Lahaina Lawsuit Survives County’s Motion to Dismiss

posted in: EH-XTRA, Pollution | 0

Posted 08/09/2012 

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Photo credit: Jennifer Smith

U.S. District Judge Susan Oki Mollway has denied Maui County’s motion to dismiss the lawsuit filed against it over the county’s discharge into the ocean of treated effluent from the Lahaina sewage treatment plant.

The lawsuit was filed in federal court earlier this year by the Hawai`i Wildlife Fund, the Sierra Club-Maui Group, the Surfrider Foundation, and the West Maui Preservation Association. The plaintiffs are represented by the Mid-Pacific office of Earthjustice.

Among other things, the county argued that the court should defer to the state Department of Health and/or the Environmental Protection Agency. In support of this argument, it submitted a copy of our May 2012 issue, in which EPA staffer David Albright was quoted as saying it was too soon to tell whether the EPA would require the county to obtain a National Pollutant Discharge Elimination System permit for the Lahaina discharges.

“For purposes of deciding the [motion to dismiss],” Mollway wrote in her August 8 ruling, “the court is not treating these hearsay statements as indicating the EPA’s position.” And even if it did give greater weight to Albright’s reported statement, she continued, “All Albright supposedly said was that the EPA was waiting for further information… [T]he statements do not demonstrate that the issues involved in this proceeding are within the jurisdiction of and presently under consideration by the EPA.”

Read the judge’s ruling: Mollway Ruling

Read the county’s motion: Maui Motion to Dismiss

Judge Mollway also rejected the county’s claim that the lawsuit was premature, given that the county had entered into a consent agreement with the Department of Health and the EPA in connection with its efforts to obtain a new operating permit for the Lahaina injection wells pursuant to the federal Safe Drinking Water Act.

“This court disagrees with the county,” the judge stated. “This court is not persuaded by the County of Maui’s argument that, because the EPA is already supervising the injection wells under the Safe Drinking Water Act, ‘the Court can be reassured that … the County is protecting the public from any potential harmful contact with bacteria.’ The Clean Water Act is concerned with more than assuring that the public has safe drinking water. It aims ‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.'”

“For purposes of this motion,” Judge Mollway wrote, “Plaintiffs have sufficiently alleged a significant nexus between the County of Maui’s discharge of pollutants and the ocean such that this action survives the present motion to dismiss.”

The ruling was welcomed by Earthjustice attorney Caroline Ishida. “The improper disposal of sewage by the County of Maui is leaking out into the ocean, causing algae outbreaks across the reefs and damaging water quality,” she said in an email to Environment Hawai’i. “The algae smothers the coral and upsets the ecosystem because fish and other marine animals depend on the reef for food and shelter. Yesterday’s court ruling means our efforts to get this sewage dumping cleaned up and protect the ocean will finally have their day in court, for which we’re thankful.”

 

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