ELR Citation: ELR 21380
No(s). s. 90-00218 HMF, 91-00739 ACK (D. Haw. Apr 27, 1993)

The court holds that the city of Honolulu, Hawaii, is liable for 9,870 violations of the secondary treatment requirements of the Federal Water Pollution Control Act (FWPCA) at its Honouliuli wastewater treatment plant between July 1, 1988, and December 31, 1992, and orders the city to pay $718,000 in civil penalties for violations of the secondary treatment, reporting, and bypass provisions of the plant's national pollutant discharge elimination system (NPDES) permit. In prior rulings in this case, the court held that the city was liable for 52 illegal bypasses of waste from treatment at the plant, 52 failures to report those bypasses, and continuing violations of the secondary treatment requirements of the FWPCA and the plant's NPDES permit. Following the Eleventh Circuit's approach in Atlantic States Legal Foundation v. Tyson Foods, Inc., 20 ELR 20788, the court, in calculating the number of secondary treatment violations, holds that the city is liable for exceeding the limitations on mass emissions, concentration, and percent removal for both biochemical oxygen demanding material and suspended solids on each day it discharged effluent that had not been given secondary treatment. The court orders the city to pay civil penalties of $156,000 for the bypass violations, $312,000 for the reporting violations, and $250,000 for the secondary treatment violations. The court holds that the lack of quantifiable harm, the absence of an economic benefit to the city from its violations, and limited good-faith efforts to comply mitigate the statutory maximum penalty for the city's bypass violations. The lack of quantifiable harm and the absence of an economic benefit mitigate the maximum penalty for the city's reporting violations, and the lack of quantifiable harm and the city's good-faith reliance on the validity of the interim effluent limitations set by the Hawaii Department of Health significantly mitigate the maximum penalty for the city's secondary treatment violations. The court orders the city to operate at least three of its four available primary clarifiers at all times and orders the city to allocate an additional $1 million for specific intensive studies of the potential impacts of the discharge from the Honouliuli plant on public health and the marine environment. Finally, the court holds that plaintiff environmental groups are "prevailing parties" in this litigation for purposes of the attorney fees and cost provision of FWPCA §505(d).

Counsel for Plaintiffs
Paul P. Spaulding, Denise E. Antolini
Sierra Club Legal Defense Fund
212 Merchant St., Rm. 202, Honolulu HI 96813
(808) 599-2436

Counsel for Defendant
Richard D. Wurdeman, Cheryl K. Okuma-Sepe
Office of Corporation Counsel
530 S. King St., Rm. 110, Honolulu HI 96813
(808) 523-4639