ELR Citation: ELR 20595
No(s). 92-00263DAE (D. Haw. Jul 27, 1994)

The court rules on plaintiff environmental groups' and defendant city's cross-motions for summary judgment on numerous alleged violations of two national pollutant discharge elimination system (NPDES) permits at the city's wastewater treatment plants in Kailua and Kaneohe, Hawaii. Plaintiffs alleged that the city violated the permits' secondary treatment levels, receiving water quality standards, maintenance and operations standards, and bypass requirements. They also claimed that the city failed to report occasions of noncompliance and failed to monitor water quality and effluent flow as the permits required. The court first holds that plaintiffs do not have standing to assert a cause of action for violations of the receiving water quality standards in the plants' permits. The court notes that Northwest Environmental Advocates v. City of Portland, 24 ELR 20238 (9th Cir. 1993) (NWEA), held that water quality standards in NPDES permits are not enforceable through citizen suits. It is not significant that the permits in this case contain specific quantitative water quality standards, whereas the permits in NWEA incorporated Oregon's narrative standards by reference. The NWEA court intended to render unenforceable all water quality standard permit conditions that have not been translated into end-of-the-pipe effluent limitations. The court finds that nothing in the NWEA opinion limits the holding to permits containing narrative water quality conditions. Further, a finding that plaintiffs have standing is neither necessitated nor warranted by the fact that the water quality standards in this case, unlike those in NWEA, are easy to implement and allow the dischargers to escape liability for violations caused by others. The court next holds that the city is not estopped from raising deficiencies in the permits as a defense even though it did not challenge the permits when Hawaii issued them. Until the Ninth Circuit decided NWEA, there was no "apparent legal deficiency" in the permits of which the city should have been aware. Also, although this court lacks jurisdiction to review the permits' validity, it has limited its review to the enforceability of the water quality condition by citizens. The court therefore grants the city's motion to dismiss the claims based on violations of the permits' water quality standards.

The court next refuses to reconsider its pre-NWEA holding that plaintiffs have standing to assert claims for violation of the permits' maintenance and operation conditions. NWEA did not constitute a change in the controlling law. The city overstates the breadth of NWEA by claiming that it prohibited citizen enforcement of all permit conditions other than effluent limitations. The court next turns to the city's alleged failure to meet secondary treatment levels at the plants. The court holds that plaintiffs can present evidence of "ongoing violations" at the Kailua plant, because installation of a new filter at the plant did not completely eradicate the risks of bypass, redundancy, and removal problems as of the date plaintiffs filed their complaint. The court next holds that even if plaintiffs' claims for injunctive relief regarding the secondary treatment level violations are mooted by the city's record of postcomplaint compliance, the claims for civil penalties remain unaffected. The court then holds that the claims for injunctive relief are not moot, because the risk of future violations is still present. The city has not proven that the new filter eliminates the reasonable possibility of future violations, and the city cannot assure the court that a new plant that is not yet fully operational will be in compliance. The court next holds the city was required to comply with the secondary treatment levels by the Federal Water Pollution Control Act's (FWPCA's) July 1, 1988, deadline. A consent order that the Hawaii Department of Health (DOH) issued the city setting forth interim effluent limits does not alter this result, because neither the U.S. Environmental Protection Agency (EPA) nor a state agency is empowered to extend or modify this statutory deadline. The court holds that the citizen suit is not barred by prior government enforcement. The consent order is not a government enforcement actions, and no branch of the state or federal government has taken any enforcement action in this matter. The court holds that the city committed 2,251 violations of the secondary treatment levels at the Kailua plant and 8,574 violations at the Kaneohe plant. The court defers assessing penalties until after trial.

The court next turns to plaintiffs' claims regarding failure to meet bypass requirements. The court holds that FWPCA §309(g)(6)(A)(i)'s prohibition against citizen suits when EPA is diligently prosecuting an administrative penalty action for the same violations does not bar the action. Although EPA issued an administrative compliance order regarding the violations, a compliance order does not amount to an enforcement action. EPA has never commenced a civil penalty action under §309, and the fact that EPA reserved the right to bring an administrative penalty action at some unspecified future date is not sufficient to constitute the "commencement" and "diligent prosecution" of an action under §309(g). The court next holds that §309(g)(6)(A)(ii)'s prohibition against citizen suits when a state diligently prosecutes an action under a comparable state law also does not bar the suit, even though the DOH issued several administrative orders and assessed penalties for the bypass violations. Hawaii law is not sufficiently "comparable" to the FWPCA to preempt plaintiffs' lawsuit, because Hawaii's statutes, administrative regulations, and DOH rules do not mandate the kind of public notice and participation rights required under the FWPCA. The court grants plaintiffs' motion for summary judgment on all 406 of the alleged bypass violations. The five bypasses that did not exceed effluent limitations are nevertheless subject to enforcement actions under 40 C.F.R. §122.41(m), because they did not involve essential maintenance to the facility. Neither the city's desire to avoid paying employees overtime for work at night nor the lack of lighting fixtures can excuse the decision to bypass for maintenance during daylight hours. Based on its earlier holdings, the court rejects the city's arguments that 20 of the remaining bypasses should not be part of this proceeding because they are subject to an EPA enforcement action, and that plaintiffs have failed to prove ongoing violations as to the 122 trickling filter bypass infringements. The court next rejects the city's argument that 198 of the violations fall within §122.41(m)(4)(ii)'s exception for bypasses that have the prior approval of the DOH. There is no evidence that §122.41(m)'s three requirements (prevention of loss of life, personal injury, or severe property damage; no feasible alternative; and proper notice to the DOH) were met. The DOH's approval thus appear to be nothing more than rubber stamps for prohibited bypasses. And the court rejects the city's argument that the 66 remaining bypasses fall within §122.41(m)'s exception for unavoidable bypasses with no feasible alternative. There is no indication in the record that these bypasses were unavoidable or that feasible alternatives were unavailable.

The court next turns to plaintiffs' claims that the city failed to monitor. The court holds that the city committed 32 violations for ammonia nitrogen and total phosphorus monitoring and 1,056 violations for enterococcus bacterial monitoring. The court also holds that the city failed to monitor effluent flow properly 12 times at the Kaneohe plant and 10 times at the Kailua plant. The court notes that the FWPCA provides for strict liability for NPDES permit violations. The court holds that there are no genuine issues of fact as to whether the violations occurred. While the court will consider the city's excuses during the penalty phase of this proceeding, it grants plaintiffs' motion for summary judgment as to liability for monitoring violations. The court next turns to the city's alleged failure to report occasions of noncompliance. The court holds the city liable for 1,088 failures to report violations of receiving water quality monitoring requirements. The city never submitted noncompliance reports for the violations and none of the documents the city cites contained the required information. the court next holds the city liable for 18 failures to report effluent flow monitoring violations. The court next grants the city's motion to dismiss for lack of standing plaintiffs' claims that the city failed to report any of its 7,492 alleged violations of ammonia nitrogen water quality standards. Any investigation into whether the city failed to report a noncompliance event is necessarily contingent on a finding that the event occurred. Because plaintiffs lack standing to allege receiving water quality violations,the court may not properly reach the issue of whether the city failed to report the alleged violations. The court finally holds that the city has not offered any evidence to create an issue of fact as to 75 alleged failures to report bypass violations, and grants plaintiffs summary judgment on those claims.

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

Counsel for Defendant
Milton S. Tani, Corporation Counsel
Corporation Counsel's Office
530 S. King St., Rm. 110, Honolulu HI 96813
(808) 523-4639