27 ELR 20483 | Environmental Law Reporter | copyright © 1996 | All rights reserved

Unitek Environmental Services, Inc. v. Hawaiian Cement

No. 95-00723 SPK (D. Haw. August 7, 1996)

The court holds that a cement manufacturer violated the Hawaii state implementation plan (SIP) and the Clean Air Act (CAA) by emitting fugitive dust in excess of the SIP limit and by failing to take reasonable precautions to prevent dust from becoming airborne or from crossing its property boundary line. The court first holds that a U.S. Environmental Protection Agency (EPA) notice of violation (NOV) that was based on the manufacturer's own monitoring data, plaintiff neighboring landowner's independent analysis of the manufacturer's monitoring data, and the manufacturer's admission of noncompliance and determination that the dust standards could be met are "credible evidence" that landowner may use to establish violations of the SIP's dust-emissions limitation. The court next holds that the landowner may use the manufacturer's internal memoranda and several NOVs issued by the Hawaii Department of Health to establish that the manufacturer failed to take reasonable precautions to prevent dust from becoming airborne and crossing the property boundary line. Based on the entirety of the evidence, the court holds that the manufacturer continuously violated the emissions limitation from 1993 to the date of this lawsuit and has failed to operate its plant with good air-pollution control practices for minimizing emissions. The court next holds that the SIP provisions are enforceable in a citizen suit as emissions standards or limitations, because the SIP sets forth a specific limitation for fugitive dust and EPA has fully approved the SIP. Further, although it may be true that citizens cannot sue for alleged violations of a nonobjective standard, the SIP's 150 microgram per cubic meter dust-concentration standard is not a nonobjective standard. The court next rejects the manufacturer's contract-based defense that the landowner waived its right to challenge the manufacturer's alleged CAA violations when the landowner purchased its property. The court then holds that the landowner's 20-year failure to take action regarding the dust emissions does not prove that the landowner's claim was unreasonably delayed or that the manufacturer was subjected to prejudice sufficient to warrant upholding the defense of laches. Last, the court rejects the manufacturer's argument that because the landowner's true motive is economic gain, the doctrine of unclean hands should bar its claims.

Counsel for Plaintiffs
Jeffrey W. Leppo
Bogle & Gates
Two Union Sq.
601 Union St., Seattle WA 98101
(206) 682-5151

Counsel for Defendant
Thomas P. O'Donnell
Pillsbury, Madison & Sutro
10 Almaden Blvd., San Jose CA 95113
(408) 947-4000

[27 ELR 20483]

King, J.:

Order Granting Plaintiffs' Motion for Partial Summary Judgment and Denying Defendant's Motion for Partial Summary Judgment

I. Overview

This matter came on for hearing on Monday, August 5, 1996, before the Honorable Samuel P. King. Jeffrey Leppo (pro hac vice) argued on behalf of Plaintiffs. Thomas O'Donnell (pro hac vice) argued for Defendant. Plaintiffs Unitek Environmental Services Inc. and Unitek Solvent Services, Inc. (collectively "Plaintiffs" or "Unitek") brought a motion for partial summary judgment on their first cause of action alleging Clean Air Act ("CAA") violations. 42 U.S.C. § 7204(a)(1). The second motion is Defendant Hawaiian Cement's (Hawaiian Cement) cross-motion for partial summary judgment. The last motion, brought by Hawaiian Cement, requests a stay of the proceedings until the EPA intervenes or takes action. The court grants Plaintiffs' motion for partial summary judgment and denies Defendant's cross-motion for partial summary judgment. The court denied the motion to stay from the bench and a minute order has been entered reflecting the same.

Plaintiffs allege that the emissions from Defendant Hawaiian Cement's cement plant have unlawfully affected and damaged operations at the Unitek Site for over five years. Plaintiffs claim that Defendant has violated the CAA, pursuant to the standards set by the Hawaii Air Pollution Control Implementation Plan ("Hawaii SIP"), since December 1993. Furthermore, each day of Defendant's allegedly illegal emission of pollutants is a separate violation pursuant to §§ 113(b) and 304(a) of the CAA, 42 U.S.C. §§ 7413(b) and 7604(a). Plaintiffs assert that Defendant is liable for $ 25,000 in civil penalties, per day under these provisions.

Plaintiffs also allege nuisance and trespass and seek recovery of punitive damages which are not at issue in these motions. Plaintiffs seek an order granting partial summary judgment and establishing that Defendant's emissions of fugitive dust have in the past and continue to violate the CAA. Plaintiffs also ask for an injunction against Defendant's continued violation of the CAA and enjoining Defendant to immediately abate and remediate the contamination, and for an order imposing civil penalties pursuant to § 304(a) of the CAA, 42 U.S.C. § 7604(a). [27 ELR 20484] The pivotal issue is what evidentiary value may be attached to the documents submitted by the parties.

Hawaiian Cement allegedly emits large amounts of fugitive dust, or dust particulates while manufacturing cement. The emissions are generated during the following stages of the production process: (1) the receipt, storage, and crushing of raw materials; (2) the grinding of raw materials, or the "raw milling process"; (3) the blending of raw materials in a process referred to as "homogenizing"; (4) the processing of the blended feed in a kiln to produce cement "clinker"; and (5) the grinding of clinker into fine cement powder, or "finish grinding." Plaintiffs state that since the mid-1980s, Hawaiian Cement stored its clinker in an open-sided shed, and more recently put it in a partially enclosed shed.

On April 30, 1996, the EPA issued a Notice of Violation ("NOV") determining that from December 10, 1993, Hawaiian Cement has continuously violated the Hawaii State Implementation Plan ("SIP") particulate matter regulations. Both parties bring cross-motions for partial summary judgment on the first cause of action, the citizen-suit provision of the Clean Air Act.

II. Discussion

The basic framework of the CAA is straightforward. The CAA requires the EPA to establish National Ambient Air Quality Standards (NAAQS) for pollutants harmful to the public health and welfare. To date, the EPA has set NAAQS for six pollutants, including particulate matter or fugitive dust. Each state is required to submit to the EPA for its approval, a SIP detailing how the state expects to achieve the NAAQS for each pollutant. The purpose of the SIP is to provide for the implementation, maintenance, and enforcement of the NAAQS, 42 U.S.C. § 7410 (a)(1), in each of the state's air quality control regions, 42 U.S.C. § 7407.

The CAA contains a provision authorizing "citizen suits" to remedy specific violations of the CAA. 42 U.S.C. § 7604. It is this provision which is at the heart of this dispute. The provision provides that a suit may be brought against any person who is alleged to be in violations of:

(A) an emission standard or limitation under this chapter or (B) an order issued by the [EPA] Administrator or a State with respect to such a standard or limitation.

42 U.S.C. § 7604(a)(1).

"Emission standard or limitation under this chapter" is defined at § 7604(f) as:

(1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard,

. . . .

(4) any other standard, limitation, or schedule established under any permit issued pursuant to subchapter V of this chapter or under any applicable State implementation plan approved by the Administrator, any permit term or condition, and any requirement to obtain a permit as a condition of operations which is in effect under this chapter . . . or under an applicable implementation plan.

42 U.S.C. § 7604(f) (emphasis added).

Thus, for a given requirement to be enforceable under § 7604, it must (1) fit within one of the definitions of an "emission standard or limitation" under § 7604(f), and (2) be "in effect under" the CAA. Furthermore, plaintiffs must allege "a state of either continuous or intermittent violation—that is, a reasonable likelihood that a past polluter will continue to pollute in the future." Gwaltney v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57 [18 ELR 20142] (1987). Therefore, Plaintiffs must provide evidence of past as well as ongoing violations.

Under section 113(e) of the CAA, courts may use "credible evidence" to establish the duration of a violation. And citizen plaintiffs may file suits for past violations if they can allege repeated violations.

A. The Hawaii SIP

Hawaii's SIP has been approved by the EPA and is identified at 40 C.F.R. § 52.620, which incorporates by reference certain provisions of the 1982 Hawaii Administrative Rules ("H.A.R."). Plaintiffs seek to enforce three provisions under the Hawaii SIP: (1) prohibit ground level dust concentrations in exceedance of 150 micrograms per cubic meter (150 [mu]g/m3) above upwind concentrations during any twelve-hour period, unless Hawaiian Cement obtains a determination from the director of the HawaiiDepartment of Health ("HDOH") that it employs the "best practical operation and treatment." 40 C.F.R. § 52.620(c)(16); (2) require "reasonable precautions" to be taken as determined by the HDOH Director to prevent particulate matter from becoming airborne, 40 C.F.R. § 52.620(c)(16); and (3) prohibit discharge of visible emissions beyond its property line without implementing "best practical operation or treatment" as determined by the HDOH Director to control dust. 40 C.F.R. § 52.620(c)(16).

B. Plaintiffs' Evidence

Plaintiffs seek enforcement of the CAA via the alleged SIP violations. In support of their motion, Plaintiffs attempt to provide the following "credible evidence" pursuant to section 113(e).

1. EPA's April 30, 1996 Notice of Violation

Plaintiffs provide as an exhibit, a notice of violation ("NOV") issued by the EPA on April 30, 1996, which states that Hawaiian Cement "emitted dust at ground level concentrations exceeding 150 [mu]g/m3 above upwind concentrations for at least 69 out of 88 12-hour data sets between July 17 and October 16, 1995. The same NOV also found that Hawaiian Cement was currently violating the applicable SIP requirements.

The EPA based its findings on the information that it directed Hawaiian Cement to provide, pursuant to § 114 of the CAA. The EPA and HDOH approved the method by which Hawaiian Cement would obtain the necessary information. Plaintiffs' Motion for Summary Judgment Exh. A, P 9. Hawaiian Cement then conducted air monitoring for total suspended particulates ("tsp") and particulate matter with an aerodynamic diameter less than or equal to 10 micrometers (PM[10]) at its facility from July 17, 1995 through October 16, 1995. Using that data, the EPA issued its NOV. Unitek urges that the NOV should be accorded particular deference because the information contained in the NOV is based on data collected by Hawaiian Cement.

Hawaiian Cement countered with its expert's opinion that the statistics were inaccurately obtained and should not be accorded great weight. Hawaiian Cement's expert stated that the testing sites were chosen in conjunction with HDOH and the EPA, but that "HDOH did not choose either of the sites west of the plant that I had recommended." Affidavit of Harvey D. Shell PP 9-11. However, Hawaiian Cement proposed the monitoring plan to the agencies, and the agencies then approved them. Plaintiffs' Exh. A. Defendant now contends that the monitoring was conducted "at the direction of EPA and HDOH" and is "fundamentally flawed."

The court finds it convincing that the EPA and HDOH approved the monitoring plan submitted by Hawaiian Cement, and nevertheless found that "Hawaiian Cement has violated and is in violation of applicable SIP requirements." Plaintiffs' Motion for Summary Judgment Exh. A at 4.

2. Plaintiffs' Independent Assessments

Unitek did its own analysis of the data that Hawaiian Cement collected as instructed by the EPA. Unitek found that Hawaiian Cement's data indicates an average particulate emission concentration over every twelve-hour period during the testing period that was more than twice the legal limit. Unitek also relies on the affidavit of Wilfred K. Nagamine which states that Hawaiian Cement has not been exempted from strict compliance with the standards set forth in the SIP. Affidavit of Wilfred K. Nagamine dated May 2, 1996.

Unitek claims that it has monitored Hawaiian Cement's particulate emissions continuously since December 1993. Unitek provides ample statistics and results which confirm that Hawaiian Cement was causing emissions for the stated period, if not longer.

3. Hawaiian Cement's Permit Application

Next, Unitek points to Hawaiian Cement's covered source permit application as evidence of SIP violations. Hawaiian Cement's application acknowledges that it was not complying with NAAQS and SAAQS (State Ambient Air Quality Standard) and identifies the necessary corrective measures. Plaintiffs' Motion for Summary Judgment [27 ELR 20485] Exh. P. Hawaiian Cement attributes its noncompliance to its "very small site for a cement plant."

Unitek relies on its expert, Richard Schulze, who found that Hawaiian Cement's admission of noncompliance with the NAAQS is equivalent to admission of noncompliance with H.A.R. § 11-60-26(b) for at least one of the two 12-hour periods for every day of violation. Affidavit of Richard A. Schulze, P 21.

Plaintiffs state that these compliance certifications are per se evidence of Hawaiian Cement's continuing violations of these standards. Unitek urges the court to consider these applications as uncompelled admissions of violations of the SIP. The evidentiary standard, i.e., "credible evidence," is lenient and the court finds that the permit applications denote CAA violations.

4. Hawaiian Cement's Air Emission Modeling

Unitek next states that Hawaiian Cement conducted computerized modeling of its particulate emissions which was included in its November 26, 1994 Covered Source Permit Application. In the application, Hawaiian Cement states that

the NAAQS and SAAQS can not [sic] be met. The primary reason these standards cannot be met is due to the very small site for a cement plant. . . . However, it is not possible for the plant to demonstrate compliance with ambient air quality standards without significant modification to those sources . . . .

Exh. P at 4325. Hawaiian Cement asserts that computer modeling only provides a hypothetical situation which should not be relied upon to determine violations of emissions standards.

After considering all of the evidence and arguments, the court finds that the evidence as a whole establishes that Hawaiian Cement has been continuously violating the 150 [mu]g/m3 standard since December 1993.

In evaluating the evidence, the 1990 Amendments to the CAA added a new section, 42 U.S.C. § 7413, which advises that in "determining the amount of any penalty to be assessed under . . . section 7604(a) of this title . . . the court as appropriate . . . shall take into consideration . . . the duration of the violation as established by any credible evidence (including evidence other than the applicable test method)."

The amendment clarifies that courts may consider any evidence of violation or compliance admissible under the Federal Rules of Evidence, and that they are not limited to consideration of evidence that is based solely on the applicable test method in the State implementation or regulation. For example, courts may consider evidence from continuous emission monitoring systems, expert testimony, and bypassing and control equipment malfunctions, even if these are not the applicable test methods. Thus, the amendment overrules the ruling in United States v. Kaiser SteelCorp., No. 82-2623-IH [1984 WL 186690] (C.D. Cal. January 17, 1984) to the extent that the court in that case excluded the consideration of such evidence.

Senate Report No. 101-228, December 20, 1989, p. 366, 190 U.S. Code Cong. Admin. New, 101st Congress—Second Session, p. 3749.

Given this legislative backing, the evidence presented by Unitek is credible.

5. Hawaiian Cement's Reasonable Precautions

Unitek also alleges that Hawaiian Cement has handled and stored clinker and other materials in a way that generates fugitive emissions of dust. Unitek points to the Hawaii SIP which prohibits persons from causing or permitting:

any materials to be handled, transported, or stored; or a building, its appurtenances, or a road to be constructed, altered, repaired, or demolished without taking reasonable precautions, as approved by the director, to prevent particulate matter from becoming airborne.

H.A.R. § 11-60-26(a).

Unitek points to the several notices of violation and letters of noncompliance issued by the HDOH. In particular, the HDOH found at the Hawaiian Cement site:

clouds of fugitive dust becoming airborne and crossing the property boundary line. . . . On April 23, 1992, the fugitive dust crossed onto the street. On June 18, 1992, the fugitive dust crossed into a neighboring property operated by Unitek. . . . At the time of this inspection, no measures were being taken to control the dust being generated.

Ex. M. See also Exh. E, "HDOH Notice of Violation dated May 13, 1996"; Exh. F, "HDOH Notice of Violation dated September 22, 1992"; Exh. K, "HDOH Notice of Violation dated July 13, 1987." Again, the court finds that the evidence is credible and establishes that Defendant has discharged visible emissions beyond its property line, in violation of the SIP.

Neither the EPA nor the HDOH has made any determinations that Hawaiian Cement has been taking reasonable precautions to reduce the level of fugitive dust. Hawaiian Cement directs the court to its experts who all contend that Hawaiian Cement was employing reasonable precautions. However, the plain meaning of the statute does not allow experts to make such a determination and states, "as approved by the director."

6. Eyewitness and HDOH Findings That Hawaiian Cement Discharged Visible Emissions of Fugitive Dust Beyond Property Line

Lastly, Unitek directs us to excerpts from Hawaiian Cement internal memos indicating that Hawaiian Cement was aware that it was violating this provision. See Exh. Z (internal memo listing actions necessary to "reduce impacts of wind blown dust onto Unitek's property," dated May 17, 1995).

In opposing Unitek's motion, Hawaiian Cement argues that it is entitled to demonstrate that it has used reasonable precautions and has implemented the best practical operation and treatment. Hawaiian Cement states that HDOH determined that it was in compliance with "applicable air pollution regulations" and refers to the declaration of Wilfred Nagamine, the Manager of the Clean Air Branch of the HDOH. The exhibits that Hawaiian Cement attaches in support of this contention are inspection reports dated prior to the December 1993 violation start date. Nevertheless, Nagamine testified that:

The Clean Air Branch has never been asked to and has never made an advance determination under the Hawaii State Implementation Plan, whether through the issuance of a certificate or otherwise, that a facility's proposed control methods would constitute "reasonable precautions" or "best practical operation and treatment" for control of fugitive dust. The Clean Air Branch has conducted investigations and, as a result of such investigations, determined that on a particular day a facility either was or was not violating H.A.R. §§ 11-60-26 (1982), 11-60-5 (1986) or 11-60.1-33 (1993).

Affidavit of Wilfred K. Nagamine dated July 17, 1996, P 8. Although Hawaiian Cement makes a valid argument in noting that the Director and HDOH does [sic] not provide statements as to "reasonable precautions," the NOVs from both the EPA and HDOH, issued after 1993, evidence Hawaiian Cement's failure to remedy its emission problems adequately. Hawaiian Cement had been receiving NOVs for several years prior to the one issued on April 30, 1996. There is no additional evidence that these emissions have since been reduced.

The entirety of the evidence can only lead to the conclusion that the CAA has indeed been violated. Hawaiian Cement contends that there are disputed factual issues regarding improvements that have been made at the plant. However, Hawaiian Cement's need for improvements and new technology is not genuinely disputed. Any dispute of fact surrounding this decision does not diminish the probative value of the monitoring reports, NOVs, and internal memoranda submitted. The evidence is persuasive that Hawaiian Cement continuously violated the emission limitation from 1993 to the date of this lawsuit. The evidence is corroborated by Hawaiian Cement's own internal memoranda concerning the need for improved facilities. Unitek's evidence shows conclusively that Hawaiian Cement has failed to operate its Campbell Industrial Park plant with good air pollution control practices for minimizing emissions.

C. Defendant's Cross-Motion for Partial Summary Judgment

Hawaiian Cement next brings a cross-motion for partial summary judgment arguing that Unitek's claims under the CAA and prayer for civil penalties and punitive damages are both barred as a matter of law.

First, Hawaiian Cement asserts that the fugitive dust provisions of the SIP are not enforceable in a citizen suit brought under the CAA.

[27 ELR 20486]

1. Whether the SIP Provisions Are Enforceable in a Citizen Suit as Emissions Standards or Limitations

As noted above, for a given requirement to be enforceable under § 7604, it must (1) fit within one of the definitions of an "emission standard or limitation" under § 7604(f), and (2) be "in effect under" the Act. 42 U.S.C. §§ 7604(a)(1)(A), (f). The SIP fits within one of the definitions of "emission standard or limitation" in that 42 U.S.C. § 7604(f)(4) defines it as

any other standard, limitation, or schedule established under . . . any applicable State implementation plan approved by the Administrator. . . . (emphasis added).

The court finds that the plain language of the statute, 42 U.S.C. § 7604, must control where the language is not ambiguous.

Under H.A.R. § 11-60-26, the Hawaii SIP sets forth a specific limitation for fugitive dust under the SIP. An alleged violation of Hawaii SIP therefore does constitute an "emission standard or limitation." See Wilder v. Thomas, 854 F.2d 605, 613-15 [18 ELR 21285] (2d Cir.), cert. denied, 489 U.S. 1053 (1989); Action for Rational Transit v. West Side Highway Project, 699 F.2d 614, 616 [13 ELR 20347] (2d Cir. 1983); Oregon Environmental Council v. Oregon Dep't of Environmental Quality, 775 F. Supp. 353, 361 [22 ELR 20577] (1991). Accordingly, jurisdiction is conferred pursuant to 42 U.S.C. § 7604(a).

When a state implementation plan ("SIP") is approved by the EPA, its requirements become federal law and are fully enforceable in federal court. See Her Majesty the Queen v. City of Detroit, 874 F.2d 332 [19 ELR 20888] (9th Cir. 1989); 42 U.S.C. § 7604(a). As noted above, the Hawaii SIP has been approved by the EPA.

In the most analogous case, a citizen's suit was allowed after the Colorado Department of Health issued two NOVs for the violation of the Colorado SIP's regulations covering opacity limitations. Sierra Club v. Public Service Co. of Colorado, Inc., 894 F. Supp. 1455 [25 ELR 21461] (D. Colo. 1995). The court found that "federal question jurisdiction [ [ exists as this action addresses violations under the Colorado state implementation plan. . . ." 894 F. Supp. at 1456.

Hawaiian Cement cites to Council of Commuter Organizations v. Gorsuch, 683 F.2d 648, 670 [12 ELR 20825] (2d Cir. 1982), for the proposition that a citizen suit can only be sustained when a plaintiff alleges a "violation of a specific strategy or commitment in the SIP and describes, with some particularity, the respects in which compliance with the provision is deficient." Hawaiian Cement argues that emitting dust particulates in an amount above the limit set forth in the SIP is not a violation of a specific strategy.

Hawaiian Cement also cites Coalition Against Columbus Center v. New York, 967 F.2d 764, 769 [22 ELR 21154] (2d Cir. 1992), for the proposition that an "air quality standard established under the Clean Air Act is not an emission standard or limitation." However, this same case held that a provision under that SIP was enforceable in a citizen suit. The quote used by Hawaiian Cement was in reference to enforcement of the NAAQS which has been held to be a nonobjective standard. This confuses the enforcement of emission standards in the SIP and the NAAQS which is evident from the other cases that Defendant cited. The Hawaii SIP provides a specific limitation and emission standard and this court has jurisdiction to enforce that standard.

a. Objective Standards

Hawaiian Cement also argues that the Hawaii SIP failed to provide objective evidentiary standards and are therefore unenforceable in a citizen suit. Hawaiian Cement argues that the fugitive dust provisions of the Hawaii SIP contain subjective standards, because § 11-60-26(a) prohibits certain activities if done "without taking reasonable precautions . . . to prevent particulate matter from becoming airborne" or "best practical operation or treatment." Hawaiian Cement believes that this language renders the entire fugitive dust provision unenforceable in this citizen suit. However, Hawaiian Cement refers to the provisions that the Director of the HDOH would use in exempting a discharger from the standards. The affidavit of Wilfred Nagamine, indicates that Hawaiian Cement has not been granted such an exception or variance. Affidavit of Wilfred Nagamine dated May 2, 1996 at 2.

Hawaiian Cement also argues that the provision should not be enforced in this citizen suit because the Director of HDOH is given discretion to determine whether a violation has occurred. Hawaiian Cement argues that because the Director can determine whether reasonable precautions have been taken, the SIP is neither clear-cut nor objective and thus need not be enforced in this citizen suit.

Although it may be true that citizens cannot sue for alleged violations of a nonobjective standard, this is not the situation here. In Northwest Envtl. Advocates v. City of Portland, 11 F.3d 900 [24 ELR 20238] (9th Cir. 1993), the court considered its jurisdiction over a citizen suit for Clean Water Act violations.1 The court noted that "Congress' emphasis on the evidentiary simplicity of enforcement actions precludes the enforcement of water quality standards that have not been translated into effluent discharge limitations." 11 F.3d at 910 (emphasis added). The court in that case held that it did not have jurisdiction over citizen suits to enforce water quality standards when they are conditions of a permit, due to the subjective nature of that determination. Id. at 911. However, the Ninth Circuit withdrew that opinion and vacated on rehearing, finding that "Congress intended to confer citizen standing to enforce water quality standards." Northwest Envtl. Advocates v. City of Portland, 56 F.3d 979, 987 [25 ELR 21250] (9th Cir. 1995) (Kleinfeld, J., dissenting). The court rejected the requirement of strict commercial guidelines so as not to "immunize the entire body of qualitative regulations from such an important enforcement tool." Id. at 989.

This court follows the Ninth Circuit by recognizing the importance of the citizen suit provision in the CAA. See also Satterfield v. J.M. Huber Corp., 888 F. Supp. 1561 [25 ELR 21500] (N.D. Ga. 1994) (holding that citizens cannot sue for alleged violations of a nonobjective standard, which was based on the subjective common law nuisance standard, even where the standard is incorporated by a permit).

Hawaiian Cement mistakenly reads Satterfield to support its contention that the SIP standard is not objective, and therefore not enforceable in a citizen's suit. The court in Satterfield explained that the CAA sets overall National Ambient Air Quality Standards which each state then uses to establish quantifiable emissions limitations for their SIP. See 42 U.S.C. §§ 7407, 7409. The Satterfield court clarified, however, that "these emissions limitations are designed to achieve general air quality standards and are objective, numerical standards of the type susceptible to citizen suit enforcement." Satterfield, 888 F. Supp. at 1566-67 (emphasis added).

The standard of 150 [mu] g/m3 is set forth in H.A.R. § 11-60-26 and can hardly be said to be a vague, nonobjective standard. Thus, Hawaiian Cement's argument that these violations are unenforceable under the CAA's citizen suit provisions because they are based on subjective standards is incorrect.

2. Imposition of Civil Penalties or Punitive Damages

Hawaiian Cement argues that Unitek cannot receive both civil penalties and punitive damages on the CAA claim. Unitek does not discuss damages in its motion. In its complaint, Unitek asks for punitive damages to address the common law causes of action, if Hawaiian Cement is found liable, and not to address the CAA claim. In this motion, Plaintiffs specifically ask this court for an order for an injunction against Defendant's continued violation of the CAA and enjoining Defendant to immediately abate and remediate the contamination and an order imposing civil penalties pursuant to § 304(a) of the CAA, 42 U.S.C. § 7604(a).

Unitek correctly points out that the CAA claims allow for civil penalties and injunctive relief. If Hawaiian Cement is liable for those violations, then Unitek asks this court to enjoin Hawaiian Cement from further violative discharges and to impose penalties that are deposited into the U.S. Treasury. 42 U.S.C. § 7604(g)(1).

The CAA citizen suit provision grants the district courts jurisdiction "to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties." 42 U.S.C. § 7604(a). Furthermore, the CAA citizen suit requires that the penalties received under subsection (a) be deposited in a special fund in the [27 ELR 20487] United States Treasury for licensing and other services. 42 U.S.C. § 7604(g)(1). The funds are then at the disposal of the Administrator to fund air compliance and enforcement activities. There is also a provision that permits the parties to agree to apply the penalties to "beneficial mitigation projects which are consistent with this chapter and enhance the public health or the environment." 42 U.S.C. § 7604(g)(1). The civil penalties are designed to finance projects to promote the purpose behind the CAA.

Plaintiffs assert in their complaint that punitive damages are warranted because "the conduct of Defendant in emitting contaminants was intentional and/or grossly negligent and was carried on with a conscious, willful and reckless disregard to Plaintiffs' rights. . . ." Complaint P 36. The objectives behind these two forms of remedies are separate and distinct.

Because the remaining causes of action have not yet been considered, it is premature to make any determination regarding punitive damages. Hawaiian Cement's argument on this issue is therefore not relevant at this time.

3. Affirmative Defenses

Hawaiian Cement raises for the first time in its Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment, certain affirmative defenses which, for the following reasons, the court rejects.

a. Conditions, Covenants, and Restrictions

Hawaiian Cement contends that Unitek waived its right to challenge Hawaiian Cement's alleged CAA violations when it purchased the property on which it sits in 1994. Hawaiian Cement cites the provisions in the Conditions, Covenants, and Restrictions of Unitek's deed which state:

6.04 Certain Operations Permitted. Neither the Association nor property Owner will interfere or attempt to interfere in any way, directly or indirectly, by legal proceedings or otherwise, with, or seek damages from Declarant, or Cyprus Hawaiian Cement, . . ., for cement quarrying or manufacturing operations so long as same are conducted in a reasonable and prudent manner and in accordance with accepted quarrying and manufacturing methods and procedures. (emphasis added).

Cardwell Declaration, Exh. D. Hawaiian Cement states that these provisions "expressly prohibit Plaintiffs from commencing the present action against Hawaiian Cement so long as Hawaiian Cement conducts its operations in a reasonable and prudent manner and in accordance with accepted quarrying and manufacturing methods and procedures." Defendant's Memorandum in Opposition, at 27.

First, Defendant does not cite the other relevant provisions in the document which also provides:

6.02 Governmental Regulations as to Use. There shall be no violations on the Property of any applicable law or ordinance pertaining to zoning, buildings, signs or other matters pertaining to the use and development of the Property. In case of conflict between the provisions of this Declaration and any governmental regulations, the more restrictive shall apply. (emphasis added).

It is apparent that provision 6.04 conflicts with the citizen suit provisions under the CAA. As the CAA is the more restrictive provision, it must apply.

Second, provision 6.04 also states that there shall be no interference with the quarrying or manufacturing operations of Hawaiian Cement "so long as same are conducted in a reasonable and prudent manner and in accordance with accepted quarrying and manufacturing methods and procedures." As discussed above, the court finds that there were and continue to be violations of the CAA which renders 6.04 inapplicable.

Third, the provisions are enforceable by the Association or the Property Owner. Hawaiian Cement does not stand in a position to enforce these provisions. For these reasons, Hawaiian Cement's argument of waiver must fail.

b. Laches

Hawaiian Cement next invokes the defense of laches because Unitek was aware of the particulate emissions since 1975, but failed to take action until 1995. In reviewing the laches defense, the trial court must find (a) unreasonable delay in bringing suit by the party against whom the defense is asserted and (b) prejudice to the party asserting the defense as a result of this delay. The court may also consider public policy.

As with other equitable defenses, the existence of laches "is a question primarily addressed to the discretion of the trial court." Burnett v. New York Central R.R Co., 380 U.S. 424, 435 (1965). The defense of laches is available in environmental litigation, but is disfavored because of the interests of the public in environmental quality. Hawaiian Cement simply states that Unitek's "dilatory conduct has prejudiced Hawaiian Cement" and that "Plaintiffs' failure to assert their Clean Air Act claims in a reasonably diligent manner has severely prejudiced Hawaiian Cement." These statements do not convince the court that Unitek's claim was unreasonably delayed and that Hawaiian Cement was subjected to prejudice sufficient to warrant upholding the defense of laches to the entire suit, although it may have relevance to the determination of penalties or damages.

c. Unclean Hands

Lastly, Hawaiian Cement argues that the doctrine of unclean hands should operate to bar Unitek's claims. Hawaiian Cement contends that Unitek is using the CAA as a device for economic gain; "Unitek's true motives were revealed when Unitek proposed a joint venture then a threat of legal action to coerce Hawaiian Cement into contribution to their business ventures."

In light of the evidence presented, the court concludes that Hawaiian Cement failed to establish, as a complete bar, equitable defenses to Unitek's claim.

III. Conclusion

This court, being fully apprised of the premises herein, issues the following order: Plaintiffs Unitek Environmental Services, Inc. and Unitek Solvent Services, Inc.'s Motion for Partial Summary Judgment as to Count One is GRANTED and Defendant Hawaiian Cement's Cross-Motion for Partial Summary Judgment as to Count One is DENIED. Defendant's Motion to Stay was previously DENIED and a minute order was issued.

Plaintiffs shall submit a proposed order of injunction to opposing counsel and this court within ten days of receipt of this Order. Opposing counsel shall then have ten days from receipt of Plaintiffs' proposed order to make any objections to the court.

The civil penalty issue shall be reserved for further hearing at a later date. Both parties may submit briefs on the issue of civil penalties within 60 days from the date this Order is filed.


1. The Clean Water Act citizen suit provisions were modeled after the Clean Air Act provisions and cases regarding the two statutes are often cited interchangeably. See 1972 U.S.C.C.A.N. at 3745.

27 ELR 20483 | Environmental Law Reporter | copyright © 1996 | All rights reserved