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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-FEB-2024
07:57 AM
Dkt. 64 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
CITY AND COUNTY OF HONOLULU, Appellant-Appellant,
v.
DEPARTMENT OF HEALTH, STATE OF HAWAI‘I,
Appellee-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC161002123)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
In this secondary appeal, Appellant-Appellant City &
County of Honolulu (City) appeals from the (1) August 2, 2017
"Order Vacating Permit Stay, Affirming Permit Issuance Before
Contested Case, and Denying All Relief Sought by the City"
(Order Affirming Permit); and (2) January 3, 2018 Judgment, both
filed and entered by the Environmental Court of the First
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Circuit (Environmental Court) in favor of Appellee-Appellee
Department of Health, State of Hawai‘i (DOH).1
The underlying appeal arises out of the City's
application to DOH for renewal of its five-year National
Pollution Discharge Elimination System (NPDES) permit to
discharge treated wastewater from the Waianae Wastewater
Treatment Plant (Waianae Plant) into the ocean, under Hawaii
Revised Statutes (HRS) HRS § 342D-6(c).2 The parties dispute
1 The Honorable Jeannette H. Castagnetti filed the August 2, 2017
order, and the Honorable Jeffrey P. Crabtree entered the January 3, 2018
judgment.
2 HRS Chapter 342D deals with "Water Pollution," and charges the
DOH director with the duty to "prevent, control, and abate water pollution in
the State . . . ." HRS § 342D-4 (2010). HRS § 342D-6 (2014) sets forth the
procedures for issuance of water pollution permits and provides in pertinent
part:
§ 342D-6. Permits; procedures for
. . . .
(c) The director shall issue a permit for any term, not
exceeding five years, if the director determines that it
will be in the public interest; provided that the permit
may be subject to any reasonable conditions that the
director may prescribe. . . . The director, on application,
shall renew a permit from time to time for a term not
exceeding five years, if the director determines that it
will be in the public interest. The director shall not
grant or deny an application for the issuance or renewal of
a permit without affording the applicant and any person who
commented on the proposed permit during the public comment
period an opportunity for a hearing in accordance with
chapter 91. A request for a hearing and any judicial review
of the hearing shall not stay the effect of the issuance or
renewal of a permit unless specifically ordered by the
director or [an] environmental court.
(d) The director, on the director's own motion or the
application of any person, may modify, suspend, revoke, or
revoke and reissue any water pollution permit if, after
affording the permittee an opportunity for a hearing in
accordance with chapter 91, the director determines that:
(1) There is a violation of any condition of the
permit;
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whether this statute allows a permit to be renewed and take
effect while the City's requested contested case hearing was
still pending, and whether such a practice violated Mauna Kea
Anaina Hou v. Bd. of Land and Nat. Res., 136 Hawai‘i 376, 363
P.3d 224 (2015).3
On appeal, the City challenges certain findings4 and
contends the Environmental Court (1) erroneously interpreted HRS
(2) The permit was obtained by misrepresentation or
there was failure to disclose fully all relevant
facts;
(3) There is a change in any condition that requires
either a temporary or permanent reduction or
elimination of the permitted discharge; or
(4) It is in the public interest.
. . . .
(f) The director shall ensure that the public receives
notice of each application for a permit to control water
pollution. The director may hold a public hearing before
ruling on an application for a permit to control water
pollution if the director determines the public hearing to
be in the public interest. . . .
. . . .
(h) No applicant for a modification or renewal of a permit
shall be held in violation of this chapter during the
pendency of the applicant's application so long as the
applicant acts consistently with the permit previously
granted, the application and all plans, specifications, and
other information submitted as part thereof.
(Emphasis added.)
3 In Mauna Kea Anaina Hou, discussed further infra, the Hawai‘i
Supreme Court held that the Board of Land and Natural Resources (BLNR) was
required to hold a contested case before issuing a permit to construct an
observatory in a conservation district. 136 Hawai‘i at 379, 381, 363 P.3d at
227, 229.
4 The challenged findings, which we treat as conclusions of law,
are as follows:
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§ 342D-6(c) to mean that "DOH is not required to hold a
contested case hearing prior to permit issuance and may allow
permits issued or renewed by the Director to go into effect even
if there is a request for a contested case hearing pending
before permit issuance"; and (2) erroneously "found that Mauna
Kea Anaina Hou was inapplicable" because of "irrelevant factual
differences."
Upon review of the record on appeal and relevant legal
authorities, giving due consideration to the issues raised and
arguments advanced by the parties, we resolve the points of
error as follows, and affirm.
The Waianae Plant operated pursuant to a NPDES permit
that became effective on June 26, 2011 and expired on April 30,
2016 (2011 Permit). Prior to the expiration, on October 30,
2015, the City applied for a renewal of its 2011 Permit.
Because DOH could not complete processing for a new permit
1. Based on the plain language of the statute, Hawaii
Revised Statutes (HRS) §342D-6(c), the intent of the
legislature was to allow permits issued or renewed by the
Director to go into effect even if there is a request for a
contested case hearing.
2. The Director was not required to hold a contested case
hearing before issuing the subject permit.
3. The factual and legal circumstances here are
distinguishable from those in Mauna Kea Anaina Hou v. Board of
Land and Natural Resources, 136 Hawaii 376, 363 P. 3d 224
(2015). The Director has a statutory mandate to prevent,
control and abate water pollution under HRS §342D-4. This case
concerns the Director's prevention, control and abatement of
water pollution in coastal waters through the issuance of a
permit authorizing the discharge of treated wastewater by the
City's wastewater treatment facility. The Director is not here
authorizing the development of a project on State conservation
land that may affect constitutionally protected Native
Hawaiian traditional and customary rights.
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before the expiration date, DOH extended the expiration date of
the 2011 Permit pending the renewal process.
On June 14, 2016, DOH provided the City with a public
notice of a proposed draft permit and fact sheet, requesting the
City to publish the notice in the Honolulu Star Advertiser for a
30-day public comment period. The draft permit included more
stringent limitations for certain types of pollutants than the
2011 Permit.
On July 22, 2016, the City submitted comments
objecting to the stricter limitations, requested a contested
case hearing, and argued that the contested case had to be held
"before" a final permit could be issued per Mauna Kea Anaina
Hou. The record reflects the parties agreed to a contested case
hearing, and were working to schedule the hearing.
On October 24, 2016, before the contested case hearing
was scheduled, DOH issued a "Final Permit" similar to the draft
permit in the public notice, to take effect on December 1, 2016
(2016 Final Permit). The 2016 Final Permit included responses
to the City's comments.
On October 26, 2016, the City requested DOH stay the
effective date of the 2016 Final Permit until the contested case
hearing was completed. DOH denied the stay pursuant to the
language in the last sentence in HRS § 342D-6(c) that a request
for a hearing "shall not stay the effect of the issuance or
renewal of a permit."
On November 18, 2016, the City appealed to the
Environmental Court, and on November 23, 2016, the City filed a
motion to stay the effect of the 2016 Final Permit pending the
appeal. The Environmental Court granted the stay until
determination of the appeal by the Environmental Court.
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Following a March 31, 2017 hearing, the Environmental
Court vacated the stay and entered the August 2, 2017 Order
Affirming Permit that is the subject of this appeal.
In this secondary appeal, we apply the standards of
HRS § 91–14(g) to determine whether the Environmental Court's
decision was right or wrong. Mauna Kea Anaina Hou, 136 Hawai‘i
at 388, 363 P.3d at 236. Under HRS § 91-14(g), conclusions of
law are reviewable under subsections (1), (2), and (4), for
whether they were entered "(1) In violation of constitutional or
statutory provisions;" or "(2) In excess of the statutory
authority or jurisdiction of the agency;" or "(4) Affected by
other error of law[.]" Id.
(1) The City argues that under HRS § 342D-6(c),
DOH was required "to conduct the City's contested case hearing
prior to the issuance of the 2016 Final Permit." The parties
dispute whether the contested case hearing must be held before
permit issuance, or may be held after permit issuance, based on
the last two sentences of subsection (c):
The director shall not grant or deny an application for the
issuance or renewal of a permit without affording the
applicant and any person who commented on the proposed
permit during the public comment period an opportunity for
a hearing in accordance with chapter 91. A request for a
hearing and any judicial review of the hearing shall not
stay the effect of the issuance or renewal of a permit
unless specifically ordered by the director or [an]
environmental court.
(Emphases added.) The City argues, based on the second to the
last sentence, that DOH must hold the contested case hearing
"before final permit issuance," because the last sentence
"presumes that the permit has already issued," and "only applies
where a request for contested case hearing is made after permit
issuance." On the other hand, DOH argues that the second to the
last sentence means the permit applicant "must be afforded an
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opportunity for a hearing[,]" and it "does not mean that a
contested case hearing must always be held before" DOH can issue
the permit. DOH asserts that the last sentence "demonstrates
clear legislative intent to allow the hearing to be held after a
permit is issued."
"[T]he fundamental starting point for statutory
interpretation is the language of the statute itself[,]" and
where the language is "plain and unambiguous, our sole duty is
to give effect to its plain and obvious meaning." Barker v.
Young, 153 Hawai‘i 144, 148, 528 P.3d 217, 221 (2023) (citation
omitted). Applied here, the second to the last sentence in
subsection (c) means that DOH could not grant the City's
application for permit renewal without "affording [the City] . .
. an opportunity for a hearing in accordance with chapter 91."5
The "affording" of "an opportunity for a hearing" must occur
prior to a grant or denial of a permit renewal. Because
"affording" is not defined, we may "resort to legal or other
well accepted dictionaries as one way to determine the ordinary
meaning" of a term not statutorily defined. Carmichael v. Board
of Land and Nat. Res., 150 Hawai‘i 547, 568, 506 P.3d 211, 232
(2022) (citation omitted). "Afford" is defined as "to make
available," and to "provide naturally or inevitably." Afford,
Merriam-Webster, https://www.merriam-webster.com/
dictionary/afford (last visited Feb. 1, 2024). It is also
defined as "to give" or "furnish." Afford, Collins Dictionary,
https://www.collinsdictionary.com/us/dictionary/english/afford
(last visited Feb. 1, 2024). Thus, "affording . . . an
opportunity for a hearing" means the director must be making
available, providing, or furnishing "an opportunity for a
5 The parties agree that "a hearing in accordance with chapter 91"
is a contested case hearing.
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hearing" before granting or denying a permit renewal. This
language requires the providing or furnishing of the
"opportunity for a hearing" to be in progress, and does not
require the hearing to be completed before permit renewal.
Compare HRS § 342D-6(d) (authorizing the director to modify,
suspend, or revoke an existing water pollution permit "after
affording the permittee an opportunity for a hearing in
accordance with chapter 91" (emphasis added)). Here, the
opportunity for a contested case hearing was in the process of
being provided, or afforded, by agreement, when the permit
renewal was granted. The last sentence of subsection (c), that
a "request for a hearing . . . shall not stay the effect of the
issuance or renewal of a permit," applied here, plainly means
that the City's permit renewal may be granted and go into effect
before the contested case hearing is completed. That is what
occurred in this case, and this sequence, in our view, did not
violate the plain language of HRS § 342D-6(c).
While we do not conclude the statute is ambiguous,
assuming arguendo it is, the in pari materia canon confirms our
plain reading of the statute.6 See Barker, 153 Hawai‘i at 149,
6 The legislative history does not clarify the dispute in this
case. Some of the pertinent language at issue here was added in the 1997
amendment to HRS § 342D-6(c), as follows:
The director shall not grant or deny an application for the
issuance or renewal of a permit without affording the
applicant and any person who commented on the proposed
permit during the public comment period an opportunity for
a hearing in accordance with chapter 91. A request for a
hearing, a hearing, [sic] and any judicial review of the
hearing shall not stay the effect of the issuance or
renewal of a permit unless specifically ordered by the
director or a court.
(Additions underscored.) The legislature's purpose for the amendment was to
make the statute "consistent with federal regulations," and to:
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528 P.3d at 222. Statutes "in pari materia, or upon the same
subject matter, shall be construed with reference to each other.
What is clear in one statute may be called in aid to explain
what is doubtful in another." Richardson v. City and Cnty. of
Honolulu, 76 Hawai‘i 46, 55, 868 P.2d 1193, 1202 (1994)
(citations and internal quotation marks omitted); see HRS
§ 1-16. The very next subsection, HRS § 342D-6(d), provides
that the director may "modify, suspend, revoke, or revoke and
reissue any water pollution permit . . . after affording the
permittee an opportunity for a hearing in accordance with
chapter 91[.]" (Emphasis added.) Thus, DOH may modify,
suspend, or revoke any water pollution permit, only "after"
affording an opportunity for a contested case hearing. Reading
subsections (c) and (d) together, two distinct time frames are
contemplated: the period during which the opportunity for the
contested case hearing is being afforded, and the period after
the opportunity for a contested case hearing has been afforded.
See Peer News LLC v. City and Cnty. of Honolulu, 138 Hawai‘i 53,
67, 376 P.3d 1, 15 (2016) ("[W]here the legislature uses
different terms in different parts of a statute, we must presume
(1) Prohibit the Director of Health (Director) from
granting or denying a water pollution permit without
affording any person who commented on the proposed
permit during the public comment period, an opportunity
for a hearing in accordance with Chapter 91, Hawaii
Revised Statutes (HRS);
(2) Specify that a request for a hearing and any judicial
review of the hearing will not stay the effect of the
permit, unless specifically order by the Director or a
court; . . . .
Stand. Comm. Rep. No. 689, in 1997 Senate Journal at 1166 (emphases added).
While the legislature amended subsection (c) to afford any persons that
commented on the proposed permit an opportunity for a hearing, it did not
specify or otherwise indicate when that opportunity should take place.
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this was intentional, and that the legislature means two
different things." (citation omitted)). The language of HRS
§ 342D-6(d) supports our conclusion that the "affording" does not
require completion of the contested case. See id. We conclude
the Circuit Court did not err in its interpretation of HRS
§ 342D-6(c). See Mauna Kea Anaina Hou, 136 Hawai‘i at 388, 363
P.3d at 236.
(2) The City argues that Mauna Kea Anaina Hou
applies here, and requires DOH "to provide the City with a
contested case hearing prior to making a final decision."
"A contested case is an agency hearing that 1) is
required by law and 2) determines the rights, duties, or
privileges of specific parties." Id. at 390, 363 P.3d at 238
(citations omitted). "An agency hearing that is required by law
may be required by (1) agency rule, (2) statute, or (3)
constitutional due process." Id. (citation and internal
quotation marks omitted). The supreme court held in Mauna Kea
Anaina Hou that "a contested case hearing was required as a
matter of constitutional due process" in light of the
constitutionally protected right to exercise Native Hawaiian
customs and traditions.7 Id.
Here, the City's right to a contested case hearing,
unlike the appellants in Mauna Kea Anaina Hou, is derived from
statute –– HRS § 342D-6(c), and is not required by agency rule
7 The Mauna Kea Anaina Hou court stated:
The question we must answer is whether the approval of the
permit before the contested case hearing was held violated
the Hawai‘i Constitution's guarantee of due process, which
provides that, "No person shall be deprived of life,
liberty or property without due process of law...." Haw.
Const. art. I, § 5. We hold that it did.
Id. at 380, 363 P.3d at 228 (emphasis in original).
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or constitutional due process. See id. Because the right to
the contested case hearing comes solely from the statute, the
scope of that right is prescribed by the statute. As explained
above, the language of HRS § 342D-6(c) allows DOH to complete
the contested case hearing after the permit is renewed. The
statutory framework that conferred the right to a contested case
hearing, concomitantly provides that such hearing "shall not
stay the effect" of a renewal of a permit. We conclude that the
Environmental Court did not err in concluding that Mauna Kea
Anaina Hou was distinguishable. See Mauna Kea Anaina Hou, 136
Hawai‘i at 388, 363 P.3d at 236.
For the foregoing reasons, we affirm the (1) August 2,
2017 "Order Vacating Permit Stay, Affirming Permit Issuance
Before Contested Case, and Denying All Relief Sought by the
City"; and (2) January 3, 2018 Judgment, both filed and entered
by the Environmental Court of the First Circuit.
DATED: Honolulu, Hawai‘i, February 29, 2024.
On the briefs:
/s/ Katherine G. Leonard
Courtney K. Sue-Ako
Acting Chief Judge
Deputy Corporation Counsel
for Appellant-Appellant.
/s/ Karen T. Nakasone
Associate Judge
Ewan C. Rayner
Deputy Solicitor General
/s/ Sonja M.P. McCullen
for Appellee-Appellee.
Associate Judge
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