Since 2001, the Hawai’i Department of Health has proposed fines totaling about $5 million against what would seem to be some of the state’s biggest environmental scofflaws: Eco-Feed, Maui Electric Company, Silva’s Equipment Rental, Inc., Marisco, Ltd., Chaminade University, the state Department of Transportation, Bonded Materials Company, the U.S. Navy Region Hawai’i/Robison-Prezioso, Inc., and Hawai’i Commercial & Sugar.
But big fines don’t necessarily stay big. All of the recent violators have contested their fines. To date, with fine reductions, consent orders, and ongoing negotiations, the DOH has collected only about a fifth of the amount of penalties initially proposed.
The Department of Health, which has authority delegated from the federal Environmental Protection Agency to enforce federal anti-pollution laws, has the power to levy huge fines, as much as $25,000 a day in some cases. But whether through official hearings or informal negotiations, more often than not, the DOH settles for a service project plus a much-whittled down fine.
One example is the West O’ahu food waste processor Eco-Feed, Inc., which two years ago was fined $600,000 for wastewater violations, $335,366 for animal waste violations, and $11,100 for clean air violations. Last year, the company entered into a consent order with the DOH in which it had to pay a fine of only $50,000, and even that amount was further offset by $10,000 with Eco-Feed’s submission of a report from a food waste recycling expert. More recently, Maui Electric Company’s $1.56 million fine, for exceeding opacity limits 242 times at its Ma’alaea station in 1999, was cut to $800,000.
Service projects (known as supplemental environmental projects, or SEPs) are meant to direct money that otherwise would be paid as a fine toward something that will help the environment instead of going into the state’s general fund. However, in some cases, the question could be asked whether the violator should be able to get credit for its SEP cost, when the SEP is ineffective or something that the violator should have been doing all along.
In Eco-Feed’s case, one of its SEPs was to purchase equipment that would help reduce emissions from its processor, something that, it could be argued, it should have purchased at the outset of its operations.
Another example is found in an earlier case involving MECO, which, in 1989, was fined $192,560 for operating its generators more than 12 hours a day. During settlement negotiations in 1992, a state deputy attorney general proposed having MECO provide $190,000 worth of services to Hurricane ‘Iniki relief efforts on Kaua’i. MECO attorney Lorena Malecha of Goodsill, Anderson, Quinn, and Stifel responded that such an amount would be “in excess of any penalty we could recommend MECO pay… MECO continues to be interested in settling this matter by negotiation, without the time and expense of an administrative hearing. In that spirit, MECO offers to settle this matter for $10,000.”
As a compromise, the DOH allowed MECO to create an educational display, at a cost of $100,000, on global warming. MECO paid the Hawai’i Nature Center to create and erect two poster boards, depicting a “sick earth” cartoon and information on sea and temperature level rise and the greenhouse effect, at the Kahului Airport.
The following is a summary of some of the more recently settled fines:
The DOT
On May 21, 2001, the DOH issued a complaint accusing the state Department of Transportation of eight violations of hazardous waste laws, four at DOT Highways and four at Harbors. Many of the alleged violations dealt with improper storage and transport of hazardous waste. The DOH ordered the DOT to pay $143,500 in fines for the violations at DOT sites on Maka’ala Street in Hilo and Sand Island Road on O’ahu.
Ten days later, then-DOT director Brian Minaai wrote a letter to then-DOH director Bruce Anderson, stating that while an amicable resolution would be preferable, “the DOT is filing this request [for a formal hearing] in the event that we unable to reach agreement on a satisfactory resolution of this dispute.”
In February 2002, the DOT signed a consent agreement and order in which it agreed to pay a fine of $25,830 and to implement two SEPs – a used-oil program for its Harbors Division, and a hazardous waste training workshop. Both SEPs, for which the DOT was to spend at least $129,150, were to have been completed by August 2003. On August 6, the DOT sent notice to the DOH that its Harbors Division had spent about $207,115 on its SEP: $165,631 was spent on the used-oil program; $205,333.97 was spent disposing of hazardous waste from piers, a baseyard and other Harbors property; and $1,781.20 was spent on a used-oil brochure, which included translations into Korean and Vietnamese.
Chaminade University
In late 2000, the DOH inspected Chaminade University’s chemical storeroom. Chaminade uses hazardous materials such as solvents, corrosives, reactives, heavy metals, and a variety of other laboratory chemicals. Several bottles of unknown waste chemicals with crystallized material forming on the outside were found on a cart in the storeroom. One bottle was leaking unknown chemicals onto the cart. In addition, inspectors found 15 one-gallon containers of unknown chemicals and a safe holding various containers of mercury near the door. Some of the chemicals appeared to date back to the 1940s. White films and rusted caps were also found on bottles of acutely toxic chemicals.
In August 2001, the DOH issued an order alleging four violations: failure to make a hazardous waste determination, storage without a permit and failure to label waste, mismanagement of containers, and inadequate aisle space. The total fine came to $154,711.
In September 2001, Chaminade University attorneys J. Douglas Ing and Michael Bird, of Watanabe, Ing & Kawashima, requested a hearing on the complaint. They argued that Chaminade is a Conditionally Exempt Small Quantity Generator of hazardous waste, and as such, is not required to have a permit to store hazardous material.
In March 2002, the fine was lowered to $110,337. Instead of paying the fine, more than a year later, Chaminade signed a consent agreement in which it agreed to complete a supplemental environmental project for a credit of $88,304 and pay an $11,000 civil fine. The SEP includes the development of a chemical database tracking system for Chaminade, Maryknoll School, St. Joseph Junior-Senior High School, St. Anthony Junior-Senior High School, Damien Memorial High School, Sacred Hearts Academy, St. Francis School, and St. Louis School; a hazardous waste information package for the seven diocesan secondary schools; and a professional evaluation of the schools’ hazardous waste management systems. The estimated total cost for the SEP was $90,467.
The U.S. Navy
In August and September 2001, DOH inspectors visited a project site at the U.S. Navy Fleet and Industrial Supply Center at Pearl Harbor. At the time, Navy contractor Robison-Prezioso was removing and disposing of lead and chromate-containing paint and was coating petroleum tanks, pipe and other miscellaneous surfaces.
In May 2002, the DOH issued a complaint against the U.S. Navy, Navy Region Hawai’i and Robison-Prezioso, Inc., for hazardous waste violations incurred during the Navy’s Fleet and Industrial Supply Center’s JP-8 Fuel Modernization Project. The charges included treating and storage of hazardous waste without a permit, failure to properly mark containers, and mismanagement of containers. A fine of $217,640 was levied. Two months later, the Department of the Navy requested a hearing on the complaint.
After meeting with DOH representatives in September 2002, RPI president Phillippe Goutagny wrote the DOH: “These violations are an aberration and embarrassment to RPI,” which he said had no previous history of waste regulation violations. His company did not intend to circumvent regulations, he continued, and the violations that occurred during the project, which included the application of Pretox (a product designed to mitigate the lead hazard in spent abrasive), were “rooted in unforeseen conditions, their attendant changes in the complexity of the work and incremental changes in the scale of the project. RPI was caught unprepared by the cumulative effect of these changes.”
He concluded by asking the DOH to settle on a $50,000 fine.
In the end, the two sides compromised: On October 29, 2003, the Navy and RPI signed a consent order to pay $100,000 to settle all claims. By October 15, anticipating the order, the Navy’s prime contractor for the project Hawaiian Dredging issued a check for $100,000 addressed jointly to RPI and the state of Hawai’i, which RPI signed over to the state.
— Teresa Dawson
Volume 14, Number 8 February 2004
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