The state Intermediate Court of Appeals has determined that the final environmental impact statement the city filed for expansion of the Waimanalo Gulch Sanitary Landfill is valid, clearing one of the legal issues clouding continued operations at Oahu’s only municipal and solid-waste dump.
U.S. Rep. Colleen Hanabusa, who brought the lawsuit against the city while a state senator representing the Waianae Coast, said she is mulling an appeal to the Hawaii Supreme Court.
At the core of Hanabusa’s challenge is her contention that the EIS was developed in 2008 around the premise that the city wanted to expand the landfill by 92.5 acres but later used the document to support its request for a special use permit not just to expand by 92.5 acres, but also to continue use of its existing 107.5 acres, or to use 200 acres in all. The state Land Use Commission approved the permit request for the 200 acres in 2009.
Hanabusa argued that the final EIS addressed only the impacts of the original 92.5 acres and that she only had the opportunity to respond to the report as it related to the smaller section. Her 18-count complaint was denied in Circuit Court in March 2010, with Judge Rom Trader ruling the final EIS was sufficient for the larger project, and the intermediate court’s decision reaffirmed that decision.
Trader ruled that Hanabusa had ample notice that the three-volume, 1,900-plus-page final EIS considered the entire 200-acre landfill property, and that she lacked standing to challenge the document’s sufficiency.
In its Thursday decision, the intermediate court concluded that the final EIS "sufficiently described the proposed project as encompassing landfill operations on the entire property and sufficiently addressed the impacts of landfill operations on the entire property."
The opinion continued, "Certainly, there was no suggestion or indication that the (city) intended to abandon landfill operations on the 107.5 acres (the landfill) was already using, and the proposed expansion project would result in a contraction of the landfill. Nor was there any indication or suggestion that the (city) was proposing to create an entirely new 92.5-acre landfill that was not connected to the existing landfill operations."
Hanabusa on Monday called the decision "very troubling" because, she said, "it allows government to change midway through and then play a game as to how large the landfill’s going to be, in this particular case."
Municipalities should not be allowed to "just change" on a whim the scope that an EIS encompasses.
"The problem is that whatever you comment on a draft EIS, if you didn’t read it in the draft EIS, when the final EIS comes out, you’re prohibited, technically, from raising any challenge you didn’t raise before," she said.
Further, she said, "At no point did it say it was for the full 200 acres."
City Corporation Counsel Donna Leong said in a statement that the intermediate court affirmed the earlier ruling that the final EIS was sufficient and "compiled in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action, as well as to make a reasoned choice between alternatives."
In related news, the Land Use Commission at its May 16 meeting ordered the city to submit bimonthly written status reports on its proceedings with the city Planning Commission regarding its pending special use permit application for the landfill expansion, beginning in July.
Attorneys for the city and the Ko Olina Community Association, which has also fought legally over the years to shut down the landfill, told LUC members that they continue to seek a mutual resolution on the continuation of the landfill, according to a transcript of the meeting.
In response to a challenge filed by the city, the Hawaii Supreme Court in May 2012 said the LUC decision to require the landfill to stop accepting municipal waste beginning July 31, 2012, was incorrect because there was a continuing need for it to accept the waste beyond that date. The matter was sent back to the LUC, which then sent the matter back to the Planning Commission for its input.
City attorneys and those challenging the permit asked the Planning Commission for a continuance in February 2013.
Hanabusa said she is not a party to joint resolution talks and still wants the landfill closed or relocated.
