The new rule received wide publicity in Hawai`i, where gang cesspools, as they are often called here, were in wide use. And in case anyone missed news reports, the state Department of Health, which administers EPA regulations, sent out notices to everyone it suspected might still be using them.
Among those receiving notice from the DOH was Cheryl Vasconcellos, executive director of the Hana Medical Center. By certified mail, in a letter dated July 10, 2001, Vasconcellos was informed that “all existing LCCs are subject to phase-out by April 5, 2005. The time allowance for phasing out existing LCCs is meant to give facilities time to upgrade their cesspool systems or prepare for cesspool closure.”
Vasconcellos was in touch with the EPA concerning the cesspools several more times through the decade. In September 2009. Katherine Rao, the LCC program coordinator, required Hana Health to complete an LCC inventory form and submit that, along with a closure plan, to the EPA by October 30, 2009. In 2011, the agency sent an environmental scientist to Hana to investigate the cesspool matter further.
Fast-forward to 2013. The Hana Medical Center, now known as Hana Health, is still relying on a gang cesspool for disposal of its wastewater. And the EPA has run out of patience.
Notice of Default
Last May 29, Roberto Rodriguez, chief enforcement officer for the Safe Drinking Water Act in the EPA’s San Francisco office, sent a formal notice of violation of the LCC ban at the Hana Health clinic. It was addressed not to Vasconcellos or anyone else in Hana, but to Russell Tsuji, administrator of the Land Division for the Department of Land and Natural Resources.
“Cesspools allow raw sewage to be discharged into the ground and are a public health and environmental concern,” Rodriguez wrote. “EPA hereby requires you, as the owner of the subject facility … to provide the following information,” including the location and types of wastewater systems receiving sewage, copies of “any and all plans for replacement wastewater treatment and disposal system(s),” and copies of “any and all correspondence with any engineers, contractors, or other entities” regarding the conversion of LCCs to other systems of wastewater disposal.
Failure to comply could expose the state to penalties as much as $37,500 per day per violation, Rodriguez stated. “In addition … EPA may issue an administrative order assessing a civil penalty of not more than $16,000 for each day of violation.”
The letter, Tsuji later told Environment Hawai`i, “was a blast out of the blue.” Although Tsuji had been aware of other state facilities – Waianapanapa State Park near Hana, Malaekahana State Park on O`ahu – where the EPA had indicated concerns with gang cesspools and for which the state had undertaken a plan of action to remove them, “we never got notified of anything else.”
But Hana Health, a non-profit organization, leases from the DLNR the land on which it has a clinic, kitchen, and several other buildings – and the cesspools. For that reason, it was Tsuji, not Vasconcellos, to whom the enforcement action was addressed.
The lease rent is nominal, but lease terms include the DLNR’s standard condition that the lessee comply with all federal, state, and county authorities.
On June 5, just two days after he had received Rodriguez’ letter, Tsuji sent a notice of default to Hana Health, citing its failure “to comply with rules and regulations of the federal government, specifically related to the continued operation of a Large Capacity Cesspool” in violation of the EPA’s regulations. Also, “we hereby demand Hana Health pay for all of the state’s attorneys’ fees and costs in connection with this matter, and indemnify, defend and hold harmless the state as to the actions of the EPA.”
Tsuji set a deadline of 60 days for Hana Health to cure the violation. Otherwise, Hana Health could see its lease cancelled and the DLNR initiate other legal action, he warned.
A Call to Action
From documents obtained from the EPA through a Freedom-of-Information-Act request, it seems that Tsuji’s letter did spur Vasconcellos to act quickly – not, however, to cure the violation, but to circle the wagons.
Vasconcellos, unlike Tsuji, had had advance warning that the EPA was about to lower the boom. The day before Rodriguez’ letter to Tsuji, Aaron Setran, the environmental scientist in the Enforcement Division of the EPA’s Water and Pesticides Branch, had emailed Vasconcellos, asking her “if the cesspool(s) servicing the main facility is/are still operational, and if you and/or the state have made any substantive progress toward converting/closing the cesspool(s).”
In reply, Vasconcellos stated that a contract Hana Health wanted to sign for this work was in the attorney general’s office awaiting approval. Once that was received, she wrote, “I will begin the planning for cesspool closure and hope to have that part of the project completed within 12 months of the state’s approval to move forward.”
“The amount of time this is taking is ridiculous, but it is what it is,” she wrote. “I can only keep bugging them to get everything moving. Very frustrating!”
Within a day of receiving Tsuji’s notice of default, Vasconcellos emailed Setran: “As expected, the state is coming after Hana Health to comply with EPA requirements. I will be working on a strategy over the next week or so, along with legal counsel and board.”
By June 21, Vasconcellos had involved state legislators and the offices of U.S. Sen. Mazie Hirono and U.S. Rep. Tulsi Gabbard. Mele Carroll, chair of the state House of Representatives’ Human Services Committee whose district includes East Maui, invited Kehau Yap of Hirono’s staff, Karey Oura-Kapoi from Gabbard’s staff, other legislators, and officials from the DLNR and DOH to an “URGENT meeting on June 24” with Vasconcellos.
“I am very concerned about this situation because the state doesn’t have an extra $37,000 per day (fine amount) until the situation is cured,” Carroll wrote. “This could take up to two or more years to remedy the situation.”
Over the next month, Vasconcellos retained the services of Pam Bunn, an attorney with the Honolulu firm of Alston Hunt Floyd & Ing. She also provided Setran with documents that she said backed her claim that, if Hana Health was in violation of the cesspool ban, both the DOH and the DLNR should share in the blame since they had been fully aware of the problem.
From 2000 through 2005, three environmental assessments were prepared in association with improvements at the Hana clinic. The first, in 2000, was for the expansion of the clinic. In 2004, an EAs was prepared for developing a $26 million wellness village, complete with 20 guest cottages, six small units for elderly housing, two swimming pools, a fitness center with rock-climbing wall and weight room, a commercial kitchen and restaurant, a technology and conference center, and gift shop. Both were forwarded to the DOH and DLNR for comment. “All of the EA’s we completed were related to Hana Health’s planned expansion efforts,” she wrote in an email to Setran on July 30. “Neither DLNR nor DOH commented on the wastewater system currently in use by the health center.”
In an email to Setran in late July, Vasconcellos wrote that the accepting agency for the 2004 document was the Department of Land and Natural Resources. “There were lots of architect exhibits/drawings in this document … but nothing related to waste water,” she informed him. (In fact, there is a drawing in the engineer’s report, appended to the EA, that shows where septic systems and leach fields would be placed to serve the new structures anticipated in the EA.)
The third document, prepared in 2005, was an EA submitted to the U.S. Department of Housing and Urban Development, in connection with a grant application to underwrite the improvements outlined in the 2004 EA.
In each of the three documents, there is an acknowledgement that the existing cesspools will need to be replaced, along with a promise of plans for this to be provided at some future time. The 2004 document, for example, states that, “The project site will be service by multiple [independent wastewater systems], designed in accordance with state of Hawai`i, Department of Health guidelines and rules. Plans and specifications for the IWS will be determined during the project design process and will be submitted for review and approval to the Department of Health prior to implementation.”
Nearly all of the improvements anticipated in the 2004 EA have been put on hold. In 2008, though, Vasconcellos began planning in earnest to build the kitchen – a.k.a. nutrition center – that had been called out as one of the last of the several structures to be built in the 2004 planning documents. The nutrition center was among the structures planned to be built in Phase III of the wellness center, long after the fitness center, traditional cultural healing center, administration building, reception building, and wellness cottages.
Before receiving a permit to build it, Vasconcellos needed to get Maui County Council approval for a boundary amendment and change in zoning. At a hearing of the council’s Land Use Committee, she was asked to provide updated cost estimates for the overall project.
In response, she indicated that plans had been significantly scaled back. The original cost projection for the 5,600-square-foot nutrition center was $1.8 million, she wrote: “Since that time, the cost of constructing a 3,700-square-foot nutrition center increased to $3.4 million, almost a doubling of the cost of a facility that is 2,100 square feet smaller than originally planned.” As a result of value engineering, she continued, the cost might be brought down to $1.17 million.
Applying the same formulas to estimate cost to construction of the rest of the planned structures, she wrote, “it is very clear that for this project to be financially feasible, it will need to be reduced in size by approximately 75 percent. Instead of approximately 79,000 square feet of space … the entire project will need to be reduced to approximately 24,100 square feet of space,” with a revised cost estimate of $21.7 million.
In light of the increased costs, she continued, “we have decided to focus on the top priorities identified through the planning process,” which were the medical center renovations, the nutrition center, the physical therapy/fitness center, and kupuna housing. First to be undertaken on Vasconcellos’ list was the nutrition center. The wellness cottages were no longer on the to-do list. By this time, most of the area where they were to be built was under cultivation as part of Hana Health’s farm subsidiary, called Hana Fresh. “Hana Health intends to preserve the Hana Fresh organic farm,” Vasconcellos told the County Council.
As Vasconcellos pushed forward with plans for the nutrition center, raising funds and getting approvals for this project, the EPA continued to make noises about the illegal cesspools.
So Hana Health retained the services of the Honolulu firm of Burke McPheeters Bordner & Estes to intercede on its behalf with the EPA. The firm’s John Reyes-Burke informed Katherine Rao, LCC program coordinator for the EPA in San Francisco, that Hana Health had no information on any cesspools on site. As to the location of the cesspools, he wrote, “Virtually all existing structures on the property, including particularly any large capacity cesspool(s) which are the subject of the EPA’s [September 29, 2009] letter, were presumably constructed for the state of Hawai`i, and the requested information would appear to reside with the state.”
Hana Health, he continued, “acceded to the existing cesspool(s) and other pertinent structures on the property, and has no information regarding either the number or specific location” of any of cesspool. In any event, as part of its long-term plan, Hana Health was intending “to replace the aging (approximately 75 year old) clinic building, presumably the principal utilizer of the subject cesspool(s),” Reyes-Burke wrote. However, “the scope and timing of such improvements have been scaled back and/or delayed, in large part due to budget constraints. While this new development of cesspool remediation is sure to add to such financial limitations, Hana Health proposes a plan of improvement in which the requirement for closure of the subject cesspool(s) is integrated with, for example, the replacement of the clinic building.”
Around this same time, in letters to Maui legislators, Vasconcellos wrote that the EPA “has requested a closure schedule,” including hiring an engineer to design an alternative wastewater system, getting plans approved by the DOH, and constructing the new system and closing the old.
“I’m sure that you are aware of the significant expense this project will entail and Hana Health is not in a position to cover anticipated costs without additional financial support from the state,” she wrote. If, as she expected, the EPA was to require a new wastewater system be installed before the new medical center was built, “a legislative appropriation specifically for this project will be necessary,” at a cost of several hundred thousand dollars.
She also called on them to urge the Department of Health to release $400,000 in capital improvement funds included by the Legislature in the 2009-2010 budget. This, she said, wasn’t for cesspool mitigation specifically, but “so that we may proceed with the development of design/construction documents for a new and expanded medical facility,” including a new wastewater system compliant with EPA regulations. Actual construction “will be more long term and require several million dollars,” she noted.
In June of 2012, the funds were finally released. Yet nearly a year later, Hana Health had still not executed a contract for any work.
The DLNR Responds
On July 12, William Aila, head of the Department of Land and Natural Resources, responded to the EPA’s notice of violation. Hana Health had assumed all responsibility for compliance with federal, state, and county laws when it assumed control of the property, Aila said, and the DLNR had no information concerning any cesspools on the site. “We also checked with [the Department of Health] whether they have materials responsive to your request, since the Hana Health Clinic was administered and managed by HDOH until 1998.”
Hana Health, Aila said, “has indicated to DLNR that it will contract for the necessary planning and design studies that will identify all large capacity cesspools that may be on the property, and provide for their closure.”
“Hana Health,” he continued, “has received a grant-in-aid award from HDOH, which grant-in-aid funds may be utilized for the purpose of constructing a septic system to replace any large capacity cesspool(s). Hana Health has indicated to DLNR that it will seek bids for the preparation of plans to construct a septic system and will make every effort to find monies in its current budget to pay for the preparation of plans. As we believe Hana Health likely has the financial means to resolve this issue, DLNR expects Hana Health to take all appropriate action in a timely manner. In the event Hana Health does not have sufficient funds in its current budget to pay for the plans, it is our understanding that Hana Health will request a grant-in-aid from the state Legislature for consideration during its 2014 session…. Therefore, DLNR respectfully requests that the EPA suspend any enforcement action in this matter … until such reasonable time is necessary to resolve this matter.”
“In addition,” he concluded, “please consider that any assessment of fines or penalties against the state of Hawai`i may result in the Board of Land and Natural Resources terminating” Hana Health’s lease.
For now, it appears that the EPA enforcement action is on hold. With the DLNR raising the prospect of shutting down Hana Health if the EPA moves forward with fines or worse, the agency seems to have backed off. No one wants to bear the blame if the remote communities of East Maui are left with no place to seek medical help short of traveling the long, treacherous Hana Highway.