Contested Case Hearing Requests

Sierra Club Moku Loa Group Contested Case Hearing Request

Sierra Club, Moku Loa Group P.O. Box 1137 Hilo HI 96720 November 1, 2018 To: Bruce Anderson State of Hawaii Department of Health 1250 Pun
§ 1342(a), (b). When a state receives such authorization, EPA retains oversight and enforcement authorities. Id. §§ 1319, 1342(d). Hawaii obtained such permitting authority in 1974. See 39 Fed. Reg. 43,759 (Dec. 18, 1974). The CWA is a strict-liability regime that prohibits non-excepted discharges unless they are authorized by a CWA permit. Id. §§ 1311, 1342, 1344. An unpermitted discharge constitutes a violation of the CWA regardless of fault and is subject to enforcement by the state or federal government or a private citizen. Id. §§ 1319, 1365. To establish liability for a violation of the permit requirement, a plaintiff must show there was (1) a discharge (2) of a pollutant (3) to navigable waters (4) from a point source. Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 532 (9th Cir. 2001). The CWA includes a civil-penalty provision for those who violate the Act. 33 U.S.C. § 1319(d). When determining a civil-penalty amount, courts must consider “the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require.” Id. EPA’s longstanding position is that a discharge from a point source to jurisdictional surface waters that moves through groundwater with a direct hydrological connection comes under the purview of the CWA’s permitting requirements. Without compliance to NPDES permits, ensuring full advance review of hydrologic, biologic and community impacts, Hu Honua risks substantial EPA fines subsequent to permitting on the order of hundreds of thousands of dollars per day beginning on the first day of operation. Failure to ascertain impacts in advance leaves the company and investors open to suit by an organization such as Sierra Club under CWA Citizen Suit provisions which could subject the company to fines beginning day one, and attorney fees are guaranteed under this section if they prevail. Recently Justice Susan Mollway ruled that citizens suing under CWA should not have to conduct a dye test and zone of mixing analysis: during the development of an EIS this is the responsibility of the company, not the citizens. Regarding the proposed UIC re-injection wells: DOH should require Hu Honua to do dye tests to determine whether the UIC wells have a direct hydrologic connection to the ocean and require a NPDES permit. There is likely to be a direct hydrologic connection from the UIC wells to the ocean because the aquifer where water will be injected has a connection. Hu Honua states “…heated water injected into the aquifer by the proposed UIC wells. The aquifer system consists of a basal freshwater lens overlying brackish and salt water in a basalt aquifer hydraulically connected to the adjacent ocean surface water system…” From Thermal Analysis of Cooling Water Discharge, Hu Honua Bioenergy, prepared by Integral Consulting, May 1, 2018, updated August 20, 2018, p. 3-1 But Hu Honua claims: “…the actual nature and extent of direct connectivity from UIC wells to ocean discharge are not fairly traceable or known, and would need to be determined with empirical data once operations commence.” From Thermal Analysis of Cooling Water Discharge, Hu Honua Bioenergy, prepared by Integral Consulting, May 1, 2018, updated August 20, 2018, p. 3-4 Hu Honua has a major incentive to question an ocean connection: avoiding the requirement of a NPDES permit. The permit would require an Environmental Assessment or Environmental Impact Statement, consultation with Federal agencies, and other expensive actions that could push project completion into 2019, causing Hu Honua to lose out on reported state tax break. If DOH does not require a NPDES permit, it should plan for a scenario where an after-the-fact permit is required. Hu Honua should post a bond to cover the steep fines for not having a permit, costs for meeting permit requirements, and costs for closing the plant if they never pursue a permit. We don’t want a repeat of the True Geothermal debacle--a hazardous abandoned plant and taxpayers paying for closure. (a) We oppose the injection of over two dozen hazardous chemicals into injection wells, along with wastewater to be discharged. The manufacturer’s labels for each of these chemicals is listed in Hu Honua’s application to build the UIC wells. Most of them are listed as “hazardous,” many of them strictly warn “do not expose to groundwater,” and one of them indicates that it is seriously harmful to aquatic life. This is of great concern to the Sierra Club, because the near shore and aquatic ecosystems are essential to the health of Hawaii’s people and to the planet. The waters have been designated Class A, and the Clean Water Act requires that they be maintained at that level. These are submerged lands and waters owned and managed by the State for the benefit of all citizens. (b) We oppose injection of heated wastewater with limited or inadequate cooling treatment into injection wells. Increased temperatures of waters leaving industrial facilities have documented impacts on corals and other ocean organisms. If the coral is damaged, the whole ecosystem collapses and the fish populations decline or change in composition. Hu Honua states “Based on these overly conservative assumptions, the groundwater model indicated that the warmest waters discharging from the aquifer are approximately 5.5°C (9.9°F) above the model background ocean temperature of 25°C (77 °F)…” From Thermal Analysis of Cooling Water Discharge, Hu Honua Bioenergy, prepared by Integral Consulting, May 1, 2018, updated August 20, 2018, p. 5-1 And the maximum daily temperature of discharge water is likely to increase more than 5.5 degrees C. over background ocean temperature, at times when Hu Honua is generating 36 megawatts. The report above does not address this. Hawai’i law only allows one degree Celsius variation. Hawai’i Administrative Rules 11-54 Water Quality Standards. “11-54-6 (3) The following criteria are specific for all open coastal waters, excluding those described in subsection (d).” [p. 54-47] “Temperature—Shall not vary more than one degree Celsius from ambient conditions” [p. 54-48] “(d) Area-specific criteria for the Kona (west) coast of the island of Hawaii.” [p. 54-50] Hu Honua and Department of Health should evaluate commonly available technologies to reduce the temperature of discharge water, such as a heat exchanger or cooling tower. (c) We oppose injection of water in which the salinity has been manipulated by reverse osmosis into injection wells. If the salinity of the injected wastewater is not the proper proportion, it could kill coral on the sea bed. DOH should require Hu Honua to evaluate effects on the aquifer from pumping out 21.6 million gallons of brackish water every day for 30 years, then changing the chemistry of the aquifer by re-injecting 21 million gallons every day of fresh water. How will organisms living in the aquifer be affected? If the Commission on Water Resource Management or another entity regulates this, DOH should require Hu Honua to obtain approval from them. (d) Given the large potential hydrologic impact both mauka and makai, Sierra Club members question why a permit to operate injection wells is being considered without ever having conducted an Environmental Assessment or Environmental Impact Statement, or any other studies about injecting 21.6 million gallons per day of hot chemical-laden wastewater of inconsistent salinity into this coastal area less than 100 feet from the cliff? We call for studies to show the impact of injection of polluted, warm wastewater into an intact aquifer, and on ensuring the safety and sustainability of drinking water. DOH should require Hu Honua to identify the outer limits of nearby sources of drinking water, and the outer limits of water sources for nearby potable water wells. DOH should then ensure that the UIC wells will not affect these water sources. (e) Members of the Sierra Club are concerned about further erosion and landslides accelerated by the force of 21.6 million gallons of water being injected less than 100 feet from the edge of our already unstable cliffs. (f) Members of the Sierra Club are concerned because the injected heated, contaminated wastewater with inconsistent salinity, will rise from the bottom of the seabed, and make direct contact with coral reefs and other marine ecosystems upon which endangered turtles and fisheries depend in order to thrive. For this reason, we believe that Hu Honua should apply for an NPDES permit to operate these UIC wells, and that DOH should determine that the UIC wells will be the point source for the pollution. (g) The drawdown of a huge amount of potable water (21.6 Million gallons) from an aquifer that a large community depends on for drinking water, and the potential contamination of that aquifer is a community health risk that must be evaluated. It is interesting to note that the original application in 2009 indicated 50,000 gallons of water to be withdrawn for cooling, and in 2013, 8.2 M gallons, and now the number is 21.6 M gallons. We would like to understand the dramatic increase, and subsequent request for a much higher rate of re-injection. Regarding the request for a permit of Outfalls: (g) Sierra Club members ask why Outfall 003 is excluded from being considered for the NPDES stormwater discharge permit #S000557? Manganese is one of the contaminants reported in the soil in a 2013 Discharge Monitoring Report (DMR) that tested wastewater discharge of this area. Manganese in fish can cause neurological disease when consumed. Copper and arsenic were also reported. These toxins can be absorbed through bare skin, so if children and others are playing or walking on the beach barefoot or in rubber slippers, they will be exposed to these contaminants coming off the outfall. DOH should require Hu Honua to monitor discharges from Outfall 003 and modify their permit and get permission from the landowners whose drainage system they are using Hu Honua is running stormwater through another landowner’s drainage system, through a culvert under Cane Haul Road, mingling with stormwater runoff from the coal ash pile and discharges at Outfall #3. Mitigation is needed to slow the stormwater so pollutants can settle out, and so the cliff and shoreline trail will not erode. (h) The outfalls being considered for the NPDES permit are on government land. Why has Hu Honua not applied for any easement to use our public lands in this way? DOH should ask that Hawai’i County Planning Department and/or Planning Commission require an Environmental Assessment for Outfalls 001 and 004. Both are on conservation land owned and managed by the State. The State Department of Land and Natural Resources has informed Hu Honua that they must ask the State for an easement and applicable permits and follow HRS Chapter 343. (i) The stormwater that will be discharged from Outfall #1 will be passing over another area of highly toxic soil. This will also be toxic both to fish and to members of the Sierra Club hiking, swimming or fishing on the shoreline. (2) The facts and issues raised are as follows: Re: the request for UIC reinjection wells: (a) In Hu Honua’s application to build injection wells, the company lists over two dozen hazardous chemicals that will be added to the wastewater before it is injected. Manufacturer’s warnings, which are included in the application, list most of the additives as “hazardous,” and many of them strictly warn “do not expose to groundwater.” One of them indicates that it is seriously harmful to aquatic life. HAR 11-54-4 (a) states that “All waters shall be free of substances attributable to domestic, industrial, or other controllable forms of pollutants, including…(4) high or low temperatures biocides, pathogenic organisms, toxic, radioactive, corrosive, or other deleterious substances at levels or in combinations sufficient to be toxic or harmful to human, animal, plant, or aquatic life, or in amounts sufficient to interfere with any beneficial use of the water” This year the “Ninth Circuit Court of Appeals ruled that the County of Maui violated the Clean Water Act when it discharged pollutants from its wells into the Pacific Ocean… the panel held that the Clean Water Act does not require that the point source itself convey the pollutants directly into the navigable water. The panel held that the County was liable under the Act because it discharged pollutants from a point source, the pollutants were fairly traceable from the point source to a navigable water such that the discharge was the functional equivalent of a discharge into the navigable water, and the pollutant levels reaching navigable water were more than de minimis. The panel rejected the argument that the County’s effluent injections were disposals of pollutants into wells and therefore exempt from the NPDES permitting requirements.” The Hamakua Coast is critical nesting ground for the critically endangered Hawaiian hawksbill turtle. Changes to water quality could change the population and require both a habitat conservation plan and an incidental take permit. Only a thorough review could examine this. “The foraging area on the Hamakua Coast spans from Pololu Valley to Pepe‘ekeo Point… The results of this study suggest that the post-nesting movements of the Hawaiian hawksbill are relatively short-ranged; therefore, management of resources within the State of Hawai‘i will be key in the long-term survival of this species.” from Short-Range Movements of Hawksbill Turtles (Eretmochelys imbricata) Nesting to Foraging Areas within the Hawaiian Islands, Denise M. Parker, George H. Balazs, Cheryl S. King, Larry Katahira, and William Gilmartin Hu Honua must evaluate the effects of discharge from its UIC wells on critically endangered Hawaiian hawksbill turtles. The Hamakua coast is one of their primary foraging habitats. Fewer than 100 adult females are known to nest in Hawai’i, and Hawai’i Island hosts most of the nesting. Ninole, about 10 miles from Pepe’ekeo, is one nesting area. Hawksbills depend on healthy coral reefs. (b) Hu Honua intends to use no cooling treatment before injecting the wastewater. Hu Honua’s discharged water will not be sinking from the surface; it will be emerging at the seabed, in putting warmed water direct contact with the coral ecosystems. “Bleaching [of coral] can be induced by short-term exposure (i.e. 1–2 days) at temperature elevations of 3°C to 4°C above normal summer ambient or by long-term exposure (i.e. several weeks) at elevations of 1°C to 2°C... Temperature elevations above summer ambient, but still below the bleaching threshold, can impair growth and reproduction.” From Response of Hawaiian and other Indo-Pacific reef corals to elevated temperature. L. Jokiel (University of Hawai’i, Hawai’i Institute of Marine Biology) and S. L. Coles, Coral Reefs, April 1990, Volume 8, Issue 4, pp 155–162, In evaluating the risk, DOH should require consultation with marine biologists with expertise in coral ecosystems. (c) The reason we do not believe Hu Honua’s report that the wastewater will not be too warm as it enters the ocean is because, in the thermal effects report that Hu Honua gave to the Dept. of Health, it claimed that they would produce an average of 18.75 MW per day. This figure is inconsistent with the promise that Hu Honua made to the Public Utilities Commission when it signed the Power Purchase Agreement (PPA). The PPA says that Hu Honua would produce an average of 22.8 MW at any given instant. Generating this much more electricity will increase water temperatures. The Sierra Club is concerned that Hu Honua is making promises it can’t keep to DOH about water temperature, just to get the permit approved, and once it is approved, they will fulfill their promise to the PUC to produce a volume of energy that will generate higher temperatures that will kill marine ecosystems. (d) Warren Lee has stated that the 21.6 million gallons of brackish water per day that is drawn from the Hakalau aquifer will undergo reverse osmosis in order to desalinate it before it enters the machinery. How and when will the salination return to the water before it is injected back into the aquifer? If it is not saline enough, it will kill the corals when it reaches the sea bed, because coral requires a certain proportion of saline to survive. (e) Hu Honua president Warren Lee, in an August 21, 2018 letter to Darryl Lum, the Supervising Engineer of the Clean Water Branch of the Dept. of Health, stated that the injected wastewater may be slowed down in reaching the ocean, due to sediment and other geological inconsistencies within the aquifer. Mr. Lee said this as a way to explain, with no scientific basis whatsoever, how the water would be slowed down long enough to cool it to a safe temperature that would not harm coral once it emerged from the seabed. Mr. Lee’s statement contradicts a statement made by Norris Uehara, the supervisor of the Safe Drinking Water Branch UIC Program. Mr. Uehara stated that Hu Honua’s injection wells are not threat to our drinking water because the drinking water wells are at least ¼ mile mauka from the injection wells. Because groundwater flows from mauka to makai, there is the assumption that no backward flow would transport the contaminated water from the injection wells uphill to mix with the drinking water. If, as Mr. Uehara asserts, the groundwater is flowing so quickly that no backward flow will take place and thus contaminate our drinking water, then how is it that the groundwater is also moving so slowly that it can cool down sufficiently before reaching the ocean so as not to kill marine life? This is a key question, and the answer should be supported by scientific data. One cannot have it “both ways.” The Sierra Club strongly opposes issuance of the permit to operate the UIC wells when such a dangerous contradiction has not yet been resolved. We cannot risk our precious coastal waters and drinking water for the simple reason that this project is so confused and disorganized. (f) Members of the Sierra Club are concerned about further erosion and landslides accelerated by the force of 21.6 million gallons of water being injected less than 100 feet from the edge of our already unstable cliffs. To give you an idea of how geologically unstable these cliffs are, when Hu Honua decided it would not repair Outfall #3 after it was damaged, stormwater was sheeting over the area for months, softening the cliff so much that during Hurricane Lane, there was a significant landslide. During a landslide or erosion, the soil falls into the ocean and kills coral reefs and other marine ecosystems. Sierra Club opposes activity such as injection wells that accelerate erosion, which is a cause of mortality in fisheries. Re. NPDES application and draft permit #S000557 for stormwater discharge (g) A May 1, 2018 Hu Honua-sponsored report entitled, “Thermal Analysis of Future Cooling Water Discharge,” states, “The warm spent cooling water, injected into UIC wells, migrates through the groundwater aquifer and discharges to a limited area of the seafloor (aquifer/ocean interface).” This establishes the hydrological connection between the point source of thermal pollution (UIC wells) and sea floor ecosystems. (h) There is reason to believe that any stormwater coming off of Outfall 003 – which is inappropriately NOT included for consideration for the NPDES permit #S000557 -- will be highly toxic, not only to fish, but also to exposed members of the public. Stormwater that is discharged from Outfall 003 will have sheeted over the south side of the site where Hu Honua has spread highly contaminated soil containing arsenic, manganese, copper and other contaminants. These contaminants can be absorbed into the body through bare feet, and uptaken by fish. The original source for the contaminated soil were the settling trenches near Outfall #3, used by Hilo Coast Electrical Company (HCEC). This was where HCEC would collect water that had been used to wash down the site of the highly contaminated flu ash byproduct. The water would seep into the soil, leaving the concentrations of heavy metals contaminants in the settling trenches. Hu Honua dug up this highly toxic soil and spread it over the area around Outfall #3. Any stormwater coming off Outfall #3 would likely contain these contaminants, and for this reason Outfall #3 should be included in DOH’s consideration of Hu Honua’s application for NPDES permit #S000557. In fact, according to a federal 2013 Discharge Monitoring Report (DMR), high sediment loads were found in stormwater at this site. The DMR also referred to an earlier study conducted in 2005 by the Dept. of Health by the Hazard Environmental Emergency Response (HEER) team that also found stormwater to be contaminated. (i) Outfall # 1 and Outfall #4 are located on public land. (j) The stormwater that will be discharged from Outfall #1 will be passing over another area of highly toxic soil. This is the site of the current ash pile that was left abandoned by Hilo Coast Electrical Company many years ago. Beneath this ash pile is cane bagasse that is also high in arsenic and manganese. (4) Relief requested by the Sierra Club is that the State of Hawaii Department of Health take the following actions: a) require NPDES permit to operate UIC wells and follow CWA and NEPA requirements b) storm water NPDES permit #S000557—include enforceable conditions that protect the environment Thank you for considering this Complaint and request for a Contested Case Hearing. We request that you direct us to the documents required to establish standing. Respectfully, Deborah J Ward, Chair Cory Martha Harden, Conservation Chair Sunny LaPlante, Sierra Club Hike Leader Moku Loa Group, Sierra Club Cc: Sina Pruder Interim Director of Environmental Management Division State of Hawaii Dept. of Health 1250 Punchbowl St. Honolulu, HI 96813 Clean Water Branch 2827 Waimano Home Road, #225 Pearl City, HI 96782 Warren Lee Hu Honua Bioenergy LLC P.O. Box 8, 28-283 Sugar Mill Road Pepeekeo, HI 96783 Document emailed to:

Mālama Hāmākua is a group of community members on Hawaiʻi Island and beyond who seek to protect the health of Hawaiʻi Island's Hāmākua coast and her people.

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