our meeting. What’s more, he wrote, “Review of the permit drawings revealed that these drawings lack the details required to construct the cells, and, therefore, do not provide enough information to allow the DOH to determine adequacy with respect to environmental issues and state requirements for landfills…”

Chang listed 11 design-related deficiencies within the documents that had been submitted by late 2009, including the lack of a construction quality assurance (CQA ) report for a berm that had been constructed in 2006 and 2007 to stabilize part of its ash monofill that had been overfilled in places.

“The lack of the CQA for the West Berm does not allow DOH to review the construction of the
berm, including the MSW [municipal solid waste] cover layer beneath the berm and liner tie-ins. DOH requests that submittal of the CQA be packaged to reflect work done to date and submitted within 30 days of this letter…DOH will hold issuance of a permit for the landfill expansion in abeyance pending the receipt and review of the new application and associated documents and drawings,” Chang wrote.

In response, the city and WMH submitted a new landfill modification/renewal application on December 14. They did not submit the requested CQA report, prepared by AECOM Technical Services, Inc., until February 3.

A Buried Secret

CQA reports, prepared by third-party contractors to determine whether final construction of an improvement complies with the approved design, are commonly submitted about a month after construction is complete. But in the case of the west berm, WMH submitted the CQA only after the DOH threatened to withhold permit approval.

The three-inch-thick CQA report does not begin noting construction deficiencies, but buries it on the very last page, which is an email exchange between a Waste Management engineer and engineers with the company that designed the berm.

The January 22, 2010, email from Fabrizio Settepani of Geosyntec Consultants, Inc., to Waste Management’s Jesse Frey includes the contents of a May 11, 2007 email. That email, in turn, from Geosyntec engineer Hari Sharma to Frey, stated, “In response to your question on berm stability I am attaching a plan which shows the various phases and the GCL [geosynthetic clay liner] type you have installed. A review of the test results that you provided us indicates that the GCL used does not meet the design specifications. This is because different types of GCLs have been used instead of the GCL that should have met the specifications.”

Sharma added that, as designed by Geosyntec, the berm had a factor of safety of about 1.5. WMH, however, chose to go with something cheaper, saving perhaps a few hundred thousand dollars, according to one expert. (The safety factor represents the actual structural strength divided by the minimum structural strength required.)

“As constructed (using the tested site material properties for Phase I, II, and III of the cap, please note that the materials delivered and used are of lower quality), the final cover underneath the berm has a factor of safety significantly lower than the generally accepted factor of safety of 1.5. In order to bring back to a factor of safety of at least 1.5, we suggest a fix by adding a toe berm. We still need to grade it but we have determined its dimensions; we will grade it once WM agrees with this fix,” Sharma continued.

“Given these circumstances, the option proposed by GBI, of adding more soil on top of the existing west berm, is not recommended. It will make matters worse.

“Please review this information and let us know the decision. If all parties agree, we can plan to provide you with this toe berm grading plan next week. Again, please do not add more fill on top of the existing western berm,” he wrote.

The email raised concerns with the DOH, especially since WMH’s annual operating reports for 2008 and 2009 showed that part of the west berm was up to 32 feet higher than design grades. In other words, WMH added more fill in spite of warnings from the berm’s designer.

According to Whelan, WMH added the fill because it didn’t have enough room for material excavated during cell construction in 2007.

On May 13, the DOH issued a Notice and Finding of Violation/Order accusing the city and WMH of violating the terms of their previous permit by failing to construct the final cover and west berm in accordance with design specifications, failing to notify the DOH of non-compliance, and failing to submit interim status reports for the construction of each stage of the berm. The DOH ordered the permittees to build a toe buttress to the west berm within six months of the order. The department also ordered WMH and the city to pay a $424,000 fine for the violations within ten days of the order becoming final.

On May 25, attorneys William McCorriston, Lorraine Akiba, and Laura Lucas filed a request for a contested case hearing in behalf of Waste Management. Carrie Okinaga, counsel for the city, joined that request. Based on statements made by the parties in news reports, they don’t deny the violations, but merely object to the level of the fine.

Public Purpose

Once the NFOV was issued, Waimanalo Gulch was operating without a permit and in violation of its previous permit. DOH rules, however, don’t seem to address whether pending violations preclude permit renewal. In any case, on May 17, the DOH proceeded with a public hearing on a draft solid waste permit for the landfill. This was despite the fact that the DOH had found fault with the landfill’s most recent design, submitted March 16. Specifically, the DOH found that existing wells at the toe of the ash monofill were “insufficient to evaluate potential releases from the proposed expansion,” Chang wrote in a May 13 letter to Whelan.

In the end, the department felt the flaw could be addressed after the permit was approved by including a condition in the permit that required the submission of a new Groundwater and Leachate Monitoring Plan within 60 days of the permit’s issuance.

At the May 17 hearing on the draft permit, the city’s Steinberger presented the same arguments that swayed the LUC in its decision on the Special Use Permit: If the DOH did not approve the permit to allow for the expansion, the landfill would reach capacity shortly and be closed and H-Power would not be able to operate, since there would be nowhere to put the ash or residue.

The Ko Olina Resort & Marina, state Sen. Colleen Hanabusa, Concerned Elders of Wai`anae and others testified against the permit, citing concerns over litter, visual blight, leachate management, and the recent violations, among other things.

“What is truly laughable is that at page 51-56 [of the draft permit] are reports that are due. As recent as May 13, 2010, there is clear evidence that Waste Management and the city ignored the reporting requirements as showed by the DOH’s fine of $424,000,” Hanabusa wrote.

The DOH responded to Hanabusa that it was unable to grant the requests to deny the permit application, adding, “Although we understand your frustration, we believe that as the only municipal solid waste landfill on O`ahu, it does serve a purpose that benefits the entire island. We are encouraged by the City’s efforts to construct a third boiler at H-Power and are optimistic that it will reduce the volume of waste being disposed in landfills. Nonetheless, the landfill is still required for the continued disposal of MSW residue and ash that will be generated from the H-Power operations.”

On June 4, the DOH issued the city and WMH their permit, which will expire on June 3, 2015. Under permit conditions, the landfill can accept MSW and ash until the date specified in the LUC’s SUP or until the landfill/monofill reaches capacity, whichever comes first. Arguments in the court challenge against the SUP began last month.

Whelan told Environment Hawai`i that a hearing with the DOH has been tentatively scheduled for November. He added that he could not answer questions about why WMH withheld information from the DOH or why it chose to use a different liner, since those issues pertained to the company’s appeal. He did confirm that WMH would complete the ordered buttress berm in a month or so. Although he said the company “doesn’t think the NOV was warranted,” it was in the process of installing pipes for an expansion-related drainage project where the buttress berm is supposed to go when the NFOV came out. He said the company had already planned to place another berm over the pipes to increase stability in the area.

For further reading

Other articles published by Environment Hawai`i are available online:

    • “Resolution of Waimanalo Gulch Violation Case Pushes Limits of DOH Rules, Permit Deadlines” (July 2007);
    • “City, Waste Management Struggle to Renew Waimanalo Gulch Permit” (February 2009) ;
    • “Auto Scrap Lawsuit Draws Concern Over Metals in Waimanalo Gulch” (February 2009);
    • “Hearing Begins on Honolulu’s Petition to Change Landfill’s District to Urban” (June 2009);
    • “LUC Keeps Waimanalo Gulch Open for Municipal Waste Another 3 Years” (November 2009).


Teresa Dawson


Volum3 21, Number 2 — August 2010

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