- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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