Starting in the 1970s, the state of Hawai`i’s Department of Health began to issue to Hawaiian Western Steel notices of violation of air quality rules. Violations continued, off and on, until the very last days of the plant’s operation in 1991. Despite the violations and their severity, the company paid not so much as a penny in fines or penalties.
The first violation that Environment Hawai`i could document occurred in 1974, when a “cease and desist” order was issued by the state concerning the plant’s emissions of particulates. On July 31, 1974, the deadline for compliance, an inspector with the federal Environmental Protection Agency found the plant continued to be in violation. A compliance schedule was established, as part of which the plant installed baghouse filters and a canopy to control emissions.
Inferior Scrap
By 1979, visible emissions were once more cited in a notice of violation. In its response, the company’s manager, Guy Hogue, attributed the problems to an inferior quality of junked cars being delivered to the plant. “Junk cars which previously had been burned in order to remove upholstery, plastic, and rubber are now arriving at our mill with these combustible components intact. These light combustible components are drawn through our pollution system and in that process burn and destroy bag filters… These burned-out bag filters are constantly being replaced… At the same time, the volume of the baghouse unit is reduced with the continual isolation of one module for bag replacement.”
Two years later, the Department of Health was again citing the plant for emissions violations. The notice of violation required “corrective measures immediately.” Besides that, the company was to provide to the department within 20 days a written statement “describing the measures to be taken to eliminate any further visible emission violations.” Six months later, a follow-up inspection found violations continuing, with emission opacity — a measure of particulate emissions — running at 100 percent. The melt shop supervisor, Charles Meikle, assured DOH officials by telephone that the problem would be corrected.
Shift Swings
From 1981 to 1991, no further violations were noted at the plant by the Clean Air Branch of the Department of Health. That does not mean that no violations occurred. According to the staff report on Hawaiian Western Steel to members of the House Subcommittee on Oversight and Investigation and its chairman, Rep. John Dingell, Hawaiian Western Steel stopped operating during daytime hours in 1990 and began running its furnace at night. “The company claimed that this saved electrical costs,” the staff report states, “but it probably was not a coincidence that this tactic avoided further inspections by the Health Department, which operated only during the day.”
The report goes on to note that a plant supervisor “later told EPA investigators that about 25 percent of the bag house dust was released into the air because of problems with the system. The company’s shift to night operations in 1990 also came after a number of complaints were made to state authorities by neighboring companies and residents regarding the smoke emissions. HWS supervisory personnel had also written memoranda regarding the need for action. One such memorandum, written by the then manager in September 1989, noted that the smoke was visible from the freeway, several miles away. The mill was about a mile from dependent housing at a naval air station, as well as other residences and a large, outdoor restaurant known as Germaine’s Luau, frequented by tourists.”
Through the Roof
On February 27, 1991, EPA criminal investigators observed the plant’s night-time operations. The Dingell committee report says the investigators “observed numerous holes in the roof over the furnace, which resulted in massive releases of dust, as well as significant leakage from the baghouse. Subsequent interviews with the former melt shop supervisor indicated that many of the corrugated steel roof sections had been destroyed beginning in August 1989 by flames resulting from the use of a lower grade of scrap in the furnace. A 1990 request for money to the parent company to repair the roof, which was an essential part of the environmental control system in that it was supposed to trap the smoke and funnel it to the baghouse, was denied.”
The state Department of Health has been delegated authority by the EPA for enforcement of clean-air laws. Upon being informed by the EPA officers of what they had observed, the Department of Health followed up with its own “nocturnal reconnaissance” of the plant on March 1, 1991. The inspectors found that “large volumes of smoke were emitted periodically from the arc furnace operation” and “were observed to be released into the air, where they were dispersed by ambient winds.” Air samples were taken the next night by Bruce Schlieman and Mark Ingoglia of the department’s Office of Hazard Evaluation and Emergency Response at four sites downwindand one site upwind of the plant.
While cadmium concentrations were below the detection limit of the analytical tests used, lead concentrations were high. Lead, measured in micrograms per cubic meter, was present at three sites in concentrations of 5.25, 2.65, and 3.54 respectively. As Schlieman and Ingoglia noted in their report of the investigation, “Results from these analyses indicate that air lead concentrations downwind from the HWS facility surpass the National Ambient Air Quality Standard (NAAQS) of 1.5 micrograms/cubic meter… In fact, the Pb [lead] concentration for air sample 1A was 3.5 times the 1978 primary NAAQS value, which is outdated and not protective of public health.”
Schlieman and Ingolia discussed means by which the public could be exposed to the plant’s emissions aside from breathing the air. “Metal-enriched particulates from the HWS facility could also be deposited on the food of workers. Lunch-wagons were observed to park adjacent to the HWS facility on March 5, 1991. Workers from nearby companies would purchase plate-lunches and consum them within 40 yards of the HWS facility. … Germaine’s Luau operates downwind of the prevailing trades from the HWS facility, and could receive metal-laden fallout from the HWS operations.”
‘Enforcement’ Action
Roughly coinciding with the DOH report of emissions violations was the EPA raid on the plant and the decision by plant operators to shut down. Soon thereafter, two attorneys for Hawaiian Western Steel — Lisa Munger, of Goodsill, Anderson, Quinn & Stifel, a prominent Honolulu firm, and Thomas G. Dent of the Chicago branch of Seyfarth, Shaw, Fairweather & Geraldson, a firm specializing in environmental law, among other things — met with Laurence Lau, deputy attorney general for the Health Department, to discuss some of the problems at the plant. Reference to the meeting is made by Lau in a letter dated April 12, 1991, where Lau then states: “I appreciate Mr. Dent’s offer of cooperation on behalf of the company, and I have tried to keep Ms. Munger up to date on the Department of Health’s concerns.”
The real purpose of Lau’s letter, however, was not so much to thank Dent and Munger for “the opportunity to talk” about Hawaiian Western Steel as it was to discuss the findings of the Schlieman and Ingoglia report and “a Department of Health concern with potential ambient air quality standards violations for lead.” Lau attached to his letter two lists of questions prepared by the Clean Air Branch and the Hazard Evaluation and Emergency Response Office, respectively, and sought the company’s response to the questions.
Before the month was out, Dent, Munger and Lau appear to have arrived at a rudimentary agreement for resolving the case. The Health Department would prepare a notice and finding of violation and order — NFVO — while Munger would draft a consent order. In June, drafts were exchanged and fine-tuned.
Lau proposed, and the attorneys appear to have willingly accepted, that the NFVO and consent order be signed simultaneously after agreement had been reached on the consent order. On September 13, 1991, the deal was done.
The Violation and Order
The Department of Health’s NFOV may be described charitably as meek. In the “statement of facts,” the company was cited for just two days of violations — March 1 and 2, 1991. In the “findings” section, just one day — March 1 — of violation was noted. In the DOH’s order, a fine of $10,000 was assessed “as the penalty for the violation of March 1, 1991.” No other penalties were proposed.
The “consent order” was almost congratulatory. The findings of the Health Department are referred to as mere allegations. The company is described as “presently without sufficient funds to make the necessary modifications to the production and air pollution control systems” before operation can be resumed.
Paragraph nine of the consent order may be the most unusual in its tone. In it are set forth the conditions under which the company would be willing to resume operations — as though the state had a greater interest in the plant’s reopening than in enforcing environmental regulations. That paragraph reads as follows:
“Respondent [Hawaiian Western Steel] is willing and able to resume melting operations at the facility only under the following conditions:
“a. That the Respondent enter into written agreements with all appropriate state and federal agencies fully resolving any and all past issues of civil and/or criminal liability arising out of the past operations of the facility.
“b. That the Respondent enter into written agreements with all appropriate state adn federal agencies which clearly define the conditions under which the Respondent may resume legal operation of the facility.
“c. That the Respondent is able to secure additional capital investment sufficient to implement the aforementioned conditions and sufficient to finance needed improvements in the production efficiency of the facility.”
Air-quality sampling schedules and sites were reduced in the consent order from the scope proposed in the NFVO. The nominal fine of $10,000 mentioned in the NFVO was dropped altogether in the consent order.
Volume 3, Number 7 January 1993
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