Save Our Bays & Beaches v. CITY & CTY. OF HONOLULU
| Decision Date | 27 July 1994 |
| Docket Number | Civ. No. 92-00263 DAE. |
| Citation | 904 F. Supp. 1098 |
| Parties | SAVE OUR BAYS AND BEACHES, a Hawaii non-profit corporation, sometimes doing business as Sobb; Hawaii's Thousand Friends, a Hawaii non-profit corporation; Sierra Club, a California nonprofit corporation; and Surfrider Foundation, a California non-profit corporation, Plaintiffs, v. CITY AND COUNTY OF HONOLULU, a Hawaii municipal corporation, Defendant. |
| Court | U.S. District Court — District of Hawaii |
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Denise E. Antolini, Paul P. Spaulding, III, Sierra Club Legal Defense Fund, Inc., Honolulu, HI, for plaintiffs.
Milton S. Tani, Corporation Counsel, Cheryl K. Okuma-Sepe, Deputy Corporation Counsel, City and County of Honolulu, Honolulu, HI, for defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT
The court heard the parties' cross motions for summary judgment on April 25, 1994. Paul "Skip" Spaulding, Esq., and M. Casey Jarman, Esq., appeared on behalf of the plaintiffs; Cheryl Okuma-Sepe, Esq., appeared on behalf of the defendant. After full consideration of the motions and of the supporting and opposing memoranda, and after hearing oral argument from counsel, the court GRANTS IN PART and DENIES IN PART the defendant's motions, and GRANTS IN PART and DENIES IN PART the plaintiffs' motions.
This is a citizens' enforcement action brought under Section 505 of the Clean Water Act, 33 U.S.C. § 1365. In a complaint filed May 5, 1992, plaintiffs claimed that the City has repeatedly violated various conditions of the NPDES permits which regulate the discharge of treated water from the Kailua and Kaneohe Water Treatment Plants.
Counts One and Eight allege violations of secondary treatment levels as described in the Permits; Counts Two and Nine relate to alleged violations of receiving water quality standards articulated in the Permits; Counts Three and Ten concern alleged violations of bypass requirements; Counts Four and Eleven assert that the City repeatedly failed to report numerous noncompliance events; Counts Five and Twelve allege that defendant failed to monitor water quality and effluent flow as required by the Permits; Counts Six and Thirteen concern alleged violations of maintenance and operations standards contained in the Permits. Plaintiffs now move for summary judgment as to Counts One, Two, Three, Four, Five, Eight, Nine, Ten, Eleven, and Twelve; defendant has filed cross motions to dismiss or for summary judgment as to Counts Two, Three, Four, Nine, Ten, and Eleven. Defendant has also moved this court to reconsider its earlier denial of summary judgment as to Counts Six and Thirteen.
As to Counts One and Eight, the court GRANTS the plaintiffs' motion for summary judgment as to 11,095 secondary treatment violations. With respect to the City's mootness defense, the court finds that, despite recent improvements made by the City, the Kailua and Kaneohe Plants are susceptible to ongoing violations. Moreover, the court finds that DOH had no authority to issue to the Kaneohe Plant an interim permit and consent order which established secondary treatment levels below the statutory minimum; Kaneohe's failure to meet statutory treatment levels results in enforceable violations. See Part III, infra.
As to Counts Two and Nine, the court GRANTS the defendant's motion to dismiss based on lack of standing. This court is bound by the recent holding of the Ninth Circuit Court of Appeals in Northwest Environmental Advocates v. City of Portland, 11 F.3d 900 (9th Cir.1993): citizens have no standing to enforce receiving water quality permit conditions which have not been translated into end-of-the-pipe effluent limitations. The court DENIES the plaintiffs' motion for summary judgment on these counts. See Part I, infra.
As to Counts Three and Ten, the court GRANTS the plaintiffs' motion for summary judgment as to 406 bypass violations. The court finds no merit to the defendant's contention that, because both federal and state governments are already actively enforcing these Permits, the plaintiffs' suit should be pre-empted. First, the court concludes that EPA has merely threatened enforcement in the event of future noncompliance; it is not actually enforcing the Kailua and Kaneohe Permits. Moreover, the court holds that Hawaii's statutes and regulations fail to require DOH to provide the public with notice and an opportunity to be heard concerning proposed settlements with water pollution violators. Hence, any enforcement undertaken by the State of Hawaii would not pre-empt this citizen suit. Accordingly, the court DENIES defendant's motion to dismiss or for summary judgment on these grounds. See Part IV, infra.
As to Counts Four and Eleven, the court GRANTS the plaintiffs' motion for summary judgment as to 75 failures to report bypass incidents, 1,088 failures to report failures to monitor water quality, and 18 failures to report failures to monitor effluent flow. However, the court DENIES the plaintiffs' motion and GRANTS the defendant's motion to dismiss based on lack of standing as to the failures to report violations of receiving water quality permit conditions. See Part VI, infra.
As to Counts Five and Twelve, the court GRANTS the plaintiffs' motion for summary judgment as to 1,110 failures to monitor. Defendant has advanced no credible defenses for its monitoring failures, although its excuses will be considered at the penalty phase of this proceeding. See Part V, infra.
As to Counts Six and Thirteen, the court DENIES the defendant's Motion for Reconsideration of this court's October 27, 1992 Order concerning maintenance and operations conditions. Inasmuch as defendant's motion is based on its interpretation of the breadth of the NWEA holding, the court finds that interpretation erroneous, and accordingly stands by its earlier decision to deny summary judgment on these counts. See Part II, infra.
The court hereby finds that a grand total of 13,792 violations were committed by the City. The court reserves ruling on the proper penalties to be affixed.
This is a citizens' enforcement action brought under Section 505 of the Clean Water Act, 33 U.S.C. § 1365 ("the Act"). The Act aims to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In furtherance of this goal, the Act prohibits the discharge of all "pollutants"1 from a "point source"2 into navigable waters of the United States, unless the discharger complies with various enumerated sections of the Act. 33 U.S.C. § 1311(a). The Act specifically requires that all "publicly owned treatment works" ("POTWs") in the United States meet effluent limitations based upon "secondary treatment" standards by July 1, 1988. 33 U.S.C. § 1311(i)(1). Secondary treatment is generally defined as removal of eighty-five percent of the organic materials and suspended solids in the wastewater leaving the plant. 40 C.F.R. § 133.102.
Plaintiffs are four non-profit organizations dedicated to preserving Hawaii's environment ("plaintiffs"). Defendant is the City and County of Honolulu ("City" or "defendant"), owner and operator of water treatment plants on the Island of Oahu. Plaintiffs' claims concern the City's Kailua and Kaneohe Wastewater Treatment Plants, which together serve the main population centers on the windward side of Oahu, from Lanikai to Heeia Pond. Plaintiffs allege that the City has failed to comply with various requirements of the Act and of the permits which regulate the plants' discharges.
The primary regulatory mechanism in the Clean Water Act is the National Pollution Discharge Elimination System ("NPDES"). Under this enforcement scheme, either the United States Environmental Protection Agency ("EPA") or a state entity issues NPDES permits to individual dischargers. 33 U.S.C. § 1342. The state program for issuance of NPDES permits must comply with statutory standards and regulations, must be supervised closely by EPA, and must prescribe effluent standards and limitations no less stringent than those in the Act. 33 U.S.C. § 1342(a)-(d).
Each permit issued by a federal or state agency sets forth specific limitations and conditions by which the permit-holder must regulate its discharge of pollutants. Courts have held that a failure to comply with a permit condition amounts to a violation of the Act itself.3 A critical part of the regulatory scheme is a strict self-reporting system requiring permittees to monitor carefully their permit compliance and to report their own permit violations to the EPA and to the state agency which issued the permits.4 These self-monitoring reports, known as "Discharge Monitoring Reports" or "DMRs," are public documents and are submitted under penalty of perjury. 40 C.F.R. § 122.41(k) and (1)(4).
The EPA, a state, or a private citizen can enforce violations of NPDES permits. The citizen suit provision defines exactly how and when citizens may file suit to enforce permit violations. 33 U.S.C. § 1365. Specifically, § 1365(f)(6) allows citizens to enforce "a permit or condition thereof issued under section 1342 of this title the NPDES scheme, which is in effect under this chapter."5
The Act imposes strict liability for NPDES violations. The Act does not allow for "de minimus" or "rare" permit violations, and the permit-holder's good faith is not relevant to the issue of liability.6
The State of Hawaii, Department of Health (DOH), has been delegated the responsibility of administering Hawaii's NPDES permit system. 33 U.S.C. § 1342(b). Pursuant to this authority, DOH issued NPDES permits for the wastewater plants in Kailua and Kaneohe ("the Plants"), on the...
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