EPA Imposes Largest Fine Ever For Runoff Violations in North Kaua`i

posted in: April 2006 | 0

(James Pflueger is a beneficiary and former trustee of the Mary Lucas Trust. The following story on his settlement agreement with the EPA, which ran in the April issue of Environment Hawai`i, contained incorrect information. Pflueger resigned as trustee in June 2004 following a long court battle with fellow beneficiaries over his handling of the trust’s assets, including the sale of property in Pila`a, Kaua`i.)

Before last month’s catastrophic breach of Kaua`i’s Kaloko dam, which sits on properties owned by retired auto dealer James Pflueger and the Mary Lucas Trust (of which he is a trustee), government officials and community groups were celebrating the end of a long, complicated, high-profile violation case.

On March 9, the EPA, the U.S. Department of Justice, the state Department of Health, the Limu Coalition and the Kilauea Neighborhood Board announced that after three years of negotiating with Pflueger’s attorneys, they had reached a settlement regarding Clean Water Act violations stemming from his properties at Kaloko and Pila`a Kaua`i.

The settlement, which had to undergo a 30-day public comment period and be approved by the federal court, calls for Pflueger (and his companies Pflueger Properties and Pila`a 400, LLC) to pay $2 million in penalties: $1,170,000 to the state DOH and $830,000 to the federal government.

Pflueger must also implement remediation plans for the area, which are expected to cost him somewhere between $5.3 and $5.6 million. Under the settlement, Pflueger will also pay $200,000 to replace cesspools with improved wastewater systems in the nearby community of Kalihiwai, $135,000 toward a mobile water quality laboratory for the Kaua`i community, and litigation costs incurred by the Limu Coalition and the Kilauea Neighborhood Board, which had filed a federal lawsuit against Pflueger in 2002 for violating the Clean Water Act. (Both organizations were represented by Earthjustice.)

The settlement, according to an EPA fact sheet, is “the largest Clean Water Act storm water penalty imposed to date in the United States for a single site and single landowner.”

The violations were the result of runoff that resulted from grading, grubbing, stream diversion, road construction, and other activities Pflueger had done to about five acres at his Pila`a and Kaloko properties without obtaining a National Pollutant Discharge Elimination System permit from the DOH.

A massive November 2001 landslide that resulted from his earth-moving activities at Pila`a have already netted Pflueger a $500,000 criminal penalty, a $310,000 fine from the county for Special Management Area and shoreline setback violations, and a $4 million fine from the state Board of Land and Natural Resources for damages to the coral reef in Pila`a Bay. Pflueger’s company Pila`a 400 is appealing that fine in Circuit Court. He also faces a civil suit by residents whose home was damaged by the mudslide.

At the press conference announcing the settlement, Linda Pasadava of the Kilauea Neighborhood Board said the settlement sent a message to people that “infractions on our environment will not be tolerated.”

Wayne Nastri, EPA administrator for the Pacific Southwest, sad that had Pflueger obtained the proper permits, and implemented the erosion control measures they require, “We wouldn’t be here; we wouldn’t be talking about $5.3 million in injunctive relief and $2 million in penalties…I wish that we didn’t have to be here.”

Maka`ala Ka`aumoana of the Limu Coalition, an environmental and cultural non-profit organization, added that the damage done to Pila`a’s limu and other the ocean resources by the runoff affected the communities ability to feed itself.

“He will now fix the things that he broke,” she said.

Under the settlement, Pflueger will continue his efforts to stabilize erosion-prone areas on his Pila`a property, including the erection of a “nail wall” to stabilize a 40-foot road cut near the shore, slope terracing, and revegetation with native plants. At Kaloko, similar measures are expected to be completed in October. In addition, restoration work related to several artificial ponds he created is expected to be completed in October 2007.

When asked whether the massive flooding that occurred on March 14 after the Kaloko Reservoir broke would affect any of the planned restoration work, EPA public affairs specialist Dean Higuchi told Environment Hawai`i, “As far as we can tell, to the best of our knowledge, the flooding didn’t impact any of the property addressed under the consent decree.”

— Teresa Dawson

Volume 16, Number 10 April 2006