Hawai‘i's Thousand Friends v. City and County of Honolulu
821 F. Supp. 1368 (D. Haw. 1992)
Plaintiffs: Plaintiffs' Attorneys:
  1. Hawai‘i’s Thousand Friends
  2. Sierra Club, Honolulu, HI
  1. Paul P. Spaulding, Sierra Club Legal Defense Fund, Inc., Honolulu, HI
  2. Denise E. Antolini, Sierra Club Legal Defense Fund, Inc., Honolulu, HI
  3. Eric S. Walters, Sierra Club Legal Defense Fund, Inc., Honolulu, HI
Defendants: Defendants Attorneys:
  1. City and County of Honolulu
  1. Richard D. Wurdeman, Corp. Counsel, City and County of Honolulu, Honolulu, HI
  2. Cheryl K. Okuma-Sepe, Counsel, City and County of Honolulu, Honolulu, HI
  3. Tracy Lowell Wolf, Counsel, City and County of Honolulu, Honolulu, HI
Court:

U.S. District Court, D. Hawai‘i

Opinion by: District Judge Fong
Other Jurists: Court Below:
N/A N/A
Key laws involved:
  • Clean Water Act (CWA) 33 U.S.C. §§ 1251, et seq.
Summary:
  1. The plaintiffs filed two complaints in the District Court of Hawai‘i for injunctive relief and civil penalties against the defendant alleging the defendant had illegally bypassed sewage treatment equipment and failed to apply requisite secondary effluent limitations at the Honouliuli wastewater treatment plant (“Honouliuli”) under the CWA. On May 8, 1992, the court found the defendant was in violation of the CWA and the Honouliuli National Pollution Discharge Elimination System (“NPDES”) by not complying with secondary effluent limitations. Hence, the plaintiffs’ were granted their motion for summary judgement on the issue of the defendant’s liability under the CWA.
  2. The next issue the court had to determine was the actual number of secondary treatment violations, the proper remedies for both the bypass and secondary treatment violations, and the amount of civil penalties.
  3. Honouliuli is located in Ewa Beach, Honolulu, Oahu, Hawai‘i, and is one of twelve sewage treatment plants owned and operated by the defendant. Honouliuli had the capacity to treat 25 million gallons of sewage per day of which at the time was mainly residential and agricultural sewage. Honouliuli was originally designed for primary sewage treatment, which was, for the most part, a filtering system without any additional chemical or biological treatment. Once the sewage was treated, it was discharged through an ocean outfall into Mamala Bay.
  4. In April 1972, a group of engineering consultants issued a “Water Quality Program for Oahu With Special Emphasis on Waste Disposal” report (“WQPO”). The WQPO addressed the present and future sewage treatment needs for the island of Oahu. One of the findings in the WQPO included upgrading Honouliuli to a secondary treatment disposal sewage facility to ameliorate the gradual deterioration of the water quality in Mamala Bay. Another recommendation was a reclamation process for irrigation of sugar cane in the Ewa District. An alternative to the reclamation irrigation system would be an advanced primary treatment system as a necessary minimum degree of treatment for the Honouliuli system.
  5. In accordance with the WQPO, the city began preparing environmental assessments for building a secondary treatment plan on a former portion of Barber’s Point Naval Air Station. On September 7, 1979, the city applied for a wavier of the secondary treatment requirement (“301(h) waiver”) pursuant to section 301(h) of the CWA. Section 301(h) of the CWA allows municipalities that discharge into deep marine water to obtain NPDES permits at less than the required secondary treatment discharge standards if the municipality can prove that such discharge would not harm the marine environment.
  6. On October 31, 1980, the city obtained a NPDES permit for Honouliuli, which included secondary treatment effluent limitations. In 1982, the city began to plan and build a primary treatment plant, which was to be completed in December 1984.
  7. Concern over the effects of the rapid population growth in the Ewa district on water needs and sewage flow sparked planning for a secondary treatment facility for effluent reuse. The projected completion of this project was in 1996. The secondary treatment system was to be used only for effluent that would be reused.
  8. During 1982 through 1984, Honouliuli outfall accepted sewage flows from twelve other diverted sewage flows before the project to upgrade Honouliuli was completed. As a result, the discharged effluent received only preliminary treatment. On December 15, 1982, the State of Hawai‘i Department of Health (“DOH”) issued to the city an administrative order imposing a fine of $100,000 and requiring the city to finish construction of the primary treatment units by December 31, 1982. An amendment to the order also set interim effluent limitations and established a schedule for the construction of a secondary treatment facility if the city’s 301(h) waiver was denied. The interim effluent limitations and the construction schedule was a result of a cooperative effort between DOH and the Environmental Protection Agency Region IX (“EPA”). The administrative consent order was to take effect on July 1, 1988.
  9. DOH issued a NPDES permit for the Honouliuli plant on July 1, 1985, for a five-year period. The permit authorized secondary treated wastewater discharge into Mamala Bay from the Barber’s Point outfall. The conditions that were at issue included effluent limitations for five biochemical oxygen demanding substances (“BOD”) and suspended solids (“SS”). The Honouliuli Plant, however, was not designed to meet secondary treatment effluent limitations.
  10. On May 2, 1991, EPA granted the city a 301(h) waiver permit after EPA had tentatively granted portions of the city’s 301(h) waiver requests. In response, the plaintiffs, and the city filed an evidentiary hearing request on the waiver permit decision. On May 12, 1992, the city filed an emergency petition for writ of mandamus in the Court of Appeals for the Ninth Circuit, requesting that EPA complete the evidentiary requests filed in May of 1991. On June 9, 1992, the city's evidentiary hearing requests were "withdrawn", the Court holding that the city had violated secondary treatment requirements.
  11. On June 31, 1992, the plaintiffs were granted an evidentiary hearing and an Administrative Law Judge (“ALJ”) was assigned to the hearing. The hearing process was expected to finish in 1995 or 1996; meanwhile, the 301(h) waiver was not in effect.
  12. As part of the permit conditions for Honouliuli, bypass sewage by the plant was specifically prohibited. If the city anticipated a bypass, the city was required to submit a prior notice of the bypass to DOH, and a wastewater bypass report to the Water Quality section. If the city violated the permit conditions, the city was required to immediately report to DOH, give immediate notice to the major news wire service to notify the public, and prepare a detailed written report.
  13. The city prepared an internal wastewater bypass report on July 19, 1989, because of anticipated bypasses due to the preventative maintenance of one of the two primary clarifiers. On July 27, 1989, the city notified DOH of its plans to undergo preventative maintenance of one of the two primary clarifiers, however, the city did not indicate the possibility of a bypass due to overload of the remaining clarifier. On August 4, 1989, DOH approved the city’s plans to perform preventative maintenance during the period between August 27, 1989 to October 11, 1989. In addition, DOH acknowledged that the preventative maintenance could cause an overload in the remaining clarifier. The city notified DOH that commencement of the preventative maintenance would be pushed back to October 3, 1989, during which there was a high influent flow.
  14. When the city began the scheduled preventative maintenance, bypasses of the remaining clarifier occurred, which resulted in preliminary treated sewage to skip the primary treatment facility. During a period of October 3, 1989 to November 23, 1989, 106 million gallons of preliminary treated sewage bypassed primary treatment. To mitigate the bypasses, the plant attempted to throttle back the pumps to maintain a flow below 25 mgd, and monitor BOD and SS levels. The BOD and SS levels did not exceed interim effluent limits, but did not meet secondary treatment limits.
  15. During the period of the bypass incidents, the city did not notify DOH or any other entity required by its permit. Employees of the plant testified to the reasons for not undergoing proper notification: (1) employees believed that they were not required to notify DOH of the bypass incidents because the effluent did not exceed the interim limitations; (2) the maintenance of the clarifiers was considered essential, and (3) DOH was given adequate notice of the possibility of overloading and reduced efficiency of the remaining clarifier.
  16. DOH and EPA discovered the unreported bypasses by an anonymous tip by a plant employee on November 17, 1989, to a member of the Sierra Club. The incidents were reported to Ciesala, who was an enforcement officer for DOH and EPA. As a result of DOH’s investigation, DOH issued a Notice and Finding of Violation and levied $449,000 in fines against the city.
  17. On July 3, 1991, the court held that the city violated its permit and the Clean Water Act on fifty-two separate dates due to bypassing sewage, and failing to report immediately the bypasses to DOH or other required entities. If the secondary treatment limits were enforced, the city violated its permit because the city failed to meet the secondary treatment limits regardless if the preventative maintenance was essential. If the interim effluent limitations were enforced, the city would still be in violation of its permit because it failed to establish that preventative maintenance during the month of October, which was a month of high effluent flow, was essential. If the plant had completed the plant expansion, and improvements in the bypass weir, the bypasses would have been prevented. In subsequent years, the city installed a twenty-four inch high marine wood weir between the influent and effluent channels of which the wood was replaced by a concrete wall. Since November 1989, no bypasses have occurred at Honouliuli. At the time of the filed complaint by the plaintiffs, the plaintiffs had proven that there was a likelihood of recurrent bypass violations at the plant.
  18. The court granted the plaintiffs’ motion for summary judgment on the issue of whether the defendants were liable for continuous daily violations of the secondary treatment effluent requirements for the duration of July 1, 1988 to December 31, 1992. The court found that DOH and EPA had over extended their authority when they extended the interim effluent limitations beyond July 1, 1988. Additionally, the city 301(h) waiver application's pending nature did not shield the defendants from liability.
  19. To determine the penalties against the defendants, the court relied on several factors: (1) the number of violations; (2) the duration of noncompliance; (3) the significance of the violation; and (4) the actual or potential harm to human health and the environment.

    (a) The court found that the defendants had committed 104 bypass and reporting violations, and 1,645 daily secondary treatment violations.

    (b) The court found that the duration of the bypass and secondary treatment violations were of a long duration because there was a four-and-a-half year continuous secondary treatment violation, and the bypass and reporting violation was six weeks long.

    (c) The court found that the bypass and reporting violations were significant violations. The court based its findings on Ciesla’s testimony that a bypass exceeding 106 million gallons was at the time the largest in Hawai'i. The city had failed its duty to report DOH of the bypass incidents. The city’s failure to report to DOH precluded DOH from mitigating detrimental health effects. Moreover, the court found that the secondary treatment violations were significant violations. The court found that the violations resulted in discharges significantly above secondary treatment effluent limitations, and the secondary treatment limitations were a fundamental requirement of the permit.

    (d) The parties presented conflicting data on the dilution factor for the sewage plume. The court found that although the plaintiffs had proven the need for further studies on the impact of sewage in Mamala Bay and that there were potential risks of harm, the plaintiffs had not proven that the city’s violations had an adverse impact on the environment or public health.
  20. Next, the court analyzed the economic benefit for the city not to comply with secondary treatment effluent limitations in a timely manner. The court concluded that the benefit from deferred capital costs and avoided operational costs from the delay of secondary treatment installment was insignificant.
  21. The court did not find that Honouliuli had a history of violations because there was no direct evidence of prior bypasses at the plant, and the secondary treatment effluent limitations were not in effect before July 1, 1988.
  22. In analyzing the good faith compliance efforts of the city to avoid bypasses that occurred in October and November 1989, the court found that the city failed to take feasible mitigation measures. The court, however, found that the city had acted in good faith when the city made efforts to meet the interim effluent limitations due to the city’s belief that the interim effluent limitations were the set standard.
  23. The court found that the city had not acted in bad faith in regards to the secondary treatment effluent requirements. The court found that because the consent order established interim limitations and a construction schedule for the secondary treatment plant if the 301(h) waiver was denied, it was reasonable for the city to assume that the interim limitations were the only applicable effluent limitations.
  24. The court found that a $25 million penalty against the city was not an undue burden on the city because it could cause a 2.88% increase in the sewer user rate.
  25. The court determined the total maximum civil penalty for the violation of the secondary treatment requirements of the CWA and for the bypass and non-reporting violations under the CWA to be $249,350,000. The lack of seriousness of the violations, the lack of economic benefit from delaying compliance with secondary treatment, the city’s good faith reliance on the DOH interim standards were mitigating factors in assessing the civil penalties. The city’s lack of good faith efforts to comply with the NPDES permit or internal reporting procedures, and negligible economic impact of a penalty on the city were not mitigating factors in assessing the civil penalties. Therefore, the court ordered the city to pay civil penalties in the amount of $156,000 for the bypass violations, $312,000 for the violations of the reporting requirements of the NPDES permit, and $250,000 for the continuing violation of the secondary treatment requirement.
  26. In addition to civil penalties, the court ordered equitable relief: (1) the city must operate at least three of its four available primary clarifiers at all times, and (2) the city must allocate an additional one million dollars to the Mamala Bay Study Commission by December 31, 1993.
    27) Finally, the court entered declaratory judgment against the defendant: (1) the city was liable for 9,870 violations of the secondary treatment effluent requirements of the CWA at Honouliuli; (2) there were fifty-two bypass and fifty-two non-reporting violations of the CWA at Honouliuli, and (3) the plaintiffs were the “prevailing parties” for the purposes of awarding attorney fees and cost provisions.