DIRE Coalition: Don’t Inject, RE-direct . . . because the situation is dire.
Statement of Objection, Request for Reconsideration, and/or
Appeal to Maui County Planning Director and Planning Commission
Re Item SMX 2009-0361: SMA Exemption for Kahului Injection Well Replacement
1-25-10 – Corrected 10:30 a.m.
Petitioners: This statement of objection, request for reconsideration, and/or appeal to the Maui County Planning Director and Planning Commission is filed by and on behalf of the DIRE Coalition and Save Kahului Harbor.
The DIRE Coalition is a nonprofit coalition of Maui-based organizations, residents, and visitors who are working together to protect the coral reef, coral reef ecosystems, and ocean water quality (and the associated ecological and economic benefits to Maui of healthy coral reef ecosystems and high quality ocean waters). We do this by gathering information; educating the public and policy makers; assessing current federal, state, and county public policy frameworks for ocean and coral reef protection; and advocating for reduction and elimination of wastewater injection and the proper treatment, reclamation and redirection of these waters for beneficial reuse on land. Our membership includes a variety of Maui-based environmental stewardship and conservation organizations, individual citizens, taxpayers, and residents of Maui, including owners and leaseholders of property in or near the coastal area, recreational users of these waters, those whose livelihood depends on a healthy coastal ecosystem and clean waters, and visitors to Maui.
Save Kahului Harbor represents nearby residents, recreational users (including paddlers and surfers), fishermen, and others whose property values, recreation, livelihoods, and well-being depend on the health of the water of Kahului Harbor and the adjacent ocean. Save Kahului seeks to balance Kahului, Maui Harbor use in a way that benefits the residents of Maui and advocates for Harbor use which is of greatest benefit to the residents.
Subject Matter: Item SMX 2009-0361– This filing concerns the decision of the Maui County Director of Planning to accept/approve an SMA “minor exemption” requested by the Environmental Management Department of Maui County for the drilling and/or operation of two new wastewater injection wells at the Wailuku-Kahului Wastewater Reclamation Facility.
Re: SMX 2009-0361
Special Management Area Assessment and Shoreline Setback Area Assessment for Replacement of Two Injection Wells and Appurtenant Utilities at the Wailuku-Kahului Wastewater Reclamation Facility, Kahului, Island of Maui, Hawaii, Tmk: (2) 3-8-001:188
Overview/Requested Relief: This petition (1) states the bases for petitioners’ objections to the action of the Director of Planning in accepting or approving the above SMA “minor exemption,” (2) requests the Director of Planning to reconsider this action and on reconsideration deny the requested SMA “minor exemption,” and, (3) if the Director of Planning denies our request for reconsideration and reversal of his decision on this matter, appeals the decision of the Director of Planning to the Maui Planning Commission and requests the Commission to reverse that decision.
DIRE Coalition, 310 Piliwale Rd., Kula, HI 96790 – 808-878-1413
We request that all applicable SMA requirements and conditions be met before any permit or exemption is granted for the proposed project. In addition, petitioners request a public hearing on this matter and the preparation of an Environmental Assessment (EA) before any approval of the planned construction of the new injection wells at the Wailuku-Kahului Wastewater Reclamation Facility. In addition, we request the opportunity to make a supplemental submission in support of this petition, request for reconsideration, and appeal within 30 days to provide additional supporting documentation. Finally, petitioners note that we may be willing to withdraw this petition, request for reconsideration, and/or appeal in whole or in part if we can meet with leaders of the Department of Environmental Management and the Planning Director in a meeting open to the public and negotiate a mutually satisfactory resolution of the concerns raised here.
Bases for Objection, Request for Reconsideration and/or Appeal: Petitioners hereby provide a brief summary statement of the bases for this petition, request for reconsideration, and/or appeal.
1.The Planning Director’s December 21, 2009 Letter to the Chief of the Wastewater Reclamation Division erred in finding that the project would entail “no increase in capacity”. (p. 2, para. 2) [hereinafter referred to as the Planning Director’s Decision Letter or PDDL]
A.The Planning Director’s Decision Letter acknowledges that IW#1 and IW#2 “have declined in capacity due to age.” (p. 2) See also p. 5, para.5, in which the PDDL says that the injection wells to be replaced evidenced “declining performance.”
B.In 2007, CH2MHill reported “that based on the maximum theoretical injection rates . . . Wailuku-Kahului does not meet the UIC [underground injection control] criteria of total injection capacity being twice the rated plant capacity.” CH2MHill Report, “Countywide Injection Well Rehabilitation Assessment,” p. 7.
C.The PDDL acknowledges that the “purpose of this project” for which the minor exemption is claimed is “to bring the [Wailuku-Kahului] WWRF into compliance with its Department of Health Underground Injection Control permit . . . in order to provide 100% backup capacity. . .” (p. 2, para. 3)
D.The PPDL further finds that IW#1 and IW#2, having “reached their design life . . . have been abandoned and are not now being used.” (p. 2, para. 3). [See objection #2, in which petitioners’ demonstrate that this finding is in error and that IW#1 and IW#2 have not been abandoned as of December 21, 2009 when the Planning Director’s decision was issued.]
E.Nonetheless, for all practical purposes IW#1 and IW#2 clearly have very substantially lower current wastewater carrying capacity remaining that would the proposed new wells.
F.The County DEM proposes to construct entirely new wells with new useful life of at least 10 more years, and perhaps many decades. See: http://www.ppfahome.org/pvc/faqpvc.html. This will permit the disposal into the environment of over 7 billions of gallons of wastewater that does not meet R-1 standards over the conservative useful life of the new wells. [see objection #5 below.] It does not appear, however, that the DEM or the Planning Director has calculated or considered how many billions of gallons will be carried into the environment by these two new injection wells over their useful life. This is a calculation that should have been performed and published as part of an EA [see objection # 3 below] and discussed in public hearing [see objection #7 below].
G.If the new injection wells at Kahului would not increase the overall capacity of the plant to dispose of wastewater, then how will building them help meet the shortfall in capacity that Kahului claims to be facing now? The reality is that Kahului’s injection well overflow capacity is below that which is required because, as the PDDL stated, two existing wells are not working as intended. The PDDL in effect acknowledges that the construction of the new wells will substantially increase the capacity of the plant to discharge wastewater through injection wells when in paragraph 9 on p. 6 it states that the proposed action will bring the “overflow capacity to 100% from the current 50% overflow capacity”. It is apparent that construction of these two new wells would have both the purpose and effect of significantly increasing the capacity of the Kahului plant to inject wastewater for at least a decade, perhaps for two or three decades (just as IW#1 and IW#2 have operated). Thus, the PDDL errs in relying on the DEM’s claim in the Declaration of Exemption that the new wells “will have substantially the same . . . capacity . . . as the structure replaced” and that there will be “little or no increase in capacity.”
2.The PDDL further erred in finding on December 21, 2009, that “Both wells [IW#1 and IW#2 at Kahului] have been abandoned and are not being used.”(p. 2, para. 2)
A.This finding in the PDDL is clearly contradicted by a later finding in the PDDL that “DEM has planned to abandon the two existing wells” (p. 3, para 6); by the so-called “Minor Exemption” application filed by DEM on October 7, 2009, which states, “The existing wells will be abandoned” (p. 3); and by the UIC Permit Application certified as “true, accurate, and complete” by the DEM Director on October 22, 2009, which states “March 2011” as the “anticipated date of abandonment work” for IW#1 and IW#2 at Kahului.
B.The abandonment of IW#1 and IW#2 is not a binding commitment by the County. It is simply stated as “anticipated” to occur in March 2011. Nor does the PDDL require abandonment of these wells as an enforceable condition of the Minor Exemption. The PDDL itself is internally inconsistent as to whether these two wells are operational or not. Thus, it seems possible that IW#1 and IW#2 could in fact continue to operate for more than a year from now (and perhaps even much longer).
C.Because the PDDL does not mandate the abandonment of these two wells, it is at least theoretically possible that these two older wells will not be abandoned in 2011 as currently “anticipated” (and may be used in the future in addition to the new wells). This possibility exacerbates petitioners’ concerns about the error of the “no significant increase in capacity” finding.
3.The PDDL erred in finding that granting this Minor Exemption ”will not cause substantial environmental impact” and in exempting the proposed action from the State requirement for preparation of an EA that would have examined this very question.
A.The last time an EA was prepared for the modifications to the Wailuku-Kahului WRF SMA area was 2001. http://gen.doh.hawaii.gov/Shared%20Documents/EA_and_EIS_Online_Library/Maui/2000s/2001-08-23-MA-FEA-WAILUKU-KAHULUI-WASTEWATER.pdf
B.Although the 2001 EA found “no significant impact”, it did not consider changes or additions to the wastewater injection wells at the facility (see the description of the project being assessed in 2001 at pp. 3-7 of that EA). Nor did the 2001 EA include an analysis of the water quality of Kahului harbor and bay, whether applicable water quality standards were being attained or not in this area, or what the impact of discharges to and from those wells is on the water quality of the Kahului harbor and bay. See for example, pp. 15 and 25 of the 2001 EA.
C.Therefore, the PDDL erred in relying in part on the “Final Environmental Assessment Review meeting” that was held in 2001 in finding “no substantial environmental impact,” in granting this SMA Minor Exemption, and in granting an exemption from preparation of an EA on this proposed project. (see PDDL, p. 2 and p. 4, para. 12)
D.What’s more, since 2001 much has changed, and much has been learned that is not considered in the DEM’s application or in the PDDL determination and that should have been evaluated and discussed in an EA of this proposed project. For example:
i.It is now known that the waters of Kahului Harbor and Bay are already “impaired.” This means that applicable water quality standards are “not attained” for fecal bacteria (as indicated by enterococcus) as well as for nutrients (include total nitrogen, nitrite-nitrate nitrogen, and ammonia-nitrogen), chlorophyll-a, and turbidity in Kahului Harbor/Bay. See the 2006 State of Hawaii Water Quality Monitoring and Assessment Report, Chapter IV, p. 24. http://hawaii.gov/health/environmental/env-planning/wqm/wqrev.html/wqm.html/2006_Integrated_Report/2006_Chapter_IV_Assessment_of_Waters.pdf. See also the reported October 2009 level of 64.00 for enterococcus in the waters of Kanaha beach near Kahului Bay. http://www.surfrider.org/MAUI/enterodata.htm
ii.It is now known that constituents of injected sewage effluents are reaching near shore recreational waters in the vicinity of the injection wells. The algal tissue ratio of stable isotopes of nitrogen, expressed as % δ15N values, has been used globally to detect sources of anthropogenic N in coastal environments. The University of Hawaii, Botany Department scientists surveyed the Maui Island coastline and reported, “All surveys and deployments in this study detected highly elevated algal δ15N signatures (17.8‰ to 50.1‰) in areas proximal to WWRFs with Class V sewage injection wells, demonstrating that the injected effluent from the WWRFs in Lahaina, Kihei and Kahului flowed into the nearshore marine environment.” In press : Dailer, M.L., et al. Using δ15N values in algal tissue to map locations and potential sources of anthropogenic nutrient inputs on the island of Maui, Hawai‘i, USA. Marine Pollution Bulletin (2010), doi:10.1016/j.marpolbul.2009.12.021
iii.There is now on the record testimony from Alan Arakawa, the former Mayor of Maui (himself a former employee at the Wailuku-Kahului WRF), that “I know that, in Kahului, the water goes into the injection well, it comes out almost immediately at the ocean side. We can even see traces of it bubbling up almost as a stream.” (Nov. 6, 2009) http://www.epa.gov/region09/water/groundwater/uic-pdfs/lahaina/1345E.pdf, p. 81.
iv.It is now known that the injection well wastewaters on Maui (including Kahului) are not subject to rigorous treatment to remove algae-promoting nutrients, are not subject to prior UV disinfection, and do not meet R-1 standards. Save Kahului Harbor has reported anecdotal data from those paddling in the waters outside wastewater wells of increased number of frequent staph infections. We have similar testimony from surfers near the Lahaina wastewater injection wells of repeated staph infections when surfing there, but not when surfing elsewhere and that “It’s gotten worse over the last 15 years.” See: http://www.epa.gov/region09/water/groundwater/uic-pdfs/lahaina/EPA-hearing-transcript.pdf (testimony of Andrew Lehmann). And we know that MRSA hospitalization rates have been rising in Hawai’i and are particularly high on Maui (increasing noticeably since 2001). See: http://hhic.org/mrsa.asp,
v.It is now known that serious ecological harm can and does result from release of excess nutrients into marine environments. See the extensive bibliography documenting these concerns in the DIRE Coalition’s testimony at the August 20, 2009, EPA Hearing, Appendix 1, which we hereby incorporate by reference. http://www.epa.gov/region09/water/groundwater/uic-pdfs/lahaina/DIRE-testimony-submission-hearing.pdf, pp. 11-12, 20-32.
vi.It is now known that the injected wastewaters at the Wailuku-Kahului WRF are not subject to UV treatment to disinfect them from bacteria and other pathogens and do not meet R-1 standards. See: http://www.state.hi.us/dlnr/cwrm/planning/hwrsr2005.pdf Also, it is now known that “the overflows designed to release excess flow during rains also release pathogens and other pollutants (USEPA 2004).” See this link , p. 4vii. It is now known that wastewaters that receive only primary and secondary treatment (such as those injected into the wells at WKWRF) contain a wide range of pharmaceuticals, antibiotics, toxic substances, hormones and other endocrine disrupting chemicals, and other substances potentially harmful to human health and the environment. See Appendix A to this petition for a select bibliography of this literature, most of which has been published since 2001.
viii.It is now known that fish exposed to wastewater containing endocrine disrupting chemicals have been demonstrated to actually suffer endocrine disruption. See: http://toxics.usgs.gov/highlights/wastewater_fish.html
ix.It is now known that toxic substances (such as lead and other environmentally harmful, persistent heavy metals) used in stabilizer additives to PVC pipe (which is proposed to be used in this project) can leach out of the pipe and into the waters that they carry into the environment. See: http://ase.tufts.edu/gdae/Pubs/rp/Economics_of_PVC_revised.pdf, and http://www.examprep.org/NewsDetail.aspx?fn=PVC%20May%20Increase%20Lead%20Leaching. (It is worth noting that this concern was not at all discussed in the 2007CH2MHill study on which the Department of Environmental Management and the PDDL relies in part.)
x.It is now known that the County has sent landfill leachate to the Wailuku-Kahului plant and that at least some of the constituents of this leachate (including all kinds of chemical, biological and other substances not normally found in wastewater) may be entering the wastewater effluent, and presumably reaching Kahului Harbor and Bay. See: http://www.epa.gov/region09/water/groundwater/uic-pdfs/lahaina/1345E.pdf, pp. 12-13.
xi.It is now known that global climate change may bring serious consequences for low-lying areas like the Kahului SMA. “Among the effects of climate change are “sea-level rise, increasing water temperatures, rising storm intensity, coastal inundation and flooding from extreme events, beach erosion, ocean acidification, increased incidences of coral disease, and increased invasions by non-native species.” See: http://www.starbulletin.com/editorials/20090617_Global_warming_threat_looms_large_over_Hawaii.html
There is much more that has come to be known since the 2001 EA. Contrary to what may be implied by the opening sentences of paragraph 12 of the PDDL, the types of information and factors described above were not considered in the 2001 EA. They are not discussed in the application from the DEM. Most importantly, these factors appear not to have been considered before issuing the PDDL determination of “no substantial environmental impact.” Failure to consider this new information and these new factors demonstrates that the PDDL erred in concluding that there will “no substantial environmental impact” resulting from the project in question and that no new EA is necessary. The very purpose of an EA is to gather this type of information and consider these kinds of factors.
4.The foregoing new information raises significant concerns in light of federal, state, and county CZM and Special Management Area (SMA) legislation, rules, programs, goals, objectives and plans, including the State Constitution’s Article XI and Maui County’s stated “Coastal Zone Management Goals and Objectives.” In our view, the PDDL errs in failing to find or ensure that the proposed action is affirmatively consistent with these federal, state, and county CZM and SMA requirements, policies, plans, goals and objectives, fails to consider the impact of the decision on the future of wastewater reclamation and reuse, and in fact violates Art. X1 of the State constitution.
A.State CZM policies at HRS, §205A-2 (c) include providing adequate, accessible, and diverse recreational opportunities in the coastal zone management area by 1) ensuring public recreational uses of county, state, and federally owned or controlled shoreline lands and waters having recreational value consistent with public safety standards and conservation of natural resources; and 2) adopting water quality standards and regulating point and nonpoint sources of pollution to protect, and where feasible, restore the recreational value of coastal waters. Petitioners maintain that the PDDL fails to show consistency with the foregoing enforceable policy provisions, specifically failing to demonstrate that the decision is consistent with public safety, conservation of natural resources or compliance with state water quality standards. (The waters of Kahului Harbor and Bay are classified by the state as Class A, thus designating their recreation use as critical.)
B.The State Coastal Zone Management Program, which has delegated SMA responsibility to the counties (i.e., responsibility for Special Management Areas), is not merely focused on limiting or preventing pollution increases. It is also about “enhancing” and “improving” the coastal zone and reducing pollution. See HRS, Chapter 205A and the regulations and guidelines, CZM Program, policies, and Ocean Resources Management Plan (ORMP) intended to implement Chapter 205A, including those listed in Appendix B of this petition, and the 1990 Hawai’i State CZM Program. See: http://hawaii.gov/dbedt/czm/program/doc/1990_czm_program_doc.pdf For example, the ORMP specifically calls out the need “To improve coastal water quality by reducing land-based sources of pollution and restoring natural habitats. . . . Existing efforts to reduce land-based sources of pollution from all land uses must be continued and strengthened with targeted assistance in priority watersheds.” [Emphasis added]. http://www.state.hi.us/dbedt/czm/ormp/reports/ormp_2006.pdf, p. iii. The impaired waters of Kahului Harbor have been identified by the DOH as the terminus of a priority watershed.
C.Moreover, the Hawai’i state constitution requires that state and county governments treat the waters of Hawai’i as a public trust: “All public natural resources are held in trust by the State for the benefit of the people.” Art. XI, sec. 1. This provision has been held by the Hawai’i Supreme Court to be applicable to the counties as well as the state, and this would be particularly the case in the exercise of delegated state CZM authorities. Petitioners maintain that the PDDL neither considers, nor is consistent with, the provisions of Art. XI of the Hawai’i state constitution, particularly sections 1, 7, and 9. http://www.state.hi.us/lrb/con/conart11.html
D.Maui County’s CZM Goals and Objectives – although not as strong as the State’s CZM Program — use the words “enhance” and “restore” to indicate a need for affirmative action to make the coastal environment and user experience better. This is particularly imperative in SMA areas and where existing conditions are substandard – as is the case with the “impaired” waters of Kahului Harbor and Bay.
E.The Administrator of the Hawai’i Division of Aquatic Resources, Dan Polhemus, in a letter to EPA Region 9 has stated quite clearly, ““We would like to see permit conditions set to encourage less wastewater injection and more reuse.” (p. 3) See: http://www.epa.gov/region09/water/groundwater/uic-pdfs/lahaina/DIRE-testimony-submission-hearing.pdf
F.Hawai’i Administrative Rules, 11-62-01 states in part, “The [state] department of health seeks to advance the use of recycled water and wastewater sludge consistent with public health and safety and environmental quality. The department of health acknowledges that when properly treated and used, all recycled water and wastewater sludge are valuable resources with environmental and economic benefits and can be used to conserve the State’s precious resources. The director acknowledges that the most highly treated recycled water and exceptional quality wastewater sludge can be used for a wide variety of applications with the appropriate restrictions when best management practices and other requirements of this chapter are met.” See: http://oeqc.doh.hawaii.gov/sites/har/AdmRules1/11-62.pdf
G.Similarly, the Mayor of Maui, Charmaine Tavares, on May 22, 2009, announced a goal of “ending wastewater injection and reusing all the water.” See: http://www.lahainanews.com/page/content.detail/id/500117/EPA-takes-testimony-on-West-Maui-injection-wells.html?nav=19
H.The proposed action does not “encourage less wastewater injection,” or move closer to the Mayor’s goal, or further the Goals and Objectives of the CZM law, regulations, or SMA provisions. Quite the reverse. The action appears to deepen the County’s commitment to continued wastewater disposal at Kahului instead of promoting better more stringent treatment, reclamation and beneficial reuse of the water on land. Nor does the PDDL mention or appear to consider the state constitutional requirements; the federal and state CZM laws, regulations, policies, Program, and plans; or the county CZM policies, goals and objectives. Thus, it appears that the PDDL erred in failing to consider the extent to which these federal, state, and county CZM requirements, policies, plans, goals and objectives would be furthered or thwarted by the proposed project, particularly in light of the new information that has come to light since 2001 (discussed above in objection #3).
5.The PDDL erred in finding that “The proposed action will not result in cumulative impacts to the environment, nor will it involve a commitment to larger actions.” (p. 5, para. 6). The PDDL fails to adequately to consider the “cumulative impact,” “longer term commitment effects,” and precedential significance of this proposed project, as required by HRS, sec. 205A-22 et seq. See the guidelines of HRS, sec. 205A-26. http://www.capitol.hawaii.gov/hrscurrent/Vol04_Ch0201-0257/HRS0205A/HRS_0205A-0026.htm This is a concern particularly in the context of the County’s plan to construct other new injection wells at Kahului – and Kihei and Lahaina,
A.This “proposed action” is erroneously couched in the PDDL as a discrete and limited “improvements to components of the facility that is [sic] in need of replacement due to age and declining performance.” (p. 5, para. 5).
B.However, the proposed project is just one part of a larger scheme. As Table 8 of the 2007 CH2MHill report demonstrates, these wastewater injection well replacements are to be followed by additional well replacements (three more wells in Lahaina in “Year 2”; and two more, one in Lahaina and one in Kihei in “Year 3”. Moreover, Maui County’s FY 2010 Capital Improvement Plan budget for 2011-12 shows that the County’s planned investment in beyond the $1.0 million for replacing IW#1 and IW#2 in 2010. A total of $4 million dollars is budgeted for what is characterized as “Countywide Injection Well Rehabilitation” for 2011-12. See: http://co.maui.hi.us/documents/Environmental%20Management/Wastewater%20Division/Report%20No%2042%20WebSite.pdf, Attachment G – CIP for FY 2010, p. 2.
C.This is money that could be used to improve wastewater treatment and increase water reclamation and recycling. Instead, it is being spent in ways that deepen the County’s long-term commitment to wastewater disposal by injection. Moreover, not discussed in the PDDL is the effect of investing $4 million more dollars (i.e., creating more “sunk costs”) in the county’s current approach to wastewater management which involves over 75% disposal of wastewater through injection and less than 25% reclamation and reuse. This further investment would strengthen the County’s incentive to continue wastewater injection instead of reclaiming and reusing the water to help deal with the drought, reduce the use of potable water, and protect water quality and coral reef health. All this should have been discussed in the PDDL, but was not.
D.The PDDL does not make any attempt to quantify the potential environmental impact of extending the years that injection of wastewater not meeting R-1 standards can continue at the Wailuku-Kahului WRF. Even assuming that the new wells will have useful life spans of only 10 year – a very conservative assumption – and that each will have the capacity to carry about 1 million gallons of wastewater per day (i.e., 1/8th of the total 7.9 million gallons/day capacity of the plant), this could mean the potential to discharge into the coastal environment as much as:
2 million gallons/day of wastewater
730 million gallons/year of wastewater
7.3 billion gallons over 10 years.
more than 200 pounds per day total nitrogen and more than 73,000 pounds per year of total nitrogen over 10 years. (Assuming an average total nitrogen concentration of 12 mg/L, the new injection wells will have the capacity to deliver this much nitrogen to the near shore water resources that are already reported as impaired due to excess concentrations of total nitrogen beyond that allowable under state water quality criteria.)
E.None of these calculations or estimates (or any other quantitative calculations or estimates) of potential environmental discharge or impact were presented in the PDDL, in the application from the DEM, or in the 2007 CH2MHill report. The potential environmental cumulative impact of these releases to the environment over the useful lifetime of the wells was apparently not evaluated, as it must be in a full-scale EA and to meet the requirements of the SMA process.
F.Even a greater potential volume of inadequately treated wastewater would have to be considered in an accurate assessment of potential cumulative impact if the volumes of wastewater from the other new wells in Lahaina and Kihei were considered, as they ought to have been in a fair cumulative effect analysis. Nor was the precedential effect of the PDDL considered in the context of likely similar requests from the DEM for these other new wells that are planned.
G.The PDDL seems to imply that it is not necessary to consider the volumes of wastewater that could pass through the new injection wells in Kahului, because these new wells will not be placed in use, but only will serve as backup capacity to meet applicable “criteria” or “requirements” of the County’s UIC permit at Kahului. (See PDDL, p. 5, paragraph 2: “The proposed replacement wells will serve only . . . as back-up wells to allow the existing WWRF to regain . . . emergency overflow capacity”.) However, there is no enforceable condition or requirement of the PDDL that the new wells may only be used for this purpose. While finding that there would be “no intensification of use” of the wastewater injection wells at Kahului, the PDDL did not impose this as a binding and enforceable condition.
H.This finding of “no intensification of use” is also open to question and cannot be substantiated on the record. This is because neither the application nor the PDDL spells out what will actually happen when the new wells are built. If IW#1 and IW#2 are taken out of service, will they be taken out permanently and formally abandoned? What standby wells will take their place and be put into operation? What is the capacity of those standby wells? If it is greater than the capacity of wells 1 and 2, won’t this increase the capacity and flow through of the injected wastewaters and result in “intensification of use” in fact? How will large rain events affect the use patterns of the new injection wells? None of this is adequately discussed in the PDDL or supporting papers.
I. Are the new injection wells at Kahului for which the County plans to spend over $1.0 million rarely to be used? If so, the wisdom of the investment might fairly be questioned. If not, then the expected environmental impact of these new wells would likely be much greater than supposed in the PDDL. Were alternatives considered, such as negotiations with DOH to amend the UIC to permit time to move toward land-base recycling of the wastewaters in lieu of injection? It is not clear that any alternatives were considered. For all the foregoing reasons, the PDDL has erred and an adequate EA should have been performed and all requisite SMA requirements should have been satisfied.
J. Just as important as what the PDDL did find is what it did not find. The PDDL did not find that there would be “no prolongation of use” of wastewater injection wells at this facility. It also did not find “no lifetime increase in wastewater releases to the environment.” Permitting the potential or actual prolonged use of wastewater injection at this facility by potentially many years and billions of gallons flowing into already impaired Class A waters can hardly be said, without an EA, to cause “minimum environmental impact.” Without explanation, the PDDL fails to address the potential environmental effect of “prolongation of use” of injection wells at the Wailuku-Kahului WRF.
K.In the foregoing respects, the PDDL fails to satisfy applicable statutory and regulatory conditions and requirements for an SMA minor permit and/or minor exemption.
6.The PDDL erred in failing to address the fact that the County is currently in violation of the Clean Water Act for discharging pollutants through the injection wells (a point source) through the injection well at Kahului into “waters of the US” without an NPDES permit, that the County has not applied for an NPDES permit for the discharges to and through the new (or the old) wells at Kahului into the ocean, and that County taxpayers could be at risk for millions of dollars given the Clean Water Act penalties.
A.See DIRE Coalition’s submission at the EPA Lahaina UIC hearing on this point, which we incorporate by reference. http://www.epa.gov/region09/water/groundwater/uic-pdfs/lahaina/DIRE-testimony-submission-hearing.pdf, pp. 13-16.
B.Consider also the following additional cases that hold (or strongly support the view) that federal Clean Water Act jurisdiction applies to discharges to groundwater which is hydrologically-connected with surface waters that are “waters of the United States” under that Act:
McClellan Ecological Seepage Situation v: Weinberger, 707 F. Supp. 1182, 1193-94 (E.D. Cal. 1988) (holding that “waters of the United States” under the Clean Water Act does include hydrologically connected groundwater), reversed on other grounds, 504 U.S. 902 (1992).
Sierra Club v. Colo. Ref. Co., 838 F. Supp 1428 (D. Colo. 1993).
Wash. Wilderness Coalition v. Hecla Mining Co., 870 F. Supp. 983 (E.D. Wash. 1994).
Friends of Santa Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333 (D.N.M. 1995).
Williams Pipe Line Co. v. Bayer Corp., 964 F. Supp. 1300 (S.D. Iowa 1997)
Woodward v. Goodwin, No. C 99-1 103 MJJ, 2000 U.S. Dist. LEXIS 7642 (N.D. Cal. May 12, 2000).
Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169, 1179-80 (D. Id. 2001).
Northern California River Watch v. City of Healdsburg, 457 F.3d 1023, 496 F.3d 993 (9th Cir. 2007)
Coldani v. Hamm, 2007 U.S. Dist. LEXIS 62644 (E.D.Cal. 2007)
Hernandez v. Esso Standard Oil Co., 599 F. Supp. 2d 175 (D.P.R. 2009)
Northwest Environmental Defense Center v. Grabhorn, Inc., 2009 WL 3672895 (D. Or., Oct. 30, 2009)
C.There is no discussion of this concern in the PDDL. Moreover, paragraph 6 of the PDDL makes clear that “the application [for the various exemptions for this project] was not sent to the Department of Health for review and comment” even though the DOH has been delegated by EPA the authority to issue NPDES permits. The PDDL’s rationale for not sending the application to DOH is entirely related to the UIC permitting authority of that agency, not to its NPDES permitting authority and responsibility. In failing to submit the application to DOH, the error of the PDDL is further compounded.
7.The PDDL erred in concluding that adequate public notice and opportunity for public input on this project has been provided despite that this is one Maui County’s stated CZM Program Goals and Objectives – “Increase Public Awareness and Participation.”
A.Paragraph 12 of the PDDL states that “the effort to replace the failing wells has been pursued with the utmost community awareness and public participation”. (p. 4) The petitioners’ respectfully, but strenuously, disagree with this conclusion. This statement does not square with the facts we present below.
B.The DIRE Coalition has been a leading voice on Maui since 2008 for phasing out injection of inadequately treated wastewater from county and private facilities. www.dontinject.org. Yet not once in this time have county officials notified, let alone consulted, DIRE Coalition on the Kahului injection well process, project, or SMA and EA exemption requests. Despite numerous meetings between responsible county officials and DIRE leaders on the issue of the future of wastewater injection wells on Maui, this topic was never raised, let alone discussed by these officials. Nor was any notice provided to the other petitioner, Save Kahului Harbor. It was not mentioned by the county in two public hearings before EPA on the Lahaina permit – one in 2008 and another in 2009. It was not mentioned in the Mayor’s testimony supporting phasing out injection wells at the August 20, 2009, EPA hearing. This project was not disclosed, let alone discussed, in any of the Community Working Group meetings on wastewater reuse and phasing out injection wells, even though the CWG has been meeting monthly since October 2009 when the DEM filed the papers requesting these exemptions.
C.We believe that the Planning Director erred in failing to ask the DEM to meet with potential opponents and discuss their concerns before taking action on the requested exemptions.
D.We now reiterate our request for a public hearing on the PDDL and related project before any final action is taken by the Planning Director or Planning Commission on the requested SMA minor exemption and exemption from preparation of an EA on this issue. Petitioners’ request is absolutely in keeping with the County’s stated CZM Goals and Objectives, specifically to “Increase public awareness & participation” in decisions affecting coastal zone management and the protection of ocean resources. http://www.co.maui.hi.us/documents/Planning/Current%20Division/CZM%20Program/SMA%20Brochure.PDF
8.Apart from the legal concerns raised above, we believe that important policy, practical, and fiscal concerns make reconsideration or appeal of the PDDL imperative. We maintain that the PDDL is not a wise exercise of discretion, and that is why we are asking the Planning Director to reconsider and reverse his decision — and if he will not, appealing the PDDL to the County Planning Commission — in light of the additional information presented in this petition.
We offer one illustrative point about the wisdom of the proposed action. The Kahului plant in question has an uncertain remaining useful life. The seas are rising. The land is sinking. Part of the plant is already falling into the ocean. It is at great risk in case of a substantial tsunami. The plant is approaching 40 years old. It is not clear how long the Kahului plant’s remaining useful life is. To invest in new replacement injection wells at this time in the face of this uncertainty could waste taxpayer money. Other alternatives should have been (and must be) explored. There were, however, no alternatives considered in the PDDL. The exemption is not supported by appropriate cost-benefit analysis, or by an appropriate showing that this is an essential expenditure and that no alternative is available to prevent or manage the wastewater effluent that would be more beneficial for all the interests and concerns voiced in this petition.
8.We are also requesting the opportunity to provide additional information (to elaborate and further substantiate the points in this petition) that should be considered by the Planning Director and the Planning Commission.
9.Finally, please note our willingness to meet and talk with DEM and PD in a meeting open to the public and to consider withdrawing our objections in whole or part if mutually satisfactory solutions can be negotiated.
Signed: Ananda Stone, Hannah Bernard, Irene Bowie, Jeff Schwartz, Lucienne de Naie, Maury King, Rene Umberger, Robin Knox, Robin Newbold, Teri Leonard, and Tony Povalitis for DIRE Coalition; and Karen Chun for Save Kahului Harbor.
Date: January 25, 2010.
Appendix A – Select Bibliography of Chemical Contamination in
Wastewaters Not Subject to Tertiary Treatment
Barber, L.B., Lee, K.E., Swackhamer, D.L., Schoenfuss, H.L., 2007, Reproductive responses of male fathead minnows exposed to wastewater treatment plant effluent, effluent treated with XAD8 resin, and an environmentally relevant mixture of alkylphenol compounds: Aquatic Toxicology, v. 82, no. 1, p. 36-46, doi: doi:10.1016/j.aquatox.2007.01.003.
Brown, K, Pharmaceutically Active Compounds in Residential and Hospital Effluent, Municipal Wastewater, and the Rio Grande in Albuquerque, New Mexico (2004) — http://www.unm.edu/~wrp/wrp-9.pdf
Lazorchak, J., National Screening Survey of EDCs, including some Pharmaceuticals in Municipal Wastewater Treatment Effluents, EPA Report: EPA/600/R-04/171 APM 201–
http://www.epa.gov/ppcp/projects/survey.html
Shappell, N., Estrogenic Activity in the Environment: Municipal Wastewater Effluent, River, Ponds, and Wetlands, J Environ Qual 35:122-132 (2006) – (including a lengthy bibliography of other studies and reports) http://jeq.scijournals.org/cgi/content/full/35/1/122
Wright-Walters, M and Volz, C, MUNICIPAL WASTEWATER CONCENTRATIONS OF PHARMACEUTICAL AND XENO- ESTROGENS: WILDLIFE AND HUMAN HEALTH IMPLICATIONS (including an extensive bibliography of the relevant literature) — Proceedings of the 2007 National Conference on Environmental Science and Technology – link
Appendix B
Hawaii Coastal Zone Management Act
State of Hawaii and County of Maui Objectives
Resource
County of Maui Goals and Objectives
http://hi-mauicounty.civicplus.com/index.aspx?NID=843
State Objectives
§205A-2
Recreational Resources
Provides coastal recreation to the public and protects coastal resources uniquely suited for recreational activities that cannot be provided elsewhere
Provide c the public.
Provide coastal recreational opportunities accessible to the public
Historic Resources
Protects, preserves, and restores Hawaiian and American cultural / historical resources
Protect, preserve, and, where desirable, restore those natural and manmade historic and prehistoric resources in the coastal zone management area that are significant in Hawaiian and American history and culture.
Marine Resources
Implements the State’s Ocean Resources Management Plan
Promote the protection, use, and development of marine and coastal resources to assure their sustainability
Scenic and Open Space Resources Protects
preserves, restores, and improves the quality of coastal scenic and open spaces
Protect, preserve, and, where desirable, restore or improve the quality of coastal scenic and open space resources
Beach Protection and Accessibility
Conserves open space, minimizes beach loss due to erosion, preserves public beach access, and protects beaches for public use
Protect beaches for public use and recreation.
Coastal Ecosystems
Minimizes adverse impacts and protects coastal ecosystems
Protect valuable coastal ecosystems, including reefs, from disruption and minimize adverse impacts on all coastal ecosystems.
Economic Uses
Provides for coastal dependent facilities and minimizes their negative impacts
Provide public or private facilities and improvements important to the State’s economy in suitable locations
Managing Development
Enhances and streamlines permitting / decision-making processes
Improve the development review process, communication, and public participation in the management of coastal resources and hazards.
Public Participation
Stimulates public awareness, education, and participation
(A) Promote public involvement in coastal zone management processes;
(B) Disseminate information on coastal management issues by means of educational materials, published reports, staff contact, and public workshops for persons and organizations concerned with coastal issues, developments, and government activities; and
(C) Organize workshops, policy dialogues, and site-specific mediations to respond to coastal issues and conflicts.
Coastal hazard
Reduce hazard to life and property from tsunami, storm waves, stream flooding, erosion, subsidence, and pollution.
Hawaii Coastal Zone Management Act
§205A-22
Development means
(1) Placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste;
(2) Grading, removing, dredging, mining, or extraction of any materials
(4) Change in the intensity of use of water, ecology related thereto, or of access thereto; and
(5) Construction, reconstruction, demolition, or alteration of the size of any structure.
provided that whenever the authority finds that any excluded use, activity, or operation may have a cumulative impact, or a significant environmental or ecological effect on a special management area, that use, activity, or operation shall be defined as “development” for the purpose of this part.
§205A-2 Coastal zone management program; objectives and policies. (a) The objectives and policies in this section shall apply to all parts of this chapter.
(b) Objectives.
(1) Recreational resources;
(A) Provide coastal recreational opportunities accessible to the public.
(2) Historic resources;
(A) Protect, preserve, and, where desirable, restore those natural and manmade historic and prehistoric resources in the coastal zone management area that are significant in Hawaiian and American history and culture.
(3) Scenic and open space resources;
(A) Protect, preserve, and, where desirable, restore or improve the quality of coastal scenic and open space resources.
(4) Coastal ecosystems;
(A) Protect valuable coastal ecosystems, including reefs, from disruption and minimize adverse impacts on all coastal ecosystems.
(5) Economic uses;
(A) Provide public or private facilities and improvements important to the State’s economy in suitable locations.
(6) Coastal hazards;
(A) Reduce hazard to life and property from tsunami, storm waves, stream flooding, erosion, subsidence, and pollution.
(7) Managing development;
(A) Improve the development review process, communication, and public participation in the management of coastal resources and hazards.
(8) Public participation;
(A) Stimulate public awareness, education, and participation in coastal management.
(9) Beach protection;
(A) Protect beaches for public use and recreation.
(10) Marine resources;
(A) Promote the protection, use, and development of marine and coastal resources to assure their sustainability.
(c) Policies.
(1) Recreational resources;
(A) Improve coordination and funding of coastal recreational planning and management; and
(B) Provide adequate, accessible, and diverse recreational opportunities in the coastal zone management area by:
(i) Protecting coastal resources uniquely suited for recreational activities that cannot be provided in other areas;
(ii) Requiring replacement of coastal resources having significant recreational value including, but not limited to, surfing sites, fishponds, and sand beaches, when such resources will be unavoidably damaged by development; or requiring reasonable monetary compensation to the State for recreation when replacement is not feasible or desirable;
(iii) Providing and managing adequate public access, consistent with conservation of natural resources, to and along shorelines with recreational value;
(iv) Providing an adequate supply of shoreline parks and other recreational facilities suitable for public recreation;
(v) Ensuring public recreational uses of county, state, and federally owned or controlled shoreline lands and waters having recreational value consistent with public safety standards and conservation of natural resources;
(vi) Adopting water quality standards and regulating point and nonpoint sources of pollution to protect, and where feasible, restore the recreational value of coastal waters;
(vii) Developing new shoreline recreational opportunities, where appropriate, such as artificial lagoons, artificial beaches, and artificial reefs for surfing and fishing; and
(viii) Encouraging reasonable dedication of shoreline areas with recreational value for public use as part of discretionary approvals or permits by the land use commission, board of land and natural resources, and county authorities; and crediting such dedication against the requirements of section 46-6.
(2) Historic resources;
(A) Identify and analyze significant archaeological resources;
(B) Maximize information retention through preservation of remains and artifacts or salvage operations; and
(C) Support state goals for protection, restoration, interpretation, and display of historic resources.
(3) Scenic and open space resources;
(A) Identify valued scenic resources in the coastal zone management area;
(B) Ensure that new developments are compatible with their visual environment by designing and locating such developments to minimize the alteration of natural landforms and existing public views to and along the shoreline;
(C) Preserve, maintain, and, where desirable, improve and restore shoreline open space and scenic resources; and
(D) Encourage those developments that are not coastal dependent to locate in inland areas.
(4) Coastal ecosystems;
(A) Exercise an overall conservation ethic, and practice stewardship in the protection, use, and development of marine and coastal resources;
(B) Improve the technical basis for natural resource management;
(C) Preserve valuable coastal ecosystems, including reefs, of significant biological or economic importance;
(D) Minimize disruption or degradation of coastal water ecosystems by effective regulation of stream diversions, channelization, and similar land and water uses, recognizing competing water needs; and
(E) Promote water quantity and quality planning and management practices that reflect the tolerance of fresh water and marine ecosystems and maintain and enhance water quality through the development and implementation of point and nonpoint source water pollution control measures.
(5) Economic uses;
(A) Concentrate coastal dependent development in appropriate areas;
(B) Ensure that coastal dependent development such as harbors and ports, and coastal related development such as visitor industry facilities and energy generating facilities, are located, designed, and constructed to minimize adverse social, visual, and environmental impacts in the coastal zone management area; and
(C) Direct the location and expansion of coastal dependent developments to areas presently designated and used for such developments and permit reasonable long-term growth at such areas, and permit coastal dependent development outside of presently designated areas when:
(i) Use of presently designated locations is not feasible;
(ii) Adverse environmental effects are minimized; and
(iii) The development is important to the State’s economy.
(6) Coastal hazards;
(A) Develop and communicate adequate information about storm wave, tsunami, flood, erosion, subsidence, and point and nonpoint source pollution hazards;
(B) Control development in areas subject to storm wave, tsunami, flood, erosion, hurricane, wind, subsidence, and point and nonpoint source pollution hazards;
(C) Ensure that developments comply with requirements of the Federal Flood Insurance Program; and
(D) Prevent coastal flooding from inland projects.
(7) Managing development;
(A) Use, implement, and enforce existing law effectively to the maximum extent possible in managing present and future coastal zone development;
(B) Facilitate timely processing of applications for development permits and resolve overlapping or conflicting permit requirements; and
(C) Communicate the potential short and long-term impacts of proposed significant coastal developments early in their life cycle and in terms understandable to the public to facilitate public participation in the planning and review process.
(8) Public participation;
(A) Promote public involvement in coastal zone management processes;
(B) Disseminate information on coastal management issues by means of educational materials, published reports, staff contact, and public workshops for persons and organizations concerned with coastal issues, developments, and government activities; and
(C) Organize workshops, policy dialogues, and site-specific mediations to respond to coastal issues and conflicts.
(9) Beach protection;
(A) Locate new structures inland from the shoreline setback to conserve open space, minimize interference with natural shoreline processes, and minimize loss of improvements due to erosion;
(B) Prohibit construction of private erosion-protection structures seaward of the shoreline, except when they result in improved aesthetic and engineering solutions to erosion at the sites and do not interfere with existing recreational and waterline activities; and
(C) Minimize the construction of public erosion-protection structures seaward of the shoreline.
(10) Marine resources;
(A) Ensure that the use and development of marine and coastal resources are ecologically and environmentally sound and economically beneficial;
(B) Coordinate the management of marine and coastal resources and activities to improve effectiveness and efficiency;
(C) Assert and articulate the interests of the State as a partner with federal agencies in the sound management of ocean resources within the United States exclusive economic zone;
(D) Promote research, study, and understanding of ocean processes, marine life, and other ocean resources in order to acquire and inventory information necessary to understand how ocean development activities relate to and impact upon ocean and coastal resources; and
(E) Encourage research and development of new, innovative technologies for exploring, using, or protecting marine and coastal resources. [L 1977, c 188, pt of §3; am L 1993, c 258, §1; am L 1994, c 3, §1; am L 1995, c 104, §5; am L 2001, c 169, §3]