Federal Judge Is Unsparing of County in Finding Lahaina Plant Violates Law

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Since the early 1990s, Maui County has been aware of a probable connection between the wastewater it injects into the ground below the Lahaina sewage treatment plant and the nearby coastal waters.

And for almost as long, it has clung to the position that despite growing evidence of the connection, it did not need to obtain the permit under the Clean Water Act that would allow it to legally discharge pollutants.

Federal Judge Susan Oki Mollway heard all of the county’s excuses – that the connection between the wastewater and the coastal waters was not harmful; that the wastewater was not, in fact, a pollutant; that the link between the injection wells and the ocean was not something that could be regulated under the Clean Water Act. As a kind of hail-Mary pass, the county even applied for a National Pollutant Discharge Elimination System (NPDES) permit after the county was sued. It then argued to the judge that she should stay any decision in the case brought by four non-profit organizations that challenged the county’s practice and instead await the state Department of Health’s decision on the permit application.

Mollway didn’t buy any of it.

On May 30, the judge handed down a 59-page order that tossed out every argument the county made, leaving it potentially liable for many millions of dollars in fines. David Henkin, the Earthjustice attorney who argued the case on behalf of the Hawai`i Wildlife Fund, the Sierra Club-Maui Group, the Surfrider Foundation, and the West Maui Preservation Association, said in a news release that the maximum penalties “already exceed $100 million, and the meter is ticking at a rate of over $100,000 per day.”

The civil penalties for the Clean Water Act violations won’t be determined until after a hearing that’s set for next March. Between now and then, the county is hoping to have the state Department of Health (DOH) issue it a permit that would legitimize the practice of injecting treated wastewater into the wells and perhaps mitigate its exposure to civil penalties.

Background

As early as 1991, Maui County’s Department of Public Works stated in an environmental assessment that effluent from the Lahaina Wastewater Reclamation Facility (LWRF) flowed from the plant’s injection wells into the ocean. Suspecting that the injectate might be behind several damaging algae blooms in the area, in 1992, the Department of Health held up processing the county’s request to add new injection wells. That same year, the DOH and EPA discussed the possibility that the county might need to obtain an NPDES permit if it wanted to continue to use the injection wells at Lahaina.

In the end, the county was allowed new injection wells, but on the condition that it conduct a study of the potential hydrologic link between the wells and the nearshore waters.

In the late 1990s, the county and the EPA continued to have disagreements over the Lahaina facility and the county’s efforts to obtain Underground Injection Control (UIC) permits for the injection wells under the Safe Drinking Water Act. The consent decree that emerged in 2001 required the county to obtain a water quality certification from the DOH, the first step in determining whether it would need to apply for an NPDES permit. (The county did not apply for the certification until 2010 and, as Judge Mollway noted in her order, “as of March 6, 2014, not even a preliminary determination had been made [by the DOH] as to whether the county will receive such certification.”)

In 2010, two studies confirmed suspicions that injectate from the sewage treatment plant was reaching coastal waters, but to make sure, a third study was undertaken in 2011. That one, which included dye tracer tests, demonstrated conclusively that a significant percent of the injectate from the two largest wells reached the coast.

Within months of the release of that last study, the county was taken to federal court by the four Maui groups.

Damage Control

Although the county had been given notice of the groups’ intention to sue, it still did not apply for an NPDES permit. Judge Mollway took note of this: “Despite maintaining that such a permit is not required, the county submitted its application for the permit to the state’s DOH on November 12, 2012, which was after this lawsuit was filed,” she wrote in her order. “As of March 6, 2014, the DOH had ‘not made a tentative or preliminary determination’ on the application. … However, after the hearing on the present motions, the county received a draft permit and was invited to comment on the draft by June 9, 2014.” Only on May 23 did the Department of Health notify the judge that it had issued a draft permit to the county the previous day.

The county had argued from the outset of the litigation that the lawsuit should be dismissed or stayed until the DOH acted on its permit application. As Mollway notes, “The county argues that the primary objective of this lawsuit is to compel the county to apply for an NPDES permit, and that, because that application has been made, this court should allow the DOH and the EPA to decide whether a permit is required.”

And, in what the judge apparently took as a slap against the court’s competence, the county “further contends that this case involves ‘highly technical fact-specific inquiries’ that require ‘the specialized expertise typically possessed by the agencies.”

Mollway was not moved by this argument. “The decision as to whether the county requires an NPDES permit is certainly within the competence of the DOH and the EPA,” she conceded. “However, … competence alone is not sufficient. … The citizen suit provision in the Clean Water At was specifically designed to allow courts to ensure direct compliance with the Act’s requirements.” Moreover, she added, “courts are plainly competent to address the types of questions raised by the present citizen suit, such as whether there is a hydrologic connection and significant nexus” between the underground aquifer that receives the injectate and the ocean.

All that was required of the court, she went on to say, “is a determination as to whether the county is discharging a pollutant from a point source into the navigable waters of the United States.”

The request that the court defer to the agencies was tantamount, she said, to “asking for the disfavored remedy of an ‘indefinite, and potentially lengthy’ stay for as long as administrative proceedings may continue.” She noted that more than a year and a half had passed since the county applied for an NPDES permit and that no firm deadline for issuance had been set. “The best the DOH can predict is the issuance of a final permit ‘a few months’ after it reacts to public comment,” she wrote.

“If a court were to grant an indefinite stay in circumstances such as those now before this court, a defendant would be able to buy itself potentially years of further pollution through last-minute applications for an NPDES permit. Indeed, a polluting entity would be able to spend years in litigation prior to even applying for an NPDES permit, then seek to stay proceedings for several more years during the pendency of a belatedly submitted application, all the while continuing to release pollutants in violation of the Clean Water Act.”

Mollway went on to dismiss the county’s claims that the aquifer receiving the wastewater wasn’t a direct conduit to the ocean. She similarly rejected its argument that to prevail, the plaintiffs had to prove that the effluent somehow damaged corals or otherwise harmed the environment.

The county’s efforts to persuade the judge that the discharges were insignificant in light of the diluting properties of the ocean were also to no avail: “To hold that an ‘effect’ is ‘insignificant’ merely because of such dispersion would license unfettered discharge into any body of water voluminous enough to rapidly diffuse the effects of the effluent.”

Relying heavily on the studies that the plaintiffs submitted, Mollway concluded that the effect of the effluent on the receiving water “is indisputably neither speculative nor insubstantial. The LWRF releases three to five million gallons of effluent a day; an independent EPA study has determined that at least 50 percent of this effluent makes its way relatively rapidly into the ocean; this effluent has properties that can radically alter the properties of the water it is introduced into; and such radical effects have been observed and measured at the point of discharge into the ocean.”

As to the county’s argument that coral is not being damaged, that, too, did not move Mollway. Even if true, she said, it “is irrelevant for determining a significant nexus. An ‘effect’ on the ocean is not coextensive with ‘harm’ to the ocean. … The undisputed physical, chemical and biological changes observed in the water near the seeps are sufficient to establish that the aquifer and the ocean have the required nexus. …

“Therefore, the county’s discharge of pollutants into the aquifer beneath the LWRF without an NPDES permit is a violation of the Clean Water Act.”

For Further Reading

The following articles provide more details on the troubled history of the Lahaina wastewater plant. All are available in our online archive athttp://www.environment-hawaii.org

    • “At Lahaina, Algae Blooms Stall Approval of More Injection Wells,” October 1992;
    • “Maui May Owe EPA Up to $2 Million for Funds Misspent in Lahaina Plant,” March 1995;
    • “Reports Show Maui County Sewage Plants Are Polluting Waters at Popular Beaches,” May 2010;
  • “Lahaina Injection Wells Release Wastewater to Coast, Tests Find,” February 2012.

 

— Patricia Tummons

 

Volume 25, Number 1 July 2014

 

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