I am increasingly distressed to see the Sierra Club taking stands and filing suits on issues which seem without scientific validity — one such being the insistence of secondary treatment of sewage discharged miles off Sand Island at great distance and depth…. I wish we would use our limited resources to take on issues we know something about…
– Elisabeth K. Anderson, M.D., M.P.H.
The television news has reported that “The Sierra Club claims the city is putting the city’s south shore beaches at risk by failing to treat sewage from the Sand Island plant as required by federal law.” … The damage is already occurring. The turbidity of the water in Magic Island Lagoon, where I snorkel, has been increasing each year for the last two or three years. A few years ago the water was quite clear. Now the underwater visibility is limited to about four feet, particularly in the Ewa end of the Lagoon….
– Harold M. Gade
The lawsuit brought by the Sierra Club and Hawai`i’s Thousand Friends against the City and County of Honolulu regarding its operation of the Sand Island sewage treatment plant was not universally applauded in the environmental community. The opinions of Elisabeth Anderson and Harold Gade, as reflected in their letters published in the Sierra Club newsletter, Malama i Ka Honua, reflect the two poles of thought on the subject. (One might note that Anderson works for the Department of Health, as does her son, Bruce, who is its deputy director for environmental programs.)
The Sierra Club’s position with regard to treatment standards for Honolulu’s sewage plants has evolved over time. In 1974, it urged Congress to grant the city’s request for relief from congressionally mandated secondary-treatment standards. Fifteen years later, in 1989, it, along with Hawai`i’s Thousand Friends, had begun the investigations used as the legal basis for its suit against the city.
The changes in the Sierra Club’s position might be the result of a change in leadership or institutional quirkiness. On the other hand, it could be argued that they were proper and reasonable responses to several factors, including the failure of the city to live up to the Sierra Club’s bright hopes in regard to the management of its wastewater plants, and a growing body of knowledge that suggests the discharges from the Sand Island plant may have far more harmful consequences than anyone thought likely a decade ago.
Finally, there is another circumstance to consider: At midnight on April 30, 1988, the plant’s permit expired. The city had failed to reapply to the state Department of Health for either a regular renewal of the permit or an administrative extension. From that moment forward, every one of the 72 million gallons that left the plant each day through the plant’s ocean outfall constituted an illegal discharge under federal law.
For the next two years, the city continued to operate the Sand Island plant — and the Department of Health allowed it to do so — with nary a thought given to the plant’s lack of a permit. Weeks after the Sierra Club and Hawai`i’s Thousand Friends sued the city on March 28, 1990, the city finally evinced an interest in acquiring a “retroactive” permit from the state.
9,000 Violations
The suit was filed in U.S. District Court by attorneys for the Sierra Club Legal Defense Fund, representing the plaintiffs. It alleged Clean Water Act violations going back further than the period of non-permitted operation. Over the five years prior to the lawsuit, SCLDF claimed, the city had racked up more than 9,000 separate violations, each subject to a fine of up to $25,000. (Violations had occurred long before that, too, but the statute of limitations had expired on those infractions for purposes of civil litigation.) Had the city been found guilty of all violations, it could have faced penalties exceeding $200 million.
The suit was settled out of court last month, when the City Council gave its approval to an agreement that SCLDF and city lawyers had been working on since early July. While the city avoided the possibility of the high fines, it nonetheless will have to pay out at least $11 million over the next several years for projects it has agreed to finance under terms of the settlement.
Skip Spaulding, one of the lawyers for the Sierra Club Legal Defense Fund, explained the advantages of this settlement. Had the case gone to trial, and had the city lost, any fines it would have paid would have gone directly to the U.S. Treasury, with no local benefit. With the settlement, that $11 million will be spent on projects that have immediate bearing on the quality of water in the area of the Sand Island plant’s discharges.
The lawsuit had another positive aspect that should not be overlooked: Through the process of discovery, the plaintiffs were given access to information about the plant and its operation that the city had until then tried to keep under wraps.
Below Design Standards
The Sand Island plant was built in the late 1970s. By a design that worked for no more than a few days (if indeed it worked at all), the plant was supposed to achieve a level of treatment known as advanced primary. For most of the years of its operation, Sand Island has been producing effluent that fails to meet even primary treatment standards.
Put it another way: The influent to the Sand Island plant is not substantially different from the effluent that goes out. The plant’s solids removal rate hovers around 20 percent; the standard for primary treatment is at least 30 percent. By contrast, requirements for secondary sewage treatment (required by Congress of all plants since July 1, 1988) entail removal of 85 percent of the solids in the influent.
What those solids are depends on their source. The solids in domestic wastewater — the wastewater generated from houses, offices and shops — do not vary much from season to season or from place to place. Industrial discharges pose more of a problem for sewage treatment plants. In the case of Sand Island, it has had to deal with industrial discharges from the Dole Cannery, whose heavy load of fruit solids and juice in the wastewater causes special problems, such as acid that corrodes pipes and changes the chemistry in the plant’s systems, and a higher than usual content of biochemical-oxygen demand materials (BOD).
The Big Blue Ocean
Whatever its nature, the discharge of effluent into coastal waters is subject to stringent regulation by the state, acting under federal authority of the Clean Water Act. Regulation is based on two fundamental ideas. The first of these is that public health is threatened when people ingest the pathogens contained in sewage effluent. This can occur directly, when swimmers swallow water, or indirectly, by eating foods that have been contaminated with sewage. The second is that even when there is no direct public health threat, the ecology of the water receiving such waste can be adversely affected. Algae blooms, fish or coral die-off, reduced plankton populations — all can result when discharges disturb the quality of ocean water.
Notwithstanding this, the city’s attitude in regard to the effluent released by the Sand Island plant has been casual. Denise Antolini, another of the SCLDF lawyers involved in this case, describes the city’s attitude as the “Big Blue Ocean” theory — the idea that no matter how much is discharged, the ocean can handle it.
More specifically, the city argues that despite the volume of effluent discharged daily (a volume that is six times the amount spilled by the Exxon Valdez), harmful effects are minimal, if they exist at all. First, the discharges are carried out to sea through a pipe two and a half miles long. When it emerges from that pipe, the city claims, it is at once dispersed, with the prevailing currents usually carrying it toward the open ocean. On rare occasions, currents could conceivably carry some of the effluent toward shore back to Sand Island (a popular surfing spot), Ala Moana Beach Park or even Waikiki. But not to worry; according to the city, dilution combined with the cleansing properties of salt water would take care of any “bugs” in the effluent that might pose a health hazard.
The story has been convenient for the city, and cheap to boot, inasmuch as it has been used to justify the city’s decision to keep the Sand Island plant at a primitive level of treatment. Indeed, in the city’s view, the “Big Blue Ocean” notion is more than folklore; for the last eleven or so years, ever since the Sand Island plant was built, in fact, BBO has been official city policy. This is reflected in the city’s several applications to the Environmental Protection Agency for so-called “301(h) waivers” that will allow the city to avoid having to upgrade the Sand Island plant and another city-owned sewage treatment facility at Honouliuli, which discharges at Barber’s Point.
(People may recall the city proposing several years ago to seek 301(h) waivers for discharges into Kaneohe and Kailua bays. The proposal was met with such anger and ridicule by Windward residents that the city immediately put such proposals aside and began plans to upgrade Windward sewage treatment facilities. The schedule calls for work to be completed on the upgraded Kailua plant by 1993. Whether the city is on track in this project is another story in its own right.)
The Little Brown Sea
The Sierra Club Legal Defense Fund and its clients did not accept the notion that the Sand Island plant discharges were as harmless as the city claimed. But in a strict sense, this argument was altogether beside the points raised in the lawsuit: namely, that before May 1, 1988, the plant was operating in violation of its state-issued National Pollutant Discharge Elimination System permit, and that since that time, it was operating without any permit at all.
Official notice of this appears to have been first taken when EPA auditors issued a report on DOH enforcement actions statewide. “DOH representatives explained that the permit was not renewed nor administratively extended because it was under evaluation by the region,” the auditors wrote. “In our discussions with regional personnel, they indicated that they were unaware that Sand Island was discharging without a permit. Thus, the largest wastewater discharger in the state of Hawai`i is discharging without a NPDES permit, and it appears DOH and the region are not working toward a timely correction of this condition.”
In response to the SCLDF lawsuit, however, the city specifically denied the allegation that it was operating the plant without a permit. Later, it took the tack that the Sand Island permit had been administratively extended. Indeed, a letter from the Department of Health on July 9, 1990 — more than two years after the permit expired — informed the city that the DOH was issuing a formal “administrative extension” of the Sand Island NPDES permit, retroactive to May 1, 1988. The city did not advertise this letter, however, since it was tantamount to an admission that no prior extension had been given. In any event, the extension was not issued in compliance with the Health Department’s regulations, calling its very validity into question. Apart from that, there is a valid legal question over the Health Department’s issuance of a “retroactive” permit.
On December 31, 1990, U.S. District Judge Alan C. Kay issued a ruling allowing the suit to move forward. Kay seems to have been dismayed by the city’s inability to present any evidence documenting its claim to have had at all times a valid permit. “At this time, this court must express its surprise and dismay at the confusion generated concerning the applicable permits at the treatment plant,” Kay wrote. “The documentation concerning this important public project should be clear and free from doubt. Instead, the city can only produce indirect evidence demonstrating the alleged administrative extension.”
To look into the matter further, the judge appointed an outside expert, a former EPA lawyer now in private practice in Portland, Oregon. The lawyer, Patrick Parenteau, issued his findings on June 13, 1991 — findings that concluded that “the Sand Island plant has been discharging without a valid NPDES permit since the expiration of its prior permit on April 30, 1988.” Any pending applications for a 301(h) waiver — which the city claimed could also count as a “permit” of sorts for Sand Island’s operation — do not count, Parenteau wrote. The 301(h) waiver process and the DOH permitting process “are separate state and federal permit processes with different substantive and procedural requirements,” he found. And, Parenteau concluded, absent any valid permit or waiver to the contrary, the Sand Island plant was legally required, since July 1, 1988, to meet not just primary, but secondary treatment standards. In other words, discharges that did not meet those standards would put the plant in violation of the Clean Water Act.
Changing Currents
Last February, Douglas Segar, Ph.D., an expert witness retained by SCLDF, was shown a preliminary report on ocean currents prepared for the city. Under questioning by the city’s own lawyers, Segar noted that the findings did not support the city’s claim that the currents at the outfall headed in a southwesterly direction. Instead, Segar said, “it is almost 180 degrees in the opposite direction, towards the east.” Moreover, although the data were still sketchy, the period covered by the study did not include the Kona wind period — the time when, by the city’s own admission on its 301(h) applications, there was a greater likelihood that ocean currents would carry the sewage plume toward shore. (When the city was asked to produce the studies it purported to have used in support of its claim to the EPA that the current flowed to the southwest, it could not do so. The studies, it said, had been lost.)
The city retained Edward K. Noda, Ph.D., an ocean engineer, to be its expert witness on matters of current flow and seawater transport. In March, Noda was questioned by Skip Spaulding for the plaintiffs. Noda conceded that up to 50 percent of the time the plume of sewage rises, more or less intact, to the water’s surface, with the time needed to carry the plume to the surface being on the order of three to five minutes. With a swift current, Noda acknowledged, you could have the Sand Island effluent reaching shores east of the outfall — Ala Moana Beach Park, Waikiki, and on to Diamond Head — without benefit of much, if any, dilution.
Although Noda was not an expert in the health effects of swimming in sewage-contaminated water, he declared that the risks this would pose would be “acceptable” when averaged out over a year. Spaulding reminded Noda that the determination of whether a risk was “acceptable” was not Noda’s to make. “See,” Spaulding stated, “the problem is that it may not be acceptable to the people of Honolulu, or the judge, or whomever, that on even five days a year or 40 hours a year, an effluent plume of fairly undiluted amount reaches shore. So, in a way, it’s almost irrelevant what the overall annual average is.”
In any case, Jay Grimes, Ph.D., the Legal Defense Fund’s expert witness on the health effects of exposure to contaminated water, noted that rates of dilution were not useful in assessing health risks. There is no such thing as an “acceptable” level of exposure to microbes and other disease-causing organisms, Grimes said under questioning by Jonathan Chun, one of the city’s attorneys. “No one knows precisely what level has to be achieved to reduce the threat of human disease to a point where it’s no longer present. … Yes, there is a problem with swimming in ocean water that’s contaminated with sewage.”
The City Folds
By the end of June, with trial set to begin on July 9, things were not looking good for the city. Its own expert witnesses had given testimony in sworn depositions that undermined the city’s claims of no or minimal health impacts from the Sand Island discharges. The expert appointed by the court to look into the question of whether the city had a valid permit for the plant had unequivocally found that the city did not.
On July 3, the city suffered another blow. On that day, U.S. District Judge Harold M. Fong, presiding in another case brought against the city by the Sierra Club Legal Defense Fund — this one concerning the city’s Honouliuli sewage treatment plant — ruled that the city had indeed engaged in illegal plant bypasses in 1989; the only remaining question was how high the fines would be. (That case, like the Sand Island one, may be settled out of court. If not, expect a trial sometime this winter to decide the question of penalties and fines.)
On July 7, two days before the Sand Island trial was to start, Parenteau — the expert appointed by the court to look into the matter of the Sand Island NPDES permit — was interviewed by attorneys for both the city and the Sierra Club Legal Defense Fund. According to the transcript of that deposition, the city’s lawyers tried hard to wring out of Parenteau a statement that the city’s pending 301(h) waiver application was a sufficient legal umbrella to allow the Sand Island plant to operate. Parenteau refused to yield the point.
By July 8, the city was indicating its willingness to come to an out-of-court settlement in the case — a process that culminated with the settlement approved September 11 by the City Council.
A Study Commission
The settlement has four essential elements. Most important (and probably most expensive) is the establishment of a commission to study the discharge of pollutants into Mamala Bay — an area defined as extending from Diamond Head to Barber’s Point. Elaborate procedures are set forth in the settlement agreement to select members of this commission. The city will pay for the commission’s work by providing up to $8 million to the Hawai`i Community Foundation, which will oversee expenditure of the funds.
Second, the city is required to reinstall several pieces of equipment at the Sand Island plant that were taken out of service in the early 1980s, when the city decided that the expense of running the equipment was not justified by the incremental increase in clean water.
Third, the city is to pay up to $200,000 for a consultant’s study of the industrial discharges to the plant that are high in biochemical oxygen demand. The consultant is to determine whether the discharges interfere with the plant’s ability to meet the performance standard of removing 30 percent of BOD materials from the influent.
Fourth, and last, the city and the Sierra Club agree to withdraw their objections to the EPA’s issuance of a 301(h) waiver for the Sand Island plant. The EPA had issued the waiver in January 1990, but the city had objected on a number of grounds, including the EPA’s insistence that the city meet primary treatment requirements. The Sierra Club had filed objections, citing environmental concerns. Until the objections could be formally heard and ruled upon, the 301(h) waiver was not in effect. With both parties agreeing to withdraw their objections, the city will face no further obstacle to issuance of a 301(h) waiver and finally, after those withdrawals, the EPA may be expected to make the waiver effective. By the time all the paperwork is completed, it will probably be early 1992. With a little luck, then, nearly four years after the Sand Island plant went into regulatory limbo, it may be expected to start operating again under terms of a valid permit.
Continuing Questions
The Sand Island saga does not end at this point. Last year, the EPA’s Office of the Inspector General for Audits, Western Division, took a close look at the federal grant money spent on the city’s sewage treatment facilities. The 26-page report found a host of irregularities attending construction of the Sand Island plant. Among other things, there was the fact, alluded to earlier, that equipment purchased with federal money had been pulled out of service. Of the $41,712,519 in federal funds spent to help build the Sand Island plant, the auditor found expenditures totaling roughly $17.5 million to be either unnecessary or ineligible. The auditor’s recommendation to the EPA was to seek full repayment of this amount as well as about $4 million spent in connection with other federally financed sewage treatment projects in Honolulu.
For the last year, the city, the state Department of Health, and the Environmental Protection Agency have been trying to work out an agreement that will avoid forcing the city to repay the full amount.
No details are available at this point as to payback provisions. With the settlement agreement calling for reinstallation of some of the equipment paid for in part by the federal government, one might expect that the EPA’s claims will be proportionately reduced.
Volume 2, Number 4 October 1991
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