PERMITS UNDER SECTION 301(H) OF THE CLEAN WATER ACT AND THE SAND ISLAND WASTE WATER TREATMENT PLANT: A CASE STUDY

Daniel N. Davidson, Class of 2002

Foreword

Dear Reader:

I wrote this paper initially as my final project for Professor Denise Antolini’s Fall 2000 Environmental Law class. Having grown up on O`ahu, I had heard over the years about spills and other problems associated with Hawai`i’s Waste Water Treatment Plants (WWTPs). Thus, this issue seemed like a potentially timely and important subject for my paper, and I did some research into it. I found out about the Sand Island WWTP and its permit status under the Clean Water Act (CWA), about the earlier lawsuit on the matter, and about the disagreement over permitting that still exists in the community. I therefore decided to write my paper about this important and unresolved issue that the State of Hawai`i continues to confront.

Daniel N. Davidson

Daniel N. Davidson, Class of 2002

I. Introduction

In October of 1972, Congress enacted the Federal Water Pollution Control Act Amendments (“FWPCA”), now known as the Clean Water Act (“CWA”), Pub. L. 92-500, 33 U.S.C. §§ 1251 et seq., over a veto by President Richard Nixon, who opposed its large increase in federal funds for sewage treatment.[1]  In order “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” the FWPCA required the Environmental Protection Agency (“EPA”) to establish technology-based discharge limits, imposed a nationwide permit system for point source dischargers, and expanded the federal government's role in financing construction of municipal treatment facilities.[2]

The City and County of Honolulu completed construction of the Sand Island Waste Water Treatment Plant (“WWTP”), servicing much of the urban area of Honolulu, Hawai`i, in 1978.[3]  With its design capacity of 82 million gallons of effluent per day (“mgd”), the Sand Island WWTP discharges each day an amount of sewage effluent over seven times greater than the 11 million gallons of oil spilled in the Exxon Valdez disaster of 1989.[4]  The standards used by the plant in treating its waste water have been a source of significant controversy, despite the fact that the City and County of Honolulu is not in violation of the CWA in its operation of the plant.  This brings into question some elements of the CWA itself.  In particular, whether the permits granted to the Sand Island WWTP on several occasions under a subsection of the Act, waiving the higher secondary treatment requirement, were appropriately granted, and whether such permits should be granted in the future.  Residents of Hawai`i disagree on this issue.

This paper looks at waste water treatment standards and their application to the Sand Island WWTP, and then addresses policy issues surrounding the level of treatment currently employed by the plant.  It begins by examining some of the relevant provisions of the CWA and regulations promulgated by the EPA thereunder.  Next it looks at the Sand Island WWTP and its permitting status, provides a background of litigation involving the plant, and discusses some of the findings of a comprehensive study done of the waters of Mamala Bay off O`ahu’s southern shore.  The analysis section considers whether permits waiving the higher waste water treatment standard employed by most sewage treatment plants in the country are appropriate for the Sand Island WWTP.  In making this analysis, the section provides the views of some of the important players involved with the issue and with the earlier litigation on the Sand Island WWTP.      

II.  Background 

A.  The Clean Water Act and National Waste Water Treatment Standards

Under the second title of the CWA, entitled "Grants for Construction of Treatment Works," 33 U.S.C. § 1281(a) provides, "It is the purpose of this title [33 USCS §§ 1281 et seq.] to require and to assist the development and implementation of waste treatment management plans and practices which will achieve the goals of this Act."[5]  Section 301 of the CWA, 33 U.S.C. § 1311 (1972), states, in relevant part:

(b) Timetable for achievement of objectives.  In order to carry out the objective of this Act there shall be achieved--

  (1) . . . (B) for publicly owned treatment works in existence on July 1, 1977, or approved pursuant to section 203 of this Act [33 U.S.C. § 1283] prior to June 30, 1974 (for which construction must be completed within four years of approval), effluent limitations based upon secondary treatment as defined by the Administrator pursuant to section 304(d)(1) of this Act [33 U.S.C. § 1314(d)(1)];

Under the Clean Water Act of 1977, Section 301(i)(1), 33 U.S.C. § 1311(i)(1) was amended to allow for modification, on a case-by-case basis, of the July 1, 1977 deadline for publicly owned treatment works to achieve effluent limitations based on secondary treatment, up to July 1, 1983.[6]  In 1981, the deadline under Section 301(i)(1) was amended to July 1, 1988.

Secondary treatment imposes a much stricter effluent standard on public treatment works than primary treatment.  EPA defines “secondary treatment” in 40 C.F.R. § 133.102(a), to require the removal of 85 percent of biochemical oxygen demanding material (“BOD”) and suspended solids (“SS”), as compared to the definition in Section 301(h) of the CWA and 40 C.F.R. § 125.58(r) of “primary or equivalent treatment,” as “treatment by screening, sedimentation, and skimming adequate to remove at least 30 percent of the biochemical oxygen demanding material and of the suspended solids in the treatment works influent, and disinfection, where appropriate.

In 1977, Section 301 of the CWA was amended by adding a new subsection “(h).”  This subsection provides for a modification or waiver of the CWA's secondary treatment requirement under Section 301(b)(1)(B), in those circumstances where such a modification will not adversely affect public water supplies or otherwise harm the environment.   Specifically, Section 301(h) provides that:

The Administrator, with the concurrence of the State, may issue a permit under section 1342 of this title which modifies the requirements of subsection (b)(1)(B) of this section with respect to the discharge of any pollutant from a publicly owned treatment works into marine waters, if the applicant demonstrates to the satisfaction of the Administrator that- [nine conditions, including the three outlined below, are fulfilled.]

Section 402 of the Act, 33 U.S.C. § 1342, referred to in Section 301(h), establishes guidelines for issuance of permits for discharges of pollutants under the National Pollutant Discharge Elimination System (“NPDES”). 

According to the legislative history of Section 301(h) of the Clean Water Act, “[t]his subsection is the result of recognition that there are some coastal areas of the United States and its territories where natural factors provide significant and in some cases sufficient elimination of traditional forms of pollution from publicly-owned treatment works to avoid the necessity of providing secondary treatment.”[7]  In determining whether a section 301(h) waiver should be granted to a public treatment plant, the Administrator takes into account factors such as the hydrological and geological characteristics of the waters into which treatment plants discharge, along with the distance from the shore and depth of the effluent outfall, with depth being “a key factor in determining the amount of circulation in waters of the territorial sea or contiguous zone.  Circulation in turn affects the degree to which waste water discharges to these waters are rapidly dispersed.”[8]  The legislative history on this subsection further states that the areas described in the conditions set forth in Section 301(h) “include most of the coast of the western United States, the coasts of Hawaii, Puerto Rico, American Samoa, the Virgin Islands, and portions of estuarine waters [of Alaska].”[9]  The waste water treatment plants of the large majority of cities in the United States employ secondary treatment, however, and do not operate under Section 301(h) waivers, making Honolulu somewhat of a “relic” in terms of treatment standards. 

Among the conditions for consideration of a 301(h) waiver imposed by the subsection is that found in Section 301(h)(2), under which an applicant must demonstrate that: the discharge of pollutants in accordance with such modified requirements will not interfere, alone or in combination with pollutants from other sources, with the attainment or maintenance of that water quality which assures protection of public water supplies and the protection of a balanced, indigenous population of shellfish, fish, and wildlife, and allows recreational activities, in and on the water[.]

This is perhaps the most pertinent condition under Section 301(h) in considering the appropriateness of granting waivers of the secondary treatment requirement for Honolulu's Sand Island WWTP.

In 1979, EPA promulgated regulations to govern applications for permits under Section 301(h) of the CWA, codified at 40 C.F.R. §§ 125.56 – 68 and 40 C.F.R. Part 125, Appendix to Subpart G.  Among numerous other terms, 40 C.F.R. § 125.58 defines, in subsection (f), “balanced indigenous population” (referred to in the Section 301(h)(2) clause above), as “an ecological community which: (1) [e]xhibits characteristics similar to those of nearby, healthy communities existing under comparable but unpolluted environmental conditions; or (2) [m]ay reasonably be expected to become reestablished in the polluted water body segment from adjacent waters if sources of pollution were removed.”[10]

40 C.F.R. § 125.62(a) requires that at the time modification of the secondary treatment requirement becomes effective, the discharge of effluent will not exceed all applicable water quality standards, or water quality criteria for pollutants “for which there is no applicable EPA-approved water quality standard that directly corresponds to the EPA water quality criterion for the pollutant.”[11]  The subsection further establishes the guidelines for evaluation of compliance with water quality criteria, divided separately for aquatic life criteria and human health criteria.

40 C.F.R. § 125.62(c)(3) provides that conditions in the “zone of initial dilution” (near the outfall pipe) must not contribute to “extreme adverse biological impacts, including, but not limited to, the destruction of distinctive habitats . . . the presence of disease epicenter, or the stimulation of phytoplankton blooms which have adverse effects beyond the zone of initial dilution.”[12]  Additionally, 40 C.F.R. § 125.62(d)(1) states that an applicant's discharge under the Section 301(h) permit, “must allow for the attainment or maintenance of water quality which allows for recreational activities beyond the zone of initial dilution, including, without limitation, swimming, diving, boating, fishing, and picnicking, and sports activities along shorelines and beaches.”[13]   

Among the other important conditions imposed by section 301(h) of the CWA is that an applicant must have some form of monitoring system in place to study the effects of discharging effluent treated at modified standards.  Specifically, under Section 301(h)(3), an applicant must demonstrate that it has “established a system for monitoring the impact of such discharge on a representative sample of aquatic biota, to the extent practicable, and the scope of such monitoring is limited to include only those scientific investigations which are necessary to study the effects of the proposed discharge.”[14]

Regulations promulgated under section 1311(h)(3) of Title 33 are codified at 40 C.F.R. § 125.63.  Subsection (a) of this section describes general requirements, which include that an applicant must demonstrate the sampling techniques, schedules and locations used in its monitoring program, demonstrate that it has the resources necessary to implement the program upon issuance of the permit, and determine the frequency and extent of monitoring under the program, taking all relevant information into consideration.[15]

Another condition set forth under Section 301(h) of the CWA is found in § 301(h)(9), under which:

The applicant at the time such modification becomes effective will be discharging effluent which has received at least primary or equivalent treatment and which meets the criteria established under section 1314(a)(1) of this title [EPA water quality criteria development and publication] after initial mixing in the waters surrounding or adjacent to the point at which such effluent is discharged.[16]

Under 40 C.F.R. § 125.60(b), an applicant “shall perform monitoring to ensure, based on the monthly average results of the monitoring, that the effluent it discharges has received primary or equivalent treatment.”[17]

An applicant may receive a permit modifying the secondary treatment requirement imposed under Section 301(b)(1)(B) of the CWA only by demonstrating to the satisfaction of the Administrator of the EPA, and by the preponderance of the evidence,[18] that it has fulfilled the nine conditions set forth in Section 301(h) of the Clean Water Act and the regulations promulgated thereunder.  Those with permits waiving or modifying the secondary treatment requirement must reapply for renewal every five years, to allow EPA to assure continued compliance with the conditions set forth in Section 301(h).[19]  

B.  The Sand Island Waste Water Treatment Plan      

Built in 1978, the Sand Island WWTP is the largest water discharger of any kind in Hawai`i measured in total gallons per day.[20]  A publicly owned plant, it is operated by the City and County of Honolulu (hereinafter “the City”), and located on Sand Island adjacent to a state recreation park.  The plant treats waste water from its service area extending from Niu Valley-Paiko Peninsula in the eastern part of O`ahu, to the Moanalua-Aliamanu district in the west, and from the forest reserve boundary to the coastal waters.[21]  With its design capacity of 82 mgd, the Sand Island WWTP discharges primary effluent through an outfall and diffuser system located 3,811 meters offshore,[22] at an underwater depth of 70 meters.[23]

Since its inception, the Sand Island WWTP has discharged effluent treated only to primary standards.  One year after the plant was built, in 1979, the City first applied for a Section 301(h) waiver.[24]   EPA twice tentatively approved the City's Section 301(h) permit applications, on September 8, 1981 and June 28, 1985.[25]  From the latter date until the revised statutory deadline, under Section 301(i)(1), for publicly owned treatment works to achieve secondary treatment capability of July 1, 1988, the plant continued to employ primary treatment, under EPA's tentative approval of the permit application.  Between July 1, 1988 and January of 1990, final action by EPA remained pending.  The agency granted final approval of the City's application for a Section 301(h) permit on January 8, 1990.[26]  It tentatively approved the City's challenged application for a renewal of the permit in February 1995, and last renewed the permit on November 3, 1998, with the condition that the City immediately begin construction of a disinfection facility expected to cost over $20 million to build, treating the entire amount of effluent from the plant.[27]

The City's Sand Island WWTP thus did not meet the July 1, 1988 statutory deadline, and from that time until its waiver, it discharged primary effluent contrary to the secondary treatment requirement of the CWA.[28]  Since receiving its waiver, the plant has operated lawfully, yet it continues to discharge effluent treated to standards below those employed at nearly every other plant in the country.  The Sand Island WWTP, and other treatment plants in Hawai`i that do not employ secondary treatment, have thus generated some degree of controversy, raising concerns about pollution and risks to public health, and calling into question the propriety of the section 301(h) permitting process itself.              

            C.  Background of Litigation on the Sand Island WWTP

 In March of 1990, two environmental non-profit groups, The Sierra Club and Hawai`i's Thousand Friends (hereinafter “Plaintiffs”), commenced a citizens' suit against the City in the United States District Court for the District of Hawai`i.  The Plaintiffs alleged violations of the Clean Water Act and of the terms and conditions of the NPDES permit issued by the Hawai`i State Department of Health (“DOH”) for discharges at the Sand Island WWTP, which required secondary treatment and expired on April 30, 1988.[29]  The Plaintiffs contended that although the City had petitioned for a waiver from the secondary treatment provisions of the CWA and had received provisional approval from EPA, it had never in fact received final approval, and thus had failed to meet the national statutory deadline for upgrading treatment to the secondary level.[30]

The Plaintiffs' complaint alleged that the Sand Island WWTP had been in violation of the CWA since July of 1988, the statutory deadline for achievement of secondary treatment.[31]  It further contended that, because the plant's NPDES permit from the state DOH expired in April of 1988, the plant had been operating unlawfully without a permit for approximately two years.[32]  The Plaintiffs additionally cited numerous examples of the plant's failure to meet the requirements of the CWA, alleging up to 9,000 violations of the CWA in the five years prior to the commencement of the lawsuit.[33]  For instance, from 1985 to 1990, the Sand Island WWTP averaged a BOD removal rate of 20 percent, lower even than the 30 percent removal standard for primary treatment.[34]  Regarding a waiver of the secondary treatment standard, the Plaintiffs denied that the City had qualified for, or was entitled to receive, a Section 301(h) permit.[35] 

At the time the suit was filed, the Defendant City and County of Honolulu's 301(h) permit application was pending before EPA, as it had been for nearly eleven years, since September of 1979.  Although EPA had finally issued the City a modified NPDES permit under Section 301(h) in January 1990, it was not effective pursuant to 40 C.F.R. § 124.15(b)(2),[36] as both the City and the environmental groups had requested an evidentiary hearing before the EPA on the permit.  The Plaintiffs maintained in the lawsuit that the City was not exempted from the provisions of the CWA while final action by the EPA was pending.[37]  The City, on the other hand, asserted its good faith intentions to comply with the law's requirements, and contended that its discharge into the ocean did not adversely affect the waters of Mamala Bay (the ocean waters off the shores of Honolulu, extending from Diamond Head in the east to Barbers Point in the west), or pose a significant risk to public health or beneficial uses of the waters.[38]

After Judge Alan Kay of the United States District Court for the District of Hawai`i issued a Summary Judgment order in favor of the Plaintiffs, the parties entered into negotiations and eventually reached a settlement.[39]  Judge Kay approved the settlement, and the federal court filed a Consent Decree on November 19, 1991.[40]  In recognition of the uncertainties in factual evidence concerning the impact of the plant on Mamala Bay, the parties agreed to a thorough independent investigation of conditions in the Bay, the impact of the plant, and alternative measures to control pollution originating both from point sources like the Sand Island WWTP, and from non-point sources.[41]  The parties further agreed to establish the blue-ribbon Mamala Bay Study Commission (“Commission”), consisting of top experts chosen by both the City and the environmental groups, with a contribution of $8 million by the City to perform the investigation.  With regard to secondary treatment and Section 301(h) proceedings, the parties agreed that both parties file with EPA a joint formal withdrawal of the evidentiary hearing requests that each had filed regarding the NPDES permit issued to the City in January of 1990.[42]  Thus, the consent decree allowed the waiver issued by EPA in January of 1990 to become effective, despite the fact that it also expressly stated that the Plaintiffs reserved all of their rights under the CWA and any other legal authority to challenge an application by the City for any future Section 301(h) or other NPDES permit.[43]

            D.  The Mamala Bay Study  

 After nearly three years of study, from January 1993 through November 1995, the Commission issued its Final Report in April 1996.[44]  The Mamala Bay Study Commission presents in its long, multi-volume Mamala Bay Study Report, an extensive amount of useful and pertinent scientific data with regard to the quality of Mamala Bay waters, and the effects thereon of various point and non-point sources of pollution.  For example, according to model results, the effluent plume from the Sand Island WWTP is transported throughout Mamala Bay.[45]  The Study found that the “conditions most likely to result in pathogen transport onto the beaches occur during winter months when weak water column stratification and Kona winds blowing can allow the outfall plume to surface.”[46]  A plume could also surface during trade wind conditions, “depending on stratification of the water column and physical oceanographic processes.”[47]  Additionally:

Contaminant contributions from Sand Island outfall were found to vary from non-detectable levels, less than 1 cfu (colony forming unit) per 100 ml, to 50 cfu fecal coliform per 100 ml, and 20 cfu enterococci [another contaminant organism] per 100 ml, depending on stratification conditions in the bay and as a result of variations in tidal and low frequency currents.[48]

According to the microbiological standards for marine recreational waters prescribed by the Hawai`i State Department of Health and by EPA, the standard for enterococci concentrations is a rather strict 7 cfu per 100 ml.[49]  Thus, at least under some conditions, the Sand Island outfall causes waters of Mamala Bay to exceed state standards.  The Report also found, however, that “[m]ost swimming beaches of Mamala Bay maintained good water quality, i.e., enterococci concentrations of less than Hawaii's strict standard of 7 cfu/100 milliliters, throughout the Study period.”[50]

 Among the potential effects of the Sand Island WWTP and other sources of pollution studied by the Commission were the risks to public health and the effects on the Mamala Bay ecosystem.  Addressing the risks to public health, considering the findings with regard to enterococci levels and some other contaminants, the Commission concluded that “the presence of pathogenic microorganisms in nearshore and recreational use waters, as observed in field sampling programs and in the results of the contaminant fate model, warrants source reductions of contaminant discharges to the bay.”[51]  Yet it also found that, based on the data it collected, “the risks of contracting an infectious disease by bathing, swimming, surfing, or fishing in Mamala Bay waters are low, a conclusion evidenced incidentally by the low prevalence of reported cases of disease among both the resident and recreational populations.”[52]

 Upon studying the environmental effects of the Sand Island outfall and other point and non-point pollutant sources on the Mamala Bay ecosystem, the Commission concluded that “[p]oint sources of pollution of Mamala Bay have comparatively minor quantitative effects on phytoplankton and benthic communities.  There is conclusive evidence that nutrient enrichment in shoreline areas is closely related to non-point sources . . . .”[53]  Some examples of non-point sources listed in the Report include cesspools and ground water drainage, and localized discharges from such sources as the Ala Wai Canal.[54]  The Commission recommended that a Mamala Bay monitoring program be established, and that it “include periodic samplings of benthic chemistry, sediment characteristics and benthic communities, including coral stands, in areas adjacent to the Sand Island outfall . . . .”[55]  This would allow for comprehensive analyses of the environmental impacts of pollutants discharged into Mamala Bay, and development of effective environmental quality control solutions.

 The Commission provided twelve recommendations, including two that have provoked some degree of controversy and been particularly instrumental in effecting changes.  Among them is:

A second important recommendation is that “disinfection be provided for the ocean outfall discharges at both the Sand Island and the Honouliuli WWTPs; and that ultraviolet disinfection should be investigated by means of pilot plant studies as one disinfection alternative to chlorination/dechlorination at both WWTPs.”[57]  Based on the Commission's recommendations, EPA conditioned the Section 301(h) permit issued in 1998 on the City's construction of a disinfection facility for the Sand Island WWTP.  Thus, the City has been forced to comply to some degree with at least these recommendations of the Mamala Bay Study Commission.

III.  Analysis 

       Are Section 301(h) Permits Appropriate for the Sand Island WWT?

 Today, the Sand Island WWTP continues to discharge primary effluent as it has since it was built 22 years ago, and remains in compliance with the CWA under the permitting process established pursuant to Section 301(h) of the CWA.  Therefore, to question the treatment standards employed by the plant is to question to some degree the Section 301(h) permitting process itself.  More particularly, are such permits still appropriate for the Sand Island WWTP?  Members of Hawai`i's community are divided on this issue.

 Some believe that secondary treatment is not as crucial in Hawai`i, where facilities can discharge treated waste water into deep open ocean, as it is elsewhere in the United States where effluent may be released into shallower bodies of water, such as rivers, which impact people in other regions.  Additionally, the Hawaiian Islands' volcanic origin renders the shores of Hawai`i steeper than those of continental U.S. states, which have the continental shelf, and thus shallower offshore waters.  Hawai`i's shores may therefore be an ideal example of the kind of coastal area envisioned by Section 301(h) of the Clean Water Act, where natural factors provide sufficient elimination of pollution from treatment works to avoid the necessity of secondary treatment. 

 An article in the March 1994 edition of Environment Hawai`i describes how, in that year, the Hawai`i Water Pollution Control Association and the Land Use Research Foundation joined forces in an education campaign “intended to win public support for the notion that the discharge of primary-treated sewage into the ocean is ‘not presently detrimental to coastal water quality.’”[58]  This, of course, is also the position of the City and County of Honolulu with regard to its Sand Island and Honouliuli[59] WWTPs, which discharge primary and advanced primary effluent, respectively.  As the City maintained in the 1990 action against it by the Sierra Club and Hawai`i's Thousand Friends, the Sand Island WWTP's discharge into Mamala Bay does not degrade the waters of the Bay or pose unacceptable risks.[60]  Cheryl Okuma-Sepe, Deputy Corporation Counsel for the City, maintains that the Mamala Bay ecosystem is not being compromised by the Sand Island WWTP, and that the shores of Hawai`i are indeed the kind of coastal area envisioned in the Act, where natural factors render secondary treatment unnecessary.[61]  Thus, it is not worth it for the City to allocate large sums of tax dollars and public resources to upgrade the Sand Island WWTP to secondary treatment, when studies such as the Mamala Bay Report have not established conclusively that primary effluent harms the environment.[62]   

 Ken Sprague, Executive Director of the City Department of Environmental Services, also maintains that natural factors of Hawai`i's shores are sufficient to eliminate pollutants from waste water effluent, rendering secondary treatment unnecessary.[63]  Because no real benefit would inhere in employing secondary treatment at the Sand Island WWTP, it is not worth it for the City to upgrade the plant to that standard.[64]  Furthermore, at least one study has shown there is actually a possibility of more harm to the environment if secondary treatment were employed at the Sand Island WWTP, as some of the nutrients resulting from the secondary treatment process may promote algae growth with detrimental environmental effects.[65]  Based on such data and the fact that the Mamala Bay Study did not find any harm resulting from the plant, the City Department of Environmental Services maintains that waivers under Section 301(h) are appropriate for the Sand Island WWTP.[66]      

 Others believe that the discharge of over 80 million gallons of primary effluent each day into Mamala Bay is unacceptable.  Based in part on the Commission's findings that some pathogenic microorganisms and other contaminants exist in near-shore and recreational use waters, and the lack of clear evidence that the discharge of primary effluent does not have harmful effects, opponents such as the Plaintiffs in the lawsuits discussed above, believe that the City should upgrade the treatment standards used at its waste water treatment works to more advanced levels.  Paul Achitoff of Earthjustice Legal Defense Fund indicated that he believes that waivers under Section 301(h) are inappropriate for a plant like the Sand Island WWTP, which has the lowest removal rate of pollutants from its effluent of all municipal waste water treatment plants in the United States.[67]  Additionally, it is not clear that waste water at the Sand Island WWTP is treated to a sufficient level to allow the ultraviolet disinfection facility, on which the plant's latest Section 301(h) waiver was conditioned, to be effective.[68]

 Life of the Land (“LOL”) is another environmental group that believes the Sand Island WWTP should be upgraded to secondary treatment capability.  According to Executive Director Henry Curtis, LOL believes that the plant should employ secondary treatment, and build a miniature power station to utilize some of the by-products of the treatment process, some of which have the potential to create energy and decrease the need for oil and other fuels.[69]      

 It is important to note that the determination of whether Section 301(h) waivers are appropriate for the Sand Island WWTP is hampered to some degree by the fact that some on both sides of the debate question several of the methods and findings of the Mamala Bay Study.  One source from the City Department of Environmental Services, who wished to remain anonymous, criticized the Mamala Bay Study Report for drawing some of its conclusions from assumptions that were not stated, and for being based in part on models derived from Chesapeake Bay.[70]  Similarly, Curtis of LOL expressed that the Mamala Bay Study was based on models that do not match reality.[71]  In his view, fewer models and “more common sense” should have been used to determine conditions in Mamala Bay, through such methods as asking surfers and swimmers how the water quality seemed to them.[72]  Curtis also questioned the finding of the Mamala Bay Study that pollutant levels from some non-point sources such as the Ala Wai canal, are higher than those from point sources such as the Sand Island outfall for some contaminants.[73]  Thus, in Curtis' and Life of the Land's view, no truly competent study of pollution in Mamala Bay was completed, and thus it is hard to assess with certainty the effects of the Sand Island WWTP; because the opportunity to even know whether detrimental effects exist has been denied, the City should err on the safe side and not discharge primary effluent. [74]  Achitoff of Earthjustice noted that seemingly everyone, on both sides of the issue, can point to the Mamala Bay Study and claim that it supports their point of view.[75]    

 Whatever the case may be, the view of opponents of Section 301(h) waivers for the Sand Island WWTP is perhaps bolstered by other well-known instances of violations of laws by sewage treatment plants in Hawai`i, including cases of illegal “midnight dumping” and spills of sewage.  Because of such actual and alleged instances of illegal activity by treatment works, some in Hawai`i believe that the state is behind its Mainland counterparts in terms of waste water treatment- a belief supported by the fact that the large majority of plants in the United States employ secondary treatment.  In the view of such opponents of primary treatment, the Sand Island WWTP has been inappropriately granted Section 301(h) permits, and should not be allowed by EPA to continue to discharge effluent treated only to primary or equivalent standards.  While the City is currently in the process of implementing the Commission's recommendation of building an ultraviolet disinfection facility,[76] this is not an adequate substitute for secondary treatment.  The Sand Island WWTP's permit is due for renewal in 2003, and while is difficult to say with certainty, EPA will in all likelihood grant the City's application for renewal, absent some new evidence that the plant has a significant detrimental effect on the environment.  Yet those who oppose the idea of a sewage treatment plant dumping over 80 million gallons per day of effluent treated to the lowest possible standard allowed by law, into the waters of “Paradise,” can hope that in the not-too-distant future EPA and the State DOH will require the Sand Island WWTP to upgrade to secondary treatment.     

IV.  Conclusion

 Under a 1977 amendment to the Clean Water Act, the EPA Administrator may grant a permit modifying the secondary treatment requirement imposed by the Act if the applicant can demonstrate to the satisfaction of the Administrator that it has fulfilled nine conditions.  The Sand Island Waste Water Treatment Plant discharges primary effluent under Section 301(h) permits, which survived the legal challenge brought in 1990 by two environmental groups that forced the City and County of Honolulu to make other changes for purposes of better understanding conditions in Mamala Bay and taking steps to improve them.  There are opposing views on the section 301(h) permitting process as applied to the Sand Island WWTP and other plants in Hawai`i.  While studies have not shown that waste water effluent poses enormous risks to public health or the environment, some would argue that this is insufficient to allow the discharge of millions of gallons of effluent treated only to primary standards to continue.